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Sixth Circuit Rules Child Molestation and Child Porn Not Necessarily Related

Demanding a child porn search of admitted molestor's home not warranted, court decides

Sixth Circuit Rules Child Molestation and Child Porn Not Necessarily Related
LEXINGTON, Ky. — A panel of the U.S. Court of Appeals for the Sixth Circuit has ruled that simply because a defendant has admitted to having engaged in child molestation, that doesn't necessarily mean that he (or she) also possesses child pornography.

In a ruling handed down last week, Judge Alice M. Batchelder, writing for a unanimous panel, opined that although Michael Hodson, Jr., who had admitted to an undercover detective for the Passaic County, N.J. Sheriff's Department Internet Crimes Section that he liked looking at his young sons (age 11 and 9) naked, and that he had had sex with his 7-year-old nephew, it was an overreach for a Kentucky detective, who'd been made aware of the foregoing dialog, to apply for a warrant to search Hodson's residence looking for child porn.

After quoting the entire description of the evidence to be seized — all of Hodson's computer hard drives, zip drives, floppy disks, videotapes, audiotapes and/or photos of children engaged in sexual activity — Judge Batchelder noted that, "It is significant that this depiction of the 'places to be searched and things to be seized' describes and directs a search for evidence of child pornography, with nary a hint of child molestation."

"Indeed, Detective Pickrell's exposition of probable cause in the affidavit does not establish, allege or even suggest any basis for a finding of probable cause to believe that Hodson had ever been involved in child pornography in any manner," the judge wrote. "Moreover, Detective Pickrell offered no assertion — in either the affidavit or any other evidence (e.g., expert testimony) then before the magistrate judge — of any relational nexus between child molestation and child pornography. Thus, it was and is clear that, in this affidavit, Detective Pickrell established probable cause to search for evidence of one crime (child molestation) but designed and requested a search for evidence of an entirely different crime (child pornography)."

And that's a no-no.

Of course, the search was conducted, and lo and behold, it turned out that Hodson had indeed had child porn on his computer — four years earlier, and subsequently erased so that even Hodson himself couldn't access it. But the state charged him with receiving and possessing child porn anyway, and Hodson moved to suppress the (erased) "evidence." The government, of course, objected.

"The government ... disputed all four of Hodson's arguments," the appeals court noted, "specifically countering Hodson's supplemental argument on three grounds:  (1) 'the Magistrate Judge was entitled to infer that a person with a continued and self-stated sexual interest in children, and a person that was using his computer to satisfy and explore this interest in children, may have possessed images related to sexual exploitation on that computer'; (2) good faith; and (3) inevitable discovery."

Indeed, although the magistrate deciding the suppression motion stated that, "At best, the evidence in the Affidavit connecting [Hodson] to child pornography is limited and indirect" and that "[w]hile the potential inference between conduct and pornography is not an illogical one, it also is not self-evident," he nonetheless upheld the warrant because he found that the detective had not sought it in "bad faith," and that his failure to explain the "molestation-pornography nexus" to the issuing magistrate was an "innocent oversight."

"At this point, it is beyond dispute that the warrant was defective for lack of probable cause — Detective Pickrell established probable cause for one crime (child molestation) but designed and requested a search for evidence of an entirely different crime (child pornography)," the Court finally ruled. "Consequently, the warrant did not authorize the search and, barring some other consideration, the evidence obtained during that search must be excluded from trial. The question presently before us is whether any other consideration — specifically, the [U.S. v.] Leon good-faith exception — can overcome the defect and justify admission of the evidence anyway. For the reasons that follow, we conclude that it cannot.

"We conclude that it was unreasonable for the officer executing the warrant in this case to believe that probable cause existed to search Hodson's computers for child pornography based solely on a suspicion — albeit a suspicion triggered by Hodson's computer use — that Hodson had engaged in child molestation," the Court continued. "We opined in United States v. Adkins, that '[s]tanding alone, a high incidence of child molestation by persons convicted of child pornography crimes may not demonstrate that a child molester is likely to possess child pornography.' We adhere to that view and conclude that it was unreasonable for the magistrate judge in this case, when confronted with the request for the warrant, to infer such a nexus without further evidence to support that inference."

The appeals court therefore vacated Hodson's conviction on child porn charges and remanded the case for reconsideration based on the Sixth Circuit's opinion.

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