Wednesday, September 5, 2018

"The mere taking of photographs of children . . .

. . . cannot suffice as probable cause to believe defendant was in possession of child pornography"---at least when there's no suggestion that those photographs were lewd or lascivious.

And neither can allegations of child molestation alone provide probable cause to search a suspect's computer for child pornography.

And neither can boilerplate recitations about the assumed proclivities of pornographers and child molesters.

So says E.D. Calif. District Court Judge Drozd, in an order granting the defendant's motion to suppress thousands of child-pornography images found on his computer during the execution of a search warrant. The warrant was tainted by numerous Franks violations, and their excision left an already questionable affidavit wanting.

Read this opinion for its excellent analysis of Franks claims, boilerplate cut-and-paste affidavits, and what does and doesn't constitute probable cause to search for child pornography. United States v. Kastis, No. 1:08-cr-00260, 2018 WL 4183267 (E.D. Cal. Aug. 30, 2018).

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