Law Enforcement Case Study: Search and Seizure in Cyberspace

Case Discussed: U.S. v. Wellman, 2009 WL 37184 (S..D W. Va. 2009)

From: Quinlan Law Enforcement E-News*, March 26, 2009.

Search and Seizure in Cyberspace:
Fourth Amendment issues abound in P2P child porn case
The emergent nature of the Internet has caused the Fourth Amendment rights against unreasonable searches and seizures to be reviewed against the new technology. John Wellman was indicted on charges of possessing electronic images of child pornography. A special task force that had been designed to scan peer-to-peer networks for images of child pornography was able to identify a number of computers that they believed contained such images. The identifying information included the IP addresses of the computers, the time the files were transferred, the hash file associated with the image, and the physical location of the computers. Local law enforcement received this information and found by examining driving records that the computer was located at Wellman’s home. They also discovered that Wellman’s email address was […deleted…] and that he was an unregistered sex offender.

Using this information, as well as the information provided to them by the task force, local authorities applied for a warrant to search Wellman’s home. A judge granted that warrant, and a search revealed a large amount of child pornography, both on hard drive and DVD discs. Wellman later moved to suppress that evidence, largely based on his belief that investigators did not have the required probable cause to back up the issuance of the search warrant. His arguments, however, failed to impress the court. A federal judge ruled that the investigation revealed more than enough probable cause to support the issuance of the warrant.

A Pause For Thought
Question: Does a judge need to actually see a pornographic image in order to issue a search warrant?

Answer: When determining that there is probable cause that a file contains child pornography, a judge issuing a search warrant need not personally view the file. As one court has stated:
“We have never held that a magistrate must personally view allegedly obscene films prior to issuing a warrant authorizing their seizure. On the contrary, we think that a reasonably specific affidavit describing the content of a film generally provides an adequate basis for the magistrate to determine whether there is probable cause….”

Therefore, Wellman lost his argument on this point.

Question: How did the good faith exception to the exclusionary rule factor in to this case?

Answer: Although the Fourth Amendment contains no provision expressly precluding the use of evidence obtained in violation of its commands, the Supreme Court adopted the exclusionary rule to deter future unlawful police conduct and thereby effectuate the guarantee of the Fourth Amendment against unreasonable searches and seizures. Generally, the exclusionary rule provides that evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure, and it reaches not only primary evidence obtained as a direct result of an illegal search or seizure but also evidence later discovered and found to be derivative of an illegality, or fruit of the poisonous tree. The Supreme Court has provided a good faith exception, holding that “suppression of evidence obtained pursuant to a warrant should be ordered only on a case by case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” Using this standard, the court in Wellman’s case determined that the judge who issued the warrant had a reasonable basis to do so. Therefore, even if an error had occurred, the evidence should not have to be excluded.
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