Probable Cause for Possessing Illegal Child Pornography Not Established By Allegations of Possession of Legal Child Erotica; Good Faith Saves Search

United States v. Edwards, 2015 WL 9467065 (12/29/2015) (OK): A modest victory for collectors of child erotica. The panel holds that probable cause to believe a person has child pornography is not established by showing that he had only child erotica. This is so even when the person openly suggests he is sexually attracted to children. Here, this ruling only goes so far because the officer who prepared and executed the search warrant had a good faith belief that the warrant was properly issued by the magistrate. Therefore, the panel had to affirm the district court’s decision to deny the motion to suppress. Still, the panel’s opinion can be helpful if you have a probable cause issue involving child erotica (or what could be considered child erotica). It explains that the officer’s affidavit did not make a factual correlation between collecting child erotica and possessing child pornography. Without it, the affidavit lacked probable cause. The panel also distinguishes a factually similar case in which another panel found that possession of child erotica contributed to the totality of the information justifying a warrant to search for child pornography. In that case, Soderstrand, 412 F.3d 1146 (10th Cir. 2005), the person who first looked into Dr. Soderstrand’s safe told the police she saw ‘child pornography.’ Here, the officer alleged only that Edwards had legal child erotica. Additionally, the panel clarifies why certain ‘pedophilic tendencies’ logically do not prove that a person would have child pornography in the home. Specifically, it found that just because those who possess child pornography might frequent a website where Edwards posted and commented on child erotica pictures does not provide probable cause that he would have child pornography at his home.

One note regarding the good faith exception: the panel criticized the trial attorney for not looking at the images upon which the officer relied when drafting the probable cause affidavit. It said the appellate argument that the officer misled the magistrate by overstating the description of the pictures is specious when the defense attorney did not even know what they actually depicted.