DEFENSE AND PROSECUTION OF CHILD PORNOGRAPHY CASES
FILE SHARING, SEXTING & “ONE CLICK” CASES
By Robert C. Bonsib, Esq.
Three recent cases give prosecutors advantages in the prosecution of child pornography cases. Criminal defense lawyers representing client under investigation for child pornography or being prosecuted for child pornography cases in state or federal court will have to be prepared to address issues raised in cases recently decided by the Maryland Court of Appeals (COA) in In Re S.K., –-A.3d–, 2019 WL 4051636 (Aug. 28, 2019), the United States Court of Appeals for the Fourth Circuit in United States v. Bosyk, 933 F.3d 319 (4th Cir. 2019) and the Maryland Court of Special Appeals in Redkovsky v. State, 240 Md.App. 252, 203 A.3d 23 (2019)
I’ve previously authored an article discussing issues regarding the defense of child pornography cases and the challenges faced by criminal defense attorneys who are defending child pornography cases. (Click here to review prior article)
The prosecution of individuals for the production, distribution, receipt and possession of child pornography (CP) is increasingly covering a wider range of conduct.
There is no advocacy group that will receive a receptive audience in legislative bodies or in the general public for the position that some child pornography prosecutions reach too far and wide and result in sentences and other consequences (such as lengthy sex offender registration) that are disproportionate to the nature of the specific offender’s conduct. It is only when it is one’s father, husband, brother or close friend that is capture is the charged party that an there is an understanding as to the harm that the often excessive sentences and registration requirements that follow convictions for child pornography offenses.
The statutes prohibiting the distribution and possession of child pornography and the resulting consequences of lengthy or even lifetime sexual offender registration do not distinguish between the individual who had in-person contact with a young child and forces that child to engage in sexual conduct that is recorded and then distributed for profit from the 18-year-old individual who may have just taken a video of himself and his 17-year-old girlfriend engaged in a sexual act.
Law enforcement task forces are active in seeking to stop the production and distribution of child pornography. The results of those operations usually only catch those individuals sitting behind their computers in the secrecy of their won residences downloading free and readily available child pornography – mostly individuals who have never sought out and would never seek out in-person contact with a minor for sexual purposes.
Clearly it is a legitimate law enforcement purpose to attempt to enforce the laws regarding the possession and distribution of child pornography by seeking to attack the problem at that “demand” or “consumer” end of the chain – and that is what we see in most of the child pornography prosecutions – persons arrested for child pornography who have no prior criminal record who are at the low end of “the food chain.”
The task forces patrolling “peer-to-peer” networks – as was done and as is discussed in the Redkovsky case discussed in this article – is but one of the common law enforcement techniques used to identify those violating the child pornography laws.
Another common way that child pornography violators are brought to the attention of law enforcement is via referrals from cloud based service providers. If an individual uploads child pornography to Dropbox or an iCloud type service internet filters capture the child pornography and the internet service providers are regularly making referrals (cybertips) to the National Center for Missing and Exploited Children which then refers the cypertips to law enforcement agencies or task force groups. These types of uploads sometimes occur as part of the client’s automatic backup programs and without the client realizing that the child pornography that was just downloaded will also be automatically uploaded to the client’s cloud backup service provider. Once notified, law enforcement then obtains the customer’s or subscriber’s personal information and shortly thereafter that person will be the subject of a search warrant being executed at his residence and all electronic and computer equipment at the premises will be subject to a forensic analysis.
Deletion of files and programs to “scrub” or clean up files on laptops or computers are often unsuccessful. Forensic programs can recover fragments of deleted files. Traces of internet activity associated with child pornography sites can often be recovered from one’s internet history.
Experience in representing individuals charged with child pornography offenses has shown that most individuals who find the police knocking at their door and executing a search warrant for child pornography are so filled with feelings of guilt and shame for their conduct that they “gush out” incriminating statements to the police. Of the dozens of child pornography cases that I have handled, in no more than two or three of the cases have the clients not made immediate and on-the-spot confessions. These individuals are persons who have usually lead crime-free lives, have good reputations in the community but who have exercised poor judgment in allowing themselves to view and download child pornography.
What is more troublesome is that child pornography laws now have the potential to be used to create criminals out of individuals who are not engaged in what might be called traditional child pornography conduct. The In re S.K. case discussed in this article is an example of how the child pornography laws can create crimes out of what would otherwise be considered immature conduct by young persons and subject those young person to convictions and registration requirements that will burden them for years (and possibly for a lifetime) for their immature judgements.
Before reviewing each of these cases, it is important to note that these cases present differing challenges depending upon whether the case is being prosecuted in federal or state court. While the sex offender registry requirements are draconian in both courts, in state court there are presently no mandatory sentences and the Maryland sentencing guidelines for first offenders with no criminal record are probation for those convicted of possession of child pornography and probation to two years for those convicted of distribution of child pornography. In certain instances, a client convicted of child pornography may have the chance, in the future, to have his sentence reconsidered and a probation before judgment granted. Should that occur, and there is no guarantee that a judge will grant such a reconsideration, then the client will be eligible to get off the registry and have the client’s record expunged.
The manner in which the State’s Attorney’s Offices in Maryland are handling these cases varies a great deal. I’ve handled dozens of these cases and in some instances prosecutors will recommend a probationary disposition and may not oppose a reconsideration of the sentence and the granting of a probation before judgment disposition after the client has been on probation for a few years. In other counties prosecutors recommend incarceration – sometimes in the local detention center – in other instances – in the Department of Corrections.
In federal court, the challenges are greater. While possession of child pornography in federal court does not carry a mandatory sentence, the federal sentence guidelines in most possession cases are usually in the 7 year + range. The guidelines are advisory only and the federal judges are not required to sentence within the guidelines, and frequently do not, however, the sentences in federal court generally do usually result in a period of incarceration in the federal bureau of prisons. There is no reconsideration of sentence or possibility of an expungement for a federal conviction. If an individual is convicted of receiving child pornography (which is the case in almost every instance as the child pornography is inevitably “received” when it is acquired from the internet and viewed or downloaded by means of a computer, cell phone or other internet connected device) receipt or distribution of child pornography in federal court carries a mandatory minimum sentence of 5 years. If an individual has produced child pornography – which can occur by asking a minor to take a sexually explicit photograph of himself or herself – or by taking a sexual explicit photograph of a minor (and minor is defined as anyone under the age of 18) – there is a mandatory minimum sentence of 15 years.
More information regarding the prosecution and defense of child pornography cases can be found in the prior article referenced earlier in this article.
Why participating in a file sharing program can convict one of distribution of child pornography – even if the person never intends to send any images or videos of child pornography (Redkovsky v. State)
Redkovsky challenged the sufficiency of the evidence to support a jury verdict of guilty of four counts of distribution of child pornography contending that he did not actively transfer or distribute the videos another computer and did not knowingly make the videos available for download. (click here to review entire Rodkovsky opinion)
Redkovsky argued that that the statute prohibiting the distribution of child pornography, Criminal Law (C.R.) § 11-207(a)(4)(i), required that the State establish that he had the specific intent to deliberately and intentionally distribute child pornography and that the State failed to carry its burden of showing specific intent because it failed to demonstrate that he “actively” transferred or distributed child pornography to the another computer and failed to prove that he knowingly made those videos available for download.
C.R. § 11-207(a)(4)(i) requires that the State establish that Redkovsky knowingly distributed or possessed, with the intent to distribute, any matter that depicts a minor engaged in sexual conduct. “Knowingly” is defined as “having knowledge of the character and contents of that matter, C.R. § 11-201(c), and “distribute” means to “transfer possession.” § 11-201(b).
Though proof of specific intent was not required, the State took the position that in this case, the evidence established that Redkovsky had the specific intent to distribute the child pornography videos because he admitted that he understood that the file-sharing program that he installed on his laptop shared his files with other users on the network and made those files available for download.
Redkovsky had installed on his computer a “peer-to-peer” program that essentially joined him to a group of participants in a “peer-to-peer” network. Redkovsky had downloaded child pornography onto his computer and it resided in a folder on his computer that was accessible to other members of the network. When one member of the network searched the network using search terms for child pornography that person could access the child pornography on Redkovsky’s computer.
Prosecution witnesses explained during the trial how the police accessed the “peer-to-peer” network used by Redkovsky and how it was possible, using a software program specifically designed to allow law enforcement to operate undercover and search for child pornography files located on computers using the “peer-to-peer” program, to locate child pornography on Redkovsky’s computer.
Redkovsky described himself as having “maybe a little more than average” knowledge of computers and admitted that he understood a “peer-to-peer” file-sharing program to be one where “you like upload it to a server or something, and then if it’s on a server, somebody else can go on and download it.” Redkovsky acknowledged that he understood that “peer-to-peer” file sharing involved sharing files with other people.
The Redkovsky opinion noted that no reported Maryland decision has addressed the question of whether the use of “peer-to-peer” file-sharing networks, which allow users to obtain and download child pornography files from another user’s computer, constitutes knowing distribution under C.R. § 11-207(a)(4)(i). The Court of Special Appeals (CSA) reviewed the many state and federal courts that have upheld convictions for distribution of child pornography where the evidence was sufficient to show that the defendant shared child pornography files using a peer-to-peer file-sharing network with the understanding that the network permitted others to download files from the defendant’s computer.
The CSA noted that Redkovsky was a savvy computer user who, as a hobby, repaired broken computers and built a customized desktop computer with multiple hard drives. He admitted to downloading and installing the program required for using a peer-to-peer file-sharing network and indicated that he understood that peer-to-peer file-sharing programs worked by uploading files from one computer and making them available for others to download.
The CSA held that viewing the evidence in the light most favorable to the State, the evidence was sufficient for a jury to reasonably find, based on Redkovsky’s understanding of the “peer-to-peer” file-sharing programs, and awareness that the files on his laptop were available for other users to download, that he knowingly transferred the four videos depicting child pornography that were accessed by law enforcement.
It is significant to note that the record established Redkovsky’s familiarity with “peer-to-peer” networks and the capability of other participants in the network to access his computer and “grab” the child pornography files from his computer which is not always present in cases in which an individual is charged with this “passive” distribution theory of prosecution. The Redkovsky opinion leaves open the question as to whether the evidence would have been sufficient if Redkovsky had not been so computer savvy. If he had “peer-to-peer” software on his computer but was unaware that others could essentially access files on his computer and “grab” from his computer his child pornography files, would such a fact pattern have been sufficient to prove that there was a “knowing” distribution of child pornography? A review of federal decisions in this area would suggest that it makes no difference as to the level of computer sophistication of the participate in a “peer-to-peer” network. The Rodkovsky leaves this question open with respect to the prosecutions by Maryland prosecutors.
Experience in these types of cases has, on occasion, shown that a client installs a program and that the program has the ability to block others from accessing the client’s computer, the default setting is often the one that permits sharing with others in the network. When installing the program, it is easy for the client to click the “accept” box on the various installation screens with the result that the client may not have been aware that he has accepted the default setting permitting sharing.
Sexting between minors can be distribution of child pornography
(In Re S.K.)
The In Re S.K. opinion begins with the following definition:
sexting. (2005) the creation, possession, or distribution of sexually explicit images via cellphones. The term is a portmanteau of sex and texting.
Black’s Law Dictionary, 11th Edition, 2019
The issue in this case was one of first impression: “whether a minor may be adjudicated delinquent under the current statutory scheme as the ‘person’ who is a distributor of child pornography and a displayer of obscene matter when she is also the minor participant in the sex act.” Put another way, “can a minor legally engaged in consensual sexual activity be his or her own pornographer through the act of sexting?” (click here to view entire In Re S.K. opinion)
In this case, 16 year old, S.K., maintained a group chat on her cellphone for text messages with her best high school friends, A.T., another 16 year old female, and K.S., a 17 year old male. The friends were close and routinely sent “silly photos and videos in an effort to ‘one-up’ each other.”
The alleged child pornography in this case was a one-minute video that S.K. sent of herself performing fellatio on a male whose identity and age were not established. S.K. was nude and her bare breast was visible throughout most of the video. The male’s erect penis is shown during the majority of the video. The male appears to be the one filming the video through an extended reach of his arm.
Unfortunately for S.K., this trio later had a falling out. K.S. hated S.K. and distributed the video to other students at the school, as well as informed the school resource officer who was a Charles County Deputy Sheriff. S.K. met with the Deputy and was upset during their meeting. S.K. was under the impression that the Deputy met with her to stop the video from further distribution to other students. At no point during this meeting did the Deputy inform S.K. that she was considered a suspect for criminal activity. S.K. provided the Deputy with a written statement admitting that she was in the video and had only sent it to her two friends.
A police report was referred to the State’s Attorney for Charles County who had discretion as to whether to file the criminal charges. The Charles County State’s Attorney decided to file a juvenile petition alleging criminal charges against S.K. under Maryland’s child pornography and obscenity statutes, for filming a minor engaging in sexual conduct in violation of Criminal Law (“CR”) § 11-207(a)(2); for distributing child pornography in violation of CR § 11-207(a)(4); and for displaying an obscene item to a minor in violation of CR § 11-203(b)(1)(ii).
An adjudicatory hearing was held before the Circuit Court of Charles County sitting as a juvenile court. The first count, the filming of a minor engaging in sexual conduct was dismissed because there was no evidence presented that S.K. was filming the video. However, the juvenile court found S.K. involved as to the two remaining counts. After the disposition hearing, S.K. appealed.
The Court of Special Appeals held that a minor legally engaged in consensual sexual activity is not exempted from CR § 11-207(a)(4) and thus is in violation of the child pornography statute. However, the Court of Special Appeals held that a digital file did not come within the meaning of the statutory term “item” for CR § 11-203(b)(1)(ii).
S.K. petitioned to the Court of Appeals and the State cross-petitioned; both were granted, and the questions presented are as follows:
1. Did the juvenile court err in finding 16-year-old S.K. involved in distributing child pornography as proscribed by CR § 11-207(a)(4)?
2. Did the juvenile court err in finding S.K. involved in the offense of displaying an obscene item to a minor as proscribed by CR § 11-203(b)(1)(ii)?
As to the first question presented, the Court of Appeals found that the language of CR § 11-207 in its plain meaning is all-encompassing, that the General Assembly has not updated the statute’s language since the advent of sexting, and that the Court may not read into the statute an exception for minors. The Court held that the plain language of CR § 11-207(a)(4) subsumes situations where a minor produces and distributes pornographic material of himself or herself. The Court then recounted the legislative history of Maryland’s child pornography statute and found that the General Assembly has consistently expanded the scope of the statute to assist in the eradication of any form of child pornography. The Court found that the statute in its plain meaning is all encompassing, making no distinction whether a minor or an adult is distributing the matter. Therefore, S.K.’s sexting is within the purview of the current statutory scheme and the juvenile court did not err in finding S.K. delinquent under CR § 11-207(a)(4).
The Court recognized “that there may be compelling policy reasons for treating teenage sexting different from child pornography” and directly invited the General Assembly to consider “these policy concerns” in drafting legislation in the future as Maryland’s laws on this subject are antiquated: “While sexting, specifically when engaged in by teenagers, has been addressed extensively in the literature, the media, and by state legislatures in other jurisdictions, the General Assembly has not updated Maryland’s statutes to address this contemporary issue. For context, CR § 11-207 has not received a substantial revision by the General Assembly since 1986 and CR § 11-203 not been revised by the General Assembly since 2006.”
With respect to the second issue, the Court had to determine whether the materials S.K. disseminated to her two minor friends constituted obscene material. S.K. transmitted to her friends, also minors, the digital file that contained depictions of: (1) her nude torso and exposed breast; (2) the male’s erect penis; (3) and S.K. performing fellatio on a nude male. This material falls squarely within the definition of “illicit sex” defined in CR § 11-203(a0(3). Thus, the video file transmitted constitutes obscene material. It does not matter that the sexual act was consensual, the Court would “not second-guess this legislative judgment.”
Next the Court had to determine whether the video is an “item” enumerated in the statute. The only category closely applicable under “item” was “film” and the Court agreed with the Court of Special Appeals that “film” has two definitions: film as a medium and film in the context of a motion picture or movie. However, the Court diverged, rather than finding that the video was a type of media, the Court found that the video was a film like a motion picture or movie, therefore, S.K.’s transmission of a digital file is covered by CR § 11-203(b)(1)(ii). The Court found that the intent of the General Assembly is to avoid loopholes that may arise under the statute based on rapid technological advancement and the emergence of new forms of media. The Court reversed the judgment of the Court of Special Appeals with respect to the second issue and affirmed S.K.’s delinquency finding.
Judge Hotten dissented. Judge Hotten did not find that S.K. was involved in the offense of distribution of child pornography based upon ambiguity in the statute. Judge Hotten concluded that CR § 11-207(a)(4) does not operate to prosecute consensual sexual activity among minors. While the majority opinion held that “person” and “minor” are one and the same individual, Judge Hotten concluded that a plain reading of the text could lead to a conclusion that they are two different people based upon the use of a colon after the word “person” such that a “person” must be a separate entity from the “minor” or else there would be redundancy in the statute. When there is ambiguity, the Court must then resolve it in light of the legislative intent.
Judge Hotten reviewed the legislative intent of CR § 11-207(a) which was enacted to address child pornography trafficking and to prevent the sexual exploitation and abuse of minors. The history reveals that the State sought to protect children from exploitation and abuse as opposed to enacting laws that criminalized consensual sexual activity among minors. Judge Hotten believed that reading the statute in a contrary fashion subverts legislative intent. Judge Hotten found that S.K. was not being exploited by someone else, rather she made a video depicting consensual sexual conduct, and the General Assembly did not seek to subject minors who recorded themselves in non-exploitative sexual encounters to prosecution.
Judge Hotten also dissented by concluding that the term “film,” as used in the statute, does not refer to “a motion picture or movie” but rather, to a kind of medium. Because S.K.’s digital file is not within the medium of film, she is not subject to adjudication under the statute.
When considering the issues in In re S.K., it is important to remember the is the inconsistent definition of “minor” when dealing with issues of consensual sexual conduct and “minor” when considering issues of child pornography.
If a sixteen or seventeen year old engages in consensual sexual activity with another sixteen year old, or a nineteen year old or a fifty-year old partner, such conduct is not a crime in Maryland as the age of consent is sixteen. “Minor” for purposes of child pornography laws, however, is defined as one under the age of eighteen.
If sexual conduct of a sixteen or seventeen year old is photographed or videotaped, then the person taking the picture or creating the video one has produced child pornography. Whoever receives the picture or video, now possesses child pornography. The “funny” sex text or the sexy Instagram video from a friend may make the sender guilty of distribution of child pornography and the receiver guilty of possession of child pornography.
Under Maryland law, possession of child pornography may only be a misdemeanor but it requires fifteen years on the public sexual offender registry. The distribution of the video or picture is a felony and requires twenty-five years on the sexual offender registry.
Under federal law, the production of child production carries a fifteen-year mandatory minimum sentence. Receipt of child pornography carries a five-year mandatory minimum sentence. Possession of child pornography is a felony and has guidelines that suggest sentencing in the range of a number of years. Each type of conviction requires SOR as an additional consequence of conviction.
Young people “playing around” with this type of conduct risk lifetime consequences for themselves and those who participate in this conduct with them.
The only safeguard against a young person being labeled as a sex offender would be a prosecutor exercising prosecutorial discretion that recognizes that just because this type of conduct could be prosecuted – it is not always in the interest of society to prosecute young people or others inadvertently caught up in this conduct. But as is obvious in the prosecution of S.K. for her own conduct, prosecutions of this sort are more than a theoretical risk.
How and when a single click with a computer get law enforcement
through the front door with a search warrant (U.S. v. Boysk)
While the majority opinion affirmed Boysk’s conviction, the lengthy dissent by Judge Wynn highlights the difficult issues presented in this case where a search warrant was based primarily on a “single click” on a child porn website. (click here to view full Boysk opinion.
Bulletin Board A was a secretive online message board that contained advertisements, distribution, and production of child pornography with more than 1,500 “approved users.”
On November 2, 2015, an unidentified member of the board posted a message in the board’s “Pre-teen Hardcore” section describing in graphic terms the content of four videos. Below the message were three sets of 20 video thumbnail images depicting “juvenile females engaged in sexual acts.” Below those images was a link. The post contained a password for users to be able to open the content of the file associated with the link.
This link was hosted by a separate file sharing site that allowed users to upload and share various media, both lawful and unlawful content. Federal agents knew that Bulletin Board A’s members were using the file sharing site to share sexually explicit content with one another so agents subpoenaed the file sharing site for business records related to web pages containing illicit material. In response to the subpoena, the records showed that on the same day the link appeared on Bulletin Board A, an IP address was used to download or attempt to download file content associated with the link containing the four videos.
The IP address was connected to Bosyk’s home in Virginia. In April, 2016, the government applied for a warrant to search Bosyk’s house. The application with an affidavit sworn by DHS Special Agent recounted the above facts and described several “characteristics of individuals who possess or access with intent to view child pornography.” Probable cause was found by a magistrate judge to suspect violations of federal laws relating to child pornography.
A warrant was executed and devices were recovered containing thousands of images of videos of child pornography, including the particular video described in the search warrant affidavit. There was also evidence that Bosyk had used an anonymous web browser to access child pornography websites, including Bulletin Board A.
Bosyk was indicted on child pornography charges and moved to suppress the evidence obtained under the warrant, and sought a hearing under Franks v. Delaware, 438 U.S. 154 (1978). The district court denied the motion and held the warrant was supported by probable cause. Bosyk pleaded guilty to one count of receiving child pornography and was sentenced to five years in prison. Bosyk reserved the right to appeal the denial of his motion to suppress.
Bosyk argued that (1) the search of his home violated the Fourth Amendment as it wasn’t supported by probable cause; (2) even if the government had cause to search his home in November, 2015 (when the post appeared on Bulletin Board A and link was accessed), it did not establish that there was cause in April, 2016 when it obtained and executed the warrant; and (3) suppression is warranted under United States v. Leon, 468 U.S. 897 (1984) because the agent’s affidavit was misleading and lacked any indicia of probable cause.
Bosyk argued that the government obtained its warrant based on a “single click” of a link and that that a “single click” was not sufficient to support a search of a residence. The Fourth Circuit disagreed finding that a person using Bosyk’s IP address clicked the link knowing that it contained child pornography which in turn made it fairly probable that criminal evidence would be found at his address. The “critical fact” in this case was the timing. On the very day that someone clicked the link, the file had appeared on a website whose purpose was to advertise and distribute child pornography to its limited membership. Additionally, it appeared in a post containing text and images that unequivocally identified its contents as child pornography. The Court found that the close timing between the link’s appearance on Bulletin Board A and the click by a user’s IP address was highly relevant in that it is reasonably probable that the user clicked the link having encountered it on that website. The Court found this a fair assumption which then allows for several inferences: if the user accessed the link after seeing it on Bulletin Board A, it’s fair to conclude that the user also knew it contained child pornography, as that much was explicit from the posting. Further, one could fairly conclude that the same person typed the password posted on Bulletin Board A, downloaded the content, and viewed the video contained at the link. The Court supported this inference by asking “why else would someone who had seen the pornographic stills and read the description on Bulletin Board A click the link if not to access its contents?” This of course is premised upon the inference that the person accessed the link through Bulletin Board A.
The Fourth Circuit found that it was fairly probable that child pornography would be found on computers or other devices within Bosyk’s property. The Fourth Circuit candidly “acknowledge[d] that the probability of this particular version of events depends on the link being clicked after it was posted on Bulletin Board A.” The affidavit didn’t specify what time on November 2, 2015, the post appeared on the board. The Fourth Circuit did not find the ambiguity to be fatal to probable cause, though the dissent does.
The Fourth Circuit concluded that “[a]lthough the search relied on a ‘single click’ of an internet link, the click was to a video of child pornography in circumstances suggesting the person behind that click plausibly knew about and sought out that content.”
Bosyk also argued that the affidavit didn’t establish whether the user who clicked on the link accessed it through Bulletin Board A and that the affidavit doesn’t exclude the possibility that the user might have stumbled upon the link from an innocent source, especially given how easily and frequently links are shared over the internet. This was the essence of the dissent’s position.
The Fourth Circuit concluded that the likelihood that a file sharing page containing child pornography would find its way to somebody uninterested is quite low. Again, the Court relied on the “suspiciously short interval” between such material appearing on a members-only child pornography forum and being accessed by a user at Bosyk’s IP address.
Bosyk also argued that the warrant to search his home in April, 2016 was based on “stale” probable cause, and therefore, invalid because it issued five months after the underlying events took place. The Fourth Circuit rejected that argument and held, as have many other appellate opinions, that when it comes to child pornography, “even a substantial delay” between download or distribution and the issuance of the warrant doesn’t render the underlying information stale because collectors and distributors of child pornography value the materials and rarely if ever dispose of it, storing it for long periods of time, typically in their homes.
Lastly, regardless of the warrant’s validity, the Court stated that it would have affirmed the denial of the motion to suppress the search warrant using the “good faith” exception as law enforcement acted in an objectively reasonable reliance on the validity of the search warrant.
Bosyk had contended the search warrant should not be upheld on “good faith” as there are two exceptions to “good faith.” First, that the issuing judge was misled by information in the affidavit that the affiant knew was false, and second, that the affidavit was so lacking in probable cause that an official belief in its existence was entirely unreasonable.
According to the Court, Bosyk didn’t identify any omitted or misstated facts in the affidavit, he just complained that the affiant did disclose certain facts, such as the lack of any allegation that a user at his IP address was a member of Bulletin Board A, accessed the link through that site, or entered the password displayed there. But a warrant application is “judged on the adequacy of what it does contain, not on what it lacks, or on what a critic might say should have been added.” The facts in this affidavit were sufficient: Bulletin Board A had members, the link was posted there, an IP address at Bosyk’s residence access the link. The dissenting opinion disagreed and would have held that the affidavit was materially misleading because most of the factual material was unrelated to Bosyk and served only to lend the affidavit a false appearance of substance.
The majority of the Court relied upon the facts that the board was dedicated to child pornography, the link appeared on that site, and the link contained videos of a girl being sexually abused were crucial to an understanding of why the government believed Bosyk’s home would contain evidence of criminal activity.
The dissenting judge would also have vacated the conviction because of the omitted fact of the exact timing of the post on Bulletin Board A.