Opinion
No. 03 CR 1032.
September 30, 2004
MEMORANDUM OPINION
The defendant has moved for reconsideration of this court's order denying his Motion to Quash Search Warrant and Suppress Evidence Seized. He makes two points. First, the affidavit for the search warrant failed to establish probable cause to believe a crime had been committed because it referred to pornographic images of what "appear to be" real children rather than images that were of real children. Second, the affidavit failed to reveal to the magistrate judge that no "hash" analysis had been performed on images from the websites in question to determine whether they were of real children. This second point goes to the question of probable cause as well as defendant's contention that the government was guilty of bad faith, justifying a Franks evidentiary hearing.
We disagree with both of these arguments. Even with a hash test of the kind the defendant suggests, we do not see how it could ever be established with certainty that the images sought in the warrant would be of real children. The images sought would not necessarily have been produced in the same way as those subjected to the hash test. But even granting that a hash test might affect the probability that the images to be sought in the search would be of real children, we decline the defendant's invitation to rule as a matter of law that a hash test is a prerequisite to a search warrant in this kind of case. The government would not be free to conceal from the magistrate information showing a high probability that the images would be virtual rather than actual, but that is not what happened here. Assuming the hash information later obtained would have shown a lack of probable cause had it been obtained before the warrant was applied for, the fact is that it was not obtained until later, and there is no indication that the government intentionally avoided acquiring the information that the hash analysis disclosed.
Nor, in our view, does defendant's proposed inquiry into such a possibility justify a Franks hearing.
We think the analogy to drug cases, suggested by the defendant, is relevant. Defendant is correct that "[s]earch warrants are not permitted based upon an agent seeing a bag of white powder on a kitchen table." (Defendant's Reply at 6.) But that is not what an affiant in a drug case will say. Rather, he will say that he purchased white powder from the defendant on several occasions, paying the usual price for cocaine, and that when he recently left the defendant's premises, there were similar bags of white powder on the kitchen table. Such an affidavit would usually justify the issuance of a warrant even though it does not describe a chemical analysis which proved the white powder to be cocaine. The government would have to prove at trial, of course, that the substance was cocaine, just as the government in the instant case will have to prove that the images found at defendant's premises were of actual children. But, like the drug case, we think the circumstances set forth in the affidavit here were sufficient to justify the inference that the defendant was accessing images of real children. The possibility that they were virtual images could be greater than the possibility that the white powder was flour or milk sugar, but not enough to preclude probable cause.
A fact usually stipulated to.
We assume this is what the government intends to prove. If this is not correct, the government should file, by October 13, 2004, a statement indicating the nature of the images it intends to offer as evidence and its theory as to why they violate the statute upon which the superceding indictment is predicated.
The defendant's motion to reconsider, and for a Franks hearing, is denied.