The Homeland Security Act of 2002 (HSA) created the Department of Homeland Security (DHS). The official website for DHS says its mission is “to ensure a homeland that is safe, secure, and resilient against terrorism and other hazards.”
Department of Homeland Security Focuses on Child Pornography
Shortly after its birth, DHS decided that child pornography is a hazard equal to the threat of terrorism. In 2003, in citing increased risk of terrorism and other threats to national security, the sprawling and massive agency created U.S. Immigration and Enforcement (ICE) by merging the investigative and interior enforcement of the former U.S. Customs Service and the Immigration and Naturalization Service Into one agency.
ICE Takes Lead to Investigate and Enforce
With a budget of $6 billion and more than 20,000 employees, ICE has two operational components: Homeland Security Investigations (HSI) and Enforcement and Removal Operations (ERO). ICE has assumed investigation and enforcement of more than 400 federal statutes—chief among them being federal child pornography laws whose violations are investigated by HSI.
Patriot Act Used to Fight War on Terror
In the wake of the September 11, 2011 attacks in New York City, Congress enacted the USA PATRIOT Act that broadened the definition of terrorism, dramatically increased penalties for convictions of acts of terrorism, and made it easier for law enforcement and intelligence agencies to gather and share information about terrorism.
The FBI immediately charged into the “war on terror” and soon formed an alliance with ICE after its creation on this battlefield. It was assumed that both agencies would make terrorism its top priority. It didn’t turn out that way.
ICE Focuses on Child Exploitation
Through its HSI unit, ICE became a world leader in the “fight against the sexual exploitation children, participating in all of the 61 Internet Crimes Against Children Task Forces across the country. HSI frequently joins forces with the FBI’s Violent Crimes Against Children to target child pornographers.
Instead of honing its cybercrime skills to seek out and find terrorists using the Internet, the two agencies have devoted disproportionate resources to trolling the Internet in search of child pornographers.
For example, a 2009 audit conducted by the Department of Justice’s Office of the Inspector General found that the FBI had failed to properly train and support its cyber investigators. The audit also revealed that the FBI uses disproportionate number of “man-hours” investigating child pornography as compared to other cyber-crimes. According to the report, in 2009 the FBI “used 19% of its cyber agents on national security intrusion investigations, 31% to address criminal-based intrusions, and 41% to investigate online child pornography matters.”
Terrorism Investigations Suffered
That’s disturbing because it has been known for some time that terrorists use the Internet to plan and carry out their acts of terrorism and to engage in cybercrimes to obtain money to fund those violent activities.
Yet the OIG’s 2009 audit found the FBI devotes almost as many man-hours investigating child pornography as it does cybercrime.
And this past September ICE issued a “news release” that HIS’s top priority has become “combating child exploitation.”
The Need to Spend the Budget
But there is often a problem with the ability of HSI’s investigators to understand exactly what constitutes child pornography, especially in those cases in which HSI is cooperating with local law enforcement.
Child Erotica Entices Federal Investigators
That brings us Chris Cornwell, a seven-year veteran with the Tulsa County Sheriff’s Department, and the case of Paul Edwards.
In 2011, Cornwell was a child pornography task force officer assigned to work with HSI for one year. One of his investigations with the HSI agents involved an international website that allowed users to post photographs and comments. That investigation encountered Paul D. Edwards who was posting “suspicious” and sometimes sexually suggestive photographs of a ten-year-old girl whose photographs had been seen by the agents during their investigation of the website.
Cornwell and the HSI agents accessed Edwards’s profile and discovered he had posted hundreds of images of the same prepubescent girl. Some of the photos showed the girl in clothes while other photos showed her scantily clad in “suggestive” poses. These photos elicited comments from viewers who indicated they were sexually attracted to the images. Edwards responded to these comments with his own comments indicating a sexual attraction to the girl.
Search Warrant Affidavit
Cornwell believed he had enough evidence to satisfy the probable cause necessary to secure a search warrant. He prepared a 22-page affidavit in support of his request for the warrant. The affidavit cited these photos and Cornwell’s own experience and training (which is boiler plate for all child pornography search warrants), as well as conversations he had with the HSI agents who had knowledge about child pornography, as a basis for issuance of a warrant.
Although he did not include the photos in question with his affidavit, Cornwell’s affidavit concluded “there is probable cause that [Edwards] has received, possessed, and/or transmitted child pornography.”
The affidavit sought a warrant to search Edwards’s home, including his computer. A magistrate judge issued the warrant. An ensuing search discovered thousands of images and videos of child pornography.
Indictment
In November 2013, Edwards was indicted under 18 U.S.C. §§ 2252(a) (4) (B) and 2252(b) (2) for one count of possessing and five counts of receiving child pornography. His defense counsel filed a motion to suppress the evidence discovered in his home because the search warrant was not supported by probable cause.
Motion to Suppress Denied, Child Erotica Supported Probable Cause
The trial court conducted an evidentiary hearing, after which it denied the motion. The court, however, pointed out that the case presented a close question, but at the end of the day, Cornwell’s affidavit did “establish a fair probability that child pornography would be found” in Edwards’s home. The court said this “fair probability” was based on the fact that Edwards had posted a collection of “child erotica” on the website in question.
The trial court added that even if affidavit did not present adequate probable cause, Cornwell and the HSI agents had acted in “good faith” that justified the search of Edwards’s residence under the “good faith exception” rule.
Sentenced to 63 Months
Edwards subsequently pleaded guilty but preserved his right to appeal the trial court’s ruling on his suppression motion. The court sentenced him to sixty-three months in prison.
Edwards did in fact appeal to the Tenth Circuit Court of Appeals and on December 29, 2015, that court upheld the trial court’s denial of the motion to suppress. The appeals court, however, significantly concluded in a 34-page ruling that the Cornwell affidavit was not supported by sufficient probable cause.
Legal Child Erotica
The appeals court held the affidavit supported “only that Mr. Edwards possessed legal child erotica.”
The possession of images depicting nude children may be child erotica but it does not constitute child pornography under § 2252 which requires depictions of a child engaged in “sexually explicit conduct.”
The Tenth Circuit explained:
“Here, the investigating officers never alleged that any of the material Mr. Edwards posted to the internet constituted child pornography. Indeed, the affidavit-officer, trained to investigate and identify child pornography, averred only that Mr. Edwards was known to possess legal child erotica. None of the detailed descriptions contained in the affidavit described photographs conforming to the definition of child pornography [sic] also included in the affidavit. There was no uncertainty here regarding the content of the images Mr. Edwards had posted, and the Government concedes they constituted legal child erotica.”
Personal Inclinations to Engage in Legal Activity
The U.S. Supreme Court has long cautioned law enforcement and lower courts against drawing conclusions that an individual is inclined to participate in a certain illegal activity based on the individual having engaged in a particular legal activity. The Court explained that the “proof that petitioner engaged in legal conduct and possessed certain generalized personal inclinations is not sufficient evidence to prove beyond a reasonable doubt that he would have been predisposed to commit the crime charge independent of the Government’s coaxing.”
The probable cause issue before the Tenth Circuit was indeed a narrow one.
“[The] issue here is whether the warrant affidavit, when viewed through the insight provided by Officer Cornwell’s law-enforcement experience, provides a link between the posting of legal child erotica online and the possession of child pornography sufficient to establish a ‘fair probability that contraband or evidence of a crime will be found in a particular place.’
Statements in Probable Cause Affidavit
“The district court concluded that such a link was provided by Officer Cornwell’s averment in the affidavit that those who possess child pornography are highly likely also to possess child erotica. But in making that connection, the district court inverted the statement in the affidavit, reading it instead as an assertion that those who possess child erotica are likely to possess child pornography … Although the statement as inverted might provide the necessary link between the legal possession of child erotica and the illegal possession of child pornography, that is not what Officer Cornwell avers. Instead, he states that persons found in possession of illegal child pornography are highly likely to also possess child erotica. The difference is significant.
“The warrant affidavit does not allege that Mr. Edwards was found in possession of child pornography. The affidavit also lacks information based on Officer Cornwell’s law enforcement experience about the types of materials possessors of child erotica—such as Mr. Edwards—are likely to maintain in their homes. Consequently, a statement that the collectors of child pornography—a group that there was no evidence includes Mr. Edwards—are highly likely to also possess child erotica did not provide ‘a substantial basis for concluding that probable cause existed’ that child pornography would be found in Mr. Edwards’s home.”
No Probable Cause, But… Not So Fast
While the appeals court found the affidavit failed to provide probable cause to believe that child pornography could be found at Edwards home, they upheld the district court’s denial of the motion to suppress based on the good-faith exception, that Cornwell acted in good faith reliance upon the magistrate judge’s determination that probable cause existed.
Good Faith Exception Rules the Day
While the good-faith exception rule ultimately saved the search of Edwards’s home from an unconstitutional declaration, this case is disturbing because neither Cornwell nor the HSI agents stated that the possession of legal child erotica supported belief that Edward’s possessed illegal child pornography. They invested considerable resources and man-hours into their endeavor and still could not produce sufficient probable cause that Edwards’ possessed child pornography.
Mr. Edwards’s public conduct—the posting of child erotica on the internet—was legal. While it was certainly disturbing, even offensive, it did not create enough suspicion to establish the probable cause necessary to allow Government agents to snoop around in his home and computer.
At the end of the day, investigators had a hunch that Edwards possessed child pornography. They had a hunch and they were correct. That doesn’t make probable cause.