Sins of Omission: Why the Ninth Circuit Was Wrong to Excuse a Lack of Police Diligence

By SHERRY F. COLB

Wednesday, May. 03, 2006

Recently, in United States v. Gourde, an en banc panel of the U.S. Court of Appeals for the Ninth Circuit affirmed the conviction of Micah J. Gourde for possession of visual depictions of minors engaged in sexually explicit conduct (that is, child pornography), a charge to which the defendant had pleaded guilty.

In offering his plea, Gourde had reserved the right to challenge, on appeal, the Fourth Amendment legality of the government's search that uncovered evidence of his crimes.

The Ninth Circuit rejected his Fourth Amendment claims, however, and upheld the validity of the warrant that had authorized the search in question.

Prior to seeking a warrant, the government had assembled quite a few facts that, taken together, arguably satisfied the standard for "probable cause" articulated by the Supreme Court of the United States in Illinois v. Gates. What makes this case difficult and the outcome potentially troubling is not the finding of probable cause on the evidence presented.

It is, instead, the failure of the FBI - prior to seeking a warrant and seizing and searching the defendant's computer - to perform a simple operation that would have revealed with virtual certainty whether the defendant had in fact downloaded the suspected prohibited material. This omission -- which did not trouble the majority panel -- has important implications for the right of privacy.

Probable Cause: A Standard Short of Perfection

Under Supreme Court precedents, the Fourth Amendment ordinarily requires a police officer who wants to perform a search to obtain a warrant on the basis of probable cause to believe that the search will turn up evidence of crime. "Probable cause" is a phrase for which we lack a precise definition but which we know from the cases represents a demand for pre-search evidence showing a fair probability that the search will be a fruitful one.

The objective of the probable cause standard is to limit the number of unnecessary or pointless intrusions upon the people's privacy, without unduly hampering the work of law enforcement. The standard - along with the requirement that a detached and neutral magistrate decide whether it has been met in a particular case - demonstrates an underlying assumption that police officers are inclined to "search first, and ask questions later."

Police want to maximize their access to potentially incriminating evidence and may accordingly place insufficient value on the people's interest in privacy.

The Evidence Against Micah Gourde: Support for a "Probable Cause" Finding

When FBI agents sought a warrant to search Gourde's house for his computer and then to seize and search that computer, they knew (and indicated in their affidavit) a number of things: The defendant had paid membership fees and joined a web site, "Lolitagurls.com," dedicated primarily to providing images of child pornography. They knew as well that Gourde had been a subscriber from November 2001 until January 2002, when the FBI shut down the site.

In addition to these specific facts about Gourde, they also had information about the sorts of people who join child pornography web sites and who collect child pornography, including their reluctance to erase downloaded images, and the tendency of such individuals to seek a forum for viewing and downloading prohibited material in relative privacy. One could call this behavioral analysis a "child pornography collector profile."

Even Judge Stephen Reinhardt acknowledged in his dissent that these facts might have, in the absence of other information, amounted to probable cause. (Reinhardt did, though, express skepticism in this regard and indicated that it was, in any event, unnecessary for him to reach the question).

What troubled Judge Reinhardt -- as well as another dissenter, who wrote separately -- is what the police failed to do before applying for a search warrant: They failed to take a simple action that would have either bolstered or destroyed the case for a warrant.

The Missing Information

Before the defendant became a suspect, the FBI had seized the computer of the owner and operator of Lolitagurls.com. The owner admitted that he had operated the child pornography web site as a source of income, and the computer contained child pornography images that he had posted.

It was through a follow-up subpoena that the FBI learned that Micah Gourde had been a member and subscriber to the web site for several months. Once it learned this, contends Judge Reinhardt, the FBI could -- and should -- have searched the owner's computer to find out whether Micah Gourde had actually downloaded illegal images from the web site.

Had it done so, the FBI would have learned to a virtual certainty whether or not it would find illegal images from Lolitagurls.com during a subsequent search of Gourde's computer.

What Difference Should Access to Certainty Make?

Police officers ordinarily cannot determine with certainty what the results of a proposed search will be. Indeed, the entire edifice of "probable cause" rests on a compromise between the ideal conditions for a search - the knowledge, ahead of time, that police will find exactly what they are hoping to find - and the preference of police to search whenever their gut instincts tell them there might be evidence there. The reality of uncertainty, combined with the important nature of privacy, compel a compromise in most cases.

In some cases, however -- and Gourde's may be one -- the agents hoping to perform a search have the possibility of certainty in their possession. In those rare circumstances, it is possible to achieve the ideal (a search that occurs if and only if there is the certainty of evidence) without sacrificing the interest in law enforcement in the real world.

Had the FBI only performed an allegedly simple check of the computer that they already lawfully had in their possession, they could have known - prior to seeking a warrant - whether a search of Micah Gourde's computer would in fact turn up the images that they hoped to find. But they never bothered to do the check. Judge Reinhardt, in dissent, accordingly likened the FBI's behavior to that of a police officer who possesses photographs of a murder in progress, but fails to look at the photographs prior to seeking a warrant to arrest a person the officer considers a suspect.

In evaluating probable cause, the Supreme Court asks the police to look at the "totality of the circumstances." In assessing the totality of the circumstances, Judge Reinhardt argues, it is only appropriate to look at the officers' omissions, along with the affirmative facts that they chose to include in their application for a warrant.

How Diligent Must Police Officers Be?

The Court of Appeals rejected Judge Reinhardt's reasoning -- suggesting that although it is often possible to gather more evidence prior to seeking a warrant, the probable cause standard does not require the police to keep gathering more and more facts. Once police have sufficient basis for a search, it is appropriate and constitutionally acceptable for them to visit the magistrate and obtain a warrant.

The majority's point is well taken. Prior to performing a search (or seeking a warrant authorizing a search), the police do not have to accumulate sufficient evidence to prove guilt beyond a reasonable doubt, the standard by which a jury judges the prosecutor's evidence at trial. And there is a good reason for this: It may be the case that the search in question is a crucial step toward the ultimate prosecution of a guilty person precisely because it is what the police will find during their search that will enable a prosecutor to go forward with charges against the suspect.

As Judge Reinhardt ably explains, however, "the majority confuses two different types of information: evidence that the government could have obtained but that it did not possess at the time it applied for a warrant, and evidence that the government had in its possession at the time it applied for the warrant but did not utilize."

What If Police Failed to Include a Rock-Solid Alibi in a Warrant Application?

This difference implies an easy-case scenario to which we now turn: Consider the case in which police know that a man - John Doe - has been strangled to death. They have examined Doe's body and recovered fingerprints of another man - Jim Roe. They also know that Roe had a motive to kill Doe, because Doe had started a business that created unwanted competition for Roe. They know, finally, that Roe had made death threats against Doe a week before the murder.

Knowing these facts alone, one would probably conclude that the police have sufficient basis for obtaining a warrant to arrest Jim Roe for the murder of John Doe. But consider the possibility that in addition to knowing the facts set forth above, the police also know that Jim Roe was visiting Japan during the time that John Doe died - he left the country while Doe was still alive and returned only after the police had found him dead. Knowing this additional fact would almost certainly eliminate the police officers' probable cause to arrest Jim Roe for the murder of John Doe.

Suppose the police nonetheless want to arrest Roe for murder because they would like to search him incident to the arrest - perhaps in the hopes that they might find something connecting him with some other crime of which they separately suspect him but lack proof. They might go to a magistrate and seek an arrest warrant.

If they include in their affidavit the fact that Jim Roe was out of the country at the time of the murder, the magistrate will probably refuse to issue a warrant. But what if they leave out this inconvenient piece of information? If they include only the incriminating facts and leave out the most significant, exculpatory, one, they will most likely get their warrant.

If police arrest Roe on the basis of such a warrant, however, then they will have unquestionably violated Jim Roe's Fourth Amendment rights with all that such a violation entails.

The Key Question: Is Access to Certain Facts Close Enough to Actually Knowing?

Resolution of such a dilemma turns on whether having (and knowing that one has) in one's possession access to the definitive answer to the question "Did he commit a crime?" or "Is there evidence of crime in his house?" is enough like actually knowing the answer to be "No," to deny the officer in question probable cause.

I would suggest that it is. As Judge Reinhardt contends, there are only two plausible reasons why the FBI - while in possession of a computer that could definitively reveal whether Micah Gourde had downloaded child pornography from it - would fail to include an affirmative revelation about that download in an affidavit seeking to seize and search Gourde's computer: The first possibility is that the FBI chose not to look because they were afraid that the answer would be "no," and they wanted to search Gourde's computer, regardless of what the answer might be. The second possibility is that the police did look and learned in the process that the suspect had not, in fact, downloaded images from the owner's computer. Leaving out such a revelation - like leaving out the information in our earlier example that placed Jim Roe outside the country when John Doe was murdered - would eliminate the probable cause that would otherwise have justified a search warrant.

With only these two likely alternative explanations for the FBI's omission, it is appropriate to conclude that pending recovery of a definitive answer from the computer in its possession, the FBI lacked probable cause to search Micah Gourde's computer. If the FBI did in fact search the owner's computer, found no downloads to Gourde's computer, and failed to include the negative results in their affidavit, then they certainly lacked probable cause to examine Gourde's computer. And if they instead refrained from searching to avoid risking a discovery that would negate probable cause, then too, they have acted wrongfully by manipulating their own knowledge to authorize a potentially improper search.

Because privacy is very important -- as the majority and dissenting judges all acknowledge -- willful ignorance of facts in one's possession should never form the foundation for invading a presumptively innocent person's privacy. For this reason, I must (respectfully) dissent.


Sherry F. Colb, a FindLaw columnist, is Professor and Frederick B. Lacey Scholar at Rutgers Law School in Newark. Her prior columns, including those on criminal law and procedure, can be found in the archive of her work on this site.

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