ORDER ON DEFENDANT'S MOTION TO SUPPRESS
The issue on this motion to suppress is whether a magistratejudge can issue a search warrant for child pornography withoutlooking at the pictures that were provided as underpinning forthe assertion of probable cause. It is my understanding that inthe future the Magistrate Judges in this District will look atthe pictures submitted, no matter how distasteful theresponsibility is, so as to avoid consuming further legal feesand judicial resources on such an issue.1 Nevertheless, Iconclude in this instance that the affidavit without the picturesfurnished probable cause to issue the warrant, and that, with thepictures, probable cause still existed. The motion to suppress isDENIED.
I. PROBABLE CAUSE
Asserting that there was probable cause to believe that thedefendant Robert Crosby had transported child pornography ininterstate commerce in violation of 18 U.S.C. § 2252(a)(1) and/or§ 2252A(a)(1), the government submitted a warrant application tosearch Crosby's home. By statute, child pornography includes apicture of a minor engaging in "sexually explicit conduct."18 U.S.C. § 2256(8). As part of its application, the governmentsubmitted the affidavit of Karen Booke, a Special Agent with theUnited States Customs Service. In her affidavit, Booke describedvarious pictures that Crosby had sent to an undercoverinvestigator via the Internet. Booke alleged that these picturesdepicted boys engaged in a "lascivious exhibition of theirgenitals," one of the statutory definitions of "sexually explicitconduct."2 Booke Aff. ¶ 19b.
Along with the affidavit, the government also made available tothe Magistrate Judge three of the described pictures. It appearsthat the Magistrate Judge did not actually look at the picturesbut insteadrelied solely on Booke's affidavit. Therefore, the first issue iswhether probable cause existed on the basis of the affidavitalone and, if so, whether examining the pictures produces adifferent conclusion.
A. STANDARD OF REVIEW
In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76L.Ed.2d 527 (1983), the Supreme Court held that "the task of theissuing magistrate is simply to make a practical, common-sensedecision whether, given all the circumstances set forth in theaffidavit before him, . . . there is a fair probability thatcontraband or evidence of a crime will be found in a particularplace." Id. at 238, 103 S.Ct. 2317.
The question here, therefore, is whether, in light of all thefacts presented to the Magistrate Judge, a "fair probability"existed that there was evidence in Crosby's home showing that hehad transported child pornography in interstate commerce. Theaffidavit did not have to demonstrate that Crosby actually hadchild pornography in his possession. See id. at 244 n. 13, 103S.Ct. 2317. ("[P]robable cause requires only a probability orsubstantial chance of criminal activity, not an actual showing ofsuch activity."). Thus, the probable cause requirement did notrequire proof that Crosby possessed pictures depicting alascivious exhibition of the genitals or pubic area of achild.3
I find that the affidavit without the pictures furnishedprobable cause to believe that, in a search of Crosby's home,officers would find evidence that Crosby transported childpornography in interstate commerce. I base this decision on theaffidavit's description of the pictures of naked prepubescentchildren that Crosby had sent via the Internet to the undercoverinvestigator with the Keene, New Hampshire, Police Department, onthe e-mail messages Crosby had sent this same undercoverinvestigator, and on the details of "boyz_r_us," an Internet"listserve" to which Crosby and the undercover investigatorbelonged. I also find that examination of the three pictures doesnot destroy probable cause.
(1) Written Description of the Pictures
Crosby argues that, in order for a Magistrate Judge to issue asearch warrant where the violation is premised only onlascivious exhibition of the genitals or pubic area, "theMagistrate must personally review the images which are alleged tobe violative." (Def.'s Omnibus Mot. to Suppress at 4.) This isso, Crosby asserts, because the adjective "lascivious" requiresimprecise value judgments raising First Amendment concerns and"clearly implicates content-based free speech issues" similar tothose that arise when testing for obscenity. Id. Crosbycontends that the First Amendment mandates a "somewhat heightenedscrutiny for probable cause . . . when the alleged illegalityinvolves content-based issues." Id. at 7.
It is true that sometimes it will be harder to determinewhether a picture amounts to a "lascivious exhibition of thegenitals or pubic area," than it will be to identify sexualintercourse, bestiality, masturbation, or sadistic or masochisticabuse, the other definitions of child pornography. 18 U.S.C. § 2256(2)(A)-(D). It is also true that characterizing an exhibitionof the genitals as lascivious or non-lascivious essentiallydetermines whether it is child pornography or material protectedby the First Amendment.4 See United States v. McKelvey,203 F.3d 66, 69 n. 3 (1st Cir. 2000) (determining upon review thatphotographs of young boys "skinnydipping" fell "far short of thelegal definition of child pornography, and [were] squarely withinthe protection of the First Amendment"); United States v.Amirault, 173 F.3d 28, 33 (1st Cir. 1999) (stating that adistrict court judge made "a quintessential First Amendmentruling" that defined "the limits of the largely unprotectedcategory of child pornography" when he concluded that thedefendant possessed a photograph that depicted a lasciviousexhibition of a girl's genitals). But such difficulties do notchange the standard for the probable cause determination.
In a case involving obscenity, which is subject to greaterFirst Amendment protection than child pornography,5 theSupreme Court held that "an application for a warrant authorizingthe seizure of materials presumptively protected by the FirstAmendment should be evaluated under the same standard ofprobable cause used to review warrant applications generally."New York v. P.J. Video, Inc., 475 U.S. 868, 875, 106 S.Ct.1610, 89 L.Ed.2d 871 (1986) (emphasis added). In the same case,the Court went on to say that it was not essential that amagistrate judge personally view allegedly obscene videos beforeissuing a warrant. See id. at 874 n. 5, 106 S.Ct. 1610.Instead, the Court held that "a reasonably specific affidavitdescribing the content of a film generally provides an adequatebasis" for determining the existence of probable cause. Id.Therefore, I conclude that the warrant here is not automaticallyinvalid merely because the Magistrate Judge did not look at thepictures provided.
Crosby argues in the alternative, however, that thedescriptions in the affidavit were "woefully inadequate to allowthe magistrate to focus searchingly on the question oflasciviousness." He reasons that the Magistrate Judge could nothave concluded from the descriptions that these picturescontained a lascivious exhibition ofchildren's genitals or pubic areas. (Def.'s Omnibus Mot. toSuppress at 6.)
I disagree. The affidavit provided sufficient facts to findprobable cause. Special Agent Booke's affidavit describedseventeen pictures that Crosby sent to the undercoverinvestigator. According to Booke's descriptions, most of theseimages depicted naked prepubescent children. She described thepicture I find most damaging to Crosby as follows: "[I]magedepict[ing] a male who appeared to be prepubescent posed on alawn on his stomach and faced away. His legs are bent up and heldby his hands. His perineum and anal area are depicted." BookeAff. ¶ 19e. To evaluate this picture as described, I apply theDost factors, adopted by the First Circuit in United States v.Amirault, 173 F.3d at 31 (citing United States v. Dost,636 F. Supp. 828, 832 (S.D.Cal. 1986), aff'd sub nom., United Statesv. Wiegand, 812 F.2d 1239, 1244 (9th Cir. 1987)). Those factorsare: "(1) whether the genitals or pubic area are the focal pointof the image; (2) whether the setting of the image is sexuallysuggestive (i.e., a location generally associated with sexualactivity); (3) whether the child is depicted in an unnatural poseor inappropriate attire considering her age; (4) whether thechild is fully or partially clothed, or nude; (5) whether theimage suggests sexual coyness or willingness to engage in sexualactivity; and (6) whether the image is intended or designed toelicit a sexual response in the viewer." Id. at 31.6 Thedescription of this picture easily satisfies the requirement ofbeing lascivious under the Dost factors (genital focus7;unnatural pose; at least partial nudity8; suggestiveness ofwillingness to engage in sexual activity; intended to elicit asexual response — only the sexually suggestive location ismissing).9
(2) E-Mail and Internet Listserve
Although the description of this picture alone was sufficientto support a finding of probable cause, there is additionalevidence in the affidavit to support probable cause. This otherevidence includes e-mail messages Crosby authored and sent to theundercover investigator, as well as the context of "boyz_r_us,"the "listserve" to which Crosby belonged. The on-line descriptionof "boyz_r_us" explains that the listserve is a place to meet"people with similar thoughts and ideas you may have pertainingto BL." Booke Aff. ¶ 19c. Special Agent Booke, in light of herexperience investigating child pornography in general and thiscase in particular,10 reasonablyinterpreted "BL" as "boy love" or "boy lover." Id. Furthermore,the listserve limited postings to "pics of boys 15 and under."Id. ¶ 18g. The undercover investigator later provided Bookewith the messages and images that Crosby had sent him while theywere both members of "boyz_r_us." One of these messages, whichCrosby addressed to all "boyz_r_us" members and sent from ane-mail address that was later revealed to be Crosby's, statedthat "[w]e all know where to go to find other types of pictures.. . . The pictures we are talking about are just about a dime adozen." Id. ¶ 19f (quoting Crosby's message to the "boyz_r_us"listserve on May 15, 1999). Crosby continued, "I will tell youall I have my OWN proclivities. My OWN desires . . . they go wellbeyond the images that you have seen here." Id.
Those statements, together with the picture described,abundantly furnished probable cause.
(3) The Pictures Themselves
Examination of the pictures that the government made availableto the Magistrate Judge does not defeat probable cause. Theactual picture whose written description I discussed earliershows a boy, completely naked, lying on his stomach but holdingonto his ankles so that his legs are lifted and spread wideapart. The photograph is shot from ground level and behind theboy so that the center of the composition depicts the boy'sscrotum and buttocks. The picture undoubtedly is a lasciviousexhibition of the boy's genitals.
Another picture shows two apparently prepubescent naked boyslying side by side on their stomachs at a beach. Their buttocksare depicted. Since no genital or pubic area is visible, thispicture does not meet the statutory definition.
The last picture features two nude prepubescent boys and onepubescent boy lying on their backs and posed side by side in abed. The pubescent boy is in the middle, and all three boys havetheir arms around each other. The photograph was taken from thefoot of the bed so that the boys' genitals are the center of thecomposition. The picture meets many of the Dost factors(genital focus; nudity; designed to elicit a sexual response;sexually suggestive setting), but other factors are not met (nounnatural pose or detectable "sexual coyness or willingness toengage in sexual activity").
Thus, one picture is clearly child pornography; one pictureclearly is not; and a third probably is — but I need not completethe Dost analysis to conclude that together they furnishabundant probable cause to conclude that a search of thedefendant's home would reveal evidence of illegally transportingchild pornography in interstate commerce.
II. LEON GOOD FAITH EXCEPTION
Even if I were to conclude that the affidavit was insufficientand probable cause therefore lacking, the government could relyupon the "good faith" exception to the Fourth Amendment'sexclusionary rule. United States v. Leon, 468 U.S. 897, 104S.Ct. 3405, 82 L.Ed.2d 677 (1984). Evidence seized in violationof the Fourth Amendment is admissible in court if the governmentplaced an "objectively reasonable reliance on" a neutral anddetached magistrate judge's incorrect probable causedetermination. Id. at 922, 104 S.Ct. 3405. The good faithexception does not apply when the government has no reasonablebasis for believing that the warrant is valid. See id. at922-23, 104 S.Ct. 3405. Crosby argues that his case falls withintwo of Leon's exceptions — when the "issuing magistrate whollyabandon[s] his judicial role," id. at 923 (citation omitted),or when the government relies on a warrant that is based on anaffidavit "so lacking inindicia of probable cause as to render official belief in itsexistence entirely unreasonable." Id. (quoting Brown v.Illinois, 422 U.S. 590, 610-11, 95 S.Ct. 2254, 45 L.Ed.2d 416(1975) (Powell, J., concurring in part)).
With regard to the first argument, I have already concludedthat there was no absolute requirement that the Magistrate Judgeview the pictures. Accordingly, the government was notunreasonable in relying on the Magistrate Judge's finding ofprobable cause. Accord United States v. Jasorka, 153 F.3d 58,61 (2d Cir. 1998) (Leon applies because "the law is unclearwhether a judicial officer acting on a warrant application for aviolation of § 2252, based on lascivious exhibition of thegenitals, may rely on an agent's assertion that he has reviewedthe material and has found the photographs include such conduct,"and therefore, "the agents' reliance on the judicialdetermination made by the magistrate judge in authorizing thesearch was reasonable.").
With regard to the second argument, Booke's affidavit was notso lacking in indicia of probable cause that the government'sreliance on it was unreasonable. Even if it had been borderline(it was not), Leon would still support admissibility. SeeUnited States v. Ricciardelli, 998 F.2d 8, 15 (1st Cir. 1993)("If . . . the warrant's defectiveness results from . . .borderline calls about the existence of probable cause, then theevidence may be used, despite the warrant's defectiveness.")(citing Leon, 468 U.S. at 926, 104 S.Ct. 3405).
III. FRANKS HEARING
Crosby also requests a Franks hearing. In Franks v.Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978),the Supreme Court held that, "where the defendant makes asubstantial preliminary showing that a false statement knowinglyand intentionally, or with reckless disregard for the truth, wasincluded by the affiant in the warrant affidavit, and if theallegedly false statement is necessary to the finding of probablecause, the Fourth Amendment requires that a hearing be held atthe defendant's request." Id. at 155, 156, 98 S.Ct. 2674. Iconclude that Crosby has not made an adequate preliminary showingto obtain a Franks hearing.
In support of his request, Crosby makes four arguments that theaffidavit contained material misstatements of fact as well asmaterial omissions. First, he contends that the statement in theaffidavit that the pictures were attached to the affidavit,combined with the Magistrate Judge's signature on the affidavit,implies that the Magistrate Judge viewed the pictures — when infact he did not and in fact the pictures were not attached.Second, he asserts that the Magistrate Judge's failure to look atthe images constituted a Franks violation in itself. Third, heargues that Booke's failure to provide the Magistrate Judge withthe bulk of the images sent or received by Crosby, despite thefact that those images were in her possession, was a Franksviolation. Finally, he contends that Booke's characterization ofany of the images as lascivious was itself a Franks violation.
With regard to Crosby's first argument, I find that theaffidavit's statement "see attachment" in reference to thepictures, Booke Aff. ¶ 19d & e, was not a material misstatement.The Assistant United States Attorney told the Magistrate Judgethat she had the pictures available for the Magistrate Judge toview. That was enough. Second, the Magistrate Judge's failure toview the pictures has no bearing on whether Booke made any falsestatements in her affidavit.11 Third, the government'sfailure to provide all pictures described in the affidavit doesnot demonstrate that Booke made false statements or statementsthat amounted to a recklessdisregard for the truth. There is simply no legal requirementthat the government attach all the pictures. Finally, Crosby'sassertion that none of the pictures were, in fact, lascivious isinaccurate, as I have already ruled. Having looked at thepictures, I can conclude that Booke's statement that some of themwere lascivious was made in good faith. The factual descriptionswere accurate, and they provided the Magistrate Judge withprobable cause to believe that at least one of the pictures waslascivious. Such a conclusion puts to rest any argument thatBooke made a deliberately false statement, or a statement inreckless disregard for the truth, when she concluded that some ofthe pictures were lascivious.
I find that the application for the search warrant providedprobable cause. I conclude that the government was objectivelyreasonable in relying on the warrant to perform the search, and,therefore, the good faith exception to the exclusionary ruleapplies. Finally, I find that Crosby has failed to make therequisite showing that a Franks hearing is warranted in thiscase. For all of these reasons, Crosby's motion to suppress isDENIED.
1. My colleague, Judge Carter, has expressed his view that itis preferable for the magistrate judge to look at the pictures inquestion, see United States v. Brunette, 76 F. Supp.2d 30, 40 n.4 (D.Me. 1999), and other courts have likewise struggled with theunnecessary problems caused by a failure to examine the pictures.See United States v. Smith, 795 F.2d 841, 847 (9th Cir. 1986).
2. The statute defines "sexually explicit conduct" as actualor simulated:
(A) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex;
(D) sadistic or masochistic abuse; or
(E) lascivious exhibition of the genitals or pubic area of any person.
18 U.S.C. § 2256(2). There is no contention that the picturesmeet the definitions in subsections (A), (B), (C), or (D). Onlysubsection (E) is at issue.
3. In most circumstances, I conduct a deferential, as opposedto de novo, review of a magistrate judge's probable causedetermination. See Gates, 462 U.S. at 238-39, 103 S.Ct. 2317(holding that a duty of a reviewing court "is simply to ensurethat the magistrate had a `substantial basis for . . .conclud[ing]' that probable cause existed") (quoting Jones v.United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697(1960)). Since the Magistrate Judge here did not look at thepictures, and thus did not review the entire affidavit, however,I conclude that the appropriate standard of review is de novo —just as in a case where a magistrate judge reviews an affidavitwith material omissions, the reviewing court, following aFranks hearing, see Franks v. State of Delaware,438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), will read theomissions into the affidavit before making a probable causedetermination. In both cases, the reviewing court is notanalyzing the same affidavit upon which the magistrate judgefound probable cause. Therefore, under either circumstance, adeferential review is not appropriate. See United States v.Salemme, 91 F. Supp.2d 141, 378 (D.Mass. 1999) ("[T]he prescribeddeference is implicitly premised on the assumption that thejudicial officer issuing the warrant was fully and clearlyinformed.")
4. Nonetheless, the Supreme Court has concluded that the term"lascivious," as used in section 2256(2)(E), is notunconstitutionally vague or broad. See United States v.X-Citement Video, Inc., 513 U.S. 64, 78-79, 115 S.Ct. 464, 130L.Ed.2d 372 (1994).
5. In New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73L.Ed.2d 1113 (1982), the Supreme Court recognized "childpornography as a category of material outside the protection ofthe First Amendment." Id. at 763, 102 S.Ct. 3348. The Court inFerber rejected the argument that the Miller standard, seeMiller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419(1973), which is used to determine whether material is obscene oris protected under the First Amendment, should apply to childpornography. The Court reasoned:
"The Miller standard, like all general definitions of what may be banned as obscene, does not reflect the State's particular and more compelling interest in prosecuting those who promote the sexual exploitation of children. Thus, the question under the Miller test of whether a work, taken as a whole, appeals to the prurient interest of the average person bears no connection to the issue of whether a child has been physically or psychologically harmed in the production of the work. Similarly, a sexually explicit depiction need not be "patently offensive" in order to have required the sexual exploitation of a child for its production. In addition, a work which, taken on the whole, contains serious literary, artistic, political, or scientific value may nevertheless embody the hardest core of child pornography. . . . We therefore cannot conclude that the Miller standard is a satisfactory solution to the child pornography problem."
Id. at 761, 102 S.Ct. 3348.
6. These factors are not exhaustive; other factors may also berelevant. Ultimately, each case depends on its own facts. SeeAmirault, 173 F.3d at 32. Furthermore, the Supreme Court hasrecognized that "affidavits `are normally drafted by nonlawyersin the midst and haste of a criminal investigation. Technicalrequirements of elaborate specificity under common law pleadingshave no proper place in this area.'" Gates, 462 U.S. 213, 235,103 S.Ct. 2317, 76 L.Ed.2d 527 (quoting United States v.Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684(1965)).
7. The Random House Dictionary of the English Languageprovides two definitions for the perineum. The first defines itas "the area in front of the anus extending to the fourchette ofthe vulva in the female and to the scrotum in the male" and thesecond as "the diamond-shaped area corresponding to the outlet ofthe pelvis, containing the anus and vulva or the roots of thepenis." Random House Dictionary of the English Language 1440(2d ed. unabridged 1987). In an illustration of the male perineum(absent the skin) in Grant's Atlas of Anatomy, the urogenitaland anal region are depicted as part of the male perineum, anddescribed as such in the accompanying description. See Grant'sAtlas of Anatomy 185 (9th ed. 1991). Given these definitions,the Magistrate Judge could conclude from the description that theimage depicted at least part of the boy's genitals.
8. This is to be inferred from the statement: "His perineumand anal area are depicted."
9. Since one picture as described clearly contained alascivious exhibition of a child's genitals, I refrain fromdiscussing the affidavit's description of the other pictures.
10. During her time with the United States Customs Service, aswell as her five years with the Albany County ProbationDepartment, Booke received child pornography training and hasparticipated in many investigations involving the sexualexploitation of children and the international trafficking ofchild pornography. Booke Aff. ¶¶ 1, 3. She also received trainingin computer crimes during her eight years working with InternalRevenue Service Internal Security. See id. ¶ 2.
11. Obviously, Booke's affidavit requesting a warrant couldnot contain a statement that the Magistrate Judge had viewed theimages.