BARRY J. PORTMAN
Federal Public Defender
Chief Assistant Federal Public Defender
1301 Clay Street, Room 200C
Oakland, CA 94612-5204
Telephone: (510) 637-3500
Counsel for Defendant XXX
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
XXX XXX ,
Defendant.
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No. CR- 99-40167-SBA
DEFENDANT XXX'S REPLY TO GOVERNMENT'S RESPONSE TO MOTION TO SUPPRESSI. FACTS
Because the defendant's challenges to the search warrants are based upon the factual assertions contained within the "four corners" of the search warrant affidavits at issue, there do not appear to be factual disputes between the parties. The government's reference to events occurring after the search warrants were issued are, of course, legally irrelevant. SeeGovernment Response (Gov. Resp.) at 4-5.
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II. ARGUMENT
A. The AOL Search Warrant was Invalid
1. There Was No Probable Cause Set Forth In The AOL Affidavit The defendant argued in his motion that the AOL search warrant signed by Judge Mills on February 23, 1999 was invalid because the affidavit used to secure the warrant failed to state any facts supporting a probable cause determination that a state law had been violated. The defendant noted that a discussion of this issue was hampered by the fact that only one statute was listed on the face of the warrant as having been violated, and that statute, Cal. Penal Code § 311.3, prohibits the distribution of child pornography. Because no claim is made in the AOL affidavit that XXX distributed child pornography, a reviewing court was left to speculate as to what other statute(s) had allegedly been violated. The government answers this observation on page 7 of its response by claiming that under United States v. Hill, 55 F.3d 479 (9th Cir. 1995), the warrant need not identify a specific statute as having been violated. Two issues are presented by this legal claim.
First, Hill admittedly states that a statute need not be identified on the face of a warrant "unless when required by statute
or when necessary to identify the objects to be seized with sufficient particularity." Id. at 481. The case the Hill court
relies upon for the second proposition is United States v. Spilotro, 800 F.2d 959 (9th Cir. 1986), where the Ninth Circuit
declared a warrant invalid because, in part, thirteen separate criminal statutes were referenced on the face of the warrant:
In this case, however, the only limit on the search and seizure was the requirement that the items seized be evidence of a
violation of any one of thirteen statutes, some of exceptional scope.... The statutes in question likely would encompass
several hundred separate criminal acts, but no specific criminal transactions were set forth in the warrant. This effort to
limit discretion solely by reference to criminal statutes was inadequate to meet the standards for specificity in a warrant.
Id. at 965.
Similarly here, the AOL search warrant affidavit has two preprinted boxes checked on the face of the warrant: one box alleging that the evidence sought would tend to show a violation of Cal. Penal Code § 311.3 (distribution of child pornography); and a box indicating that the evidence sought would "show a felony had been committed or a particular person has committed a felony." SeeDefendant's Motion to Suppress (Def.'s Motion), Exhibit One, p.1. If the Ninth Circuit found a search warrant reference to thirteen statutes to be overbroad, it is evident that a search warrant which allows police to search records for a violation of any felony would similarly be overbroad. This is particularly true where, as here, the items to be examined were records and were not something subject to "extensive civil and criminal regulation." See Hill, 55 F.3d at 480. (1)
Second, assuming that Hill can be read to allow the government to subsequently choose a statute it believes was violated and add that statute to the face of a warrant, the statute chosen by the government does not save the AOL search. (2) As the defendant noted in his original memorandum to this Court, Cal. Penal Code § 288.2 prohibits the distribution of harmful matter to a person who the sender knows is a minor. Def.'s Motion at 12-14. As XXX argued in his motion, the matter which XXX distributed, even if it was deemed "harmful," was not sent to a minor; it was sent to an adult acting as a minor. See Def.'s Motion at 13-14. Because § 288.2 requireson its face that the sender know that the recipient of the matter is a minor, § 288.2 could not have been violated by XXX's actions. (3) To rule otherwise would require the court to read into the statute the term "knows or believed to be a minor." No such construction is permissible where, as here, § 288.2 is clear on its face.
The government's response to this argument is, quite candidly, hard to follow. The government asserts that "actual knowledge would be a question for the jury to consider, not something that has to be proven beyond a reasonable doubt in an affidavit for a search warrant. The conversation itself will be circumstantial evidence at trial that XXX knew that he was talking to a minor." Gov. Resp. at 7. First, the issue here is whether there was sufficient evidence in the AOL affidavit to support a probable cause determination that § 288.2 had been violated. This is an issue for this Court, and not a jury, to decide. Second, if § 288.2 requires knowledge that the recipient of harmful matter be a minor, and the government concedes (as it must here) that the recipient of the matter is an adult, there is no probable cause set forth in the affidavit that § 288.2 was violated. Stated simply, the defendant could never have had the knowledge required by the law if he was talking to an adult. The government's cryptic response unfortunately fails to address this fairly straightforward flaw in the affidavit.
The second argument raised by XXX in his original motion was that even assuming one could rewrite § 288.2 to include a provision that would allow the state to prosecute someone who believed that he was sending harmful matter to a minor, such a construction would not help the government here because Detective McEwan never stated in his affidavit that the chat room participants were led to believe that they were talking to a minor.
The government's response is remarkable for its effort to have this Court take judicial notice of what the government believes are the habits and anatomical composition of minors. The government states with the rather bold but factually inaccurate claim that "obviously he [XXX] was conversing with to [sic] a kid." Gov. Resp. at 5. What the government defines as a "kid" is never made clear, but the government goes on to claim that "the minor (4) talked about his parents and how his parents were there watching him," and argues that this exchange shows that XXX knew he was talking with a minor. Id. The defendant suggests that seniors in high school who are 18 years old and who live with their parents might have similar problems; indeed, such assertions might apply even to adults living at home. (5)
The government next asserts (apparently seriously) that XXX and McEwan discussed a "smooth chest" and a "tight ass," and then makes the claim that "minor boys, not adult males, have smooth chests and tight asses that adult men can stick their fingers in." Id.
The defendant understands the government's desperate need to try to find something in this affidavit upon which to base claim that XXX believed he was talking to a minor. Nonetheless, the defendant sees no need to address this crudely presented, factually unsupported and obviously meritless assertion.
Finally, the government claims that because McEwan asked a question about cars, XXX had to know he was talking to a minor because "common experience tells us that adolescent boys can be very interested in cars." Id. Remarkable as it might seem to the government, persons over the age of 18 also discuss cars on the Internet.
The government then goes on to argue that Victim #1's profile could have led Mr. XXX to believe that he was talking to a minor. Gov. Resp. at 5-6. It would have benefitted the government to read the AOL affidavit prior to making this argument, insofar as Victim #1's AOL profile is nowhere addressed in the AOL warrant affidavit. (6)
To summarize, there was nothing in the AOL affidavit that suggested that XXX was talking to a minor. All of the arguments made by the government are just as applicable to an 18 year old high school senior as they would have been to someone younger. Before a person's house or protected records can be searched, something other than a claim that only minors have smooth chests or are interested in cars must be evident on the face of an affidavit. Because this warrant affidavit is so devoid of any evidence supporting a claim that § 288.2 was violated, the AOL search warrant must be declared invalid.
2. The Leon Good Faith Exception Does Not Apply
The government contends that even if the warrant at issue was invalid, the good faith exception established in United States v. Leon, 468 U.S. 897 (1984) applies in this case. This claim is misplaced.
If a magistrate issuing a search warrant wholly abandons his or her judicial role, or if the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, the good faith doctrine is not available. See Leon, 468 at 923. Both of these exceptions apply in this case. First, the affidavit indicates that the state police believed that XXX may have violated Cal. Penal Code § 311.1, and yet no allegation is ever made in the affidavit that XXX had distributed child pornography. There was no other statute referenced in the search warrant, and the only statute the government can think to allege was at issue is Cal. Penal Code § 288.2. That statute on its face requires that the harmful matter be sent to a minor, and yet the state judge knew from the face of the warrant that the Internet chat set forth in the search warrant affidavit was exchanged between two adults. No court reasonably examining this warrant could have concluded that a state statute had been violated.
As for the issue whether the affidavit is so lacking in probable cause as to render an official belief in its existence wholly
unreasonable, one need not undertake a "deep inquiry" into the affidavit as the government fears; rather, one need only
look at the arguments presented by the government on page 5 of its response to find the answer to this inquiry. No
reasonable person, let alone a reasonably well-trained officer, could seriously contend that Internet chat that included talk
of smooth chests and automobiles establishes probable cause to believe that one of the participants was a minor. (7)
B. Assuming the AOL Warrant Was Invalid, There Was No Basis
to Arrest XXX or Search His Home and Car
The defendant argued that without the AOL information, the search warrant issued on April 8, 1999, did not contain sufficient independent information to justify XXX's arrest or the search of his home and car.
The government does not dispute this argument.
C. The April 8, 1999 Warrant Was Invalid
Should the Court rule that the AOL warrant was invalid, it need not address the various issues raised with regard to the April 8, 1999 warrant because of the government's concession that without the AOL information the April 8, 1999 warrant could not have supplied sufficient information to justify XXX's arrest or the search of his home.
1. There Was Insufficient Probable Cause
Should this Court nonetheless undertake an examination of the April 8, 1999 affidavit, the government argues that there are a few facts contained in that affidavit which contribute to a probable cause determination: (1) XXX and McEwan made arrangements to meet in Walnut Creek; (2) they discussed "what they would do sexually" when they met; and (3) XXX sent McEwan a picture. Gov. Resp. at 9.
None of these facts add anything to the probable cause issue. The first two facts are totally benign if XXX was talking to an adult, and the government does not argue that any of the facts contained in the April 8, 1999 affidavit change the arguments madesupra (with respect to the AOL affidavit) that the chat room participants did not know they were talking to a minor. As for the picture, the government in its statement of facts section describes the picture as depicting a "young naked boy." Gov. Resp. at 4. It then drops a footnote, describing the picture as depicting ateenage boy. Gov. Resp. at 4 n.4. Obviously, eighteen and nineteen year olds are still "teenagers." Moreover, the government does not see fit to dispute the fact that the police officer who first received the picture stated in his report that the picture was that of an "adult or late teen." See Def.'s Motion at 6 n.3. This is why, at the end of the April 8, 1999 warrant, Detective Doty stated that:
McEwan has told Affiant that based on the facts in the Narrative Statement, McEwan believes that evidence of the
commissions of felonies, to wit: violation(s) of California Penal Code Sections 288.2 (exhibiting lewd materials to a
minor) and 664/288(c)(lewd act with a minor age 14 or 15), and property used in the commission of said felonies, will be
located where described above.
Def.'s Motion, Exhibit Two, Opinion p.5.
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No claim is made that XXX was distributing child pornography. (8)
Because none of the other arguments presented by XXX on pages 16-18 of his original memorandum are disputed by the government in its response, XXX repeats his assertion that there was insufficient evidence contained in the April 8, 1999 warrant affidavit to support a probable cause determination. (9)
2. The Leon Good Faith Exception Does Not Apply
As for the Leon claim, the defendant stands by the arguments he has presented supra with regard to the AOL warrant and is satisfied that based upon the legal infirmities in this warrant application and the total lack of probable cause, Leon does not apply.
3. Cal. Penal Code § 288.2 Is Unconstitutional (10)
XXX next argued that even if the Court were to conclude that probable cause existed to believe that Cal. Penal Code § 288.2 had been violated, the warrant was nonetheless invalid because: (1) the statute is unconstitutional; and (2) the police, who claim expertise in the field of pornography law, should have known this fact.
Rather than address the similarity between Cal. Penal Code
§ 288.2 and the CDA declared unconstitutional in Reno v. ACLU, 512 U.S. 844, 117 S. Ct. 2329 (1997), the government "incorporates" by reference a memorandum filed by the state in Walnut Creek in a companion case to Mr. XXX's, and a state response to a mandamus petition presently pending before the California Court of Appeals in San Diego.
If one reads these two "incorporated" submissions carefully, it becomes evident that the Walnut Creek submission took its legal arguments virtually word for word from the San Diego brief. Compare Gov. Resp. Exhibit C at 5-10 with Exhibit D 17-18, 21-26. What the government fails to note is that the San Diego case remains under submission, and Superior Court Judge John Minney, who heard the Walnut Creek case, rejected the arguments presented in Exhibit C and declared Cal. Penal Code § 288.2 unconstitutional.
Moreover, when one analyzes the arguments contained in these "incorporated" submissions, one can understand why they were rejected. The gist of the state/government's argument as to whyReno v. ACLU does not apply to § 288.2, relates to the claim that the CDA addressed in Reno applied to indecent speech, which is constitutionally protected, while § 288.2 only applies to obscene speech, which is not so protected. Gov. Resp. Exhibit C at 9-10.
This claim is incorrect. Cal. Penal Code § 288.2 prohibits the sending of "harmful matter," which is defined in Cal. Penal Code
§ 313.
Although the language of § 313 mirrors the Supreme Court's test for obscenity, § 313 actually has little to do with the definition of "obscene" material. Perhaps the best indicator of the differences between § 313 and "obscene matter" can be found in the organization and language of the Penal Code itself. Chapter 7.5 of Part I of the Penal Code (§§ 311 to 312.7) is entitled "obscene matter." Under § 311(a), "obscene matter" means "matter, taken as a whole, which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value." Notably missing from § 311(a), and present in § 313(a), is the qualification in the last clause that the material "lacks serious literary, artistic, political, or scientific value for minors." Cal. Penal § 313(a) (emphasis added). Section 313(a) is found in a chapter entitled "harmful matter." Within the Penal Code itself, then, there is an explicit distinction between "obscene matter" and "harmful matter."
This distinction is borne out in the case law interpreting
§ 313(a). In Berry v. City of Santa Barbara 40 Cal.App.4th 1075 (1995), the court examined the constitutionality of the city ordinance prohibiting the display of material deemed "harmful to minors" as defined in § 313. The photographs at issue, which appeared on the front pages of magazines, depicted "a scantily clad woman in a provocative pose suggesting sexual conduct." Berry, 40 Cal.App.4th at 1081. (11) The court found that "[j]udged by adult standards, the publications at issue here are not obscene." Id. at 1083. Yet the court also found that the photographs could qualify as "harmful matter" pursuant to § 313(a). Id. at 1089 (the court remanded "for an express ruling on whether its [the magazine's] front page is harmful to minors"). In another case, a California court suggested that § 313 described material "obscene as to minors." American Booksellers v. Superior Court 129 Cal.App.3d 197, 203 (1982).
The distinction between "obscene matter" and "harmful matter" is crucial. Obscene material is unprotected by the First Amendment; the government can without restraint prohibit the distribution of obscene matter. By contrast, harmful matter falls within the ambit of the First Amendment's protections. See Sable Communications v. FCC, 492 U.S. at 115, 126 (1989)("Sexual expression which is indecent but not obscene is protected by the First Amendment...."); Reno, 521 U.S. at 874. As a result, the speech targeted by § 288.2(b), which is "harmful matter" instead of "obscene matter," is protected by the First Amendment of the Constitution.
The state/government goes on to argue that § 288.2 is narrowly tailored to serve a compelling state interest because it does not regulate pure speech, and "requires that the sender of the harmful matter possess 'knowledge that a person [the recipient of the harmful matter] is a minor.'" Gov. Resp. Exhibit C at 10. Not only is the state/government's argument invalid, it must be emphasized here that the government is conceding one of the important arguments raised in XXX's motion to suppress; that
§ 288.2 only applies when the recipient of the "harmful matter" is a minor: "the statute in no way restricts the transmission of sexually explicit material from one adult to another." Gov. Resp. Exhibit C at 10. Here, as XXX has emphasized time and again, the recipient of the "harmful matter" was an adult, not a minor. By its very arguments raised to argue that § 288.2 is constitutional, the government concedes that the warrants at issue here were invalid because XXX could not have violated § 288.2.
With regard to the state/government's assertion that § 288.2 is constitutional because the sender must have knowledge that the recipient is a minor, a similar knowledge requirement was contained in the CDA and this requirement did not stop the Court from declaring the statute unconstitutional. See Reno, 117 S. Ct. at 2338.
As for the claim that § 288.2 is narrowly tailored to serve a compelling state interest, the defendant starts by conceding that
that § 288.2(b) serves a compelling interest. See Reno, 521 U.S. at 875 ("It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials.")
However, to meet the requirements of the strict scrutiny test, the government must also demonstrate that it chose "the least restrictive means to further the articulated interest." Sable, 492 U.S. at 126. As an introductory matter, it is important to note that the "special justifications" for regulation applicable to certain mediums of expression are inapplicable to the Internet. In upholding regulations in previous cases, the Supreme Court has relied on the history of extensive government regulation of the broadcast medium (see, e.g., Red Lion 395 U.S. 367, 399-400 (1969) (regulating broadcast television)), the scarcity of available frequencies at the inception of a new medium, (see, e.g., Turner Broadcasting System, Inc. v. FCC 512 U.S. 622, 637-38 (1994)(regulating cable television)), and the 'invasive' nature of the medium (see, e.g., Sable 492 U.S. at 128 (1989)(regulating telephones)). As the Reno Court stated, "[t]hose factors are not present in cyberspace." Reno, 521 U.S. at 868. The Internet has never been subject to the kinds of regulations that have attended the broadcast industry; there is no scarcity of frequencies present in early broadcasting; and the "Internet is not as 'invasive' as radio or television." Reno, 521 U.S. at 868-70. As the Court held, "[u]sers seldom encounter content 'by accident.'" Id. at 868. The factors that justified the Supreme Court's allowance of restrictive regulation of broadcasting are simply absent from the Internet medium of expression.
Since the Internet contains none of the special justifications for regulation, the least restrictive means test must be applied without qualification. Under the least restrictive means test, the state bears the burden of demonstrating "that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Turner Broadcasting, 512 U.S. at 664. The state bears this burden because "[i]nterest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship." Reno, 521 U.S. at 885. Without "evidence that less restrictive means had 'been tested over time,'" the government does not carry its burden that other means "would not be sufficiently effective." Cyberspace, 55 F.Supp.2d at 750, quoting Sable, 492 U.S. at 129.
Section 288.2(b) fails the least restrictive means test. First, the state cannot satisfy the burden of demonstrating "that the regulation will in fact alleviate" the harms targeted by the statute "in a direct and material way." Turner Broadcasting., 512 U.S. at 664. As Justice Scalia wrote in Florida Star v. B.J.F., 491 U.S. 524 (1989), "a law cannot be regarded as ... justifying a restriction upon truthful speech when it leaves appreciable damage to [the government's] supposedly vital interest unprohibited." Id.at 541-42 (Scalia, J., concurring). Because of the nature of the online medium, even a total ban will be ineffective at ridding online networks of "harmful matter" to minors. The Internet is a global medium, and material posted on or sent from a computer overseas is just as available as information posted next door. Thus, the statute does not prevent online adult users from abroad from sending "harmful matter" to minors. See Reno, 521 U.S. at 850. Additionally, considering that the prosecution of out-of-state violators of § 288.2(b) "is beset with practical difficulties," the statute also fails to alleviate the harm it targets when the prohibited speech originates from any of the 49 other states. American Liberties v. Patoki, 969 F. Supp. 160, 178 (S.D.N.Y. 1997). Since § 288.2(b) does not effectively restrict the amount of 'harmful matter' received by minors from the huge proportion of Internet users who are outside of California, it is unconstitutional for failing to alleviate the alleged harms "in a direct and material way." Turner Broadcasting, 512 U.S. at 664.
The government next contends that even if § 288.2 is unconstitutional, the Supreme Court held in Illinois v. Krull, 480 U.S. 355 (1987) that the exclusionary rule does not apply when a state statute is subsequently declared unconstitutional.
As the defendant noted in his opening brief when he cited Krullto this Court, this exception to the exclusionary rule does not apply when the provisions of a statute "are such that a reasonable officer should have known that the statute was constitutional..." Def.'s Motion at 22, citing Krull, 480 U.S. at 1170. The defendant noted that because Officer Doty swore under oath in the search warrant affidavits at issue here that he was familiar with, and had discussed with experts in the field of child abuse and sexual crimes, "the latest developments in the law," one could fairly assume that he knew of ACLU v. Reno and its evident applicability to § 288.2. See Def.'s Motion at 22.
The government refers to this assertion as "laughable" and "absurd," and claims that the defendant, "not surprisingly," presents no authority for his argument. Gov. Resp. at 11.
The defendant is saddened and surprised that when a state police officer claims expertise in the particular field, the government would subsequently claim that it is "laughable" and "absurd" to actually suggest that the officer might have the expertise claimed. Any officer who claims knowledge of Internet sex law would have known about ACLU v. Reno, and should have foreseen its applicability to § 288.2. The government's effort to discount such expertise leads to the inevitable conclusion that Officer Doty's other claims of expertise, e.g. his knowledge about the proclivities of pedophiles and child molesters, is equally "laughable" and "absurd." Thus, this Court, should it reject the defendant's claim about Doty's legal expertise, must similarly reject his other claims about expertise in the field of pedophilia. This, of course, would destroy any remaining assertion by the government that the warrants here were valid. (12)
The defendant further asserted that because of the particular manner in which Mr. XXX's case has been handled, the exclusionary rule should be applied. The defendant stands by the arguments he presented in his original memorandum, insofar as the government's response is merely that the warrants here are valid and certain crimes can be prosecuted in both state and federal court.
D. The AOL and April 8, 1999 Search Warrants Were Overbroad
The defendant argued that because the search warrants at issue here were obtained on the basis of protected speech alone, the search warrants were overbroad.
The government completely misses the point of the defendant's argument. Regardless whether § 288.2 is constitutional, the kind of chat at issue here is protected speech under the Supreme Court's decision in Reno. This claim is never even recognized in the government's response, let alone analyzed or refuted. As a consequence, the defendant's arguments regarding the reasons why a police officer cannot use such protected speech to secure a search warrant remain totally undisputed in the government's response.
The defendant noted that a case analogous to XXX's case wasUnited States v. Weber, 923 F.2d 1338 (9th Cir. 1990), where the court held that there must be a causal connection between the facts of the case and any assertion in a warrant that the defendant has engaged in illegal activity. The government claims that Weber is not applicable here because Detective Doty notes some characteristics about people who exploit children, and the government then asserts that XXX satisfies some of those characteristics. Gov. Resp. at 11-12.
This claim is of course totally irrelevant, because the issue here is whether the chat at issue was used to secure the warrant. Even if the Court were to conclude that the government's arguments are relevant, they are meritless. Specifically, the government alleges that because XXX expressed a taste for a "smooth chest," he must like young boys. This frivolous claim is addressedsupra. The government next claims that XXX sent McEwan a picture of "a young boy," thus fitting another characteristic of a pedophile. This claim, as noted earlier, is not true. Finally, the government claims that because XXX (along with probably 100 million other Americans) uses a home computer, he is a child molester. Again, the claim merits no serious response.
In sum, if Internet chat between two adults is protected speech, it alone cannot be used to secure search warrants because the speech by definition would no longer be protected. Here, XXX's chat was just such speech. The government never grasps this issue, let alone presents arguments which undermine the defendant's claims.
The search warrants at issue here were invalid and overbroad. When, as here, the search warrants are as overbroad as they are, the Leon good faith exception should not be applied. See United States v. Hale, 784 F.2d 1465, 1470 (9th Cir. 1986)(warrant allowing for seizure of protected material overbroad: "we have serious doubts whether material arguably protected by the First Amendment which is seized pursuant to overbroad provisions of a warrant can ever be admitted through the good faith exception"). The evidence seized as a result of the execution of those warrants must be suppressed.
Dated: February 22, 2000.
Respectfully submitted,
BARRY J. PORTMAN
Federal Public Defender
GEOFFREY A. HANSEN
Chief Assistant Federal Public Defender
1. It is important to note that in Hill, the warrant sought contraband, and specifically identified a gun as the object of the search. Here, the state sought records, which are not contraband. Thus, the need for the state to specifically identify the statute allegedly violated by XXX is crucial to determine whether the records were in fact evidence of a crime or were evidence that a particular person violated the law.
2. As the government puts it, "XXX is correct when he suggests that Cal. Penal Code § 288.2 may have been another appropriate statute to add to the warrant." Gov. Resp. at 7.
3. It is noteworthy that within the last few days, the Ninth Circuit issued an opinion addressing the issue whether tenants in HUD housing could be evicted under a statute relating to drug activities committed by tenants or guests. The Court, in reaching what some might claim a harsh decision, did so based upon a strict construction of the language of the statute at issue. It started its analysis with the observation that "We begin, as we must, with the express language of the statute. 'Where there is no ambiguity in the words, there is no room for construction.'" Rucker et al. v. Davis and HUD, 00 C.D.O.S. 1161 (9th Cir. Feb. 14, 2000).
4. Of course, there was no minor involved in these conversations; Detective McEwan was impersonating a minor.
5. One might recall that living arrangements involving adults residing with their parents are not unusual; Justice Souter, at the time of his appointment to the Supreme Court, lived with his mother.
6. Victim #1's profile was added to the April 8, 1999 warrant affidavit, not the AOL warrant.
7. As is discussed infra, if such speech allows police to secure warrants to search records (and, ipso facto, homes), serious constitutional issues come into play.
8. Should the government make such an allegation, the defendant requests a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), because obviously Detective Doty failed to tell the state judge in his affidavit that Detective McEwan, who actually received the photograph, had in fact concluded that the picture was not of a young boy but was rather a late teen or adult. Such a material omission merits a Franks hearing.
9. The government is mistaken when it claims on page 9 of its response that the arguments contained on pages 16-18 of the Def.'s Motion are the same as those made in the AOL section of the memorandum. Obviously, by not disputing XXX's claims the government evidently concedes those issues.
10. Undersigned counsel thanks Ed Swanson of Swanson & McNamara for his assistance in presenting these arguments.
11. Under established California law, pictures of "scantily-clad women" are not "obscenity" within the meaning of § 311. SeeBloom v. Municipal Court 16 Cal.3d 71, 79 (1976)("Thus it is clear that section 311 prohibits only hardcore pornography, that nudity does not equate with obscenity and that 'no matter how ugly or repulsive the presentation, we are not to hold nudity, absent a sexual activity, to be obscene,' and that '(t)o constitute obscenity...the material must contain a graphic description of sexual activity....' [all citations omitted].")
12. To again emphasize the problematic nature of the government's response, the government asserts in footnote 8 of its response that it is not a state agent's job to "research and evaluate the basis for the legality or illegality of laws - it's their job to enforce existing laws." This is of course not true, because Krull specifically notes that the exclusionary rule applies where a reasonable officer should have known a law was unconstitutional. Thus, a reasonable officer has some obligation to evaluate the laws s/he enforces. Moreover, when an officer claims expertise in legal developments, s/he accepts the particular responsibility of evaluating the basis for the legality of the laws s/he enforces. The government's assertion is, therefore, quite mistaken.