Tuesday, December 23, 2008

Court Rejects First Amendment Challenges to Child Related Obscenity Charges

US v. Whorley: Whorley was charged with a whole boatload of obscenity and child pornography charges after his receipt of that material was discovered on a publically accessible computer. Specifically, he was charged with 20 counts of receiving obscene Japanese cartoons depicting children; 20 counts of doing so after having been previously convicted of possessing child pornography; 15 counts of possession of child pornography (based on photographs); and 20 counts of sending or receiving obscene Emails describing children in interstate commerce. He was convicted by a jury on 74 of the 75 counts (one of the child porn counts was dismissed) and sentenced to 240 months in prison.

On appeal, Whorley challenged the obscenity convictions - those involving the Emails and cartoons - and the enhanced sentence for the cartoon charges, arguing that they violated the First Amendment, in several ways. The Fourth Circuit affirmed, shooting down all those arguments. First, the court disagreed that because 18 USC 1642 did not make an exception for the private receipt or possession of obscene material it violated the First Amendment as interpreted in Stanley v. Georgia. As the court points out, the Supreme Court has repeatedly held that just because Stanley protects the private possession of obscene materials there does not exist a related right to receive obscene material. Second, the court rejected the argument that section 1642 was impermissibly vague. Third, the court rejected Whorley's as applied challenges to 1642, for largely the same reasons as it rejected the facial challenges. Specifically, it rejected the argument that the text Emails or cartoons could be obscene. Finally, the court rejected the argument that the enhancement provisions of 18 USC 1466A(a)(1) was unconstitutional as applied to the cartoons at issue because they did not depict actual children. The court also rejected (and briefly discussed) Whorley's challenges to some trial issues and his sentence.

Judge Gregory dissented on the issue of whether the Emails could be obscene and the sentencing enhancements. With regards to the Emails, he did so based on an argument admittedly not raised by Whorley, that the Emails "were pure speech protected by the First Amendment." Judge Gregory contends that the majority's note that the Supreme Court has held that words can be obscene "is not sufficient, on its own, to criminalize pure speech." However, Judge Gregory never defines what "pure speech" is and how it is distinguishable from words that can be obscene. His dissent seems to be more an objection to Supreme Court holdings that obscenity lies outside the protection of the First Amendment (an objection I share, BTW). As for the sentence enhancements, Judge Gregory reads the applicable statutes to require the pictures at issue to depict an actual child, so the cartoons at issue in this case do not apply.

UPDATE: My apologies - apparently "pure speech" is a term of art in First Amendment cases with which I was not familiar. It refers to speech that is not bound up with conduct and is thus "pure."

Arrestee's Information Reliable Enough to Supprt Arrest

US v. White: A gentleman named Ali arrived in Charleston, West Virginia, and was arrested for possession of crack. He cooperated with investigators and agreed to set up a controlled purchase of cocaine from White later the same day. Ali set up the deal on the phone (while investigators watched) and said that White agreed to sell him nine ounces of cocaine at the Family Dollar parking lot. A vehicle, which Ali identified as White's, appeared at the Family Dollar parking lot, briefly, before it drove to a nearby house. White called Ali and told him that he had to move the deal because the parking lot was "too hot" and designated another location. On the way there, White was pulled over. He refused consent to search the car. After a second drug dog alerted on the driver's door of White's car, officers searched the trunk and found 89.5 grams of cocaine.

White sought to suppress the cocaine recovered during the search of the car. The district court denied the motion, concluding that Ali's information provided to the investigators was reliable and that they had probable cause to believe White was transporting drugs when he was stopped (alternatively, that they had reasonable suspicion to make a Terry stop, which ripened into probable cause). White pleaded guilty to one count of possession with intent to distribute cocaine and was sentenced to 240 months in prison.

On appeal, the Fourth Circuit affirmed the district court's suppression ruling and the sentence imposed. It agreed with the district court that Ali was a reliable source and that the investigators had probable cause to support White's arrest and a search of his car. As the court noted, "every bit of information that Ali provided was quickly borne out by actual events." The court dismissed White's claim of sentencing error in a footnote.

Friday, December 05, 2008

Agent's Assertions Save Warrant Under Leon

US v. Williams Williams and a codefendant, Thomas, were charged with drug crimes. They moved to suppress evidence found at their residences pursuant to state search warrants procured by a DEA agent.

In each case, the affidavit set forth in some detail the fruits of the investigation into Williams and Thomas, including details of controlled purchases, tips from CIs, etc. to establish a conspiracy to distribute narcotics. However, neither warrant affidavit included any evidence that any sales or other drug-related activity took place at either man's residence. Instead, the affidavit's explained that, based on the agent's experience, those involved in the drug trade frequently kept evidence of it (cash, registers, possibly a "stash" of product) in their home. On that basis, the warrants were issued.

The district court granted Williams and Thomas's motion to suppress the fruits of those searches. The Government conceded the lack of probable cause, but relied on the Leon good-faith exception to save the search. The district court disagreed and concluded that the warrants were based on bare bones affidavits that did not clearly demonstrate probable cause to believe there would be evidence at the locations searched. It also concluded that there was no basis on which to determine whether Williams and Thomas were actually residing at those locations.

The Government appealed and the Fourth Circuit unanimously reversed. Applying Leon (and avoiding the question of whether the Government could not argue the probable cause issue it conceded below), the court concluded that the affidavits were not bare boned after all. The court held that warrants to search a home are proper if (1) there is probable cause to support a charge of criminal activity and (2) the reasonable suspicion that drug dealers store evidence in their homes. Thus, it was error for the district court to disregard the agent's experience on the second prong. Had it properly considered the agent's statement, it could not have concluded that the affidavits were bare boned. The court also concluded that the agent's uncorroborated statement that the homes search were the defendants' residence was enough to save the affidavits from being bare boned.