The Fourth Amendment and the intuitive relationship between child molestation and child pornography crimes.

• Author: Gambale, Anthony J.

"The Fourth Amendment does not by its terms require a prior warrant for searches and seizures; it merely prohibits searches and seizures that are 'unreasonable.'" (1)

1. INTRODUCTION

   Due to the ambiguous language of the Fourth Amendment, courts have been unable to agree on a strict test as to what CONSTitutes a reasonable search and seizure. (2) For example, in United States v. Falso, (3) the court held that evidence of child molestation, by itself, did not create probable cause for a search warrant for child pornography. (4) In its reasoning, the court concluded that a crime involving the sexual abuse of a minor does not relate to child pornography. (5) Therefore, officers lacked sufficient probable cause when executing the search warrant issued by the magistrate. (6)

   Likewise, in United States v. Hodson, (7) the court held that evidence of child molestation, without more, was insufficient to create probable cause for a search warrant for child pornography. (8) The court reasoned that when "probable cause [is established] for one crime (child molestation) but [the warrant is] designed ... for evidence of an entirely different crime (child pornography)" the warrant lacks probable cause. (9) Therefore, because there was no relation between the two crimes and no reasonable inference could be made to link the two for sufficient probable cause, the court held the search warrant to be defective. (10)

   The court took a different approach in United States v. Colbert, (11) however, and held there to be sufficient evidence to give officers probable cause for a search warrant. (12) In that case, the court reasoned that there is an "intuitive relationship" between the crimes of child molestation and child pornography and that it was reasonable for the court to infer that this relationship existed. (13) Therefore, the court held that evidence of child molestation alone could create probable cause for a search warrant for child pornography. (14)

   This Note will first explore the background of the Fourth Amendment and the impact of the competing interpretations of its two clauses. (15) Next, it will discuss the evolution in Fourth Amendment law from a more probable cause, search-warrant-centered analysis to the reasonableness approach used by courts today. (16) Thereafter, it will provide a brief history of both child pornography and child molestation in the law. (17) It will then outline the arguments made by the Second, Sixth, and Eight circuits in Falso, Hodson, and Colbert, respectively, and the reasoning and methodology employed in arriving at their final conclusions. (18)

   In Part III, this Note will detail why, with the reasonableness and totality-of- the-circumstances standards used by courts today in Fourth Amendment cases, the Eighth Circuit has adopted the best approach to resolving the issue of whether evidence of child molestation alone can create probable cause for a search warrant for child pornography. (19) This Note will argue that a reasonable inference can be made that links the two crimes, thus fulfilling the reasonableness requirement and giving judges probable cause to issue a search warrant for child pornography. (20) Moreover, this Note will argue that given the totality of the circumstances, a judge can take into account the dangers these crimes--child molestation and child pornography--pose to society, and therefore can issue search warrants for the benefit of society. (21) In concluding, this Note will examine potential repercussions of not allowing judges this leniency and why courts should adopt the more sound Eighth Circuit approach. (22)

2. HISTORY

   1. Brief History of the Fourth Amendment

      1. Evolution of the Fourth Amendment

         In order to understand the meaning of the Fourth Amendment today, one must appreciate the historical background of the Fourth Amendment and why the Founding Fathers decided to include it in the Bill of Rights. (23) One reason for the Amendment's inclusion might be because it embodies a quintessential American freedom that finds its roots in the colonial days when the original colonies battled ruthless British law enforcement methods. (24) Another, more concrete, reason might be to protect citizens from the complete discretionary power used by governments in issuing general warrants for searches and seizures. (25) A third reason may be to stop government actors from taking away a citizen's most important liberty interest: personal security. (26)

         Although many scholars have identified sound reasons for the inclusion of the Fourth Amendment, there remains a contentious and divisive debate over the obscure wording of the Amendment, and particularly, what it actually requires. (27) Some argue that the first clause, the "reasonableness clause," merely requires all searches and seizures to be reasonable. (28) Others, however, argue that the second clause, the "warrant clause," requires there be a warrant for every search and seizure. (29)

         Supporters of the "reasonable" requirement point to history, noting not only that government officials were held liable for unreasonable intrusions into the private lives of citizens, but also suggesting that there are parts of the U.S. constitution that outline and define constitutional reasonableness. (30) Furthermore, state constitutions prior to the passage of the Fourth Amendment contained language much like that of the Fourth Amendment; those constitutions, however, did not contain any warrant requirement at all. (31) Also, nineteenth-century precedent supports the notion that the Fourth Amendment did not require a warrant for a search and seizure. (32)

         On the other hand, supporters of the "warrant" requirement likewise look to history for support, but come to a different conclusion, stating that warrantless searches and seizures were almost unheard of when the Framers drafted the Fourth Amendment. (33) Furthermore, supporters argue that the Founders drafted the Fourth Amendment to protect against the broad, overreaching powers that Britain exerted over the colonies during the Colonial Era. (34) Moreover, supporters maintain that the second clause of the Fourth Amendment (the "warrant clause") modifies the first clause (the "reasonableness clause"). (35)

      2. Adoption of the Reasonableness Standard

         Although a debate lingers between the two sides, Fourth Amendment jurisprudence has embraced the reasonableness standard. (36) The Supreme Court began its reformation in 1914 when it decided Weeks v. United States. (37) The Weeks Court created an exclusionary rule that disallowed admission of evidence obtained during a warrantless search. (38) Through the evolution of the exclusionary rule, the Court transitioned from a textual-analysis approach to a procedural-rule approach, reading a remedy into the Fourth Amendment that does not explicitly exist in its text. (39) This shift in analysis has inadvertently limited the Fourth Amendment by reading out its warrant and probable-cause requirements. (40)

         The Court further expanded the scope of Fourth Amendment in Katz v. United States. (41) In that case, the Court held that warrantless searches without approval by a judge or magistrate are per se unreasonable. (42) This holding, however, is "subject only to a few specifically established and well-delineated exceptions." (43) Although Katz held that exceptions would allow police officers to avoid the warrant requirement, there were no standards to follow, and exceptions and justifications to the requirement began flooding the courts. (44) The mounting exceptions to the Fourth Amendment's warrant clause helped begin the eradication of the warrant requirement completely. (45) In turn, the Court replaced the warrant requirement with the reasonableness test that is still employed by courts today. (46)

         The reasonableness approached began with the decision in Terry v. Ohio. (47) In Terry, a police officer believed the defendant was armed. (48) Because of that belief, the officer patted the defendant down and seized the weapons he was carrying. (49) The Court held that an officer could "patdown" a suspect without probable cause or a search warrant if the officer had a reasonable belief that the suspect was armed and dangerous. (50) Ultimately, this decision not only relaxed the standards for probable cause by merely requiring reasonableness, but also paved the way for future cases. (51)

         The Supreme Court's shift toward the reasonableness approach is also evidenced in Camara v. Municipal Court. (52) In that case, inspectors acting without a warrant attempted to make a routine inspection of a building to ensure it complied with city housing code. (53) The defendant, however, refused the inspectors entry onto his premises and the inspectors, in turn, sought a right of entry to the building and arrested the defendant for refusing to permit a lawful inspection of his premises. (54) First, the Court held that these types of administrative searches intrude upon those interests protected by the Fourth Amendment. (55) After acknowledging the personal interests at stake, the Court relaxed the standards of obtaining an administrative warrant for administrative searches by holding probable cause exists if the inspection is based on reasonable legislative or administrative standards. (56) Ultimately, this decision had the effect of "eliminat[ing] the particularity requirement of the warrant clause." (57)

         Lastly, the Court solidified its reasonableness stance in New Jersey v. T.L.O. (58) In T.L.O., a school conducted a warrantless search of the defendant based on a suspected violation of a school rule. (59) The case analyzed the warrantless search of the defendant's purse. (60) The Court, in holding the search did not violate the defendant's Fourth Amendment rights, reasoned that in some circumstances, neither a search warrant nor probable cause are required for a search. (61) Moreover, the Court reasoned that in balancing the interests between the defendant's...