Appeals Court: An IP Address And Some Alternative Facts Are A 'Reasonable' Basis For A Search

The Eighth Circuit Appeals Court has handed down a judicial shrug [PDF] in a case where police decided an IP address was pretty much all they needed to search eleven occupants and their devices for child porn. Qualified immunity is upheld, despite the fact the officers searched rooms they possibly had no Fourth Amendment permission to search and despite the fact that no child porn was discovered anywhere on the multiple devices they seized.

The detectives had a warrant to search a single-family dwelling. This residence had been split into unofficial apartments. Despite there being some clear delineation between the multiple private spaces, the police decided the original warrant covered every separate "residence" inside the residence.

[Detective Jessie] Smith--accompanied by Minot Police Sergeant Dave Goodman and Detective Krista Thompson, plus six other law enforcement officials--arrived at the residence on the morning of May 6, 2014, to execute the search warrant. Once inside, law enforcement officials interviewed the persons present and learned that the residence had as many as eleven occupants, some of whom sublet basement bedrooms, and all of whom could access the internet service wirelessly. No child pornography was found during the search of the entire residence, including a basement bedroom that Doe and another person rented.

The court says there's nothing wrong with the law enforcement effort, even though it would seem more proper for additional warrants to be sought, rather than simply relying on a warrant whose sworn facts were no longer factual. It's not as though the police didn't have that option. Any concerns about evidence vanishing could have been mitigated using the same steps depicted here:

Doe was not present, but police were told that he was at work, and that he had a laptop computer which he carried in a blue bag. Smith, Goodman, and Thompson, who had been given a description of Doe's vehicle, proceeded to Doe's place of employment. The officers spotted Doe's car in the parking lot, and saw a blue laptop bag on the front seat. Inside the premises, the officers met privately with Doe in a conference room, telling him about their investigation and asking for permission to search his vehicle. When Doe denied permission, the officers advised him that they would seek a warrant to search his vehicle and the laptop, and that he could not remove his vehicle while the warrant was being obtained. Doe was not told that he could not leave the premises. Smith then prepared another search warrant application, supplementing his original affidavit with the results of the initial search of the residence, information learned from interviews of the occupants, and his observation of the laptop bag in Doe's vehicle; and a second search warrant was issued for Doe's vehicle and for any computers and electronic devices located in it.

The decision to approach Doe at work had consequences. But only for Doe.

Goodman, Thompson, and Smith then executed the warrant and previewed the laptop computer on site. Once again, they found no child pornography. During this time, a period of about two and one-half hours, Doe was denied access to his vehicle. He was not arrested or charged with any crime. He nevertheless lost his job, and was forced to move out of his rented room.

Doe's life took a hit, thanks to officers working with little more than an IP address -- one shared by at least eleven residents -- and a warrant that should have been invalid the moment it was served. But the court insists moving ahead with a warrant that describes a living situation completely different than the one actually observed during warrant service is still a "reasonable" search that doesn't clearly violate established rights.

As the dissent points out, federal precedent says otherwise. When officers are faced with facts that contradict their sworn assertions, they're supposed to limit their searches to the confines of the warrant they obtained. Failure to do so is to perform searches not backed by probable cause.

Federal courts have consistently held that if officers obtain a warrant to search a building containing a single residential unit, and discover or reasonably should discover during the execution of the warrant that the building actually contains multiple residential units, they are required to limit their search to the unit or units for which they have specific probable cause" Here, once the officers arrived at the building named in the warrant, they realized it had been subdivided into separate units, with as many as eleven tenants and subtenants. All eleven could access the building's wireless internet, and the officers had no information leading them to any particular unit, tenant, or device. Therefore, the chance of finding child pornography in any single residential unit-including Doe's rented room-was substantially less than the "fair probability" required for probable cause, and the execution of the warrant was objectively unreasonable.

Likewise, the warrant obtained to search Doe's car and laptop was not supported by probable cause.

The only evidence suggesting that Doe might be the person who downloaded the child pornography was that he was one of at least eleven people who could access his building's wireless internet, and that he had a laptop computer in his vehicle. This evidence falls far short of establishing probable cause, and "no reasonably competent officer would have concluded that a warrant should issue."

By upholding the officers' qualified immunity, the court is basically stating it's fine to handle child porn investigations with the same sort of detailed rigor deployed by copyright trolls. Search warrants are apparently being handed out to law enforcement that contain little more than a subscriber's name and a Google Maps photo of the building at the address provided by the ISP. It's speculative policing, requiring almost nothing in the way of actual detective work. But this is very serious stuff. Child porn investigations should be handled much more carefully, considering the severity of the crime, the vulnerability of the victims, and the incredible collateral damage done to innocent people wrongly accused of this crime. Instead, it appears officers are rushing forward with way more enthusiasm than supporting facts.

The evidence here -- rather, the complete lack of it -- shows how dangerous it can be when assumptions are made about IP addresses and those who have access to them. Sure, it's not dangerous for the cops -- they have qualified immunity and tons of judicial slack on their side. But for those on the receiving end, it can cost them their livelihood, even when they're innocent.