June 30, 2021
Supreme Court
No. 2018-27-C.A.
(K2/15-791A)
(Concurrence and dissent begins on Page 19)
State :
v. :
Ralph Reisner. :
NOTICE: This opinion is subject to formal revision before
publication in the Rhode Island Reporter. Readers are requested to
notify the Opinion Analyst, Supreme Court of Rhode Island, 250
Benefit Street, Providence, Rhode Island 02903, at Telephone
(401) 222-3258 or Email: opinionanalyst@courts.ri.gov, of any
typographical or other formal errors in order that corrections may
be made before the opinion is published.
Supreme Court
No. 2018-27-C.A.
(K2/15-791A)
(Concurrence and dissent begins on Page 19)
State :
v. :
Ralph Reisner. :
Present: Suttell, C.J., Goldberg, Robinson, Lynch Prata, and Long, JJ.
OPINION
Justice Lynch Prata, for the Court. On May 24, 2017, a Kent County
Superior Court jury found the defendant, Ralph Reisner, guilty of possession of child
pornography in violation of G.L. 1956 § 11-9-1.3. 1 He was thereafter sentenced to
a suspended term of five years at the Adult Correctional Institutions, with probation.
The defendant was also ordered to meet special conditions of probation and to
register as a sex offender.
The defendant raises two issues on appeal before this Court. First, he
challenges the order denying his motion to suppress evidence that was seized from
his home, arguing that there was no probable cause to support the issuance of a
search warrant. Second, he argues that the trial justice erred in denying his motion
1
The jury found the defendant not guilty on a second count, transferring child
pornography in violation of G.L. 1956 § 11-9-1.3.
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for a mistrial, maintaining that the prosecutor’s reference during opening statements
to a portion of defendant’s statement that had been previously excluded from
evidence warranted a mistrial. For the reasons outlined in this opinion, we vacate
the judgment of the Superior Court.
Technical Background
Because cases involving the crime of possession of child pornography often
involve technical terminology, and because a basic understanding of the technology
in play is critical to an analysis of the issues before the Court in the present case, we
begin with an overview of the technical background and terminology that is pertinent
to this case.
“An Internet Protocol address (IP address) is a unique string of numbers that
all computers or mobile devices that connect to the Internet acquire.” In re Austin
B., 208 A.3d 1178, 1181 (R.I. 2019) (citing Commonwealth v. Martinez, 71 N.E.3d
105, 107 (Mass. 2017)). “IP addresses are owned by an Internet service provider
(ISP),” such as Verizon Internet Service (Verizon). Id. When someone purchases
Internet service from an ISP, the ISP “assigns a unique IP address to the subscriber
at a particular physical address.” Id. (citing Martinez, 71 N.E.3d at 107). The
subscriber’s “IP address may change, but the ISP keeps a log of which IP address is
assigned to each subscriber at any given moment in time.” Id. (citing Martinez, 71
N.E.3d at 107). “[T]he correlation between an IP address and a physical address” is
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strong, “at least when the ISP has verified its assignment of a particular IP address
to a subscriber at a specific physical address at a specific point in time.” Id. (quoting
Martinez, 71 N.E.3d at 107).
In addition, this case also concerns “peer-to-peer file-sharing network[s].” In
re Austin B., 208 A.3d at 1181. “When a person uses [those] types of file-sharing
services, it is akin to ‘leaving one’s documents in a box marked free on a busy city
street.’” Id. (emphasis added) (quoting Clifford Fishman & Anne McKenna,
Wiretapping and Eavesdropping § 23:25 at 88 (2016)). “[T]o use a peer-to-peer
network, an individual must download software for the program.” Id. People use
peer-to-peer networks for a variety of reasons, including downloading music and
videos, and to share computing resources. “Peer-to-peer networks use hash values
to verify the content of electronic files that are available for copying.” Id. Hash
values, which are often referred to as “‘electronic fingerprints[,]’ * * * consist of a
‘string of numbers that, for all practical purposes, uniquely identifies a digital file’
and will change any time a file is altered.” Id. (quoting Martinez, 71 N.E.3d at 108
n.1). Law enforcement and other entities have over time “identified and confirmed
that certain hash values contain child pornography.” Id.
Facts and Travel
Turning to the facts of this case, in June 2015, Detective Lieutenant Stephen
Riccitelli of the North Smithfield Police Department, who is also a member of the
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Rhode Island State Police (RISP) Internet Crimes Against Children Task Force
(ICAC), was monitoring peer-to-peer file-sharing networks for child pornography
when files suspected to be child pornography were downloaded from IP address
100.10.41.6. Detective Brian Macera, a ten-year veteran of the RISP, viewed the
downloaded files and concluded that the files contained child pornography, as
defined in § 11-9-1.3.
According to the affidavit attached to the search warrant application, Det.
Macera then conducted a search of the American Registry of Internet Numbers and
determined that IP address 100.10.41.6 was owned by Verizon. Verizon was served
with a subpoena, directing the company to provide the name, address, and telephone
number of the subscriber of IP address 100.10.41.6 to the RISP. Verizon identified
the subscriber of IP address 100.10.41.6 as Heather Reisner, defendant’s wife, and
the location of the computer connected with that IP address as 15 Harding Street,
West Warwick, Rhode Island.
Detective Macera, armed with that information, applied for a search warrant
for 15 Harding Street, West Warwick, and requested that a member of the RISP
Computer Crimes Unit conduct a forensic review of seized evidence related to the
possession and transfer of child pornography.
The affidavit that Det. Macera used to support his application for the search
warrant generally described peer-to-peer networks, explained what hash values are,
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and stated that “over time numerous files have been identified through a specific
hash value as confirmed child pornography.” In detailing what had occurred during
the investigation to that time, the affidavit linked files suspected to contain child
pornography to the IP address associated with defendant’s home address and stated
that “files containing suspected child pornography were downloaded.”
Detective Macera explained that he viewed the downloaded files and
described one of the files as follows:
“File Name: Jamtien.mpeg
“Date/Time: June 15, 2015 at 11:42 PM (UTC)
“HASH Value:
2aad88e182cc9c66ccd7ba15aa186ecfac39f370
“Description: This video file depicts a prepubescent
female on the beach removing her bathing suit exposing
her genitals.”
Significantly, despite having explained that specific hash values have been used to
identify numerous files containing child pornography, Det. Macera did not specify
that the “HASH Value: 2aad88e182cc9c66ccd7ba15aa186ecfac39f370” matched a
hash value for confirmed child pornography or otherwise explain that the hash value
at issue had been used to identify Jamtien.mpeg as a file containing child
pornography. Detective Macera did not describe or provide any further information
for any of the other files that he viewed, and he also did not attach a still image from
the video.
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A District Court judge approved the search warrant, and soon thereafter, on
August 3, 2015, a Monday morning at 6:15 a.m., the RISP executed the search
warrant. During the course of the search, RISP seized defendant’s computer—a Mac
Pro desktop. A police forensic examination of defendant’s computer revealed seven
videos of child pornography. The defendant waived his Miranda rights and was
interviewed by the police.
During the interview, defendant was questioned about using BitTorrent2
software, child pornography, access to Wi-Fi in his apartment, and downloading
files. After he was informed about the computer forensics analysis that was to be
performed on his computer, defendant said, “Well I need to talk to a lawyer.”
Nevertheless, RISP did not terminate the interview.3
Based on the evidence discovered by the forensic investigation of defendant’s
computer, an arrest warrant was issued for defendant. The defendant was
subsequently charged by information with one count of possession of a computer
hard drive that contained videos of child pornography on or about August 5, 2015,
in violation of § 11-9-1.3(b)(2), and one count of knowingly mailing, transporting,
delivering, or transferring videos of child pornography, in violation of
2
BitTorrent is a “peer-to-peer file-sharing network.” United States v. Cates, 897
F.3d 349, 352 (1st Cir. 2018).
3
During a pretrial hearing on defendant’s motion in limine, the trial justice ruled that
any statements made after defendant invoked his right to counsel were inadmissible
at trial.
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§ 11-9-1.3(b)(1). Before the trial commenced in the Superior Court, defendant
moved to suppress the evidence that had been seized during the search, alleging that
Det. Macera’s affidavit was insufficient to establish probable cause under the Fourth
Amendment and state grounds.
After hearing arguments from the state and from defendant, the trial justice
issued a written decision denying defendant’s motion to suppress. The trial justice
ruled that the search warrant’s accompanying affidavit contained an adequate
description of child pornography, albeit “barely[,]” to support a probable cause
determination under the standard set out in United States v. Brunette, 256 F.3d 14
(1st Cir. 2001). Specifically, the trial justice reasoned that Det. Macera described
the setting (a beach), the female’s pose (undressing), the female’s attire (bathing
suit), and the focal point of the video (a prepubescent female and her genitals). The
trial justice distinguished this case from Brunette, in that the affidavit here did not
“merely ‘parrot’ the statutory definition of child pornography.” See Brunette, 256
F.3d at 17.
The trial justice also concluded that the affidavit established probable cause,
determining that the image described in the Jamtien.mpeg video file was “likely
‘graphic’”—applying the statutory definition of graphic4—and “likely lascivious”—
4
According to § 11-9-1.3(c)(8), “‘[g]raphic,’ when used with respect to a depiction
of sexually explicit conduct, means that a viewer can observe any part of the genitals
or pubic area of any depicted person or animal during any part of the time that the
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before applying the factors set forth in United States v. Dost, 636 F. Supp. 828 (S.D.
Cal. 1986), aff’d sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987).5
Applying the Dost factors, the trial justice concluded that (1) because a prepubescent
female removing her bathing suit in a public place was an unnatural pose for
someone the child’s age, an inference could be made that the female in the video
was nude or partially nude; (2) the action of undressing in front of a camera
suggested a degree of sexual coyness or willingness to engage in sexual activity; and
sexually explicit conduct is being depicted.” Section 11-9-1.3(c)(6)’s definition of
“[s]exually explicit conduct” includes the “[g]raphic or lascivious exhibition of the
genitals or pubic area of any person[.]”
5
In United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), the court articulated
six factors for evaluating whether a photograph depicted a lascivious exhibition of
the genitals. These factors were used as “guideposts” by the First Circuit in United
States v. Amirault, 173 F.3d 28 (1st Cir. 1999), where the court ruled that an image
of a nude minor female standing in a hole in the sand at the beach was not lascivious
under the federal pornography statute. Amirault, 173 F.3d at 31-32, 35. The Dost
factors include:
“1) whether the focal point of the visual depiction is on the
child’s genitalia or pubic area;
“2) whether the setting of the visual depiction is sexually
suggestive, i.e., in a place or pose generally associated
with sexual activity;
“3) whether the child is depicted in an unnatural pose, or
in inappropriate attire, considering the age of the child;
“4) whether the child is fully or partially clothed, or nude;
“5) whether the visual depiction suggests sexual coyness
or a willingness to engage in sexual activity;
“6) whether the visual depiction is intended or designed to
elicit a sexual response in the viewer.” Dost, 636 F. Supp.
at 832.
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(3) the act of making the video was likely intended to elicit a sexual response from
the viewer. As a result, the trial justice was satisfied that the affidavit and description
were sufficient to provide “trustworthy information to demonstrate a likelihood that
child pornography images or videos were in 15 Harding Street.” Accordingly, the
trial justice denied the motion to suppress.6
Prior to the start of trial, several other pretrial motions were heard. Notably,
defendant stipulated that the videos found, including Jamtien.mpeg, contained child
pornography. As noted supra, the trial justice also precluded the state from
admitting the portion of defendant’s recorded interrogation that took place after he
invoked his right to counsel.
After trial, the jury found defendant guilty of possession of child pornography
and not guilty of transferring child pornography. The defendant filed a motion for a
new trial, raising the same arguments that he now presses on appeal; the trial justice
denied the motion. The defendant was then sentenced to five years’ incarceration,
suspended, with probation. The defendant was also required to endure additional
conditions, including participating in a sex-offender program, registering as a sex
offender, abiding by special conditions of probation, and paying assessments. The
defendant timely appealed.
6
Despite finding that the affidavit “barely” established probable cause, the trial
justice did not undertake an analysis of the “good faith” exception articulated in
United States v. Leon, 468 U.S. 897 (1984).
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I
Search Warrant
The first issue on appeal is whether the trial justice erred when he denied
defendant’s motion to suppress the search warrant, finding that Det. Macera’s
affidavit provided sufficient information for a probable cause determination. Before
this Court on appeal, defendant presses the same arguments that he raised in the
Superior Court. Citing Brunette, defendant argues that the affidavit prepared by Det.
Macera was conclusory in nature and that it failed to provide a detailed description
of the images. See Brunette, 256 F.3d at 18, 19 (finding the description in an affidavit
insufficient to provide probable cause due to its use of conclusory statutory
language). He further argues that the District Court judge who issued the warrant,
similar to the issuing judge in Brunette, did not make an independent determination
that the images were child pornography. See id. at 18. To demonstrate that Det.
Macera’s description was inadequate, defendant points out that, in reviewing the
motion to suppress, the trial justice held that the description lacked information on
two of the six Dost factors. The defendant also maintains that a depiction of a minor
who is merely nude does not constitute child pornography. See, e.g., Osborne v.
Ohio, 495 U.S. 103, 112 (1990) (noting that “depictions of nudity, without more,
constitute protected expression” even when depicting a minor). Finally, defendant
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argues that the good faith exception should not apply based on article 1, section 6 of
the Rhode Island Constitution and G.L. 1956 § 9-19-25.
Standard of Review
When this Court reviews “a trial justice’s decision granting or denying a
motion to suppress,” we defer “to the factual findings of the trial justice, applying a
clearly erroneous standard.” State v. Cosme, 57 A.3d 295, 299 (R.I. 2012) (quoting
State v. Storey, 8 A.3d 454, 459-60 (R.I. 2010)). Our review of the determination of
whether probable cause existed is de novo. Id. This Court accords “great deference
to the trial justice’s probable-cause determination, ‘so long as there is a showing of
a substantial basis from which to discern probable cause.’” Id. (quoting Storey, 8
A.3d at 460).
“The Fourth Amendment to the United States Constitution and article 1,
section 6, of the Rhode Island Constitution, prohibit the issuance of a search warrant
absent a showing of probable cause.” Cosme, 57 A.3d at 301 (quoting State v. Byrne,
972 A.2d 633, 637 (R.I. 2009)). “Probable cause must be ascertained within the four
corners of the affidavit prepared in support of the warrant * * * and based on the
totality of the circumstances presented in the affidavit.” Id. (quoting Byrne, 972 A.2d
at 638). “In making this determination, the issuing magistrate must review the
affidavit and, based on the facts contained therein, together with the reasonable
inferences that may be drawn from those facts, make a practical, commonsense
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determination as to whether there is a fair probability that contraband or evidence of
a crime will be found in a particular place.” Id. at 301-02 (quoting Byrne, 972 A.2d
at 638). This Court has held that “the approach to the probable cause question should
be pragmatic and flexible.” Byrne, 972 A.2d at 639 (quoting State v. Verrecchia, 880
A.2d 89, 94 (R.I. 2005)). Therefore, “our ultimate inquiry asks whether the
magistrate made a ‘practical, common-sense determination’ that ‘there is a fair
probability that contraband or evidence of a crime will be found in a particular
place.’” Storey, 8 A.3d at 461 (quoting Byrne, 972 A.2d at 638).
Discussion
This Court has not before addressed the precise issue of a probable cause
determination in a case of purported child pornography. However, we do not write
upon a blank slate, because this issue has been addressed in the federal courts,
including by the First Circuit Court of Appeals in Brunette.
In Brunette, a customs agent applied for a search warrant after an investigator
discovered that the defendant had downloaded thirty-three images of child
pornography. Brunette, 256 F.3d at 15-16. The affidavit submitted to support the
application for a search warrant did not append any of the allegedly pornographic
images, nor did it contain a detailed description of the images. Id. at 16. Rather, the
affidavit merely asserted that the images “met the statutory definition of child
pornography” and described the images as “photographs of a pre-pubescent boy
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lasciviously displaying his genitals.” Id. at 15, 16. The magistrate who issued the
warrant did so without viewing those images or the other allegedly pornographic
images that were eventually discovered on the defendant’s computer. Id. at 15.
Subsequently, the defendant moved to suppress the images contained on the
computers that had been seized pursuant to the warrant, arguing that the affidavit
had a “nondescript legal conclusion” and that there was not sufficient probable cause
to support the issuance of the search warrant because the issuing magistrate had not
viewed the images to determine that they were child pornography. Id. at 15, 16.
In its review of the grant of the search warrant, the First Circuit held that,
“[a]lthough the affidavit included sufficient indicia to link the images to defendant,
i.e., that the postings originated from defendant’s * * * Internet access account, it
did not specify with any detail the basis for believing that those images were
pornographic.” Brunette, 256 F.3d at 17. Further, the First Circuit noted that “[t]he
evidence on the nature of the images consisted solely of [the customs agent’s] legal
conclusion parroting the statutory definition.” Id. The Brunette court concluded that:
“[a] court reviewing a warrant application to search for
pornographic materials ordinarily is unable to perform the
evaluation required by the Fourth Amendment if the
application is based on allegedly pornographic images
neither appended to, nor described in, the supporting
affidavit. * * * If copies cannot feasibly be obtained, a
detailed description, including the focal point and setting
of the image, and pose and attire of the subject, will
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generally suffice to allow a magistrate judge to make a
considered judgment.” Id. at 20. 7
The affidavit in the case at bar, like the affidavit in Brunette, included
sufficient indicia to link the images to defendant, but it did not contain a still image
from the video at issue, nor did it attach the video itself. Furthermore, the
description—“This video file depicts a prepubescent female on the beach removing
her bathing suit exposing her genitals”—fails to provide any more basis to determine
whether the video was child pornography than the description in Brunette.8 See
Brunette, 256 F.3d at 17; see also United States v. Battershell, 457 F.3d 1048, 1051
(9th Cir. 2006) (finding that a “terse description” of an image as “a young female
7
Although the court in United States v. Brunette, 256 F.3d 14 (1st Cir. 2001), found
that the search warrant was not supported by probable cause, the First Circuit did
ultimately uphold the warrant based upon the “good faith” exception articulated in
United States v. Leon, 468 U.S. 897 (1984). Brunette, 256 F.3d at 19-20.
8
Child pornography is defined in § 11-9-1.3(c)(1) as:
“any visual depiction, including any photograph, film,
video, picture, or computer or computer-generated image
or picture, whether made or produced by electronic,
mechanical, or other means, of sexually explicit conduct
where:
“(i) The production of such visual depiction
involves the use of a minor engaging in sexually
explicit conduct;
“(ii) Such visual depiction is a digital image,
computer image, or computer-generated image of a
minor engaging in sexually explicit conduct; or
“(iii) Such visual depiction has been created,
adapted, or modified to display an identifiable
minor engaging in sexually explicit conduct.”
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(8-10 YOA) naked in a bathtub” was insufficient for a probable cause determination
“absent an accompanying photograph[,]” because the description not only failed to
state whether the child’s genitals or pubic area was visible but also gave the issuing
magistrate no basis, other than the agent’s “inherently subjective analysis[,]” to
determine whether the nudity depicted was lascivious).
Here, Det. Macera’s affidavit describes a display of nudity in a public place,
but it does not indicate that there was a lascivious exhibition of the depicted child’s
genitals or pubic area. Moreover, the affidavit does not aver that the genitals or
pubic area were the focal points, and the described setting (a beach) was not
particularly sexually suggestive. There is also no indication that the image suggested
sexual coyness, a willingness to engage in sexual activity, or that the image was
“intended or designed to elicit a sexual response in the viewer.” Dost, 636 F. Supp.
at 832. Furthermore, the title “Jamtien.mpeg” is not on its face suggestive of child
pornography. Cf. United States v. Miknevich, 638 F.3d 178, 184 (3d Cir. 2011)
(upholding the validity of a warrant affidavit based on a single file name because
“[t]he unmistakable inference arising from [the] highly descriptive file name is that
the file’s contents include material pertaining to the sexual exploitation of children”).
In our opinion, Det. Macera’s assertion in his affidavit that the images and
videos were child pornography based on his assessment does not rescue the
affidavit’s short description of Jamtien.mpeg. Indeed, the First Circuit rejected a
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similar argument in Brunette, making it clear that the agent’s legal conclusion that
the boy in the photographs was “lasciviously” displaying his genitals was not enough
to establish probable cause. Brunette, 256 F.3d at 15, 16. “[P]robable cause to issue
a warrant must be assessed by a judicial officer, not an investigating agent.” Id. at
18 (citing Illinois v. Gates, 462 U.S. 213, 239 (1983)). The First Circuit noted in
Brunette that the “inherent subjectivity” involved in determining whether an image
is child pornography “is precisely why the determination should be made by a judge,
not an agent.” Id.; see United States v. Pavulak, 700 F.3d 651, 662 (3d Cir. 2012)
(“Magistrates—not affiants or officers—bear the responsibility of determining
whether there exists a fair probability that the sought-after images meet the statutory
and constitutional definitions of child pornography.”).
Moreover, the trial justice’s analysis of the affidavit’s twelve-word
description of the video further demonstrates the affidavit’s insufficiency. In
determining whether there was probable cause, the trial justice struggled to apply
the Dost factors to the one-sentence description, acknowledging that the description
provided no basis from which he could determine the focal point of the video or
whether the setting was sexually suggestive. The trial justice was unable, based on
the affidavit, to evaluate two out of the six Dost factors—factors key to identifying
whether the video was child pornography or mere nudity. There is nothing
manifestly lewd, sexual, or lascivious about a young girl removing her bathing suit
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on a beach. After reviewing the affidavit, we are drawn to the conclusion that only
one Dost factor is demonstrated: nudity. The other factors are simply not present.
Although the description need not tick off each and every Dost factor, and indeed
the First Circuit in Amirault held that the “so-called ‘Dost factors’ are not
exhaustive,” United States v. Amirault, 173 F.3d 28, 31 (1st Cir. 1999), the law is
clear that nudity alone, even of a child, is not enough to support a determination of
probable cause. See, e.g., United States v. Doyle, 650 F.3d 460, 473 (4th Cir. 2011)
(holding that the search warrant affidavit did not supply probable cause where it
described photographs as merely “depicting ‘nude children’”).
Additionally, as set forth supra, the affidavit at issue in the case at bar did not
allege that “HASH Value: 2aad88e182cc9c66ccd7ba15aa186ecfac39f370[,]” the
hash value for the Jamtien.mpeg file, matched a hash value for confirmed child
pornography. While the affidavit explained that “over time numerous files have
been identified through a specific hash value as confirmed child pornography[,]” it
did not specify whether Jamtien.mpeg was one of those files. Such a link within the
affidavit may have eased the burden on the trial justice, obviating his attempt to
painstakingly apply the Dost factors to a twelve-word description of mere nudity. 9
9
During oral argument, the state explained that only those hash values that are
identified as child pornography are flagged by the task force computers. However,
that was not made clear in the warrant affidavit.
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When an image or video involves sexual acts, a short description may be
sufficient to establish probable cause. But when, as here, an image of a nude child
is at issue, the question is far more difficult. Subtle differences may often separate
a crime from a constitutionally protected image, such as an innocuous family photo
or a work of art. In those situations, a judge must have the tools, via either the image
itself, a thorough description, or a direct connection between the specific hash value
and files containing child pornography, to independently assess whether there is
probable cause to believe that an image of a child is pornographic. Neither the
District Court judge who issued the warrant nor the trial justice had the benefit of
those tools here. We therefore conclude that there was no substantial basis for
determining that probable cause existed in this case based upon the language of the
affidavit.
Good Faith
The state alternatively urges this Court, in a single paragraph in its brief, that,
if we were to conclude that the warrant was not supported by probable cause, we
should nonetheless adopt the “good faith” exception to the Fourth Amendment as
articulated in United States v. Leon, 468 U.S. 897 (1984). This Court will not
embrace a monumental change to our jurisprudence absent both a factual predicate
and a meaningful discussion of the issue; therefore, we decline to address the good
faith exception at this time. See In re Austin B., 208 A.3d at 1193.
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II
Opening Statement
Because we are vacating the conviction based on the lack of probable cause,
we need not, and shall not, reach any other issue raised by the defendant on appeal.
Conclusion
For the reasons set forth in this opinion, we vacate the judgment of the
Superior Court. The record may be returned to the Superior Court.
Justice Goldberg, concurring in part and dissenting in part. I concur in
the majority’s decision to decline to reach the good-faith exception to the
exclusionary rule in the context of this case, but for different grounds than those set
forth in the majority opinion. Because I am convinced that there was an adequate
showing of probable cause to support the issuance of the search warrant and am
mindful that we have yet to venture into the realm of the good-faith exception, this
decision should be left for another day when, in my opinion, we are confronted with
a warrant that is not supported by probable cause. Because I unequivocally conclude
that the trial justice properly denied the defendant’s motion to suppress, I dissent.
This conviction should not be vacated.
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Unfortunately, the majority’s after-the-fact scrutiny of the affidavit is based
on a case, relied upon by defendant, that is neither constitutionally mandated nor
accepted Fourth Amendment jurisprudence. Its probative force has been diminished
by subsequent First Circuit decisions. The majority opinion frames the issue before
us as “the precise issue of a probable cause determination in a case of purported
child pornography” and, citing United States v. Brunette, 256 F.3d 14 (1st Cir.
2001), declares that the Court is not writing upon a blank slate. (Emphasis added.)
The majority’s reliance on Brunette is misplaced.
I am unaware of any case in which this Court ever has vacated a criminal
conviction after concluding that the search warrant was issued without probable
cause. This case should not be the first. Furthermore, since Brunette was decided,
I know of no case in the nation in which a conviction was vacated on the basis of
Brunette, a fact that was acknowledged at oral argument. Although federal courts
have the safe harbor of the good-faith exception to the exclusionary rule as
articulated in United States v. Leon, 468 U.S. 897 (1984), I am hard-pressed to find
a single case in which Brunette controlled and the evidence was suppressed. What
is quite clear is that the requirements set forth in Brunette are not of constitutional
dimension and should in no way be engrafted onto this state’s Fourth Amendment
jurisprudence.
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In Brunette, the United States Court of Appeals for the First Circuit adopted
the factors set forth in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986), aff’d
sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), as the governing
standard for a probable-cause determination for suspected child pornography.
Brunette, 256 F.3d at 17-18. These factors were established in the context of the
sufficiency of the evidence in a sentencing enhancement decision and motion for a
judgment of acquittal—not a probable cause determination—and were adopted by
the First Circuit as the legal standard for evaluating “whether a photograph depicts
a lascivious exhibition of genitals[.]” Id.; see United States v. Amirault, 173 F.3d 28,
30, 31 (1st Cir. 1999).
In Brunette, the First Circuit engrafted the Dost factors onto a search warrant’s
probable cause requirement when the suspected images of child pornography are not
available for the issuing magistrate to evaluate and the affiant fails to set forth a
description of the images based on a series of detailed, factual components, “to allow
a magistrate judge to make a considered judgment.” Brunette, 256 F.3d at 18, 19,
20. This is not the law. See, e.g., United States v. Shelton, 418 F. App’x 514, 518
(7th Cir. 2011) (noting that “an affidavit is not defective simply because it could
have been better” and concluding that an affidavit presented probable cause where
the description of the alleged image was “a 12-year-old girl undressing to a state of
complete nudity in a bedroom”); United States v. Grant, 490 F.3d 627, 632 (8th Cir.
- 21 -
2007), cert. denied, 552 U.S. 1281 (2008) (upholding a search warrant for child
pornography based on an officer’s conclusion that the images described to him by a
computer repairman met the statutory definition of child pornography); United
States v. Battershell, 457 F.3d 1048, 1053 (9th Cir. 2006) (concluding that “failing
to include a photograph in a warrant application is not fatal to establishing probable
cause” because “a judge may properly issue a warrant based on factual descriptions
of an image”); State v. McNutt, 463 P.3d 563, 569 (Or. Ct. App. 2020), review
denied, 473 P.3d 57 (Or. 2020) (observing that “an experienced officer’s assessment
that an image or video depicts sexually explicit conduct * * * involving a child” in
violation of Oregon statute is an objective conclusion that is “entitled to greater
weight in a magistrate’s determination of probable cause”).
Indeed, the Third Circuit has cautioned against the exacting standard of
Brunette, observing that
“a reasonable officer should be forgiven for not
meticulously hewing to Brunette * * * because the
probable cause determination takes into account the
totality of the circumstances[;] the amount of information
in the affidavit might well have led a reasonable officer to
believe that his [or her] failure to attach photos or provide
lurid descriptions would be made up for by the remaining
details [contained in the affidavit].” United States v.
Dennington, 399 F. App’x 720, 726 (3d Cir. 2010).
Importantly, since its holding in Brunette, the First Circuit has observed that “courts
should generally not approve a warrant to search for child pornography based solely
- 22 -
on a police officer’s assertion that images he has seen but has not shown to the
magistrate constitute such pornography.” United States v. Burdulis, 753 F.3d 255,
260 (1st Cir. 2014) (emphasis added) (discussing Brunette). That is not the case
before us. The District Court judge in the case at bar was presented with additional
reliable information that pointed to defendant’s possession of child pornography.
Furthermore, Brunette’s “general rule” is now considered a “best practice” in the
First Circuit and is not controlling Fourth Amendment criteria.
In United States v. Syphers, 426 F.3d 461 (1st Cir. 2005), the First Circuit, in
dicta, characterized its holding in Brunette as a “best practice[.]” Syphers, 426 F.3d
at 467; see United States v. LaFortune, 520 F.3d 50, 56 n.8 (1st Cir. 2008)
(characterizing the “best practice” language of Syphers as dicta). This dicta was
later held to be a controlling “best practice” in LaFortune, in which the court
declared it to be “[t]he best practice * * * for an applicant seeking a warrant based
on images of alleged child pornography [is] to append the images or provide a
sufficiently specific description of the images[.]” LaFortune, 520 F.3d at 58 (quoting
Syphers, 426 F.3d at 467). This “best practice” of course is not applicable upon the
states, is not constitutionally mandated, and has not been universally recognized. It
should not be engrafted onto our jurisprudence.
Rather, the controlling criteria involve a totality of the circumstances test:
“The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the
- 23 -
circumstances set forth in the affidavit before him,
including the ‘veracity’ and ‘basis of knowledge’ of
persons supplying hearsay information, there is a fair
probability that contraband or evidence of a crime will be
found in a particular place.” Illinois v. Gates, 462 U.S.
213, 238 (1983).
This standard clearly establishes that “[p]robable cause does not require either
certainty or an unusually high degree of assurance. All that is needed is a reasonable
likelihood that incriminating evidence will turn up during a proposed search.”
United States v. Morel, 922 F.3d 1, 11 (1st Cir. 2019), cert. denied, 140 S. Ct. 283
(2019) (quoting United States v. Clark, 685 F.3d 72, 76 (1st Cir. 2012)).
Critically, in the recent case of Morel, the First Circuit acknowledged its prior
“best practice” admonitions in LaFortune and Syphers, that “‘[a]n officer who fails
to follow this approach without good reason faces a substantial risk that the
application for a warrant will not establish probable cause.” Morel, 922 F.3d at 11
(emphasis added) (quoting Syphers, 426 F.3d at 467). However, faced with a
warrant that did not comply with Brunette or its progeny, the court in Morel
appropriately observed that “risk * * * is not a certainty” because a judicial finding
of no probable cause is always governed by Fourth Amendment standards. Id.
Significantly, Morel went on to declare that this “‘best practice’ judicial gloss cannot
be imposed onto state courts.” Id. Its teachings are useful.
- 24 -
In Morel, the defendant was convicted of violating 18 U.S.C. § 2252(a)(4)(B),
which concerns images showing minors engaging in sexually explicit conduct,
defined as “any person under the age of eighteen years * * * [engaged in] actual or
simulated * * * lascivious exhibition of the genitals or pubic area of any person[.]”
18 U.S.C. § 2256; Morel, 922 F.3d at 3. A police detective in Derry, New
Hampshire, applied for a search warrant and neither appended the images he
obtained nor provided a description of the ages of the girls in the videos beyond his
belief that some of the girls depicted were, or appeared to be, under ten years old
and some under thirteen years old. Morel, 922 F.3d at 4, 5. “The affidavit did not
describe the girls * * * as ‘pubescent’ or ‘prepubescent[,]’” id. at 5, which
description, relating to specific stages of development of a child’s sexual organs, is
deemed a significant factor in the probable cause analysis1 However, the district
court judge had been satisfied that the affiant’s description of the children in the
images as under ten or thirteen years of age was synonymous with a “prepubescent”
or “early pubescent” child, based on the officer’s training and experience, including
his participation in the Internet Crimes Against Children Task Force in New
1
Although the district court, in passing on the validity of the warrant in United States
v. Morel, 922 F.3d 1 (1st Cir. 2019), indicated that the affidavit “described the nudity
and the sexual or sexually suggestive positioning of the girls depicted in each of the
six suspected child pornography images[,]” such was not set forth in the opinion or
the decision of the trial judge. Morel, 922 F.3d at 5.
- 25 -
Hampshire.2 United States v. Morel, 2017 WL 1376363, at *9 (D.N.H. Apr. 14,
2017). The Morel court cited, with approval, the district court’s conclusion that the
investigating detective’s training and experience supported the reliability of his
conclusion. Morel, 922 F.3d at 12.
Although the issue in Morel was the age of the children in the images, rather
than the nature of the poses, it is significant that the First Circuit pointed to the
affiant’s training and experience to support its probable cause conclusion. Morel,
922 F.3d at 11, 12 (“The affidavit stated that Detective Richard had been a police
officer for over two decades, had received specialized training in child abuse and
exploitation cases, had been on the Internet Crimes Against Children Task Force for
nearly a decade, and had assisted in the execution of about fifty search warrants
related to possession and distribution of child pornography. That training and
experience likely informed his belief that the girls depicted in the images were under
age eighteen.”).
Accordingly, I am firmly convinced that Brunette’s holding, now deemed a
“best practice judicial gloss[,]” should not be accorded new life in Rhode Island or
engrafted upon the search warrant requirements in this state, which has a long
2
The trial judge noted that “[d]escribing children as ‘prepubescent’ or ‘early
pubescent’ can establish probable cause that the images in question depict child
pornography.” United States v. Morel, 2017 WL 1376363, at *9 (D.N.H. Apr. 14,
2017).
- 26 -
tradition of careful adherence to Fourth Amendment jurisprudence as developed by
the United States Supreme Court. I know of no state court that has done so. I also
express my concern that the majority opinion fails to set forth with specificity just
what is required to establish probable cause in investigations of suspected child
pornography in future warrant applications. Are we adopting Brunette? What is the
standard for probable cause for a warrant seeking child pornography?
To support its reliance on Brunette, the majority also relies on the “[s]ubtle
differences” that may separate an image of a nude child that constitutes child
pornography from a constitutionally protected image. However, the United States
Supreme Court has never held that an application for a warrant for the seizure of
obscene films or books “must be evaluated under a ‘higher’ standard of probable
cause than that used in other areas of Fourth Amendment law.” New York v. P.J.
Video, Inc., 475 U.S. 866, 874 (1986). Rather, “an application for a warrant
authorizing the seizure of materials presumptively protected by the First Amendment
should be evaluated under the same standard of probable cause used to review
warrant applications generally[,]” and the determination of probable cause by a
neutral magistrate is sufficient, without “any suggestion that the standard of probable
cause in the First Amendment area is different than in other contexts[.]” Id. at 875
(emphasis added). Child pornography is not protected by the First Amendment. New
York v. Ferber, 458 U.S. 747, 763, 764 (1982).
- 27 -
In P.J. Video, Inc., the respondents argued that a warrant authorizing the
seizure of blockbuster films such as “Debbie Does Dallas” “was not supported by
probable cause because the issuing justice had not personally viewed the movies.”
P.J. Video, Inc., 475 U.S. at 870 n.2, 871. The Supreme Court, citing the landmark
holding of Chief Justice Marshall in Locke v. United States, 11 U.S. 339 (1813),
rejected this contention: “The term ‘probable cause,’ means less than evidence which
would justify condemnation. It imports a seizure made under circumstances which
warrant suspicion.” Id. at 876 (brackets and deletions omitted) (quoting Gates, 462
U.S. at 235 (quoting Locke, 11 U.S. at 348)). The court went on to recognize that
“[f]inely tuned standards such as proof beyond a reasonable doubt or by a
preponderance of the evidence, useful in formal trials, have no place in the
magistrate’s decision.” Id. (quoting Gates, 462 U.S. at 235).
The Supreme Court looked to the Gates standard for the sufficiency of the
affidavits and addressed the task of the issuing magistrate as “simply to make a
practical, common-sense decision whether, given all the circumstances set forth in
the affidavit before him, * * * there is a fair probability that contraband or evidence
of a crime will be found in a particular place.” P.J. Video, Inc., 475 U.S. at 876
(emphasis added) (quoting Gates, 462 U.S. at 238). Notably, and determinatively
in my view, is the oft-cited principle that “the duty of a reviewing court is simply to
ensure that the magistrate had a substantial basis for concluding that probable cause
- 28 -
existed.” Id. (brackets, deletion, and internal citation omitted) (quoting Gates, 462
U.S. at 238-39).
Indeed, reviewing courts must bear in mind that an affidavit supporting the
issuance of a search warrant is presumptively valid. United States v. McLellan, 792
F.3d 200, 208 (1st Cir. 2015). Because the warrant in this case sought evidence of
child pornography, an area that is much less subjective, complex, and exacting than
obscene books and films, the experienced police detective’s opinion that the Jamtien
video met the statutory definition of child pornography was not a mere conclusory
statement. It was based on actual observation, in the course of a comprehensive
police investigation, by trained and experienced police officers who, critically, were
alerted by a nationally recognized network and who viewed the downloaded files
“and confirmed their content to be consistent with the definition of child
pornography as defined in” G.L. 1956 § 11-9-1.3. The officer also described the
Jamtien video as “depict[ing] a prepubescent female on the beach removing her
bathing suit exposing her genitals.”
Because courts are instructed to assess whether there is a fair probability that
contraband or evidence of a crime will be found in the place to be searched when
First Amendment concerns may be present in the same manner as any other search
warrant, P.J. Video, Inc., 475 U.S. at 875, I disagree with the majority’s reliance on
Brunette’s mandate, which includes a laundry list of factors to be set forth in the
- 29 -
affidavit, to be checked off by the magistrate and verified by reviewing courts when
copies of the alleged images are not included in the search warrant application:
“A court reviewing a warrant application to search for
pornographic materials ordinarily is unable to perform the
evaluation required by the Fourth Amendment if the
application is based on allegedly pornographic images
neither appended to, nor described in, the supporting
affidavit. * * * If copies cannot feasibly be obtained, a
detailed description, including the focal point and setting
of the image, and pose and attire of the subject, will
generally suffice to allow a magistrate judge to make a
considered judgment.” Brunette, 256 F.3d at 20.
In the case at bar, the search warrant was supported by probable cause.
Although the majority looks to extrajurisdictional authority and strikes the warrant
down, I reach the opposite conclusion by relying on our own jurisprudence.
It is well settled that a search warrant cannot issue absent a showing of
probable cause. State v. Tejeda, 171 A.3d 983, 996 (R.I. 2017). “We review a trial
justice’s decision of whether probable cause existed de novo.” Id. at 997. However,
we have recognized that “this Court’s ‘after-the-fact scrutiny of the sufficiency of
an affidavit should not take the form of de novo review.’” State v. King, 693 A.2d
658, 661 (R.I. 1997) (deletion omitted) (quoting Gates, 462 U.S. at 236). Rather,
“we ‘accord great deference to the issuing magistrate’s probable-cause
determination, so long as there is a showing of a substantial basis from which to
- 30 -
discern probable cause.’” Tejeda, 171 A.3d at 996 (quoting State v. Storey, 8 A.3d
454, 460 (R.I. 2010)).
“[T]he approach to the probable cause question should be pragmatic and
flexible.” State v. Verrecchia, 880 A.2d 89, 94 (R.I. 2005). In determining whether
probable cause exists,
“the issuing magistrate must review the affidavit and,
based on the facts contained therein, together with the
reasonable inferences that may be drawn from those facts,
make a practical, commonsense determination as to
whether ‘there is a fair probability that contraband or
evidence of a crime will be found in a particular place.’”
State v. Byrne, 972 A.2d 633, 638 (R.I. 2009) (quoting
Gates, 462 U.S. at 238).
An affidavit offered in support of a warrant should be “interpreted in a realistic
fashion that is consistent with common sense, and not subject to rigorous and
hypertechnical scrutiny.” Byrne, 972 A.2d at 638 (citing Gates, 462 U.S. at 235-39);
see Verrecchia, 880 A.2d at 94 (noting that “an affidavit offered in support of
a search warrant should not be judged as if it had been drafted by one schooled in
the niceties of the law”) (quoting State v. Nerney, 110 R.I. 364, 365, 292 A.2d 882,
883 (1972)). Critically, this analysis rests on probabilities. “Probable cause exists
when the affidavit demonstrates in some trustworthy fashion the likelihood that an
offense has been or is being committed.” Verrecchia, 880 A.2d at 94 (quoting United
States v. Santana, 342 F.3d 60, 65 (1st Cir. 2003)). The quantum of proof
appropriate in ordinary judicial proceedings is inapplicable to the decision to issue a
- 31 -
warrant. State v. Ricci, 472 A.2d 291, 296 (R.I. 1984) (“[T]here is a significant
difference between the quantum of proof necessary to establish guilt and the degree
of proof necessary to establish the probable cause which justifies the issuance of a
search warrant.” (quoting Nerney, 110 R.I. at 365, 292 A.2d at 883)).
The defendant in this case stipulated that the seized videos constituted child
pornography: the precise contraband that was sought in the search warrant
application. What is equally clear is that the warrant affidavit was not based solely
on the visual description by the affiant. Critically, factors relating to the standard of
proof, such as those set forth in Dost and examined by the majority, are committed
to a factfinder and not the issuing magistrate, who is concerned with probabilities,
not trial proof.
The General Assembly has defined “sexually explicit conduct” as including
the “[l]ascivious exhibition of the genitals or pubic area of any person[.]” Section
11-9-1.3(c)(5)(v). Although Det. Macera’s description may not (and need not) have
complied with the Dost factors, the detective’s averment that he personally viewed
the images and concluded that they met the definition of child pornography as
defined in the general laws, coupled with the detailed facts from the investigation,
certainly leads to a probability that a prepubescent girl removing her bathing suit on
the beach exposing her genitals amounts to a lascivious exhibition of the genitalia of
a child, affording the issuing magistrate with a substantial basis to issue the warrant.
- 32 -
One need not be a pediatrician to envision the pose a prepubescent girl would assume
to expose her undeveloped genitals to the camera. Of course, this is not all that the
District Court judge had before him.
The affidavit set forth that on July 29, 2015, Det. Macera—a seasoned Rhode
Island State Police detective assigned to the Computer Crimes Unit and the Rhode
Island Internet Crimes Against Children (ICAC) Task Force—requested a search
warrant for 15 Harding Street, West Warwick, Rhode Island, in order to search and
seize electronic devices, records, documents, materials, and passwords “related to
the acquisition, possession and transfer of child pornography.”
In support of the application, Det. Macera submitted a sworn affidavit
describing his “training and experience in the investigation of computer-related
crimes and offenses related to the exploitation of children over the Internet[,]”
including his involvement with the ICAC Task Force which “supports a national
network of multi-agency, multi-jurisdictional task forces engaged in investigations,
forensic examinations, and prosecutions related to Internet crimes against
children * * *.”
Detective Macera described the operation of peer-to-peer networks and stated
that he knew “from training and experience that individuals seeking to obtain and
share child pornographic movies, images and materials frequently use file-sharing
programs.” When these file-sharing programs “are installed on a computer they
- 33 -
allow the user, known as a peer, to search the network for pictures, movies, and other
digital files by entering a text-based search term.” He further averred that when a
member of a peer-to-peer network requests a particular electronic file, the member
is provided with a list of available electronic files that may be copied from the peer-
to-peer network to the requesting member’s computer. And that is exactly what the
detectives discovered in this case.
The affidavit also stated that peer-to-peer networks assign hash values to
electronic files, and that the affiant knew through training and experience, “that over
time numerous files have been identified through a specific hash value as confirmed
child pornography.” (Emphasis added.) Indeed, the affiant attested to the magistrate
that this identification of confirmed child pornography has been developed “through
the combined knowledge of law enforcement members throughout the United States,
members of the National Center for Missing and Exploited Children (NCMEC), as
well as members of the Internet Crimes Against Children (ICAC) Task Forces across
the country.” Although the affidavit did not specifically relate the Jamtien video
hash value to the comprehensive network developed by law enforcement, a fair
inference may be drawn, based on the report from another detective, that a device at
the IP address at the address at which defendant lived was actually on a peer-to-peer
file-sharing network and “files containing suspected child pornography were
downloaded.” (Emphasis added.) This is a perfectly reasonable and credible
- 34 -
inference. See Verrecchia, 880 A.2d at 94 (“The magistrate is permitted to draw
reasonable inferences from the affidavit presented to him or her.”). Because a
warrant application does not stand on the evaluation of the images set forth by the
affiant alone, United States v. Smith, 795 F.2d 841, 849 (9th Cir. 1986), “a balanced
assessment of the relative weights of all the various indicia of reliability” is required.
Gates, 462 U.S. at 234.
Detective Macera then recounted the events of June 2015, when he was
advised by another member of the ICAC task force of an alert that an IP address
linked to defendant “was on a peer-to-peer file-sharing network” and “that a direct
connection was made to a device” that was connected to that IP address “and files
containing suspected child pornography were downloaded.” (Emphasis added.)
Detective Macera testified at the suppression hearing that the software used by the
ICAC task force only looks “for [a] known hash value that contains child
pornography * * * because it knows * * * it was previously identified as containing
child pornography.” He went on to testify that “the computer crimes unit received
a download from the file sharing software BitTorrent that had a hash value * * * that
was identified as containing child pornography[,]” and the IP address was linked to
defendant.3
3
Although this averment was not explicitly set forth in the affidavit, the fact that Lt.
Riccitelli was alerted by the network about the download permits an inference to be
drawn that defendant obtained child pornography.
- 35 -
Detective Macera swore in his affidavit that he had viewed the downloaded
files himself “and confirmed their content to be consistent with the definition of child
pornography” as defined in § 11-9-1.3. (Emphasis added.) A description of the file
named “Jamtien.mpeg” was included in the affidavit. The file’s hash value was
listed, and the video file was described as “depict[ing] a prepubescent female on the
beach removing her bathing suit exposing her genitals.” A District Court judge
approved the search warrant. The trial justice, in a comprehensive written decision,
denied defendant’s motion to suppress.
The majority opinion, incorrectly I submit, focuses its attention on what is not
in the affidavit, rather than conducting its de novo review under a totality of the
circumstances approach, based on the facts set forth in the affidavit, together with
all inferences that may be reasonably drawn from those facts, and “make a practical,
commonsense determination as to whether ‘there is a fair probability that contraband
or evidence of a crime will be found in a particular place.’” Byrne, 972 A.2d at 638
(quoting Gates, 462 U.S. at 238).
In the recent case of In re Austin B., 208 A.3d 1178 (R.I. 2019), this Court
reviewed a challenge to a search warrant for child pornography on the basis of lack
of probable cause. 4 In re Austin B., 208 A.3d at 1185.
4
The precise issue presented to us in In re Austin B., 208 A.3d 1178 (R.I. 2019), was
not whether probable cause existed to believe that the alleged photographs were, in
fact, child pornography, but rather whether misinformation relative to the name and
- 36 -
In upholding the warrant, we conceded that while a detective may “have been
more thorough in his [or her] investigation, the law does not require him [or her] to
do so.” In re Austin B., 208 A.3d at 1190. We noted with approval the following
procedure:
“Upon being informed that the [defendant’s] IP address *
* * was suspected of involvement with child pornography,
[the Detective] reviewed the images associated with that
IP address and confirmed that the images were consistent
with the definition of child pornography in the statute,
based on his training and experience.” Id. (emphasis
added).
I am of the opinion that a trained police officer, after a careful investigation, is
qualified to express an opinion—based on his or her training and experience—that
an image he or she has in fact examined constitutes child pornography and that
opinion, coupled with other facts obtained during the investigation, is sufficient to
establish, in a trustworthy fashion, that an offense has been committed. See
Verrecchia, 880 A.2d at 94. I am not alone in this belief. A judge issuing a warrant
authorizing a search for suspected child pornography is entitled to credit the
conclusory opinion of a police detective with training and experience in these
matters. See State v. DiMeco, 15 A.3d 1204, 1209-10 (Conn. App. Ct. 2011), cert.
denied, 565 U.S. 1015 (2011) (“[B]ecause of his training and experience in matters
physical address in the warrant rendered the warrant invalid as not supported by
probable cause. In re Austin B., 208 A.3d at 1185. The search warrant in that case
was issued six months before the warrant in the present case. See id. at 1183.
- 37 -
concerning pedophiles and sexual predators of children, the trial court was entitled
to credit [the officer’s] opinion when making its determination of probable cause.”).
This Court has long recognized the preference for the warrant requirement,
such that “in doubtful cases, the reviewing court should give preference to the
validity of the warrant.” Byrne, 972 A.2d at 639 (brackets omitted) (quoting United
States v. Peacock, 761 F.2d 1313, 1315 (9th Cir. 1985)). Mindful of this
constitutional prerequisite, I am satisfied that the IP address registered to the
computer at defendant’s address, its connection to a known peer-to-peer network,
the hash value of the images, and the affiant’s conclusion about the video were
sufficient to demonstrate in some trustworthy fashion a fair likelihood that child
pornography was at defendant’s home. Moreover, the description of the video—“a
prepubescent female on the beach removing her bathing suit exposing her
genitals”—is sufficient to demonstrate a substantial basis to find probable cause that
child pornography would be found at the residence.
While the majority claims that “[t]here is nothing manifestly lewd, sexual, or
lascivious about a young girl removing her bathing suit on a beach[,]” we do not
substitute our judgment for that of the magistrate. See Byrne, 972 A.2d at 638. This
also overlooks the averment that the child is “exposing her genitals.” To “expose” is
“[t]o make visible.” The American Heritage Dictionary of the English Language 625
(5th ed. 2011). As discussed supra, I see no way in which a prepubescent female
- 38 -
could “expose” her undeveloped genitalia in a casual pose, without specific, sexually
explicit positioning. The District Court judge was entitled to draw this inference.
See Byrne, 972 A.2d at 638.
Accordingly, the search warrant in this case was supported by probable cause
based on the sworn affidavit of a trained detective who conducted a thorough
investigation; personally examined the video and determined that it was consistent
with the statutory definition of child pornography; and described the images for the
issuing judge. There is a substantial basis to determine that defendant’s computer
probably contained contraband. That is all that the Fourth Amendment requires. I
see no reason to abandon our established jurisprudence in favor of Brunette, which
has little Fourth Amendment traction.
Finally, what are the probable cause criteria for search warrants seeking
suspected child pornography and why have we changed it?
For the reasons set forth in this opinion, I respectfully dissent in this case. I
would uphold the trial justice’s decision denying the motion to suppress and affirm
the judgment of conviction. Because I conclude that the warrant was sufficient to
establish probable cause, I concur in the majority’s decision declining to venture into
Leon’s turbulent waters.
- 39 -
STATE OF RHODE ISLAND
SUPREME COURT – CLERK’S OFFICE
Licht Judicial Complex
250 Benefit Street
Providence, RI 02903
OPINION COVER SHEET
Title of Case State v. Ralph Reisner.
No. 2018-27-C.A.
Case Number
(K2/15-701A)
Date Opinion Filed June 30, 2021
Suttell, C.J., Goldberg, Robinson, Lynch Prata, and
Justices
Long, JJ.
Written By Associate Justice Erin Lynch Prata
Source of Appeal Kent County Superior Court
Judicial Officer from Lower Court Associate Justice Brian P. Stern
For State:
Mariana E. Ormonde
Department of the Attorney General
Attorney(s) on Appeal
For Defendant:
Kara J. Maguire
Office of the Public Defender
SU-CMS-02A (revised June 2020)
State v. Ralph Resiner
Combined Opinion