Probable Cause in a World of Pure Imagination: Why the Candyman Warrants Should Not Have Been Golden Tickets to Search
Cavanagh, Francis A., St. John's Law Review
Then if any one at all is to have the privilege of lying, the rulers of the State should be the persons; and they, in their dealings either with enemies or with their own citizens, may be allowed to lie for the public good.1
Throughout our nation's history, courts have struggled to balance the individual's right to be free from unreasonable searches and seizures against law enforcement's need to protect the community. All Americans have a fundamental right to be free from "rash and unreasonable interferences with privacy and from unfounded charges of crime,"2 yet law enforcement officials have legitimate and practical needs to discover information in connection with their efforts to investigate crime and protect the public interest.3 The Fourth Amendment to the Constitution was designed to aid the courts in striking a balance between these two conflicting interests: law enforcement must first establish probable cause before a court will issue a search warrant.4 But despite the Fourth Amendment's guidance, courts have found it difficult to strike such a balance because, in each case, the individual's right to engage in a particular activity varies, as does the nature of the crime under investigation. Not surprisingly, the concept of probable cause has been subject to a great deal of uncertainty because it must remain adaptable to all situations.5
Recently, in United States v. Martin6 and United States v. Coreas,7 the Court of Appeals for the second Circuit held that the defendants' memberships in online child pornography e-groups8 were sufficient to establish probable cause for obtaining search warrants of their computers and homes.9 This Comment critically analyzes both decisions and submits that Martin and Coreas 1) erred in finding probable cause, and 2) consequently established a precedent that seriously threatens First and Fourth Amendment protections.
These cases arose out of Operation Candyman ("Operation"), a nationwide government investigation of persons suspected of collecting and distributing child pornography over the internet.10 During the investigation, the government searched the computers and homes of numerous suspects11 and eventually arrested approximately ninety to one hundred individuals for the possession of child pornography.12 Most of the Operation's searches were conducted pursuant to warrants supported by the affidavit of FBI Special Agent Geoffrey S. Binney (the "Affidavit" or "Binney's Affidavit").13 In the Affidavit, Binney outlined the nature of five child pornography e-groups to which he subscribed during his investigation.14 The two e-groups at issue in Martin and Coreas were called Candytnan and girls12-16.15 Candyman's welcome page contained only text and stated "[t]his group is for People who love kids. You can post any type of messages you like too [sic] and any type of pics and vids you like too. P.S. IF WE ALL WORKED [sic] TOGETHER WE WILL HAVE THE BEST GROUP ON THE NET."16 In addition, the following description was given in the center of the page: "Category: Top: Adult: Image Galleries: Transgender: Members."17 The girls 12-16 welcome message indicated, even more explicitly, that the e-group was used for trading child pornography.18 Despite the differences in welcome messages, a first time user of either e-group "would have had some idea that the site provided access to child pornography."19 Other than the differences in the welcome messages, the Affidavit described both e-groups as having "many of the same features."20 Of particular importance was the Affidavit's statement that all members automatically received e-mails from the groups.21 From January 2, 2001, when Binney joined the e-groups, until the e-groups were shutdown, Binney received approximately 500 e-mails.22 Of these 500, Binney stated that approximately 300 e-mails contained files of child pornography or child erotica.23 Thus, according to the Affidavit, all members of the e-groups during this period automatically downloaded child pornography through their e-mail. …