USA v. Nicholas Needham

Filing

FILED OPINION (MARSHA S. BERZON, RICHARD C. TALLMAN and MILAN D. SMITH, JR.) AFFIRMED. Judge: MSB Concurring, Judge: RCT Concurring, Judge: MDS Authoring. FILED AND ENTERED JUDGMENT. [8667531]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 12-50097

v.

D.C. No.
8:11-cr-00042CJC-1

NICHOLAS JAMES NEEDHAM,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted
April 8, 2013—Pasadena, California
Filed June 14, 2013
Before: Marsha S. Berzon, Richard C. Tallman,
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Concurrence by Judge Berzon;
Concurrence by Judge Tallman

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UNITED STATES V. NEEDHAM
SUMMARY*

Criminal Law
The panel affirmed the district court’s denial of a motion
to suppress evidence of child pornography found on the
defendant’s iPod during a search of his residence.
The panel held that the “good faith” exception to the
exclusionary rule announced in United States v. Leon, 468
U.S. 897 (1984), applies where the search was executed in
objectively reasonable reliance on a search warrant predicated
on the bare inference that those who molest children are
likely to possess child pornography. The panel explained that
this outcome is controlled by this court’s grant of qualified
immunity in an appeal arising from a civil suit in Dougherty
v. City of Covina, 654 F.3d 892 (9th Cir. 2011).
Judge Berzon concurred only because the outcome is
dictated by Dougherty. She would hold that the evidence
must be suppressed because the warrant was so lacking in
probable cause as to render the officers’ reliance upon it
objectively unreasonable.
Judge Tallman concurred because the panel’s decision is
compelled by existing precedent. If the slate were clean, he
would also agree with the issuing magistrate that under the
totality of the circumstances, probable cause existed to search
the defendant’s home for child pornography.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Matthew B. Larsen (argued), Deputy Federal Public Defender
and Sean K. Kennedy, Federal Public Defender, Office of the
Federal Public Defender, Los Angeles, California, for
Appellant.
Douglas F. McCormick (argued), Dennise D. Willett, and
Anne C. Gannon, Assistant United States Attorneys; and
André Birotte Jr., United States Attorney, Santa Ana,
California, for Appellee.

OPINION
M. SMITH, Circuit Judge:
An Orange Police Department (OPD) officer obtained a
warrant to search Nicholas James Needham’s residence for
evidence of a child molestation. The officer also obtained
permission in the warrant to search Needham’s home for
child pornography. Among other things, the warrant affidavit
explained that in the requesting officer’s opinion, individuals
who have a sexual interest in children often possess child
pornography. A magistrate signed the warrant in reliance on
the warrant affidavit, and, while conducting the search, the
OPD found images and videos of child pornography on an
iPod at Needham’s residence.
Needham moved to suppress the evidence of child
pornography seized during the OPD’s search on the ground
that the OPD lacked probable cause to suspect that Needham
possessed child pornography. The district court denied
Needham’s motion, concluding that the “good faith”

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exception to the exclusionary rule announced by the Supreme
Court in United States v. Leon, 468 U.S. 897 (1984), applied
because the officers’ reliance on the warrant was objectively
reasonable.
Needham appeals the district court’s denial of his motion
to suppress. We affirm the decision of the district court.
BACKGROUND
In June 2010, a mother reported to the OPD that her fiveyear-old son had been molested in the restroom at a local
mall. Specifically, she indicated that after her son emerged
from the bathroom, he told her that a man had touched him.
He motioned toward his groin area, which his mother took to
mean that the man had touched his penis. The mother walked
back toward the restroom with her son, where she saw, sitting
on a bench near the restrooms, a man whom she had seen exit
the bathroom just prior to her son’s doing so. When the
mother asked her son if the man sitting on the bench was the
man who had touched him, he confirmed that it was. He later
stated that the man had touched his exposed penis with his
fingers “soft” and “quickly.”
The mother described the man to the OPD as being a
light-skinned white male in his late twenties or early thirties
who had been wearing beige pants and a collared, longsleeved shirt that was white with blue stripes. She also stated
that he had been holding a cup bearing the Jamba Juice logo
when she saw him exit the restroom.
OPD Youth Services Bureau Detective Leslie Franco
investigated the incident. Detective Franco contacted the
manager of the Jamba Juice location at that mall, and

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reviewed the store’s surveillance footage. She observed a
man who matched the mother’s description of the suspect,
and ascertained from the store’s transaction records that he
had given his name as “Nick” when he purchased his drink.
She also obtained the last four digits of the American Express
credit card he had used to purchase his beverage, as well as
the transaction’s authorization number. The boy’s mother
also viewed the surveillance footage, and she identified
“Nick” as the man she had seen exiting the restroom, and
whom her son later identified.
Detective Franco contacted American Express and
ascertained, pursuant to a search warrant, that the American
Express card “Nick” used at Jamba Juice belonged to
Needham. She then discovered, among other things, that
Needham resided in Orange, and that he was a registered sex
offender in the State of California. Records also indicated
that Needham had been arrested in May 2000, when he was
16 years old, for allegedly violating California Penal Code
§ 288(a), which prohibits lewd or lascivious acts with a child
under the age of 14. He had ultimately been charged with
violating California Penal Code § 288(a); California Penal
Code § 288.5, which criminalizes continuous sexual abuse of
a child under the age of 14; and California Penal Code
§ 311.2, which prohibits the possession of obscene matter.
Detective Franco sought a warrant to search Needham’s
home, person, and automobile. Her sworn “Statement of
Probable Cause” included all of the facts described above,
including Needham’s criminal history and registration as a
sex offender, though the warrant did not indicate for what
offense Needham was ultimately convicted. The affidavit
also included the following paragraph:

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Based upon my training and experience,
NEEDHAM’S previous criminal history, and
my discussions with other law enforcement
professionals, I believe that NEEDHAM has
an unnatural sexual interest in children. I have
learned the following characteristics are found
to exist and be true in cases involving persons
who molest children, buy, produce, sell, or
trade child pornography and who are involved
with child prostitutes. They receive sexual
gratification and satisfaction from actual
physical contact with minors, communications
with minors and from fantasy involving the
use of pictures, photographs or electronic
media and writing on or about sexual activity
with minors. These people collect sexually
explicit material of children consisting of
photographs, magazines, motion pictures,
video tapes, DVD’s, electronic media, books
and slides which they use for their own sexual
gratification and fantasy. Such persons rarely,
if ever, dispose of their sexually explicit
materials, especially when they have taken the
photographs or made the video involved, as
these materials are treated as prized
possessions.

Detective Franco did not elaborate how she had learned the
“characteristics” of those with a sexual interest in children,
although she stated in the affidavit that she had been assigned
to the Youth Services Bureau in December 2009, and in that
capacity specialized in the investigation of crimes against
children. Detective Franco also stated in the affidavit that
prior to that assignment, she had worked as a patrol officer,

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bike team officer, crime scene investigator, property crimes
detective, and school resource officer, as well as in an
undercover capacity in numerous narcotics and vice
operations.
The warrant application included a list of items sought by
the OPD. The warrant authorized a search for any clothing
matching the description of what Needham was wearing at
the mall the day that he was suspected of molesting the boy.
It also authorized a search for the American Express card that
“Nick” had used at Jamba Juice. But the substantial majority
of the approximately three-and-a-half page description of
items to be searched was devoted to describing an exhaustive
search through all of Needham’s paper documents and
electronic and digital storage devices for child pornography,
or evidence of possession or distribution of child
pornography. Other than Detective Franco’s opinions
regarding the predilections of individuals who are sexually
interested in children, the warrant did not provide any other
reason to believe that Needham possessed child pornography
in his home. Nor did the affidavit include any facts
suggesting that Needham possessed or used a computer or
any other electronic devices, whether for illicit purposes or
otherwise.
A judge of the Orange County Superior Court signed the
search warrant, and the OPD executed a search of Needham’s
residence. Officers seized various computers and electronic
devices, among which was an Apple iPod. The iPod was later
discovered to contain images and videos of child
pornography. Needham was arrested and indicted for
possessing child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). He moved to suppress the items taken
pursuant to the OPD’s search of his apartment, including the

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iPod. Needham argued that the warrant was not supported by
probable cause that he possessed child pornography, and that
the lack of probable cause was so glaring that the Leon
exception did not apply.
The district court denied Needham’s motion to suppress.
Without commenting on whether the warrant was supported
by probable cause, the court ruled that the OPD executed the
search in good faith reliance on the warrant, and that the Leon
exception to the exclusionary rule applied.
Reserving his right to appeal the district court’s denial
of his suppression motion, Needham pled guilty to possession
of child pornography in violation of 18 U.S.C.
§ 2252A(a)(5)(B). The district court imposed a sentence of
108 months’ imprisonment. Needham now appeals his
conviction and again argues that the evidence of his
possession of child pornography should be suppressed. We
have jurisdiction pursuant to 28 U.S.C. § 1291.
STANDARD OF REVIEW
A district court’s denial of a motion to suppress evidence,
including the application of the “good faith” exception to the
exclusionary rule, is reviewed de novo. See United States v.
Krupa, 658 F.3d 1174, 1177 (9th Cir. 2011); United States v.
Michaelian, 803 F.2d 1042, 1046 (9th Cir. 1986).
DISCUSSION
Needham first contends that the warrant affidavit did not
contain facts sufficient to find probable cause to search his
residence for child pornography. In particular, he argues that
Detective Franco’s assertions that Needham “has an unnatural

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sexual interest in children” and that “[t]hese people collect
sexually explicit material of children” are inadequate to
support probable cause that Needham possessed child
pornography in his home. He also contends that the district
court erred in applying Leon’s good faith exception to the
exclusionary rule in this case.
“Probable cause exists when ‘there is a fair probability
that contraband or evidence of a crime will be found in a
particular place.’” United States v. Grubbs, 547 U.S. 90, 95
(2006) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)).
Even if a warrant is unsupported by probable cause, however,
suppression of the evidence found in a search pursuant to that
warrant is not justified if “the officers’ reliance on the
magistrate’s determination of probable cause was objectively
reasonable . . . .” Leon, 468 U.S. at 926. Suppression,
therefore, “remains an appropriate remedy when a warrant is
based on an affidavit so lacking in indicia of probable cause
as to render official belief in its existence entirely
unreasonable.” United States v. Grant, 682 F.3d 827, 836
(9th Cir. 2012) (internal quotes and citation omitted).
While the Leon doctrine pertains to suppression hearings
in criminal proceedings, “the same standard of objective
reasonableness that [the United States Supreme Court]
applied in the context of a suppression hearing in Leon
defines the qualified immunity accorded an officer who
obtained or relied on an allegedly invalid warrant.”
Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 n.1 (2012)
(internal quotes and citations omitted). The Supreme Court
has explained that “[o]nly where the warrant application is so
lacking in indicia of probable cause as to render official belief
in its existence unreasonable will the shield of immunity be
lost.” Malley v. Briggs, 475 U.S. 335, 344–45 (1986)

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(internal citation omitted). It therefore follows that if an
officer is granted qualified immunity in a civil suit for relying
on a warrant alleged to be lacking probable cause, then
reliance on the existence of probable cause in that warrant
must also have been objectively reasonable under the Leon
doctrine.
The outcome of this aspect of Needham’s appeal is
controlled by our grant of qualified immunity in a similar
case decided after the search of Needham’s residence. In
Dougherty v. City of Covina, 654 F.3d 892 (9th Cir. 2011),
we addressed the issue of whether an officer’s opinion that
individuals who molest children are likely to possess child
pornography creates probable cause to search a suspected
child molester’s home for child pornography. Dougherty was
a civil suit filed under 42 U.S.C. § 1983. Dougherty, an
elementary school teacher, alleged that the police had
searched his computer and electronic media without probable
cause, in violation of the Fourth Amendment. Dougherty,
654 F.3d at 896–97. There, the requesting officer’s affidavit
recounted allegations that the individual had inappropriately
touched students at the elementary school where he taught.
Id. at 896. With respect to the search for child pornography,
the affidavit stated only that “based upon [the officer’s]
training and experience . . . subjects involved in this type of
criminal behavior have in their possession child pornography
. . . .’” Id. We held that
a search warrant issued to search a suspect’s
home computer and electronic equipment
lacks probable cause when (1) no evidence of
possession or attempt to possess child
pornography was submitted to the issuing
magistrate; (2) no evidence was submitted to

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the magistrate regarding computer or
electronics use by the suspect; and (3) the
only evidence linking the suspect’s attempted
child molestation to possession of child
pornography is the experience of the
requesting police officer, with no further
explanation.
Id. at 895. We also concluded, however, that “[t]he law in
this circuit had not been clearly established regarding whether
allegations of sexual misconduct or molestation at a place of
work provide probable cause to search a residence for child
pornography in the absence of an explanation tying together
the two crimes.” Id. at 900. We therefore held that, although
the warrant lacked probable cause, the searching officers
were entitled to qualified immunity. Id.
Like the officers in Dougherty, the OPD officers in this
case relied on a warrant predicated on the bare inference that
those who molest children are likely to possess child
pornography. Since the date we decided Dougherty, it is
clear in this circuit that such an inference, alone, does not
establish probable cause to search a suspected child
molester’s home for child pornography. But because the
standard for granting qualified immunity is the same as the
standard of objective reasonableness under Leon, we cannot
consistently grant qualified immunity to officers in
Dougherty, who relied on the warrant in that case, and find
that reliance on a similar type of warrant in this case (which
was decided before Dougherty) was objectively unreasonable.

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We thus conclude that the search in this case was executed in
objectively reasonable reliance on the search warrant.1
Needham also argues that after United States v. Weber,
923 F.2d 1338 (9th Cir. 1990), no officer could have
reasonably believed that the warrant to search Needham’s
apartment was supported by probable cause.2 We already
addressed this issue in Dougherty. There, we examined the
facts of Weber, and concluded that “[i]f probable cause did
not exist in Weber, it cannot exist here.” Dougherty,
654 F.3d at 898. Nevertheless, we concluded that at that
point in time, the law was not settled concerning “the
question of whether evidence of child molestation, alone,
creates probable cause for a search warrant for child
pornography.”3 See id. at 899. Because we found sufficient
1

We therefore need not discuss to what extent, if any, Needham’s
previous criminal charges and registration as a sex offender would support
probable cause under the warrant.
2

Weber involved an affidavit stating that the officer “could expect
certain things to be at [the] houses” of child molesters and other deviants
who commit sex crimes. 923 F.2d at 1345. However, unlike the affidavit
in this case, “there was not a whit of evidence in the affidavit indicating
that Weber was a ‘child molester.’” Id. Instead, Weber was suspected of
having received an advertisement for child pornography two years prior
to the search. Id. at 1340.
3

At the time of the search of Needham’s home in July 2010, two circuits
had held that evidence of child molestation does not by itself amount to
probable cause that the suspect possesses child pornography. See United
States v. Falso, 544 F.3d 110, 122 (2d Cir. 2008) (“Although offenses
relating to child pornography and sexual abuse of minors both involve the
exploitation of children, that does not compel, or even suggest, [a]
correlation . . . .”); United States v. Hodson, 543 F.3d 286, 293 (6th Cir.
2008) (“[I]t was unreasonable for the officer executing the warrant in this
case to believe that probable cause existed to search Hodson’s computers

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ambiguity in our precedent, despite Weber, to confer a grant
of qualified immunity in Dougherty in 2011, we are
foreclosed from holding that Weber rendered good faith
reliance on the warrant in this case impossible in 2010.
Needham’s remaining arguments are unavailing. The
warrant was not an impermissible “general warrant” as
Needham claims;4 rather, the warrant specified what the
officers sought (child pornography or evidence of its receipt
and/or distribution), and where it was believed they would
find it (in Needham’s paper documents or electronic media).
Similarly, Needham claims that Detective Franco’s affidavit
did not contain a required, explicit statement that she believed
Needham possessed child pornography. But the Supreme
Court has declared that “the courts should not invalidate [a]
warrant by interpreting the affidavit in a hypertechnical,
rather than a commonsense, manner.” United States v.
for child pornography based solely on a suspicion . . . that Hodson had
engaged in child molestation.”). The Eighth Circuit, however, had
concluded to the contrary. See United States v. Colbert, 605 F.3d 573,
578 (8th Cir. 2010) (“[T]o the extent that Hodson and Falso suggest that
evidence of a defendant’s tendency to sexually abuse or exploit children
is irrelevant to the probable cause analysis, we respectfully disagree.”).
Since the OPD’s search of Needham’s residence, two more circuits
have rejected the inference in question. See Virgin Islands v. John,
654 F.3d 412, 419 (3d Cir. 2011) (“[T]hose allegations [of sex crimes
against minors] are not sufficient to establish—or even to hint
at—probable cause as to the wholly separate crime of possessing child
pornography.”); United States v. Doyle, 650 F.3d 460, 472 (4th Cir. 2011)
(“[E]vidence of child molestation alone does not support probable cause
to search for child pornography.”).
4

A general warrant is one that authorizes a “general, exploratory
rummaging in a person’s belongings.” See Coolidge v. New Hampshire,
403 U.S. 443, 467 (1971).

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Ventresca, 380 U.S. 102, 109 (1965). Detective Franco’s
affidavit claimed that Needham had an unnatural sexual
interest in children, and that people with an unnatural interest
in children often possess child pornography. While the
conclusion of Detective Franco’s syllogism was not explicitly
stated, a commonsense reading of the affidavit, and the fact
that the warrant sought child pornography, indicate that
Detective Franco suspected that Needham possessed child
pornography.
AFFIRMED.

BERZON, Circuit Judge, concurring:
I concur only because the outcome of this case is dictated
by Dougherty v. City of Covina, 654 F.3d 892 (9th Cir. 2011).
Were we deciding this case on a blank slate, I would hold that
the evidence on the iPod must be suppressed, because the
search warrant was so lacking in probable cause as to render
the officers’ reliance upon it objectively unreasonable. See
United States v. Leon, 468 U.S. 897, 923 (1984). The warrant
was based upon the very type of “rambling boilerplate” that,
under the law of this circuit, has been disentitled to the Leon
exception to the exclusionary rule for over 20 years. See
United States v. Weber, 923 F.2d 1338, 1345 (9th Cir. 1991).
I.
Needham was suspected of molesting a child in a mall
restroom. On that basis, a state judge issued a warrant
authorizing police to search Needham’s house for clothing
matching the description of his outfit the day of the alleged

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molestation; the credit card that Needham used to purchase a
juice at the mall that day; and mail, bills, or other
documentation establishing Needham’s identity as the
resident of the house. So far, so good.
But the warrant did not stop there. In an additional twoand-a-half pages, the warrant went on to authorize police to
conduct a sweeping search for any and all computers,
electronic devices, data storage devices, and papers at
Needham’s house, and then to search within those devices
and papers for child pornography.
If the warrant’s supporting affidavit had included any
information linking Needham to child pornography, then
perhaps such a sweeping search would have been supported
by probable cause. But the affidavit included no such
information. It referenced a decade-old criminal charge for
“possession of obscene matter,” but did not indicate whether
Needham was ever convicted of that charge, what type of
“obscene matter” was at issue, or how that charge, incurred
when Needham was a teenager, made it not just possible but
probable that Needham would have child pornography in his
house over ten years later.
It was not Needham’s criminal history, in any event, that
the affidavit principally relied upon to justify the search for
child pornography, but the following word cloud of vague
associations between Needham and various other types of
illicit actors:
Based upon my training and experience,
NEEDHAM’S previous criminal history, and
my discussions with other law enforcement
professionals, I believe that NEEDHAM has

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an unnatural sexual interest in children. I have
learned the following characteristics are found
to exist and be true in cases involving persons
who molest children, buy, produce, sell or
trade child pornography and who are involved
with child prostitutes. They receive sexual
gratification and satisfaction from actual
physical contact with minors, communications
with minors and from fantasy involving the
use of pictures, photographs or electronic
media and writing on or about sexual activity
with minors. These people collect sexually
explicit material of children consisting of
photographs, magazines, motion pictures,
video tapes, DVD’s, electronic media, books
and slides which they use for their own sexual
gratification and fantasy. Such persons rarely,
if ever, dispose of their sexually explicit
materials, especially when they have taken the
photographs or made the video involved, as
these materials are treated as prized
possessions.

As an initial matter, it is hard to tell what exactly this
paragraph is saying or what, if anything, most of the words
that it contains have to do with the investigation of Needham.
There is certainly nothing in the affidavit suggesting that
Needham was suspected of “produc[ing] . . . child
pornography” or “involved with child prostitutes,” so those
phrases are simply extraneous. And who exactly are the
nefarious “[t]hese people” to whom the paragraph refers? The
antecedent of that phrase is far from clear. Nor does the
paragraph — or anything else in the affidavit — affirmatively
state that the affiant has probable cause to believe that

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Needham, in particular, has downloaded child pornography
onto computers in his home.
Nevertheless, attempting to give this affidavit the
“common-sense” reading that we must, see Illinois v. Gates,
462 U.S. 213, 238–39 (1983), we can assume that the
investigating officer meant, in this paragraph, to be saying
something like: “I have learned that [some? many? most?]
people who molest children also collect child pornography.
Needham is suspected of molesting a child. Therefore,
Needham probably has child pornography in his house.”
The problem, so far as the Fourth Amendment is
concerned, is that the affidavit nowhere states the officer’s
basis for the asserted connection between child molestation
and possession of child pornography. Nor does the affidavit
explain why the asserted connection is so strong as to make
it not just possible or likely but probable that Needham would
possess child pornography at his house at the time of the
search. The affidavit states only that the detective “[has]
learned the following characteristics are found to exist and be
true.” But how did she learn this? From reviewing empirical
studies?1 From her own past investigations? From discussing
past investigations with her colleagues? From watching “Law
and Order: SVU”? Even the prosecutor conceded, at the
suppression hearing, that it would have been “preferable” had
the officer referenced in the affidavit specific investigations

1

As another court has noted, the empirical literature on links between
child molestation and child pornography is “mixed” and most of the
studies concern whether child pornography leads to child molestation, not
“whether child molestors are more likely to possess child pornography.”
Virgin Islands v. John, 654 F.3d 412, 423 n.2 (3d Cir. 2011) (Fuentes, J.,
dissenting).

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that she had worked on in which suspects of child molestation
were found to possess child pornography. Nor does the
affidavit give any indication that the affiant officer has any
special expertise or training in sex crimes, beyond her nine
years of general work as a police officer and approximately
seven months (at the time of the warrant) of investigating the
broad category of “crimes against children.”2
None of this is to assert with any certainty that the officer
did not have some basis for her belief about the asserted
connection. But she did not explain her basis within the four
corners of the affidavit, which is all that the district court and
we, as a reviewing court, are able to consider. It is not the
task of courts to surmise some basis for detectives after the
fact, or to throw up our hands and defer to police “common
sense” whenever they assert some link between various
distinct types of crimes.
I am mindful that police have difficult jobs. But requiring
that police provide the basis for their probable cause
determinations within the four corners of the affidavit does
not impose hypertechnical requirements on police. The

2

The affidavit was sworn in July 2010; the affiant states that she “was
assigned to work as a Youth Services Bureau Detective and specialized in
the investigation of crimes against children” in December 2009. Cf.
United States v. Meek, 366 F.3d 705, 712–13 & n.9 (9th Cir. 2004) (expert
opinion supported probable cause where affiant was “veteran sex crimes
investigator,” and probable cause could be found even after excising the
“singularly unhelpful” “boilerplate” from the affidavit); United States v.
Seybold, 726 F.2d 502, 504 (9th Cir. 1984) (probable cause supported
where DEA agent specified in affidavit that he had “14 years’ experience
in drug enforcement” and had “participat[ed] in hundreds of searches”);
United States v. Patterson, 492 F.2d 995, 997 (9th Cir. 1974) (probable
cause supported by observations of “experienced border agent”).

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magistrate must, of course, make a common-sense assessment
of whatever basis is provided. See Gates, 462 U.S. at 238.
But the basis has to be provided. “Sufficient information must
be presented to the magistrate to allow that official to
determine probable cause; his action cannot be a mere
ratification of the bare conclusions of others.” Id. at 239.
In conformity with these longstanding principles of
Fourth Amendment law, and as we held in Dougherty when
reviewing a similarly deficient warrant:
[A] search warrant issued to search a
suspect’s home computer and electronic
equipment lacks probable cause when (1) no
evidence of possession or attempt to possess
child pornography was submitted to the
issuing magistrate; (2) no evidence was
submitted to the magistrate regarding
computer or electronics use by the suspect;
and (3) the only evidence linking the suspect’s
attempted child molestation to possession of
child pornography is the experience of the
requesting police officer, with no further
explanation.
654 F.3d at 895 (emphasis added).
II.
Tellingly, the government does not even try to argue that
the warrant established probable cause to believe that
Needham possessed child pornography. Rather, the
government rests its case almost entirely on the argument
that, even if the warrant did not establish probable cause, the

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officers who conducted the search relied upon it in objective
good faith, so the evidence they found is admissible under
Leon, 468 U.S. 897.3
Were we deciding this issue as a question of first
impression, I would reject this argument. Leon carved out a
limited exception to the exclusionary rule, holding that
evidence seized pursuant to an illegal search may still be
admissible if the searching officers acted in objectively
reasonable reliance on a warrant issued by a neutral
magistrate. Id. at 926. But even under Leon, exclusion of the
evidence remains the proper remedy where, as here, an
officer relies “on a warrant based on an affidavit so lacking
in indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Leon, 468 U.S. at 923
(internal quotation marks omitted); see also United States v.
Grant, 682 F.3d 827, 836 (9th Cir. 2012). It is unreasonable
to rely on a search warrant issued on the basis of an affidavit
that “fails to establish at least a colorable argument for
probable cause.” Grant, 682 F.3d at 836 (internal quotation
marks omitted).

3

Alternatively, the government argues that “the warrant properly
allowed law enforcement to search for . . . child pornography” because if
child pornography were found in Needham’s possession, that fact “could
be relevant to show [Needham’s] identity, motive, and intent” in a child
molestation prosecution. Maybe so, but that argument is beside the point,
because the warrant did not establish probable cause to believe that
Needham possessed child pornography to begin with. “Under the Fourth
Amendment, . . . there must be probable cause to seize the particular
things named in the warrant.” United States v. SDI Future Health, Inc.,
568 F.3d 684, 702 (9th Cir. 2009) (internal quotation marks and alterations
omitted) (emphases added).

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One type of affidavit that does not suffice for Leon
purposes is known as the bare-bones affidavit. Cf. Leon,
468 U.S. at 926 (noting that there, the warrant “was supported
by much more than a ‘bare bones’ affidavit”). Under the
longstanding law of this circuit, an affidavit is bare-bones for
Leon purposes if it rests upon “foundationless expert
testimony” and there are no extenuating circumstances, such
as time pressures upon the investigation, that could explain
the affidavit’s deficiency. Weber, 923 F.2d at 1346. Leaving
aside that Weber happens also to be a child pornography case,
Weber’s holdings are broadly applicable, and would govern
this case regardless of the subject matter: First, expert
testimony cannot support a probable cause determination
when it consists merely “of rambling boilerplate recitations
designed to meet all law enforcement needs,” as opposed to
targeted expert analysis of the particular case at hand. Id. at
1345. Second, when a warrant issues upon the basis of such
“rambling boilerplate,” the Leon exception to the
exclusionary rule does not apply. Id. at 1345, 1346.
Under Weber’s definition, the affidavit in this case was
bare-bones: It contained “rambling boilerplate recitations”
and “fat[ty],” “foundationless expert testimony,” “but
certainly no muscle.” Id. at 1345, 1346. In a single paragraph,
the affidavit makes a variety of sweeping observations about
various categories and subcategories of people, most of which
simply have nothing to do with the investigation of Needham.
This paragraph is the very definition of boilerplate: “[r]eadymade or all-purpose language that will fit in a variety of
documents.” Black’s Law Dictionary (9th ed. 2009). Jumping
around from people who “molest[] children” to people
“involved with child prostitutes” to people who “take[] . . .
photographs or ma[ke] . . .video[s]” of child pornography, the
paragraph appears “ready-made” for insertion into just about

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any investigation of any type of sex-related crime involving
children. “It is clear that [this] portion of the affidavit was not
drafted with the facts of this case or this particular defendant
in mind.” Weber, 923 F.2d at 1345. And to the extent that the
affidavit does attempt to draw a connection between child
molestation and possession of child pornography, that
connection is “foundationless.” The affidavit references what
the officer has “learned,” but does not specify how or where
she learned it.
In similar cases, several of our sister circuits have
declined to apply the Leon exception. See John, 654 F.3d at
418–19; United States v. Doyle, 650 F.3d 460, 475–76 (4th
Cir. 2011); United States v. Hodson, 543 F.3d 286, 292–93
(6th Cir. 2008); but see United States v. Falso, 544 F.3d 110,
125–30 (2d Cir. 2008). An especially useful comparison is
Doyle, in which the Fourth Circuit held that the Leon
exception did not apply, and exclusion was the appropriate
remedy, where “the application for a warrant to search a
private residence for evidence of child pornography failed to
indicate that the pictures allegedly possessed by the resident
were in fact pornographic and provided no indication as to
when the pictures were allegedly possessed.” 650 F.3d at 463.
In that case, the warrant application included detailed
allegations that Doyle had sexually assaulted three children,
but only a single “mention” of facts conceivably related to
pornography: “the statement that one of the alleged victims
‘disclosed to an Uncle that Doyle had shown the victim
pictures of nude children.’” Id. at 472. Even though the
statement was credible, it did not include any facts tending to
show “that the pictures referenced . . . actually constituted
child pornography,” as opposed to mere nudity, or “when the
pictures were possessed.” Id. at 473, 474. Given this absence
of temporal and other necessary information in the warrant

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application, the officers’ reliance on the warrant was
objectively unreasonable; “nothing [in the warrant] indicated
when or if child pornography allegedly existed in Doyle’s
home.” Id. at 475–76.
Another instructive comparison is Hodson, in which, as
in this case, “it [was] beyond dispute that the warrant was
defective for lack of probable cause,” because the warrant’s
supporting affidavit “established probable cause for one
crime (child molestation) but designed and requested a search
for evidence of an entirely different crime (child
pornography).” 543 F.3d at 292. And in Hodson, the Sixth
Circuit concluded that, under those circumstances, the Leon
exception did not apply. Id. at 292–93. In Hodson, however,
there was at least some evidence that the defendant had used
a computer for an illicit purpose (specifically, to engage in a
sexually explicit online chat with a person whom he believed
to be a child). See id. at 287.4 Nevertheless, the chat did not
have anything to do with pornography, and so “it was
unreasonable for the officer executing the warrant . . . to
believe that probable cause existed to search Hodson’s
computers for child pornography based solely on a
suspicion—albeit a suspicion triggered by Hodson’s
computer use—that Hodson had engaged in child
molestation.” Id. at 293 (emphasis added).
If it was unreasonable for officers to rely on the warrant
in Doyle, where there was at least some evidence in the
affidavit that the defendant had possessed nude
pictures—albeit no evidence as to whether the pictures were

4

In fact, Hodson was chatting with an undercover detective from the
New Jersey Sheriff’s Department, who was representing himself online as
a 12-year-old boy. Hodson, 543 F.3d at 287.

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pornographic, or when they were possessed—and in
Hodson—where there was at least some evidence in the
affidavit that the defendant had used a computer for sexual
contact with a minor—then surely it was unreasonable for the
officers to rely on the warrant in this case. Here, the affidavit
did not include even the stray mention of nude pictures that
was deemed insufficient in Doyle, or the evidence of
computer use that was deemed insufficient in Hodson. The
only connection in the affidavit between Needham’s alleged
child molestation and child pornography was the
investigating officer’s personal belief that “Needham has an
unnatural sexual interest in children,” followed by some
disjointed rambling about the broadly overinclusive
metacategory of “cases involving persons who molest
children, buy, produce, sell, or trade child pornography and
who are involved with child prostitutes.”
As any reasonable officer should know, the Fourth
Amendment requires more. The law of this circuit has long
been “clear”: “[A] warrant [cannot] be broader than the
probable cause on which it [is] based.” Weber, 923 F.2d at
1346.
III.
Considering precedents under Leon, then, I would hold
that the Leon exception does not apply in this case, and that
the evidence on the iPod must be suppressed. But as the
majority opinion correctly notes, we may not limit our
inquiry to precedents applying Leon. As the Supreme Court
recently reminded us, the Leon objective reasonableness
standard is equivalent to the Section 1983 qualified immunity
standard. See Messerschmidt v. Millender, 132 S. Ct. 1235,
1245 n.1 (2012). Therefore, the outcome of this case is

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dictated by our recent qualified immunity holding in
Dougherty, 654 F.3d 892.
In Dougherty, we evaluated a very similar warrant in the
context of a Section 1983 lawsuit. As noted above, we held
that
a search warrant issued to search a suspect’s
home computer and electronic equipment
lacks probable cause when (1) no evidence of
possession or attempt to possess child
pornography was submitted to the issuing
magistrate; (2) no evidence was submitted to
the magistrate regarding computer or
electronics use by the suspect; and (3) the
only evidence linking the suspect’s attempted
child molestation to possession of child
pornography is the experience of the
requesting police officer, with no further
explanation.
Id. at 895.
Nevertheless, we also held in Dougherty that the officers
who conducted the illegal search were entitled to qualified
immunity, because “[t]he law in this circuit had not been
clearly established regarding whether allegations of sexual
misconduct or molestation . . . provide probable cause to
search a residence for child pornography in the absence of an
explanation tying together the two crimes.” Id. at 900. To
support this conclusion, Dougherty noted that the question
was one of first impression in this circuit, other circuits had
split on “similar questions,” and the Supreme Court had not
yet addressed it. Id.

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I find it difficult to square the probable cause holding in
Dougherty with its qualified immunity holding. Dougherty
relied heavily on Weber for its probable cause analysis,
concluding that “[i]f probable cause did not exist in Weber,
it cannot exist here.” 654 F.3d at 898. And yet, in its qualified
immunity analysis, Dougherty did not apply or even discuss
Weber’s further holding that it is objectively unreasonable to
rely on a warrant as lacking in indicia of probable cause as
was the Weber warrant. See id. at 899–900. Considering
Dougherty’s implication that the affidavit at issue there was
more deficient than the Weber affidavit, id. at 898, there is
considerable tension between its probable cause and qualified
immunity holdings.
But whatever internal tension it may contain, Dougherty
is binding upon us as a three-judge panel. As explained in the
majority’s opinion, our grant of qualified immunity in
Dougherty compels application of the Leon exception here.
I therefore concur.

TALLMAN, Circuit Judge, concurring:
I join the panel’s decision because it is compelled by
existing precedent. There is no question that, at the time the
search warrant was executed, the officer relied in good faith
on the magistrate’s reasonable determination of probable
cause. But if the slate were clean, I would also agree with the
issuing magistrate that under the totality of the circumstances,
probable cause existed to search Needham’s home for child
pornography. Our precedent acknowledges the need to
respect the real world experiences of police officers who
investigate juvenile sex crimes, but then fails to apply that

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principle in declaring categorically that there is no nexus
between child molestation and collection of child
pornography. The circumstances of this case illustrate why
such categorical pronouncements are unwise.
The circumstances included: conclusive evidence that
Needham had recently molested a five-year-old victim in a
shopping mall bathroom; a criminal history for similar
conduct, including a prior arrest for lewd and lascivious
behavior and possession of obscene materials; Needham’s
obligation to register as a previously convicted sex offender;
and, importantly, the sex crimes detective’s experienced
judgment that a link exists between those who engage in child
molestation and possession of child pornography. Common
sense supports “a fair probability” that, under the totality of
the circumstances, officers would find child pornography.
See Illinois v. Gates, 462 U.S. 213, 238 (1983).
Yet our panel, and future panels of our Court, are
constrained by Dougherty v. City of Covina, 654 F.3d 892
(9th Cir. 2011), a flawed decision whose categorical rule that
there is no such linkage will likely stifle legitimate law
enforcement efforts to halt the proliferation of child
pornography. This is not to suggest that the nature of the
suspected crime should affect the defendant’s Fourth
Amendment rights, but rather to underscore the Dougherty
majority’s unwarranted refusal to respect an officer’s
“common sense leap . . . that a potential child predator has
moved along the continuum of looking and into the realm of
touching.” Id. at 901–02 (Brewster, D.J., concurring in the
judgment). Blinding ourselves to this reality has serious
consequences, as is surely the case for those unfortunate child
victims pictured in the 30,000 images and 200 videos

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possessed by Needham, whom police had already shown was
a child molester.
In creating this categorical rule—and ignoring common
sense bolstered by police experience with child sex
predators—the Dougherty court misinterpreted United States
v. Weber, 923 F.2d 1338 (9th Cir. 1990), a pre-Internet case
that establishes only that when an officer seeks to connect
group A (child molesters) to conduct B (possession of child
pornography), the officer must show that the defendant
belongs to group A.1 The Customs inspector in Weber failed
to make the necessary showing. The officers in Dougherty
and here succeeded in articulating sufficient detail to
establish probable cause that the defendants had molested
children and, in the officers’ experience, were likely to
possess child pornography.
We stated in United States v. Reese that “[f]requently in
affidavits supporting requests for warrants, officers state,
based on their experience, that narcotics dealers possess
weapons. Such statements certainly are appropriate and may
be considered by magistrates in deciding whether to issue a
warrant.” 775 F.2d 1066, 1074 n.5 (9th Cir. 1985) (emphasis
added). Certainly, we would not allow officers to link any
two crimes imaginable. But when a sex crimes officer states,
from experience, that a grown man who enters a mall
bathroom and intentionally touches a boy on the penis also
1

Dougherty also failed to consider the impact of our en banc decision
in United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006) (en banc), in
which we stated that “Weber cannot be read to support Gourde’s
position—that a search warrant for child pornography may issue only if
the government provides concrete evidence, without relying on any
inference, that a suspect actually receives or possesses images of child
pornography—without running afoul of Gates.” Id. at 1074.

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likely possesses child pornography, that statement exists
within the realm of common sense and deserves some
deference.
We should not so cavalierly reject the empirical
experience of sex crimes investigators linking lewd and
lascivious conduct involving young children with possession
of pornographic images of the objects of a predator’s sexual
desires. And our decisions, like Dougherty, should not so
easily dispatch these “common-sense conclusions” made “by
those versed in the field of law enforcement.” Gates,
462 U.S. at 231–32. “These are not technical; they are the
factual and practical considerations of everyday life on which
reasonable and prudent men, not legal technicians, act.” Id.
at 231 (quoting Brinegar v. United States, 338 U.S. 160, 176
(1949)). The assessment of probable cause by the magistrate
here met the Fourth Amendment standard for establishing “a
substantial basis for conclud[ing] that a search would uncover
evidence of wrongdoing.” Id. at 236 (alteration in original)
(citation and internal quotation marks omitted).
As the Supreme Court cogently observed in Gates:
The process does not deal with hard
certainties, but with probabilities. Long
before the law of probabilities was articulated
as such, practical people formulated certain
common-sense conclusions about human
behavior; jurors as factfinders are permitted to
do the same—and so are law enforcement
officers. Finally, the evidence thus collected
must be seen and weighed not in terms of
library analysis by scholars, but as understood

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by those versed in the field of law
enforcement.

Id. at 232 (quoting United States v. Cortez, 449 U.S. 411, 418
(1981)).
We need to revisit this issue and consign hypertechnical
decisions like Dougherty to the dust bin of erroneous blanket
legal pronouncements devoid of reality.

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