United States v. Joseph Martin, Defendant-Petitioner

426 F.3d 83, 2005 U.S. App. LEXIS 21394, 2005 WL 2417650
CourtCourt of Appeals for the Second Circuit
DecidedOctober 3, 2005
DocketDocket 04-1600 CR(L), 04-2344(CON)
StatusPublished
Cited by15 cases

This text of 426 F.3d 83 (United States v. Joseph Martin, Defendant-Petitioner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Joseph Martin, Defendant-Petitioner, 426 F.3d 83, 2005 U.S. App. LEXIS 21394, 2005 WL 2417650 (2d Cir. 2005).

Opinions

JOHN M. WALKER, JR., Chief Judge.

ON PETITION FOR REHEARING

For the reasons stated below, defendant-appellant Joseph Martin’s petition for rehearing is denied.

Martin argues that we could not find probable cause because (1) the redacted affidavit “contains no particularized information regarding whether Martin, or the e-mail account registered to his home, possessed child pornography,” as required by [85]*85Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979), and (2) it is error to conclude that the primary purpose of the “girls12-16” e-group was to trade child pornography because the site also supported the exchange of textual messages and therefore allowed its members to engage in protected speech. Upon review, we adhere to our view that probable cause existed because there was a fair probability that contraband or evidence, fruits, or instrumentalities of a crime would be found at Martin’s residence.

After we announced our decision in this case, another panel of this Court — in United States v. Coreas, 419 F.3d 151 (2d Cir.2005) — addressed the validity of a related search warrant, which was also executed in connection with “Operation Candyman.” The Coreas panel, however, was presented with the separate question whether the redacted affidavit was sufficient to support a showing of probable cause where the defendant was a member of the “Candy-man” e-group, not the “girlsl2-16” e-group. And the Coreas panel’s review was limited to those features associated with the Candyman site, including its far less descriptive title and welcome message.1

The Coreas panel recognized these distinctions:

Arguably, Martin might be distinguished from the instant case on the ground that the defendant there had joined a different group, girlsl2-16. Even a first-time visitor, according to the Martin majority, would have instantly recognized the unlawful nature of girlsl2-16, since its “welcome message,” longer and more detailed than Candyman’s, “unabashedly announced that its essential purpose was to trade child pornography.”

Coreas, 419 F.3d at 157. Nonetheless, the Coreas panel determined that this panel “did not ... regard such distinctions as decisive” because we noted, in a separate [86]*86part of our opinion, that the internal operational characteristics of the two sites were indistinct. Id. The Coreas panel concluded that we viewed “the differences between the websites as immaterial and regarded the Candyman welcome message as explicit enough to warrant an inference of unlawful purpose.” Id. Based in part on this perception of our holding, the Coreas panel held that the Martin decision compelled it to uphold the denial of suppression of the evidence of activity on the Candyman site. Id. at 159.

Although the Candyman welcome message was not before this panel, we need to clarify that we do not view the differences between the two welcome messages as “immaterial.” To the contrary, the girlsl2-16 welcome message was an integral component of our probable cause determination.

As we explained in our prior decision, the probable cause standard simply requires a “practical, common-sense decision whether, given all the circumstances set forth in the affidavit before [the magistrate] ..., there is a fair probability that contraband or evidence of a crime will be found in a particular case.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Two interrelated points, however, are worth emphasizing. First, probable cause only requires “‘the probability, and not a prima facie showing, of criminal activity.’ ” Id. at 235, 103 S.Ct. 2317 (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)). Second, “ ‘[o]nce it is established that probable cause exists to believe a federal crime has been committed a warrant may issue for the search of any property which the magistrate has probable cause to believe may be the place of concealment of evidence of the crime.’ ” Zurcher v. Stanford Daily, 436 U.S. 547, 558, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978) (alteration in the original) (emphasis added) (quoting United States v. Mfrs. Nat’l Bank of Detroit, 536 F.2d 699, 703 (6th Cir.1976)). Thus, “it is untenable to conclude that property may not be searched unless its occupant is reasonably suspected of a crime and is subject to arrest.” Id. at 559, 98 S.Ct. 1970. Rather, “valid warrants to search property may be issued when it is satisfactorily demonstrated to the magistrate that fruits, instrumentalities, or evidence of crime is located on the premises.” Id.

With these standards in mind, we turn to the two principal arguments advanced by Martin in his petition for rehearing: first, that because the e-group supported lawful functions, we could not conclude that the group’s primary purpose was to facilitate the trade of child pornography; and second, that the redacted affidavit cannot support a finding of probable cause because it “contains no particularized information regarding whether Martin, or the e-mail account registered to his home, possessed child pornography.”

As our earlier decision held, we have no difficulty concluding from the redacted affidavit that the primary purpose of the girlsl2-16 e-group was to facilitate the generation, inventory, and exchange of child pornography. The redacted affidavit states that individuals that sought membership in the e-group were presented with the name of the group and its detailed welcome message, which unabashedly announced that the group’s essential purpose was to trade child pornography, and that the e-group’s members were actively uploading and downloading child pornography on the site and exchanging e-mail with illicit attachments.

The fact that this technology could also have been put to innocent or protected uses does not alter our conclusion. Thus, the fact that the majority of e-mail ex[87]*87changed on the site was only textual does not diminish the fact that a significant quantity of e-mail contained image-files of child pornography, and that hundreds of picture- and video-files were readily available for download on the girls12-16 e-group site. Cf. United States v. Fama, 758 F.2d 834, 838 (2d Cir.1985) (“The fact that an innocent explanation may be consistent with the facts alleged, however, does not negate probable cause.”).

In any event, we cannot accept that the level of wholly textual e-mail somehow suggests that the group’s website was being used for predominantly lawful, or even protected, activities. All text is not protected by the First Amendment. Text-based e-mail that helps others “meet,” “chat up,” and sexually exploit children is not protected speech.

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426 F.3d 83, 2005 U.S. App. LEXIS 21394, 2005 WL 2417650, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-joseph-martin-defendant-petitioner-ca2-2005.