People v. John

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-4185

_____________

PEOPLE OF THE VIRGIN ISLANDS,

Petitioner

v.

TYDEL B. JOHN,

Respondent

_____________

On Writ of Certiorari from the Supreme Court

of the Virgin Islands

(S. Ct. Crim. No. 2008-091)

_____________

Argued December 14, 2010

BEFORE: McKEE, Chief Judge, FUENTES and SMITH,

Circuit Judges

(Filed: August 15, 2011)

Vincent F. Frazer, Esq.

Elliott M. Davis, Esq.

1

Paul J. Paguin, Esq. (Argued)

Department of Justice

34-38 Kronprindesens Gade

GERS Building, Second Floor

St. Thomas, VI 00802

Counsel for Petitioner Government of the Virgin

Islands

Martial A. Webster, Sr., Esq. (Argued)

116 Queen Cross Street

Frederiksted, St. Croix, VI 00840

Counsel for Respondent Tydel B. John

_____________

OPINION OF THE COURT

_____________

SMITH, Circuit Judge.

Detective Sergeant Naomi Joseph of the Virgin Islands

Police Department applied for a warrant to search Tydel

John’s home for child pornography, relying solely on an

affidavit that established only probable cause to believe that

she would find evidence that he had sexually assaulted

several children at the school where he taught. In her

affidavit, Joseph did not allege any direct evidence that John

possessed child pornography, did not aver the existence of

any connection between the two crimes, and did not claim

either a good faith belief in such a connection or any basis for

thinking that one had been established. In general, the

affidavit provided no reason to believe that a person who has

2

committed child sexual assault would be likely to possess

child pornography. Despite these deficiencies, a Virgin

Islands Superior Court judge issued the warrant, and Joseph’s

search turned up incriminating documents (but no child

pornography). We granted certiorari to determine whether

this evidence was properly suppressed.

I

On November 27, 2007, following a presentation by

the Virgin Islands Domestic Violence Sexual Assault

Council, several of John’s sixth-grade students told school

officials that John had touched them inappropriately. The

school passed this information on to the police, and Joseph

was tasked with investigating. She began by interviewing the

complaining witnesses, several of whom accused John of

sexually assaulting them in his classroom. The girls also

advised Joseph that John maintained two spiral notebooks,

one blue and one red, in which he routinely “ma[de] notations

. . . regarding his students.” One student reported that John

had written “inappropriate things about the female students of

his current class and previous classes” in the blue notebook.

According to the witnesses, John carried the notebooks with

him to and from school each day in his work bag.

With this information in hand, Joseph sought a warrant

authorizing her to search John’s home. Joseph’s affidavit set

forth the above facts in somewhat more detail, and averred

that “persons who commit sexual offense crimes involving

children customarily hide evidence of such offenses,

including notes, photographs, [and] computer files, in their

homes and on their computer[s].” In addition to the red and

3

blue notebooks, the warrant application sought permission to

collect from John’s home pornographic magazines,

pornographic photographs of children, and computer files

containing pornographic notes and photographs of children.

A Virgin Islands Superior Court judge issued the warrant, as

requested, on December 3, 2007, and Joseph led the law

enforcement team that executed it shortly thereafter.

According to Joseph’s testimony at John’s suppression

hearing, it was “[r]elatively early in the search” that the

officers located a black bag containing the red and blue spiral

notebooks mentioned in the affidavit. Joseph allowed the

search to continue, because she was still “[l]ooking for any

pornographic photos of children.” The officers under her

charge found no such photos, but they nevertheless carted

away several computers and ten black and white composition-

book-style journals, in addition to the two spiral notebooks

that the witnesses had identified. The journals (labeled

“Tydel John Journals,” with dates) were retrieved from John’s

bedroom closet and a bookshelf, and did not resemble the

spiral notebooks—which had already been seized by the time

the journals were found.

While there is nothing in the “Tydel John Journals”

that would constitute child pornography, they do contain

evidence germane to the charges of aggravated rape, unlawful

sexual contact, child abuse, and child neglect that John now

faces. He therefore moved to exclude them from trial,

arguing that Joseph’s search warrant was invalid and that the

search violated the Fourth Amendment. The Superior Court

granted the motion, and the Supreme Court of the Virgin

Islands affirmed in a per curiam opinion. 52 V.I. 247 (2009).

4

The Court held that the search for child pornography was not

supported by probable cause, id. at 256, and that any search

of the home that occurred after the blue and red spiral

notebooks had been found was thus beyond the permissible

scope of the warrant’s execution, id. at 260. It then addressed

the so-called “good faith” exception to the exclusionary rule,

observing that the exception does not apply in the case of a

warrant obtained on the basis of an affidavit that is “so

lacking in indicia of probable cause as to render official belief

in its existence entirely unreasonable.” Id. at 261 (quoting

United States v. Zimmerman, 277 F.3d 426, 436 (3d Cir.

2002)). Because an examination of Joseph’s affidavit

revealed “not a single assertion that John was in any way

associated with child pornography,” the court concluded that

“the officers executing the warrant blindly relied on the fact

that the warrant was issued by a judge and disregarded the

fact that their search was not supported by probable cause.”

Id. at 262. In the view of the Virgin Islands Supreme Court,

such “blind reliance” on a warrant issued in the complete

absence of probable cause “can and should be deterred by

excluding the fruits of the illegal search, and the deterrent

effect of suppression is substantial enough to outweigh any

harm to the justice system.” Id. at 263. The “good faith”

exception therefore did not save the evidence from

suppression. Id.

A panel of this court granted the Virgin Islands’

petition for a writ of certiorari, “limited to the question

whether the decision of the Supreme Court of the Virgin

Islands is inconsistent with Herring v. United States, 129 S.

Ct. 695 (2009), in its application of the good faith exception

5

to the exclusionary rule.” Our order also directed the parties

“to explain in their briefing the basis, if any, upon which this

Court has certiorari jurisdiction to review the decision of the

Supreme Court of the Virgin Islands as a ‘final decision’

within the meaning of 48 U.S.C. § 1613.”

II

We first address the jurisdictional question

propounded in our order granting certiorari, beginning with

the text of the relevant statute. Section 1613 defines the

relations between the courts of the United States and the

courts of the Virgin Islands. It provides that, for the time

being, “the United States Court of Appeals for the Third

Circuit shall have jurisdiction to review by writ of certiorari

all final decisions of the highest court of the Virgin Islands

from which a decision could be had.” The same section

elsewhere states:

The relations between the courts established by

the Constitution or laws of the United States

and the courts established by [Virgin Islands]

law with respect to appeals, certiorari, removal

of causes, the issuance of writs of habeas

corpus, and other matters or proceedings shall

be governed by the laws of the United States

pertaining to the relations between the courts of

the United States, including the Supreme Court

of the United States, and the courts of the

several States in such matters and proceedings.

6

Reading these sentences together, it is plain that Congress

intended for this court’s certiorari jurisdiction vis-à-vis the

Virgin Islands Supreme Court to mirror the United States

Supreme Court’s certiorari jurisdiction vis-à-vis any of the

fifty state courts of last resort. We can therefore review by

certiorari a decision of the Virgin Islands Supreme Court if

that decision is “final” within the meaning of the United

States Supreme Court’s certiorari jurisdiction statute, 28

U.S.C. § 1257.

A ruling on a suppression motion is interlocutory in

nature, and therefore does not obviously qualify as a “final

decision.” See Di Bella v. United States, 369 U.S. 121, 131

(1962). The federal Supreme Court has nevertheless held that

an order granting such a motion is reviewable:

Although respondent has yet to be tried in state

court, the suppression ruling challenged herein

is a “final judgment” within the meaning of 28

U.S.C. § 1257(3), and we have jurisdiction over

this case. In Cox Broadcasting Corp. v. Cohn,

420 U.S. 469, 477 (1975), we identified four

categories of cases where the Court will treat a

decision of the highest state court as final for §

1257 purposes even though further proceedings

are anticipated in the lower state courts. This

case . . . falls within the category which

includes “those situations where the federal

claim has been finally decided . . . but in which

later review of the federal issue cannot be had,

whatever the ultimate outcome of the case.” 420

U.S., at 481. In this case should the State

7

convict respondent at trial, its claim that certain

evidence was wrongfully suppressed will be

moot. Should respondent be acquitted at trial,

the State will be precluded from pressing its

federal claim again on appeal.

New York v. Quarles, 467 U.S. 649, 651 n.1 (1984). This

logic is directly applicable here. The Virgin Islands Supreme

Court has “finally decided” John’s federal constitutional

claim, and re-examination of its decision on a later appeal

will prove impossible: A conviction would moot the issue,

and an acquittal would preclude the prosecution from

rearguing the point on appeal. See id.; United States v.

Carrillo-Bernal, 58 F.3d 1490, 1494–95 (10th Cir. 1995)

(detailing the historical development of the rule against

government appeals of not-guilty verdicts); Gov’t of the

Virgin Islands v. Christensen, 673 F.2d 713, 715 (3d Cir.

1982) (collecting cases). The Virgin Islands Supreme Court’s

decision is therefore “final” for purposes of certiorari

jurisdiction, and § 1613 gives us authority to review it.

The parties have raised the possibility that 18 U.S.C. §

3731 also serves as a basis for our jurisdiction. That section

provides, in pertinent part, that “[a]n appeal by the United

States shall lie to a court of appeals from a decision or order

of a district court suppressing or excluding evidence . . . , not

made after the defendant has been put in jeopardy.” We treat

the Government of the Virgin Islands as a prosecutorial arm

of the federal government, so § 3731 permits it to take certain

interlocutory appeals. Christensen, 673 F.3d at 716. Until

2004, the Appellate Division of the District Court of the

Virgin Islands heard appeals from the Virgin Islands Superior

8

Court; the Appellate Division’s decisions were then

appealable to this court. See Gov’t of the Virgin Islands v.

Rivera, 333 F.3d 143, 145–46 (3d Cir. 2003). Because the

Appellate Division was part of the District Court of the

Virgin Islands, appeals from its decisions were treated “no

differently than appeals taken from any other federal district

court.” 1 Id. at 146. Thus, in Gov’t of the Virgin Islands v.

Charleswell, 24 F.3d 571, 574 (3d Cir. 1994), we concluded

that § 3731 gave us jurisdiction over appeals from the

Appellate Division filed by the Government of the Virgin

Islands.

The Government argues that the establishment of the

Virgin Islands Supreme Court does not change anything. In

its view, § 3731 gives us jurisdiction over interlocutory

criminal appeals from the Virgin Islands Supreme Court filed

by the Government, just as it gave us jurisdiction over the

same appeals from the Appellate Division. This position is

inconsistent with the text of § 3731, which refers to “an

appeal” from a “district court.” With the change in the

organization of the Virgin Islands courts, the case we are

today asked to decide comes from the Virgin Islands Supreme

Court—which is not part of the District Court of the Virgin

Islands or any other “district court.” Just as importantly, our

authority to re-examine decisions of the courts of the Virgin

Islands (as distinct from the federally established courts with

1

The statute creating the Appellate Division was repealed

when the Virgin Islands created the Virgin Islands Supreme Court.

The Appellate Division will cease to exist when the last case

pending on its docket is decided. See Edwards v. HOVENSA, LLC,

497 F.3d 355, 359 n.2 (3d Cir. 2007).

9

jurisdiction over that territory) is limited to “review by writ of

certiorari [of] all final decisions of the highest court of the

Virgin Islands from which a decision could be had.” 48

U.S.C. § 1613 (emphasis added). Issuance of a writ of

certiorari and the “appeal” contemplated by § 3731 are

discrete forms of review: the former is discretionary in nature,

while the latter is generally available to a losing litigant as of

right. Our review of Virgin Islands Supreme Court cases by

certiorari is meant to permit correction of important errors

while preserving the territorial courts’ ability to develop local

law and institutional traditions, in advance of the eventual

goal of allowing direct United States Supreme Court

certiorari review (eliminating entirely any review by this

court). See Pichardo v. Virgin Islands Comm’r of Labor, 613

F.3d 87, 96–97 (3d Cir. 2010); 48 U.S.C. § 1613. Allowing

as-of-right appeals in a certain class of cases under § 3731

would obstruct this aim by hindering the development of

Virgin-Islands-specific case law and undercutting the

authority of the Virgin Islands Supreme Court. We therefore

review its decisions at our discretion rather than as a matter of

course: that is, by writ of certiorari rather than on appeal.

Because this is not an “appeal” and does not come to

us from a “district court,” § 3731 cannot apply. Section 1613

is the sole source of our authority to decide this case.

III

We granted certiorari to determine whether the Virgin

Islands Supreme Court’s ruling is inconsistent with Herring v.

United States, 129 S. Ct. 695 (2009), in which the Supreme

Court addressed the “good faith” exception to the

10

exclusionary rule that it had previously established in United

States v. Leon, 468 U.S. 897 (1984). Because “the

exclusionary rule is not an individual right,” but is instead a

means of deterring Fourth Amendment violations, it “applies

only where it ‘result[s] in appreciable deterrence.’” Herring,

129 S. Ct. at 700 (quoting Leon, 468 U.S. at 909).

Suppression of valuable evidence imposes social costs by

hindering the courts’ truth-seeking function, but the Supreme

Court has determined that those costs are outweighed by the

need to prevent illegal and culpable law enforcement conduct.

But because some unconstitutional conduct is unlikely to be

deterred by the threat of sanctions, exclusion is not a blanket

remedy. Where, for instance, a reasonable officer cannot

have been expected to know that what he was doing was

unconstitutional, he is unlikely to be discouraged in his

actions by the knowledge that the fruits of unconstitutional

searches will be suppressed. There is no sense in suppressing

whatever evidence he may have uncovered in such a case, for

the limited or nonexistent deterrent value of exclusion does

not outweigh the cost. See Davis v. United States, 564 U.S. --

-, slip op. at 6–9 (2011). Accordingly, “[t]o trigger the

exclusionary rule, police conduct must be sufficiently

deliberate that exclusion can meaningfully deter it, and

sufficiently culpable that such deterrence is worth the price

paid by the justice system.” Herring, 129 S. Ct. at 702.

The Leon rule is a specific application of this general

principle. As Herring described it, Leon holds that “[w]hen

police act under a warrant that is invalid for lack of probable

cause, the exclusionary rule does not apply if the police acted

‘in objectively reasonable reliance’ on the subsequently

11

invalidated search warrant.” Id. at 701 (quoting Leon, 468

U.S. at 922). A warrant represents judicial authorization of a

particular search or seizure, and it is thought that exclusion

will not deter police from relying on an invalid warrant unless

the police should reasonably have known that the warrant’s

issuance would be found unconstitutional. We have

identified “four limited circumstances” in which a police

officer’s reliance on a warrant will not be considered

“objectively reasonable”:

1) where the magistrate judge issued the warrant in

reliance on a deliberately or recklessly false

affidavit;

2) where the magistrate judge abandoned his or

her judicial role and failed to perform his or her

neutral and detached function;

3) where the warrant was based on an affidavit so

lacking in indicia of probable cause as to render

official belief in its existence entirely

unreasonable; or

4) where the warrant was so facially deficient that

it failed to particularize the place to be searched

or the things to be seized.

United States v. Tracey, 597 F.3d 140, 151 (2010) (citing

Zimmerman, 277 F.3d at 436–37). “These limited exceptions

are consistent with the approach taken in Herring because

each of these circumstances involve[s] conduct that is

‘deliberate, reckless, or grossly negligent,’ and thus the

12

benefits of deterring future misconduct ‘outweigh the costs’

of excluding the evidence.” Id. (quoting Herring, 129 S. Ct.

at 700, 702).

John invokes the third of these exceptions to the Leon-

Herring rule, arguing that Joseph’s affidavit was “so lacking

in indicia of probable cause as to render official belief in its

existence entirely unreasonable.” 2 Tracey, 597 F.3d at 151.

2

John concedes that the warrant was valid insofar as it

authorized a search for the red and blue spiral notebooks that had

been specifically identified as containing evidence of his alleged

crimes. He seeks only to suppress the journals, which were found

after the search’s admittedly legal objects had been seized.

The panel is in agreement that Joseph’s affidavit did not

provide probable cause to believe that any evidence or contraband

other than the red and blue notebooks would be found in John’s

house. See infra, at 14–15; post, at 3, 5, 6–7. Generally, “where

the evidence authorized to be seized exceeds the underlying

probable cause justification, the proper course is for the court to

redact that information from the affidavit of probable cause.”

United States v. Yusuf, 461 F.3d 374, 389 (3d Cir. 2006). In this

context, “redaction” means:

[S]triking from a warrant those severable phrases

and clauses that are invalid for lack of probable

cause or generality and preserving those severable

phrases and clauses that satisfy the Fourth

Amendment. Each part of the search authorized by

the warrant is examined separately to determine

whether it is impermissibly general or unsupported

by probable cause. Materials seized under the

authority of those parts of the warrant struck for

13

We agree, because the catalogue of the affidavit’s “indicia of

probable cause” with respect to child pornography is

completely empty. The Virgin Islands Supreme Court was

correct in describing the affidavit as “wholly lacking in

probable cause,” because “[e]ven a cursory reading of Officer

Joseph’s affidavit reveals that there is not a single assertion

that John was in any way associated with child pornography.”

52 V.I. at 263, 262. To be sure, the affidavit provides reason

to believe that John had committed sex crimes against his

students on school property, and that he kept two particular

pieces of evidence of those crimes in his home. But those

allegations are not sufficient to establish—or even to hint at—

probable cause as to the wholly separate crime of possessing

child pornography.

A belief in the existence of probable cause in this case

requires believing that a person who has sexually assaulted a

child is also likely to collect child pornography. Putting aside

for the moment the reasonableness of such an assumed

connection, that latter belief is not stated anywhere in

invalidity must be suppressed, but the court need

not suppress materials seized pursuant to the valid

portions of the warrant.

Id. (quoting United States v. Christine, 687 F.2d 749, 753 (3d Cir.

1982)). Because there was no probable cause to justify continuing

to search John’s home for child pornography once the two

specifically identified notebooks had been discovered, all evidence

seized after that point—including the journals that are the subject

of this appeal—is subject to suppression unless some exception to

the exclusionary rule applies.

14

Joseph’s affidavit. The closest the affidavit comes is the

averment that “persons who commit sexual offense crimes

involving children customarily hide evidence of such

offenses, including notes, photographs, [and] computer files,

in their homes and on their computer[s].” But all this

statement can be read to allege is that John, who stands

accused of sexually abusing children, “customarily hide[s]”

evidence of that crime in his home and/or on his computer. It

does not allege that an individual in John’s position also

“customarily hide[s]” evidence of other crimes, in his home

or anywhere else. Without such an allegation, it was

unreasonable to conclude that there was probable cause to

believe that John possessed child pornography.

It should be clear that the existence of an assault-

pornography correlation is a question of fact that Joseph was

required to allege (and to support with averments stating the

basis for the allegation) if she desired to rely on it as the basis

for a probable cause determination. It is not a legal issue to

be entrusted to a magistrate’s judgment as a matter of abstract

doctrine. Either a correlation exists between the conduct

underlying one crime and the conduct underlying another, or

it does not. Forming a belief regarding the answer to that

question does not involve interpreting a statute, or analyzing a

Supreme Court decision, or applying some common law

doctrine. Because the question is one that can be resolved

only through the evaluation of evidence, it must be alleged on

the face of the affidavit in order to be considered for purposes

of determining probable cause.

As the Second Circuit wrote in a case quite similar to

our own, “‘[i]t is an inferential fallacy of ancient standing to

15

conclude that, because members of group A’ (those who

collect child pornography) ‘are likely to be members of group

B’ (those attracted to children), ‘then group B is entirely, or

even largely composed of, members of group A.’” United

States v. Falso, 544 F.3d 110, 122 (2d Cir. 2008) (quoting

United States v. Martin, 426 F.3d 68, 82 (2d Cir. 2005)

(Pooler, J., dissenting)). Then-Judge Sotomayor went on:

Although offenses relating to child pornography

and sexual abuse of minors both involve the

exploitation of children, that does not compel,

or even suggest, the correlation [that a person

who has committed one crime has likely

committed the other] drawn by the district

court. Perhaps it is true that all or most people

who are attracted to minors collect child

pornography. But that association is nowhere

stated or supported in the affidavit. See [Illinois

v. Gates, 462 U.S. 213, 238 (1983)] (probable

cause assessments are to be made from “all the

circumstances set forth in the affidavit”);

[United States v. Gourde, 440 F.3d 1065, 1067

(9th Cir. 2006)] (“All data necessary to show

probable cause for the issuance of a search

warrant must be contained within the four

corners of a written affidavit given under oath”

(internal marks and citation omitted)). . . . [A]n

individual’s Fourth Amendment right cannot be

vitiated based on fallacious inferences drawn

from facts not supported by the affidavit.

16

Id. (footnotes omitted). Similarly, in United States v.

Hodson, 543 F.3d 286, 293 (6th Cir. 2008), the Sixth Circuit

held that it was “entirely unreasonable” for Leon purposes

“for the officer executing the warrant either to infer that

nexus [between child molestation and possession of child

pornography] herself or to rely on her own subjective

knowledge [of the existence of such a nexus] to claim

reasonable reliance on the warrant.”

Just so in this case. We acknowledge the possibility

that studies might show that a correlation exists between one

crime and the other; or perhaps extensive investigatory

experience might reveal a pattern substantial enough to

support a reasonable belief on the part of a police detective.

But Joseph’s affidavit did not allege the existence of the

connection in question, let alone any evidentiary reason to

believe in it. She should not, therefore, be permitted either to

draw an inference from facts not stated in the affidavit or to

rely on her own personal knowledge. She was instead

required to state all the relevant facts in the warrant affidavit

and submit them to judicial scrutiny. See, e.g., United States

v. Stearn, 597 F.3d 540, 549 (3d Cir. 2009); United States v.

Olvey, 437 F.3d 804, 807 (8th Cir. 2006) (“Where there is no

evidentiary hearing before the magistrate judge, the probable

cause determination must be based upon only that

information which is found within the four corners of the

affidavit.”) (citation and internal quotation marks omitted);

Zimmerman, 277 F.3d at 431 n.3 (“We, of course, must

confine ourselves to the facts that were before the issuing

magistrate—in other words, the affidavit.”).

17

Requiring that a warrant applicant state explicitly her

belief in the existence of a correlation like the one on which

Joseph apparently relied, as well as reasons justifying such a

belief, is not inconsistent with the fact that these affidavits are

typically drawn by laypersons rather than attorneys. Even

police officers who lack legal training are expected to know

of the requirement that the factual basis for a probable cause

determination must be stated in the affidavit. We demand

nothing more than that an officer seeking a warrant explain

why she is justified in entering a person’s home and searching

through his belongings. This insistence that law enforcement

comply with a bedrock principle of the Fourth Amendment

cannot be dismissed as the imposition of an unnecessary or

hypertechnical obligation.

Policing this requirement easily passes the cost-benefit

analysis set forth in Herring. Reliance on a warrant affidavit

that omits a fact critical to any reasonable belief in the

existence of probable cause is the sort of thing we can expect

the exclusionary rule to deter: all an investigator must do to

avoid exclusion is comply with the well-known duty to spell

out the complete factual basis for a finding of probable cause

within the affidavit’s four corners. And deterring police from

submitting (and magistrates from accepting) affidavits that

completely omit crucial factual allegations is a preeminently

worthy goal. Reckless or grossly negligent conduct is enough

to justify suppression, and Leon and its progeny establish that

an officer’s conduct is sufficiently deliberate and culpable

when she relies on a warrant that is as devoid of probable

cause as this one. See Herring, 129 S. Ct. at 702; Tracey, 597

F.3d at 151. Joseph’s reliance on the warrant was “entirely

18

unreasonable,” Tracey, 597 F.3d at 151; her behavior was, at

a minimum, grossly negligent. Moreover, applying Leon in

cases like the one at bar would risk encouraging police to

seek permission to search for evidence of crimes unrelated to

any known facts, based upon nothing more than unstated and

unsupported hunches. It would reward law enforcement for

grounding warrant applications in unexamined biases and

stereotypes rather than in conscientious assessment of the

facts and circumstances uncovered by the investigation. Leon

and its progeny were never intended to ratify such unjustified

intrusions into the privacy safeguarded by the Fourth

Amendment. The “good faith” exception does not shield

Joseph’s actions here. The evidence obtained pursuant to the

invalid portion of the warrant (i.e., the portion authorizing a

search for child pornography) must be suppressed.

We are not persuaded by the cases that may be cited in

support of the contrary conclusion. The prosecution relies on

United States v. Haynes, 160 F. App’x. 940 (11th Cir. 2005)

(per curiam) (unpublished), but that decision did not actually

decide the question whether probable cause or sufficient

indicia thereof existed. Haynes conceded that the warrant to

search his home was valid insofar as it pertained to evidence

of enticing a minor to engage in sexual conduct, but argued

that the police lacked probable cause to believe he possessed

child pornography. He did not, however, mount an argument

on appeal that any of the exceptions to the Leon doctrine

applied. The court therefore had no need to engage in serious

analysis of the question whether the executing officers had

acted in reasonable reliance on the warrant (though it noted

offhandedly that they “clearly” had). See id. at 944.

19

Moreover, the opinion leaves unclear whether the court was

even faced with the question we address today, because it

does not relate whether the warrant affidavit contained an

averment purporting to link the suspected crime of child

enticement to the search for child pornography. Haynes has

no bearing on this case.

The Eighth Circuit’s decision in United States v.

Colbert, 605 F.3d 573 (8th Cir. 2010), carries more force than

Haynes, but is distinct from the case now before us. A

witness called police after observing Colbert pushing a five-

year-old girl (whom he did not know) on a playground

swingset while talking to her “about movies and videos the

man had at his home.” Upon stopping Colbert’s car and

conducting a consensual search, police found a police

scanner, handcuffs, and a “New York PD” hat. The

defendant also admitted speaking to the girl about movies that

he kept at his apartment. Id. at 575. On this basis the police

obtained a warrant to search Colbert’s apartment for child

pornography, which they recovered and which Colbert moved

to suppress. See id. at 575–76.

A divided panel of the Eighth Circuit ruled that the

warrant was supported by probable cause. The majority

argued that a tendency to sexually abuse or exploit children is

relevant to the analysis of whether probable cause exists to

search for child pornography, asserting that “[t]here is an

intuitive relationship between acts such as child molestation

or enticement and possession of child pornography.” Id. A

suspected proclivity for child molestation was therefore a

factor that the magistrate could properly consider in making

his probable cause determination. Crucially for our purposes,

20

however, the court did not simply rely on the defendant’s

inappropriate interest in the little girl, but instead considered

it as one of several factors in its probable cause analysis. The

defendant had attempted to take the child home to watch

movies with him, and according to the court

it would strain credulity to believe that Colbert

was attempting to lure the child there to watch,

say, “Mary Poppins” or “The Sound of Music,”

or to engage in basket weaving or a game of

pickup sticks. The circumstances suggest that

Colbert intended to victimize the child in some

manner, and as the Supreme Court recognized

nearly twenty years ago, “evidence suggests

that pedophiles use child pornography to seduce

other children into sexual activity.”

Id. (quoting Osborne v. Ohio, 495 U.S. 103, 111 (1990)). The

implication is that combining the evidence of the defendant’s

suspected pedophilia with his specific desire to watch movies

at his home with an unrelated five-year-old girl provided

probable cause for thinking that the movies to be watched

were child pornography, intended for use in a seductive

manner. The specific reference to watching movies at the

defendant’s home was crucial to the court’s totality-of-the-

circumstances assessment that probable cause was present.

See id. at 577 (distinguishing Hodson and Falso on the basis

that “[n]either case involved an application for a search

warrant based on the defendant’s contemporaneous attempt to

entice a child”). Our case also does not involve a

“contemporaneous attempt to entice a child,” and there is no

suggestion that John had ever attempted to use child

21

pornography or other videos to ensnare his alleged victims.

Because all of the alleged assaults took place at school, it

makes no sense to suppose that he would have kept child

pornography in his home to aid him in his criminal endeavor.

And at all events, as we have noted, Joseph neither averred

the existence of a connection between the two types of

conduct nor alleged facts from which the Superior Court

judge could reasonably have inferred that such a nexus

existed.

Furthermore, for reasons explained above, the Eighth

Circuit’s assertion that there exists an “intuitive relationship”

between two distinct crimes is suspect. Notwithstanding its

own precedent requiring courts to confine themselves to the

“four corners of the affidavit,” Olvey, 437 F.3d at 807, the

court found probable cause in an affidavit that provided

neither evidence for nor an averment of the correlation in

question. We consider ourselves bound to refer only to the

contents of Joseph’s submission to the Superior Court judge

who issued the warrant, and (as we have explained) those

contents cannot reasonably have been read to establish the

requisite indicia of probable cause.

IV

It is settled law that a probable cause affidavit must set

forth all the facts upon which the affiant seeks to rely in

obtaining a warrant. The affidavit in this case omitted the

linchpin allegation on which any reasonable belief in the

existence of probable cause must have depended. Joseph

therefore cannot be regarded as having acted in “good faith”

within the meaning of Leon, and the Virgin Islands courts

22

were right to suppress the illegally-seized journals. We will

affirm their judgment.

23

Gov’t of the Virgin Islands v. John

09-4185

Fuentes, Circuit Judge, Dissenting.

In Davis v. United States, The Supreme Court made it

clear that the sole purpose of the exclusionary rule is to deter

Fourth Amendment violations. 564 U.S. ---, slip op. at 6

(2011). We do not apply it to sanction errant magistrate

judges. Id. at 8. Nor do we apply it when a police officer

makes the same legal error as the judge who issued the

warrant. Rather, we apply the “extreme sanction of

exclusion” only as a “last resort” to deter police conduct that

is “deliberate, reckless or grossly negligent.” United States v.

Leon, 468 U.S. 897, 916, 926 (1984); Davis, 564 U.S. ---, slip

op. at 7, 8; Herring v. United States, 555 U.S. 135, 144

(2009). Here, the trial court made no finding that police

officer Naomi Joseph acted deliberately, recklessly, or with

gross negligence. Thus, I see no support for the proposition

that the Majority’s ruling will have a beneficial deterrent

effect. I respectfully dissent because excluding the evidence

in this case imposes great costs and “offends basic concepts

of the criminal justice system.” Leon, 468 U.S. at 908. 1

I.

Following a presentation to Tydel John’s sixth-grade

class on the difference between appropriate and inappropriate

touching, several students reported that John had engaged in

inappropriate contact with them. After interviewing some of

the students, police officer Naomi Joseph submitted an

affidavit and request for a warrant to search John’s home.

The affidavit stated that “persons who commit sexual

offenses involving children customarily hide evidence of such

offenses, including notes, photographs, computer files, in

their homes and on their computer.” (J.A. 108, 182). Based

on this belief, Joseph concluded that she would find

notebooks, pornographic photos of children and computer

files containing pornographic notes or photographs of

children. A Superior Court Judge determined there was

probable cause to believe evidence of sexual contact would be

1

I agree with my colleagues that we have jurisdiction over

this interlocutory appeal pursuant to 48 U.S.C. § 1613.

1

found in John’s home. Ultimately, police searched John’s

home and, while looking for evidence of child pornography,

they found notebooks containing chronicles of John’s

exploitation of young girls.

On John’s motion, a Virgin Islands superior court

judge, relying on the Sixth Circuit’s decision in United States

v. Hodson, 543 F.3d 286 (6th Cir. 2008), held that because a

warrant establishing probable cause for child molestation

does not necessarily provide probable cause to search for

child pornography, John’s notebooks must be suppressed. I

believe that the Majority decision affirming that suppression

to be wrong under the good faith exception to the

exclusionary rule and contrary to the Supreme Court’s most

recent pronouncement of that rule in Davis v. United States,

564 U.S. ---slip op. at 8-9 (2011). In short, “[b]ecause

suppression would do nothing to deter police misconduct in

these circumstances, and because it would come at a high cost

to both the truth and the public safety,” I respectfully dissent.

Id. at 1.

II.

My disagreement with the Majority is not that a

correlation between child abuse and child pornography was

not properly established. Indeed, there may be a nexus. As

then Circuit Judge Sotomayor, observed, “[p]erhaps it is true

that all or most people who are attracted to minors collect

child pornography.” United States v. Falso, 544 F.3d 110,

122 (2d Cir. 2008)(Sotomayor, J.). And perhaps it is not. 2 In

2

The literature is mixed. Most of the studies are concerned

with whether possession of child pornography causes the

possessor to actually commit a sexual offense against a child.

The reverse relationship—whether child molesters are more

likely to possess child pornography—has been of less interest

to scholars. It is clear that the “empirical literature is unable

to validate the assumption that there is a causal connection

between possession of child pornography and child sex

abuse.” Carissa Byrne Hessick, Disentangling Child

Pornography from Child Sex Abuse, 88 Wash. U. L. Rev.

853, 875(2011). But it is equally clear that the empirical data

shows a high correlation between general pornography

consumption and child molestation. See Neil Malamuth &

2

this case, I agree that the judge who issued the warrant should

have insisted on a more direct connection between child

abuse and child pornography. But, in my view, the failure to

allege the connection between the two does not support the

Majority’s view that Officer Joseph was “grossly negligent”

and that failure does not justify the extreme sanction of

exclusion.

The Supreme Court has articulated two principles that

limit the application of the exclusionary rule. The rule

applies “only where it result[s] in appreciable deterrence”

and, even when it does, “the benefits of deterrence must

outweigh the costs.” Herring, 555 U.S. at 141 (citing Leon,

468 U.S. at 909, 910) (internal quotation marks omitted); see

also Davis, 564 U.S. ---, slip op. at 6. There is likely to be

no appreciable deterrence “when an officer acting with

objective good faith has obtained a search warrant and acted

within its scope” because “[i]n most such cases, there is no

police illegality and thus nothing to deter.” Leon, 468 U.S. at

920-21. On the other hand, when an officer exhibits

“deliberate, reckless, or grossly negligent disregard for Fourth

Amendment rights, the deterrent value of exclusion is strong

and tends to outweigh the resulting costs.” Davis, 564 U.S. --

-, slip op. at 8 (internal quotation marks and citation omitted).

The Majority believes that its decision will have a

deterrent effect because Joseph’s behavior was, “at a

minimum, grossly negligent.” (Maj. Op. at 16.) This is a

factual determination that is not supported by the record. Cf.

Franks v. Delaware, 438 U.S. 154, 155 (1978) (concluding

that a defendant must prove by a preponderance of the

evidence at a factual hearing that an affiant knowingly,

intentionally, or with reckless disregard for the truth, included

a false statement in an affidavit). Moreover, we are not in a

position to make such a finding, depending as it does on

assessments of credibility and demeanor that are not readily

apparent in a transcript. Absent such a finding, “the

deterrence rationale loses much of its force and exclusion

Mark Huppin, Drawing the Line on Virtual Child

Pornography: Bringing the Law in Line with the Research

Evidence, 31 N.Y.U. Rev. L. & Soc. Change 773, 794 (2007)

(“Overall, these data do indicate that child molesters have had

more pornography exposure than other groups.”).

3

cannot pay its way.” Davis, 564 U.S. ---, slip op. at 8

(internal quotation marks and citation omitted).

The Majority further concludes that the warrant was

“based on an affidavit so lacking in indicia of probable cause

as to render official belief in its existence entirely

unreasonable,” and hence culpable enough to be deterred by

applying the exclusionary rule. (Maj. Op. at 11 (quoting

United States v. Tracey, 597 F.3d 140, 151 (3d Cir. 2010)).

However, applicable precedent requires us to determine the

culpability of a police officer’s conduct in an objective

fashion, asking whether “a reasonably well trained officer

would have known that the search was illegal in light of all

the circumstances.” Herring, 555 U.S. at 145 (quoting Leon,

468 U.S. at 922 n.23).

In this light, the question is what a reasonably well

trained officer would have known when applying for a

warrant in December 2007. Such an officer would have

known that probable cause exists when 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), but little else. In December 2007, there were no

precedents applying this broad standard to analogous facts.

Under such circumstances, a reasonable police officer would

do exactly what Joseph did: she would submit a request to a

judge asking whether there is probable cause for a warrant.

And, lacking legal training herself, she would then rely on

that judicial determination to do her job. One might argue

that suppressing evidence obtained when a warrant is invalid

would encourage police officers to scrutinize the warrant

closely and point out legal errors. But police officers are not

lawyers and this argument was expressly rejected in Leon as

“speculative.” 468 U.S. at 918.

The reasonably well-trained officer would fare no

better today. While that officer would have the benefit of

several court of appeals opinions discussing the issue of

whether probable cause to believe that someone has molested

a child automatically provides probable cause to believe that

someone will possess photographic evidence of that crime (or

photos used to facilitate the crime—tools of a despicable

trade), those opinions provide conflicting guidance. Compare

Hodson, 543 F.3d at 292, 293 (concluding that there is no

4

probable cause in such circumstances and applying the

exclusionary rule), with Falso, 544 F.3d at 122, 125

(concluding that there was no probable cause, but refusing to

apply the exclusionary rule), and with United States v.

Colbert, 605 F.3d 573, 576, 578-79 (8th Cir. 2010)

(concluding that the relationship between child molestation

and child pornography is “intuitive,” thus providing probable

cause, and then holding in the alternative that the

exclusionary rule would not apply).

The split in the courts of appeals that have addressed

this issue shows that even judges, steeped in the law and

acting in the utmost good faith, can have different opinions on

the issue. If even the experts cannot agree on whether

probable cause to search for evidence of child molestation

provides probable cause to search for child pornography, it

was not objectively unreasonable—let alone, entirely

unreasonable—for Joseph to take one side of the controversy

over the other, even if we now disagree with that decision.

Cf. Leon, 468 U.S. at 926 (noting divided opinion among

judges as to the existence of probable cause in that case and

then observing that under such circumstances “the officers’

reliance on the magistrate’s determination of probable cause

was objectively reasonable, and application of the extreme

sanction of exclusion is inappropriate”); see also Falso, 544

F.3d at 128 (stating that this is an issue “upon which

reasonable minds can differ” before concluding that police

officers acted in good faith).

Even the Second Circuit, which quite correctly found

the supposed connection between child molestation and child

pornography to be nothing more than an “inferential fallacy

of ancient standing,” could not come to the conclusion that a

police officer acting on a warrant based on such an

assumption was entirely unreasonable. See Falso, 544 F.3d at

128 (“Once the district court rules on the legal sufficiency of

the facts alleged in the affidavit, the officers were justified in

executing the warrant.”). It is not difficult to see why.

Probable cause determinations are not, and never have been,

based on rigid logic. As the Supreme Court explained almost

thirty years ago, evidence must be “seen and weighed not in

terms of library analysis by scholars, but as understood by

those versed in the field of law enforcement. . . . [P]robable

cause is a fluid concept—turning on the assessment of

5

probabilities in particular factual contexts—not readily, or

even usefully, reduced to a neat set of legal rules.” Gates,

462 U.S. at 232. It was not unreasonable for Joseph to assess

the probability that John would have child pornography and

conclude that there was probable cause.

A comparison with the Supreme Court’s recent

decision in Davis makes this clear. In Davis, the Supreme

Court declined to apply the exclusionary rule where the police

followed a court of appeals precedent authorizing their search

of an automobile because “[a]bout all that exclusion would

deter in this case is conscientious police work. Responsible

law-enforcement officers will take care to learn ‘what is

required of them’ under Fourth Amendment precedent and

will conform their conduct to these rules.” 564 U.S. ---, slip

op. at 11 (quoting Hudson v. Michigan, 547 U.S. 586, 599

(2006)). This case is the other side of the Davis coin. Here,

there was no legal precedent to guide a responsible law

enforcement official’s judgment as to whether there was

probable cause for a particular search. As I’ve said, a

responsible law enforcement official in this position does

exactly what Joseph did and seeks a legal determination of

probable cause from a judge. The police officer then relies on

this judicial determination authorizing her conduct as a tool to

“fulfill [her] crime-detection and public-safety

responsibilities.” Id. Applying the exclusionary rule in such

circumstances would serve only to “discourage the officer

from doing [her] duty,” which is “not the kind of deterrence

the exclusionary rule seeks to foster.” Id. (internal quotation

marks and citation omitted).

Joseph’s mistake was not the error of culpably

omitting a crucial fact linking child molestation with child

pornography. Her mistake was in thinking that the facts she

did provide—that “persons who commit sexual offense

crimes involving children customarily hide evidence of such

offenses, including notes, photographs, [and] computer files,

in the homes and on their computer[s]”—were sufficient to

establish probable cause to search for child pornography. In

other words, she believed there was a fair probability that a

man accused of molesting children and recording his crimes

in one medium—a written journal—might also record them in

another—photographs. Although we might now wish that she

had provided more specific justifications for this belief,

6

Joseph’s conduct was not entirely unreasonable. She made a

mistake. But that mistake will not be undone by today’s

opinion.

Without a finding of deterrence, application of the

exclusionary rule carries substantial costs:

Exclusion exacts a heavy toll on both the

judicial system and society at large. It almost

always requires courts to ignore reliable,

trustworthy evidence bearing on guilt or

innocence. And its bottom-line effect, in many

cases, is to suppress the truth and set the

criminal loose in the community without

punishment.

Davis, 546 U.S. ---, slip op at 7 (citations omitted). For all of

these reasons, I respectfully dissent.

7