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Rhode Island Supreme Court: Conclusory Statutory Language to Describe Purported Child Porn Image Used to Support Search Warrant Affidavit Invalidates Warrant

by Anthony W. Accurso

The Supreme Court of Rhode Island held that the search warrant used to search a defendant’s home was invalid because the officer’s failure to append the alleged child porn video or a still image thereof or even describe the material with anything other than conclusory language from the statute used to support the warrant deprived the magistrate of the tools necessary to determine whether probable cause existed.

In June 2015, detectives with the North Smithfield Police Department downloaded a video titled “Jamtien.mpeg,” which appeared to the officers to contain child pornography, from an IP address owned by Verizon. A subpoena of Verizon’s records identified the IP address as having been assigned to the residence of Ralph Reisner of West Warwick.

Det. Brian Macera applied for a search warrant to search Reisner’s home, including his computers and electronic equipment. He stated that he downloaded the video using the BitTorrent protocol and provided the following description of the video in the warrant: “This video file depicts a prepubescent female on the beach removing her bathing suit exposing her genitals.”

The search of Reisner’s home resulted in officers locating seven videos of suspected child pornography on his laptop. He was charged with distribution and possession of child pornography under G.L. 1956 §§ 11-9-1.3(b)(1) and (b)(2), respectively.

Reisner filed a motion to suppress evidence resulting from the warrant on the ground that it failed to establish probable cause. The motion was denied, and Reisner was convicted on the possession charge at trial.

Resiner was sentenced to five years’ imprisonment, suspended in lieu of probation, which included requirements to attend psychological counseling and register as a sex offender. He then appealed his conviction on the suppression issue to the Rhode Island Supreme Court.

The Court observed, “The Fourth Amendment to the United States Constitution and article 1, section 6 of the Rhode Island Constitution, prohibit issuance of a search warrant absent a showing of probable cause.” State v. Cosme, 57 A.3d 295 (R.I. 2012). “Probable cause must be ascertained within the four corners of the affidavit prepared in support of the warrant and based on the totality of the circumstances presented in the affidavit.” Id.

The Court noted that it hasn’t addressed the issue of probable cause determination in connection with an alleged case of child pornography. However, the Court stated that there are clear similarities between the present case and United States v. Brunette, 256 F.3d 14 (1st Cir. 2001). In both cases, investigators obtained a search warrant based on a purported image of child pornography. Also, both cases revolved around the probable cause determination being based on an image of a merely nude child.

In Brunette, the officer applying for the search warrant failed to append a copy of the images used to support the warrant, instead providing a description of the images that mere said they were “of a prepubescent boy lasciviously displaying his genitals.” The Brunette Court determined that the officer’s “legal conclusion parroting the statutory definition” was insufficient for the magistrate to determine whether the image contained mere nudity or was actually pornographic. “[P]robable cause to issue a warrant must be assessed by a judicial officer, not an investigating agent.” Id.

In order for a magistrate judge to be able to determine whether the image is pornographic, the agent must furnish enough factual detail to allow for a review of the factors traditionally used as “guideposts” for identifying child pornography, as articulated in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986).

The Dost factors include: “(1) whether the focal point of the visual depiction is on the child’s genitalia or pubic area; (2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; (3) whether the child is depicted in an unnatural pose, or inappropriate attire, considering the age of the child; (4) whether the child is fully or partially clothed, or nude; (5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; [and] (6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.” Dost.

Reviewing the Dost factors against Macera’s description, the Court stated, “we are drawn to the conclusion that only one Dost factor is demonstrated: nudity. The other factors are simply not present.”

The Court stated that “the law is clear that nudity alone, even of a child, is not enough to support a determination of probable cause.” See Brunette; United States v. Doyle, 650 F.3d 460 (4th Cir. 2011) (holding search warrant affidavit failed to supply probable cause where it described pictures as merely “depicting ‘nude children’”).

The Court explained: “When an image or video involves sexual acts, a short description may be sufficient to establish probable cause. But when, as here, an image of a nude child is at issue, the question is far more difficult. Subtle differences may often separate a crime from a constitutionally protected image, such as an innocuous family photo or a work of art.”

Thus, the Court concluded that “there was no substantial basis for determining that probable cause existed in this case based upon the language of the affidavit.”

Accordingly, the Court vacated the judgment. See: State v. Reisner, 253 A.3d 1273 (R.I. 2021). 

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