PASCUAL, Joshua Ejeil A.

Law 99 – Legal Bibliography

I-A / 2012 – 30683 Prof. Emerson Bañez

What evidence is sufficient to establish probable cause for online child pornography cases before
federal courts?

With the advent of the digital age, the means of committing crimes have expanded to include
today’s technological materials. Cell phones, laptops, tablets, DVDs, and video cameras are but some of
the ways a perpetrator would use to commit a crime. Child pornography has been one of the particular
crimes that has been brought about because the means of transferring materials related to such have been
made easier due to the quick and easy way of communicating in this age. However, as digital devices are
covered by the right to privacy, particularly in the United States with regard to the Fourth Amendment,
law enforcers cannot just seize a suspected perpetrator’s belongings based solely on their beliefs and
suspicions. In this age where individual and democratic rights are held to a high standard, the law and its
enforcers have to secure more concrete bases on obtaining evidence for convicting criminals guilty of
engaging in child pornography.

The Supreme Court has ruled that a warrant is required to search the contents of computers, cell
phones, and other devices. Cloud storage remains a subject of contention, with different courts reaching
different conclusions. The Fourth Amendment provides that "no warrants shall issue, but upon probable
cause, supported by oath or affirmation, and particularly describing the place to be searched and the
persons or things to be seized."1

Probable cause is defined as “A reasonable ground to suspect that a person has committed or is
committing a crime or that a place contains specific items connected with a crime.”2 Pieces of evidence
that shall constitute sufficient grounds for establishing probable cause with witness statements and other
evidence, including hearsay evidence that would not be admissible at trial. “An officer’s suspicion or
belief, by itself, is not sufficient to establish probable cause.”3 Normally the warrant application must
demonstrate to believe that a particular person has committed a crime—"the commission element," and
that enumerated evidence relevant to the probable criminality likely is located at the place to be
searched—"the 'nexus' element."4 The Commission Element consists of the intent of the perpetrator to
commit the crime which can be established by testimonies of family and close friends, or, as in the case of
U.S. v Pruitt5, direct evidence obtained by undercover agents stating that the perpetrator views,

1 Memorandum of law in support of motion to suppress evidence— Lack of to support warrant application and other grounds,
F. Lee Bailey, Kenneth J. Fishman.

2 Black’s Law Dictionary, p. 3800.

3 Aguilar v. Texas, 378 U.S. 108, 114-15 (1964).

4 Id.

5 U.S. v. Pruitt, 638 F.3d 763
 (2011).

acquires, or accepts child pornography on a computer from an outside source6. These pieces of
evidence may include data or images on a network server. The Nexus Element requires a specific
address (i.e. the device where the alleged child-pornographic material is found); evidence for which can
be established the same way as with the Commission Element. Other evidence may acquire a different
form but shall be of the same nature and substance.

As such, with the substantial nature and totality of the aforementioned evidence, courts may now
issue warrants to have alleged perpetrators’ electronic devices searched for material related to child
pornography which, if proven were knowingly acquired, would lead to an arrest.

6 Id.