U.S. v. Hill

• Citation: 322 F.Supp.2d 1081
• Decision Date: 17 June 2004
• Docket Number: No. CR 02-01289 AK.,CR 02-01289 AK.
• Court: U.S. District Court — Central District of California
• Parties: UNITED STATES of America, Plaintiff, v. Justin Barrett HILL, Defendant.

322 F.Supp.2d 1081

UNITED STATES of America, Plaintiff, v. Justin Barrett HILL, Defendant.

No. CR 02-01289 AK.

United States District Court, C.D. California.

June 17, 2004.

Teresa Mack, Assistant United States Attorney, Los Angeles, California, argued for the government.

Carlton F. Gunn, Deputy Federal Public Defender, Los Angeles, California, argued for defendant.

OPINION

ALEX KOZINSKI, Circuit Judge.^*

Defendant has been indicted on one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). He brings a series of pre-trial motions, raising the following issues: What must an affidavit allege to establish probable cause that images on a defendant's computer are child pornography? Is a warrant overbroad if it permits seizure of computer media without requiring that they be inspected at the scene? If it doesn't define the search methodology? Finally, are defense counsel and his expert entitled to copies of the computer media the government seized from defendant's home?

Facts

A computer technician was repairing defendant's computer when she discovered what she believed to be child pornography. She called Long Beach police, and the detective who took the call obtained a search warrant from a judge of the Long Beach Superior Court. The warrant authorized a search of the computer repair store and seizure of the computer, any work orders relating to the computer, "[a]ll storage media belonging to either [the computer] or the individual identifying himself as [defendant] at the location," and "[a]ll sexually explicit images depicting minor[s] contained in [the storage media]." By the time the detective arrived at the store to execute the warrant, defendant had picked up his computer. Based on the computer technician's affidavit, the detective got a second warrant, this one directed at defendant's home, authorizing seizure of the same items.

The affidavit on which the warrants were based described "two images of child pornography":

Image 1

Is a color picture of a female, white, approximately 15 years old, with long dark brown hair. The female is in a room standing between a couch and a coffee table. There is a framed picture on the wall above the couch. She is wearing only a long blouse and pair of socks. The blouse is open and she is exposing her breast and pubic area to the camera, which she is facing while leaning to her left.

Image 2

Is a color picture of a [sic] two females, white, approximately 7-9 years of age, both with dirty blond hair. These females are standing on a beach during the daytime. The shorter of the two females is standing to the right of the picture while the other female is standing behind her. Both females are facing the camera askew and wearing only a robe, which is open exposing the undeveloped breast and pubic area of both girls. They both are turning their faces away from the camera preventing the viewer from seeing their faces.

Officers executed the search warrant but did not find the computer in defendant's apartment.¹ In what appeared to be defendant's bedroom, they found and seized computer storage media that were eventually determined to contain images of child pornography; they also seized other evidence consistent with the warrant. Defendant was subsequently charged with one count of possession of child pornography,² in violation of 18 U.S.C § 2252A(a)(5)(B).³

At trial, the government will likely offer into evidence files from two zip diskettes recovered in the search. Defendant seeks to suppress this evidence on two grounds: (1) the affidavit on which the warrant was based did not establish probable cause to believe he was in possession of child pornography; and (2) the warrant was overbroad because it allowed seizure of all computer disks belonging to defendant regardless of whether they contained child pornography, and because it placed no limitations on the forensic examination of the disks that were seized. Defendant has also filed a motion for discovery, requesting "mirror image" copies of the computer media seized from him that are now in the government's possession.

Analysis

1. Not all nude pictures of children are child pornography: Only images containing "lascivious exhibition of the genitals or pubic area" qualify. 18 U.S.C. §§ 2256(8)(B), 2256(2)(B)(iii); see also Doe v. Chamberlin, 299 F.3d 192, 196 (3d Cir.2002) ("Congress has chosen to criminalize only photos of the genitalia or pubic areas and of these parts only when they are the subject of `lascivious exhibition.'"). To support issuance of the warrant, the affidavit had to establish probable cause that the images on defendant's computer were lascivious.

Lasciviousness⁴ is an elusive concept, and courts have struggled to develop a test for identifying it.⁵ The predominant test involves weighing six factors, commonly known as the Dost factors: (1) whether the focal point of the visual depiction is the child's genitalia or pubic area; (2) whether the setting 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 in inappropriate attire for his age; (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. See United States v. Dost, 636 F.Supp. 828, 832 (S.D.Cal.1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir.1987).⁶ While the Dost factors attempt to bring order and predictability to the lasciviousness inquiry, they are highly malleable and subjective in their application. Applying these factors to the two images described in the affidavit demonstrates their shortcomings.

The first Dost factor looks to whether the focal point of the image is the child's pubic area or genitalia. But it is not clear how this factor contributes to lasciviousness. A close-up image of female genitalia in a medical textbook will surely be less lascivious than a photograph showing the entire female body with the pubic area only partially visible. Nor is it easy to tell whether the genitalia are the focus of the picture. Do they need to be at or near the center? Does the subject or another person have to draw particular attention to them? In reality, exposed genitals tend to create their own focal point. Whether the genitals are the focus of the picture seems to involve as subjective an inquiry as lasciviousness itself.

The second Dost factor asks whether the setting is sexually suggestive, but what is a sexually suggestive setting? A bedroom might be the classic example, but that's also one of the most likely places where one might find a nude child. Defendant argues that the first image — the one of a girl about fifteen years old — is not lascivious in part because she is standing in a living room, not a bedroom. The government argues just the opposite: The fact that a fifteen-year-old girl is standing partially nude in the living room — a wholly inappropriate place for nudity — makes the pose sexually suggestive. Similarly, defendant contends that the photograph of the young girls at the beach is not lascivious because the beach is not a sexually suggestive setting. But the beach — where even clothed people wear scanty bathing suits — can be a highly erotic location. Just ask Deborah Kerr and Burt Lancaster. See FROM HERE TO ETERNITY (Columbia Pictures Corp.1953).

The third factor considers whether the pose or attire of the child is inappropriate. Courts applying this factor have mentioned garters, lingerie and high heels. See, e.g., United States v. Amirault, 173 F.3d 28, 33 (1st Cir.1999) ("As the girl is naked, the issue of inappropriate attire is inapposite. But for what it is worth, she is wearing no sexually suggestive clothing such as garters, lingerie, or high heels."); United States v. Villard, 885 F.2d 117, 124 (3d Cir.1989) ("[A] photograph of a naked girl might not be lascivious (depending on the balance of the remaining Dost factors), but a photograph of a girl in a highly sexual pose dressed in hose, garters, and a bra would certainly be found to be lascivious."). Defendant argues that bathrobes and shirts are not inappropriate, nor are the poses. The government counters that it is highly inappropriate for minor girls to pose wearing nothing but an open shirt and socks, or wearing open robes in a public area such as a beach. Nor, contends the government, are a shirt or robes less sexually provocative than garters and high heels; it's a matter of taste. This, too, is a highly subjective and easily manipulated inquiry.

The fourth factor is whether the minor is fully or partially clothed. Again, there is no clear line between lascivious and non-lascivious. The girls described by the technician were all partially clothed, but their pubic areas and underdeveloped breasts were exposed. Once the genital area is exposed, covering other parts of the body may simply call attention to the parts that are uncovered. And, while an image of a fully-clothed minor engaged in sexual conduct could be lascivious, a family snapshot of a nude child bathing presumably would not.⁷

The fifth Dost factor measures coyness or the minor's apparent willingness to engage in sexual activity. Almost any facial expression — or lack thereof — could fairly be described as one of these. A young girl looking straight at the camera, as in Image 1, could be perceived as willing to engage the viewer. But a naked child looking away from the camera, as in Image 2, or covering her face with her hands, could be coy. Not much help here.

Finally, the sixth Dost factor asks whether the conduct is intended to elicit a sexual response in the viewer. In other words, "[t]he final Dost factor simply puts again the underlying question: Is the exhibition lascivious?" Chamberlin, 299 F.3d at 196. This...