*

The Honorable Amul R. Thapar, United States District Judge for the Eastern District of

Kentucky, sitting by designation.

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0359p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

UNITED STATES OF AMERICA,

 Plaintiff-Appellant,

v.

DOUGLAS FRECHETTE,

 Defendant-Appellee.

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No. 08-2191

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 08-00126-001—Janet T. Neff, District Judge.

Argued: August 6, 2009

Decided and Filed: October 8, 2009 

Before: MOORE and ROGERS, Circuit Judges; THAPAR, District Judge.*

_________________

COUNSEL

ARGUED: Nils R. Kessler, ASSISTANT UNITED STATES ATTORNEY, Grand

Rapids, Michigan, for Appellant. Helen C. Nieuwenhuis, NIEUWENHUIS LAW

OFFICES, P.C., Grand Rapids, Michigan, for Appellee. ON BRIEF: Nils R. Kessler,

ASSISTANT UNITED STATES ATTORNEY, Grand Rapids, Michigan, for Appellant.

Helen C. Nieuwenhuis, NIEUWENHUIS LAW OFFICES, P.C., Grand Rapids,

Michigan, for Appellee. 

THAPAR, D. J., delivered the opinion of the court, in which ROGERS, J., joined.

MOORE, J. (pp. 12-17), delivered a separate dissenting opinion.

1
No. 08-2191 United States v. Frechette Page 2

_________________

OPINION

_________________

THAPAR, District Judge. The issue in this case is whether it is probable that

someone who pays approximately $80 for a subscription to a web site is likely to use that

subscription. Because we hold that it is probable, we REVERSE the district court and

REMAND this case.

I.

The facts in this case are undisputed. On April 3, 2008, Agent Craig Smith of

the Bureau of Immigration and Customs Enforcement (“ICE”) presented an affidavit to

a magistrate judge containing the following information:

On November 26, 2007, agents learned that on January 13, 2007, the defendant

paid $79.95 for a one-month subscription to a child pornography subscription web site.

Agents had previously viewed the splash pages for this web site (the pages that welcome

the visitors to the web site) on December 27, 2006, and found that it contained the

following photographic images of child pornography:

(1) An image depicting two naked prepubescent females with one spreading

the legs of the other to expose the genitalia to the camera in a lewd and

lascivious manner;

(2) An image of a naked prepubescent female identified as “Gayla 11 y.o.”

indicating her age to be eleven-years old. She is posed with her genitalia

exposed to the camera in a lewd and lascivious manner;

(3) An image of a naked prepubescent female inserting an object into her

vagina;

(4) A blinking indicator that identifies the girls on the web site as being

between five to fourteen-years of age;

(5) The “join us now” page had images of minor females displaying their

genitalia in a lewd and lascivious manner with an advertised price of

$79.95 for access to the web site.
No. 08-2191 United States v. Frechette Page 3

1

PayPal is an internet service to pay for transactions online. It effectively serves as an internet

bank account.

2

Out of privacy concerns, the court has removed the exact address.

To pay for this subscription, the defendant opened a PayPal account in his own

name and address.1

 He listed a phone number registered to the same address—8-- Van

---- Street, Muskegon, Michigan 49442—where he lived with his mother.2

 PayPal

records indicate that January 13, 2007, was the first and last day he used this PayPal

account. The defendant used his debit card with Huntington Bank to transfer $79.95 to

his PayPal account.

In addition, the agent determined that Comcast owned the IP address used to

access the web site and that the person who used that IP address had an email address

that had been registered on January 13, 2007, to the residence located at 8-- Van ----

Street. Agent Smith also stated that based on his experience, evidence of the storage of

child pornography is often present on the computer hard drives of consumers of child

pornography—sometimes in multiple locations on the hard drive, some of which they

may not even be aware of.

The affidavit further indicated that the defendant had a previous criminal history

and was listed in the Michigan State Sex Offender Registry at the same address. At the

time of the affidavit, the probation office, the postal service, and the department of motor

vehicles listed the defendant at that address as well.

On April 3, 2008, Agent Smith presented the affidavit to a magistrate judge, who

determined that probable cause existed that evidence could be found at 8-- Van ----
No. 08-2191 United States v. Frechette Page 4

Street, and thus issued a search warrant. Upon executing the search warrant on April 8,

2008, the agents recovered images of child pornography from the defendant’s computer.

The defendant also confessed to possessing child pornography during an interview with

an agent. On May 14, 2008, a federal grand jury indicted the defendant on two counts

related to the receipt, 18 U.S.C. § 2252(a)(2)(A), and possession, 18 U.S.C.

§ 2252(a)(4)(B), of child pornography.

On September 12, 2008, the district court held a hearing on the defendant’s

motion to suppress the evidence. The district court suppressed the evidence because it

found that the evidence of the January 13, 2007, subscription was stale, and in turn that

the affidavit lacked a “link between the factual basis and the conclusion that there was

a fair probability that evidence of a crime would be found at the defendant’s home or on

the computer.”

II.

As a preliminary matter, stale information cannot be used in a probable cause

determination. See United States v. Spikes, 158 F.3d 913, 923 (6th Cir. 1998) (citing W.

LaFave, Search and Seizure § 3.7 (3d ed. 1996)). The staleness inquiry depends on the

“inherent nature of the crime.” Id. (quoting United States v. Henson, 848 F.2d 1374,

1382 (6th Cir. 1988)). Thus, the court must first focus on whether information that is

sixteen-months old is stale. In the drug trade, the answer is usually yes. See United

States v. Kennedy, 427 F.3d 1136, 1142 (8th Cir. 2005) (“[I]nformation of an unknown

and undetermined vintage relaying the location of mobile, easily concealed, readily
No. 08-2191 United States v. Frechette Page 5

consumable, and highly incriminating narcotics could quickly go stale in the absence of

information indicating an ongoing and continuing narcotics operation.”) (citations

omitted). That is so because drugs are usually sold and consumed in a prompt fashion.

With respect to images of child pornography, however, the answer may be no because

the images can have an infinite life span.

In analyzing whether information is stale, this court considers the following

factors:

(1) the character of the crime (chance encounter in the night or

regenerating conspiracy?),

(2) the criminal (nomadic or entrenched?),

(3) the thing to be seized (perishable and easily transferrable or of

enduring utility to its holder?), and

(4) the place to be searched (mere criminal forum of convenience or

secure operational base?).

United States v. Abboud, 438 F.3d 554, 572-73 (6th Cir. 2006) (citing Spikes, 158 F.3d

at 923) (upholding search warrant for evidence of bank fraud when the fraud occurred

three years before the warrant application). The application of these factors to the instant

case reveals that the information presented to the magistrate judge was not stale.

1. Character of the Crime. As we have explained on multiple occasions, child

pornography is not a fleeting crime. And “because the crime [of child pornography] is

generally carried out in the secrecy of the home and over a long period, the same time

limitations that have been applied to more fleeting crimes do not control the staleness

inquiry for child pornography.” United States v. Paull, 551 F.3d 516, 522 (6th Cir.

2009) (citing United States v. Wagers, 452 F.3d 534, 540 (6th Cir. 2006)). Indeed, in
No. 08-2191 United States v. Frechette Page 6

Paull, the search warrant approved was based on an affidavit that included evidence of

the defendant’s subscription to a child pornography web site that was purchased thirteen

months before the actual search. Id. at 522-23 (citing United States v. Lacy, 119 F.3d

742, 746 (9th Cir. 1997) (upholding search for child pornography based on evidence that

the defendant subscribed to a similar web site ten months prior to the search)).

Moreover, here the agent stated that in his experience evidence of child pornography

downloading often remains on a computer for lengthy periods of time. See United States

v. Williams, 544 F.3d 683, 686 (6th Cir. 2008) (holding that courts may give

“considerable weight to the conclusion of experienced law enforcement officers

regarding where evidence of a crime is likely to be found” (citing United States v.

Bethal, 245 F. App’x 460, 465 (6th Cir. 2007))); see also Wagers, 452 F.3d at 540

(“[E]vidence that a person has visited or subscribed to web sites containing child

pornography supports the conclusion that he has likely downloaded, kept, and otherwise

possessed the material.” (citing United States v. Martin, 426 F.3d 68, 77 (2d Cir. 2005);

United States v. Froman, 355 F.3d 882, 890-91 (5th Cir. 2004))).

2. The Criminal. The affidavit clearly established that the defendant was not

nomadic. Indeed, all of the evidence indicated the defendant lived in the same house for

the entire sixteen months in question.

3. The Thing to be Seized. Unlike cases involving narcotics that are bought,

sold, or used, digital images of child pornography can be easily duplicated and kept

indefinitely even if they are sold or traded. In short, images of child pornography can
No. 08-2191 United States v. Frechette Page 7

have an infinite life span. See United States v. Terry, 522 F.3d 645, 650 n.2 (6th Cir.

2008) (“Images typically persist in some form on a computer hard drive even after the

images have been deleted and, as ICE stated in its affidavit, such evidence can often be

recovered by forensic examiners.” (citing Lacy, 119 F.3d at 746)).

4. The Place to be Searched. The place to be searched in this case was the

defendant’s residence, which is clearly a “secure operational base.” See Paull, 551 F.3d

at 522 (holding that the crime of possession of child pornography “is generally carried

out in the secrecy of the home and over a long period” (citing Wagers, 452 F.3d at 540)).

All of the Abboud factors indicate that the evidence was not stale in this case.

Thus, the magistrate judge was correct to consider the defendant’s subscription when

making the probable cause determination.

III.

The staleness inquiry, however, does not conclude our analysis. The next

question is whether the magistrate judge had a substantial basis to conclude that probable

cause existed. See United States v. Gardiner, 463 F.3d 445, 470 (6th Cir. 2006)

(citations omitted). We conclude the magistrate judge had such a basis.

Probable cause for a search warrant exists when “there is a fair probability that

contraband or evidence of a crime will be found in a particular place.” United States v.

Berry, 565 F.3d 332, 338 (6th Cir. 2009) (quoting Illinois v. Gates, 462 U.S. 213, 236

(1983)). When reviewing a magistrate judge’s probable cause determination, a

reviewing court should give great deference to a magistrate judge’s probable cause
No. 08-2191 United States v. Frechette Page 8

determination and reverse that decision only if it was arbitrarily made. Terry, 522 F.3d

at 647-48 (citing United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc)).

The reviewing court “may only look within the four corners of the affidavit.” Abboud,

438 F.3d at 571 (citing United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005)). In

other words, the reviewing court may reverse the magistrate judge’s probable cause

determination only if it concluded that the affidavit did not set forth a substantial basis

for finding probable cause. See Gardiner, 463 F.3d at 470. The warrant here was valid

because the affidavit provided the magistrate judge with a substantial basis for finding

probable cause. The evidence before the magistrate judge revealed, among other things,

that the defendant paid $79.95 to access a commercial child pornography site on

January 13, 2007, using an email address and PayPal account connected to his residence

at 8-- Van ---- Street. Evidence that an individual subscribed to child pornography web

sites “supports the conclusion that he has likely downloaded, kept, and otherwise

possessed the material.” Wagers, 452 F.3d at 540 (citing Martin, 426 F.3d at 77;

Froman, 355 F.3d at 890-91). Moreover, the agents verified that the defendant, a

registered sex offender, continued to reside at this address at the time of the search on

April 8, 2008. Based on his four years of experience handling child pornography cases,

Agent Smith stated in his affidavit that consumers of child pornography usually maintain

illegal images using their computers. Further, Agent Smith noted that evidence can

remain on the computers even after the viewer deletes the images. Considering all of

these facts, there clearly was a “substantial basis” for the magistrate judge to conclude
No. 08-2191 United States v. Frechette Page 9

3

Our view of probable cause is neither novel nor radical, and does not expand on that of this

circuit or other circuits. The determination of probable cause is an inherently fact-based analysis that must

be conducted on a case-by-case basis. See United States v. Dotson, 49 F.3d 227, 230 (6th Cir. 1995)

(quoting United States v. Richardson, 949 F.2d 851, 856 (6th Cir. 1991)). By determining whether the

facts that were before the magistrate judge gave rise to a fair probability that contraband or evidence of

a crime would be found at the place to be searched, we are engaging in the same analysis that is employed

every day in courts across the country. See, e.g., United States v. Gaskin, 364 F.3d 438, 457 (2d Cir.

2004); United States v. Tellez, 217 F.3d 547, 549 (8th Cir. 2000).

4

The affidavit’s focus on the one-month subscription does not suggest an absence of probable

cause. There are many situations when a single fact can lead to probable cause. For example, a police

officer that witnesses a drug dealer dealing drugs out of his home could meet the threshold for probable

cause and receive a search warrant to search for drugs in the drug dealer’s home. Indeed, a one-month paid

subscription to a child pornography web site certainly provides a fair probability that the search will reveal

evidence of the crime on the defendant’s computer. In any event, more than one fact exists in this case.

Frechette (1) viewed the splash page; (2) set up a PayPal account to pay for his subscription; (3) transferred

the exact amount from his debit card to his PayPal account; and (4) paid $79.95 for a month’s viewing of

the images of child pornography.

that there was a fair probability that evidence regarding illegal images of child

pornography could be found on a computer located at 8-- Van ---- Street. Thus, the

affidavit provided the magistrate judge with a sufficient basis for finding probable

cause.

3

The defendant argues that a one-month subscription was not enough to assume

that evidence would exist at the residence.4

 But requiring law enforcement to show a

two-month or multiple-month subscription before finding probable cause exists would

effectively turn the requirement of a fair probability of finding contraband into one of

near certainty. Indeed, there is a fair probability that someone who paid for a one-month

subscription would use it, whereas a person who pays a second time almost certainly

made the determination to pay again after viewing the site. Cf. United States v. Gourde,

440 F.3d 1065, 1071 (9th Cir. 2006) (en banc) (“Having paid for multi-month access to

a child pornography site, [the defendant] was also stuck with the near certainty that his

computer would contain evidence of a crime that he received or downloaded images in
No. 08-2191 United States v. Frechette Page 10

5

We agree with the dissent that the probable cause analysis should not take into account society’s

perception of the severity or heinous nature of the crime. The proper inquiry is whether there is a “fair

probability” that evidence of the crime—whether it is a crime of copyright infringement, child

pornography, or terrorism—will be found in a particular place. Law enforcement officers and

prosecutors—not judges—determine the government’s priorities in investigating and prosecuting crime.

The role of the judge is to look at whether the government presents enough evidence of a crime to

determine if probable cause exists to justify a search.

violation of § 2252.”). Certainty has no part in a probable cause analysis. See Gates,

462 U.S. at 246 (holding “probable cause does not demand the certainty we associate

with formal trials” but only “a fair probability”). Stated another way: if someone spends

$80 for something, it is highly likely that the person will use it—whether it is a tie, a

video game, or a subscription to a pornographic web site.5

 Moreover, the fact that the

defendant had viewed the splash page that contained pornographic images of children,

set up an account with PayPal on the same day, and transferred the exact amount of

funds needed from his debit card to the PayPal account to pay for the subscription makes

it all the more likely he would access what he paid to view. To hold otherwise would

defy logic. Cf. Gates, 462 U.S. at 238 (holding that task of magistrate judge is simply

to make “practical, common-sense decision”).

It is not likely that the defendant is someone who was innocently surfing the

internet and accidentally paid $79.95 for a subscription to the web site. Common sense

says he used his subscription. If the web site was accessed, evidence of child

pornography was probably on his computer. See Gourde, 440 F.3d at 1071 (“Thanks to

the long memory of computers, any evidence of a crime was almost certainly still on his

computer, even if he tried to delete the images.”). Agent Smith said as much in his

affidavit, and the magistrate judge could rely upon the experience of the agent.
No. 08-2191 United States v. Frechette Page 11

IV.

There is no need to go into a lengthy analysis of whether the agents relied on the

search warrant in good faith because the magistrate judge had a substantial basis for

finding probable cause. However, even if the magistrate judge did not have a substantial

basis for finding probable cause, suppression of the evidence is nevertheless

inappropriate because the agents relied on the search warrant in good faith. See United

States v. Leon, 468 U.S. 897, 922-23 (1984).

V.

Since the defendant likely viewed images of child pornography and maintained

the images on his computer at his residence, the evidence of his subscription to the child

pornography web site was not stale. Thus, the magistrate judge could conclude that

there was a fair probability that the evidence still existed sixteen months later.

For the foregoing reasons, we REVERSE and REMAND for further proceedings

consistent with this opinion.
No. 08-2191 United States v. Frechette Page 12

__________________

DISSENT

__________________

KAREN NELSON MOORE, Circuit Judge, dissenting. I wholly disagree with

the radical view of probable cause expressed in the majority opinion—a view far more

expansive than any circuit has taken to date—and, for that reason, I must vigorously

dissent. The affidavit supporting the warrant in the instant case established a single fact

particular to Frechette: Frechette bought a one-month membership to one website

displaying child pornography. This is the sole basis upon which the majority rests its

finding of probable cause, and the majority insists that this result is dictated by our case

law and that of other circuits. Such an assertion, however, ignores the fact that the

instant appeal is materially distinguishable from these prior cases.

For example, in United States v. Wagers, 452 F.3d 534 (6th Cir. 2006), the

affidavit in support of the warrant noted that the defendant had purchased memberships

to three child pornography websites and that the defendant’s home IP address was

associated with two of those purchases. Id. at 537, 539. Wagers’s repeated purchase of

memberships to multiple websites for several months established a pattern of childpornography association that provided a substantial basis for the magistrate issuing the

search warrant to infer that Wagers was a collector of child pornography. The issuing

magistrate could further infer that Wagers, as a collector, likely downloaded images and

that there was a fair probability that evidence of such downloading would be on his

computer. Unlike Wagers, however, Frechette subscribed to only one child-pornography
No. 08-2191 United States v. Frechette Page 13

website for only one month. The affidavit contains no indication that Frechette did

anything more. A one-time purchase of a one-month membership to one childpornography website simply does not allow a magistrate to draw the same inferences as

the court did in Wagers, nor does Wagers dictate such a result.

United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006) (en banc), cited in

Wagers and by the majority here, is distinguishable on similar grounds. In Gourde, the

defendant subscribed to a child-pornography website “from November 2001 until

January 2002.” Id. at 1068. Notably, “Gourde never cancelled his membership—the

FBI shut down the site at the end of January, while he was still a member.” Id. In

explaining what “identifying facts about Gourde . . . made it fairly probable that he was

a child pornography collector and maintained a collection of child pornography and

related evidence,” the affidavit noted, among other facts, that “Gourde remained a

member for over two months, although he could have cancelled at any time.” Id.

Upholding the search warrant, the Ninth Circuit stressed that

Gourde is different . . . from a person who actually mustered the money

and nerve to become a member [of a child-pornography website] but, the

next morning, suffered buyer’s remorse or a belated fear of prosecution

and cancelled his subscription. Instead, Gourde became a member and

never looked back—his membership ended because the FBI shut down

the site.

Id. at 1070–71 (emphasis added). The majority here even recognizes that Gourde

involved “multi-month access,” Maj. Op. at 9, but fails to appreciate that important

distinction or to acknowledge the Ninth Circuit’s cautionary language about what

Gourde did not do. See Gourde, 440 F.3d at 1070–71. In contrast with Gourde, as with
No. 08-2191 United States v. Frechette Page 14

1

“An e-group is an internet forum through which persons with similar interests can interact by

e-mail and online ‘chat,’ and by posting messages, pictures, and videos to the group’s website.” Martin, 426 F.3d at 70 n.1. Members of a particular e-group are generally authorized to distribute materials to and

receive materials from other members of the same e-group via e-mail. See United States v. Coreas, 419

F.3d 151, 152 (2d Cir. 2005) (describing the basic function of the Candyman e-group, which was hosted

by Yahoo!).

Wagers, Frechette’s single site, one-month membership, with no renewal for the

following sixteen months, does not allow a magistrate to draw the inference that

Frechette was a collector or distributor. Frechette did not, in fact, become “a member

and never look[] back,” Gourde, 440 F.3d at 1071, but rather he ceased affiliation with

the site of his own accord.

Two additional cases that the majority cites to support its conclusions are also

factually distinct from the instant case and do not control the outcome here. In United

States v. Martin, 426 F.3d 68 (2d Cir. 2005), the affidavit asserted that the defendant

“was a member of the girls12-16 e-group, whose . . . primary reason for existence[] was

the trading and collection of child pornography.” Id. at 75 (emphasis added).1

 Thus,

in Martin, membership in the group itself raised an inference that the defendant

downloaded child pornography—the defendant could not take advantage of the primary

stated illicit purpose of the group without downloading material on his computer. See

also Coreas, 419 F.3d at 156–58 (involving e-group membership). Likewise, the

defendant in United States v. Froman, 355 F.3d 882 (5th Cir. 2004), was a member of

the e-group Candyman, the purpose of which “was to receive and distribute child

pornography and erotica.” Id. at 890 (emphasis added). This fact led the Froman panel

to conclude that “[t]he magistrate was entitled to infer from the affidavit that the singular
No. 08-2191 United States v. Frechette Page 15

2

It appears to be an open question whether viewing child pornography on the internet is, in itself,

a crime. See Martin, 426 F.3d at 77; United States v. Falso, 544 F.3d 110, 121 n.13 (2d Cir. 2008)

(Sotomayor, J.); see also United States v. Kuchinski, 469 F.3d 853, 861–62 (9th Cir. 2006); United States

v. Stulock, 308 F.3d 922, 925 (8th Cir. 2002); United States v. Tucker, 305 F.3d 1193, 1205 nn. 16, 17

(10th Cir. 2002) (offering “no opinion on whether the mere viewing of child pornography on the Internet,

absent caching or otherwise saving the image, would meet the statutory definition of possession” and

upholding a conviction where the defendant “was not convicted for simply viewing child pornography,

but for viewing images . . . with the knowledge that the images were thereby saved on his computer”).

3

The affidavit states that the investigating agents accessed the child pornography “web pages,”

and viewed the content of the “splash pages (the first page welcoming the user to the website).” Record

on Appeal (“ROA”) at 27, ¶ 11 (Application and Affidavit for Search Warrant, Apr. 3, 2008). The

undercover agent, however, “did not purchase a membership,” id., which would have enabled him to

access the content of the website and determine whether it contained capabilities in addition to mere

browsing. Furthermore, there is no additional information in the affidavit indicating that this was an egroup-type site. The affidavit’s description of the site included only a description of the images on the

splash page. Id. The affidavit further states that the website address was “HTTP:\\***-lolita.com,” id. at

26 ¶ 4, indicating that its content was not hosted by one of the larger companies that typically provide

internet services such as e-groups. Cf. United States v. Lapsins, 570 F.3d 758, 762 (6th Cir. 2009)

(discussing defendant’s creation of an e-group to share child pornography, which had the URL

http://photos.yahoo.com/***). Nor were there other indications that it was an e-group or file-sharing

website.

purpose of Candyman was to trade pornography among its members [and] that the

overriding reason someone would join this group was to permit him to receive and trade

child pornography.” Id.

The e-groups involved in Martin and Froman differ significantly from a singular

one-month membership to a child-pornography website where one of the primary uses

is simply viewing child pornography, rather than trading.2

 This “browsing,” without

question, can be done without purposefully downloading images. Because in both

Martin and Froman the defendants were required either to download images or receive

them by e-mail in order to realize the primary purpose of group membership, these two

cases fail to support the conclusion that a mere one-month membership to one childpornography website—which did not purport to be a trading forum or advertise

downloadable images3—supported an inference that Frechette downloaded illegal
No. 08-2191 United States v. Frechette Page 16

images and that there was a fair probability that those images would be located on his

computer. It is this distinction that makes the difference.

As demonstrated above, a critical and nuanced view of the case law makes clear

that the majority is not merely applying precedent but rather expanding the law further

than any other circuit. See also, e.g., United States v. Shields, 458 F.3d 269, 278–79 (3d

Cir. 2006) (finding probable cause when the defendant voluntarily became a member of

two e-group sites trading in child pornography and subscribed with an e-mail address

strongly suggestive of an interest in child pornography); United States v. Strauser, 247

F. Supp. 2d 1135, 1144 (E.D. Mo. 2003) (finding insufficient probable cause when the

affidavit stated only that the defendant subscribed to the Candyman e-group for less than

two months with a “sexually suggestive” screen name); Falso, 544 F.3d at 120 (noting

the common factual threads that tend to establish probable cause). And taking into

account the relevant factual distinctions of each case, based on the facts asserted in the

affidavit, I fail to see how the totality of the circumstances supports a finding of probable

cause here.

I cannot think of any other circumstance where we have endorsed an invasion of

a person’s privacy with so few facts from which to draw an inference that the intrusion

would likely uncover evidence of a crime. What is the justification for such an

unprecedented encroachment upon our constitutional protections? Consider a factually

identical scenario in a different context: Would this court approve a search warrant for

all the computers in a home based on an affidavit that contains only one particularized
No. 08-2191 United States v. Frechette Page 17

fact—that someone who lived at that address obtained a one-month membership to a

website that allows its members to listen to music in violation of copyright law? If the

answer to this question is “yes,” there are not enough officers in the nation to enforce the

countless warrants that magistrates may now issue to search college dorm rooms and

homes across America. If the answer is “no,” as it should be, and as I suspect it would

be, one must ask why two cases with materially indistinguishable facts result in two very

different outcomes. The answer is as obvious as it is unsettling. The majority’s

conclusion is erringly shaped by the fact that child pornography cases are particularly

appalling. As reprehensible as our society finds those who peddle, purchase, and view

child pornography, we, as judges, must not let our personal feelings of scorn and disgust

overwhelm our duty to ensure the protection of individual constitutional rights. We must

remember, as the district court observed, that we “must not deny the protections of the

Constitution to the least of us. There is no such thing as a fair weather

Constitution—one which offers the harbor of its protections against unreasonable search

and seizure only in palatable contexts and only to worthy defendants.” ROA at 46

(Sept. 17, 2008 Op. at 2).

For the foregoing reasons, I must dissent.