DATED: | September 30, 2004

_..-ENTER:

7 Johi F. raay, United States Distri Judge



-3-
several occasions, paying the usual price for cocaine, and that
when he recently left the defendant’s premises, there were similar
bags of white powder on the kitchen table. Such an affidavit would
usually justify the issuance of a warrant even though it does not
describe a chemical analysis which proved the white powder to be
cocaine. The government would have to prove at trial, of course,
that the substance was cocaine,’ just as the government in the
instant case will have to prove that the images found at
defendant's premises were of actual children.? But, like the drug
case, we think the circumstances set forth in the affidavit here
were sufficient to justify the inference that the defendant was
accessing images of real children. The possibility that they were
virtual images could be greater than the possibility that the white
powder was flour or milk sugar, but not enough to preclude probable
cause.

The defendant’s motion to reconsider, and for a Franks

hearing, is. denied.

¥” A fact. usually stipulated to.

¥ We assume this is what the government intends to prove. If this is not
correct, the government should file, by October 13, 2004, a statement indicating
the.nature of the images it intends to offer as evidence and its theory as to why
they violate the statute upon which the superceding indictment is predicated.



Minute Order Form (06/97)

2. United States District Court, Northern District of IMinois

ronnie

N; f Assigned Jud; ° Sitting Judge if Oth
ame otasignd Yue | —__ John F. Grady ing Suds ter
CASE NUMBER | -urrseenin-03.CR 1032 DATE | September 30, 2004
CASE United States v. Watzman
TITLE

‘box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
being presented.}

qd) Filed motion of [ use listing in “Motion” box above.J

(2) "Brief in support of motion due

(3) Answer brief to motion due___. Reply to answer brief due.

(A) Ruling/Hearing on setfor at

(5) _ Status hearing(held/continued to] {set for/re-set for]on set for at

(6) .Pretrial conference[held/continued to] [set for/re-set for]on__—ssetfor_——sat_

(7) Trial[set for/re-set for]on__at.

(8) ~"[Bench/Jury trial] [Hearing] held/continued to__ at

(9) his case, is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
FRCP4(m) (General Rule21 CI FRCP41(a)(1) O FRCP41(a)(2).

(10) _ [Other docket entry] The motion of the defendant for reconsideration of this court’s order denying his

> Quash Search Warrant and Suppress Evidence Seized and for a Franks hearing [51-1] is denied.
MEMORANDUM OPINION.

(11)... smnmenpmaned oF further detail see order (on reverse side of/attached to) the original minute order.]

Nonotices required, advised in open court.

No notices required.
Feq number of notices,

X_ | Notices MAILED. by judge’s staff.

Notified counsel by telephone, OCT 01 2004

date docketed

Docketing to mail notices.

Mail AO 450 form.
Copy to, “ann
a uagg
courtroom
KAM deputy's bk
initials Dateltime reeéived in”
—_ central Clerk's Office mating depuy iNet

(Reserved for use-by the Couyt) \)



03-1032.003 September 30, 2004

“IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNTTED STATES OF AMERICA,

) os
BOCKETEN
Plaintiff, ) A u
) wp NE 2004
Vv. ) No. 03 CR 1032
)
H, MARC WATZMAN, )
)
Defendant. )

MEMORANDUM OPINION

The defendant has moved for reconsideration of this court’s
order... denying his Motion to Quash Search Warrant and Suppress
Evidence Seized. He makes two points. First, the affidavit for
the search warrant failed to establish probable cause to believe a
crime had beén committed because it referred to pornographic images
of what “appear to be” real children rather than images that were
of real children. Second, the affidavit failed to reveal to the
magistrate judge that no “hash” analysis had been performed on
images from the websites in question to determine whether they were
of real. children. This second point goes to the question of
probable cause as well as defendant’s contention that the
government was guilty of bad faith, justifying a Franks evidentiary
hearing.

_ We disagree with both of these arguments. Even with a hash

test of the kind the defendant suggests, we do not see how it could



~2-
ever be established with certainty that the images sought in the
warrant would be of real children. The images sought would not
necessarily have been produced in the same way as those subjected
to the hash test. But even granting that a hash test might affect
the probability that the images to be sought in the search would be
of real children, we decline the defendant's invitation to rule as
a matter of ‘Law that a hash test is a prerequisite to a search
warrant in this kind of case. The government would not be free to
conceal from the magistrate information showing a high probability
that the images would be virtual rather than actual, but that is
not what happened here. Assuming the hash information later
obtained would. have shown a lack of probable cause had it been
obtained before the warrant was applied for, the fact is that it
was not. obtained. until later, and there is no indication that the
govetnment intentionally avoided acquiring the information that the
hash analysis disclosed.'

We think the analogy to drug cases, suggested by the
defendant, is, relevant. Defendant is correct that “[s]earch
warrants are not permitted based upon an agent seeing a bag of
white powder on a kitchen table.” (Defendant’s Reply at 6.) But
that is not..what an affiant in a drug case will say. Rather, he

will say that ..he purchased white powder from the defendant on

*¥ Nor, vin our view, does defendant’s proposed inquiry into such a
possibility 3 ify a Franks hearing.