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W.D.Pa.: Conclusory allegation that NCMEC confirmed image was child porn violates Fourth Amendment

By John Wesley Hall, Jr.

Deferring a child porn determination to the police or NCMEC violates the Fourth Amendment under Shadwick. United States v. Diyn, 2008 U.S. Dist. LEXIS 54910 (W.D. Pa. July 18, 2008): It cannot be disputed that a magistrate or similar judicial authority, not NCMEC or a police officer, must determine the presence of probable cause in an application for a search warrant. See Shadwick v. City of Tampa, 407 U.S. 345, 348-350, 92 S.Ct. 2119, 2121-2123, 32 L.Ed.2d 783, 787-789 (1972) (probable cause determinations must be made by those individuals not involved with law enforcement). Therefore, in light of Shadwick, the conclusions of NCMEC that the two images in question were "both confirmed child pornography" certainly does not establish probable cause...continue to full post

Full post as published by Fourth Amendment on July 23, 2008 (boomark / email).