From Christensen v. Commonwealth, decided Thursday by the Kentucky Supreme Court:
After the Kenton Circuit Court denied his motion to suppress, Keram Christensen entered a conditional guilty plea to 313 counts of possessing matter portraying a sexual performance by a minor, eight counts of distributing matter portraying a sexual performance by a minor, one count of promoting a sexual performance by a minor (victim under 18), one count of promoting a sexual performance by a minor (victim under 16), and one count of using an electronic communications system to induce or procure a minor to commit a sexual offense. He was sentenced to seventy years' imprisonment ….
On August 20, 2019, Detective Austin Ross of the Covington Police Department received a Cyber Tipline Report from the National Center for Missing and Exploited Children (NCMEC) that a user of the online dating website Match.com had recently posted information potentially expressing a sexual interest in children. In particular, the user's biography described himself as:
Quirky Bisexual Nudist. [MAP 4-10]. Seeking friends and dates, spend the evening together. I like baseball, hockey, NASCAR, basketball. Also like travel and the performing arts, or just staying in and cuddling to a good show. When I say I want kids, I mean it.
The user was identified as "Zack" from Covington, Kentucky, and the email address associated with the account was "pedozack82@gmail.com." Detective Ross was able to obtain the subscriber information associated with the email address and traced it to a physical address in Covington which was Christensen's residence.
The following day, Detective Ross applied for and was granted a warrant authorizing a search of Christensen's house…. The affidavit sought permission to search the residence for multiple items, including electronic devices, but did not seek authority to search the devices themselves. {Additional search warrants were subsequently issued authorizing the search of Christensen's computer and other electronic devices. No challenge has been raised relative to those warrants.}
The search came up with lots of stuff, which led to the prosecution; and the court rejected the argument that the search violated the First or Fourth Amendments. It concluded that the search was backed by probable cause:
Probable cause does not … require certainty of an actual crime being committed or that evidence of criminal acts or contraband will be located during a search pursuant to an issued warrant. Rather, so long as the totality of the circumstances present a fair probability such evidence will be uncovered based on the information provided in the supporting affidavit, the warrant-issuing judge's determination of probable cause will not be disturbed. Such circumstances are present here.
Christensen made an online post indicating his interest and desire to obtain a child with whom he could perform sexually explicit and illegal conduct which resulted in the issuance of the NCMEC Cyber Tipline report received by Detective Ross. In his affidavit seeking the search warrant, Detective Ross indicated that through his training and experience the term "MAP 4-10" was indicative of a person identifying themselves as a pedophile attracted to children between 4 and 10 years of age. He further indicated evidence was likely to be uncovered regarding multiple victims as offenders targeting minors routinely use a variety of digital platforms to attempt to lure their prey.
Taking a commonsense view of the totality of the circumstances viewed through the lens of common sense, while also affording the great deference due to the fact-finding judge, we hold the warrant-issuing judge had a sufficient basis to determine a fair probability existed that contraband or evidence of a crime would be located at Christensen's home. The facts presented would convince a reasonably prudent person to think that a search would reveal contraband or evidence of a crime. For these reasons, we cannot say the finding of probable cause was arbitrary and will thus not disturb that determination.
And the court rejected the First Amendment argument:
Christensen further goes to great lengths in an attempt to cast his online postings and email address as nothing more than pure speech, protected by the First Amendment …. Christensen fails to recognize that speech attempting to arrange sexual abuse of a child is not constitutionally protected. His First Amendment challenge requires little discussion as it is patently without merit.
The Commonwealth clearly has a compelling interest in protecting minors from being lured to engage in sexual acts or to be sexually abused and speech intended to further such objectives certainly does not enjoy constitutional protection. To argue otherwise ignores the rule that "[o]ffers to engage in illegal transactions are categorically excluded from First Amendment protection." "Speech attempting to arrange the sexual abuse of children is no more constitutionally protected than speech attempting to arrange any other type of crime." "Put another way, the defendant simply does not have a First Amendment right to attempt to persuade minors to engage in illegal sex acts." "Speech intended deliberately to encourage minors' participation in criminal sexual conduct has no redeeming social value and surely can be outlawed. … And where … speech is the instrumentality of the crime itself, the First Amendment provides no shelter from the government's exercise of its otherwise valid police powers."
I think the result is right, but for a different reason: Speech can be used as evidence, whether of guilt or of probable cause, even if it's fully constitutionally protected. Saying "I hate Joe Schmoe" is fully constitutionally protected, but if the police are looking for Joe Schmoe's killer, that statement could be one of the items of evidence on which they rely in getting a warrant (or in proving motive at trial). And where there is enough speech to rise to the level of probable cause, a warrant is authorized whether or not the speech is itself constitutionally unprotected.
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