Judge Sotomayor on Sex Offenders
by street_lawyer




In the matter of United States v. Falso, 544 F.3d 110
the defendant had pled guilty to numerous counts of
possession of child pornography. A search warrant was
issued based upon the assertions of the requesting officer
that Falso’s email address was listed on a site that contained
11 photos depicting child pornography, and that Mr. Falso had
attempted to gain access to the membership area that contained
numerous additional child pornographic materials. Additionally Mr.
Falso had an 18 year old record of molesting a child.

Judge Sotomayor held that there was insufficient probable cause to issue the search warrant, but that the search was legal for other reasons, and allowed the conviction to stand. The following is an except of her reasoning in that case:

Nor is the district court's reasoning saved by the affidavit's general statement, relied upon by the government at oral argument, that "computers are utilized by individuals who exploit children (which includes collectors of child pornography) to . . . locate, view, download, collect and organize images of child pornography found through the internet." n16 There simply is nothing in this statement indicating that it is more (or less) likely that Falso's computer might contain images of child pornography. That is, the affidavit's sweeping representation that computers are [**33]used by those who exploit children to, inter alia, view and download child pornography, would be equally true if 1% or 100% of those who exploit children used computers to do those things.

Essentially Judge Sotomayor held that it is not a rational conclusion to believe that the computer of a convicted child molester, and suspected collector of child pornography who accesses that type of site would contain pornographic material downloaded from the internet.

While it is the law that the weight to be given to a prior conviction depends upon the proximity in time of the conviction and the nature of the conviction, Judge Sotomayor concluded that a conviction of child molestation that occurred more than 18 years prior should be given only marginal consideration. Her reasoning was as follows:

First, the sheer length of time that had elapsed renders Falso's prior sex crime only marginally relevant, if at all. Certainly there are cases where it may be appropriate for a district court to consider a dated sex crime; for example, where there is evidence of ongoing impropriety, [**34]because in such cases the prior offense would tend to be less aberrational.

In this statement Judge Sotomayor rejects the relevance of a prior conviction of molesting a child in deciding if there was probably cause to believe that Falso had downloaded child pornography from the internet. She apparently would require proof that the Defendant continued to engage in such illegal behavior - a standard of proof that seems difficult to establish since it would require many known instances of criminal conduct before a search warrant might legally be issued. She would require the police to “bridge the gap” between Falso’s prior conviction and this alleged offence by showing intervening proof of similar violations.

Her second reason for denying that the Judge who issued the search warrent had probably cause is a stunning display of liberalism. Read it in her own words:

Second, although Falso's crime allegedly involved the sexual abuse of a minor, it did not relate to child pornography.

Unbelievably Judge Sotomayor distinguished the Falso case from a reported prior opinion which to me seems indistinguishable. United States v. Brand, 467 F.3d 179, 198 (2d Cir. 2006), involved proof that a collector of child pornography does so to wet his appetite for further sexual contact with children. She wrote:

“That is precisely the inverse of the correlation relied upon by the district court in Falso's case: that a person convicted of a crime involving the sexual abuse of a minor would likely collect child pornography.

Her conclusion therefore is that if the collection of pornography come first followed by child molestation, then the two bear a rational relationship to each other, but if they occur in the reverse order there is no logical connection between them.