Can a sparsely written warrant affidavit support a finding of probable cause?
Yes, because there is no set number of criteria for establishing probable cause.
A woman contacted Lexington, Ky., police to report that her boyfriend, Charles Kinison, was possibly involved in criminal sexual activity with children. A Lexington police detective called for the FBI’s assistance, and an FBI agent interviewed the girlfriend. She reported that Kinison had sent her disturbing text messages about how he wanted to join a group in Savannah, Ga., that sexually exploited adopted children. The girlfriend consented to a search of her phone, and the police computer forensics unit downloaded 1,646 pages of text messages, many of which corroborated the report of criminal activity. Kinison’s girlfriend incriminated herself in a few of the text messages, too.
In a follow-up interview, the FBI agent asked the girlfriend about some videos referenced in some of the texts, and she explained that Kinison viewed videos on his home computer. The girlfriend verified a photograph of Kinison and verified his phone number. The Lexington detective also conducted a records check on Kinison to verify his address. Based on all of the information collected, the detective obtained a search warrant for Kinison’s house. While executing that warrant, Kinison arrived in his car. Some officers noticed that Kinison left his phone in his car, so the officers immediately obtained a search warrant for the car. Law enforcement seized Kinison’s computer, and a forensic search revealed more than 300 images and 40 videos of child pornography. Kinison moved to suppress the images, claiming officers lacked probable cause to obtain the warrants for his house and car.
Why this case is important:
The court of appeals found there was probable cause for the warrants. There is no specific set of criteria that must be met before probable cause can be found. Also, warrant affidavits aren’t judged by what’s lacking in them, but what’s included. Here, the affidavit explained that Kinison’s girlfriend was a known informant, which can stand alone as sufficient probable cause. There doesn’t even need to be any additional information about the known informant’s credibility or past relationship with police.
The girlfriend also incriminated herself in some of the text messages that she turned over. This information only strengthens the warrant affidavit because admissions of crime also carry a particular credibility that would support a finding of probable cause. Plus, the language and nature of many of the text messages demonstrated an intimate relationship between Kinison and the girlfriend and corroborated Kinison’s criminal activity. Finally, the girlfriend provided police with Kinison’s cell phone number and explained that she had seen him view child pornography on his computer. All of this evidence was sufficient for the magistrate to find probable cause to issue a warrant for Kinison’s home and car.
Keep in mind:
When drafting warrant affidavits, specifically for computer crimes, include as much information as possible. But when you’ve got a known informant who has an intimate relationship with the suspect, this may be enough for probable cause.
Visit the U.S. Sixth Circuit Court of Appeals website
to view the entire opinion.