Probable Cause to Protect Children: The Connection Between Child Molestation and Child Pornography

Abstract

The federal Circuit Courts of Appeal are divided regarding whether probable cause to search for evidence of child molestation provides probable cause to search for child pornography. This Note examines the relationship among the decisions of the Circuit Courts of Appeal, delves into the empirical evidence regarding the relationship between child pornography and child molestation, and analyzes how the “flexible, non-technical” probable cause standard properly interacts with this relationship. In United States v. Colbert, the U.S. Court of Appeals for the Eighth Circuit concluded that, because of the “intuitive relationship” between child molestation and child pornography, a warrant to search for evidence of child pornography based solely on evidence of child molestation is supported by probable cause. This Note argues that the Eighth Circuit appropriately balances the elastic probable cause standard, the policy concerns related to crimes against children, and the nexus between child molestation and child pornography in concluding that probable cause to search for evidence of child molestation provides probable cause to search for child pornography.