Dougherty

Opinion by Judge N.R. SMITH; Concurrence by Judge BREWSTER.

OPINION

Under the totality of the circumstances, a search warrant issued to search a suspect’s home computer and electronic equipment lacks probable cause when (1) no evidence of possession or attempt to possess child pornography was submitted to the issuing magistrate; (2) no evidence was submitted to the magistrate regarding computer or electronics use by the suspect; and (3) the only evidence linking the suspect’s attempted child molestation to possession of child pornography is the experience of the requesting police officer, with no further explanation. Our circuit, however, has not previously addressed this question. Therefore, the officers involved in the search are entitled to qualified immunity.

BACKGROUND

On October 12, 2006, Officer Robert Bobkiewicz, of the City of Covina Police Department, and four other police officers (three from the City of Covina and one from the City of Glendora) searched Appellant Bruce Dougherty’s 1 home pursuant to a warrant issued by a magistrate on October 11, 2006. 2 The search warrant authorized the officers to search for child *896 pornography on Dougherty’s computer and…

concurring in the judgment:

I conclude the search warrant was supported by probable cause. United States v. Gourde, 440 F.3d 1065 (9th Cir.2006) (en banc). I accord more deference to the independent judgment of the magistrate judge and to the experience and training of the investigating officer. Based upon Officer Bobkiewiez’s specific training and experience in the field of sex crimes against children, the facts presented led him to conclude that an individual who molests children probably possesses child pornography. I agree with the Eighth Circuit’s analysis in United States v. Colbert, 605 F.3d 573, 578 (8th Cir.2010), that it is a common sense leap that an adult male, who teaches sixth graders, engaged in this type of inappropriate conduct would likely possess child pornography. Accord United States v. Byrd, 31 F.3d 1329, 1340 (5th Cir.1994); United States v. Houston, 754 F.Supp.2d 1059 , 1062-64 & n. 1 (D.S.D. 2010); see also Osborne v. Ohio, 495 U.S. 103 , 111 n. 7, 110 S.Ct. 1691 , 109 L.Ed.2d 98 (1990). Dougherty’s pattern of affirmative misconduct with several sixth grade students is closely related to an interest in looking at sexual images of minors. The facts…

Danielle L. Casselman and Gary S. Casselman (argued), Law Offices of Gary S. Casselman, Los Angeles, CA, for the plaintiff-appellant.

Mary A. Pendergrass, Christopher M. Pisano (argued), and George Roscoe Trindle, III, Best Best & Krieger, Los Angeles, CA, for the defendants-appellees.

Before: BETTY B. FLETCHER and N. RANDY SMITH, Circuit Judges, and RUDI M. BREWSTER, District Judge. [*]

Opinion by Judge N.R. SMITH; Concurrence by Judge BREWSTER.

N.R. SMITH, Circuit Judge:

Under the totality of the circumstances, a search warrant issued to search a suspect's home computer and electronic equipment lacks probable cause when (1) no evidence of possession or attempt to possess child pornography was submitted to the issuing magistrate; (2) no evidence was submitted to the magistrate regarding computer or electronics use by the suspect; and (3) the only evidence linking the suspect's attempted child molestation to possession of child pornography is the experience of the requesting police officer, with no further explanation. Our circuit, however, has not previously addressed this question. Therefore, the officers involved in the search are entitled to qualified immunity.

On…