Immunity Shields Cops as to Child Porn Search

(CN) - Police officers who searched the home of man accused of giving pornographic literature to minors have immunity from Fourth Amendment claims, the 9th Circuit ruled.

The Anchorage Police Department had obtained a search warrant in November 2005 after receiving complaints from two different couples about Jared Armstrong, a man in his late 30s.

The first couple complained that Armstrong was befriending their 14-year-old son, L.T., and allegedly giving the boy pornography.

L.T.'s mother had found instant messages in which Armstrong allegedly spoke about "drinking tequila and about giving a 'blow job' to his teacher," the ruling states.

The parents also found a book called "Satan Burger," which they considered pornographic. In addition to the naked buttocks on the cover, the book jacket touts a story about "an overweight messiah, the personal life of the Grim Reaper, lots of classy sex and violence, and a fast-food restaurant owned by the devil himself."

Armstrong allegedly gave the second boy, M.L., knives, a web cam, a bag and an inflatable alien doll.

Despite commands from both boys' fathers to cease contact with their sons, Armstrong allegedly continued to contact L.T.

While looking for evidence of stalking and disseminating indecent materials to minors, police found videos of naked young males and photographs of people using a toilet. Armstrong was arrested and charged with dissemination.

That municipal charge was dismissed, but a police officer gave the materials a closer look before returning them to Armstrong. In a search of Armstrong's computer, the officer found a photo of two underage boys having oral sex.

Police obtained another warrant and found 274 photos of minors who had previously been identified as sexually exploited. Armstrong was arrested again, this time for possession of child pornography.

The Alaska Superior Court eventually suppressed all the evidence, however, after finding that probable cause did not support a warrant to record a telephone call between Armstrong and L.T.'s father

Armstrong then sued the city of Anchorage and six police officers pro se for violating his Fourth Amendment rights against unlawful search and seizure.

In giving Armstrong a chance to amend his claims, a federal judge said the officers should have known that "Satan Burger" was not obscene, thus stripping the officers of qualified immunity.

A three-judge panel of the 9th Circuit disagreed as to the immunity issue Friday.

"The cover (portraying bare buttocks squatting over a dinner plate) and the few pages support a reasonable belief by a police officer that the work as a whole portrayed excretory functions or sexual contact in a manner establishing violation of the ordinance," Judge Andrew Kleinfeld wrote for the court. "Even if the book were, on a full reading, not indecent, it would be too much to say that no reasonable police officer could seek a search warrant directed at the premises of the person who gave it to a minor until the police officer had read every word of the book and evaluated its literary value as a whole."

In remanding the case for dismissal, the panel noted that the officers took the proper steps in the search process.

"The police officers subjected every step of their invasions of Armstrong's privacy to evaluation both by prosecutors and by neutral judicial officials before they acted," Kleinfeld wrote. "Such prior review of proposed searches and arrests supports qualified immunity."

In 2010, the Alaska Supreme Court allowed Armstrong to pursue defamation claims against L.T.'s father.

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