Metropolitan News-Enterprise


Thursday, August 17, 2011


Page 1


Covina Police Search of Teacher’s Home Violated Fourth Amendment—Ninth Circuit

But Uncertain State of the Law Entitles Officers to Immunity, Panel Says


By SHERRI M. OKAMOTO, Staff Writer


Law enforcement did not have probable cause to conduct a search of a sixth grade teacher’s Covina home for child pornography based on a three-year-old allegation of attempted molestation and other claims of inappropriate behavior, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel said, however, the officers involved in the 2006 search of computers and electronic media at Bruce Dougherty’s home were entitled to qualified immunity because the question of whether an allegation of molestation at a place of work was sufficient to give rise to probable cause for a search warrant for child pornography at a place of residence was not settled in this district prior to yesterday’s decision.

A magistrate judge had issued the warrant based on an affidavit submitted by Covina Police Officer Robert Bobkiewicz.

Student’s Claim

The officer had said he was investigating a Royal Oak Elementary School student’s claim that Dougherty had lifted her up in front of her class after she told him that she had won a cross-country meet, in such a manner that his hands were touching her breast and he could see her buttocks. This student also told him she had seen Dougherty look up the skirts and down the tops of other girls in the class.

Other students corroborated this student’s report, Bobkiewicz said, and an investigation conducted by the school district had also garnered multiple reports of Dougherty touching female students inappropriately.

 Bobkiewicz also stated that he had 14 years of experience on the police force and had worked as a “school resource officer.” He had over 100 hours of training involving juvenile and sex crimes, had conducted hundreds of investigations related to sexual assaults and juveniles, and was the designated “sex crimes/juvenile detective” for the police department.

His affidavit concluded with him stated that “based upon my training and experience…I know subjects involved in this type of criminal behavior have in their possession child pornography.”

After the search was executed, no charges were filed against Dougherty, and he sued Bobkiewicz, the city, and the chief of police for violating his constitutional rights.

U.S. District Court Percy Anderson of the Central District of California dismissed Dougherty’s complaint with prejudice, finding the warrant was supported by probable cause, and that the detention of Dougherty and his adult son was reasonable.

Writing for the appellate court, Judge N. Randy Smith explained yesterday that “there does not need to be direct evidence of solicitation of child pornography to create probable cause,” but there must be a “substantial basis” for the finding of cause to issue a warrant, and such a basis was lacking in this case.

‘Contains No Facts’

Smith noted that Bobkiewicz’s affidavit “contains no facts tying the acts of Dougherty as a possible child molester to his possession of child pornography,” nor any indication that he “was interested in viewing images of naked children or of children performing sex acts,” among other shortcomings.

“Indeed, the affidavit does not even verify that Dougherty owned a computer or the other targets of the search or had internet service or another means of receiving child pornography at his home,” Smith said.

“[W]hile the ‘totality of circumstances’ could, in some instances, allow us to find probable cause to search for child pornography,” Smith said, “Officer Bobkiewicz’s conclusory statement tying this ‘subject,’ alleged to have molested two children and looked inappropriately at others, to ‘having in [his] possession child pornography’ is insufficient to create probable cause here.”

The jurist acknowledged that “[o]ther circuits have split on the question of whether evidence of child molestation, alone, creates probable cause for a search warrant for child pornography,” and sided with the Second and Sixth circuits against the Eighth Circuit in concluding that more evidence is needed.

“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,” Smith said.

But Smith, joined by Senior Judge Betty B. Fletcher and U.S. District Judge Rudi M. Brewster of the Southern District of California, sitting by designation, accepted the city’s alternative argument that even if the search was illegal, the lack of prior Ninth Circuit authority supported the defendants’ claim of qualified immunity.

Brewster also wrote separately, contending probable cause for the search had existed.

Brewster said Smith should have afforded more deference to the independent judgment of the magistrate judge and to the experience and training of the investigating officer, and argued “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.”

Los Angeles attorney Gary S. Casselman argued on behalf of Dougherty while Christopher M. Pisano of Best Best & Krieger appeared for Covina.

The case is Dougherty v. City of Covina, 09-56395.


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