A search warrant may issue only "upon probable cause," U.S. Const. amend. IV, and probable cause exists only where the known facts and circumstances are sufficient to support a "reasonable belief" that "contraband or evidence of a crime will be found." Ornelas v. United States, 517 U.S. 690, 696, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). A magistrate presented with a search warrant application must make "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the `veracity' and `basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The affidavit must provide sufficient facts to permit the magistrate to draw the inferences necessary to a finding of probable cause, and the magistrate must not merely rely without question on the assertions in the affidavit but must make an independent evaluation. Giordenello v. United States, 357 U.S. 480, 485-86, 78 S.Ct. 1245, 2 L.Ed.2d 1503 (1958); see Gates, 462 U.S. at 239, 103 S.Ct. 2317 ("Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.").
In practice, the probable cause standard, however rendered, is as familiar as it is unhelpful. The Supreme Court has called it "a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S. at 232, 103 S.Ct. 2317. The Court has also cautioned that "the evidence thus collected must be seen and weighed not in terms of library analysis by scholars, but as understood by those versed in the field of law enforcement." Id. (quoting United States v. Cortez, 449 U.S. 411, 418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)).
Indeed, although probable cause is a "mosaic" that is "multifaceted" and a "fluid concept," the standard takes its "substantive content" from the particular context in which the standard is being assessed. Ornelas, 517 U.S. at 696-98, 116 S.Ct. 1657 (citing, inter alia, Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949) ("The standard of proof [for probable cause] is . . . correlative to what must be proved.") and Ker v. California, 374 U.S. 23, 33, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) ("This Court[ ] [has a] long-established recognition that standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application"; "[e]ach case is to be decided on its own facts and circumstances." (internal quotations omitted))). In other words, in the balancing that every Fourth Amendment challenge requires, "to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime" and still "give fair leeway for enforcing the law in the community's protection," the particular context — that is, "what must be proved" — must be kept in mind. Brinegar, 338 U.S. at 176, 69 S.Ct. 1302.
3. Additional Fourth Amendment Considerations
I set forth some additional Fourth Amendment principles that are of particular importance to this case.
The "central requirement" of the Fourth Amendment is "reasonableness." Koch v. Town of Brattleboro, Vt., 287 F.3d 162, 166 (2d Cir. 2002) (quoting Illinois v. McArthur, 531 U.S. 326, 330, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001)). The "touchstone" of reasonableness is "measured in objective terms by examining the totality of the circumstances." Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996). Generally, a Fourth Amendment examination "requires a contextualized reasonableness analysis that seeks to balance the intrusion on privacy caused by law enforcement against the justification asserted for it by the state." Lauro v. Charles, 219 F.3d 202, 209 (2d Cir. 2000) (citing Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Though reasonableness is most often considered in the context of warrantless searches or seizures, reasonableness is nonetheless required even when a warrant is procured. Cf. United States v. Ramirez, 523 U.S. 65, 71, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998) ("The general touchstone of reasonableness which governs Fourth Amendment analysis governs the method of execution of the warrant." (citation omitted)).
The Fourth Amendment requires reasonableness not only as to whether a search should be "conducted at all, but also to ensure reasonableness in the manner and scope of searches and seizures that are carried out." Lauro, 219 F.3d at 211. In addition, "the reasonableness of the police's actions in conducting a search or seizure must be judged, in part, through an assessment of the degree to which those actions further the legitimate law enforcement purposes behind the search or seizure." Id.
b) Presumption of Validity
While "[i]t is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable," Payton, 445 U.S. at 586, 100 S.Ct. 1371 (internal quotations omitted), when a search is conducted pursuant to a valid warrant, the reverse is true. "There is, of course, a presumption of validity with respect to the affidavit supporting the search warrant." Franks v. Delaware, 438 U.S. at 171, 98 S.Ct. 2674, 57 L.Ed.2d 667. This presumption stems from a belief in the function of the examining magistrate as a neutral gatekeeper, and it encourages law enforcement to seek warrants; "the preference for warrants is most appropriately effectuated by according `great deference' to a magistrate's determination." United States v. Leon, 468 U.S. 897, 914, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (citation omitted).
c) The First Amendment and Child Pornography
The Supreme Court has held that no higher probable cause standard applies when the First Amendment is implicated by a Fourth Amendment search or seizure. The Supreme Court rejected this notion in New York v. P.J. Video, Inc., 475 U.S. 868, 870-71, 106 S.Ct. 1610, 89 L.Ed.2d 871 (1986) (retreating from language in prior cases that a court must act with "scrupulous exactitude" in this context (citing Stanford v. Texas, 379 U.S. 476, 481-485, 85 S.Ct. 506, 13 L.Ed.2d 431 (1965); Maryland v. Macon, 472 U.S. 463, 105 S.Ct. 2778, 86 L.Ed.2d 370 (1985))). Moreover, child pornography is not considered presumptively protected activity. "Because of the state's interest in protecting children from sexual exploitation, child pornography may be banned regardless whether it fails the test for obscenity." United States v. Jasorka, 153 F.3d 58, 60 (2d Cir. 1998).
The Supreme Court has repeatedly recognized the state's compelling interest in this area, enumerating several reasons why the government is "entitled to greater leeway in the regulation of pornographic depictions of children." New York v. Ferber, 458 U.S. 747, 756, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); see Sarah Sternberg, Note, The Child Pornography Prevention Act of 1996 and the First Amendment: Virtual Antitheses, 69 Fordham L.Rev. 2783, 2792 (2001). The Court has upheld laws that ban simple possession of child pornography, citing the need "to dry up the child pornography market." Osborne v. Ohio, 495 U.S. 103, 110, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) ("[I]t is now difficult. if not impossible, to solve the child pornography problem by only attacking production and distribution."). The Court noted that the state's "ban on possession and viewing encourages the possessors of these materials to destroy them," helping to eliminate images that "permanently record the victim's abuse" and may be used by pedophiles to seduce other children. Id. at 111, 110 S.Ct. 1691.
d) The Home
The search warrant here targeted nine different homes, including Perez's home. Courts have long observed that in Fourth Amendment jurisprudence, the home has something of a "special status" and have "emphasized the sanctity of the private home, and the particular gravity the Fourth Amendment accords to government intrusions on that privacy." Lauro, 219 F.3d at 211. The Supreme Court has repeatedly declared that "[t]he Fourth Amendment embodies [the] centuries-old principle of respect for the privacy of the home," Wilson v. Layne, 526 U.S. 603, 610, 119 S.Ct. 1692, 143 L.Ed.2d 818 (1999), and has noted the "`overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic.'" Id. (quoting Payton v. New York, 445 U.S. 573, 601, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). Indeed, "`physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed'" and it is "the warrant procedure [that] minimizes the danger of needless intrusions of that sort." Payton, 445 U.S. at 586, 100 S.Ct. 1371 (quoting United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)).
On the other hand, of course, as Justice Jackson observed for the Court in Johnson v. United States, 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948):
Crime, even in the privacy of one's own quarters, is
. . . of grave concern to society, and the law allows
[evidence of] such crime to be reached on proper
showing. The right of officers to thrust themselves
into a home is also a grave concern, not only to the
individual but to a society which chooses to dwell in
reasonable security and freedom from surveillance.
When the right of privacy must reasonably yield to
the right of search is, as a rule, to be decided by a
judicial officer, not by a policeman or government