United States v. Willie Coreas, Docket No. 03-1790-cr (2d Cir. August 18, 2005) (Jacobs, Calabresi & Rakoff, D.J.) (Op. by Rakoff): Our faith in the rule of law has been restored. In this opinion, Judge Rakoff of the SDNY, writing for Judges Jacobs & Calabresi as well (thus covering the political spectrum from the Federalist Society to the ACS), concluded that the now-infamous “Operation Candyman” affidavit, excised of the Government agent’s fabrications, was insufficient to support the issuance of numerous search warrants, including that leading to Coreas’s arrest and prosecution for possession of child pornography. Unfortunately, because a prior panel of the Circuit reached an opposite conclusion on the same issue two weeks earlier in Martin (click here for our less-than-subtle critique of Martin), the panel in Coreas nonetheless upheld the search warrant.
The opinion in Coreas is highly recommended. Some examples to entice the reader: A powerful beginning (“Child pornography is so repulsive a crime that those entrusted to root it out may, in their zeal, be tempted to bend or even break the rules. If they do so, however, they endanger the freedom of all of us.” Op. at 2); a powerful invocation of the Constitution (“The notion that, by this act of clicking a button [to join a listserve / e-group], [Coreas] provided probable cause for the police to enter his private dwelling and rummage through various of his personal effects seems utterly repellent to core purposes of the Fourth Amendment.” Op. at 11.); and much deservedly harsh language heaped upon Martin (“The Martin majority not only effectively dispenses with th[e] requirement [that probable cause be backed . . . by evidence particularized to the target of the search,] but substitutes for it the rule that if you simply web-join an e-group whose ‘primary’ purpose is the unlawful distribution of pornography, that is enough to warrant the search of your home — even if there is no evidence that you knew this was the group’s ‘primary’ purpose or that you actually intended to use the group for such a purpose rather than for the other, lawful purposes that it also provided. Such a rule, by focusing on the ordering of the purposes of the group, rather than the activities of the person whose home is to be searched, not only violates the First Amendment protection against guilt by association but also makes a mockery of the Fourth Amendment’s focus on particularity and on protection of the privacy of the individual to be searched.” Op. at 14). Also worth reading is the opinion’s flailing of “Special” Agent Binney (though, shockingly, no perjury prosecution is apparently on the horizon) and its thorough exposure of the full extent his deceit — essentially glossed over by the majority opinion in Martin. Op. at 2-7.
A simple headcount reveals that there are now 3 active judges of the Circuit who believe that the Candyman warrants are invalid (Judges Calabresi & Jacobs in Coreas, and Judge Pooler dissenting in Martin), and only 2 who would uphold the warrants (Judges Walker & Wesley, the Martin majority). En banc rehearing seems warranted, and perhaps likely, given the numbers . . . .