The US side of the case:
The first step is to determine whether the information is enough to obtain a search warrant.Ý Below is a brief explanation of probable cause due to informants and how it is handled:
http://caselaw.findlaw.com/data/Constitution/amendment04/
Probable Cause.ó
Aguilar v. Texas held insufficient an affidavit which merely asserted that the police had ''reliable information from a credible person'' that narcotics were in a certain place, and held that when the affiant relies on an informant's tip he must present two types of evidence to the magistrate. First, the affidavit must indicate the informant's basis of knowledge--the circumstances from which the informant concluded that evidence was present or that crimes had been committed--and, second, the affiant must present information which would permit the magistrate to decide whether or not the informant was trustworthy. Then, in Spinelli v. United States, the Court applied Aguilar in a situation in which the affidavit contained both an informant's tip and police information of a corroborating nature.
The Court rejected the ''totality'' test derived from Jones and held that the informant's tip and the corroborating evidence must be separately considered. The tip was rejected because the affidavit contained neither any information which showed the basis of the tip nor any information which showed the informant's credibility. The corroborating evidence was rejected as insufficient because it did not establish any element of criminality but merely related to details which were innocent in themselves. No additional corroborating weight was due as a result of the bald police assertion that defendant was a known gambler, although the tip related to gambling. Returning to the totality test, however, the Court in United States v. Harris approved a warrant issued largely on an informer's tip that over a two-year period he had purchased illegal whiskey from the defendant at the defendant's residence, most recently within two weeks of the tip. The affidavit contained rather detailed information about the concealment of the whiskey, and asserted that the informer was a ''prudent person,'' that defendant had a reputation as a bootlegger, that other persons had supplied similar information about him, and that he had been found in control of illegal whiskey within the previous four years. The Court determined that the detailed nature of the tip, the personal observation thus revealed, and the fact that the informer had admitted to criminal behavior by his purchase of whiskey were sufficient to enable the magistrate to find him reliable, and that the supporting evidence, including defendant's reputation, could supplement this determination.
The Court expressly abandoned the two-part Aguilar-Spinelli test and returned to the ''totality of the circumstances'' approach to evaluate probable cause based on an informant's tip in Illinois v. Gates. The main defect of the two-part test, Justice Rehnquist concluded for the Court, was in treating an informant's reliability and his basis for knowledge as independent requirements. Instead, ''a deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.'' In evaluating probable cause, ''[t]he task of the issuing magistrate is simply to make a practical, commonsense 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.''
What
this basically says is this:Ý the
informant must be shown to be reliable and must have an explanation as to why
he thinks the crime has been committed.Ý
Exceptions can be made to one side of this if the other side is strongly
supported.Ý So, the next step is to
simply begin an investigation to strongly support the committal of the
crime.Ý How can this be done though?
Allowed investigative
methods:
Undercover work:
The authorities can pose as a potential buyer or seller of illicit material.Ý If John W. approaches them and does business, this is probable cause for arrest.
Observation:
The authorities can observe his actions and see if he attempts to buy or sell the material from other vendors.
Look at magazine
subscriptions:
Magazine subscription information is made available to the public.Ý Subscriptions to multiple pornographic magazines would help support the claim of the informant.
Look at arrest
history:
The police will have access to John's prior arrest record to see if he has been guilty of similar crimes in the past.
Wait for another
call:
Wait for the call again and tell the informant that no specific action can be taken against John W. unless he can prove he is a reliable source and explain his reasons for his belief.
Blocked investigative
methods:
Looking at
Financial Records:
Use this method of investigation to see if any money was spent in purchasing the pornography.
Right to
Financial Privacy Act
Consent to Financial Records: You may be asked to consent to make your financial records available to the government. You may withhold your consent, and your consent is not required as a condition of doing business with any financial institution. If you give your consent, it can be revoked in writing at any time before your records are disclosed. Furthermore, any consent you give is effective for only three months, and your financial institution must keep a record of the instances in which it discloses your financial information.
Without your Consent:: Without your consent, a Federal agency that wants to see your financial records may do so ordinarily only by means of a lawful subpoena, summons, formal written request or search warrant for that purpose. Generally, the Federal agency must give you advance notice of its request for your records explaining why the information is being sought and telling you how to object in court. The Federal agency must also send you copies of court documents to be prepared by you with instructions for filling them out. While these procedures will be kept as simple as possible, you may want to consult with an attorney before making a challenge to a Federal agency's request.
Exceptions: In some circumstances, a Federal agency may obtain financial information about you without advance notice or your consent. In most of these cases, the Federal agency will be required to go to court to get permission to obtain your records without giving you notice beforehand. In these instances, the court will make the Government show that its investigation and request for your records is proper.
When the reason for the delay of notice no longer exists, you will usually be notified that your records were obtained.
Basically this says you can't look at financial records without a search warrant.
Credit Reports:
This method of investigation is used to see if any money was spent in purchasing the pornography.
http://www.ftc.gov/os/statutes/fcra.htm
This is an outline of consumer privacy rights to their credit reports.Ý This says that the report cannot be obtained unless permission is granted.
Video Rental Records:
This method of investigation would help establish the suspect's character.
Subsection(b) Video Tape Rental and Sale Records ñ
(1) A video tape service provider who knowingly
discloses, to any person, personally identifiable information concerning any
consumer of such provider shall be liable to the aggrieved person for the
relief provided in subsection (d).
(2) A video tape service provider may disclose personally identifiable
information concerning any consumer
(A) to the consumer;
(B) to any person with the informed, written consent of the consumer given at the time the disclosure is sought;
(C) to a law enforcement agency pursuant to a warrant issued under the Federal Rules of Criminal Procedure, an equivalent State warrant, a grand jury subpoena, or a court order;
(D) to any person if the disclosure is solely of the names and addresses of consumers and if
(i) the video tape service provider has provided the consumer with the opportunity, in a clear and conspicuous manner, to prohibit such disclosure; and
(ii) the disclosure does not identify the title, description, or subject matter of any video tapes or other audio visual material; however, the subject matter of such materials may be disclosed if the disclosure is for the exclusive use of marketing goods and services directly to the consumer;
(E) to any person if the disclosure is incident to the ordinary course of business of the video tape service provider; or
(F) pursuant to a court order, in a civil proceeding, upon a showing of compelling need for the information that cannot be accommodated by any other means, if --
(i) the consumer is given
reasonable notice, by the person seeking the disclosure, of the court
proceeding relevant to the issuance of the court order; and
(ii) the consumer is afforded the opportunity to appear and contest the claim
of the person seeking the disclosure. If an order isgranted pursuant to
subparagraph (C) or (F), the court shall impose appropriate safeguards against
unauthorized disclosure.
(3) Court orders authorizing disclosure
under subparagraph (C) shall issue only with prior notice to the consumer and
only if the law enforcement agency shows that there is probable cause to
believe that the records or other information sought are relevant to a
legitimate law enforcement inquiry. In the case of a State government
authority, such a court order shall not issue if prohibited by the law of such
State. A court issuing an order pursuant to this section, on a motion made
promptly by the videotape service provider, may quash or modify such order if
the information or records requested are unreasonably voluminous in nature or
if compliance with such order otherwise would cause an unreasonable burden on
such provider.
This says that the records cannot be released unless there is a court order or warrant from the court.
Electronic Communications
Surveillance:
This method of investigation would possibly monitor internet transmissions and phone calls to see if John W. is communicating with others with the purpose of giving or receiving child pornography.
… TITLE 18 - CRIMES AND CRIMINAL PROCEDURE
PART I - CRIMES
CHAPTER 119 - WIRE AND ELECTRONIC COMMUNICATIONS INTERCEPTION AND INTERCEPTION OF ORAL COMMUNICATIONS
Sec. 2516. Authorization for interception of wire, oral, or electronic communications
(1) The Attorney General, Deputy Attorney General, Associate Attorney General, or any Assistant Attorney General, any acting Assistant Attorney General, or any Deputy Assistant Attorney General or acting Deputy Assistant Attorney General in the Criminal Division specially designated by the Attorney General, may authorize an application to a Federal judge of competent jurisdiction for, and such judge may grant in conformity with section 2518 of this chapter an order authorizing or approving the interception of wire or oral communications by the Federal Bureau of Investigation, or a Federal agency having responsibility for the investigation of the offense as to which the application is made, when such interception may provide or has provided evidence of -
(c) any offense which is
punishable under the following
sections of this title:
sections 2251 and 2252 (sexual exploitation of children),
Sec. 2518. Procedure for interception of wire, oral, or electronic communications
(3) Upon such application the judge may enter an ex parte order, as requested or as modified, authorizing or approving interception of wire, oral, or electronic communications within the territorial jurisdiction of the court in which the judge is sitting (and outside that jurisdiction but within the United States in the case of a mobile interception device authorized by a Federal court within such jurisdiction), if the judge determines on the basis of the facts submitted by the applicant that -
…
(a) there is probable cause for belief that an
individual is
committing, has committed, or is about to commit a particular
offense enumerated in section 2516 of this chapter;
…
(b) there is probable cause for belief that particular
communications concerning that offense will be obtained through
such interception;
…
(c) normal investigative procedures have been tried and
have
failed or reasonably appear to be unlikely to succeed if tried or
to be too dangerous;
…
(d) except as provided in subsection (11), there is
probable
cause for belief that the facilities from which, or the place
where, the wire, oral, or electronic communications are to be
intercepted are being used, or are about to be used, in
connection with the commission of such offense, or are leased to,
listed in the name of, or commonly used by such person.
Direct
action cannot be performed against John W. at this point.Ý Investigations can begin with him as a
suspect, but action that can be taken is limited.Ý Another call from the informant and additional information from
him would allow probable cause to be established.