Porn | Appeals Court: Child Porn Detectives Erred In Accusing Firefighter

Reversing an U.S. District Court decision, the 9^th U.S. Circuit Court of Appeals in San Francisco faulted the State Patrol and a Spokane County prosecutor for inflating the amount of evidence against Todd Chism, a Nine Mile Falls resident whose home and computers were searched after his wife's and a family credit card were used to upload child pornography to the Internet.

In a split decision , two members of the three judge panel found that investigators overstated the evidence against Chism when in 2007 they obtained warrants to search his home and arrest him.

Investigators never found any child pornography on Chism's computers, nor other evidence suggesting he had been dealing child porn. He was never charged with a crime, but now contends his civil rights were violated by the search and that he was otherwise harmed by the State Patrol action.

Without evidence, a State Patrol investigator claimed in affidavits filed with the court that Chism had paid for child pornography and uploaded it online, according to a 9^th Circuit opinion published Thursday.

The majority noted that the computers used to upload the images were hundreds of miles away from Chism's home and office, and that investigators had no evidence suggesting that Chism had in fact paid for child pornography.

"A truthful version of (the State Patrol investigator's) affidavit would have indicated that the sole evidence connecting Todd Chism to the child pornographic images was the fact that the credit card he shared with (his wife) was charged three times for hosting the websites that contained child pornographic images," Circuit Judge Richard A. Paez wrote for the majority "This connection is a far cry from the facts presented in the affidavit, which stated that Todd 'downloaded' and 'purchase(d)' child pornography."

The appellate court's ruling clears the way for Chism to pursue a civil suit in U.S. District Court against the State Patrol and two detectives. A federal judge in the Eastern District of Washington had previously thrown out the case against the detectives, finding that their conduct did not violate a clearly established civil right.

Following the three-judge panel's decision, a spokeswoman for the state Attorney General's Office said the state will request a review by a full 11-judge panel of the 9th Circuit.

"Both the Attorney General's Office and the Washington State Patrol take the potential exploitation of children through child pornography very seriously," spokeswoman Janelle Guthrie said Thursday. "We both care deeply about this case, we're disappointed in this ruling and we'll be requesting an en banc review of this decision"

In a 31-page decision, Paez noted that the State Patrol's training materials caution investigators against solely relying on "cyber-evidence" " in Chism's case payments to a website hosting service " pursuing online criminals.

"Much, if not all, of the cyber-evidence will lead you to an innocent person," the State Patrol materials state. "That's why simply identifying which account was used to commit a crime does not provide you with probable cause to get a search or arrest warrant for the name and address on that account."

Dissenting, Circuit Judge Sandra Ikuta faulted the majority for ignoring a precedent set in the same circuit five years ago.

In the earlier case, Ikuta argued, the circuit found payment of subscription fees to a website hosting child pornography was sufficient cause for a search warrant.

"Despite the fact that this case involves a direct connection between the Chisms' credit card and two websites populated with child pornography, the majority holds that the evidence was insufficient to support" a search warrant, Ikuta wrote in dissent. "In doing so, the majority tramples on controlling precedent and defies common sense."

Ikuta went on to note that investigators were faced with information that a person using the name Chism, knowing the Chisms' home address and phone number, and paying with the Chisms' credit card had created two child pornography websites.

The judge also argued the Chisms have "only" been able to "dig up" two false statements by investigators, and that the apparent exaggerations were not material to establishing probable cause to search their home and arrest Chism.

"While it turns out that the Chisms were not responsible for the child pornography websites under investigation by the police, ample evidence pointed to the conclusion that they were," Ikuta said in her dissent. "The evidence established more than a fair probability that child pornography would be found on computers at the Chisms' residence. ...

"Therefore, there was no constitutional violation, and the district court did not err."

Following Thursday's decision, the civil lawsuit will be returned to the U.S. District Court for Eastern Washington. That case could again be suspended if the state's request for further appellate review is granted.

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Levi Pulkkinen can be reached at 206-448-8348 or levipulkkinen@seattlepi.com . Follow Levi on Twitter at twitter.com/levipulk .