The Fourth Circuit yesterday issued a published opinion in United States v. Wellman affirming convictions on three offenses related to child pornography possession along with a ten-year sentence on one of the counts. Judge Keenan wrote the opinion, which was joined in by Judge Wynn and Senior Judge Hamilton.
In disposing of the defendant’s Fourth Amendment claim, Judge Keenan assumed without deciding that the content of the warrant application was insufficient to find probable cause, but held that the evidence was not subject to suppression because the West Virginia State Police relied in good faith on the issued search warrant. Although the structure of this reasoning does not yield clear guidance about what must be included in a warrant application, the panel did “decline to impose a requirement that a search warrant application involving child pornography must include an image of the alleged pornography.”
The opinion rejects the defendant’s statutory argument as an impermissible “attempt to graft a subjective, fact-based knowledge requirement onto an objective legal standard.”
The Eighth Amendment proportionality analysis concludes easily that Congress acted “well within its authority” in providing for a ten-year sentence for recidivist possessors of child pornography. In the lead-up to the analysis, Judge Keenan quotes a First Circuit decision stating that the instances of disproportionate sentences invalid under the Eighth Amendment should be “hen’s-teeth rare.” This suburbanite does not know what that means based on any experience with hens, but I suppose the number of such sentences is not much more than a goose egg.