W.D.Pa.: Conclusory allegation that NCMEC confirmed image was child porn violates Fourth Amendment
FourthAmendment.com:
Deferring a child porn determination to the police or NCMEC violates the Fourth Amendment under Shadwick. United States v. Diyn, 2008 U.S. Dist. LEXIS 54910 (W.D. Pa. July 18, 2008):
It cannot be disputed that a magistrate or similar judicial authority, not NCMEC or a police officer, must determine the presence of probable cause in an application for a search warrant. See Shadwick v. City of Tampa, 407 U.S. 345, 348-350, 92 S.Ct. 2119, 2121-2123, 32 L.Ed.2d 783, 787-789 (1972) (probable cause determinations must be made by those individuals not involved with law enforcement). Therefore, in light of Shadwick, the conclusions of NCMEC that the two images in question were “both confirmed child pornography” certainly does not establish probable cause. Furthermore, it is unknown from the affidavit of probable cause that NCMEC made its evaluation of the images in conformity with what is outlawed by the Pennsylvania statute.
Plaintiff’s civil case failed because the “frisk” of the car for weapons and then seizure and inventory of the car for no inspection sticker were all valid. Gomez v. Markley, 2008 U.S. Dist. LEXIS 54908 (W.D. Pa. July 18, 2008).*