US v. Roger Aleshire, No. 15-1192.
After a sleepover at the house of Roger Aleshire, a nine-year-old girl reported to her mother having a “dream” that Aleshire had pulled down her pajama bottoms and photographed her “privates”. Her mother called the police. A state judge issued a search warrant.
After executing that warrant the police found child pornography, which Aleshire had created. He pleaded guilty to violating 18 U.S.C. § 2251. His sentence, which he does not contest, is 300 months’ imprisonment.
His argument is simple: Probable cause depends on facts rather than dreams. Aleshire insists that because the girl called her memory a “dream” it must have been a dream. If it was a dream, the Fourth Amendment did not allow a search.
But the district judge concluded that probable cause exists because the girl’s use of “dream” may have been a euphemism selected because she was uncomfortable describing the acts she narrated.
We held in United States v. McIntire, 516 F.3d 576 (7th Cir.2008), that a warrant-authorized search must be sustained unless it is pellucid that the judge who issued the warrant exceeded constitutional bounds. The precise standard in McIntire is: “A district court’s findings of historical fact are reviewed for clear error, whether or not a warrant issued. A district judge’s legal conclusions are reviewed without deference. And on the mixed question whether the facts add up to `probable cause’ under the right legal standard, we 1179give no weight to the district judge’s decision—for the right inquiry is whether the judge who issued the warrant acted on the basis of probable cause. On that issue we must afford `great deference’ to the issuing judge’s conclusion.” 516 F.3d at 578 .
Giving the issuing judge the benefit of “great deference,” we conclude that it was permissible to understand the word “dream” as a euphemism. Aleshire has not offered any evidence (say, a child psychologist’s affidavit) that might show that nine-year-old girls always use the word “dream” literally. And the girl’s description was not the only fact in the affidavit submitted in support of the application for a warrant.
Perhaps none of these facts by itself supplied probable cause, but judges do not view facts in isolation. As Gates holds, the question is whether the available facts, taken together, justify the proposed intrusion into the suspect’s private life. This was a properly issued warrant.
By. Chicago Federal Criminal Defense Attorney Michael J. Petro