SAN DIEGO DISTRICT ATTORNEY The Fourth Amendment and ...

Whether the visual depiction
suggests sexual coyness or a
willingness to engage in sexual
activity;
Whether the visual depiction is
intended or designed to elicit a
sexual response in the viewer.
(United States v. Hill (9 th Cir. 2006)
459 F.3 rd 966, 970-973, citing United
States v. Dost (S.D. Cal. 1986) 636
F.Supp. 828, 832.)
Things the affiant “hopes to find,” but for which
there is no articulable reason to believe will be
found, should not be listed. However, property that
there is a “fair probability” would be found, given
the nature of the offense, may be listed despite the
lack of any specific evidence that such an item is in
fact in the place to be searched. (See People v.
Ulloa (2002) 101 Cal.App.4 th 1000; computer
containing Internet correspondence in a child molest
case.)
See Millender v. County of Los Angeles (9 th
Cir. 2010) 620 F.3 rd 1016, 1024-1033;
officers, with probable cause to search for
and seize a specific firearm included in the
warrant a request to search for and seize all
types of firearms, ammunition, and gang
related paraphernalia, none of which was
justified by the information available to the
officers at the time.
Note: A writ of certiorari was
granted by the United States
Supreme Court in Millender, making
it no longer available for citation
until decided by that court.
(Messerschmidt v. Millender (June
27, 2011) __ U.S. __ [131 S.Ct.
3057; 180 L.Ed.2 nd 884].)
© 2012 Robert C. Phillips. All rights reserved
“Telephone calls” (i.e., authorization to intercept
them while executing the warrant) should be listed
where there is probable cause to believe the
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