The Police Department, the Blog and Defamation

This post examines an opinion the Supreme Court of New Hampshire recently issued in a civil case:  McCarthy v. Manchester Police Department, 2015 WL 5559880 (2015). As usual, the court begins the opinion by explaining how, and why, the lawsuit arose:

On April 8, 2011, William Socha was working on a construction site in Manchester. At around noon, Socha noticed a truck parked on the site and went to tell the driver to move the vehicle. As he approached, he saw that the man in the driver's seat had his pants down, exposing his genitalia. Socha also observed a young female in the truck's passenger seat. The passenger appeared to Socha to be about twelve years old and to have some kind of disability, possibly Down syndrome.

Socha called the police, but, by the time [a Manchester Police Department] officer arrived, the vehicle had left. Socha gave the officer a description of the truck, its license plate number, and a physical description of the driver. He described the driver as a white male in his forties with a `bigger’ build and a balding hairline, and said he was wearing a white `Sherwin Williams’ sweatshirt. The police determined that the truck was registered to [McCarthy], who resided in Allenstown. A short time later, a detective from the Allenstown Police Department observed [McCarthy] arrive at his residence in a truck matching the description and license plate number Socha had provided.

The detective also observed that [McCarthy] was wearing a white `Sherwin Williams’ sweatshirt. [McCarthy] told the detective he had been in Manchester around 12:30 p.m. that day to pick up a friend and her daughter. The MPD filed a complaint charging [McCarthy] with indecent exposure and lewdness, and arrested him pursuant to a warrant.

By April 11, the MPD had not identified the female passenger whom Socha had described. In an effort to identify her, Sgt. Rousseau posted an entry on the MPD blog, describing the incident and stating, in relevant part, that `[d]etectives of the MPD Juvenile Division now say McCarthy, 41, was in fact the man who was exposing himself in the vehicle. McCarthy was subsequently arrested [and] charged with one count of indecent exposure.’ The entry then asked for information concerning the identity of the female passenger.

No passenger was ever identified. On the day of the plaintiff's criminal trial, Socha failed to come to court, and the State entered a nolle prosequi.

McCarthy v. Manchester Police Department, supra.  You can, if you are interested, find a news story about the investigation here.

McCarthy – the plaintiff -- then filed this civil lawsuit

against the defendants, alleging that Rousseau's post on the MPD blog stating that the plaintiff was `in fact’ guilty of the crime was defamatory. The defendants moved to dismiss, arguing that they were immune from suits that were not authorized by [New Hampshire Revised Statutes] chapter 507–B. See [NewHampshire Revised Statutes]  507–B:5 (`No governmental unit shall be held liable in any action to recover for bodily injury, personal injury or property damage except as provided by this chapter or as is provided or may be provided by other statute’).

The trial court construed the defendants' position to be that they were immune because the plaintiff's defamation claim constituted an intentional tort, which they argued was barred under [New Hampshire Revised Statutes] 507–B:5. The plaintiff objected to the motion. Initially, the trial court appeared to be of the view that [NewHampshire Revised Statutes] 507–B:2, an exception to municipal immunity, authorized suits against municipalities for claims based upon negligent (or perhaps reckless) conduct, but not intentional conduct. [New Hampshire Revised Statutes] RSA 507–B:2.

The court therefore considered whether defamation constituted an intentional tort under the statute. Finding no New Hampshire authority on point, the court relied upon a Massachusetts appellate court decision which held that, under that state's municipal immunity statute, all forms of defamation fall within the statute's definition of an intentional tort for which municipalities are immune from suit. See Barrows v. Wareham Fire Dist., 82 Mass. App. Ct. 623, 976 N.E.2d 830 (Massachusetts Court of Appeals 2012).

McCarthy v. Manchester Police Department, supra. 

After the prosecutor dismissed the criminal prosecution, McCarthy

subsequently brought this action against the defendants, alleging that Rousseau's post on the MPD blog stating that [he] was `in fact’ guilty of the crime was defamatory. The defendants moved to dismiss, arguing that they were immune from suits that were not authorized by [New Hampshire Revised Statutes] 507–B. See § 507–B:5 (`No governmental unit shall be held liable in any action to recover for bodily injury, personal injury or property damage except as provided by this chapter or as is provided or may be provided by other statute’). The trial court construed the defendants' position to be that they were immune because the plaintiff's defamation claim constituted an intentional tort, which they argued was barred under § 507–B:5. The plaintiff objected to the motion. Initially, the trial court appeared to be of the view that § 507–B:2, an exception to municipal immunity, authorized suits against municipalities for claims based upon negligent (or perhaps reckless) conduct, but not intentional conduct. See § 507–B:2.

The court therefore considered whether defamation constituted an intentional tort under the statute. Finding no New Hampshire authority on point, the court relied upon a Massachusetts appellate court decision which held that, under that state's municipal immunity statute, all forms of defamation fall within the statute's definition of an intentional tort for which municipalities are immune from suit. See Barrows v. Wareham Fire Dist., 82 Mass.App.Ct. 623, 976 N.E.2d 830 (2012).

McCarthy v. Manchester Police Department, supra. 

The Supreme Court went on to explain that

[f]ollowing Barrows, the trial court ruled that the plaintiff's claim constituted an intentional tort for purposes of § 507–B. It then concluded that, in order to avoid constitutional infirmity, the municipal immunity statute had to be construed consistently with the sovereign immunity statute, § 541–B:19, with respect to liability for intentional torts. See Huckins v. McSweeney, 166 N.H. 176, 90 A.3d 1236 (New Hampshire Supreme Court 2014); see also § 541–B:19, I(d) (providing that the state and state employees are immune from suit for `[a]ny claim arising out of an intentional tort, including . . . libel [and] slander . . . provided that the employee . . . reasonably believes . . . that his conduct was lawful, and provided further that the acts complained of were within the scope of official duties of the employee’). Consistent with § 541-B:19, I(d), the court found the defendants would be entitled to immunity unless Sgt. Rousseau acted beyond the scope of his official duties or did not reasonably believe that his conduct was lawful, and the court ruled it would conduct a pretrial evidentiary hearing in order to make these determinations.

McCarthy v. Manchester Police Department, supra. 

The opinion goes on to explain that in response to McCarthy’s motion asking the trial court to reconsider its original order, the court clarified that order:

The court recognized that a claim for defamation falls within the definition of `personal injury’ under § 507–B:1,III(a) and that, unlike §541–B:19, I(d), § 507–B:1, III(a) does not classify the types of claims that constitute `personal injury] as intentional torts. See § 507B:1, III(a) (defining `[p]ersonal injury’ as `[a]ny injury to the feelings or reputation of a natural person, including but not limited to . . . libel, slander, or the publication or utterance of other defamatory or disparaging material’). The court explained, however, that whether the plaintiff's claim was for intentional defamation or for negligent defamation, the claim was excepted from municipal immunity under § 507–B:5 only if it arose `out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises.’ § 507–B:2.

Because the plaintiff's defamation claim did not relate to motor vehicles or premises, the court next addressed [McCarthy’s] assertion that application of the municipal immunity statute so as to bar his claim would violate his right to equal protection of the law under Part I, Article 14 of the State Constitution. See N.H. CONST. pt. I, art. 14. Because the plaintiff's equal protection argument was based on the premise that he would have had a viable cause of action if the defamatory conduct at issue had been committed by a state actor rather than a municipal actor, the court again considered the circumstances under which the sovereign immunity statute, [New Hampshire Statutes] chapter 541–B, would bar the plaintiff's claim. After doing so, the court reaffirmed its original order that the plaintiff's claim would be barred by §541–B:19, I(d) unless Rousseau (1) was acting beyond the scope of his official duties, or (2) did not reasonably believe that he was acting lawfully when he made the blog post. Noting that the plaintiff did not contest that Rousseau had acted within the scope of his duties, the court scheduled an evidentiary hearing to resolve the second issue.

McCarthy v. Manchester Police Department, supra. 

The court held the hearing, at which Sergeant Rousseau testified.  McCarthy v. Manchester Police Department, supra.  After the hearing, the court ruled that

`[i]n light of the facts known to Sergeant Rousseau at the time he made the blog post, the circumstances under which the post was made, and the content of the entire post, the sergeant reasonably believed that he was acting lawfully when he posted the blog entry and stated [the plaintiff] “was in fact the man who was exposing himself in the vehicle.” Therefore, sovereign immunity, like municipal immunity, would bar plaintiff's defamation claim. In the absence of disparate treatment between the immunity statutes, application of the municipal immunity statute in this case does not violate equal protection, and thus is appropriate.’

McCarthy v. Manchester Police Department, supra. 

McCarthy appealed, raising two issues:

First, the plaintiff argues that the trial court erred in ruling that defamation is always an intentional tort for purposes of the municipal immunity statute, [New Hampshire Statutes] chapter 507–B, and that the trial court's reliance upon Barrows is misplaced. Second, the plaintiff contends that, assuming the trial court erred in classifying defamation as an intentional tort, the municipal immunity statute is unconstitutional insofar as it bars this action.

The plaintiff asserts that, because § 541–B:19, I(b) implicitly waives sovereign immunity for negligence actions against the state, his negligent defamation action would succeed against a state actor. If true, the dissimilarity between the two statutory schemes results in the law treating individuals injured by municipal employee negligence differently from those injured by state employee negligence. This disparity, he contends, renders the municipal immunity statute violative of his equal protection rights under Part I, Article 14 of the New Hampshire Constitution.

McCarthy v. Manchester Police Department, supra. 

The Supreme Court began its analysis of McCarthy’s arguments by explaining that

[New Hampshire] § 507–B:5 provides that `[n]o governmental unit shall be held liable in any action to recover for bodily injury, personal injury or property damage except as provided by this chapter or as is provided or may be provided by other statute.’ One exception to § 507–B:5 is set forth in § 507–B:2, which states, in relevant part, that `[a] governmental unit may be held liable for damages in an action to recover for bodily injury, personal injury or property damage caused by its fault or by fault attributable to it, arising out of ownership, occupation, maintenance or operation of all motor vehicles, and all premises.’ `Personal injury’ is defined, in relevant part, as `[a]ny injury to the feelings or reputation of a natural person, including but not limited to . . .  libel, slander, or the publication or utterance of other defamatory or disparaging material.’ § 507–B:1, III(a).

We do not read the provisions of § 507–B:5 in isolation. Although the combined import of §§ 507–B:2 and :5bars all tort actions against municipalities that do not have `a nexus between the claim and the [municipality's] ownership, occupation, maintenance, or operation of a motor vehicle or premises,’ Dichiara v. Sanborn Reg'l Sch. Dist., 165 N.H. 694, 82 A.3d 225 (New Hampshire Supreme Court 2013), in Huckins we held that `it is unconstitutional for the State to immunize itself or its municipalities from liability for intentional torts committed by government employees when those torts are not grounded on a reasonable belief in the lawfulness of the disputed act.’ Huckins, supra (emphasis omitted). Consequently, for [New Hampshire Statutes] chapter 507–B to be constitutionally valid, it must be construed to permit intentional tort claims against municipal actors who do not have a reasonable belief in the lawfulness of their conduct, regardless of whether the claims have a nexus to motor vehicles or premises.

McCarthy v. Manchester Police Department, supra. 

The Court then applied the above analysis to his arguments, noting that the

short answer to [McCarthy’s] first claim of error is that he is wrong in arguing that the trial court ruled that all defamation claims constitute intentional tort claims under the municipal immunity statute. Although the court's initial order on the motion to dismiss did contain some language to this effect, its ruling reconsidering that order recognized that the limitation on tort actions found in §507–B:2 depends upon the nexus between the claim and motor vehicles or premises.  Thus, even if the plaintiff is correct in asserting that a claim for negligent defamation is cognizable under § 507–B:2, the claim at issue here does not meet the terms of that statute because it has no nexus with the defendants' ownership, occupation, maintenance, or operation of motor vehicles or premises. Accordingly, because there is no statutory authorization for the plaintiff's claim, it is barred by §507–B:5.

This brings us to the plaintiff's constitutional challenge to the trial court's ruling. Although the plaintiff's brief is not entirely clear on the point, his argument appears to be that, because the sovereign immunity statute does not contain the exception for liability arising out of ownership, occupation, maintenance or operation of motor vehicles or premises found in the municipal immunity statute, compare § 541–B:19, I(b) with § 507–B:2, his claim for negligent defamation would be cognizable pursuant to § 541–B:19, I(b) if brought against a state actor, thus demonstrating the type of disparate treatment of similarly situated persons that is prohibited by the State Constitution.

The efficacy of this argument hinges upon the plaintiff's contention that § 541–B:19, I(d) bars defamation claims against state actors only in the case of intentional defamation. If, instead, § 541–B:19, I(d) also bars claims for negligent and reckless defamation against state actors, as the trial court decided, then the plaintiff's claim would fail even if the defendants here had been state actors, and the plaintiff, therefore, would not have been denied equal treatment.

McCarthy v. Manchester Police Department, supra. 

The Supreme Court therefore found that the trial court judge

correctly determined that § 541–B:19, I(d) grants sovereign immunity against all claims for defamation arising out of the conduct of state actors, provided that they were acting within the scope of their official duties and with a reasonable belief that their conduct was lawful.

[Section] 541–B:19, I(d) provides, in part, that the state does not waive its sovereign immunity for

`[a]ny claim arising out of an intentional tort, including ... libel [and] slander ... provided that the employee whose conduct gives rise to the claim reasonably believes, at the time of the acts or omissions complained of, that his conduct was lawful, and provided further that the acts complained of were within the scope of official duties of the employee for the state.’

McCarthy v. Manchester Police Department, supra. 

The court went on to explain that defamation

`is made up of the twin torts of libel and slander—the one being, in general, written while the other in general is oral. . . .’ W. Keeton, Prosser and Keeton on Torts § 111, at 771 (5th ed. 1984); see also 50 Am. Jur. 2d Libel and Slander § 1 (2006) (`The tort of defamation includes libel and slander’). Liability for defamation has two distinct intent elements. See Duchesnaye v. Munro Enterprises, Inc., 125 N.H. 244, 480 A.2d 123 (New Hampshire Supreme Court 1984).

First, a defendant can act either intentionally or negligently in communicating defamatory material. Duchesnaye v. Munro Enterprises, Inc., supra; see also Restatement (Second) of Torts § 577, at 201 (1977). Second, when concerning a private person, a defendant can either `(a) know[ ] that the statement is false and that it defames the other, (b) act[ ] in reckless disregard of these matters, or (c) act[ ] negligently in failing to ascertain’ the truth. Restatement (Second) of Torts, supra § 580B, at 221–22.

McCarthy v. Manchester Police Department, supra. 

The Supreme Court went on to explain that,

[n]evertheless, regardless of whether a defendant intentionally publishes material that is negligently fact-checked or negligently publishes material that intentionally defames, the cause of action is the same: defamation. We have found no controlling precedent, and the plaintiff points to none, that establishes intentional defamation and negligent defamation as two distinct causes of action. 

In contrast, in the case of some other torts, the law recognizes separate causes of action for intentional conduct, on the one hand, and negligent conduct, on the other. See, e.g., e.g., Morancy v. Morancy, 134 N.H. 493, 593 A.2d 1158 (New Hampshire Supreme Court 1991) (`Having previously recognized the tort of negligent infliction of emotional distress, there is no logical reason why we should not now recognize the tort of intentional infliction of emotional distress’); Patch v. Arsenault, 139 N.H. 313, 653 A.2d 1079 (New Hampshire Supreme Court 1995) (outlining the separate standards for intentional misrepresentation and negligent misrepresentation).

When the legislature placed libel and slander within the list of torts in § 541–B:19, I(d) for which sovereign immunity is not waived, and did not specifically define them in another way, we assume it gave the words their plain and ordinary meaning. See Appeal of the Local Government Center, 165 N.H. 790, 804, 85 A.3d 388 (New Hampshire Supreme Court 2014).

We conclude that, because libel and slander are not recognized as involving separate causes of action based upon the actor's mental state, the legislature intended to place those two torts, without regard to the intent with which they are committed, within the classification of `intentional torts’ listed in § 541B:19, I(d), as to which the state retains its sovereign immunity. Thus, the plaintiff's defamation action would have been barred even if the defendants had been state actors.

Because both the municipal and sovereign immunity statutes bar the plaintiff's action, there is no disparate treatment under the law and thus no constitutional violation.

McCarthy v. Manchester Police Department, supra. 

The Fourth Amendment, the Child Protection System and the Home Computer

This post examines an issue that arose in the prosecution of Dr. Bret Dunning, of Dana, Kentucky.  As this news story explains, in July of 2013 Dunning was

arraigned in Floyd County Circuit Court on six counts of possession of matter portraying a sex performance by a minor. A grand jury recently indicted Dunning on the multiple counts.

Kentucky State Police arrested Dr. Dunning on April 30 and charged him with one count of possession of matter portraying a sex performance by a minor.

In the October 15, 2015 opinion this post examines, the U.S. District Court Judge who has the case is ruling on Dunning’s motion “to suppress evidence seized from his home on April 30, 2013.”  U.S. v. Dunning, 2015 WL 5999818 (U.S. District Court for the Eastern District of Kentucky 2015).  The judge is not addressing the issue for the first time:  After Dunning filed his motion to suppress, he also requested that the judge hold an “evidentiary hearing” on his motion to suppress:

The motion was referred to U.S. Magistrate Judge Edward B. Atkins for review and issuance of a Report and Recommendation pursuant to 28 U.S. Code § 636(b)(1)(B). On October 1, 2015, Magistrate Judge Atkins issued his report, recommending that Dunning's motion to suppress and that his request for an evidentiary hearing be denied. . . .  Thereafter, Dunning filed objections to the Report and Recommendation. . . .

U.S. v. Dunning, supra.

In this opinion, the District Court Judge is analyzing whether the Magistrate Judge erred in recommending that Dunning’s motion to suppress be denied. U.S. v. Dunning, supra.

The judge began by outlining the investigation that led to Dunning’s being charged with the offense cited above.  U.S. v. Dunning, supra.

`On April 29, 2013, Detective Jason Merlo of the Kentucky State Police filed with a Floyd County District Court an application and affidavit for a search warrant of a residence located at 280 Leatherwood Lane in Dana, Kentucky. . . . Detective Merlo sought items related to the storage and sharing of child pornography. The affidavit contained information gathered by Detective Merlo on April 3rd during a computer query of IP addresses in Kentucky that were recently or actively sharing child pornography accessible on a popular peer-to-peer (P2P) sharing network, eDonkey. . . .

The computer query returned IP address 74.214.188.249 as one of the most recent addresses sharing exploitative material. . . . Detective Merlo, through his training and experience, recognized several files—whose contents are uniquely identifiable through their assigned `hash values’—as containing child pornography. . . . He then subpoenaed Gearheart Communications to obtain subscriber information for the IP address that he found sharing those files between March 11 and April 3, 2013. . . .

Gearheart Communications responded to the subpoena, stating that the IP address belonged to Defendant Bret Dunning, located at the 280 Leatherwood Lane address. . . . Detective Merlo further matched the address to the Defendant by observing several vehicles parked on the premises with tags registered to the Defendant. . . .

On April 29, 2013, Detective Merlo again queried the IP address associated with the Defendant, and the P2P database displayed that the IP address was sharing 176 `notable’ files, meaning that they were consistent with known exploitative material. . . . Using this information, Detective Merlo applied for and obtained a warrant for a search of the Defendant's residence.

U.S. v. Dunning, supra.

The first argument Dunning made in his motion to suppress was that “his Fourth Amendment rights were violated when, prior to obtaining a search warrant, Detective Merlo conducted a search of the defendant's home computer using the Child Protection System (`CPS’), a computer database only available to law enforcement.”  U.S. v. Dunning, supra.  The judge began his analysis of that issue by explaining that

Detective Merlo's affidavit explained that he identified Dunning as a suspect by accessing a `law enforcement database’ that analyzes information from a public, peer-to-peer file sharing network. . . . Because, however, the public does not have access to this law enforcement database, Dunning contends that its use constituted an impermissible warrantless search of his home. . . . In his report, Magistrate Judge Atkins concluded that the question of whether the database was available to the public was irrelevant because Dunning did not have a reasonable expectation of privacy in `publicly available content’ shared over the P2P eDonkey network. . . . The undersigned agrees with Magistrate Judge Atkins' conclusion regarding this issue.

U.S. v. Dunning, supra.

The District Court Judge went on to explain that a

`Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.’ Kyllo v. U.S., 533 U.S. 27 (2001). In Kyllo, law enforcement utilized thermal imaging technology without a warrant to detect high-intensity lamps used for marijuana growth in the defendant's home. . . The Supreme Court ultimately concluded, `[w]here, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.’ . . .

But this case is distinguishable from Kyllo. Even though the database used to obtain the information is not publicly available, the same conclusion cannot be reached regarding the information itself. Because the peer-to-peer network allows users to share information with anyone who joins it, no one user can have a reasonable expectation of privacy in the information he receives or transmits over the network. Thus, the allegedly pornographic images on Dunning's home computer were not `unknowable without physical intrusion’ into his home. Anyone who joined the eDonkey network would have access to the same information.

U.S. v. Dunning, supra.

The judge also noted that Magistrate Judge Atkins cited

a host of cases where other courts reached this same conclusion when confronted with similar facts and arguments. See U.S. v. Dodson, 960 F. Supp. 2d 689 (U.S. District Court for the Western District of Texas 2013) (use of CPS software to view content on the eDonkey network was not a `search’ for Fourth Amendment purposes); U.S. v. Feldman, 2014 WL 7653617 (U.S. District Court for the Eastern District of Wisconsin 2014) (law enforcement utilized the database `not to peer into a suspect's home, as was the case in Kyllo, but to monitor Feldman's activities on a public peer-to-peer network, a space where Feldman had no reasonable expectation of privacy’); U.S. v. Dennis, 2014 WL 1908734 (U.S. District Court for the Northern District of Georgia 2014) (`So, even if CPS does collect information, it collects publicly available information, which does not run afoul of the Fourth Amendment’).

Even the unpublished opinion that Dunning attached reached the same conclusion. In Louisiana v. Daigle, No. KAT 11-1209 (U.S. Court of Appeals for the 3^rd Circuit May 2, 2012), the Third Circuit observed that other federal courts `have determined that defendants have no Fourth Amendment privacy rights in computer files that they have shared on file sharing networks.’  The Daigle Court also cites a number of published decisions from other circuits reaching the same conclusion. Conversely, Dunning has cited no authority that supports his contention that Detective Merlo's use of the database was impermissible under the Fourth Amendment. But in light of the abundance of case law holding otherwise, Dunning's warrantless search argument fails.

U.S. v. Dunning, supra.

The Judge then took up the second argument Dunning made in his motion to suppress, which was that the affidavit used to establish probable cause for the search warrant Detective Merlo obtained to search Dunning’s home computer did not contain information sufficient to establish probable cause to search the computer.  U.S. v. Dunning, supra. 

As this site explains,

police officers obtain warrants by providing a judge or magistrate with information that the officers have gathered. Usually, the police provide the information in the form of written statements under oath, called affidavits, which report either their own observations or those of private citizens or police undercover informants. In many areas, a judicial officer is available 24 hours a day to issue warrants.

A magistrate who believes that an affidavit establishes `probable cause’ to conduct a search will issue a warrant. . . . The suspect, who may be connected with the place to be searched, is not present when the warrant is issued and therefore cannot contest whether there is probable cause before the magistrate signs the warrant. However, the suspect can later challenge the validity of the warrant with a pretrial motion.

Getting back to the opinion, the District Court Judge explained that

Magistrate Judge Atkins found that Detective Merlo's affidavit demonstrated that probable cause did exist for issuance of the warrant. Again, the undersigned agrees with Magistrate Judge Atkins' conclusion.

When making probable cause determinations, the Fourth Amendment requires the issuing judge to consider `whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular case.’ U.S. v. Terry, 522 F.3d 645 (U.S. Court of Appeals for the 6th Circuit 2008) (quoting Illinois v. Gates, 462 U.S. 213 (1983)). When reviewing the issuing judge's decision, a court should also consider the totality of the circumstances. Illinois v. Gates, supra. But the reviewing court should give `great deference’ to the issuing judge's probable cause determination. U.S. v. Brown, 732 F.3d 569 (U.S. Court of Appeals for the 6th Circuit 2013).

According to Dunning, the issuing judge was not entitled to rely on Detective Merlo's affidavit because it contained `wholly conclusory statements’. . . . The Supreme Court has held that an issuing judge cannot merely ratify `the bare conclusions of others’ in making a probable cause determination. Illinois v. Gates, supra. However, in this case, Dunning's criticism is unfounded because the detective's affidavit presented the issuing judge with sufficient proof for issuance of a search warrant.

U.S. v. Dunning, supra. 

The judge then went through the three arguments Dunning made as to why the affidavit in this case was insufficient to establish probable cause.  The first was that the affidavit

is deficient because Detective Merlo failed to confirm that Dunning's IP address was actively viewing child pornography at the time he applied for the warrant. . . . The affidavit clearly refutes this contention. According to the affidavit, Detective Merlo first encountered Dunning's IP address in a search conducted on April 3, 2013. . . . Detective Merlo states that on that date, `[t]he database had seen the IP with 170 files, of which matched suspected child pornography hash values.’ . . . On April 29, 2013, the affidavit states that Detective Merlo again queried Dunning's IP address using the database and found 176 suspected child pornography files. . . .

U.S. v. Dunning, supra. 

The second argument was that the affidavit

is deficient because Detective Merlo failed to confirm that Dunning's IP address was actively viewing child pornography at the time he applied for the warrant. . . .The affidavit clearly refutes this contention. According to the affidavit, Detective Merlo first encountered Dunning's IP address in a search conducted on April 3, 2013. . . Detective Merlo states that on that date, `[t]he database had seen the IP with 170 files, of which matched suspected child pornography hash values.’ . . . On April 29, 2013, the affidavit states that Detective Merlo again queried Dunning's IP address using the database and found 176 suspected child pornography files. . . .

U.S. v. Dunning, supra. 

Dunning’s third argument involved a challenge to the

reliability of hash values, the alphanumeric codes Detective Merlo relied on to identify images known to contain child pornography. . . . Dunning notes that Detective Merlo had not actually viewed the images on his computer before applying for the warrant. However, as Magistrate Judge Atkins observed, hash values `boast a reliability and accuracy akin to DNA: 99.99%.’  The Report and Recommendation mentions several cases where other courts have found hash values highly reliable. See U.S. v. Wellman, 663 F.3d 224 (U.S. Court of Appeals for the 4th Circuit 2011) (also citing the 99.99 percent probability statistic).  See also U.S. v. Cartier, 543 F.3d 442 (U.S. Court of Appeals for the 8th Circuit 2008).

The CPS manual, which Dunning attached to his motion as Exhibit B, also describes hash values as `more accurate than DNA.’ . . . In U.S. v. Cartier, supra, the Eighth Circuit held in a similar case that hash values alone, without observation of actual images, represented sufficient evidence for the issuance of a warrant. The Fourth Amendment allows judges to issue warrants when `it is fairly probable, not certain, that the contraband will be found at the place to be searched.’ U.S. v. Cartier, supra.

U.S. v. Dunning, supra. 

And, finally, Dunning claimed the affidavit

was deficient because it failed to name the law enforcement database used and the procedure for proper use of the database. . . . And he contends that the database was used improperly. However, the name of the database was not necessary to establish probable cause. Further, the name of the database, `The Child Protection System,’ has now been provided to Dunning along with the manual for its operation that Dunning attached to his motion. Dunning has offered no proof that Detective Merlo abused CPS or violated any procedures required for its use.

U.S. v. Dunning, supra. 

For these and other reasons, the District Court Judge adopted the Magistrate Judge’s Report and Recommendation and therefore denied Dunning’s motion to suppress. U.S. v. Dunning, supra.