What is the test for probable cause for a search warrant application?

Further, the government suggests that the defendant's first providing consent to review his many computers and then revoking this consent supported probable cause, and the affidavit supporting the warrant application also recited this fact as supporting probable cause. But that fact cannot be considered for present purposes either. [R]efusal to consent to a warrantless search is privileged conduct which cannot be considered as evidence of criminal wrongdoing. United States v. Prescott, 581 F.2d 1343, 1351 (9th Cir.1978); see also Gasho v. United States, 39 F.3d 1420, 143839 (9th Cir.1994) (same).

Finally, the majority also places weight on the affidavit's hearsay mention of a report of child neglect, Maj. op. at 1178, but there are three problems with doing so. First, the affidavit gives zero indication as to whether the allegation was ever substantiated. Second, the affidavit's report of child neglect language is, at best, misleading hyperbole; in fact, the children's mother, according to the police report, asked the police to go by the home to check on her children when they did not arrive at the train station as previously arranged. The government's brief is more

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honest, calling the visit a child welfare check. Insofar as the misleading child neglect label supported probable cause, it must be disregarded. See United States v. Flyer, 633 F.3d 911, 916 (9th Cir.2011); Crowe, 608 F.3d at 435; United States v. Craighead, 539 F.3d 1073, 1080 (9th Cir.2008). Third, and most importantly, a generalized report that someone is neglecting children in his care, even if substantiated, does not provide probable cause to think that child pornography would be found on his computers.

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