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2nd Circuit Divides Over Warrant in Internet Child Porn Case
New York Law Journal
October 01, 2008
Disagreement over the requirements of probable cause and the good-faith exception to the exclusionary rule in Internet child pornography prosecutions continues to divide the 2nd U.S. Circuit Court of Appeals.
In United States v. Falso, 06-2721-cr, the court split over the application for a search warrant that was based largely on general assumptions about the habits, including computer habits, of people who view child pornography.
A law enforcement affidavit alleged that defendant David J. Falso "appears" to have "gained or attempted to gain" access to a Web site that distributed child pornography, but contained no allegation that Falso actually accessed the site. The affidavit also stated that Falso had been convicted of misdemeanor sexual abuse of a minor 18 years ago.
Judges Dennis Jacobs and Sonia Sotomayor agreed that probable cause was lacking for a search of Falso's home and computer. Judge Debra Ann Livingston disagreed.
A majority of Judges Sotomayor and Livingston nonetheless decided that the good-faith exception to the exclusionary rule applied and affirmed the judgment of conviction entered against Falso and the 30-year prison sentence ordered by Northern District of New York Judge Thomas J. McAvoy.
The affidavit was filed in June 2005 by FBI Agent James Lyons. Falso challenged the search that netted a box of child pornography from his home and additional images of child pornography on his computer.
The affidavit, Sotomayor explained, contained "generalized information," including Lyons swearing that individuals who exploit children often use computers to obtain and store images and communicate with like-minded individuals.
Specifically, Lyons said an examination of records from the pornography site cpfreedom.com showed "several possible subscribers along with e-mail addresses and other information." One of the e-mail addresses was Falso's.
Falso submitted an opinion from a data forensics expert who said "there is a difference between visiting a Web site" and becoming a member or subscriber. In the latter case, the expert said, a password and user name are assigned after a fee has been paid or the subscriber has submitted personal information.
Moreover, the expert stated, Internet service providers do not maintain records showing the Web sites visited by their customers, adding that "it is common practice" for sites "to obtain lists of e-mail addresses from other sources ... and to send unsolicited e-mails to such addresses."
Judge McAvoy denied the motion to suppress in February 2006, finding probable cause existed, in part because of Falso's prior conviction.
The case then came to the 2nd Circuit, which had struggled with this issue before.
WEB MEMBERSHIP
In United States v. Martin, 436 F.3d 68, a divided circuit found in 2005 there was probable cause to search a home and computer based on the defendant's membership to a Web site whose main purpose was sharing child pornography.
But two weeks later a different circuit panel found that Martin "was wrongly decided" in United States v. Coreas, 419 F.3d 151. Nonetheless, the Coreas panel said it was bound by the Martin precedent.
At issue in Martin and Coreas was the affidavit for search warrants contained in the Operation Candyman prosecution, a multistate FBI child pornography dragnet that resulted in scores of arrests and convictions. Problems with the affidavits used to obtain search warrants led some federal judges to dismiss charges against those arrested in the sweep. One problem in particular was that people who joined the "Candyman e-group" automatically received e-mails containing child pornography.
Judge Sotomayor said Falso's case "tests the limits of these precedents" because he was not accused of being a member or subscriber of cpfreedom.com. For that reason, she said, Martin and Coreas are not controlling.
"Agent Lyons inconclusive statements about whether Falso even accessed the cpfreedom.com web site, coupled with absence of details about the features and nature of the non-member site, falls short of establishing probable cause," she said, adding that even if Falso's "prior conviction were relevant to the analysis, it should have been only marginally relevant because the conviction was stale."
But the good-faith exception applied, Sotomayor said, because "the district court was not knowingly or recklessly misled," and the affidavit was not "so lacking in indicia of probable cause."
The majority also put stock in the notion that, if there was any error here, it lay with the district judge.
"Even if there may have been an innocent explanation for the presence of Falso's e-mail address on the cpfreedom.com website, that does not undermine the officers' good-faith reliance on the warrant," she said.
In dissent, Judge Jacobs took a more skeptical view of the affidavit, finding it "recklessly misleading (at best), and that Agent Lyons -- because he was both the affiant and the executing officer -- could not rely on the good faith imprimatur of the district judge."
The affidavit, Jacobs said, "fails to allege the requisite substantial 'nexus' between Falso and the web site" and "Agent Lyons had need to create an impression that more was known than was known in fact."
The judge noted, "An executing officer can hardly claim good-faith reliance on a warrant issued by a judge who was misdirected by the officer himself: the same principle explains why, at a magic show, the credulity of the audience does not cause the magician to fear that the lady has been sawn in half."
Bruce R. Bryan of Syracuse, N.Y., and Vincent Briccetti of Briccetti, Calhoun & Lawrence in White Plains, N.Y., represented Falso.
Bryan said there was an important difference between this case and Martin and Coreas.
"In Martin and Coreas, the government agreed the affidavit was misleading and here it was a contested issue," he said. "I am sure this decision will be of great interest to the government as to what standards they must meet in applying for search warrants where Internet activities are the basis for the evidence."
Assistant U.S. Attorney Brenda K. Sannes represented the government.
