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In a series of federal criminal cases prompting much litigation on a suppression issue, a judge has found that a hearing is required to determine if FBI agents acted with intent or reckless disregard by obtaining faulty search warrants in an Internet child pornography action. Eastern District of New York Judge Denis R. Hurley’s decision stems from a nationwide federal investigation involving about 100 defendants who allegedly received child pornography by subscribing to the Candyman Web site. The problem with the warrants used against the subscribers pertained to the agents’ representation, in affidavits submitted to obtain those warrants, that every subscriber to the Candyman Web site automatically received e-mail messages from other members that contained child pornography. It was later discovered, however, that people who subscribed to the Web site had several e-mail options, including the choice to receive no e-mail at all. In calling for a hearing on the search warrant issue to determine if the evidence obtained is admissible, Judge Hurley contravened a ruling last month by Judge Leonard D. Wexler, also in the Eastern District. Judge Wexler determined that although federal agents used false information to obtain warrants, their actions did not invalidate a search of a man’s home. Other Eastern District rulings in the Candyman prosecution, including one from Judge Frederic Block and another from Judge Allyne R. Ross, have denied motions to suppress. But Hurley’s ruling is in line with decisions from other district courts on the issue, including a March ruling by Southern District of New York Judge Denny Chin, who granted a Candyman defendant’s motion to suppress evidence obtained through the faulty warrant. In addition, a district judge in Missouri has granted motions to suppress for the same reason. The ruling by Hurley involves two cases before him, U.S. v. Kunen, 02-CR-0326 and U.S. v. Alexander, 02-CR-1388. Judge Hurley first found that Chin’s decision in U.S. v. Perez, 247 FSupp2d 459, did not bar federal prosecutors from seeking a hearing on the admissibility of evidence obtained through the warrants. Citing a 1984 U.S. Supreme Court decision in U.S. v. Mendoza, 464 U.S. 154, Judge Hurley observed that the defendants in the case before him, who were not parties in Chin’s decision, could not use the doctrine of collateral estoppel against the government to prevent it from pursuing a hearing on the warrants. Judge Hurley also found that an exception to excluding the evidence obtained through the faulty warrants did not apply in this case. In the 1985 Supreme Court decision, U.S. v. Leon, 468 U.S. 897, the Court held that the exclusionary rule did not apply if the officer conducting the search acted in an objectively reasonable reliance on the warrant. But the Leon decision was inapplicable, Hurley found, because the false information provided by the FBI agents was chargeable to the officers who actually executed the search. The judge then considered whether the agents’ affidavits — absent the faulty information — provided enough reason to establish probable cause for the search. Wexler’s April 28 decision in U.S. v. Coreas, 02-CR-0320, had found that enough truthful information did exist in the affidavit to find probable cause. But Judge Hurley was not convinced in his case. “Defendants have the better side of the argument in my view,” he wrote, adding that the application for the search warrant, “if stripped of the erroneous information,” indicated little about the two defendants beyond their membership to the Web site. He further rejected prosecutors’ arguments that since a “majority” of Candyman members were more likely than not to have child pornography on their computers, the entire membership of the Web site could be subject to search and that, therefore, the search was valid without the misinformation in the affidavits. “The idea of a warrant issuing solely upon group probabilities, rather than upon individualized information — a proposition, I believe, to be implicit in some of the decisions cited by the government — is troubling,” he wrote. As such, the judge ordered a Franks hearing to determine if the evidence obtained through the faulty warrant was done with intentional falsity or reckless disregard. Assistant U.S. Attorney James E. Tatum Jr. represents the prosecution. Thomas Liotti, in Garden City, represents Paul Alexander. Ulric McNicol, in Hempstead, represents Scott Kunen.

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