David Falso was a familiar figure in the smallish upstate city of Cortland, N.Y., as the owner of Patino Murphy’s bar and Bad Lucy’s Ale House.

But when his e-mail address turned up among hundreds of possible visitors to a child pornography site that was under federal investigation in 2005, the FBI obtained a search warrant and five agents paid a visit, not to Falso’s bars, but to his home on Peaceful Drive.

There, with Falso’s cooperation, the agents found a cache of pornographic photos depicting minors, and they placed him under arrest.

Last year, Judge Sonia Sotomayor of the U.S. Court of Appeals for the 2d Circuit ruled that the search was improper, writing for a divided panel that the search warrant was based on “fallacious inferences” about Falso’s involvement with the porn site that “[fell] short of establishing probable cause.”

But the decision did not mean that Falso could return to drawing draughts at his bars in Cortland. Both establishment have closed, and Falso, 68, is in federal prison at Allenwood, Pa., with 22 more years to go.

That’s because Sotomayor also ruled that, in spite of the improper search, the evidence obtained should not be suppressed. Asserting that the judge who issued the search warrant was not “knowingly or recklessly misled,” she invoked the “good-faith exception” rule of U.S. v. Leon, a 1984 U.S. Supreme Court precedent that allows otherwise tainted evidence to be admitted.

The Falso case, with its Janus-like glance favoring both the defendant and law enforcement, is one of dozens of Sotomayor’s opinions that defy easy categorization as liberal or conservative. The September 2008 ruling and others like it will be scrutinized by the Senate as they prepare for summertime hearings on her nomination to the Supreme Court.

Her decision, lengthy and detailed, at once shows an ex-prosecutor’s understanding of law enforcement needs, an appellate judge’s deference to Supreme Court precedent, and a liberal’s empathy for a defendant ensnared by government primarily because his e-mail address was found in the wrong place.

In short, said Miller & Chevalier partner Timothy O’Toole, “it looks pretty mainstream to me.” O’Toole, a Fourth Amendment expert and board member of the National Association of Criminal Defense Lawyers, said that for Sotomayor to bow to the Leon good-faith exception is “what you would expect from a former prosecutor and a law-and-order judge, but really any judge would do that. She had to follow Leon .” Once on the Supreme Court, Sotomayor might feel less bound to precedent, but it’s hard to predict which way she would turn. “Opinions like this show you why the Supreme Court is so important,” O’Toole said.

Stetson University College of Law professor Ellen Podgor, who has reviewed more than 100 of Sotomayor’s white-collar criminal cases, said, “Overall, she’s government. But I’m not saying she always sides with government. She follows the law.”


Corey Rayburn Yung, assistant professor at The John Marshall Law School in Chicago, an expert and blogger on sex crimes law, said Sotomayor was “certainly not an outlier in the Falso case, either on probable cause or on the good-faith exception.” Courts have divided over whether Internet activity that amounts to little more than “just looking” at child porn sites amounts to probable cause for warrants to search for evidence of serious crimes. The FBI’s 2002 “Operation Candyman” raids, aimed at participants in pornography chat groups, resulted in dozens of arrests and several conflicting decisions on probable cause, some of which Sotomayor cited in the Falso decision.

The Falso case began with an affidavit and application for a search warrant signed by FBI special agent James Lyons. A 2004 Kansas City investigation into a Web site called CP Freedom had turned up Falso’s e-mail address among “several hundred possible subscribers” who “either gained access or attempted to gain access” to the site, which contained pornographic images. Lyons also checked Falso’s record and found that in 1987 he had been sentenced to three years probation for a misdemeanor charge of sexually abusing a 7-year-old girl.

Based on these facts, Lyons said, “It is my opinion that there is probable cause to believe that [Falso] is a collector of child pornography.” Judge Thomas McAvoy of the U.S. District Court for the Northern District of New York signed the warrant, and the search, led by Lyons, was launched.

The agents who visited Falso’s home did not give him a Miranda warning, and Falso later testified he did not think he was free to deny them access. Instead he let them in and they seized his computer and boxes of pornographic photos. Falso also told them he had traveled to Thailand and engaged in sexual activity with underage girls there. He was ultimately charged in a 242-count indictment, and he pleaded guilty before trial in 2006, setting up an appeal on the search warrant issue.

“He was quite well-known in the community,” said Thomas Saitta of the Binghamton, N.Y., law firm Aswad & Ingraham, who represented Falso at the trial stage. “There was no basis for probable cause.” Saitta said Falso’s e-mail could have been purchased by the web site from a spam mailer and did not prove that he had joined the site or even seen or purchased anything illicit. “The agent intentionally misled the court.”


On appeal, at oral argument on Sept. 24, 2007, Sotomayor seemed to tip her hand. Assistant U.S. Attorney Brenda Sannes argued there was ample probable cause to issue the Falso search warrant. But Sotomayor asked incredulously whether the mere presence of an e-mail address associated with a Web site, linked to an 18-year-old conviction, was enough. “That’s probable cause?” She added, “You can’t say that a…judge can rely on a conclusion that has no factual basis. Otherwise, we render the need for a search warrant irrelevant.”

But Sotomayor also showed her sympathy for the prosecution when Syracuse, N.Y., lawyer Bruce Bryan argued for Falso. She repeatedly said, “I don’t know why” the FBI agent’s affidavit was misleading. Given the division among appeals courts over the level of probable cause needed in similar cases, she added, “how are police officers supposed to know?”

Both parts of Sotomayor’s opinion drew criticism from fellow panel members. Chief Judge Dennis Jacobs agreed with Sotomayor that the FBI agent’s affidavit did not give probable cause for the warrant. But unlike Sotomayor, Jacobs said the FBI’s misleading affidavit should have deprived it of any “good-faith exception.” Judge Debra Livingston disagreed with Sotomayor on the sufficiency of the search warrant, but agreed with her that the FBI was entitled to a good-faith exception.

After Sotomayor ruled, Bryan filed a petition for rehearing, arguing that the majority, in granting the good-faith exception, had relied on statements made by Sannes at oral argument that should have been ignored because they were outside the record. At the argument, Sannes said the government had information that Falso had been given a password by the Web site, a sign that he may have been a member.

The petition for rehearing was denied earlier this year. Lawyers for Falso still have time to appeal to the Supreme Court and, if the case is granted, it would be argued in the fall after Sotomayor, if confirmed, takes her seat on the Supreme Court.

Tony Mauro can be contacted at tony.mauro@incisivemedia.com.