56 F.4th 673
9th Cir.2022Background
- April 2016: Tumblr reported suspected child‑pornography uploads to NCMEC identifying two IPs (50.118.198.254 and 24.253.48.163) and a Tumblr user account; NCMEC forwarded the matter to Nevada ICAC.
- LVMPD Detective Miller subpoenaed Cox and linked IP 24.253.48.163 to Justin Fisher’s Burkehaven Ave residence; a separate Tumblr search‑warrant response produced a flash drive with dozens of child‑exploitation files and login data showing 24.253.48.163 (Computer 163) logged in hours before Tumblr’s reported ‘‘Incident Time.’
- Detective Miller obtained and executed a search warrant at the Burkehaven residence on Nov. 21, 2016; multiple devices were seized and forensic analysis produced child‑exploitation evidence leading to federal charges against Justin and Joshua Fisher.
- Justin sold the house in Sept. 2017. In July 2018 the new owner consented to a search; agents recovered a phone and two SSDs hidden in the attic that contained curated evidence of the brothers’ abuse.
- Defendants moved to suppress (1) the 2016 search‑warrant evidence, arguing the affidavit contained material false statements/omissions (Franks claim), and (2) the 2018 evidence as the ‘‘fruit of the poisonous tree’’ or, alternatively, that they retained standing. The district court denied both motions; the Ninth Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of Nov. 21, 2016 search warrant (Franks challenge) | Warrant affidavit fairly summarized CyberTip/NCMEC, Cox records, and Tumblr’s search‑warrant response linking 24.253.48.163 to incriminating uploads; probable cause existed | Affidavit misstated/omitted material facts about which IP uploaded files (substituted 24.253.48.163 for 50.118.198.254) and left out exculpatory login data; any such falsity was intentional or reckless and dispositive of probable cause | Affirmed. No material falsehood or reckless omission that would defeat probable cause; Tumblr response and subpoenaed records provided a substantial basis for the warrant. |
| Standing to challenge July 2018 search / abandonment | Defendants abandoned the items by concealing them then failing to retrieve them after the house was sold; Government therefore had consent/standing of new owner and Defendants lack standing | Defendants retained an expectation of privacy: items were concealed to keep them secure and they attempted to recover them via a brother; July 2018 seizure was fruit of an allegedly unlawful 2016 search | Affirmed. Court found abandonment by objective acts and lapse of time; Defendants lacked Fourth Amendment standing, so suppression denied. |
Key Cases Cited
- Franks v. Delaware, 438 U.S. 154 (establishes defendant’s standard to obtain a hearing on alleged false statements/omissions in warrant affidavits)
- Illinois v. Gates, 462 U.S. 213 (probable cause judged by totality of the circumstances; magistrate’s common‑sense determination)
- United States v. Leon, 468 U.S. 897 (permitting inquiry into knowing or reckless falsity; discusses good‑faith/deference to magistrate)
- United States v. Nordling, 804 F.2d 1466 (property abandonment principles; no standing when property voluntarily abandoned)
- United States v. Underwood, 725 F.3d 1076 (de novo review of warrant validity with great deference to issuing judge)
- United States v. Wong, 334 F.3d 831 (probable cause assessed on the reasonableness of seeking evidence at the indicated place)
- United States v. Mayer, 560 F.3d 948 (totality‑of‑the‑circumstances approach to probable cause)
- United States v. Krupa, 658 F.3d 1174 (deference to magistrate’s finding of probable cause; conclusions must be supported by facts)