Lead Opinion
Defendant-appellant David J. Falso (“Falso”) appeals from the June 6, 2006 judgment of the United States District Court for the Northern District of New York (McAvoy, J.). Falso was convicted, upon Ms conditional guilty plea to a 242-count indictment, of crimes relating to child pornography and traveling with the intent to engage in illicit sexual conduct with minors. Prior to Falso’s guilty plea, the district court denied his motion to suppress evidence seized from his home on the grounds that probable cause for the search existed and that, in any event, the “good-faith” exception to the exclusionary rule applied.
The threshold issue presented on appeal is whether a substantial basis for the district court’s finding of probable cause exists where the law enforcement affidavit supporting the search warrant alleged that Falso “appears” to have “gained or attempted to gain” access to a website that distributed child pornography and had been convicted eighteen years earlier of a misdemeanor based on sexual abuse of a minor. In a divided opinion in United States v. Martin,
Falso’s case tests the limits of these precedents, insofar as it presents the following distinguishing factor: Falso was not alleged to be a member or subscriber to a child-pornography website; it was alleged only that Falso “appeared ” to “have gained or attempted to gain” access to a site that contained approximately eleven images of child pornography. Absent any allegation that Falso in fact accessed the website at issue, the question is whether Falso’s eighteen-year old conviction involving the sexual abuse of a minor (or some other factor) provides a sufficient basis to believe that evidence of child pornography crimes would be found in Falso’s home. A majority of this panel (Jacobs, C.J. & Soto-mayor, J.) holds that probable cause was lacking. A differently aligned majority of this panel (Sotomayor & Livingston, J.J.), however, holds that the good-faith exception to the exclusionary rule applies. See United States v. Leon,
BACKGROUND
A. The Search Warrant Affidavit
On or about June 1, 2005, the Federal Bureau of Investigation (“FBI”) submitted an application for a warrant to search for and seize evidence of child pornography in Falso’s home. The application was supported by, inter alia, a twenty-six page affidavit by FBI Agent James Lyons (“Agent Lyons”). Among other things, the affidavit provided information about (1) the use of computers and the internet to view and collect child pornography; (2) the characteristics of child-pornography collectors; and (3) the investigation that implicated Falso.
Of the affidavit’s generalized information, Agent Lyons explained that individuals who exploit children, including collectors of child pornography, commonly use computers to: communicate with like-minded individuals, store their child pornography collections, and locate, view, download, collect and organize images of child pornography found on the internet. The affidavit further explained that collectors and distributors of child pornography sometime use online resources to retrieve and store child pornography, including services offered by internet portals such as Yahoo! Inc. (“Yahoo”). The affidavit also contained information gathered by a member of the FBI’s Behavioral Analysis Unit, including his observations that “[t]he majority of individuals who collect child pornography are persons who have a sexual attraction to children,” and that those who collect images of child pornography generally store their collections at home.
Specific to the investigation of Falso, the affidavit explained that the FBI obtained the Internet Protocol address of a website, www.cpfreedom.com, which contained ap
The affidavit also revealed that on February 18, 1987 — approximately eighteen years earlier — Falso was arrested by the New York State Police for sexually abusing a seven-year old girl and was charged with Sexual Abuse and Endangering the Welfare of a Child. According to the affidavit, the police report relating to this incident stated that Falso placed his hands inside the girl’s underwear and digitally penetrated her, and acknowledged to police that he may need counseling for latent problems. The affidavit also stated that, on or about September 21, 1987, Falso pled guilty to Acting in a Manner Injurious to a Child Less than Sixteen, a misdemeanor for which Falso received a sentence of three years probation.
Based on the foregoing, Agent Lyons opined that “there [was] probable cause to believe that the individual utilizing the Yahoo ID ‘eousy 1731’ [i.e. Falso] ... is a collector of child pornography.” Judge McAvoy agreed and issued a search warrant on June 1, 2005, permitting the FBI to search Falso’s home for, inter alia, evidence of child-pornography related crimes.
B. The Search and Seizure
Five law enforcement officers, including Agent Lyons, executed the search warrant at Falso’s home on June 8, 2005. The officers seized Falso’s computer and a box containing child pornography in Falso’s bedroom. Agent Lyons and another officer also interviewed Falso for approximately ninety minutes during the search. Agent Lyons’s report from the interview stated that Falso admitted to, among other things, obtaining child pornography from the internet; engaging in sexual activity with females in other countries whom he believed to be between the ages of sixteen and eighteen; and having been convicted for sexually abusing a seven-year old girl. Falso was placed under arrest at the conclusion of the search. A later search of Falso’s computer revealed additional images of child pornography.
Falso was indicted on June 16, 2005 for traveling with the intent to engage in illicit sexual conduct with minors in violation of 18 U.S.C. §§ 2423(b), (f) & 2246 (Counts 1-2); production of child pornography in violation of 18 U.S.C. § 2251(a) (Counts 3-10); receiving child pornography via the internet in violation of 18 U.S.C. §§ 2252A(a)(2)(A), (B) & 2256 (Counts 11-233); transporting and shipping child pornography in violation of 18 U.S.C. §§ 2252A(a)(l) & 2256 (Counts 234-241); and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 242). The indictment also alleged that Falso had a prior conviction relating to the sexual exploitation of children, and sexual abuse involving a minor, which invoked the penalty provisions of 18 U.S.C. §§ 2252A(b)(l), (b)(2) and 2251.
Falso subsequently moved to suppress the evidence seized from his home and computer on the ground that probable cause for the search was lacking. Specifically, Falso claimed that the presence of his e-mail address on the cpfreedom.com website was an insufficient basis for probable cause in the absence of any allegations in the affidavit that Falso was a member or subscriber to the website, or that the overriding purpose of the website was the trading of child pornography.
Falso also sought a Franks hearing,
On February 24, 2006, the district court issued an oral ruling denying Falso’s motions, holding that: (1) Falso was not entitled to a Franks hearing; (2) probable cause for the search existed; and (3) even if there was an insufficient basis for probable cause, suppression of the evidence was not warranted because the good-faith exception to the exclusionary rule applied.
More specifically, in response to Falso’s Franks claim, the court found that Agent Lyons did not make any false or misleading statements, and explained that, “[significantly, the court was not misled by Agent Lyons.” The court explained that it
The district court then explained its basis for concluding that probable cause existed:
First, there was the information concerning the background of persons dealing in child pornography, including the fact that persons who collect child pornography have a sexual attraction to children. Second, there was information that the web site, CP Freedom, advertised that it contained child pornography, actually had some images of child pornography available on it free of charge and advertised that it had additional images of child pornography upon payment of a fee. Third, the FBI determined that the material associated with the website is hardcore child pornography. Fourth, there was evidence that [Falso] had access or attempted to access the CP Freedom web site. Fifth, there was information [that Falso] actually engaged in inappropriate sexual contact with a minor in the past.
Thus, the court found:
Together, this information set forth a reasonable probability that [Falso] had a sexual attraction to minors and that he was undertaking efforts to appeal to his sexual attraction to minors by viewing pictures of child pornography via the internet. In light of the proclivity of such persons to store images of child pornography on their computer and otherwise maintain images of child pornography, there was a reasonable probability that child pornography would be found in the defendant’s home, including on his computer.
The district court also considered and rejected Falso’s claim that the presence of his email address on the website might simply have been the product of a spam mailing list. While recognizing the proliferation of spam, the court explained that Agent Lyons’s affidavit suggested “something more” — namely, that “it appeared] that someone with [Falso’s] e-mail address ... either gained access or attempted to gain access to the website.”
Additionally, the district court measured Falso’s case against our precedents in Martin and Coreas (discussed infra). After identifying what it perceived to be similarities between those cases and Fal-so’s case,
[I]nformation in this case that was not available in Martin or [Coreas]. That information is defendant’s prior criminal history involving sexual contact with a seven year old' — -conduct that is highly relevant to the criminal activity at issue here. The character provided by the FBI indicates that the majority of individuals who collect child pornography have a sexual attraction to them, [sic] Inlight of [Falso’s] known sexual attraction to minors and his having accessed or gained access to a site offering child pornography, there’s a reasonable probability that he would collect child pornography.
Finally, the district court held that even if there had been an insufficient basis for finding probable cause, suppression of the evidence was not warranted because the good-faith exception to the exclusionary rule applied. In this regard, the court explained that it found no statements in the affidavit to be false or in reckless disregard for the truth, and that “the warrant was not so lacking in indicia of probable cause as to render [the executing officers’] belief in the existence of probable cause entirely unreasonable.”
After the district court denied Falso’s motions, he pled guilty to all 242 counts in the indictment. Falso specifically reserved the right to appeal from the district court’s denial of his motions to suppress. Falso also objected to the district court’s use of his prior state conviction for Endangering the Welfare of a Child as a basis for enhancing the statutory minimum and maximum penalties. On June 2, 2006, the district court sentenced Falso principally to 30 years’ imprisonment.
DISCUSSION
I. Probable Cause
A. Standards for Probable Cause
The Fourth Amendment prohibits “unreasonable searches and seizures,” and requires that “no warrants shall issue, but upon probable cause, supported by Oath.” U.S. Const, amend. IV. The Supreme Court has explained that “probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates,
This Court must afford “great deference” to the district court’s probable cause determination. Gates,
B. Martin and Like Cases
In Martin, this Court considered the sufficiency of an affidavit filed in support of a search warrant of Martin’s residence based on information obtained from an FBI investigation into child pornography e-groups. See Martin,
Judge Pooler dissented, expressing her concern that “the majority announces a dangerous precedent.” Id. at 78 (Pooler, J., dissenting). Under the majority’s decision, she explained, the government could obtain a warrant simply where an individual subscribes to an internet e-group that has an illegal purpose, notwithstanding the absence of particularized evidence indicating that the individual visited the e-group after joining or participated in the e-group’s functions. Id. But this result, she
Two weeks after Martin was decided, the panel in Coreas expressed its view that “Martin itself was wrongly decided,” but “under established rules of this circuit” adhered to Martin’s holding because that case was heard first. Coreas,
C. No Probable Cause
Falso’s case stands apart from those preceding it insofar as he was not alleged to have actually accessed or subscribed to any child-pornography website. Rather, Agent Lyons’s affidavit alleged only that Falso was perhaps one of several hundred possible subscribers to the cpfreedom.com website, who appeared either to have gained or attempted to gain access to the site. For this reason, Martin and Coreas are not controlling.
1. Member of or Subscriber to a Child-Pornography Website
Falso asks us to interpret Martin rigidly as requiring, for a finding of probable cause, that a defendant in these types of eases be a member of or subscriber to a child-pornography website. His approach to the issue, however, is antithetical to the “fluid” concept of probable cause espoused by the Supreme Court. See Gates,
In Falso’s case, there is no allegation that he subscribed to CP Freedom’s paying-membership site; only that it “appear[ed]” that he “gained access or attempted to gain access” to the nonmember cpfreedom.com website. Even if one assumes (or infers) that Falso accessed the cpfreedom.com site, there is no specific allegation that Falso accessed, viewed or downloaded child pornography. While the non-member site contained approximately eleven images of child pornography, the affidavit lacks any information about whether the images were prominently displayed or required an additional click of the mouse; whether the images were downloadable; or what other types of services and images were available on the site.
Falso’s case is thus quite unlike Martin, where the supporting affidavits provided at least some of this information about the features of the sites at issue. For example, the supporting affidavit in Martin asserted that members of the e-group had access to, among other features, a “Files” section that enabled users to post images and video clips for other members “to access and download.” Martin,
Agent Lyons’s inconclusive statements about whether Falso even accessed the cpfreedom.com website, coupled with the absence of details about the features and nature of the non-member site, falls short of establishing probable cause. The question, then, is whether other allegations in the affidavit, considered as a whole, provide a basis to support the district court’s finding of probable cause.
2. Falso’s Criminal History
The most obvious other factor that might support a finding of probable cause is Falso’s eighteen-year-old misdemeanor
“It is an inferential fallacy of ancient standing to conclude that, because members of group A” (those who collect child pornography) “are likely to be members of group B” (those attracted to children), “then group B is entirely, or even largely composed of, members of group A.” See Martin,
Nor is the district court’s reasoning saved by the affidavit’s general statement, relied upon by the government at oral argument, that “computers are utilized by individuals who exploit children (which includes collectors of child pornography) to ... locate, view, download, collect and organize images of child pornography found through the internet.”
Furthermore, we agree with Falso that even if his prior conviction were relevant to the analysis, it should have only been marginally relevant because the conviction was stale. This Court has explained that “[t]wo critical factors in determining whether facts supporting a search warrant are stale are ‘the age of those facts and the nature of the conduct alleged to have violated the law.’ ” United States v. Ortiz,
Second, although Falso’s crime allegedly involved the sexual abuse of a minor,
Absent any allegation that Falso accessed the cpfreedom.com website, and with little or no weight attaching to his prior conviction, the question remains whether other allegations in the affidavit, considered as a whole, support a finding of probable cause. Generalized allegations about: (1) the propensity of collectors of child pornography to intentionally maintain illegal images; (2) law enforcement’s ability to retrieve such images from a computer; and (3) the ability to view child pornography on the cpfreedom.com website, fail to establish the requisite nexus of illegal activity to Falso. Although Falso might hoard images of child pornography if he viewed and downloaded them, there is no allegation in the affidavit that he was in a position, or was otherwise inclined, to do so.
In the end, the district court’s finding of probable cause in Falso’s case required it to make at least two significant additional inferential leaps not required in Martin and like cases. First, in Falso’s case there is no allegation that he in fact gained access to the cpfreedom.com website, much less that he was a member or subscriber of any child-pornography site. Second, there are no allegations to support an inference that the sole or principal purpose of the cpfreedom.com website was the viewing and sharing of child pornography, much less that images of child pornography were downloadable from the site. Thus, it is only after making the inferences that (1) Falso in fact accessed a website
We are not insensitive to “the need for law enforcement to have a certain amount of latitude in conducting criminal investigations.” Martin,
Accordingly, we find no substantial basis for probable cause and reverse the district court’s conclusion in this regard.
Our determination that the district court erred in finding probable cause does not end the analysis of whether the evidence seized from Falso’s home should be suppressed. In United States v. Leon, the Supreme Court held that the exclusionary rule barring illegally obtained evidence from the courtroom does not apply to evidence seized “in objectively reasonable reliance on” a warrant issued by a detached and neutral magistrate judge, even where the warrant is subsequently deemed invalid.
Consistent with this rationale, there are four circumstances in which the good-faith exception does not apply: “(1) where the issuing [judge] has been knowingly misled; (2) where the issuing [judge] wholly abandoned his or her judicial role; (3) where the application is so lacking in indicia of probable cause as to render reliance upon it unreasonable; and (4) where the warrant is so facially deficient [such as by failing to particularize the place to be searched or the things to be seized] that reliance upon it is unreasonable.” United States v. Moore,
A. The District Court Was Not Knowingly or Recklessly Misled
Generally, the way a defendant demonstrates that statements in an affidavit intentionally or recklessly misled a district court is through a Franks hearing. In Franks v. Delaware,
[T]he challenger’s attack must be more than conclusory and must be supportedby more than a mere desire to cross-examine. There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained. Allegations of negligence or innocent mistake are insufficient.
Id. at 171,
In this case, the district court denied Falso’s request for a Franks hearing because it concluded that there were no false or recklessly misleading statements in the affidavit. We find no error in the district court’s denial of a Franks hearing, nor in its conclusion that the statements at issue were not false or misleading.21
Falso claims that the following paragraph from Agent Lyons’s affidavit was designed to, and did, mislead the district court:
In or about July 2004, Special Agent Todd Gentry reviewed the competed forensic examination of the website hosting www.cpfreedom.com. The forensic examination revealed several hundred possible subscribers along with e-mail addresses and other information. In or about July 2004, subpoenas were served on appropriate ISP’s for each e-mail address identified on the www.cpfreedom. com website. In or about September 2004, all subpoena requests were returned to the FBI. Pursuant to a review of the subpoenaed records [from internet service providers], the following subscriber information (among others) was associated with the www.cpfreedom.com website: David J. Falso, 20 Peaceful Drive, Cortland, New York, Yahoo User ID: cousyl731@yahoo.com. Based upon investigation and examination conducted by Special Agent Todd Gentry and others, it appears that a person with [Fal-so’s] e-mail address either gained access or attempted to gain access to the website www.cpfreedom.com Special Agent Gentry’s investigation and review of forensic examination revealed the material associated with the www.cpfreedom.com website is hardcore child pornography, (emphases added).
Falso maintains this passage is misleading because it suggests (1) that the FBI’s investigation revealed something more than the existence of Falso’s e-mail address on the website; and/or (2) that Falso had actually subscribed to the cpfreedom.com website. As an initial matter, we agree that the passage suggests that the FBI’s investigation revealed something more than Falso’s e-mail address on the
We are no more persuaded by Falso’s claim that the affidavit misleadingly suggests that he was, in fact, a subscriber to the cpfreedom.com website. The purported confusion arises from Agent Lyons’s use of the word “subscriber” in the affidavit to refer to two types of subscribers: those of the cpfreedom.com website and those of internet service providers such as Yahoo. Considered in context, however, one possible — if not most plausible — reading of the final three sentences of the above-quoted passage is the one adopted by the district court: namely, that the “subscriber information” referred to is for Yahoo, not the cpfreedom.com website.
In addition to the foregoing alleged misstatements, Falso argues that the affidavit contained material omissions. Specifically, Falso claims that because the government did not disclose incriminating evidence to the contrary, “it is reasonable to assume” that: (1) the government identified all subscribers and that Falso was not one; (2) the government determined that Falso had not contacted the website; and (3) Falso’s e-mail address was found in a computer file indicative of spam. Falso, however, has made no offer of proof that the allegedly omitted “facts” exist. See Franks,
Moreover, even assuming that any of the statements in the affidavit misled the district court, Falso has not met his burden of demonstrating that Agent Lyons made the alleged misrepresentations and that he omitted material information knowingly or recklessly. We thus reject Falso’s challenge to the good-faith exception on the ground that he has failed to make even a preliminary showing that the district court was knowingly or recklessly misled by any statements or omissions in Agent Lyons’s affidavit.
B. The Affidavit Was Not “So Lacking in Indicia of Probable Cause”
Falso’s alternative claim, that the affidavit was “so lacking in indicia of probable cause as to render reliance upon it unreasonable,”
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. As this Court explained in Fama: “The fact that an innocent explanation may be consistent with the facts alleged ... does not negate probable cause. Neither should it preclude a good faith belief in probable cause.”
Moreover, although a majority on this panel finds that probable cause was lacking, see supra Part I, that is certainly an issue upon which reasonable minds can differ, as reflected by the different approaches to the probable cause issue reflected here
In short, the error in this case, as found by a majority of the panel, was committed by the district court in issuing the warrant, not by the officers who executed it. See Cancelmo,
CONCLUSION
For the foregoing reasons, we hold that the district court’s finding of probable cause was not supported by a substantial basis. However, because the district court properly applied the good-faith exception in denying Falso’s suppression motion, and for the additional reasons discussed in our accompanying summary order, we AFFIRM the judgment.
Notes
. In this opinion we address only Falso’s challenges to the district court’s denial of his motion to suppress physical evidence seized from his home pursuant to the search warrant. We address and reject Falso's remaining claims in a companion summary order.
. Sometimes we have eschewed analyzing probable cause when we rely on the good faith exception, see, e.g., United States v. Jasor-ka,
. In actuality, the conviction records introduced in connection with the pretrial motions clarify that Falso pled guilty to the misdemeanor of Endangering the Welfare of a Child under New York Penal Law § 260.10-1 by knowingly acting in a manner likely to be injurious to the physical, mental or moral welfare of a child under the age of seventeen. The district court took notice of this fact when adjudicating Falso’s suppression motion.
. See Franks v. Delaware,
. The district court identified the following similarities among the search warrants: (1) generalized information about the use of computers by those who collect child pornography; (2) the general characteristics and proclivities of child pornography collectors; (3) the illicit purposes of the websites at issue in each case to share and view child pornography; and (4) the nexus between the defendants and the respective websites.
. Many of the cases discussed herein involve or refer to probable cause determinations made by magistrate judges. In Falso’s case, the probable cause determination was made by the district judge, who both issued the warrant and denied Falso’s subsequent suppression motion. The law draws no distinction, of which we are aware, between a magistrate judge's and district judge’s duties in making probable cause determinations.
. The girls 12-16 webpage contained the following welcome message:
Hi all, This group is for all those ho [sic] appreciate the young female in here [sic] finest form. Watching her develop and grow is like poetry in motion [sic], to an age where she takes an interest in the joys and pleasures of sex. There is probably nothing more stimulating than watching a young teen girl discover the pleasures of the orgasm. The joy of feeling like she is actually coming into womanhood. It's an age where they have no preconditions about anything, just pure opennes [sic]. What a joy to be a part of that wonderful experience and to watch the development of this perfect form. This is the place to be if you love 11 to 16 yr olds. You can share experiences with others, share your views and opinions quite freely without censorship. You can share all kinds of other information as well regarding-your [sic] current model: if you are a photographer. Where the best place to meet gitls [sic] is. The difficulties you experience in your quest. The best way to chat up. Good places to pick girls up. Girls you would like to share with others. The choice is all yours. Welcome home! Post videos and photographs ... and how about your true life experi-enees with them so that other viewers can paint a mental picture andin [sic] some ways share the experience with you. You could connect with others from the same country as you and get together sociall [sic] if you wish. The choice is all yours. How about a model resource for photographers? It's all up to you and is only limited by your own imaginations. Membership is open to anyone, but you will need to post something. Mybe [sic] a little bit about your-selpwhat your interests are (specifically), your age, location ... and a pic or vid would be a good to [sic]. By doing this other members (or potential members) with the same interest may then contact you if you wish them to.
Martin,
. The original affidavit contained the false statement that all members of the website "automatically” received e-mails and images of child pornography posted to the site. In fact, however, members had the option — with the click of a button — to receive or not receive these postings. Id. at 70-71; see also Coreas,
. The Candyman e-group, at issue in Coreas, contained the following welcome message:
This group is for People who love kids. You can post any type of messages you like too [sic] or any type of pics or vids you like too [sic], P.S. IF WE ALL WORK TOGETHER WE WILL HAVE THE BEST GROUP ON THE NET. Id.,419 F.3d at 152 . The Coreas panel explained that “the Martin majority regarded the differences between the [girls 12-16 and Candyman] websites as immaterial and regarded the Candyman welcome message as explicit enough to warrant an inference of unlawful purpose.” Coreas,419 F.3d at 157 (citing Martin,426 F.3d at 73 n. 4).
. After rehearing was denied by the panels in Martin and Coreas, this Court denied a consolidated petition for rehearing en banc. See United States v. Martin,
. Wagers may provide the only exception with respect to the principle-purpose prong. There, the defendant was a paying subscriber to websites that provided illegal images of child pornography. But the affidavits supporting the warrants at issue were "silent on whether these sites also included legal pornography,"
. Again, by this we mean a website whose principal purpose is to view and share child pornography.
. In Martin, we left open the issue of whether merely "viewing” child pornography via the internet is a crime.
.In Martin, Judge Pooler criticized the majority's inference that because collectors of child pornography are likely to be subscribers of e-groups, that the inverse also is true: namely, that subscribers are likely to collect child pornography. Id. at 82.
. By analogy, it may be said that "most people who sell drugs do drugs.” That is not to say, however, that "most people who do drugs sell drugs.”
. The district court itself does not appear to have relied on this passage; correctly so, for the reasons explained in the text.
. Falso pled guilty to the offense of Endangering the Welfare of a Child, which criminalizes acts that do not necessarily involve sexual contact with minors. The police report and information, however, allege that Falso digitally penetrated a young girl.
. Our decision in United States v. Brand,
. The Falso may have attempted, but failed, to gain access to the cpfreedom.com site requires a separate, but related, inference: that Falso nevertheless obtained child pornography from other unidentified sources.
. As we admonished in Coreas, the “[g]ov-ernment could easily have obtained more information” about Falso. See Coreas,
. In United States v. One Parcel of Property Located at 15 Black Ledge,
. At oral argument, the government revealed additional information that was not reflected in the affidavit: namely, that Falso's e-mail address on the site appeared with a password and username associated with it. Although the government’s revelation at oral argument cannot support its probable cause claim, cf. Whiteley v. Warden, Wyo. State Penitentiary,
. That the district court reasonably read the term ‘'subscriber” as referring to a Yahoo subscriber is supported by an earlier portion of the affidavit describing the use of computers by persons who collect child pornography. In that section, Agent Lyons notes that collectors of child pornography use services offered by companies, "such as Yahoo!,” which include online storage accounts. It then states that a “subscriber assigned to a free online storage account” can set one up with little identifying information, and goes on to use the term "subscriber” or "subscribing” seven more times, in each case clearly referring to Yahoo or similar Internet services.
. This is a very difficult threshold to meet, as evidenced by the many decisions of this Court rejecting objections to the good-faith exception on this basis. See, e.g., United States v. Jasorka,
. As noted in her opinion concurring in the judgment and in Part II, Judge Livingston would not reach the question whether probable cause was present here.
Concurrence Opinion
concurring in part and concurring in the judgment:
I concur in the judgment and join in Part II, which determines both that the affidavit here was not so lacking in indicia of probable cause as to make reliance upon it unreasonable and that there is no basis in the record for concluding that Agent Lyons knowingly or recklessly misled the district court by omitting or misstating information in his search warrant affidavit. I agree fully with Part II’s conclusion that the officers acted in “objectively reasonable” reliance on the search warrant, thus rendering the exclusionary rule inapplicable. See United States v. Leon,
The majority characterizes the “threshold issue” in this case to be whether there was a substantial basis for the district court’s finding of probable cause based on two factors alone: (1) that the search warrant affidavit alleged that Falso “ ‘appeared’ to ‘have gained or attempted to gain’ ” access to a website, cpfreedom.com, that distributed child pornography; and (2) that he was convicted of a misdemeanor eighteen years ago in connection with the sexual abuse of a seven-year-old girl. Concluding that the search warrant affidavit failed to allege that Falso in fact accessed the website at issue, the majority poses the ultimate question to be whether Falso’s prior conviction alone “provide[d] a sufficient basis to believe that evidence of child pornography crimes would be found in Falso’s home.” Op. at 113. The majority not surprisingly answers this question in the negative. With respect, however, I believe the majority sidesteps discussion of the actual facts alleged in the affidavit and thus mischaracterizes both the threshold and ultimate issues involved. In so doing, the majority fails to read the affidavit in its totality and in the commonsense manner the Supreme Court prescribes. See Illinois v. Gates,
The investigation in this case began when FBI agents obtained the IP address of the website cpfreedom.com, which contained approximately eleven images of child pornography. The website advertised additional child pornography that was available upon purchase of a membership. An undercover FBI agent signed up for a one-month membership for $99 and subsequently received an email that provided him with the Internet address of the
According to the search warrant affidavit, “subpoenas were served on appropriate [Internet service providers] for each email address identified on the www. cpfreedom.com website.” One of these email addresses, cousyl731@yahoo.com, belonged to Falso, who maintained an active Yahoo! account during the time period relevant to the investigation. Records obtained from Time Warner Cable established the likelihood that Falso maintained a computer at his residence, since Road Runner Internet service had been established there.
Additional investigation revealed that Falso was arrested in 1987 for sexually abusing a seven-year-old girl. Significantly, the victim informed the New York State Police that she referred to the appellant, David J. Falso, as “Cousey.” The affidavit also alleged that Falso admitted to the police at the time of his arrest that he “may have latent problems and that he might require some type of counseling.” Falso eventually pled guilty to a misdemeanor in state court.
The search of Falso’s home pursuant to warrant uncovered over 600 printed-out images of child pornography, many bearing website information in the bottom margins. At least 50 of these images depicted pre-pubescent children engaging in explicit sexual poses and sexual conduct, including intercourse with adults. Falso’s computer contained numerous additional images of child pornography, along with videotaped scenes depicting very young children engaged in sexual acts.
The majority errs in two principal ways in reading the search warrant affidavit. First, focusing solely on what it terms the affidavit’s “inconclusive” allegation, Op. 121, that “a person with the e-mail address of cousyl731@yahoo.com either gained access or attempted to gain access to the website www.cpfreedom.com,” the majority ignores the underlying facts that support this allegation — namely, that Falso’s email address, in addition to the email addresses of several hundred others, was found on the site, and that the website used email to correspond with its members. The dissent makes a similar mistake — disregarding the presence of Falso’s email address on the website to affirm, erroneously, that Lyons’s affidavit “establishes no more than that Falso ... clicked on a website containing child pornography, and may have attempted to view it.” Dissent Op. 136.
With respect, a person’s email address does not appear on a website because that person has “clicked” on it any more than his mailing address becomes known to the library simply because he’s walked in and browsed the stacks. Falso admits as much
Admittedly, Lyons’s affidavit is not a model of careful drafting. At oral argument the government revealed that it had failed to include information in the affidavit that would have made the substantial-basis determination easier: specifically, that Falso’s email address (along with those of the other individuals) appeared with a corresponding username and password of the type the undercover FBI agent received when he purchased a membership. Nevertheless, the fact that Fal-so’s email address was found on a website containing eleven free images of hardcore child pornography and offering more, for a fee, is probative evidence that Falso visited that website and either signed up or attempted to sign up for a membership. Granted, this evidence is not conclusive. Falso argues that his email could have been on the cpfreedom.com site because “the website intended to send [him] an unsolicited e-mail known as ‘spam,’ ” or because it was otherwise taken from a marketing list. As we have repeatedly said, however, “[t]he fact that an innocent explanation may be consistent with the facts alleged ... does not negate probable cause” or the significance of evidence tending to establish it. Panetta v. Crowley,
The majority similarly errs in taking the district court to task for giving weight to Falso’s prior conviction. The majority chides the district court for its “fallacious inference,” supposedly nowhere supported in the affidavit, that people who sexually abuse children are more likely than others in the general population to collect child pornography. Op. 122-23. The affidavit clearly states, however, that “individuals who exploit children” use computers to “locate, view, download, collect and organize images of child pornography found through the Internet.” Moreover, the district court’s inference of a connection is one that we, too — citing a congressional finding — have in the past seen fit to draw. See United States v. Brand,
It does make a difference that Falso’s conviction occurred eighteen years earlier, though perhaps less of a difference than the majority makes out. The Supreme Court has noted empirical research on child molestation that suggests that most reoffending after a prison sentence does not occur within the first several years, but may occur as long as twenty years following release. Smith v. Doe,
In sum, I concur in the judgment and join in Part II. As to Part I, this Court has said that even when the probable cause question is close, “we need not resolve the issue [if] we conclude that the good faith exception applies.” United States v. Can-celmo,
. At least four of the children who suffered the depicted abuse have been identified.
. The majority dismisses Brand as inapposite because the correlation on which the government relied in that case — that collectors of child pornography are more likely to abuse children, see Brand,
Dissenting Opinion
dissenting:
I subscribe to Part I of the majority opinion, which holds that Agent Lyons’ affidavit failed to establish a substantial basis for probable cause. As to Part II, however, I conclude that the affidavit was recklessly misleading (at best), and that Agent Lyons — because he was both the affiant and the executing officer — could not rely in good faith on the imprimatur of the district judge. Accordingly, I would reverse the denial of the motion to suppress, vacate Falso’s conviction, and remand for further proceedings.
Judge Sotomayor’s majority opinion says why the affidavit, taken at face value, was insufficient to confer probable cause; and as to that I agree. But in my view the affiant tried to paper over the insufficiency with a statement that is crucial and that is
[A]
Agent Lyons’ affidavit sets forth the following salient facts:
[1] The website contained eleven images of child pornography with more images available to persons who joined as members;
[2] New members received an e-mail upon joining;
[3] There were several hundred possible members;
[4] Most collectors of child pornography retain digital images online and seek out like-minded individuals on the internet;
[5] Most such collectors are also sexually attracted to children;
[6] Falso’s name, address, and e-mail address were associated with the website;
[7] It appears that someone with Falso’s e-mail address either gained access to the website, or attempted to do so;
[8] Eighteen years earlier, Falso was convicted for conduct involving sexual abuse of a minor.
The majority of these facts ([1] through [5]) are not specific to Falso, or anyone else. As to [5], the affidavit provided evidence that Falso was sexually attracted to children, but the fact of attraction (of any sexual kind) does not make it more or less likely that a person collects pornography (as the majority opinion explains). As to [4], the observation that collectors of child pornography tend to retain their collections online (and seek out like-minded individuals), puts it backwards: “The alleged ‘proclivities’ of collectors of child pornography ... are only relevant if there is probable cause to believe that [defendant] is such a collector.” United States v. Coreas,
At most, items [1] through [5] might have established probable cause if conjoined with evidence that Falso collected child pornography. But this is precisely where the affidavit is fatally deficient: it fails to allege the requisite substantial “nexus” between Falso and the website. See United States v. Martin,
[B]
The Fourth Amendment entitles a criminal defendant to a hearing if he or she makes a “substantial preliminary showing” that a “deliberate falsehood” or a statement made with “reckless disregard for the truth” was included in the warrant affidavit, and the statement was “necessary to the judge’s probable cause finding.” United States v. Salameh, 152 F.3d 88, 113 (2d Cir.1998) (per curiam)(internal cites omitted); see Majority Op., supra pp. 125-26 (applying this standard). In Franks v. Delaware, the Supreme Court explained that “[tjhere must be allegations of deliberate falsehood or of reckless disregard for the truth.”
Agent Lyons’ affidavit contained a recklessly misleading (if not outright deliberately false) statement. Paragraph 31 makes very slippery use of the critical word “subscriber”:
In or about July 2004, Special Agent Todd Gentry reviewed the completed forensic examination of the website hosting www.[]cpfreedom[].com. The forensic examination revealed several hundred possible subscribers along with e-mail addresses and other information. In or about July 2004, subpoenas were served on appropriate ISP’s for each email address identified on the www.fJcpfreedomfJ.com website. In or about September 2004, all subpoena requests were returned to the FBI. Pursuant to a review of the subpoenaed records, the following subscriber information (among others) was associated with the www.fJcpfreedomfJ.com website: David J. Falso, 20 Peaceful Drive,Cortland, New York, Yahoo User ID: cousyl731@yahoo.[ ]com. 2
Affidavit of James T. Lyons ¶ 31 (emphasis added). The natural reading of these words and the logical inference is that Falso was a subscriber to the illicit website. This misimpression was created by repetition of the word “subscriber” to reference two distinct groups: members of the illicit website (“several hundred possible subscribers”) and members of Yahoo! (“subscriber information”). That misim-pression was set up in the pages immediately preceding this paragraph: Agent Lyons consistently designates Yahoo! members as “users” — at least five times, not once calling them “subscribers”. See id. ¶ 27.
The majority says that, “[cjonsidered in context ... one possible — if not most plausible” way to construe this paragraph is that the “subscriber information” referred to in the last sentence of the quoted passage refers to Yahoo! members, not members of the website. Majority Op., supra p. 127. Maybe so. But, so read, the word “subscriber” would mean two different things within three sentences: the “several hundred possible subscribers” referred to in the first sentence means possible members of the illicit website; the “subscriber information” “associated with” that website (from the third sentence) means Yahoo! members. The majority opinion blandly recites that “Agent Lyons’s affidavit alleged only that Falso was perhaps one of several hundred possible subscribers to the cpfreedom[].com website.” Majority Op., supra p. 120 (emphasis added). But the caveat “possible” is dropped two sentences later: so even an attentive reader of the whole passage gets the impression that Falso’s membership was a fact known to the affiant.
The repetition of the word “subscriber” to reference two types of membership in close textual proximity was consequential: whether a suspect is a member of a child pornography website is important to the probable cause inquiry. See Rivera,
Judge Livingston considers that “.” Concurring Op. of Livingston, J., supra p. 131. I respectfully disagree: the misleading effect is achieved by artifice that carefully confuses a very important question of fact.
The district court maintained that it was not actually misled; but that is neither here nor there. The test for whether an affidavit contains recklessly misleading or false statements is an objective one. We ask whether a false or misleading statement “was included by the affiant in the warrant affidavit,” not whether the issuing magistrate or district court was misled by it. Franks,
As the government conceded at oral argument, our review is necessarily confined to the affidavit’s four corners. (We must therefore disregard any litigation backfill, such as the government’s extra-record statement at oral argument, cited by Judge Livingston, that Falso’s e-mail address appeared with a corresponding pass
[C]
“If a reviewing court determines that a search warrant was not supported by probable cause, a motion to suppress will still be denied if the court finds that the officers who conducted the search acted in good faith reliance on a facially valid warrant.” Id. at 114.
Agent Lyons was both the affiant and the executing officer. Accordingly, it is perhaps “somewhat disingenuous, after having gone to the [district judge] with the paltry showing seen here, to suggest, as the government suggests, that at bottom it was the [judge] who made the error and the search and seizure are insulated because the officer’s reliance on that error was objectively reasonable.” United States v. Zimmerman,
As the Supreme Court instructs, “suppression is appropriate ... if the officers were dishonest or reckless in preparing them affidavit.” United States v. Leon,
The majority says that “the error in this case was committed by the district court in issuing the warrant, not by the officers who executed it.” Majority Op., supra p. 129. I respectfully disagree. Normally, the judge’s imprimatur assures the executing officer that there is probable cause. But where, as here, the executing officer is the same officer who misled the judge, the good-faith exception to the exclusionary rule cannot apply. See, e.g., United States v. Alexander,
An executing officer can hardly claim good-faith reliance on a warrant issued by a judge who was mis-directed 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.
. See, e.g., United States v. Romm,
. I have inserted brackets in the cpfreedom website and the e-mail address lest a word processing program automatically convert the terms into hyperlinks that might be inadvertently loaded, with untoward consequences.