MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on the Defendant’s Motion to Suppress Evidence, filed March 7, 2014 (Doc. 35) (“Motion”). The Court held an evidentiary hearing on May 20, 2014, and May 21, 2014. The Court heard the parties’ arguments on the Motion on August 19, 2014. The primary issues are: (i) whether Defendant Jason Loera may seek suppression of the child pornography found on Loera’s laptop computer and compact discs (“CDs”); (ii) whether the Search and Seizure Warrant, issued November 19, 2012, submitted to the Court at the May 20, 2014, evidentiary hearing as Government’s Hearing Exhibit 9 (“First Warrant”), satisfies the particularity requirement in the Fourth Amendment to the Constitution of the United States of America; (iii) whether Federal Bureau of Investigation (“FBI”) Special Agent Aaron Cravens’ and Special Agent Brian Nishida’s on-site preview of Loera’s CDs during the execution of the First Warrant on November 20, 2012, was within the First Warrant’s scope; (iv) whether the agents conducted an unlawful search when they continued searching Loera’s CDs for evidence of computer fraud and electronic mail hijacking after they discovered child pornography; (v) whether the agents acted in good faith when they continued to search for evidence of computer fraud and electronic mail hijacking after discovering child pornography; (vi) whether Cravens was permitted to open files on .Loera’s CDs on November 27, 2012, for the limited purpose of providing a United States Magistrate Judge a description of four images depicting the sexual abuse of a child; (vii) whether, even if Cravens was not permitted to open the files on November 27, 2012, and even if those descriptions are excised from the affidavit in support of the Second Warrant, probable cause to issue the Search and Seizure Warrant (issued November 29, 2012), submitted to the Court at the May 20, 2014, evidentiary hearing as Government’s Hearing Exhibit 10 (“Second Warrant”) still exists; (viii) whether, even if the Second Warrant suffered from an incurable defect, Nishida relied on that warrant in good faith when he searched Loera’s CDs and laptop for child pornography; and (ix) whether, even if the Second Warrant contained an incurable defect and Nishida did not execute the Second Warrant in good faith, the agents inevitably would have discovered child por-, nography.
The Court will deny the Motion. The Court concludes that Loera may seek suppression of the child pornography evidence, because he admitted that the CDs and laptop on which the agents discovered child pornography were within his control and possession when the agents seized them. ' The Court holds that the First Warrant satisfies the particularity requirement in the Fourth Amendment, because it limited the agents’ search to evidence of computer fraud and electronic mail hijacking. The Court concludes that the agents’ on-site preview of Loera’s CDs during the execution of the First Warrant on November 20, 2012, was within the warrant’s scope, because the warrant authorized the agents to open image and video files, and files with last modified and created'dates before July 29, 2011. The Court further
FACTUAL BACKGROUND
Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed.R.Crim.P. 12(d) (‘When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). This Memorandum Opinion and Order’s findings of fact shall serve as the Court’s essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual’s confession or consent to search. See United States v. Merritt,
1. The November 20, 2012 Searches.
1. On November 19, 2012, United States agents applied for a search warrant for Loera’s residence, seeking evidence that Loera committed computer fraud and hijacked electronic mail transmissions. See Application for Search Warrant at 1 (issued November 19, 2012), submitted to the Court at'the May 20, 2014, evidentiary
2. The United States filed an affidavit in support of the First Application. See Affidavit in Support of an Application Under Rule 41 for a Warrant to Search and Seize (issued November 19, 2014), submitted to the Court at the May 20, 2014, evidentiary hearing as Government’s Hearing Exhibit 9 (“First Affidavit”).
3. The First Affidavit alleges that Lo-era possessed electronic mail transmissions intended for New Mexico Governor Susana Martinez and her staff that had been sent through Martinez’ gubernatorial campaign website, www.susana2010.com (“the Domain”). See First Affidavit ¶ 28 at 10.
4. The First Affidavit .states that one of Martinez’ supporters created the Domain on July 18, 2009, and registered the website for two years with the website hosting company GoDaddy.com (“GoDaddy”). See First Affidavit ¶ 5, at 2.
5. According to the First Affidavit, during the 2010 gubernatorial campaign, Martinez and her staff used the Domain to, among other purposes, communicate with each other and individuals outside of the campaign through electronic mail transmissions. See First Affidavit ¶ 6, at 2-3.
6. The First Affidavit alleges -that only the individual or individuals who had the Domain’s username and password could renew the Domain when it expired in July, 2011. See First Affidavit ¶ 7, at 3.
7. According to the First Affidavit, Jamie Estrada maintained the username and password for the Domain during Martinez’ 2010 gubernatorial campaign. See First Affidavit ¶ 8, at 3.
8. According to the First Affidavit, at some point before the election, Martinez discovered Estrada reading her electronic mail transmissions and removed him from the campaign. See First Affidavit ¶ 8, at 3.
9. The First Affidavit reports that, after Martinez was elected governor in November, 2010, Martinez and her staff continued to use the electronic mail accounts linked to the Domain. See First Affidavit ¶ 10, at 4.
10. The First Affidavit alleges that, on or about July 18, 2011, however, Martinez’ staff began receiving reports that electronic mail transmissions sent to their Domain addresses were not being delivered. See First Affidavit ¶ 10, at 4.
11. The First Affidavit states that Martinez’ staff determined that the electronic mail transmissions were not being delivered, because the Domain had expired. See First Affidavit ¶ 10, at 4.
12. According to the First Affidavit, Martinez’ staff tried to re-register the Domain, but none of the staff had the Domain’s username and password. See First Affidavit ¶ 11, at 4.
13. The First Affidavit states that Martinez’ staff contacted Estrada for the user-name and password, but Estrada refused to provide the information. See First Affidavit ¶ 12, at 4.
14. According to the First Affidavit, due to Estrada’s. refusal to provide the username and password, Martinez’ staff could not re-register the Domain. See First Affidavit ¶ 12, at 4.
15. The First Affidavit asserts that, after unsuccessfully attempting to re-register the Domain, Martinez and her staff transitioned to a new domain,' www. susanapac.com. See First Affidavit ¶ 13, at 4.
16. The First Affidavit states that, after this transition, Martinez and her staff believed that the Domain had expired and
17. According to the First Affidavit, in or about June, 2012, local media outlets obtained and published an electronic mail transmission that was sent to Martinez’ Domain electronic mail account on or about May 2, 2012. See First Affidavit ¶ 14, at 5.
18. According to the First Affidavit, the release of this electronic mail transmission prompted Martinez and her staff “to believe that the Domain had not in fact expired, but was still being used by someone unaffiliated with Martinez’s organization.” First Affidavit ¶ 14, at 5.
19. The First Affidavit stated that, whoever re-registered the Domain was redirecting electronic mail transmissions to “another account unassociated with the Domain.” First Affidavit ¶ 14, at 5.
20. According to the First Affidavit, the United States learned that the Domain expired on July 18, 2011, that it had a forty-two day grace period thereafter, and that, on July 29, 2011, a GoDaddy account that listed “Sylvia Tacori” as the account-holder re-registered the Domain. See First Affidavit ¶¶ 16-17, at 6.
21. The First Affidavit stated that the address for the Tacori account belonged to a Chipotle restaurant. See First Affidavit ¶ 18, at 6.
22. The First Affidavit asserted that the United States could not identify anyone living in the United States with the name Sylvia Tacori. See First Affidavit ¶ 18, at 6.
23. The First Affidavit stated that, based in part on this information, the United States concluded that the Tacori account was “fictitious.” First Affidavit ¶ 18, at 6.
24. According to the First Affidavit, the Tacori account was created with a cellular telephone assigned to Estrada. See First Affidavit ¶ 20, at 7.
25. The First Affidavit states that, two days after the July 29, 2011, re-registration of the Domain, Estrada’s telephone logged into the Tacori account. See First Affidavit ¶ 20, at 7.
26. According to the First Affidavit, the United States learned of a July 15, 2012, electronic mail transmission from the electronic mail address OMMARRAVEN HERST@GMAIL.COM (“OMAR”) that contained information from Martinez’ electronic mail account at the Domain. See First Affidavit ¶ 21, at 7-8.
27. The First Affidavit states that, based in part on this information, the United States received a search warrant for the OMAR ■ account. See First Affidavit ¶ 22, at'8.
28. According to the First Affidavit, the execution of the OMAR search warrant “confirmed that the [OMAR] account did in fact contain numerous emails that were intended for Governor Martinez and her staff during the period of time the Domain is believed to have been comprised by the subject(s).” First Affidavit ¶ 23, at 8.
29. According to the First Affidavit, the United States discovered “several emails sent from the OMAR account to JASONLOERA@GMAIL.COM [ (“JA-SONLOERA”)] ... which included ... emails intended for Governor Martinez and/or her staff.” First Affidavit ¶ 26, at 9.
30. The First Affidavit alleges that the JASONLOERA account is registered to Loera and “is regularly accessed from the ... same IP address used to access the OMAR account.” First Affidavit ¶ 27, at 9-10.
32. Consequently, on- November 19, 2012, FBI Special Agent Michael Boady secured a warrant to search Loera’s residence. See First Warrant at 1.
33. The First Warrant incorporated by reference Attachment B to the First Application (“Attachment B”). See First Warrant at 1.
34. Under ’“identify the person or describe the property to be searched and give its location,” the First Warrant states: “See Attachment B to affidavit in support of application, incorporated herein by reference.” First Warrant at 1.
35. Under “[t]he person or property to be searched, described above, is believed to conceal,” the First Warrant states: “See Attachment B to affidavit in support of application, incorporated herein by reference.” First Warrant at 1.
36. Attachment B details the scope of the First Warrant as follows:
1.All records, in any form, relating to violations of Title 18 U.S.C. § 2511 (Interception and disclosure of wire, oral, or electronic communications prohibited) and Title 18 U.S.C. § 1030 (Fraud and related activity in connection with Computers), involving Jason Loera or others including:
a. .Usernames, passwords, and other account information for email accounts, Google Apps accounts, domain accounts, accounts for credit, debit, or gift cards, and online storage accounts;
b. Records which are related to the use of computer programs to redirect email from one domain to . another;
c. All records and/or communications related to the susana2010.com and susanapac.com domains or the intrusion thereof;
d. All bank records, checks, credit or debit card bills, account information, and other financial records from June 2011 to the present.
e. Records relating to the provision of internet and phone service;
f. Records showing the technical or computer knowledge.
2. Any. computers, cell phones, and/or electronic media that could have been used as a means to commit the offenses described on the warrant.
3. For any computers, cell phones, tablets, computer hard drives, or other physical objects upon which computer data can be recorded/stored (hereinafter, “COMPUTER”) that is called for by this warrant, or that might contain things otherwise called for by this warrant:
a. evidence of who used, owned’, or controlled the COMPUTER at the time the things described in the warrant were created, edited, or deleted, such as logs, registry entries, configuration files, saved usernames and passwords, documents, browsing history, user profiles, email, email contacts, “chat,” instant messaging logs, photographs, and correspondence;
b. evidence of the attachment to the COMPUTER of other storage devices or similar containers for electronic evidence;
c. evidence of the counter-forensic programs (and associated data) that are designed to eliminate data from the COMPUTER;
d. evidence of the times the COMPUTER was used;
e. passwords, encryption keys, and other access devices that may be necessary to access the COMPUTER or to conduct a forensic examination of the COMPUTER;
f. documentation and manuals that may be necessary to access the COMPUTER or to conduct a forensic examination of the COMPUTER;
g. contextual information necessary to understand the evidence described in this attachment.
4.Records and things evidencing the use of computers and/or the internet to commit the fraud activity described in the Search Warrant Affidavit, including:
a. Routers, modems, and network equipment used to connect computers to the Internet;
b. Records of Internet Protocol addresses used;
c. Records of wireless internet connections
d. Records of Internet activity, including firewall logs, caches, browser ■ history and cookies, “book-' marked” or “favorite” web pages, search terms that the user entered into any Internet search engine, and records of user-typed web addresses.
As used above, the terms “records” and “information” include all of the foregoing items of evidence in whatever forms and by whatever means they may have been created or stored, including any form of computer or electronic storage (such as hard disks or other media that can store data); any handmade form (such as writing, drawing, painting); any mechanical form (such as printing or typing); and any photographic form (such as microfilm, microfiche, prints, slides, negatives, videotapes, motion pictures, or photocopies).
5. Any and all statements for bank accounts, which include transactions from June 1, 2011 to the present.
6. Any and all documents, printouts, hand written statements, electronic communications, and in whatever form related to the following:
a. The Susaria2010.com domain
b. Communications with GoDad-dy.com and DomainsByProxy.com
c. The SusanaPAC.com domain
d. The interception of emails related to the Susana2010.com Domain.
7. Any and all records in whatever form related to email accounts maintained, controlled or used in any manner by Jason Loera.
Attachment B ¶¶ 1-7, at 2-5.
37. On November 20, 2012, FBI agents — including Cravens and Nishida— executed the First Warrant at Loera’s residence. See Transcript of Evidentiary Hearing at 52:9-17 (taken May 20, 2014) (“May 20, 2014 Tr.”) (Cravens, Tuckman).
38. Cravens and Nishida understood that the purpose of the search was to find and seize evidence of electronic mail hijacking and computer fraud. See May 20, 2014 Tr. at 53:7-11 (Cravens, Tuckman); id. at 152:6-8 (Nishida, Tuckman); id. at 160:5-11 (Nishida, Tuckman).
• 40. Cravens and Nishida were responsible for “previewing” the CDs at Loera’s residence to determine if they contained evidence of electronic mail hijacking or computer fraud. See May 20, 2014 Tr. at 57:23-58:6 (Cravens, Tuckman); id. at 153:14-154:6 (Nishida, Tuckman).
41. The purpose of previewing the CDs was to ensure that the FBI seized only CDs that contained information relevant to the investigation. See May 20, 2014 Tr. at 57:24-58:6 (Cravens, Tuckman); id. at 68:23-69:11 (Cravens, Tuckman); id. at 155:8-24 (Nishida, Tuckman).
42. Cravens and Nishida split up the CDs between themselves and searched
them separately. See May 20, 2014 Tr. at 119:2-14 (Cravens, Serna).
43. Cravens initially tried to view the files on the CDs using a program called FTK Imager. See May 20, 2014 Tr. at 58:18-22 (Cravens).
44. FTK Imager can be used to limit a CD or hard drive search to a particular type of file — i.e., to search for only image, text, or audio files. See May 20, 2014 Tr. at 101:5-11 (Cravens, Serna).
45. When Cravens attempted to use the FTK Imager software on the first CD that he -found, however, it showed that the CD was empty. See May 20, 2014 Tr. at 103:1-3 (Cravens, Serna).
46. Assuming that the FTK Imager software was malfunctioning, Cravens closed the software and opened the CD on his Windows desktop, which showed that the CD was not empty, but instead con
47. Cravens used the “thumbnail view” to preview the files — meaning that he saw small images of the files, the file names, and the file types. May 20, 2014 Tr. at 59:1-8 (Cravens, Tuckman).
48. Cravens “tr[ied] to use the thumbnails” to determine if the files contained relevant evidence, and he “clicked on anything that didn’t appear correct, or any documents.” May 20, 2014 Tr. at 92:6-11 (Cravens).
49. Although he tried to use the thumbnails to identify which CDs contained relevant evidence, Cravens believed that the First Warrant authorized him and Nishida “to go through the entire contents of the CDs.” May 20, 2014 Tr. at 92:9-11 (Cravens).
50. Cravens seized only CDs that contained “documents related to the Domain” and anything “that might have been'evidence of domain e-mail hijacking.” May 20, 2014 Tr. at 68:18-22 (Cravens).
51. While Cravens was “scrolling down through the images or files ... on the CDs, [he] found what looked like a nude child, and opened” up the file. May 20, 2014 Tr. at 60:5-7 (Cravens).
52. Cravens stated that, based on the thumbnail view, “it appeared to be a child pornography image,” but he “enlarge[d] it to confirm” that it was. May 20, 2014 Tr. at 139:12-17 (Cravens, Court).
53. Cravens viewed the first child pornography image for “under 30 seconds.” May 20, 2014 Tr. at 61:6-12 (Cravens, Tuckman).
54. After Cravens found the first child pornography image, he ejected the CD containing the image from his computer and set it aside. See May 20, 2014 Tr. at 61:12-13 (Cravens).
55. Cravens did not write down a filen-ame or description of the first image. See May 20, 2014 Tr. at 61:24-25 (Cravens, Tuckman).
56. After finding the first child pornography image, Cravens did not seek advice from an Assistant United States Attorney, a colleague, or a supervisor, whether he should obtain a search warrant for child pornography. See May 20, 2014 Tr. at 115:16-25 (Cravens, Serna).
57. Instead, Cravens told Boady — the FBI special agent in charge of Loera’s ease — and Nishida that he had found child pornography, and continued to search for evidence of electronic mail hijacking and computer fraud. See May 20, 2014 Tr. at 65:15-17 (Cravens, Tuckman); id. at 116:3-12 (Cravens, Serna); id. at 158:25-159:1 (Nishida, Tuckman).
58. Although he was not searching for more child pornography images after finding the first one, Cravens thought he might find more child pornography on Lo-era’s CDs. See May 20, 2014 Tr- at 65:10-17 (Cravens, Tuckman); id. at 66:1-4 (Cravens, Tuckman).
59. Cravens later found a child pornography image on a second CD. See May 20, 2014 Tr. at 67:18-68:4 (Cravens, Tuck-man).
60. As he had done with the first CD, Cravens immediately set the,CD aside and did not open any other files on that CD. -See May 20, 2014 Tr. at 67:21-23 (Cravens, Tuckman).
61. Although he was searching for evidence of electronic mail hijacking or computer fraud, Cravens opened files that appeared to be images, because they “could have been a picture of a person or personal information, identifying information, or
62. Cravens explained that a text file can be changed to look like an image file by double-clicking the name of the file, and “changing] the name and the file extension.” May 20, 2014 Tr. at 63:6-8 (Cravens).
63. Cravens did not find, however, any electronic mail transmissions that were labeled to look like other files during his previewing of the CDs. See May 20, 2014 Tr. at 130:17-21 (Cravens, Serna).
64. Although the subscriber account that was used to re-register the Domain was created in July, 2009, Cravens did not limit his search to files created after that date, because he believed that the file dates could have been changed or inaccurate. See May 20, 2014 Tr. at 64:4-24 (Cravens, Tuekman).
65. As an example, Cravens explained that, if you change the date on your computer, “it would change all files created or modified after that, the dates would be different, and incorrect.” May 20, 2014 Tr. at 64:19-21 (Cravens).
66. Cravens was not aware, however, whether any of the dates of the files in the electronic media seized from Loera were modified. See May 20, 2014 Tr. at 128:22-129:1 (Cravens, Serna).
67. Aside from the images on those two CDs, Cravens did not find any other child pornography images during the November 20, 2012, search. See May 20, 2014 Tr. at 87:15 (Cravens); id. at 119:21-120:2 (Cravens, Serna).
68. When Nishida' began previewing the files on the CDs, he chose not to use a program called “Encase” to limit his search of the CDs to electronic mail transmissions, web pages, or internet history. See Transcript of Hearing at 242:3-25 (Ni-shida, Serna) (taken May 21, 2014) (“May 21, 2014 Tr.”).
69. Nishida also made a “conscious decision” to not use the FTK Imager software to preview the files, because he thought using Windows Explorer would be faster. May 20, 2014 Tr. at 209:19-22 (Nishida, Serna). See id. at 210:22-211:1 (Nishida, Serna).
70. The FBI also has software that that can determine whether a file’s contents do not match its listed extension— like a text file with an image extension— without opening the file itself; Nishida also did not use this program when he previewed the files on the CDs. See May 21, 2014 Tr. at 250:22-251:4 (Nishida, Ser-na); id. at •251:22-252:7 (Nishida, Serna).
71. Nishida previewed the files using the “details view” — meaning that he saw a list of files, file names, and last-modified dates of those files, but there were no pictures associated with the files. May 20, 2014 Tr. at 157:13-19 (Nishida, Tuekman).
72. Nishida described his procedure for previewing the files on the CDs as follows:
I would put [CDs] in a laptop. I would open up Windows Explorer, and I would see what was on the CD. I would sample a few files. If it were, say, music files, I would verify that they were what theywere labeled. And then I would set it aside. Same if I found the movie “The Wizard of Oz,” I would play it a little bit, see if it was “The Wizard of Oz,” and I would stop it and put it aside.
May 20, 2014 Tr. at 156:19-157:2 (Nishida).
73. Nishida seized only CDs that contained files that appeared to be documents or that he could not immediately identify. See May 20, 2014 Tr. at 158:13-19 (Nishi-da, Tuckman).
74. Nishida also discovered images of child pornography while previewing the files on the CDs. See May 20, 2014 Tr. at 158:20-22 (Nishida, Tuckman).
75. After finding a child pornography image, Nishida opened two or three other files on that CD to determine if they contained evidence of computer fraud or electronic mail hijacking. See May 20, 2014 Tr. at 161:17-162:18 (Nishida, Tuckman).
76. After finding the first child pornography image, Nishida continued to search for evidence of electronic mail hijacking and computer fraud. See May 20, 2014 Tr. at 165:4-17 (Nishida, Tuckman).
77. Nishida did not limit his search to files that appeared to contain text, because image files could also contain evidence of electronic mail hijacking or computer fraud. See May 20, 2014 Tr. at 163:2-22 (Nishida, Tuckman); id. at 249:11-20 (Ni-shida, Serna).
78. Nishida also did not limit his search to files created after July, 2009, because the First Warrant did not contain a date restriction, and because he believed that “there could easily be evidence of the crime that doesn’t fit in that data range.” May 20, 2014 Tr. at 164:8-11 (Nishida).
79. There are a number of ways in which individuals can change the dates of files on CDs: “[S]ome software will allow you to burn the date, use the dates that were on th.e hard drives for the files, or use a date that the CD was burned, or you could pick an arbitrary date and just type it in while you’re burning ... the CD.” May 20, 2014 Tr. at 219:19-24 (Nishida).
80. Nishida also found a second CD that contained child pornography images. See May 20, 2014 Tr. at 87:15 (Cravens); id. at 119:21-120:2 (Cravens, Serna).
81. Nishida believes that neither he nor Cravens exceeded the scope of the First Warrant during their November 20, 2012, searches of Loera’s CDs. See May 21, 2014 Tr. at 253:19-21 (Nishida).
82. In total, the FBI found four CDs containing child pornography images during the November 20, 2012, search — two from Cravens and two from Nishida. See May 20, 2014 Tr. at 70:20-22 (Cravens, Tuckman).
83. The FBI agents seized nine CDs containing evidence of electronic mail hijacking and computer fraud from Loera’s residence. See May 20, 2014 Tr.' at 70:23-71:7 (Cravens, Tuckman).
84. In addition to the thirteen CDs, FBI agents also seized several other items from Loera’s residence, including computers, external hard drives, an iPhone, and an iPad. See May 20, 2014 Tr. at 39:24-40:8 (Tuckman).
2. The November 27, 2012 Searches.
85. On November 27, 2012, Cravens decided to obtain a search warrant to search the items seized from Loera’s residence for child pornography. See May 20, 2014 Tr. at 72:5-12 (Cravens, Tuckman); id. at 140:13-16 (Cravens, Court).
86. Cravens thought that the affidavit in support of the search warrant should include a detailed description of one child pornography image from each of the four CDs on which he and Nishida had found child pornography during their initial pre
87. Consequently, Cravens obtained the four CDs on which he and Nishida had discovered child pornography from Boady, the Special Agent in charge of Loera’s case. See May 20, 2014 Tr. at 71:19-25 (Cravens, Tuckman).
88. Cravens initially tried to preview the images on the first CD using the same FTK Imager software that he had unsuccessfully attempted to use at Loera’s residence on November 20, 2012. See May 20, 2014 Tr. at 72:16-17 (Cravens).
89. The FTK software again showed that the CD did not contain any files. See May 20, 2014 Tr. at 72:17-18 (Cravens).
90. Cravens, accordingly, stopped using the FTK software and opened the files on the CDs without it. See May 20, 2014 Tr. at 72:17-22 (Cravens).
91. To find child pornography images that he could accurately describe in the affidavit, Cravens looked at several images — “more than just a couple” of images, but “[m]ost likely less than a dozen” — on each of the four CDs seized from Loera’s residence. May 20, 2014 Tr. at 143:6-16 (Cravens, Court).
92. That day, Cravens had the four CDs for a total of two-and-a-half hours, during which time he also drafted the Second Affidavit. See May 20, 2014 Tr. at 74:10-21 (Cravens, Tuckman).
93. In the Second Affidavit, Cravens explained that: (i) he had been an FBI agent for eight years; (ii) his experience included investigations of “crimes against children on the Internet”; (iii) computers and electronic media — including CDs — are used in the child pornography industry; (iv) child pornography images were found on the four CDs seized from Loera’s residence; and (v) when he used the term “child pornography,” he meant “a visual depiction involving the use of minors engaged in sexually explicit conduct.” See Second Affidavit ¶¶ 2, 6, 8, 23-27, at 1-10.
94. Cravens stated, in the Second Affidavit, that he reviewed the four CDs seized from Loera’s residence on November 27, 2012. See Second Affidavit ¶ 22, at 9.
95. Based on his review of Loera’s CDs on November 27, 2012, Cravens provided a detailed description in the Second Affidavit of three still images and one video of child pornography that he found on Loera’s CDs. See Second Affidavit ¶¶ 23-27, at 8-9.
96. Before submitting his search warrant application to a United States Magistrate Judge, Cravens had John Anderson, the Assistant United States Attorney assigned to Loera’s case, review and approve the application, including the Second Affidavit. See May 20, 2014 Tr. at 75:6-18 (Cravens, Tuckman).
97. On November 29, 2012, the Honorable W. Daniel Schneider, United States Magistrate Judge for the District of New Mexico, approved a search warrant to search the items seized from Loera’s residence for child pornography. See Second Warrant at 1; May 20, 2014 Tr. at 75:22-76:2 (Cravens, Tuckman).
3. The Laptop Searches.
98. On November 28, 2012, Nishida checked out the laptop seized from Loera’s residence from FBI evidence to conduct a search pursuant to the First Warrant. See May 20, 2014 Tr. at 168:1-13 (Nishida, Tuckman).
99. Before a hard drive can be searched for evidence, it must first be
100. The imaging process creates an exact copy of a hard drive. See May 20, 2014 Tr. at 148:4-5 (Nishida).
101. Preprocessing then translates the hard drive data produced by the. imaging process from “a group of ones and zeros” into “a form that humans can actually understand.” May 20, 2014 Tr. at 168:12-16 (Nishida, Tuckman).
102. When Nishida conducts a computer search pursuant to a child pornography search warrant, he uses “child pornography hash sets”
103. Child pornography hash sets filter the hard drive data to determine whether any of the child pornography images on the computer are of a known child pornography victim. See May 20, 2014 at 169:12-170:11 (Nishida, Tuckman).
104. Because Nishida was preprocess-ing the hard drive only for evidence of electronic mail hijacking and computer fraud pursuant to the First Warrant, however, he did not use the child pornography hash sets on November 28, 2012. See May 20, 2014 Tr. at 169:10-11 (Nishida); id. at 170:12-23 (Nishida, Tuckman).
105. After conducting the initial pre-processing and imaging of the hard drive on Loera’s laptop on November 28, 2012, Nishida received the Second Warrant and the Second Affidavit. See May 20, 2014 Tr. at 171:19-25 (Nishida, Tuckman).
106. Nishida did not think there was anything wrong with the Second Warrant. See May 20, 2014 Tr. at 172:1-3 (Nishida, Tuckman).
107. Nishida did not review any of the data that the imaging and preprocessing procedures produced until after he received the Second Warrant. See May 20, 2014 Tr. at 171:9-12 (Nishida, Tuckman).
108. Beginning in December, 2012, Nishida conducted a full examination of the hard drive data from Loera’s laptop for the evidence that the First Warrant and
109. During his search of the laptop seized from Loera’s residence, Nishida found: (i) numerous child pornography images 'in the “My Documents” folder; (ii) websites under the “Bookmarks” tab with titles such as “Jailbait Cam,” “Lot of preteens,” and “Lolita Danny"; (ni) a file on the desktop entitled “Allmyfiles.txt” that contained multiple references to child pornography, including — “llyo Maria Antonio,” “lOyo Kopia,” “14 yo-Lil-And-Girl-friend,” and “Spyeam 9yr Undress”; and (iv) another file on the desktop entitled “v.txt” that referenced a file named “Vicky lOyo Anal Pumped (33m52s).” May 20, 2014 Tr. at 181:12-185:24 (Nishida, -Tuck-man). See Jason Loera Dell User Movie CHILD PORNOGRAPHY, submitted to the Court at the May 20, 2014, evidentiary hearing as Government’s Hearing Exhibit 11 (“Loera Dell Movie”).
110. In total, Nishida found over 730 images and forty movies of child pornography on Loera’s laptop. See May 20, 2014 Tr. at 186:22-25 (Nishida, Tuekman).
111. There were so many child'pornography images and movies on the laptop that, at some certain point, Nishida stopped counting them. See May 20, 2014 Tr. at 186:25-187:5 (Nishida, Tuekman).
112. If Cravens had not obtained the Second Warrant, Nishida would not have searched the laptop for evidence of child pornography, but he would still have searched it for evidence of electronic mail hijacking and computer fraud pursuant to the First Warrant. See May 20, 2014 Tr. at 187:6-17 (Nishida, Tuekman).
113. While searching for evidence of electronic mail hijacking or computer fraud, Nishida would have clicked on electronic mail transmissions, internet history, internet cache, “Bookmarks,” and text files — including “My Documents,” “Allmy-files.txt” and “v.txt” — all of which either contained or referenced child pornography. May 20, 2014 Tr. at 187:18-188:21 (Nishi-da, Tuekman); Loera Dell Movie.
114. Nishida stated that, had he found child pornography images on the laptop during a search conducted solely .pursuant to First Warrant, he would have “alerted the case agent so that [he] could get a search warrant for child pornography.” May 20, 2014 Tr. at 189:8-11 (Nishida).
4. Nishida’s April, 2013, Searches of Loera’SuCDs.
115. On or about April 4, 2013, Boady asked Nishida to examine the four CDs seized from Loera’s residence for child pornography. See New Mexico Computer Forensics Laboratory Report of Examination at 1 (dated April 19, 2013), submitted to the Court at the May 20, 2014 evidentia-ry hearing as Government Exhibit 14 (“Apr. 19, 2013, Examination Report”).
116. At some point between April 4, 2013, and April 19, 2013, Nishida attempted to conduct, pursuant to the Second Warrant, a forensic examination for child pornography of the four CDs seized from Loera’s residence. See Apr. 19, 2013, Examination Report at 1.
117. As he had done with the hard drive from Loera’s laptop, Nishida first attempted to image — or create an exact copy of the data from — Loera’s CDs. See Apr. 19, 2013, Examination Report at 2; May 20, 2014 Tr. at 215:21-216:11 (Nishi-da, Serna).
118. Nishida was able to image only two of the four CDs seized from Loera’s residence, however, because two of the CDs “were scratched.” Apr. 19, 2013, Examination Report at 2; May 20, 2014 Tr. at 215:21-216:11 (Nishida, Serna).
120. Nishida discovered approximately 330 images and two movies of suspected child pornography on the two CDs that he examined. See Apr. 19, 2013, Examination Report at 2.
PROCEDURAL BACKGROUND
A federal grand jury indicted Loera on two counts of receipt of visual depictions of minors engaged in sexually explicit conduct, allegedly occurring on September 6, 2009, and one count of possession of a visual depiction of a minor engaged in sexually explicit conduct, allegedly occurring on February 20, 2010. See Indictment at 1-2, filed May 29, 2013 (Doc. 2). Early in 2014, a federal grand jury filed a superseding indictment that charged Lo-era with three counts of possession of material containing any visual depiction of a minor engaged in sexually explicit conduct, each allegedly occurring in November 20, 2012. See Superseding Indictment at 1-2, filed January 9, 2014 (Doc. 25) (“Superseding Indictment”). , Count I of the Superseding Indictment concerns the hard drive on Loera’s laptop, and counts 2 and 3 each concern a CD seized from Loera’s residence. See Superseding Indictment at 1-2.
1. Loera’s Motion.
Loera filed the Motion on March 7, 2014. See Motion at 1; Memorandum in Support of Motion to Suppress Evidence and Statements, filed March 7, 2014 (Doc. 36) - (“Memorandum”). Loera moves the Court, pursuant to rules 12(b)(3) and 41(f) of the Federal Rules of Criminal Procedure, and pursuant to the Fourth and Fifth Amendments to the Constitution of the United States of America, for an order suppressing the following evidence at trial: (i) all evidence seized from Loera’s effects pursuant to the United States’ illegal search at Loera’s residence on November 20, 2012; (ii) all evidence seized from Lo-era’s effects pursuant to the United States’ illegal search of Loera’s effects on November 27, 2012; (iii) all evidence seized as a result of the search warrant issued on November 29, 2012; and (iv) all other evidence, tangible or intangible resulting from any illegal searches of Loera’s effects on November 20, 2012, November 27, 2012, and December 7, 2012, and thereafter. See Motion at 1-2.
Loera first argues that the First Warrant lacked particularity, because it failed to specify “ ‘as nearly as possible the distinguishing characteristics of the goods to be seized.’ ” Memorandum at 4 (quoting Cassady v. Goering,
Loera next argues that the November 27, 2012, searches — Cravens’ search of the four CDs and Nishida’s search of Loera’s laptop — exceeded the scope of the First Warrant. See Memorandum at 10-11. Loera argues that “[t]hese ... searches for child pornography were not within the scope of the November 19 warrant for evidence of wire fraud and unlawful interception of electronic communications.” Memorandum at 11. Finally, Loera asserts that, because the November 20, 2012, and November 27, 2012, searches were unconstitutional, and Cravens relied on those searches to obtain the Second Warrant, the Court should suppress any evidence obtained through the execution of the Second Warrant as fruit of the poisonous tree. See Memorandum at 11.
2. The United States’Response.
The United States filed a Response to the Motion on April 7, 2014. See United States’ Response to Motion to Suppress Evidence (Doc. 35), filed April 7, 2014 (Doc. 41) (“Response”). In its Response, the United States asks the Court to deny the Motion. See Response at 1. The United States first argues that Loera fails to establish the requisite standing to seek suppression of the child pornography, because he has not asserted a possessory interest in the evidence that he seeks to suppress. See Response at 6-7. The United States next asserts that, to the extent that Loera argues that the First Warrant was not sufficiently particularized, “it is worth noting that the Tenth Circuit has ‘adopted a somewhat forgiving stance’” when faced with particularity challenges to warrants authorizing computer searches. Response at 6 n.4 (quoting United States v. Grimmett,
The United States next contends that the November 20, 2012, search of the CDs at Loera’s residence was within the First Warrant’s scope. See Response at 6-10. The United States points out that the First Warrant “authorized agents to search and seize, among othér things, pictures that could be found on ‘physical objects upon which computer data can be recorded/stored,’ such as the CDs at issue here.” Response at 7 (quoting Attachment B ¶¶ 3, 3a., at 3). The United States also argues that the First Warrant authorized Nishida and Cravens to open files that appeared to be images and videos, because file names and extensions can be changed to conceal evidence. See Response at 7 n. 5. To support this contention, the United States quotes from United States v. Burgess,
It is unrealistic to expect a warrant to prospectively restrict the scope of a search by directory, filename, or extension or to attempt to structure search methods — that process must remain dy-naixiic.... [I]llegal activity may not be advertised even in the privacy of one’s personal computer — it could be well coded or otherwise disguised.
Response at 7 n. 5 (quoting United States v. Burgess,
The United States next addresses Lo-era’s argument that Nishida and Cravens went beyond the scope of the First Warrant by continuing to search the CDs after finding child pornography. See Response at 8-9. The United States contends that Loera’s reliance on United States v. Carey for this argument is “misplaced.” Response at 8. The United States explains that, in United States v. Carey, after discovering child pornography, an officer abandoned his warrant-authorized search for drug-related evidence “to look for more child pornography,” and did not resume his original search for five hours. Response at 9 (quoting United States v. Carey,
The United States argues that Cravens’ search of Loera’s CDs on November 27, 2012, was permissible. See Response at 10-11. .The United States concedes that, “[generally, law enforcement engaged in a lawful search who wish to abandon that search and begin a focused search for child pornography, need to obtain a search warrant before beginning a child pornography search.” See Response at 11 (citing, e.g., United States v. Burgess,
The United States argues that, even without Cravens’ description of the images and video that he saw on Loera’s CDs on November 27, 2012, the Second Affidavit included sufficient probable cause to obtain the Second Warrant. See Response at 14. The United States explains that Cravens stated in the Second Affidavit that: (i) he had been an FBI agent for eight years; (ii) his experience included investigations of “crimes against children on the Internet”; (iii) computers and electronic media — including CDs — are used in the child pornography industry; (iv) child pornography images were found on the four CDs seized from Loera’s residence; and (v) when he used the term “child pornography,” he meant “a visual depiction involving the use of minors engaged in sexually explicit conduct.” Response at 12-13 (citations omitted). The United States further asserts that the Tenth Circuit has recognized that the phrase “child pornography” has a generally understood meaning and referring to images of child pornography provides sufficient probable cause to obtain a search warrant. Response at 13
The United States argues that, even if the Court excises Cravens’ descriptions of the three images and one video from the Second Affidavit and finds that the Second Affidavit did not contain sufficient probable cause to obtain the Second Warrant, the Court should find that Nishida relied on the Second Warrant in good faith when he searched Loera’s laptop and CDs pursuant to the Second Warrant. See Response at 14-16. The United States explains that, under the good-faith exception, “evidence seized pursuant to a warrant issued by a neutral and detached magistrate later found invalid may still be admissible if the executing officer acted in objective good faith and with reasonable rebanee on the warrant.” Response at 14 (citations omitted) (internal quotation marks omitted). The United States as-' serts that Nishida searched Loera’s laptop and CDs for child pornography only after Judge Schneider issued the Second Warrant. See Response at 16. In the United States’ view, Nishida relied on Judge Schneider’s determination that probable cause existed to search those items “reasonably and in good faith.” Response at 16. The United States argues that, consequently, the Court should not suppress any evidence obtained through the execution of the Second Warrant. See Response at 16.
■ The United States contends that Cravens also acted in good faith in obtaining the Second Warrant. See Response at 15-16. The United States explains that, in the Second Affidavit, Cravens stated that he opened files on Loera’s CDs on November 27, 2012, to provide a description of the files in his search warrant affidavit. See Response at 16. The United States points out that Cravens had Mr. Anderson, an Assistant United States Attorney review his application for the Second Warrant, including the Second Affidavit. See Response at 4, 15. The United States argues that the Tenth Circuit has identified asking a lawyer to approve a search warrant application as one factor that indicates an officer acted in good faith in obtaining a warrant. See Response at 16 (citing United States v. Otero,
The United States further argues that none of the exceptions to the good-faith exception apply in this case. See Response at 16. The United States explains that the Supreme Court has recognized four situations in which the good-faith exception does not apply:
(1) the issuing judge was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth;
(2) the issuing judge wholly abandoned his judicial role and failed to perform his neutral and detached role;
(3) the affidavit issued to support the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and
(4) the warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid.
The United States asserts that, even if Cravens had not obtained the Second Warrant, Nishida would have inevitably discovered child pornography while searching the items seized from Loera’s residence pursuant to the First Warrant. See Response at 17. The United States contends that, “evidence obtained in violation of the Fourth Amendment should not be suppressed if agents inevitably would have discovered that evidence through lawful means.” Response at 17 (citing United States v. Christy,
The United States contends that Loera “had so much readily accessible child pornography on his electronic media that not only would agents have inevitably discovered the contraband while searching under the authority of the First Warrant, they would have done so ... in a matter of minutes.” Response at 17. The United States explained that, when Nishida searched Loera’s laptop, he quickly found several child pornography sites under the “Bookmarks” tab, a text file on the desktop that contained child pornography terms, and images of child pornography on the laptop itself. Response at 17. Once Nishida found that evidence, the United States contends, he would have obtained a search warrant authorizing a search for child pornography, because “that is exactly what [Cravens and Nishida] did.” Response at 18.
The United States also argues that the four factors from United States v. Souza,
1) the extent to which the warrant process has been completed at the time those seeking the warrant learn of the search;
2) the strength of the showing of probable cause at the time the search occurred;
3) whether a warrant ultimately was obtained, albeit after the illegal entry; and
4) evidence that the law enforcement agents “jumped the gun” because they lacked confidence in their showing of probable cause and wanted to force the issue by creating a fait ac-compli.
Response at 18 (quoting United States v. Christy,
3. Loera’s Reply.
Loera filed his Reply to the Response on April 12, 2014. See Defendant’s Reply to United States’ Response to Motion to Suppress Evidence, filed on April 12, 2014 (Doc. 45) (“Reply”). Loera addresses the United States’ standing argument by admitting that the CDs and laptop on which the agents discovered child pornography were in Loera’s control and possession when the agents seized them. See Reply at 1. Loera then reiterates the arguments that he made in his Motion and Memorandum. See Reply at 1-5. Moreover, Loera argues that Attachment B mentioned photographs, not as evidence of wire fraud or unlawful interception of electronic communications, but as “ ‘evidence of who used, owned, or controlled the COMPUTER at the time the things described in this warrant were created, edited, or deleted.’ ” Reply at 3 (quoting Attachment B ¶ 3.a., at 3).
Loera next turns to the United States’ argument that the Second Warrant would be valid even without Cravens’ description of the three images and one movie that he found on Loera’s CDs. See Reply at 5-6. Loera contends that the resulting search warrant affidavit would read, “four writable CDs ... appeared to contain images of child pornography.” Reply at 5. In Lo-era’s view, “child pornography” is a “mere conclusory statement ]” that “cannot support probable cause.” Reply at 6. Loera contends that, accordingly, without the detailed description of the images and video that Cravens obtained from his November 27, 2012, search, the Second Affidavit would not establish probable cause. See Reply at 6.
Loera asserts that the good-faith exception does not apply in this case. See Reply at 6-8. Loera argues that the First Affidavit was “so lacking in probable cause” to search for child pornography, image or video files, or any file with the date last modified before July 29, 2011, that the FBI agents’ reliance on it was unreasonable. Reply at 7. Loera then addresses the United States’ argument that Cravens’ November 27, 2012, search was permissible: .
[T]he government seeks to justify the November 27 searches because Cravens “wanted to provide the Magistrate Judge who issued the Second Warrant with ' a description of a few of those images” while in the next breath arguing Cravens did not have to actually conduct the November 27 searches because uttering the words “child pornography” was enough for probable cause.
Reply at 7 (quoting Response at 10, 13). In Loera’s view, this “duplicity hardly exudes good faith.” Reply at 7. Loera further states that “the government’s second warrant on November 29 to search for child pornography after it had conducted
Despite the existence of Carey, which stated in 1999 that a warrant should be acquired after the first image was seen, the government here proceeded to conduct more searching for child pornography on November 20 and on November 27 before finally seeking a search warrant on November 29 for child pornography. Good faith did not exist.
Reply at 7-8.
Loera challenges the United States’ assertion that it would have inevitably discovered evidence of child pornography while searching for evidence pursuant to the First Warrant. See Reply at 8-9. Lo-era asserts that “there are a couple of problems with [this] argument.” Reply at 8. First, Loera states that a second search for child pornography based on a warrant seeking evidence of wire fraud and unlawful interception of electronic communications would not lawfully uncover child pornography, because that search would be subject to the same outside the scope analysis as the original November 20, 2012, search. See Reply at 8-9. Second, Loera argues that “storing websites and ‘child pornography terms’ is distinctly different from having images of child pornography as it pertains to probable cause, and the details of this searching will have to be ferreted out during testimony.” Reply at 9. Finally, Loera contends, without further explanation, that Nishida and Cravens “did not ‘exactly’ proceed to get a warrant to search for child pornography on November 20 or November 27 before seeking the second warrant on November 29.” Reply at 9. In Loera’s view, accordingly, the United States’ conduct “does not infer inevitable discovery.” Reply at 9.
Loera next argues that the four United States v. Souza factors do not weigh in favor of applying the inevitable discovery exception in this case. See Reply at 9 (citing United States v. Souza,
4. The May 20 & 21, 2014, Evidentia-ry Hearing.
The Court held an evidentiary hearing on May 20, 2014, and May 21, 2014. See May 20, 2014 Tr. at 1-227; May 21, 2014 Tr. at 227-277. In its opening statement, the United States largely reiterated the arguments from its Response. See May 20, 2014 Tr. at 34:21-47:11 (Tuckman,
Cravens explained that, on November 27, 2012, he decided to obtain a search warrant to search the items seized from Loera’s residence for child pornography. See May 20, 20.14 Tr. at 72:5-12 (Cravens, Tuckman); id. at 140:13-16 (Cravens, Court). Cravens testified that he obtained Loera’s CDs from Boady to provide a description of one child pornography image from each of CDs in his search warrant affidavit. See May 20, 2014 Tr. at 71:19-25 (Cravens, Tuckman); id. at 72:1-4 (Cravens); id. at 72:21-22 (Cravens). Cravens stated that, to find child pornography images which he could accurately describe in the affidavit, he looked at several images on each of the four CDs seized from Lo-era’s residence. See May 20, 2014 Tr. at 143:6-16 (Cravens, Court). Cravens testified that he had an Assistant United States Attorney review and approve his application package — including the Second Affidavit — before submitting it to Judge Schneider. See May 20, 2014 Tr. at 75:6-18 (Cravens, Tuckman). Cravens stated that he submitted his search warrant application to Judge’ Schneider, who then issued the Second Warrant. See May 20, 2014 Tr. at 75:22-76:2 (Cravens, Tuck-man).
The United States called Nishida to testify at the evidentiary hearing. See May 20, 2014 at 144:1-9 (Tuckman, Court). Ni-shida explained that, during the execution of the First Warrant on November 27, 2012, he was responsible for previewing the files on the CDs found at Loera’s residence to determine if they contained evidence of electronic mail hijacking and computer fraud. See May 20, 2014 Tr. at 155:8-24 (Nishida, Tuckman). Nishida testified that he discovered images of child pornography on two CDs found at Loera’s residence. See May 20, 2014 Tr. at 87:15 (Cravens); id. at 119:21-120:2 (Cravens, Serna); id. at 158:20-22 (Nishida, Tuck-man). Nishida stated that, after finding a child pornography image on a CD, he opened two or three other files on that CD to determine if they contained evidence of computer fraud or electronic mail hijacking. See May 20, 2014 Tr. at 161:17-162:18 (Nishida, Tuckman). Nishida testified that he continued to search for evidence of electronic mail hijacking and computer fraud after finding child pornography images. See May 20, 2014 Tr. at 165:4-17 (Nishida, Tuckman).
Nishida explained that, on November 28, 2012, he checked Loera’s laptop out of FBI evidence to search it pursuant to the First Warrant. See May 20, 2014 Tr. at 168:1-13 (Nishida, Tuckman). Nishida testified that, before conducting a full search, he first had to “preprocess” and “image” the laptop’s hard drive. May 20, 2014 Tr. at 168:1-13 (Nishida, Tuckman). Nishida testified that he received the Second Warrant and the Second Affidavit after con
Nishida testified that, during his search of Loera’s laptop, he found child pornography images in the “My Documents” folder, child pornography websites under the “Bookmarks” tab, and at least two files on the desktop that referenced child pornography. May 20, 2014 Tr. at 181:12-185:24 (Nishida, Tuckman). Nishida stated that, if Cravens had not obtained the Second Warrant, he would not have searched the laptop for evidence of child pornography, but he would still have searched it for evidence- of electronic mail hijacking and computer fraud pursuant to the First Warrant. See May 20, 2014 Tr. at 187:6-17 (Nishida, Tuckman). Nishida testified that, while searching for evidence of electronic mail hijacking or computer fraud, he would have clicked on electronic mail transmissions, internet history, internet cache, the “Bookmarks” tab, and text files — all of which either contained or referenced child pornography. May 20, 2014 Tr. at 187:18-188:21 (Nishida, Tuckman). Nishida stated that, had he found child pornography images on the laptop during a search conducted solely pursuant to First Warrant, he would have “alerted the case agent so that [he] could get a search warrant for child pornography.” May 20, 2014 Tr. at 189:8-11 (Nishida).
5. Loera’s Supplement to the Reply.
Loera filed a supplement to his Reply on August 18, 2014. See Defendant’s Supplement to Reply to United States’ Response to Motion to Suppress Evidence, filed August 18, 2014 (Doc. 55) (“Supplement to Reply”). Loera first addresses the United States’ inevitable discovery argument. See Supplement to Reply at 2. Loera asserts that “[t]he Tenth Circuit has emphasized the danger of admitting unlawfully obtained evidence on the strength of some judge’s speculation that it would have been discovered legally anyway.” Supplement to Reply at 2 (quoting United States v. Owens,
“If the prosecution can establish by a preponderance of the evidence that the' information ultimately or inevitably would have been discovered by lawful means ... then the deterrence rationale has so little basis that the evidence should be received.”.... This Court should not be convinced a preponderance of the evidence shows the police would have sought a third search warrant if the second warrant was invalid.
Supplement to Reply at 2-3 (quoting Nix v. Williams,
Loera next argues that Nishida and Cravens did not have probable- cause to open any files on Loera’s CDs dated before July 29, 2011. See Supplement to Reply at 3-7. Loera explained that Cravens and Nishida testified that “dates did not matter regarding what could be examined on Mr. Loera’s storage media and computer,” and, if they paid attention to dates, they could miss evidence. Supplement to Reply at 4 (citations omitted). Loera argues that there are three problems with the agents’ approach. See Supplement to Reply at 4.
First, Loera contends that disregarding the file dates turned the First Warrant into a “general exploratory warrant” that
Third, Loera challenges the United States’ contention that Cravens and Nishi-da could disregard the file dates, because they could have been changed. See Supplement to Reply at 6. Loera argues that there was “not a single indication” in the First Warrant and its Attachments that the dates of the files on Loera’s computer or CDs were changed. Supplement to Reply at 6. Loera asserts that this is “particularly important,” because the First Affidavit focused on the importance of dates at multiple points. Supplement to Reply at 6. For example, Loera states that the First Affidavit sought “ ‘forensic electronic evidence that establishes how computers were used, ... and when.’ ” Supplement to Reply at 6 (emphasis in Supplement to Reply but not source) (quoting First Affidavit at 13-14). Loera points out that the First Affidavit states that, “ ‘(and the data associated with the foregoing, such as file creation and last-accessed dates) may be evidence of who used or controlled the computer or storage medium at a relevant time ’ ... and ... twice stated it was important to know ‘when’ the computer was used.” Supplement to Reply at 6 (citations omitted) (emphasis in Reply but not First Affidavit).
Loera states that Cravens “admitted he was not aware of any evidence that dates on files had been changed.” Supplement to Reply at 6 (citations omitted). Loera further points out that, although Nishida testified that file dates on CDs could be changed and that he knew of software that would do so, he did not know how common it is. See Supplement to Reply at 6 (citations omitted). Turning briefly to his particularity argument, Loera asserts that “[t]he agents’ testimony that [the First Warrant] did not contain a restriction pertaining to time or dates of the files ... supports invalidation of the warrant” for lack of particularity, because it failed to specify “ ‘as nearly as possible the distinguishing characteristics.of the goods to be seized.’ ” Supplement to Reply at 6-7 (quoting Cassady v. Goering,
Loera next argues that the First Affidavit did not provide probable cause to believe that image or video files on Loera’s CDs or laptop would contain the evidence that the First Warrant sought. See Supplement to Reply at 7. Loera points out that the First Affidavit did not allege that Estrada intercepted images or videos through the electronic mail accounts at the Domain. See Supplement to Reply at 7. Loera contends that, accordingly, the First Warrant did not authorize Cravens and Nishida to open image or video files on Loera’s laptop or CDs — even if they were dated on or after July 29, 2011. See Supplement to Reply at 7.
Loera next addresses the United States’ argument that Nishida would have inevita
Nishida was not an affiant in seeking either of the two existing search warrants in this case. After allegedly finding child pornography on two CDs on November 20, Nishida personally did not author or seek a search warrant to search the Dell laptop. Only after Cra: vens had conducted his unlawful war-rantless search of the CDs for child pornography on November 27, did Cravens, not Nishida seek the second search warrant, which included the Dell laptop.
Supplement to Reply at 13. Loera also asserts that, had Nishida discovered child pornography on Loera’s laptop while executing the First Warrant, Boady also would not have obtained a search warrant for child pornography, because Boady did not do so after Cravens told Boady that he found child pornography on Loera’s CDs on November 20, 2012. See Supplement to Reply at 13. Loera concludes his inevitable discovery argument by contending that “[t]he historical facts fail to show with sufficient probability that Nishida would have sought a search warrant after finding child pornography on the laptop.” Supplement to Reply at 13.
6. The August, 19, 2014, Hearing.
The Court held a hearing on August 19, 2014, to hear the parties’ closing arguments on the Motion. See Transcript of Hearing (taken August' 19, 2014) (“Aug. 19, 2014 Tr.”). Loera argued that, in the computer context, it is especially important that the search warrant is narrowly drafted, because of all of the lawful, private information that a computer may contain. See Aug. 19, 2014 Tr. at 285:17-21 (Serna). Loera reiterated that the First Warrant was not sufficiently particular, because it failed to “specify as nearly as possible the distinguishing characteristics of the goods to be seized.” Aug. 19, 2014 Tr. at 298:24-299:4 (Serna) (citing Cassady v. Goering).
Loera next asserted that Cravens and Nishida exceeded the First Warrant’s scope when they searched Loera’s CDs on November 20, 2012. See Aug. 19, 2014 Tr. at 285:11-22 (Serna). In Loera’s view, because Nishida and Cravens had access to software that would allow them to restrict their searches to text files and files modified after July 29, 2011, yet failed to use them, their searches were unconstitutional. See Aug. 19, 2014 Tr. at 287:23-288:4 (Serna); id. at 290:12-292:14 (Serna). Loera also highlighted that Nishida admitted it would not have been impractical to seize all of the media items from Loera’s house, take them to the FBI lab, and search them using the search-limiting software. See Aug. 19, 2014 Tr. at 292:15-25 (Serna).
The Court noted that it was struck by the First Warrant’s breadth and suggested that Loera would have to argue that the warrant lacked particularity, rather than that the agents’ searches exceeded the scope of the First Warrant. See Aug. 18, 2014 Tr. at 288:5-11 (Court); id. at 288:1-6 (Court). Upon .questioning by the Court, Loera would not concede that the First Warrant was broad enough to cover the
Loera reiterated his argument from the Supplement to the Reply that the First Warrant did not authorize Nishida and Cravens to open files that were last modified before July 29, 2011. See Aug. 19, 2014 Tr. at 294:18-295:22 (Serna). The Court inquired whether there was any force to the United States’ argument that it did not have to impose a date restriction on its search, because file dates can be' inaccurate. See Aug. 19, 2014 Tr. at 296:2-9 (Court); id. at 296:15-21 (Court). Loera rejected that argument, explaining that even the United States believed that the file dates on Loera’s CDs and laptop were rehable. See Aug. 19, 2014 Tr. at 297:2-5 (Serna). Loera pointed to the numerous sections of the First Affidavit and Attachment B that discuss the importance of file creation and last accessed dates, and sought “all financial records from June 2011 to the present.” Aug. 19, 2014 Tr. at 297:6-17 (Serna). Loera explained that he was not arguing that the file dates on Loera’s laptop and CDs were “off somewhat.” Aug. 19, 2014 Tr. at 297:18-19 (Serna). Loera pointed out that there is a two-to-three year difference between the alleged electronic mail hijacking and computer fraud that the First Warrant focused on — which began in 2011 — and the files that Cravens and Nishida opened — which contained last-modified dates from 2008 and 2009. See Aug. 19, 2014 Tr. at 297:19-298:2 (Serna).
The Court inquired whether Loera had any case law, which says that, if law enforcement has tools at a different location that may narrow the search, the Constitution requires that they seize everything and conduct the search with those tools at the other location. See Aug. 19, 2014 at 299:19-300:14 (Court). Loera responded that he was not aware of any such case law, but, in his view, using those tools would have “ensur[ed] that law enforcement [was] staying within the bounds of the Constitution.” Aug. 19, 2014 Tr. at 300:15-301:10 (Serna). Loera then reiterated his arguments that Cravens and Ni-shida exceeded the scope of the First Warrant when they opened image and video files, and when they continued opening files on the CDs after discovering child pornography. See Aug. 19, 2014 Tr. at 305:5-308:3 (Serna). Loera also argued that, after finding child pornography, Cravens and Nishida abandoned their search for electronic mail hijacking and computer fraud, and began searching for child pornography — and, in doing so, ran afoul of the Tenth Circuit’s decision in United States v. Carey. See Aug. 19, 2014 Tr. at 326:2-14 (Serna).
The United States conceded that Loera had sufficient standing to move to suppress the child pornography evidence. See Aug. 19, 2014 Tr. at 314:21-315:3 (Tuck-man). The United States then argued that the law did not require Cravens and Nishi-da to seize everything from Loera’s residence and analyze it at the FBI laboratory with search-limiting software. See Aug. 19, 2014 Tr. at 315:12-318:13 (Tuckman). The United States explained that the Tenth Circuit “has been clear that computer searches are fluid, they’re dynamic. You don’t set out a methodology ahead of time saying what you have to do; that you can only look for this type of file or this type of extension.” Aug. 19, 2014 Tr. at 315:13-18 (Tuckman). As an example, the United States cited United States v. Burgess, in which the Tenth Circuit explained that, if United States agents are executing a search warrant and come upon a folder that says “2002 tax records,” they can look through that folder to make sure it actually is 2002 tax records, and not anything else that someone engaged in criminal ac
In response, Loera explained that his “argument is not that there is some constitutional requirement that ... the law enforcement take everything back to the lab,” but instead that it would have been practical and constitutional for them to do so. Aug. 19, 2014 Tr. at 323:22-25 (Serna). The Court stated that it was inclined to find that the agents’ preview of the files on the CDs on November 20, 2012, was within the First Warrant’s scope. See Aug. 19, 2014 Tr. at 324:21-325:1 (Court). The Court explained that, as long as Cravens and Nishida continued to look for evidence of electronic mail hijacking and computer fraud after finding the child pornography — as the Court believed they did — they were not required to use the least restrictive means to conduct their searches. See Aug. 19, 2014 Tr. at 325:2-10 (Court).
Loera then repeated the argument from his Motion and Reply that Cravens’ November 27, 2012, search of Loera’s CDs was unconstitutional. See Aug. 19, 2014 Tr. at 326:21-327:18 (Serna). The Court asked why the Second Affidavit — without the descriptions that Cravens obtained from his November 27, 2012, search — did not provide sufficient probable cause for a search warrant. See Aug. 19, 2014 Tr. at 327:19-328:7 (Court); id. at 328:7-17 (Court). Loera responded that, without Cravens’ descriptions, the Second Affidavit would state only that Cravens found “child pornography” — which is a “mere concluso-ry statement” that would not provide probable cause. Aug. 19, 2014 Tr. at 328:18-329:13 (Serna); id. at 335:15-336:2 (Serna) (citing United States v. Roach,
In response, the United States reiterated its arguments from the Response and asserted that it could not find any cases indicating whether Cravens’ actions on November 27, 2012, were permissible. See Aug. 19, 2014 Tr. at 330:24-331:2 (Tuck-man); id. at 331:24-333:5 (Tuckman). The United States concluded that “it might have been a better tack” for Cravens to have waited to review the CDs until after he obtained the Second Warrant. Aug. 19, 2014 Tr. at 331:2-3 (Tuckman).
The United States argued that the Second Affidavit — with Cravens’ descriptions of the child pornography excised — established probable cause. See Aug. 19, 2014 Tr. at 333:16-334:25 (Tuckman, Court). The United States argued that the Tenth Circuit has recognized that child pornography is “one of those terms people know what it means when they say it.” Aug. 19, 2014 Tr. at 333:19-20 (Tuckman). The United States pointed out that the Second Affidavit not only contained the phrase “child pornography,” it also provided a definition of that phrase — “children engaging in sexually explicit conduct” — and described Cravens’ experience in child pornography matters. Aug. 19, 2014 Tr. at 333:20-24 (Tuckman). The United States explained that the situation is similar to
Loera responded that, unlike child pornography, the smell of marijuana does not have a statutory definition. See Aug. 19, 2014 at 336:25-337:2. Loera stated that “the fact that Agent Cravens felt it necessary to put a description in there, and Agent Boady, the case agent, his supervisor, apparently felt it necessary to put some kind of description in there ... is important.” Aug. 19, 2014 at 337:3-8 (Ser-na). The Court stated that it tended to agree with Loera that Cravens’ November 27, 2012, search was unconstitutional, and that it should, accordingly, excise any description obtained from that search from the Second Affidavit. See Aug. 19, 2014 Tr. at 337:10-23 (Court). The Court noted, however, that it was inclined to agree with the United States that the remaining information in the Second Affidavit established probable cause. See Aug. 19, 2014 at 337:24-338:6 (Court).
Loera next argued that the good-faith exception should not apply. See Aug. 19, 2014 at 340:10-346:5 (Serna, Court). Lo-era contended that Cravens did not act in good faith in obtaining the Second Warrant, because neither he nor Boady consulted an Assistant United States Attorney before searching the CDs for images of child pornography on November 27, 2012. See Aug. 19, 2014 at 340:10-24 (Serna). Loera argued that Herring v. United States,
Loera then asserted that part of the good-faith analysis is looking at whether excluding evidence in a particular case furthers the policies underlying the exclusionary rule. See Aug. 19, 2014 at 345:10-15 (Serna). Loera argued that,
in this case, we know what Cravens did. It’s our position that he shouldn’t have done that. And the policies are furthered by the application of the Exclusionary Rule, because this is something that he knew, or should have known that he shouldn’t have done. This isn’t a situation where a cop is simply executing a warrant that he didn’t play any hand in, doesn’t know anything about, kind of like the Herring case. This isn’t that situation. This is where the bad actor is the same guy that’s drafted the warrant and, you know, would have executed the warrant.
Aug. 19, 2014 Tr. at 345:16-346:1 (Serna).
In response, the United States argued that the Tenth Circuit has identified consulting a lawyer about the search warrant application as a factor indicating that an officer acted in good faith in obtaining a warrant — which is exactly what Cravens did. See Aug. 19, 2014 Tr. at 346:17-21 (Tuckman). The United States explained that Cravens stated in the Second Affidavit that he reviewed the CDs to provide a description in the affidavit. See Aug. 19, 2014 Tr. at 347:3-6 (Tuckman). In the United States’ view, rather than “tryfing] to hide anything,” Cravens “laid out exactly what he had done.” Aug. 19, 2014 Tr. at 347:18-19 (Tuckman). The United States explained that Nishida executed the Sec
The United States argued that Cravens “was trying to do everything right.” Aug. 19, 2014 Tr. at 348:25-349:1 (Tuckman). The United States explained that, after discovering child pornography, Cravens set aside Loera’s CDs to obtain a second warrant, drafted a search warrant affidavit, had it reviewed by an Assistant United States Attorney, presented it to Judge Schneider, and only then did Nishida conduct his search. See Aug. 19, 2014 Tr. at 349:1-7 (Tuckman). In the United States’ view, these actions “exude” good faith. Aug. 19, 2014 Tr. at 349:7 (Tuckman). The United States concluded its argument on the good-faith exception by explaining that the Court does not have to reach the good-. faith issue if it excises Cravens’ desqription of the child pornography and finds that the Second Warrant was nevertheless valid. See Aug. 19, 2014 Tr. at 351:9-16 (Tuck-man).
Loera responds that the good-faith exception does not apply to Nishida’s execution of the Second Warrant, because Nishi-da knew that Cravens was involved in the unlawful searches that occurred on November 20, 2012, and November 27, 2012. See Aug. 19, 2014 Tr. at 356:5-7 (Serna). In Loera’s view, Nishida’s involvement in the investigation predating the Second Warrant “puts him more on notice that there is ... an issue here; that he’s not acting completely in good faith.” Aug. 19, 2014 Tr. at 356:23-25 (Serna). The Court stated that it is always struck by how broadly the Tenth Circuit applies the good-faith excéption, and that it believes the good-faith inquiry focuses on the executing officer, and not on the officer who drafted the search warrant affidavit. See Aug. 19, 2014 Tr. at 357:4-19 (Court). The Court said that, if the inquiry focuses on the executing officer, it is inclined to find that Nishida acted in good faith. See Aug. 19, 2014 Tr. at 357:12-358:4 (Court).
Turning to the inevitable discovery issue, Loera repeated his arguments from the Supplement to the Reply — namely: (i) that Nishida would not have discovered child pornography while executing the First Warrant unless he went beyond the scope of the First Warrant by clicking on image and video files; and (ii) had Nishida discovered child pornography on Loera’s laptop while executing the First Warrant, neither he nor Boady would have obtained a second search warrant for child pornography. See Aug. 19, 2014 Tr. at 360:17-362:5 (Serna); id. at 364:17-366:14 (Serna). The United States responded that Nishida inevitably would have discovered child pornography on Loera’s laptop, because — as the Loera Dell Movie indicated — Nishida discovered child pornography and references to child pornography in many of the places that he would have searched when he executed the First Warrant. See Aug. 19, 2014 Tr. at 363:6-21 (Tuckman); id. at 364:7-13 (Tuckman). The United States then .reiterated the argument from its Response that the four factors from United States v. Souza weigh in favor of finding inevitable discovery. See Aug. 19, 2014 Tr. at 363:22-364:6 (Tuckman); id. at 370:20-
The Court stated that the central issue in deciding the Motion is whether the November 20, 2012, searches were constitutional. See Aug. 19, 2014 Tr. at 375:23-25 (Court). The Court explained that it was inclined to think “that the Constitution doesn’t put the restrictions ... on the officers’ search methods as strictly as the defendant is advancing.” Aug. 19, 2014 Tr. at 375:25-376:3 (Court). The Court stated that, if the November 20, 2012, searches were valid, the searches that Ni-shida conducted pursuant to the Second Warrant would be upheld under “about two or three doctrines.” Aug. 19, 2014 Tr. at 376:6 (Court). The Court said that, accordingly, it was skeptical that it would ■grant the Motion. See Aug. 19, 2014 Tr. at 376:7-8 (Court).
RELEVANT FOURTH AMENDMENT LAW
The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Fourth Amendment rights are enforceable against state actors through the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States. See Mapp v. Ohio,
1. The Fourth Amendment “Standing” Analysis.
“The Tenth Circuit has referred to the test whether a particular search implicates a defendant’s Fourth Amendment interests — whether the search violates the defendant’s reasonable privacy expectation— as one of ‘standing.’ ” Ysasi v. Brown,
In Rakas v. Illinois,
Had we accepted petitioners’ request to allow persons other than those whose own Fourth Amendment rights were violated by a challenged search and seizure to suppress evidence obtained in the course of such police activity, it would be appropriate to retain Jones ’9 use of standing in Fourth Amendment analysis. Under petitioners’ target theory, a court could determine that a defendant had standing to invoke the exclusionary rule without having to inquire into the substantive question of whether the challenged search or seizure violated the Fourth Amendment rights of that particular defendant. However, having rejected petitioners’ target theory and reaffirmed the principle that the “rights assured by the Fourth Amendment are personal rights, [which] ... may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure,” Simmons v. United States, 390 U.S. [377, 389,88 S.Ct. 967 ,19 L.Ed.2d 1247 (1968) ] ..., the question necessarily arises whether it serves any useful analytical purpose to consider this principle a matter of standing, distinct from the merits of a defendant’s Fourth Amendment claim. We can think of no decided cases of this Court that would have come out differently had we concluded, as we do now, that the type of standing requirement discussed in Jones, and reaffirmed today is more properly subsumed under substantive Fourth Amendment doctrine. Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of “standing,” will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same. But we think the better analysis forthrightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing. The Court in Jones, also may have been aware that there was a certainartificiality in analyzing this question in terms of standing because in at least three separate places in its opinion the Court placed that term within quotation marks.
[NJothing we say here casts the least doubt on cases which recognize ... as a general proposition, the issue of standing [generally.] ... But this Court’s long history of insistence that Fourth Amendment rights are personal in nature has already answered many of these traditional standing inquiries, and we think that definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.
The Minnesota courts analyzed whether respondents had a legitimate expectation of privacy under the rubric of “standing” doctrine, an analysis that this Court expressly rejected 20 years ago in Rakas .... Central to our analysis [in Rakas v. Illinois ] was the idea that in determining whether a defendant is able to show the violation of his (and not someone else’s) Fourth Amendment rights, the “definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.”
525 U.S. at 87-88,
2. Whether a Fourth Amendment Search Occurred.
A court cannot suppress evidence unless the search was a Fourth Amendment search. A Fourth Amendment search occurs either where the government, to obtain information, trespasses on a person’s property or where the government violates a person’s subjective expectation of privacy that society recognizes as reasonable to collect information. See United States v. Jones,
a. Trespass-Based Analysis.
In Florida v. Jardines, the Supreme Court explained that the Fourth Amendment “establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When ‘the Government obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a search within the original meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’ ” — U.S. —,
The Fourth Amendment “indicates with some precision the places and things encompassed by its protections”: persons, houses, papers, and effects. The Fourth Amendment does not, therefore, prevent all investigations conducted on private property; for example, an officer may (subject to Katz) gather information in what we have called “open fields” — even if those fields are privately owned — because such fields are not enumerated in the Amendment’s text.... But when it comes to the Fourth Amendment, the home is first among equals.
In United States v. Alabi,
When a law enforcement officer sees only the exterior of a credit or debit card, however, given that the financial institution which issues the card places the same information on the magnetic strip as embossed on the card’s exterior, the only instances in which the information inside the credit or debit card is not information already seen by and known. to the officer is when the information has been reencoded for unlawful purposes. In these instances, not only does the person asserting his or her Fourth Amendment right not own or otherwise lawfully possess the information contained inside the card on the magnetic strip, but the person has stolen the information with the intent to use that information to steal further from the person whose information is on the magnetic strip. Protecting this area from law enforcement search and seizure would thus not further the Fourth Amendment’s express purpose of protecting “[t]he right of the people to be secure in their persons, houses; papers, and effects.... ” U.S. Const. amend. IV.
b. Katz v. United States’ Reasonable-Expectation-of-Privacy Test Remains Good Law.
The Court has noted that, in light of the Supreme Court’s recent decisions in Flori
In my view, the only thing the past three decades have established about the Katz test (which has come to mean the test enunciated by Justice Harlan’s separate concurrence in Katz ...) is that, unsurprisingly, those “actual (subjective) expectation^] of privacy” “that society is prepared to recognize as ‘reasonable,’ ” bear an uncanny resemblance to those expectations of privacy that this Court considers reasonable. When that self-indulgent test is employed (as the dissent would employ it here) to determine whether a “search or seizure” within the meaning of the Constitution has occurred (as opposed to whether that “search or seizure” is an “unreasonable” one), it has no plausible foundation in the text of the Fourth Amendment. That provision did not guarantee some generalized “right of privacy” and leave it to this Court to determine which particular manifestations of the value of privacy “society is prepared to recognize as ‘reasonable.’ ” -Rather, it enumerated (“persons, houses, papers, and effects”) the objects of privacy protection to which the Constitution would extend, leaving further expansion to the good judgment, not of this Court, but of the people through their representatives in the legislature.
Minnesota v. Carter,
In June, 2013, Justice Scalia dissented from the Supreme Court’s decision in Maryland v. King, — U.S. —,
We are told that the “privacy-related concerns” in the search of a home “are weighty enough that the search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.” But why are the “privacy-related concerns” not also “weighty” when an intrusion into the body is at stake? (The Fourth Amendment lists “persons” first among the entities protected against unreasonable searches and seizures.).
Maryland v. King,
Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.
Maryland v. King,
c. Katz v. United States’ Reasonable-Expectations-of-Privacy Analysis.
“ ‘Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.’ ” Rakas v. Illinois,
“Official conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Illinois v. Caballes,
In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States. Katz involved eavesdropping by means of an electronic listening device placed on the outside of a telephone booth—a location not within the catalog (“persons, houses, papers, and effects”) that the Fourth Amendment protects against unreasonable searches. We held that the Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he “justifiably relied” upon the privacy of the telephone booth. As Justice Harlan’s oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.
Kyllo v. United States,
A “reasonable expectation of privacy” is “said to be an expectation ‘that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’” United States v. Jones,
i. Subjective Expectation of Privacy.
A defendant maintains a subjective expectation of privacy when he or she “has shown that ‘he sought to preserve something as private.’ ” Ysasi v. Brown,
This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.
United States v. Miller,
The Supreme Court has recognized, however, that subjective expectations of privacy do not always coincide with the interests that the Fourth Amendment is universally thought to protect. In Smith v. Maryland, for instance, the Supreme Court identified situations in which it would not follow the subjective approach:
Situations can be imagined, of course, in which Katz’ two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation or [sic] privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation’s traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual’s subjective expectations had been “conditioned” by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a “legitimate expectation of privacy” existed in such cases, a normative inquiry would be proper.
Smith v. Maryland,
[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the “tradeoff’ of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they'had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disen-titled to Fourth Amendment protection.
ii. Privacy Expectation That Society Is Prepared to Recognize as Reasonable.
Under the second step of Katz v. United States’ reasonable-expectation-of-privacy approach, courts must determine “whether society is prepared to recognize that [subjective privacy] expectation as objectively reasonable.” United States v. Ruiz,
No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant. In assessing the degree to which a search infringes upon individual privacy, the Court has given weight to such factors as the intention of the Framers of the Fourth Amendment, the uses to which the individual has put a location, and our societal understanding that certain areas deserve the most scrupulous protection from government invasion.
Oliver v. United States,
The Supreme Court has held that “[o]ffi-cial conduct that does not ‘compromise any legitimate interest in privacy’ is not a search subject to the Fourth Amendment.” Illinois v. Caballes,
We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. A “canine sniff” by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.
In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here— exposure of respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a “search” within the meaning of the Fourth Amendment.
United States v. Place,
In United States v. Jacobsen, the Supreme Court extended this holding to the chemical field test of a white powdery substance to reveal that the substance was cocaine. See
The removal of the plastic bags from the tube and the agent’s visual inspection of their contents enabled the agent to learn nothing that had not previously been learned during the private search. It infringed no legitimate expectation of privacy and hence was not a “search” within the meaning of the Fourth Amendment.
The field test at issue could disclose only one fact previously unknown to the agent — whether or not a suspicious white powder was cocaine. It could tell him nothing more, not even whether the substance was sugar or talcum powder. We must first determine whether this can be considered a “search” subject to the Fourth Amendment — did it infringe an expectation of privacy that society is prepared to consider reasonable?
A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. This conclusion is not dependent on the result of any particular test. It is probably safe to assume that virtually all of the tests conducted under circumstances comparable to those disclosed by this record would result in a positive finding; in such cases, no legitimate interest has been compromised. But even if the results are negative — merely disclosing that the substance is something other than cocaine — such a result reveals nothing of special interest. Congress has decided — and there is no question about its power to do so — to treat the interest in “privately” possessing cocaine as illegitimate; thus governmental conduct that can reveal • whether a substance is cocaine, and no other arguably “private” fact, compromises no legitimate privacy interest.
Here, as in Place, the likelihood that official conduct of the kind disclosed by the record will actually compromise any legitimate interest in privacy seems much too remote to characterize the testing as a search subject to the Fourth Amendment.
United States v. Jacobsen,
Most recently, where a “dog sniff was performed on the exterior of respondent’s car while he was lawfully seized for a traffic violation,” the Supreme Court, again relying on United States v. Place and also on United States v. Jacobsen, held that “[a]ny intrusion on respondent’s privacy expectations does not rise to the level of a constitutionally cognizable infringement.” Illinois v. Caballes,
This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v. United States,533 U.S. 27 ,121 S.Ct. 2038 ,150 L.Ed.2d 94 ... (2001).... Critical to that decision was the fact that the device was capable of detecting lawful activity — in that case, intimate details in a home," such as “at what hour each night the lady of the house takes her daily sauna and bath.” Id. at 38,121 S.Ct. 2038 .... The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent’s hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.
Illinois v. Caballes,
In United States v. Alabi, the defendants possessed thirty-one credit and debit cards, “many of them in their own names, several of which had information. on the magnetic strips that related to persons other than the Defendants.”
3. Search Warrants Require Probable Cause.
“The Supreme Court requires that a magistrate judge be provided information sufficient to determine the existence of probable cause before he or she issues a warrant.” United States v. Romero,
“A reviewing court should accord great deference to a magistrate’s determination of probable cause.” United States v. Reed,
“The deference accorded a magistrate judge’s probable cause determination, however, is not boundless.” United States v. Alabi,
4. Search Warrants Require Particularity.
The Fourth Amendment commands that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. The Supreme Court has explained that the “manifest purpose” of the particularity requirement is “to prevent general searches.” Maryland v. Garrison,
The Tenth Circuit has cautioned that “the modern development of the personal computer and its ability to store and intermingle a huge array of one’s personal papers in a single place increases law enforcement’s ability to conduct a wide-ranging search into a person’s private affairs, and accordingly makes the particularity requirement that much more important.” United States v. Otero,
Recognizing the inherent complexity and unpredictability of ESI searches, however, the Tenth Circuit has never required a search warrant to specify the manner in which law enforcement officers must conduct a search for ESI. See United States v. Brooks,
It is unrealistic to expect a warrant to prospectively restrict the scope of a search by directory, filename or extension or to attempt to structure search methods—that process must remain dynamic. While file or directory names may sometimes alert one to the contents (e.g., “Russian Lolitas,” “meth stuff,” or “reagents”), illegal activity may not be advertised even in the privacy of one’s personal computer—it could well be coded or otherwise disguised. The directory structure might give hints as to an effective search strategy, but could just as well be misleading and most often could not effectively, or even reasonably, be described or limited in a warrant. Keyword searches may be useful in locating suspect files, but not always.... In summary, it is folly for a search warrant to attempt to structure the mechanics of the search and a .warrant imposing such limits would unduly restrict legitimate search objectives.... [I]n the end, there may be no practical substitute for actually looking in many (perhaps all) folders and sometimes at the documents contained within those folders, and that is true whether the search is of computer files or physical files.
United States v. Burgess,
5. The Plain-View Exception.
The Supreme Court has held that the Fourth Amendment’s prohibition on unreasonable searches and seizures does not implicate what a person knowingly exposes to the public in plain view. See Katz v. United States,
There are three requirements to justify the warrantless seizure of evidence in plain view: “(i) the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed; (ii) the item’s incriminating
The plain-view exception does not constrain officers to viewing the evidence with their bare eyes or from a particular position. For example, the Supreme Court has held that “the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection.” Texas v. Brown,
First, ... Villaba consented to the visual examination and [the officer] also had reasonable suspicion to examine the truck in that manner. Second, based on [the officer]’s reasonable suspicion that the truck contained narcotics, and his experience with narcotics in toys and in baggies, the incriminating character of the taped bag that he saw inside of the slits on the toy truck’s underside was immediately apparent. Third, given either Villaba’s consent or [the officer]’s suspicion, “the officer had a lawful right of access to the object itself.” United States v. Morales-Ortiz,376 F.Supp.2d at 1139 . Although, [the officer] used a flashlight to see the bag inside the truck, given the Supreme Court’s guidance that “the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection,” Texas v. Brown,460 U.S. at 740 [,103 S.Ct. 1535 ], the flashlight does not affect the constitutionality of [the officer’s otherwise lawful search. Thus, once [the officer] viewed the packaging, the incriminating nature of which was immediately apparent, in plain view from where he had a lawful right to be, Walsh had the lawful ability to seize the evidence.
United States v. Villaba,
The Tenth Circuit has also noted that “an officer may ‘change his position’ and ‘bend down at an angle’ to see what is inside a car, because ‘there is no reason why an officer should be precluded from observing what would be entirely visible to him as a private citizen.’ ” United States v. Gonzalez-Acosta,
RELEVANT LAW ON THE EXCLUSIONARY RULE
“When evidence is obtained in violation • of a person’s constitutional rights, the gov
“For the exclusionary rule to apply, the defendant must show, by a preponderance of the evidence: (i) a constitutional.violation, and (ii) a causal nexus between the violation and the evidence sought to be excluded.” United States v. Villaba,
1. The Good-Faith Exception.
Recognizing that the “sole purpose” of the exclusionary rule “is to deter future Fourth Amendment violations,” the Supreme Court has held that evidence will not be excluded where the officer who obtained the evidence — through an unlawful search or seizure — acted in good faith. Davis v. United States, — U.S. —,
a. Warrants based on illegally obtained information.
‘When a search is conducted pursuant to a warrant that is based on illegally obtained information, a court is not to blindly apply the' good-faith exception.” United States v. Alabi,
When a warrant is tainted by some unconstitutionally obtained information, we nonetheless uphold the warrant if there was probable cause absent that information. An affidavit containing erroneous or unconstitutionally obtained information invalidates a warrant if that information was critical to establishing probable cause. If, however, the affidavit contained sufficient accurate or untainted evidence, the warrant is nevertheless valid.
United States v. Sims,
b. United States v. Leon.
In United States v. Leon, the Supreme Court faced the question whether to apply the good-faith exception when a police officer mistakenly thought a warrant, from which he obtained evidence, was supported by probable cause. See
“The Tenth Circuit, therefore, now applies the rule that, in cases where the police obtained a warrant but the affidavit supporting the warrant does not establish probable cause, suppression of the evidence found is inappropriate so long as the officers relied on the warrant in good faith.” United States v. Martinez,
[T]he suppression of evidence obtained pursuant to a warrant should be ordered only in those unusual cases in which exclusion will further the purposes of the exclusionary rule[.] Where an officer acting with objective good faith obtains a search warrant from a detached and neutral magistrate and the executing officers act within its scope, there is nothing to deter.
United States v. Tuter,
First, evidence should be suppressed if the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false if not for his “reckless disregard for the truth.” Second, the exception does not apply when the “issuing magistrate wholly abandon[s his] judicial role.” Third, the good-faith exception does not apply when the affidavit in support of the warrant is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Fourth, the exception does not apply when a warrant is so facially deficient that the executing officer could not reasonably believe it was valid.
United States v. Danhauer,
c. Herring v. United States.
In Herring v. United States, officers arrested Herring pursuant to an arrest warrant listed in the Dale County, Alabama, warrant database. See
The Supreme Court affirmed the district court’s denial of Herring’s motion to suppress, based primarily on the good-faith exception to the exclusionary rule. See
d. Davis v. United States.
In Davis v. United States, the Supreme Court confronted the question of whether to apply the exclusionary rule when police conduct a search in objectively reasonable reliance on binding judicial precedent. See
The Supreme Court determined that the “acknowledged absence of police culpability dooms [the defendant’s] claim.” See Davis v. United States,
2. The Inevitable Discovery Exception. .
Under the inevitable discovery exception, “illegally obtained evidence may be admitted if it ‘ultimately or inevitably would have been discovered by lawful means.’ ” United States v. Christy,
In Cunningham and Souza we applied inevitable discovery to situations like the one here — where there was “one line of investigation that would have led inevitably to the obtaining of a search warrant by independent lawful means but was halted prematurely by a search subsequently contended to be illegal.” Cunningham,413 F.3d at 1204 n. 1. In Cunningham, police searched the defendant’s home after getting his consent. Id. at 1202. The defendant later contested the search, claiming his consent was coerced. Id. We held that even if the search was illegal, the evidence was admissible because the officers “would have obtained a search warrant” if the search had not occurred. Id. at 1205. In Souza, police illegally opened a UPS package that contained drugs.223 F.3d at 1200, 1202 . We held the evidence admissible under inevitable discovery because the officers “would have obtained a warrant” had the illegal search not occurred. Id. at 1206. Thus, our case law does not require a second investigation when the first (and only) investigation would inevitably have discovered the contested evidence by lawful means.
Thus, lest there be any doubt, we reaffirm the notion that inevitable discovery requires only that the lawful means of discovery be “independent of the constitutional violation,” [U.S. v.] Larsen, 127 F.3d [984] at 987 [(1997)], and conclude that a second investigation is not required.
United States v. Christy,
In United States v. Souza, the Tenth Circuit “set forth the standard for considering whether the inevitable discovery doctrine applies to a warrantless search,” United States v. Cunningham,
1) the extent to which the warrant process has been completed at the time those seeking the warrant learn of the search; 2) the strength of the showing of probable cause at the time the search occurred; 3) whether a warrant ultimately was obtained, albeit after the illegal entry; and 4) evidence that law enforcement agents “jumped the gun” because they lacked confidence in their showing of probable cause and wanted to force the issue by creating a fait accompli.
United States v. Souza,
[T]he prerequisite to a consideration of the inevitable discovery exception in these cases, steps taken to obtain a warrant prior to the unlawful search, is present in this case. Special Agent Rowden took steps to alert his office that he would be coming back to prepare a warrant for the package and made sure that the affidavit form would be ready when he got back to his office. Also, the package was specifically placed on the floor behind Detective Sloan for the purpose of obtaining a warrant.
[A]t the time the illegal search occurred, probable cause to believe the package contained contraband was extremely strong. The package itself contained several suspicious characteristics, including all of the openings on the box being heavily taped, the box having been sent through third party shipping, the sender having only used a first name, and the box being solid so that no side of it could be compressed. Moreover, the box was alerted to by a certified narcotics dog, which is itself sufficient to create probable cause.
very reluctant to apply the inevitable discovery exception in situations where the government fails to obtain a search warrant and no exception to the warrant requirement exists, in this case the inevitability of discovery of the evidence convince[d] [it] that [the case before it was] one of those occasions when the doctrine should apply.
In United States v. Owens, the Tenth Circuit emphasized the “danger of admitting unlawfully obtained evidence on the strength of some judge’s speculation that it would have been discovered legally anyway.”
Several factors suggest that motel employees performing routine cleaning may not have inevitably discovered the cocaine. First, if the [motel]’s staff had cleared [the defendant’s] room, they would not necessarily have opened and searched all his luggage and closed containers. In fact, such an intrusion would have been a significant invasion of his privacy. Second, even if the room hadbeen cleared and the white powder inside the closed bag had been discovered by the motel staff, the lack of any police involvement in routine room cleanings suggests that police discovery of the evidence would not have been inevitable. The evidence certainly does not demonstrate that the [motel]’s staff would necessarily have recognized the powder as cocaine or have called the police if they had so recognized it. Finally, absent the unlawful search, [the defendant] might have posted bail on the charge of receiving stolen property and could have returned to his motel room before either the cleaning staff or the police discovered the contraband. Alternatively, a friend could have returned to claim the closed bag.
United States v. Owens,
In United States v. Cunningham, the Tenth Circuit “applied] the inevitable discovery doctrine, ... because [it was] convinced that without Mr. Cunningham’s disputed consent, the warrant to search his house would have been issued and the incriminating evidence would have been discovered.”
Here, the officers took substantial steps to obtain a warrant before the contested search occurred. The record demonstrates that they had focused their investigation on 1175 and 1179 East 76th Terrace, and had drafted an affidavit to support a search warrant for one of these homes. As a result of their conversation with the AUSA, the officers decided that further surveillance on the two homes was necessary before they specifically selected one to search, and they proceeded to conduct that surveillance immediately. The officers’ actions clearly indicate they took steps to obtain a search warrant and that they intended to obtain the warrant for either 1175 or 1179 East 76th Terrace as soon as possible.
The officers also possessed strong probable cause for their search of 1179 East 76th Terrace by the time Mr. Cunningham arrived at the home. Prior to that time, they had acquired background information about the alleged check-writing ring, narrowed their investigation to one residential block, and focused on the two homes sharing a common driveway. The officers’ surveillance had uncovered the following additional information: a red car containing two individuals identified earlier in the investigation arrived, parked briefly, and then pulled out from behind 1179 East 76th Terrace; a black pickup truck previously observed in the investigation was stopped containing Mr. Cunningham, who said that he lived at 1179 East 76th Terrace; the residents of 1175 East 76th Terrace told officers that the home next door had been receiving all of the traffic that evening, and the officers ruled out 1175 East 76th Terrace as the location visited by the alleged check supplier; and a gray Blazer previously observed in the investigation was seen parked by 1179 East 76th Terrace. The government thus had sufficient probable cause for a search of 1179 East 76th Terrace at the time of Mr.Cunningham’s disputed consent to search his home.
There is also no evidence the officers “jumped the gun” due to a lack of confidence about probable cause and out of a desire to force the issue. Instead, the record indicates that the search occurred at the time it did because of the coincidental arrival of Mrs. Cunningham. Her presence on the scene led to a series of events that culminated in her son’s release from jail, his return home, and his consent to search. As a result, we are satisfied the government has demonstrated that, as in Souza, but for Mrs. Cunningham’s arrival at 1179 East 76th Terrace on the evening of the search, the officers would have obtained a search warrant and the evidence in question would have been found.
In United States v. Christy, the Court applied the four United States v. Souza factors and determined that the inevitable discovery exception applied. Regarding the first factor — the extent to which the warrant process had been completed at the time those seeking the warrant learn of the search — the Court stated: “The deputies did not take any steps to obtain a warrant before entering Christy’s residence. The United States concedes that they did not attempt to obtain a warrant before entering Christy’s residence.... This factor thus weighs against applying the inevitable discovery exception.”
The Court finds that [Investigator Car-vo] had strong probable cause that Christy committed crimes. At the time of the search, Carvo believed he had probable cause for the California crime of unlawful sexual intercourse, because Christy and K.Y. exchanged naked pictures through electronic mail transmissions over the internet and then arranged a meeting in the middle of the night for K.Y. to run away with Christy.
Because [the officer] knew that K.Y. and Christy were exchanging naked pictures, “the belief that there was a sexual relationship or sexual interest between the two was reasonable.” Amended Memorandum Opinion and Order at 57. These circumstances are sufficient to form “a reasonable ground for belief of [Christy’s] guilt,” ... for the California crime of unlawful sexual intercourse.
[The officer] also had strong probable cause for the federal crime of coercion or enticement. Carvo believed that he had probable cause for the federal crime of enticement or coercion, because of Christy’s and K.Y.’s communications through the internet and electronic mail transmissions, because Christy sent K.Y. naked pictures of himself and solicited pictures of K.Y., which showed her breasts, and because cellular telephone evidence shows that Christy traveledacross state lines to bring KY. to New Mexico.
Because [the officer] knew that Christy and K.Y. communicated through electronic mail transmissions, that Christy sent K.Y. naked pictures , of himself and solicited pictures of KY., because evidence showed that Christy traveled across state lines with KY., and, because Carvo had strong probable cause that Christy committed the California crime of unlawful sexual intercourse, Carvo had “a reasonable ground for belief of [Christy’s] guilt,” ... for the federal crime of coercion or enticement. Because Carvo had strong probable cause for the- California crime of unlawful sexual intercourse and for the federal crime of enticement or coercion, this factor weighs in favor of application of the inevitable discovery doctrine.
The deputies “ultimately did obtain a warrant, albeit based in part on information retrieved” from Littlefield’s actions of peering through a crack in the blinds in Christy’s window, and from the deputies’ entry into Christy’s residence and subsequent interview of Christy. United States v. Cunningham,413 F.3d at 1205 . Although portions of the affidavits supporting the warrants were based on information the Court has found illegally obtained, the affidavits also included information from the California investigation. Although the Tenth Circuit appears to rely on illegally obtained information in its inevitable discovery analysis, the Court does not believe that it can do so. Carvo had strong probable cause that Christy committed California and federal crimes, and Carvo’s probable cause was based on his investigation, and not on any information he learned from the BCSO or from the Albuquerque FBI.... Because Carvo had strong probable cause for a California crime and a federal crime, based on information that he learned in his investigation, and not based on information he learned from the BCSO or from the Albuquerque FBI, Carvo would have obtained search warrants that were not based on illegally obtained information. Based upon Carvo’s belief that he had probable cause for both violations of California state law and violations of federal law, he would “have asked [the Bernalillo County Sheriffs Office (“BCSO”) and/ or — either one — the FBI to obtain a search warrant for [Christy’s] Albuquerque residence, vehicle, computers, cell phones, things of that nature.” ... If the BCSO or Albuquerque FBI were not able to obtain a search warrant for these locations, Carvo would have .written a federal search warrant himself and come to the District of New Mexico to seek the warrant with himself as the affiant. ... Carvo is cross designated to acquire both state and federal search warrants. ... This factor thus weighs in favor of application of the inevitable-discovery doctrine.
United States v. Christy,
There is “no evidence that the officers ‘jumped the gun’ due to a lack of confidence about probable cause and out of a desire to force the issue.” United States v. Cunningham,413 F.3d at 1205 . The record indicates that the search occurred when it did because the deputies believed that they had exigent circumstances to enter Christy’s residence. This factor thus weighs in favor of application of the inevitable discovery doctrine.
United States v. Christy,
On appeal, the Tenth Circuit affirmed the Court’s decision. See
The district court found that Officer Carvo knew that K.Y. was a minor, there was a large age difference between her and Mr. Christy, the two exchanged sexually explicit pictures, and that Mr. Christy traveled across state lines with K.Y.. Given those factual findings, it is a reasonable inference that a sexual relationship existed between Mr. Christy and K.Y. Officer Carvo also knew that K.Y. was potentially suicidal, had left her depression medication behind, and ran away from home with Mr. Christy.... Based on that knowledge, Officer Carvo’s belief that K.Y. was at risk for sexual victimization and assault was reasonable. Thus, Officer Carvo had reasonable grounds to believe that Mr. Christy engaged in sexual activity in violation of California law and coerced or enticed K.Y. to travel across state lines to engage in criminal sexual activity in violation of federal law.... The district court was correct in weighing this factor in favor of applying inevitable discovery.
United States v. Christy,
Mr. Christy argues that the deputies “jumped the gun” by^ forcing entry into his home due to their lack of confidence about probable cause.... Yet as the district court found, no evidence supports the theory that the deputies forced entry for that reason.... Instead, the deputies forced entry because'they believed K.Y. was in danger.... Mr. Christy argues that the search was not in fact justified by exigent circumstances and points to the district court’s conclusion that it was not.... But that is beside the point. The record fully supports the reasonableness of the deputies’ assessment of danger. The district court was correct in weighing this factor in favor of the government.
United States v. Christy,
ANALYSIS
The Court will deny the Motion. The Court concludes that Loera may seek suppression of the child pornography evidence, because he admitted that the CDs and laptop on which the agents discovered child pornography were within his control and possession. when the agents seized them. The Court holds that the First Warrant satisfies the Fourth Amendment’s particularity requirement, because it limits the agents’ search to evidence of computer
I. LOERA MAY SEEK SUPPRESSION OF THE CHILD PORNOGRAPHY.
Loera may seek suppression of the child pornography. In its Response, the United States argues that Loera fails to establish the requisite standing to seek suppression of the child pornography, because he had not asserted á possessory interest in the evidence that he seeks to suppress. See Response at 6-7. In his Reply, Loera admits that the CDs and laptop on which the agents discovered child pornography were within his control and possession when the agents seized them. See Reply at 1. At the August 19, 2014, hearing, the United States conceded that, given Loera’s admission in his Reply, he had sufficient standing to move to suppress the child pornography evidence. See Aug. 19, 2014 Tr. at 314:21-315:3 (Tuckman).
The Court notes that, in Minnesota v. Carter, the Supreme Court recognized that Rakas v. Illinois put an end to the Fourth Amendment standing analysis as separate from the substantive Fourth Amendment search analysis:
The Minnesota courts analyzed whether respondents had a legitimate expectation of privacy under the rubric of “standing” doctrine, an analysis that this Court expressly rejected 20 years ago in Rakas [v. Illinois].... Central to our analysis [in Rakas v. Illinois] was the idea that in determining whether a defendant is able to show the violation of his (and not someone else’s) Fourth Amendment rights, the “definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.”
Minnesota v. Carter,
Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of “standing,” will produce no additional situations in which evidence must be excluded. But we think the better analysis forthrightly focuses on the extent of a particular defendant’s rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing.
Rakas v. Illinois,
Given that the United States has conceded that Loera has sufficient standing to seek suppression of the child pornography evidence and that the agents’ opening of files on the media devices found at Loera’s residence constitute Fourth Amendment searches, the Court finds that Loera may seek to suppress the child pornography.
II. THE FIRST WARRANT SATISFIED THE FOURTH AMENDMENT’S PARTICULARITY REQUIREMENT.
The Court concludes that, the First Warrant was sufficiently particular. Loera contends that the First Warrant did not. meet the Fourth Amendment’s particularity requirement, because it failed to “specify as nearly as possible the distinguishing characteristics of the goods to be seized.” Aug. 19, 2014 Tr. at 298:24-299:4 (Serna) (citing Cassady v. Goering). Loera asserts that “[t]he agents’ testimony that [the First Warrant] did not contain a restriction pertaining to time or dates of the files ... supports invalidation of the warrant” for lack of particularity. Supplement to Reply at 6-7. Moreover, Loera argues that the First Affidavit “contained no basis for probable cause to believe that evidence of wire fraud or unlawful interception of wire communications would be found in graphic image or video files.” Memorandum at 5 (citing United States v. Sells,
The United States responds that “the Tenth Circuit has ‘adopted a somewhat forgiving stance’ ” when faced with particularity challenges to warrants authorizing computer searches. Response at 6 n.4 (quoting United States v. Grimmett,
The Fourth Amendment mandates that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. The “manifest purpose” of the particularity requirement is “to prevent general searches.” Maryland v. Garrison,
The Tenth Circuit has emphasized that “practical accuracy rather than technical precision controls the determination of whether a search warrant adequately describes the place to be searched.” United States v. Burke,
In United States v. Burgess, for example, the warrant authorized a search of “computer records,” and “items of personal property which would tend to show conspiracy to sell drugs, including pay-owe sheets, address books, rolodexes, pagers, firearms and monies.”
The First Warrant was sufficiently particular. Similar to the warrant in United States v. Burgess, the First Warrant “was not overly broad,” because it “contained sufficiently particularized language creating a nexus with the crime[s] to be investigated”: computer fraud and electronic mail hijacking.
Under the circumstances of the case, the agents had no information with which they could have provided further clarity in the search warrant — for example, by specifying the extensions, dates, or names of the files that they would need to search to uncover evidence of electronic mail hijacking and computer fraud. They had no idea what computer equipment or electronic devices that Loera would have used to access his electronic mail accounts, the hijacked electronic mail account, or the Domain, or where he could have concealed evidence that he had done so. Evidence of electronic mail hijacking and computer fraud could have been hidden on CDs, external hard drives, USB drives, cellular telephones, desktop or laptop computers, DVDs, or floppy disks. Usernames, passwords, electronic mail transmissions, or attachments to hijacked electronic mail transmissions could be saved in the form of electronic mail files (e.g., .msg, .dbx, .eml, and .mbox extensions), ' word processing files (e.g., .doc, .docx, .wpd, .rtf, .txt, and .wps extensions), spreadsheet files (e.g., .xls or .xlsx extensions), database files (e.g., accdb, .mdb, idb, and .wdb extensions), internet files (e.g., .html, .mhtml, .xml extensions), or image files (e.g., .jpg, .bmp, .gif, and .tiff extensions), to name just a few.
Moreover, the agents had no way of knowing whether Loera had changed the extensions of incriminating files to conceal their real file types. As the United States Court of Appeals for the Ninth Circuit explained in United States v. Hill,
The agents also had no way to know the names of the files in which Loera saved incriminating evidence — making a prospective limitation on the names of files that could be searched impractical. As the United States Court of Appeals for the Third Circuit explained in United States v. Highbarger,
The agents also could not feasibly limit their search to a particular date range. Both Cravens and Nishida testified that the last-modified and created dates on files could be changed either intentionally or unintentionally. See May 20, 2014 Tr. at 64:4-24 (Cravens, Tuckman) (stating that he did not limit his search to files created after July, 2009, because he believed that the file dates could have been changed, or inaccurate); May 20, 2014 Tr. at 164:8-11 (Nishida) (explaining that he did not limit his search to files created after July 2009, because the First Warrant did not contain a date restriction, and because he believed that “there could easily be evidence of the crime that doesn’t fit in that data range”). As an example, Cravens explained that, if you manually change the date on your computer, “it would change all files created or modified after that, the dates would be different, and incorrect.” May 20, 2014 Tr. at 64:19-21 (Cravens). Nishida testified that there are a number of ways in which individuals can change the dates of files on CDs: “[S]ome software will allow you to burn the date, use the dates that were on the hard drives for the files, or use a date that the CD was burned, or you could pick an arbitrary date and just type it in while you’re burning ... the CD.” May 20, 2014 Tr. at 219:19-24 (Nishida). Given the ease with which an individual may change the file dates on his or her computer, and the fact that this case concerned electronic mail hijacking and computer fraud — crimes that inherently involve using technology to deceive others — ■ the First Warrant could not have imposed a date,restriction without running the risk of losing a significant amount of relevant evidence.
Moreover, although the Tenth Circuit has not directly addressed the issue, multiple Tenth Circuit cases have found search warrants sufficiently particular despite not specifying a date range. See, e.g., United States v. Walser,
The breadth of paragraph 3 of Attachment B similarly does not lead the Court to conclude that the First Warrant lacks sufficient particularity. Paragraph 3 states: '
For any computers, cell phones, tablets, computer hard drives, or other physical objects upon which computer data can be recorded/stored (hereinafter, “COMPUTER”) that is called for by this warrant, or that might contain things otherwise called for by this warrant:
a. evidence of who used, owned, or controlled the COMPUTER at the time the things described in this warrant were created, edited, or deleted, such as logs, registry entries, configuration files, saved usernames and passwords, documents, browsing history, user profiles, email, email contacts, “chat,” instant messaging logs, photographs, and correspondence; ,
g. contextual information necessary to understand the evidence described in this attachment.
Attachment B ¶ 3, at 3. At first blush, these sections appear to allow the agents to search seemingly every file on every device discovered at Loera’s residence. Consequently, these provisions are similar to the warrant that the Tenth Circuit found invalid in United States v. Riccardi, which “permitted the officers to search for anything — from child pornography to tax returns to private correspondence.”
First, unlike the warrant in United States v. Riccardi, which was not limited to any federal crime, both the context of the First Warrant and the executing agents’ understanding of the scope of the First Warrant demonstrate that these sections were limited to evidence of computer fraud and electronic mail hijacking. Paragraph 3.a. restricts the agents’ search to “evidence of who used, owned, or controlled the COMPUTER at the time the things described in this warrant were created, edited, or deleted.” Attachment B ¶3.&, at 3 (emphasis added). Paragraph 3.g. restricted the agents’ search to “contextual information necessary to understand the evidence described in this attachment.” -Attachment B f3.g., at 3 (emphasis added). When read with the rest of Attachment B, it is evident that these sections were limited to evidence of computer fraud and electronic mail hijacking. See, e.g., Attachment B ¶ 1, at 2 (stating “[a]ll records, in any form, relating to violations of Title 18 U.S.C. § 2511 ... and Title 18 U.S.C. § 1030....”); Attachment B ¶ 2, at 3 (stating “[a]ny computers that could have been used as a means to commit the offenses described on the warrant....”); Attachment B ¶4, at 3 (stating “[rjecords and things evidencing the use of computers and/or the intent to commit the fraud activity described in the Search Warrant Affidavit”). The executing agents’ testimony at the suppression hearing — that the First Warrant authorized them only to find and seize evidence of computer fraud and electronic mail hijacking — also reinforces this interpretation. See May 20, 2014 Tr. at 53:7-11 (Cravens; Tuckman); id. at 152:6-8 (Nishida, Tuckman); id. at 160:5-11 (Ni-shida, Tuckman).
Second, unlike the warrant in United States v. Riccardi, which “did not describe the objects of the search with as much specificity as the government’s knowledge and circumstances allow[ed],”
Other United States Courts of Appeals have upheld similar sections of search warrants that seek “indicia of occupancy.” In United States v. Blakeney,
Regarding paragraph 3.g., the agents did not possess any additional information that would have allowed them to further specify the contextual information that would assist them in understanding the evidence seized. Because the agents did not know what devices they would encounter, in what file formats they would find this information, when this information was created or last-modified, or where it would be saved, the First Warrant was made “with as much specificity as the government’s knowledge and circumstances allow[ed],” United States v. Leary,
III. THE AGENTS’ ON-SITE PREVIEW OF LOERA’S CDS DURING THE EXECUTION OF THE FIRST WARRANT ON NOVEMBER 20, 2012, WAS WITHIN THE FIRST WARRANT’S SCOPE.
The Court concludes that the agents’ preliminary preview of Loera’s CDs during the execution of the First Warrant was within the First Warrant’s scope. The Court holds that the First Warrant authorized the agents to open image and video files. Moreover, the Court concludes that the First Warrant authorized the agents to open files dated before July 29, 2011.
A. THE FIRST WARRANT AUTHORIZED THE AGENTS TO OPEN IMAGE AND VIDEO FILES.
The Court holds that the First Warrant authorized Cravens and Nishida to open image and video files. Loera contends that the First Warrant limited the scope of the November 20, 2012, search to “evidence pertaining to ... unlawful interception of wire communications and fraud-in relation to computers.” Memorandum at 4. Loera points out that the- First Affidavit did not allege that Estrada intercepted images or videos through the electronic mail accounts at the Domain. See Supplement to Reply at 7. Loera contends that, accordingly, Nishida and Cravens went beyond the scope of the First Warrant when they opened image and video files on Lo-era’s CDs. See Supplement to Reply at 7. In Loera’s view, the agents should have used software to restrict their searches to text files. See Aug. 19, 2014 Tr. at 287:23-288:4 (Serna); id. at 290:12-292:14 (Serna).
It is unrealistic to expect a warrant to prospectively restrict the scope of a search by directory, filename, or extension or to attempt to structure search methods' — 'that process must remain dynamic .... [Ijllegal activity may not be advertised even in the privacy of one’s personal computer — it could be well coded or otherwise disguised.
Response at 7 n. 5 (quoting United States v. Burgess,
The Tenth Circuit has held that a computer search “may be as extensive as reasonably required to locate the items described in the warrant.” United States v. Grimmett,
Paragraph 3.a. also authorizes the agents to open video files. A reasonable interpretation of “evidence of who used, owned, or controlled the [seized items] at the time the things described in this warrant were created, edited, or deleted” includes video files, because those files could contain videos made by and/or of the individuals who used, owned, or controlled the media seized from Loera’s residence dur
Loera’s argument that the agents should have seized all of the items from Loera’s residence to analyze them at an FBI laboratory using search-limiting software similarly lacks a sound basis in the law. Loera conceded as much when he stated that his “argument is not that there is some constitutional requirement that ... the law enforcement take everything back to the lab,” but instead that it would have been practical for them to do so. Aug. 19, 2014 Tr. at 323:22-25 (Serna). The law does not require law enforcement to use the least restrictive means or search-limiting software to execute a search warrant. Cf. United States v. Brooks,
B. THE FIRST WARRANT AUTHORIZES THE AGENTS TO OPEN FILES WITH LAST-MODIFIED DATES BEFORE JULY 29, 2011.
The Court concludes that the First Warrant authorizes Cravens and Ni-shida to open files with last-modified dates before July 29, 2011. Loera argues that there are three problems with the agents’ decision to disregard the file dates in searching Loera’s CDs. See Supplement to Reply at 4. First, Loera contends that disregarding the file dates turned the First Warrant into a “general exploratory warrant” that the Tenth Circuit and the Supreme Court have found unconstitutional. Supplement to Reply at 4. Second, Loera argues that, contrary to the United States’ assertion that the First Warrant does not put any restriction on time or dates, the First Affidavit seeks only electronic mail transmissions sent “during the period of time the Domain is believed to have been compromised by [Loera and Estrada] ” — which began on July 29, 2011. Supplement to Reply at 5 (emphasis in Supplement to Reply but not source) (quoting First Affidavit at 8). Loera asserts that, “[consequently, regardless of what method, manner or mode used by government agents to view or search Mr. Loera’s storage media or computer, the November 19 search warrant could not and did not authorize opening any files
Third, Loera challenges the United States’ contention. that the agents could disregard the file dates, because they could have been changed. See Supplement to Reply at 6. Loera argues that there was “not a single indication” in the First Warrant that the dates of the files on Loera’s CDs were changed. Supplement to Reply at 6. Loera also highlights that Nishida testified that there was no evidence that the file dates on Loera’s CDs had been changed. See Supplement to Reply at 6 (citations omitted). Loera explained that he was not arguing that the file dates on Loera’s laptop and CDs are “off somewhat.” Aug. 19, 2014 Tr. at 297:18-19 (Serna). Instead, Loera asserted that there is a two-to-three year difference between the alleged electronic mail hijacking and' computer fraud on which the First Warrant focuses — which began in 2011— and the files that Cravens and Nishida opened — which contain last-modified dates from 2008 and 2009. See Aug. 19, 2014 Tr. at 297:19-298:2 (Serna). In Loera’s view, given this difference, the First Warrant did not permit Cravens and Nishida to open these files.
Loera’s arguments have no sound basis in law or fact. Multiple sections of the Fir’st Warrant explicitly authorize the agents to open files on Loera’s media without specifying a date range. For example, Paragraph 1 of Attachment B doe's not contain a date restriction: “[a]ll records, in any form, relating to violations of Title U.S.C. § 2511 (Interception and disclosure of wire, oral, or electronic communications prohibited) and Title 18 U.S.C. § 1030 (Fraud and related activity in connection with Computers), involving Jason Loera and others.” Attachment B ¶ 1, at 2. Multiple subsections of Paragraph 1 — which provide examples of the information the agents may seize under Paragraph 1 — do not specify a date range:
a. Usernames, passwords, and other account information for email accounts, Google Apps accounts, domain accounts, accounts for credit, ' debit, or gift cards, and online storage accounts;
b. Records which are related to the use of computer programs to re-direct email from one domain to another;
e. Records relating to the provision of internet and phone service;
f. Records showing the technical or computer knowledge.
Attachment B ¶¶ 1.a., b., e., f., at 2. Paragraph 3 of Attachment B does not contain a date restriction: “For any computers, cell phones, tablets, computer hard drives, or other physical objects upon which computer data can be recorded/stored (hereinafter, “COMPUTER”) that is • called for by this warrant, or might contain things otherwise called for by this warrant.” Attachment B ¶ 3, at 3. Neither do the subsections of Paragraph 3. See, e.g., Attachment B ¶ 3.d., at 3 (“[E]vidence of the times the COMPUTER was used.... ”); Attachment B ¶ 3.g., at 3 (“[Cjontextual information necessary to understand the evidence described in this attachment. ...”). Paragraph 7 of Attachment B does not contain a date restriction: “Any and all records in whatever form related to email accounts maintained, controlled or used in any manner by Jason Loera.” Attachment B ¶ 7, at 5. To be sure, a few sections in Attachment B specify a date range for the information sought. For example, paragraph 5 authorizes the agents to search for and seize “[a]ny and all statements for bank accounts, which include transactions from June 1, 2011 to the present.” Attachment B ¶ 5, at 4. Paragraph l.d. similarly al
IV. UNDER TENTH CIRCUIT LAW, WITH WHICH THE COURT RESPECTFULLY HAS SOME CONCERNS, THE AGENTS CONDUCTED AN UNLAWFUL SEARCH WHEN THEY CONTINUED SEARCHING LOERA’S CDS FOR COMPUTER FRAUD AND ELECTRONIC MAIL HIJACKING AFTER THEY DISCOVERED CHILD PORNOGRAPHY.
Under Tenth Circuit law, with which the Court respectfully has concerns, the agents conducted an unlawful search ■when they continued opening files on Lo-era’s CDs after discovering child pornography. Loera contends that the First Warrant did not authorize Cravens and Nishida to continue previewing the CDs after Cravens discovered child pornography. See Memorandum at 8-9 (citing United States v. Carey,
In response, the United States attempts to distinguish this case from United States v. Carey. The United States explains that, in United States v. Carey, after discovering child pornography, the searching officer abandoned his warrant-authorized search for drug-related evidence “to look for more child pornography” — and did not resume his original search for five hours. Response at 9 (quoting United States v. Carey,
The Tenth Circuit has not been clear in indicating what law enforcement officers must do if, while executing a search warrant for ESI, they discover evidence of crimes not sought by the search warrant. In United States v. Carey, a detective obtained a warrant that authorized him to search the defendant’s computer for “names, telephone numbers, ledger receipts, addresses, and other documentary evidence pertaining to the sale and distribution of controlled substances.”
At the suppression hearing, the detective testified that, “although the discovery of the [first child pornography image] was completely inadvertent, when he saw [that image], he developed probable cause to believe the same kind of material was present on the other image files.”
the case turns upon the fact that each of the files containing pornographic material was labeled “JPG” and most featured a sexually suggestive title. Certainly after opening the first file and seeing an image of child pornography, the searching officer was aware — in advance of opening the remaining files — what the label meant. When he opened the subsequent files, he knew he was not going to find items related to drug activity as specified in the warrant.
The Tenth Circuit was careful to state, however, that the result in the case was “predicated only upon the. particular facts of this case, and a search of computer files based on different facts might produce a different result.”
After United States v. Carey, however, the Tenth Circuit faced a similar issue in United States v. Walser in 2001. In United States v. Walser, police officers obtained a warrant to search a defendant’s hotel room for “Controlled substances, evidence of the possession of controlled substances, which may include, but not be limited to ... records, and/or receipts, written or electronically stored, income tax records, checking and savings records, records that show or tend to show ownership or control of the premises.”
In 2009, the Tenth Circuit decided United States v. Burgess. In United States v. Burgess, police officers obtained a warrant to search the defendant’s “computer records” for “evidence to show the transportation and delivery of controlled substances.”
As in United States v. Carey, United States v. Walser, and United States v. Burgess, Nishida and Cravens inadvertently discovered child pornography while searching for evidence of another crime. See May 20, 2014 Tr. at 60:5-7 (Cravens); id. at 158: 20-22 (Nishida, Tuckman). Unlike the officers United States v. Walser and United States v. Burgess, however, Cravens and Nishida did not immediately stop their searches upon discovering child pornography. See May 20, 2014 Tr. at 65:10-17 (Cravens, Tuckman); id. at 116:3-12 (Cravens, Serna); id. at 161:17— 162:18 (Nishida, Tuckman). After discovering child pornography on one of Loera’s CDs, Cravens ejected that CD and continued opening files on Loera’s other CDs to determine if they contained evidence of computer fraud and electronic mail hijacking. See May 20, 2014 Tr. at 61:12-13 (Cravens); id. at 65:10-17 (Cravens, Tuck-man). Cravens later discovered another child pornography image on another of Loera’s CDs. See May 20, 2014 Tr. at 67:18-68:4 (Cravens, Tuckman). Nishida also found child pornography on one of Loera’s CDs. See May 20, 2014 Tr. at 161:17-162:18 (Nishida, Tuckman). After finding child pornography on one of Lo-era’s CDs, Nishida opened two or three
Unlike in United States v. Carey, however, where all of the files that the detective opened after discovering the first child pornography image were clearly labeled as image files and “most featured a sexually suggestive title,”
This case, thus, presents the scenario that Judge Baldock envisioned in his concurring opinion in United States v. Carey, in which he stated that, “if the record showed that [the detective] had merely continued his search for drug-related evidence and, in doing so, continued to come across evidence of child pornography, ... a different result would be required.”
[L]aw enforcement must engage in the intermediate step of sorting various types of documents and then only search the ones specified in the warrant.' Where officers come across relevant documents so intermingled with irrelevant documents that they cannot feasibly be sorted at the site, the officers may seal or hold the documents pending approval by a magistrate of the conditions and limitations on a further search through the documents.
Despite its holding, the Court questions whether the Tenth Circuit intended to announce a bright-line rule that would require every officer who discovers evidence of another crime, while executing a computer search warrant, to immediately cease his or her warrant-authorized search, and obtain another warrant. The Court has four concerns about such a rule.
First, a rule requiring officers to immediately stop their warrant-authorized computer searches upon discovering evidence of another crime conflicts with the Supreme Court’s holding in Horton v. California. In that case, an officer obtained a warrant to search the defendant’s house for the proceeds of a robbery. See
[Ejvenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer. The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant.
Let us suppose officers secure a warrant to search a house for a rifle. While staying well within the range of a rifle search, they discover two photographs of the murder victim, both in plain sight in the bedroom. Assume also that the discovery of the one photograph was inadvertent but finding the other was anticipated .... [I]n terms of the “minor” peril to Fourth Amendment values there is surely no difference between these two photographs: the interference with possession is the same in each case and the officers’ appraisal of the photograph they expected to see is no less reliable than their judgment about the other. And in both situations the actual inconvenience and danger to evidence remain identical if the officers must depart and secure a warrant.” Id. at 516,91 S.Ct. 2022 .
Horton v. California,
Second, the Court finds it difficult to conclude that such a rule would provide any greater Fourth Amendment protections. To conduct a computer search, officers have to satisfy a number of requirements. Before the search, they must provide a neutral Magistrate Judge with sufficient probable cause to believe that the places they intend to search contain evidence of a crime. They must also explain with sufficient particularity the evidence for which they are searching and the items they must search to find it. During the search, the officer cannot act outside the search warrant’s scope — ie., he or she can search only items that may reasonably contain the objects of his warrant-authorized search. For a few hundred years, society has concluded that these requirements provide sufficient protection from unwarranted invasions of privacy by law enforcement.
The Tenth Circuit rule adds an additional, unprecedented, step that would require officers — who have already obtained a warrant and are acting within its scope— to stop what they are doing and obtain a second warrant when they find evidence of another crime. Under this rule, there would be no Fourth Amendment violation where an officer conducts a warrant-authorized computer search, confines his or her search to the scope of the warrant, and finds no evidence of a crime. There similarly would be no Fourth Amendment violation where an officer conducts a warrant-authorized computer search, confines his or her search to the scope of the warrant, and finds only evidence of the crime for which he or she is searching. By contrast, there would be a Fourth Amendment violation where the officer conducts a warrant-authorized computer search, confines his or her search to the scope of the warrant, finds evidence of another crime, and continues searching within the scope of the warrant. There would be a violation despite the officer not viewing any additional information beyond what the search warrant authorizes. Rather than protecting privacy rights, the only discernible impact of this rule would be to make the execution of computer search warrants less efficient.
United States v. Giberson,
(1) records or documents that appear to show ownership of assets or property; (2) records or documents from financial institutions in [the defendant’s] name orthe names of any known or unknown aliases; (3) records and correspondence relating to identification cards; (4) records, documents or correspondence ... related to the use or attempted use of other individual’s identities; (5) correspondence, records and documents relating to [the defendant’s] or his aliases’ earnings and employment; (6) tax records; (7) documents or records showing receipt of income or expenditure of funds; and (8) records referring to [the defendant’s] employer.
the Tenth Circuit suppressed evidence found when an officer, who was supposed to be searching a computer for drug-related documents, stumbled upon child pornography and began to search for more. Id. at 1276. Based on the officer’s own testimony, the court found that the child pornography was not “inadvertently discovered” because the officer had temporarily abandoned the search authorized by the warrant in order to look for child pornography, con- • travening the limitations of the search warrant. Id. at 1273. The court was careful to state that the result in the case (suppression of the evidence) was “predicated only upon the particular facts of this case, and a search of computer files based on different facts might produce a different result.” Id. at 1276 (footnote omitted). A concurring opinion stated that “if the record showed that [the officer] had merely continued his search for drug-related evidence and, in doing so, continued to come across evidence of child pornography, ... a different result would be required.” Id. at 1277 (Baldock, B., concurring).
As the district court concluded, this case “is vastly different from Carey.” [The agent] was authorized to look at images and photographs; after discovering the pornographic images, [the agent] continued with his search for evidence of fake I.D. documents and only inadvertently came across more child pornography. The government only searched for pornographic files after obtaining the third search warrant authorizing it to do so, and the search was therefore reasonable.
The Seventh Circuit reached a similar conclusion in United States v. Mann,
The Seventh Circuit, in an opinion that Judge Rovner authored, and Judges Evans and Tinder joined, found that the detective did not exceed the scope of the search warrant when he continued searching the defendant’s computer for evidence that the search warrant sought. See
To be sure, multiple United States Courts of Appeals have upheld searches where executing officers immediately stopped their warrant-authorized searches upon discovering evidence of an unrelated crime. See, e.g., United States v. Lucas,
Fourth, such a rule would be inappropriate in cases where time is of the essence for the officer executing the original search warrant. For example, if a child is kidnapped and an officer obtains a warrant to search a computer for evidence of the child’s condition or whereabouts, requiring the executing officer to stop searching the computer every time he or she discovers evidence of another crime would take valuable time away from the search effort. Similarly, where an officer obtains a warrant to search a computer for evidence of the location of a terrorist cell or weapons cache, forcing that officer to stop his or her search to obtain another warrant every time he or she discovers evidence of another crime could have catastrophic consequences. In these situations, officers should be allowed to continue their warrant-authorized computer searches even when they encounter evidence of another crime.
Where officers have ample time to pause their warrant-authorized search to obtain another warrant, however, Tenth Circuit
V. THE AGENTS ACTED IN GOOD FAITH WHEN THEY CONTINUED TO SEARCH LOERA’S CDS FOR EVIDENCE OF ELECTRONIC MAIL HIJACKING AND COMPUTER FRAUD AFTER DISCOVERING CHILD PORNOGRAPHY.
The agents acted in good faith when they continued to search Loera’s CDs for evidence of electronic mail hijacking and computer fraud after discovering child pornography. “The fact that a Fourth Amendment violation occurred ... does not necessarily mean that the exclusionary rule applies.” Herring v. United States,
the substantial social costs generated by the rule. Exclusion exacts a heavy toll on both the judicial system and society at large. It almost always requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. Our cases hold that society must swallow this bitter pill when necessary, but only as a last resort. For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.
A. THE AGENTS REASONABLY RELIED ON BINDING APPELLATE PRECEDENT WHEN THEY CONTINUED THEIR WARRANT-AUTHORIZED SEARCHES AFTER FINDING CHILD PORNOGRAPHY.
In United States v. Aguiar,
The Supreme Court’s decision in [U.S. v.] Knotts stood for the proposition that the warrantless use of a tracking device to monitor the movements of a vehicle on public roads did not violate the Fourth Amendment. 460 U.S. [276] at 281-82, 285[,103 S.Ct. 1081 ,75 L.Ed.2d 55 (1983)].... Further, Karo discounted the importance of trespass in placing a device, stating that “a physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated.”468 U.S. at 712-13 ,104 S.Ct. 3296 .... Karo’s de minimis treatment of the trespass issue gave no indication that the issue of trespass would become the touchstone for the analysis in Jones. Moreover, Karo’s brushing off of the potential trespass fits logically with earlier Supreme Court decisions concluding that “the physical characteristics of an automobile and its use result in a lessened expectation of privacy therein.” New York v. Class,475 U.S. 106 , 112,106 S.Ct. 960 ,89 L.Ed.2d 81 ... (1986). Nor is there an expectation of privacy when a car “travels public thoroughfares where its occupants and its contents are in plain view,” Cardwell v. Lewis,417 U.S. 583 , 590,94 S.Ct. 2464 ,41 L.Ed.2d 325 ... (1974). Taken together, law enforcement could reasonably conclude placing a GPS device on the exterior of Aguiar’s vehicles did not violate the Fourth Amendment.
Moreover, we find the beeper technology used in Knotts sufficiently similar to the GPS technology deployed by the government here. See, e.g., Sparks,711 F.3d at 66 (finding defendants failed todistinguish in any substantive way how the installation of a beeper differed from the installation of a GPS device). Like the device at issue in Knotts, the GPS device allows law enforcement to conduct the same sort of surveillance it could conduct visually, but in a more efficient and cost-effective manner. Appellants argue that the GPS surveillance here continued over a period of months, tantamount to the sort of “dragnet type law enforcement practices” the Knotts court specifically declined to address. Knotts, 460 U.S. at 284 ,103 S.Ct. 1081 .... But the record indicates that the GPS device was used to track Agu-iar’s vehicles on public thoroughfares, with technology undertaking an activity that police officers would have physically performed in the past. “Insofar as respondent’s complaint appears to be simply that scientific devices such as the beeper enabled police to be more effective in detecting crime, it simply has no constitutional foundation.” Id.
United States v. Aguiar,
Following the Second Circuit’s analysis in United States v. Aguiar, the Court first determines whether there existed any “binding appellate precedent” on which the agents could reasonably rely when they continued their search — pursuant to the First Warrant — for electronic mail hijacking and computer fraud after discovering child pornography. United States v. Aguiar,
Although the Supreme Court has never addressed the precise question here— whether an officer may continue his or her warrant-authorized search for ESI upon discovering evidence of an unrelated crime — it has upheld similar searches out-
[EJvenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend upon the subjective state of mind of the officer. The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant.
The Court recognizes that “the storage capacity of computers” may require “a special approach,” United States v. Carey,
B. EVEN IF THE AGENTS DID NOT REASONABLY RELY ON BINDING APPELLATE PRECEDENT, THE GOOD-FAITH BALANCING TEST WEIGHS AGAINST EXCLUDING THE EVIDENCE.
Even if Horton v. California is not “binding appellate precedent” under Davis v. United States, the Court may still apply the good-faith exception, because the Tenth Circuit has not limited the good-faith exception to the factual circumstances that the Supreme Court has addressed. In United States v. McCane,
Other Circuits have followed a similar approach. In United States v. Davis,
Contrary to the dissent’s contention, we are not creating a “new, freestanding exception” to the exclusionary rule. Rather, we have faithfully applied the Supreme Court’s precedent, including its recent application of Leon in Herring and Davis. While the dissent refers to the “narrow holding[s]” in those cases, and deems inapplicable the “broad cost-benefit analysis” that underlies those holdings, ... the Supreme Court’s analysis in those cases is not dicta, but is the rationale supporting the Court’s application of the good-faith exclusion.
United States v. Davis,
The whole of our task is not to determine whether Davis applies, nor to “extend” either the good faith exception or Davis’ holding. Even where Davis does not control, it is our duty to consider the totality of the circumstances to answer the “objectively ascertainable question whether a reasonably well trained officer would have known that the search was illegal.” Leon,468 U.S. at 906-07 , 922 n. 23,104 S.Ct. 3405 .... To exclude evidence simply because law enforcement fell short of relying on binding appellate precedent would impermissibly exceed the Supreme Court’s mandate that suppression should occur in only “unusual” circumstances: when it “further[s] the purposes of the exclusionary rule.” Id. at 918,104 S.Ct. 3405 ...
Davis supports this conclusion. In reaching its holding, Davis reiterates the analytical steps for evaluating suppression challenges.131 S.Ct. at 2426-28 . For example, we must limit operation of the exclusionary rule “to situations in which [its] purpose,” deterring future Fourth Amendment violations, is “most efficaciously served.” Id. at 2426.... Our analysis must account for both “[r]eal deterrent value” and “substantial social costs,” and our inquiry must focus on the “flagrancy of the police misconduct” at issue. Id. at 2427.... Only when, after a “rigorous weighing,” we conclude that “the deterrence benefits of suppression ... outweigh its heavy costs,” is exclusion appropriate. Id. Importantly, we must be prepared to “appl[y] this ‘good-faith’ exception across a range of cases.” Id. at 2428.
Davis did not begin, nor end, with binding appellate precedent. Rather, binding appellate precedent informed— and ultimately determined — the Supreme Court’s greater inquiry: whether the officers’ conduct was deliberate and culpable enough that application of the exclusionary rule would “yield meaning-fu[l] deterrence,” and “be worth the price paid by the justice system.” Id. at 2428.... We must conduct the same analysis on the facts before us, even in the absence of binding appellate precedent.
United States v. Katzin,
The Court agrees with the Third Circuit that “[t]o exclude evidence simply because law enforcement fell short of relying on binding appellate precedent” would violate “the Supreme Court’s mandate that suppression should occur in only, ‘unusual’ circumstances: when it ‘furthers the purposes of the exclusionary rule.’ ” United States v. Katzin,
1. The deterrence value of excluding the child pornography evidence is low.
The deterrence value of excluding the child pornography evidence in this case is low for two reasons. First, the Court cannot soundly conclude that Cravens’ and Nishida’s actions “exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights.” Davis v. United States,
Second, the agents reasonably could have interpreted the legal precedent on this issue — both in the Tenth Circuit and nationwide — as permitting them to contin
The agents also could have reasonably relied upon the non-binding decisions of the United States Courts of Appeals that have addressed this issue, all of which have found similar searches constitutional. See United States v. Peltier,
the officer continued his warrant-authorized search of the defendant’s computer for evidence of “making threats and computer harassment” after discovering child pornography); United States v. Miranda,
[P]olice and the FBI (or lawyers advising them) often rely on precedent from one circuit when another has yet to address a question. One can doubt that much deterrence is to be had from telling the police that they are not entitled to rely on decisions issued by several circuits, just because the circuit covering the state in which [the investigation occurred] lacks its own precedent.
United States v. Brown,
The Court recognizes that excluding evidence where law enforcement officers conduct searches or seizures in the absence of binding appellate precedent would have some deterrent value. Doing so would be perhaps the most expedient way to educate law enforcement about the existence of a new constitutional rule. It would prevent law enforcement from engaging in aggressive readings of non-binding authority and force them to err on the side of caution in the face of constitutional uncertainty. It would likely even encourage law enforcement officers to follow closely the Fourth Amendment cases coming from the Tenth Circuit. In the Court’s view, however, excluding evidence not because of any culpable conduct, but instead to educate law enforcement officers about a new rule in Fourth- Amendment jurisprudence, runs counter to the Supreme Court’s good-faith jurisprudence. See, e.g., Davis v. United States,
Instead, analyzing whether the officer’s conduct was objectively reasonable in light of the existing authority — both binding and non-binding — at the time the officer conducted the search or seizure, addresses these concerns while respecting the Supreme Court’s good-faith analysis. Under that framework, where the officer’s interpretation of the existing authority constitutes a “deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights,” suppression may be warranted to deter that conduct. Davis v. United States,
No doubt, sometimes officers’ reliance on non-binding authorities will fall short of an “objectively reasonable” good faith belief in the legality of their conduct. Suppression may then be appropriate to deter such reliance. It is equally elementary that close cases will be difficult. But in many other cases, law enforcement will likely correctly conclude, based, upon a panoply of non-binding authority establishing a “constitutional norm,” Peltier,422 U.S. at 542 ,95 S.Ct. 2313 , that a particular police practice does not violate the Fourth Amendment. The value in deterring such conduct is low.
United States v. Katzin,
Because of the agents’ testimony that they believed that the First Warrant authorized them to continue searching for evidence of computer fraud and electronic mail hijacking after they discovered child pornography, because of the lack of clarity in Tenth Circuit precedent on this issue, and because every United States Courts of Appeals to address this issue has approved of the agents’ conduct, the Court concludes that the deterrence value of excluding the child pornography evidence in this case is low.
2. The social costs of excluding the child pornography evidence in this case are high.
The Supreme Court has stated that the good-faith analysis “must account for the substantial social costs generated by the [exclusionary] rule.”
United States v. Katzin, which the Third Circuit decided, is the only case to address what factors courts should consider in determining the social costs of applying the exclusionary rule. Rather than weighing the society-wide implications of excluding evidence, the Third Circuit focused on the amount of evidence that would be excluded in that case, and the effect of exclusion on the government’s case. See. United States v. Katzin,
To determine the social costs of excluding the child pornography evidence, the Court will follow the Third Circuit’s approach in United States v. Katzin. If the Court were to use general societal costs— rather than case-specific costs — the costs of exclusion would likely always outweigh the benefits for those who dislike the exclusionary rule and the benefits would outweigh the costs where the court is favorable to the exclusionary rule; the analysis would, therefore, lack any principled rule. Accordingly, the Court will focus on: (i) the amount of reliable evidence that would be suppressed; and (ii) the role that such evidence would likely play in the United States’ case.
First, exclusion would prevent the fact-finder from considering a large volume of relevant and reliable evidence. Nishida found over 730 images and forty movies of child pornography on Loera’s laptop — so many that he eventually stopped counting them. See May 20, 2014 Tr. at 186:22-25 (Nishida, Tuckman); id. at 186:25-187:5. Nishida also discovered approximately 330 images and two movies of suspected child pornography on Loera’s CDs. See Apr. 19, 2013, Examination Report at 2. The Court also has no reason to believe this evidence is unreliable. Forensic experts from the FBI obtained it, and there are no allegations anyone has altered or tampered with it in any way. Accordingly, granting suppression in this case would keep a staggering amount of relevant and reliable information from the factfinder.
Second, because the United States has charged Loera only with possession of child pornography, the United States would likely not have a case without the child pornography itself. See Superseding Indictment at 1-2, filed January 9, 2014 (Doc. 25) (“Superseding Indictment”). Although the Court does not purport to know the United States’ trial strategy or what other evidence the United States has or will obtain during its investigation, by all appearances, the United States’ case rests entirely on this child pornography evidence. These considerations indicate, therefore, that the costs of exclusion in this- case would be high and case determinative.
Even if the Court focused solely on the broader, society-wide costs of applying the exclusionary rule, it would conclude that the social costs are high and exclusion is unwarranted. The exclusionary rule “provides a remedy only for defendants where incriminating evidence was actually found against them — those who are thus most likely to be actually guilty — and fails to provide any remedy to citizens against whom unconstitutional searches were conducted where no such evidence was found — those most likely to be actually innocent.” Tonja Jacobi, The Law and Economics of the Exclusionary Rule, 87 Notre Dame L.Rev. 585, 588 (2011). Consequently, the exclusionary rule’s “bottom-line effect, in many eases, is to ... set the criminal loose in the community without punishment.” Davis v. United States,
the cost of the exclusionary rule must also be accounted for in terms of judicial legitimacy — when evidence is excluded, judges are seen as engaging in behavior other than a quest for the truth, and I would expect that while lawyers are ready to think about the other important roles the court plays as part of an overall system, the lay public is not.
Richard E. Myers II, Fourth Amendment Small Claims Court, 10 Ohio St. J.Crim. L. 571, 583 (2013). Given these considerations, the general societal costs of excluding the child pornography evidence would be high. Thus, whether the court focuses on the specific costs of applying the exclusionary rule in this case or the general societal costs of applying the exclusionary rule in all cases, the result here is the same: the costs of applying the exclusionary rule in this case are high.
Given the low deterrence value of excluding evidence where the agents’ actions
VI. THE FIRST WARRANT DID NOT PERMIT CRAVENS TO OPEN FILES ON LOERA’S CDS ON NOVEMBER 27, 2012, FOR THE LIMITED PURPOSE OF PROVIDING JUDGE SCHNEIDER A DESCRIPTION OF FOUR IMAGES DEPICTING CHILD PORNOGRAPHY IN HIS SEARCH WARRANT AFFIDAVIT.
The First Warrant did not permit Cravens to open files on Loera’s CDs on November 27, 2012, for the limited purpose of providing Judge Schneider a description of four images depicting child pornography in the Second Affidavit. Lo-era argues that Cravens’ November 27, 2012, search of Loera’s CDs exceeded the First Warrant’s scope. See Memorandum at 10-11. Loera argues that “[t]hese ... searches for child pornography were not within the scope of the November 19 warrant for evidence of wire fraud and unlawful interception of electronic communications.” Memorandum at 11. The United States concedes that, “[generally, law enforcement engaged in a lawful search[,] who wish to abandon that search and begin a focused search for child pornography, need to obtain a search warrant before beginning a child pornography search.” Response at 11 (citations omitted).
“A Fourth Amendment search occurs either where the government, to obtain information, trespasses on a person’s property or where the government violates a person’s subjective expectation of privacy that society recognizes as reasonable to collect information.” Ysasi v. Brown,
The United States does not contest that Cravens searched Loera’s CDs on November 27, 2012. The United States’ position is that Cravens’ “limited review of some files so that he could include a brief description in his affidavit did not rise to the level of an unlawful search outside the scope of the First Warrant.” Response at 11. The United States does not cite — and the Court has been unable to find — a case in which a court has upheld a search for the limited purpose of providing a description of the items searched in a search warrant affidavit. The Court will not do so here.
At the suppression hearing, Cravens admitted that he searched Loera’s CDs on November 27, 2012, for child pornography. See May 20, 2014 Tr. at 72:1^1 (Cravens); id. at 72:21-22 (Cravens). Cravens explained that, to find child pornography images that he could accurately describe in the affidavit, he looked at several images— “more than just a couple” of images, but “[m]ost likely less than a dozen” — on each of the four CDs. May 20, 2014 Tr. at 143:6-16 (Cravens, Court). On November 27, 2012, Cravens had the four CDs for a total of two-and-a-half hours, during which
Cravens’ November 27, 2012, searches of Loera’s CDs violated the Fourth Amendment. Cravens was not searching for evidence of electronic fraud and computer hijacking pursuant to the First Warrant. Instead, Cravens hoped to find child pornography, so that he could provide a description of the child pornography in his search warrant affidavit. See May 20, 2014 Tr. at 72:1-4 (Cravens); id. at 72:21-22 (Cravens). Because Cravens was not searching for evidence of electronic fraud and computer hijacking, his searches of Loera’s CDs exceeded the scope of the First Warrant. Moreover, because exigent circumstances or any other exception to the warrant requirement did not justify his searches, they are unconstitutional. The Court will, accordingly, excise paragraphs 23-27 of the Second Affidavit, as they are the fruit of Cravens’ unlawful November 27, 2012, search.
VII. ALTHOUGH CRAVENS WAS NOT PERMITTED TO OPEN FILES ON LOERA’S CDS ON NOVEMBER 27, 2012, TO PROVIDE A DESCRIPTION OF IMAGES ON THE CDS IN A SEARCH WARRANT AFFIDAVIT, PROBABLE CAUSE TO ISSUE THE SECOND WARRANT STILL EXISTED WITHOUT CRAVENS’ DESCRIPTIONS OF THOSE IMAGES.
Although Cravens was not permitted to open files on Loera’s CDs on November 27, 2012, to provide a description of images on those CDs in the Second Affidavit, probable cause to issue the Second Warrant still existed without Cravens’ descriptions of those images. The United States argues that, even without Cravens’ description of the images and video that he saw on November 27, 2012, the Second Affidavit includes sufficient probable cause to properly obtain the Second Warrant. See Response at 14. The United States explains that Cravens stated in the Second Affidavit that: (i) he had been an FBI agent for eight years; (ii) his experience included investigations of “crimes against children on the Internet”; (iii) computers and electronic media—including CDs—are used in the child pornography industry; (iv) child pornography images were found on the four CDs seized from Loera’s residence; and (v) when he used the term “child pornography,” he meant “a visual depiction involving the use of minors engaged in sexually explicit conduct.” Response at 12-13 (citations omitted). The United States further asserts that the Tenth Circuit has recognized that the phrase “child pornography” has a generally understood meaning and referring to images of child pornography provides sufficient probable cause to obtain a search warrant. Response at 13 (citing, e.g., United States v. Haymond,
Loera contends that, after excising Cravens’ unlawfully obtained descriptions from the Second Affidavit, the resulting affidavit would read, “four writable CDs
“When a search is conducted pursuant to a warrant that is based on illegally obtained information, a court is not to blindly apply the good-faith exception.” United States v. Romero,
“In determining whether probable cause supported the issuance of a search warrant, we give ‘great deference’ to the decision of the issuing magistrate or judge.” Cusumano,83 F.3d at 1250 (quoting United States v. Williams,45 F.3d 1481 , 1485 (10th Cir.1995)). We review only whether the issuing magistrate. or judge had a “substantial basis” for finding probable cause, requiring “a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure .that the magistrate had a substantia] basis for concluding that probable cause existed.” Id.
United States v. Sims,
In United States v. Sims, the Tenth Circuit affirmed the district court’s ruling that the warrants were'based on probable cause without regard to the information gleaned by officers from prior warrantless searches, stating:
Here, in addition to the information coming from ,the warrantless office search, the affidavit contained detailed information about Sims’s contacts with Mike Walker and the FBI’s confirmation, after assuming the “sweetthingfo-ryoul6” identity, that Sims was planning to travel to meet Sue and Kate. The magistrate had information about the images sent to Walker, messages and images sent to the FBI, Sims’s detailed plans to go to Missouri to meet Sue and Kate, and that Sims used both his home and office computers' to send these messages.
In this case, the depth of the affidavit’s specific information regarding Sims’s suspected activity was more than sufficient to warrant suspicion and give the magistrate judge a reasonable ground to believe relevant evidence would be found.
In United States v. Cusumano, the Tenth Circuit found that the officer’s search warrant affidavit set forth “numerous facts in such detail that, in aggregate, lead us to conclude that a fair probability existed that Defendants were growing
In United States v. Christy, the Court excised unlawfully obtained information from a search warrant affidavit. See
Excluding the information illegally obtained, the warrants do not establish a fair probability that evidence of a crime would be found in Christy’s home, vehicle, person, or cellular telephones. The remaining factual details in the warrants are bare. Given that the age of consent in New Mexico is sixteen, the Court does not believe that the remaining factual allegations support the conclusion that there was a fair probability that evidence of a crime would be found in Christy’s home.
United States v. Christy,
“The Court must exclude the information illegally obtained from the warrants and determine whether, based on the remaining information, probable cause nevertheless existed.” United States v. Christy,
Even with Cravens’ descriptions of the three images and one video from his November 27, 2012, search excised, the Second Affidavit contains sufficient probable cause. Probable cause exists when “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Simpson,
Terry Wade, a Special Agent for the Federal Bureau of Investigation and former agent for the Oklahoma Bureau of Investigation, applied for a warrant to search Cervini’s residence, attaching a personal affidavit to the application in support of the warrant. The affidavit describes in some detail the process by which an individual may post a message to an Internet newsgroup and the manner in which the individual may be traced from his posting.
In addition, the affidavit includes details of the specific crime for which the search warrant was sought. Special Agent Wade indicated in his affidavit that two images of child pornography were posted to an Internet newsgroup just before 1:00 a.m. on April 27, 1999. The message header accompanying the transmission contained the Internet protocol (IP) address 206.154.188.85 and revealed that the message was posted from a news server owned by Innovative Technology, Ltd., an Internet service provider (ISP). The ISP’s records revealed that the account responsible for the posting had been in use for four hours and was not logged off until just before 3:00 a.m. In response to a grand jury subpoena, the ISP identified the account holder from the IP address as Michael Cervini. The ISP provided Cervini’s address and indicated that his customer account status was active. Cervini’s residential address was corroborated through both a records check of Southwestern Oklahoma State University and an Oklahoma driver’s license query.
[t]he issuing judge reasonably could have inferred from the facts provided in the affidavit that (1) an individual is likely to generate child pornography in a location where he has the greatest expectation of privacy; (2) a computer would be found at an ISP subscriber’s residence; (3) Cervini was most likely at home at 1:00 a.m.; and (4) as the account holder, Cervini was the personusing the account. Contrary to Cervi-ni’s claim, these conclusions' do not require the issuing judge to pile inference upon inference. The totality of the facts enable a reasonable person to draw the common-sense conclusion that evidence of the crime would be found at Cervini’s residence
As in United States v. Cervini the Second Affidavit established probable cause. Because Cravens stated in the Second Affidavit that child pornography was discovered on the CDs seized from Loera’s residence during the execution of the First Warrant, and because Cravens defined child pornography as “a visual depiction involving the use of minors 'engaged in sexually explicit conduct,” Second Affidavit, ¶ 30, at 10, the Court concludes that the First Warrant indicated that there was “a fair probability that contraband or evidence of a crime will be found” on the media items seized from Loera’s residence, United States v. Simpson,
VIII. EVEN IF THE SECOND WARRANT SUFFERED FROM AN INCURABLE DEFECT, NISHI-DA RELIED ON THE WARRANT IN GOOD FAITH WHEN HE SEARCHED LOERA’S CDS AND LAPTOP FOR CHILD PORNOGRAPHY.
Even if the Second Warrant suffered from an incurable defect, Nishida relied on the warrant in good faith when he searched Loera’s CDs and laptop for child pornography. The United States asserts that Nishida searched Loera’s laptop and CDs for child pornography only after Judge Schneider issued the Second Warrant. See Response at 16. In the United States’ view, Nishida relied on Judge Schneider’s determination that probable cause existed to search those items “reasonably and in good faith.” Response at 16. The United States argues that, consequently, the Court should not suppress any evidence obtained through the execution of the Second Warrant. See Response at 16. The United States contends that Cravens also acted in good faith in obtaining the Second Warrant. See Response at 15-16. The United States explains that, in the Second Affidavit, Cravens stated that he opened files on Loera’s CDs on November 27, 2012, to provide a description of the files in his search warrant affidavit. See Response at 16. The United States points out that Cravens had Mr. Anderson, Assistant United States Attorney review his application for the Second Warrant, including the Second Affidavit. See Response at 4, 15. The United States argues that the Tenth Circuit has identified asking a lawyer to approve a search warrant application as one factor that indicates an officer acted in good faith in obtaining a warrant. See Response at 16 (citing United States v. Otero,
Despite the existence of Carey, which stated in 1999 that a warrant should be acquired after the first image was seen, the government here proceeded to conduct more searching for child pornography on November 20 and on November 27 before finally seeking a search warrant on November 29 for child pornography. Good faith did not exist.
Reply at 7-8. The Court agrees with the United States.
Even if the Second Affidavit did not contain sufficient probable cause, “[e]vi-dence seized pursuant to an invalid warrant does not necessarily have to be suppressed.” United States v. Riccardi,
an officer cannot be expected to question the magistráte’s.probable-eause determination .... Once the warrant issues, there is literally nothing more the policeman can do in seeking to comply with the law. Penalizing the officer for the magistrate’s error, rather than his own, cannot logically contribute to the deterrence of Fourth Amendment violations.
United States v. Leon,
First, evidence should be suppressed if the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false if not for his “reckless disregard for the truth.” Second, the exception does not apply when the “issuing magistrate wholly abandon[s his] judicial role.” Third, the good-faith exception does not apply when the affidavit in support of the warrant is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Fourth, the exception does not apply when a warrant is so facially deficient that the executing officer could not reasonably believe it was valid.
United States v. Danhauer, 229 F.3d at 1007 (quoting United States v. Leon,
Here, the only exception to the good-faith exception that could reasonably apply is that the Second Affidavit was “so lacking in indicia of probable cause as to render” the executing officer’s belief unreasonable. United States v. Danhauer,
Cravens did not. “exhibit deliberate, reckless, or grossly negligent disregard for Fourth Amendment rights” when he executed the Second Warrant. Davis v. United States,
IX. EVEN IF THE SECOND WARRANT CONTAINED AN INCURABLE DEFECT AND NISHIDA DID NOT EXECUTE THE SECOND WARRANT IN GOOD FAITH, THE AGENTS INEVITABLY WOULD HAVE DISCOVERED CHILD PORNOGRAPHY.
Even if the Second Warrant contained an incurable defect and Nishida did
Loera first argues that, without the Second Warrant, Nishida would, have discovered child pornography only if he had exceeded the scope of the First Warrant by clicking on images and video files. See Supplement to Reply at 13-14 (citing Nix v. Williams; Walter v. United States,
Nishida was not an affiant in seeking either of the two existing search warrants in this case. After allegedly finding child pornography on two CDs on November 20, Nishida personally did not author or seek a search warrant to search the Dell laptop. Only after Cravens had conducted his unlawful war-rantless search of the CDs for child pornography on November 27, did Cravens, not Nishida seek the second search warrant, which included the Dell laptop.
Supplement to Reply at 13. Loera also, asserts.that, had Nishida discovered child pornography on Loera’s laptop while executing the First Warrant, Boady also would not have obtained a search warrant for child pornography, because Boady did not do so after Cravens told Boady that he found child pornography on Loera’s CDs on November 20, 2012. See Supplement to Reply at 13. Loera concludes his inevitable discovery argument by contending that “[tjhe historical facts fail to show with sufficient probability that Nishida would have sought a-search warrant after finding child pornography on the laptop.” Supplement to Reply at 13. The Court agrees with the United States.
Under the inevitable discovery exception, “illegally obtained evidence may be admitted if it ‘ultimately or inevitably would have been discovered by lawful means.’ ” United States v. Christy,
1) the extent to which the warrant process has been completed at the time those seeking the warrant learn of the search; 2) the strength of the showing of probable cause at the time the search occurred; 3) whether a warrant ultimately was obtained, albeit after the illegal entry; and 4) evidence that law enforcement agents “jumped the gun” because they lacked confidence in their showing of probable cause and wanted to force the issue by creating a fait accompli.
[T]he prerequisite to a consideration of the inevitable discovery exception in these cases, steps taken to obtain a warrant prior to the unlawful search, is present in this case. Special Agent Rowden took steps to alert his office that he would be coming back to prepare a warrant for the package and made sure that the affidavit form would be ready when he got back to his office. Also, the package was specifically placed on the floor behind Detective Sloan for the purpose of obtaining a warrant.
[A]t the time the illegal search occurred, probable cause to believe the package contained contraband was extremely strong. The package itself contained several suspicious characteristics, including all of the openings on the box being heavily taped, the box having been sent through third party shipping, the sender having only used a first name, and the box being solid so that no side of it could be compressed. Moreover, the box was alerted to by a certified narcotics dog, which is itself sufficient to create probable cause.
very reluctant to apply the inevitable discovery exception in situations where the government fails to obtain a search warrant and no exception to the warrant requirement exists, in this case the inevitability of discovery of the evidence eon-vince[d] [it] that [the case before it was] one of those occasions when the doctrine should apply.
In United States v. Christy, the Court applied the four United States v. Souza factors and determined that the inevitable discovery exception applied. See
The deputies did not take any steps to obtain a warrant before entering Christy’s residence. The United States concedes that they did not attempt toobtain a warrant before entering Christy’s residence.... This factor thus weighs against applying the inevitable discovery exception.
The Court finds that [Investigator Car-vo] had strong probable cause that Christy committed crimes. At the time of the search, Carvo believed he had probable cause for the California crime of unlawful sexual intercourse, because Christy and K.Y. exchanged naked pictures through electronic mail transmissions over the internet and then arranged a meeting in the middle of the night for K.Y. to run away with Christy.
Because [the officer] knew that K.Y. and Christy were exchanging naked pictures, “the belief that there was a sexual relationship or sexual interest between the two was reasonable.” Amended Memorandum Opinion and Order at 57. These circumstances are sufficient to form “a reasonable ground for belief of [Christy’s] guilt,” ... for the California crime of unlawful sexual intercourse.
[The officer] also had strong probable cause for the federal crime of coercion or enticement. Carvo believed that he had probable cause for the federal crime of enticement or coercion, because of Christy’s and KY.’s communications through the internet and electronic mail transmissions, because Christy sent K.Y. naked pictures of himself and solicited pictures of K.Y., which showed her breasts, and because cellular telephone evidence shows that Christy traveled across state lines to bring K.Y. to New Mexico.
Because [the officer] knew that Christy and K.Y. communicated through electronic mail transmissions, that Christy sent K.Y. naked pictures of himself and solicited pictures of K.Y., because evidence showed that Christy traveled across state lines with K.Y., and because Carvo had strong probable cause that Christy committed the California crime of unlawful sexual intercourse, Carvo, had “á reasonable ground for belief of [Christy’s] guilt,” ... for the federal crime of coercion or enticement. Because Carvo had strong probable cause for the California crime of unlawful sexual intercourse and for the federal crime of enticement or coercion, this factor weighs in favor of application of the inevitable discovery doctrine.
The deputies “ultimately did obtain a warrant, albeit based in part on information retrieved” from Littlefield’s actions of peering through a crack in the blinds in Christy’s window, and from the deputies’ entry into Christy’s residence and subsequent interview of Christy. United States v. Cunningham,413 F.3d at 1205 . Although portions of the affidavits supporting the warrants were based on information the Court has found illegally obtained, the affidavits also included information from the California investigation. Although the Tenth Circuit appears to rely on illegally obtained information in> its inevitable discovery analysis, the Court does not believe that it can do so. Carvo had strong probable cause that Christy committed California and federal crimes, and Carvo’s probable cause was based on his investigation, and not on any information he learned from the BCSO or from the Albuquerque FBI.... Because Carvo had strong probable cause for a California crime and a federal crime, based on information that he learned in his investigation, and not based on information he learned from the BCSO or from the Albuquerque FBI, Carvo would have obtained search warrants that were not based on illegally obtained information. Based upon Carvo’s belief that he had probable cause for both violations of California state law and violations of federal law, he would “have asked [BCSO] and/or— either one — the FBI to obtain a search warrant for [Christy’s] Albuquerque residence, vehicle, computers, cell phones, things of that nature.” ... If the BCSO or Albuquerque FBI were not able to obtain a search warrant for these locations, Carvo would have written a federal search warrant himself and come to the District of New Mexico to seek the warrant with himself as the affiant.... Carvo is cross designated to acquire both state and federal search warrants .... This factor thus weighs in favor of application of the inevitable-discovery doctrine.
There is “no evidence that the officers ‘jumped the gun’ due to a lack of confidence about probable cause and out of a desire to force the issue.” United States v. Cunningham,413 F.3d at 1205 . The record indicates that the search occurred when it did because the deputies believed that they had exigent circumstances to enter Christy’s residence. This factor thus weighs in favor of application of the inevitable discovery doctrine.
On appeal, the Tenth Circuit affirmed the Court’s decision. See
The district court found that Officer Carvo knew that K.Y. was a minor, there was a large age difference between her and Mr. Christy, the two exchanged sexually explicit pictures, and that Mr. Christy traveled across state lines with K.Y- Given those factual findings, it is a reasonable inference that a sexual relationship existed between Mr. Christy and KY. Officer Carvo also knew that K.Y. was potentially suicidal, had left her depression medication behind, and ran away from home with Mr. Christy.... Based on that knowledge, Officer Carvo’s belief that K.Y. was at risk for sexual victimization and assault was reasonable. Thus, Officer Carvo had reasonable grounds to believe that Mr. Christy engaged in sexual activity in violation of California law and coerced or enticed K.Y. to travel across state lines to engage in criminal sexual activity in violation of federal law.... The district court was correct in weighing this factor in favor of applying inevitable discovery.
Mr. Christy argues that the deputies “jumped the gun” by forcing entry into his home due to their lack of confidence about probable cause.... Yet as the district court found, no evidence supports the theory that the deputies forced entry for that reason.... Instead, the deputies forced entry because they believed K.Y. was in danger.... Mr. Christy argues that the search was not in fact justified by exigent circumstances and points to the district court’s conclusion that it was not.... But that is beside the point. The record fully supports the reasonableness of the deputies’ assessment of danger. The district court was correct in weighing this factor in favor of the government.
United States v. Christy,
The Court concludes that the inevitable discovery applies. First, Cravens and Ni-shida did not take substantial steps to obtain a search warrant for child pornography before the contested November 27, 2012, searches occurred. Cravens only intended to obtain a search warrant — but had not undertaken any formal steps to do so — when he conducted the unlawful searches of Loera’s CDs on November 27, 2012. Consequently, the first factor — the extent to which the process for the Second Warrant had been completed at the time those seeking the warrant learn of the unlawful search — weighs against finding inevitable discovery.
Second, the agents possessed strong probable cause for their search of Loera’s media before Cravens’ unlawful search on November 27, 2012. Both Cravens and Nishida each viewed at least two images of child pornography on Loera’s CDs when they executed the First Warrant on November 20, 2012. Although Cravens and Nishida did not note any locations, filen-ames, or descriptions of the images they viewed, had Cravens known he was not permitted to search Loera’s CDs on November 27, 2012, either he or Nishida likely would have been able to describe at least one of the images with sufficient particularity to establish probable cause. Accordingly, the second factor — the strength of the showing of probable cause at the time the search occurred — weighs in favor of finding inevitable discovery.
The agents ultimately obtained a warrant, albeit based in part on the information that Cravens obtained from his unlawful November 27, 2012, searches of Loera’s CDs. This factor cuts slightly in favor of finding inevitable discovery. There is also no evidence that the agents “jumped the gun” because of a lack of confidence about probable cause and out of a desire to force the issue.
The Court may apply the inevitable discovery exception in this case despite there not being a second, independent investigation through which law enforcement could have obtained the child pornography evidence in this case. In United States v. Christy, the Tenth Circuit stated that no such requirement exists. See United States v. Christy,
In Cunningham and Souza we applied inevitable discovery to situations like the one here — where there was “one line of investigation that would have led inevitably to the obtaining of a search warrant by independent lawful means but was halted prematurely by a search subsequently contended to be illegal.” Cunningham,413 F.3d at 1204 n. 1. In Cunningham, police searched the defendant’s home after getting his consent. Id. at 1202. The defendant later contested the search, claiming his consent was coerced. Id. We held that even if the search was illegal, the evidence was admissible because the officers “would have obtained a search warrant” if the search had not occurred. Id. at 1205. In Souza, police illegally opened a UPS package that contained drugs.223 F.3d at 1200, 1202 . We held the evidence admissible under inevitable discovery because the officers “would have obtained a warrant” had the illegal search not occurred. Id. at 1206. Thus, our case law does not require a second investigation when the first (and only) investigation would inevitably have discovered the contested evidence by lawful means.
Thus, lest there be any doubt, we reaffirm the notion that inevitable discovery requires only that the lawful means of discovery be “independent of the constitutional violation,” Larsen,127 F.3d at 987 , and conclude that a second investigation is not required.
United States v. Christy,
In this case, as in United States v. Cunningham, there was “one line of investigation that would have led inevitably to the obtaining of a search warrant by independent lawful means but was halted prematurely by a search subsequently contended to be illegal.” United States v. Cunningham,
As in United States v. Cunningham, Cravens and Nishida had sufficient probable cause to search Loera’s CDs before Cravens searched them on November 27, 2012. See
IT IS ORDERED that Defendant Jason Loera’s Motion to Suppress Evidence, filed March 7, 2014 (Doc. 35), is denied. The Court will, therefore, not exclude from trial the child pornography evidence discovered on the media items seized from Defendant Jason Loera’s residence.
Notes
. Crawford v. Washington stands for the proposition that testimonial out-of-court statements against an accused are inadmissible at trial unless the witness is unable to testify and the defendant had a previous opportunity to cross examine the witness. See
. United States v. Garcia is an unpublished opinion, but the Court can rely on an unpublished opinion to the extent its reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A), 28 U.S.C. ("Unpublished opinions are not precedential, but may be cited for their persuasive value.”). The Tenth Circuit has stated:
In this circuit, unpublished orders are not binding precedent, ... and we have generally determined that citation to unpublished opinions is not favored. However, if an unpublished opinion or order has persuasive value with respect to a material issue in a case and would assist the court in its disposition, we allow a citation to that decision.
United States v. Austin,
. Loera does not object under Crawford v. Washington to any evidence in this case; the Court, therefore, need not decide whether Crawford v. Washington applies to suppression hearings. The Court notes, however, that the courts that have decided whether the Confrontation Clause applies to suppression hearings have found that Crawford v. Washington does not apply to suppression hearings. See Ebert v. Gaetz,
. Loera contends that, on November 14, 2014, Boady, the Special Agent in charge of Loera’s case, told Nishida to search a laptop that was seized from Loera’s residence for evidence of child pornography on November 20, 2014. See May 20, 2014 Tr. at 22:2-24 (Serna). In support of this contention, Loera cites a passage of a report in which Nishida detailed his examination of Loera’s laptop computer and the computer’s hard drive. See Report of Examination at 1 (dated February 28, 2013), submitted to the Court at the May
Loera’s point seems to be that Nishida was simultaneously conducting two searches when he executed the First Warrant on November 20, 2014: one for evidence of the unlawful interception of electronic communications and computer fraud pursuant to the First Warrant, and another for child pornography. This argument is unpersuasive for a few reasons. First, because Boady had already gone through the trouble of obtaining the First Warrant, it would be illogical for him to not include a request to search for child pornography in the First Warrant if he had any reason to believe the search would uncover it. Second, Nishida testified that he wrote this passage to summarize all of Boa-dy’s requests regarding the Dell laptop and the eighty-gigabyte hard drive — it was not intended to indicate that Boady had requested Nishida to search the items on November 14, 2012. See May 20, 2014 Tr. at 201:11-20 (Nishida, Serna); id. at 202:16-24 (Nishida, Serna). Third, both Cravens and Nishida testified multiple times that the purpose of the November 20, 2012, search was to uncover evidence of the unlawful interception of electronic communications and computer fraud, and not child pornography. See May 20, 2014 Tr. at 53:7-11 (Cravens, Tuckman); id. at 152:6-8 (Nishida, Tuckman); id. at 160:5-11 (Nishida, Tuckman). The Court has no reason to question their uncontroverted testimony.
. A USB flash drive is a "data storage device that includes flash memory with an integrated Universal Serial Bus interface. USB flash drives are typically removable and rewritable, and physically much smaller than a [compact disc]. Most weigh less than ... l.loz." "USB Flash Drive,” Wikipedia.org, http://en. wikipedia.org/wiki/USB_flash_drive (last visited Oct. 10, 2014).
. A screen shot is "an image taken by the computer user to record the visible items displayed on the [computer] monitor, television, or another visual output device. Usually, this is a digital image using the operating system or software running on the computer, but it can also be a capture made by a camera or a device intercepting the video output of the display. "Screenshot,” Wikipedia.org, http:// en.wikipedia.org/wiki/Screenshot (last visited Oct. 10, 2014).
. Imaging creates "an exact ... copy of the original storage media that exists on the subject computer” — in this case, the hard drive on Loera's laptop. "What is Forensic Hard Drive Imaging?” Forensicon Computer Forensic Specialists, http://www.forensicon.com/ wpcontenf/cache/page_enhanced/www. forensicon.com//resources/articles/what-is-forensic-hard-drive-imaging//_index_ssl.html_ gzip (last visited Oct. 13, 2014).
. "Hash sets,” also referred to as "hash values,” are created through a process called "hashing,” which,
take[s] a large amount of data, such as a file or all the bits on a hard drive, and use[s] a complex mathematical algorithm to generate a relatively compact numerical identifier (the hash value) unique to that data. Examiners use hash values throughout the forensic process, from acquiring the data, through analysis, and even into legal proceedings. Hash algorithms are used to confirm that when a copy of data is made, the original is unaltered and the copy is identical, bit-for-bit. That is, hashing is employed to confirm that data analysis does not alter the evidence itself. Examiners also use hash values to weed out files that are of no interest in the investigation, such as operating system files, and to identify files of particular interest.
Richard P. Salgado, Fourth Amendment Search and the Power of the Hash, 119 Harv. L.Rev. F. 38 (2005).
Perhaps the quickest method to find files relevant to your case is through a hash comparison of files against one or more preconfigured hash sets.... This process can significantly reduce the amount of data that you must review because you can eliminate irrelevant files through both filtering and hiding of duplicate files.
Brett Shavers & Eric Zimmerman, X-Ways Forensics Practitioner’s Guide 109 (Chris Katsaropoulos, et al. eds., 2014).
. Jones v. United States,
. The Honorable John Paul Steven's, former Associate Justice of the Supreme Court, penned the majority's opinion in Illinois v. Caballes. Out of the current Supreme Court Justices, Justices Scalia, Kennedy, Thomas, and Breyer joined Justice Stevens’ majority
. See generally "List of File Formats,” Wikipedia, http://en.wikipedia.org/wiki/List_of_ file_formats (last visited Oct. 7, 2014).
. The Court recognizes that the Supreme Court unanimously held in Riley v. California, — U.S. —,
incident to an arrest is accordingly simple— get a warrant.”). The Court has no disagreement with such a requirement. In fact, the Court reached the same conclusion more than ten years before the Supreme Court’s decision in Riley v. California. See United States v. Morales-Ortiz,
The Court’s concern with the Tenth Circuit’s rule is that it grants greater procedural protections to an individual’s cellular telephone, computer, and other devices in which he or she can store electronic information than those afforded to an individual's home. Under the Tenth Circuit’s rule, while an officer searching a home pursuant to a search warrant can continue his warrant-authorized search upon discovering evidence of another crime, he or she cannot do so while executing a computer search warrant. Such a rule is at odds with the Supreme Court’s longstanding position that, when it comes to Fourth Amendment protections, of the four items that the Fourth Amendment lists — "persons, houses, papers, and effects,” U.S. Const. amend. IV — the home is “first among equals.” Florida v. Jardines,
it is "a totally different thing to search a man's pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt,16 F.2d 202 , 203 (C.A.2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form — unless the phone is.
. Aside from the fact that both cases address the good-faith exception to the exclusionary rule, the Davis v. United States that the Fourth Circuit decided in 2012 is not related to the Davis v. United States that the Supreme Court decided in 2011.
. Although United States v. Peltier came before the Supreme Court's ruling in United States v. Leon, the Supreme Court noted, in Davis v. United States, that United States v. Leon “explicitly relied on Peltier and imported its reasoning into the good-faith inquiry.” Davis v. United States,
. The Court has recognized that "both scholars and judges have posited that exclusion of probative, reliable evidence of a defendant’s guilt is too high a price to pay for the unknown degree of deterrence that exclusion achieves.” United States v. Christy,
. It may be tempting to want to balance the severity of the crime in determining whether the good-faith exception applies — -to consider, for example, that exclusion may be less appropriate where the unlawful search or seizure uncovers evidence of a serious crime— like officers discovering a group of severed heads in a suspect’s home — than where the unlawful search or seizure uncovers evidence of a minor crime — like a joint of marijuana in a teenager’s pocket. The Court has been unable to find, however, a case in which a court has considered this factor in its good-faith analysis. In the Court's view, that an act has been criminalized reflects the political process’ determination of the cost of such behavior to society, and the courts should be reluctant to second guess that determination with its own ad hoc, personal preferences and individualized determination of the severity of the crime. The Court is also concerned that: (i) it would be difficult how to gauge the seriousness of an offense; (ii) it would be difficult to figure out how to factor this determination into the balancing test; (iii) weighing the seriousness of an offense may encourage law enforcement officers to conduct illegal searches and seizures while investigating serious crimes; and (iv) the balancing test should consider only the change in probability of conviction, not the conviction’s consequences, because sentencing — which is kept strictly separate from the guilt/innocence determination in our system — incorporates the severity of the crime. In the end, the Fourth Amendment'protects privacy, and not certain criminal activity. Accordingly, the Fourth Amendment analysis should be the same, whether the crime includes an murder, illegal re-entry, drugs, firearms, or child pornography. Likewise, the exclusionary rule analysis should be the same for every crime. Once the political branches have said something is a crime, the courts should not choose whether to apply the exclusionary rule depending on the crime. Social costs, as the Supreme Court uses that term, should mean something else. For these