Lead Opinion
Mоre than nine months after someone using defendant-appellee James Raymonda’s IP address accessed thumbnail images of child pornography on the Internet, government agents obtained a search warrant for his home and discovered over one thousand files of child pornography. The United States District Court for the Western District of New York (William M. Skretny, Chief Judge) granted Raymonda’s motion to suppress, finding that the government’s evidence that Raymonda had accessed child pornography on a single occasion nine months earlier was too stale to establish probable cause that he would still possess illicit images at the time of the search. The United States appeals that decision, arguing that the recognized propensity of persons interested in child pornography to collect and hoard such images supports an inference that Raymonda would still possess child pornography when the warrant was sought. Alternatively, the government argues that, even if probable cause was lacking, the evidence should not be suppressed because the agents who executed the search relied in good faith on a warrant duly issued by a judicial officer.
We agree with the district court that a single incident of access to thumbnail images of child pornography, absent any other circumstances suggesting that the suspect accessed those images deliberately or has a continuing interest in child pornography, fails to establish probable cause that the suspect will possess illicit images many months later. However, because the agents in this case relied in goo'd faith on a magistrate judge’s independent determination of probable cause, we reverse the district court’s order granting Raymonda’s suppression motion.
BACKGROUND
I. The Investigation
On January 13, 2011, U.S. Immigration and Customs Enforcement (“ICE”) Special Agent Eric Sajo of the San Diego Cyber Crimes Unit discovered a link on the website www.motherless.com. Posted under a discussion thread dedicated to discussing administrative website content, such as “bugs, feature requests, complaints, or other site related materials,” the link redirected Agent Sajo to the website “www.coolib. org.” That site featured numerous thumbnail links to images of child pornography, spread across several pages hosting up to approximately thirty thumbnails each.
After Agent Sajo obtained a search warrant for the website content of www.coolib. org, the site’s host company provided records that included 861 images of child pornography, as well as. access log information for each image posted to the site. The host company also produced Internet Protocol (“IP”) logs for individual users who had visited the website, tracking GET requests automatically generated when a user’s web browser downloaded the thumbnails on each web page.
The IP logs revealed that, on January 16, 2011, a user with a particular IP address accessed 76 images from www.coolib. org, the majority of which were thumbnail images of child pornography. Although the IP logs were not organized chronologically, the time stamps on the GET requests suggested that all 76 images were accessed ovеr a period of seventeen seconds. The log showed no user requests for any full-sized versions of the thumbnail images.
On July 13, 2011, Time Warner Cable identified the Internet subscriber associated with that IP address on January 16, 2011 as James Raymonda of Buffalo, New York. The United States Postal Service subsequently confirmed that Raymonda currently received mail at the address associated with that account.
II. The Warrant
Based on the foregoing information, on October 27, 2011, Special Agent Adam J. Ouzer of the Homeland Security Investigations division (“HSI”) of the Department of Homeland Security applied for a warrant to search the property at Raymonda’s address for violations of 18 U.S.C. §§ 2252 and 2252A, which prohibit the distribution, possession, or receipt of child pornography.
In support of the application, Agent Ouzer included an affidavit disclosing the details of Agent Sajo’s investigation, including Agent Sajo’s discovery of www. coolib.org through a link on www. motherless.com, his acquisition of user logs for the IP address in question, and his confirmation that this IP address was associated with Raymonda. Discussing the content of the IP logs, Agent Ouzer stated that “76 images, the majority of which were images of child pornograрhy, ... were accessed by the user of [the] IP address.” While conceding that these logs provided “no record that the user accessed an enlarged (full size) image,” Agent Ouzer concluded that they nevertheless “show more than one incidence of access of thumbnail images by the user.” He also stated that the logs “identified that the user of [the] IP address ... successfully viewed suspect child pornography images contained in Directory 55,” and that “the frequency of successful (GET) requests for the suspect images” contained in the log “provide evidence that the user intended to view the content.” Agent Ouzer did not append the full IP log to his warrant application, nor did he state that the time stamps on the log covered a' span of seventeen seconds.
In addition to his account of the investigation, Agent Ouzer’s affidavit included numerous boilerplate paragraphs describing the online trade in child pornography and the logistics of recovering digital data from computer hard drives. Agent Ouzer testified that the abundance of, information-sharing technologies on the Internet have made computers “a preferred method of distribution and receipt of child pornographic materials,” and that computers’ capacity “to store images in digital form makes [them] an ideal repository of child pornography.” Fortunately for investigators, because electronic data stays in a computer’s residual memory long after deletion, forensic specialists can recover even ostensibly deleted pornographic files “months or even years after they have been downloaded onto a hard drive ... or viewed via the Internet.” Even Internet files that are “automatically downloaded
Finally, Agent Ouzer stated that his experience investigating child pornography cases had revealed certain common propensities among persons interested in child pornography. “Individuals who have a sexual interest in children” commonly hoard images of child pornography, “retaining] pictures, films, photographs, negatives, ... and videotapes for many years.” Even digital images, seemingly replaceable, “are often maintained for several years and are kept close by, usually at the collector’s residence, to enable the individual to view the collection, which is valued highly.” Agent Ouzer concluded that the “person(s) residing at the SUBJECT PREMISES exhibits the common characteristics described above of someone involved in the distribution, receipt, and possession of child pornography.”
Based on Agent Ouzer’s application, a magistrate judge issued a search warrant for Raymonda’s address. Agent Ouzer and several other HSI agents executed the warrant on November 8, 2011. While several agents searched the house, Agent Ouzer and a colleague asked Raymonda to speak with them outside. The agents told Raymonda about the nature of the warrant, but advised that he was not under arrest and was free to leave. Raymonda nevertheless agreed to speak with them and, in the ensuing conversation, admitted to viewing child pornography online.
Inside the home, HSI agents seized two laptops, a tower computer, and an external hard drive. These items were later found to contain over 1,000 images of child pornograрhy.
III. Indictment and Motion to Suppress
On December 21, 2011, Raymonda was indicted in the Western District of New York on one charge of knowingly receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and four charges of knowingly possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).
On March 19, 2012, Raymonda filed a motion to suppress all evidence discovered at his home on November 8, 2011, including his statements to Agent Ouzer, arguing that the search warrant was issued without probable cause and that Agent Ouzer had not relied on that warrant in good faith. Specifically, Raymonda argued that Agent Ouzer’s evidence that a user with his IP address allegedly accessed images of child pornography in January 2011 was too stale to suggest that pornographic images would still be found in his home at the time of the search, and that Agent Ouzer’s involvement in United States v. Coon, No. 10-CR-110A,
In support of his motion, Raymonda introduced the expert testimony of Gerald R. Grant, a forensic investigator with the Federal Public Defender’s office. Grant testified that GET requеsts for images contained in an IP log do not signal that a user intentionally opened or clicked on individual links, but rather occur automatically whenever a browser opens a web page: “If you’re on the internet browsing, and you click on a web page, and that web page comes up on your screen, that web page is a series of get commands.... ” Accordingly, the IP logs obtained for www. coolib.org did not disclose whether the user with Raymonda’s IP address had saved or even viewed all of the images that his browser had accessed, and indeed would have looked exactly the same even if he “simply close[d]” the site immediately
Raymonda also introduced the testimоny of Agent Ouzer’s direct supervisor in Coon and the prosecutor who tried the case. While neither witness had a “specific recollection” of discussing the staleness challenge with Agent Ouzer, both testified that their general practice was to inform the agent involved in their cases of any challenges to the validity of a warrant.
Testifying at the hearing, Agent Ouzer reiterated his understanding that the IP logs obtained for Raymonda’s IP address suggested that the user had in fact intentionally accessed child pornography, stating that each GET request signified that an individual had “clicked on the image” or “attempted to receive the larger image by clicking on the thumbnail.” He also testified that any pornographic images viewed by Raymonda on www.coolib.org “would have been downloaded on [his] computer,” though he admitted he did not know where precisely they would be saved. While acknowledging his involvement as the investigator in Coon, Agent Ouzer did not recall ever having learned that the judge in that case found the year-old evidence in his affidavit stale.
IV. District Court Orders
On April 5, 2013, Magistrate Judge Hugh B. Scott issued a Report and Recommendation urging the court to suppress all evidence оbtained through the search warrant. Judge Scott found that, contrary to the suggestions in Agent Ouzer’s affidavit, the IP logs did not disclose that the user with Raymonda’s IP address had engaged in “more than one incidence of access” so as to view 76 separate images, but were consistent with images loading automatically upon a single visit to the offending website. He noted that the affidavit had contained no corroborative evidence of Raymonda’s general interest in child pornography, nor any evidence that Raymonda had saved the illicit images to his hard drive. Crediting Grant’s testimony that temporary Internet files are typically deleted within a month and lacking any evidence that Raymonda “fits the profile of an individual who hoards ... child pornography,” Judge Scott found no probable cause to believe that pornographic images would still have been on Raymonda’s computer, or otherwise in his possession, at the time of the warrant application.
Judge Scott also concluded that Agent Ouzer was not entitled to the good faith exception to the exclusionary rule. As factual matter, he found that Agent Ouzer must have known about the suppression order in Coon, which should have alerted him to the staleness of the nine-month-old IP logs. Furthermore, Judge Scott noted that Agent Ouzer’s affidavit contained “misleading statements that significantly exaggerated” the import of his evidence, including his suggestions that the IP logs showed “more than one incidence of access,” that Raymonda accessed 76 separate files, and that Raymonda was involved in the “distribution” of child pornography. While disclaiming any conclusion • that Agent Ouzer had intentionally deceived the issuing magistrate, the judge nevertheless concluded that his affidavit was so “grossly negligent” so as to merit suppression.
On July 23, 2013, Chief Judge William M. Skretny of the United States District
DISCUSSION
On appeal from a district court’s ruling on a motion to suppress, we review the court’s factual findings for clear error. United States v. Smith,
The government presses two chief arguments on appeal. First, it argues that the nine-month gap between the IP logs and the warrant application did not render the evidence in Agent Ouzer’s affidavit stale, because persons interested in child pornography are known to hoard digital files for extensive periods of time. Second, it argues that Agent Ouzer was entitled to the good faith exception because the suppression order in Coon did not establish a binding rule of law and because Agent Ouzer’s alleged misstatements did not amount to gross negligence.
I. Probable Cause
The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation.” U.S. Const, amend. IV. Probable cause “is a fluid concept” turning “on the assessment of probabilities in particular factual contexts,” and as such is not “readily, or even usefully, reduced to a neat set of legal rules.” United States v. Falso,
We have recognized that the determination of staleness in investigations involving child pornography is “unique.” United States v. Irving,
Federal courts including this one have historically inferred that a suspect is a “collector” of child pornography, likely to hoard illicit images, based on a number of factors. They have done so given a suspect’s admission or other evidence identifying him as a “pedophile.” See, e.g., Irving,
In certain circumstances, courts have even inferred that a suspect was a hoarder of child pornography on the basis of a single incident of possession or receipt. They have done so where, for example, the suspect’s access to the pornographic images depended on a series of sufficiently complicated steps to suggest his willful intention to view the files. See, e.g., Vosburgh,
In all of these cases, the inference that the suspect was a collector of child pornography did not proceed merely from evidence of his access to child pornography at a single time in the past. Rather, it proceeded from circumstances suggesting that he had accessed those images willfully and deliberately, actively seeking them out to satisfy a preexisting predilection. Such circumstances tend to negate the possibility that a suspect’s brush with child pornography was a purely negligent or inadvertent encounter, the residue of which was long ago expunged. They suggest that the suspect accessed those images because he was specifically interested in child pornography, and thus — as is common among persons interested in child pornography — likely hoarded the images he found. As the Sixth Circuit has observed, “[i]t is not likely that ... someone who was innocently surfing the internet ... accidentally paid $79.95 for a subscription to [a child pornography] web site.” Frechette,
That insight is consistent with our own cases discussing child pornography. While we have never addressed the circumstances under which a suspect’s online access to images of child pornography raises the inference that he will hoard those images so as to defeat a staleness challenge, we have on at least two occasions considered when a suspect’s recent online activity creates probable cause to search his computer for child pornography. See Falso,
By contrast, in Falso we held that the mere fact the defendant had apparently tried to access a non-membership website featuring images of child pornography, absent any evidence that he subsequently viewed those images, did not establish probable cause to search his computer.
In explaining its ultimate refusal to find probable cause, the panel in Falso went on to observe that there were “no specific allegation[s] that Falso accessed, viewed or downloaded child pornography.” Id. at 121. But that observation does not compel a finding of probable cause in this case. To begin with, Agent Ouzer’s affidavit contained no evidence that the suspect downloaded any images of child pornography from www.coolib.org, suggesting instead that the IP user did not even click on any thumbnail links to access the full-sized files. Moreover, Falso was not a case involving stale evidence. In Falso, agents sought a warrant to search the suspect’s computer based on entirely current information. In such a case, any evidence that the suspect had recently “accessed” child pornography would necessarily have supported an inference that some traces of illicit images, at the very least, could be recovered in his computer’s temporary memory. Even lacking any independent indicia of the suspect’s deliberate or “knowing” access to those images — necessary to establish criminal guilt at trial— such information would certаinly support a “fair probability” that some relevant evidence of a crime would be found on the suspect’s computer. See Gates,
By contrast, to establish probable cause in this case, where the agents ap
Under those circumstances, absent any indicia that the suspect was a collector of child pornography likely to hoard pornographic files, we hold that a single incident of access does not create a fair probability that child pornography will still be found on a suspect’s computer months after all temporary traces of that incident have likely cleared. We thus conclude that the warrant issued in this case was not supported by probable cause.
II. Good Faith
That the warrant was not supported by probable cause, however, does not necessarily mean that the evidence discovered by the agents at Raymonda’s home must be suppressed.
The exclusion of evidence obtained in violation of the Fourth Amendment is a “prudential” remedy, crafted by the Supreme Court “to compel respect for the constitutional guaranty.” Davis v. United States, — U.S. -,
■ [17-20] In light of this principle, courts have recognized that evidence obtained by officers “in objectively reasonable reliance” on a warrant subsequently invalidated by a reviewing court is not generally subject to exclusion. See Falso,
While denying that Agent Ouzer “intentionally” misled the magistrate judge, the district court found that Agent Ouzer’s affidavit was so “grossly negligent” as to preclude the good faith exception. Specifically, the court noted (1) that Agent Ouzer’s knowledge of the suppression ruling in Coon should have alerted him to the staleness of his evidence; (2) that his affidavit “significantly exaggerated the credible import” of the IP logs; and (3) that his affidavit baselessly claimed that the suspect was involved in the “distribution” of child pornography. On ap
Accepting the district court’s factual findings and taking Raymondа’s additional argument into account, we cannot find that these facts add up to gross negligence. As to Agent Ouzer’s involvement in Coon, as a matter of law, a prior holding by a district court cannot establish a binding principle of law sufficient to undermine an agent’s good faith reliance on a later warrant. The good faith exception’s requirement that an officer act with “objective reliance” on a magistrate’s warrant demands only that the officer exhibit “reasonable knowledge of what the law prohibits.” United States v. George,
Similarly, Agent Ouzer’s conclusory statement that Raymonda “exhibited] common characteristics ... of someone involved in the distribution, receipt, and possession of child pornography” can hardly have misled the magistrate judge. An isolated boilerplate remark following an extensive recitation of the evidence concerning Raymonda, which consisted exclusively of IP logs showing that the suspect accessed and viewed thumbnails of child pornography, that statement did not plausibly suggest the existence of additional evidence, not otherwise disclosed in the affidavit, that the suspect actually distributed child pornography. At most, it suggested the agent’s belief that the suspect’s online activities in this case conformed with patterns common to those interested in the receipt and possession of child pornography — as well as in the distribution of child pornography — more broadly. Considering the remark’s entirely conclusory nature, there is no likelihood that the magistrate judge relied on it to find probable cause. See Gates,
Thus, any claim that Agent Ouzer negligently misled the magistrate judge must rest on his apparently inadvertent mischaracterizations of the IP logs: his sug
Nor are Agent Ouzer’s potential mischaracterizations of the IP logs sufficiently egregious to justify exclusion. As the district court noted, Agent Ouzer did not recklessly or even carelessly include false information in his affidavit, but rather genuinely believed that the GET requests revеaled that Raymonda “clicked” to view the thumbnail images. We have no grounds on this record to believe that Agent Ouzer’s misunderstanding amounted to a gross lapse in his expected competence in interpreting computer data. More to the point, while Agent Ouzer did misstate that the IP log “provide[d] evidence that the user intended to view the content,” J. App’x at 50 (emphasis added), his remaining observations that the user of the IP address “accessed,” “obtained,” and “successfully viewed” images of child pornography are arguably consistent with information in the IP logs regarding the browser’s successful downloads of the thumbnails. Absent any finding that he intended to deceive the magistrate judge with these statements, we cannot find gross negligence in Agent Ouzer’s use of technically correct language that had the potential to confuse a reader unfamiliar with IP protocol.
We do not doubt that certain statements in Agent Ouzer’s affidavit may have exaggerated the significance of his evidence, nor that such statements may have contributed to the issuance of an invalid search warrant. But the exclusionary rule is designed not to redress minor overstatements оr simple negligence by the police, but to deter deliberate, reckless, or otherwise inexcusable violations. See Davis,
CONCLUSION
The trade in child pornography is a particularly vile aspect of the Internet,
Because, however, a magistrate judge in this case reached an independent determination of probable cause to search the suspect’s home that was not contrary to established law or facially insufficient, and because any errors in the affidavit supporting the warrant application were neither intentionally false nor grossly negligent, the agents were entitled to rely in good faith on the duly issued warrant. Accordingly, the district court erred in suppressing the evidence.
For the foregoing reasons, the district court’s order granting Raymonda’s suppression motion is REVERSED and the case is remanded to the district court for further proceedings.
Notes
. A GET request is a message sent from an HTTP client, such as a web browser, to a server asking for the content located at a particular URL.
. The dissent's conclusion that the good faith exception to the exclusionary rule does not apply rests largely on its disagreement with this standard of review. See Dissent at 125. It is well established in this Circuit that we review a district court’s determination of an officer’s good faith reliance on an issued warrant dе novo. See, e.g., United States v. Clark,
. We also addressed that issue in Coreas,
. Because Raymonda’s motion to suppress challenges the warrant solely on the basis of staleness, rather than any material omissions in the affidavit, see Franks v. Delaware,
. The government suggests that "gross negligence” vitiates the good faith exception only where an officer conducts a warrantless search, but not where he relies on a warrant. We have never recognized such a distinction. From its inception in Leon, the good faith exception has always presumed that the challenged search may have relied on a duly issued warrant. See
. Raymonda’s initial motion to suppress claimed that the agents were not entitled to the good faith exception not only because of Agent Ouzer’s misleading representations in the affidavit, but also because of an alleged facial lack of probable cause. The district court relied purely on the former ground, and Raymonda presses only that argument on appeal.
. Even had Agent Ouzer thought to connect the cases, Coon is distinguishable on its facts, involving the possession of a single download of child pornography "almost a full year” before the warrant issued.
. In addition to insisting that Agent Ouzer "should have” performed such an analysis, see Dissent at 124-25, the dissent repeatedly implies that Agent Ouzer in fact knew of the seventeen-second span at the time he drafted his affidavit. We find nothing in the record to support that characterization.
We also respectfully disagree with a number of the dissent’s additional suggestions that Agent Ouzer deliberately misrepresented facts to the magistrate judge. While the dissent implies that Agent Ouzer willfully misrepresented how long thumbnail images could have been expected to remain on Raymonda’s computer and "tried to convey” a false "impression” about Raymonda’s deliberate access to individual thumbnails, see Dissent at 122-23, the record reveals that all such statements reflected Agent Ouzer’s genuine, if mistaken, interpretation of the IP logs. Both Judge Scott and Chief Judge Skretny explicitly disavowed any suggestion that Agent Ouzer intentionally included misleading information in his affidavit.
. Because Raymonda’s statements to Agent Ouzer proceeded directly from the search warrant, our holding applies to his statements as well as to the physical evidence seized from his home.
Concurrence in Part
concurring in part and dissenting in part:
I concur in the majority’s holding that the search warrant issued in this case was not supported by probable cause. I dissent, however, from the majority’s conclusion that the evidence should not have been suppressed because the lead agent acted in good faith reliance on a search warrant issued by a magistrate. See United States v. Leon,
I
The exclusionary rule serves to deter “deliberate, reckless, or grossly negligent conduct.” Herring v. United States,
The shield of good-faith immunity is lost, however, when an officer “knows, or has reason to know, that he has materially misled a magistrate on the basis for a finding of probable cause.” Golino v. City of New Haven,
“The burden is on the government to demonstrate the objective reasonableness of the officers’ good faith reliance” on a subsequently invalidated warrant. United States v. George,
II
As the majority finds, the warrant here was not supported by probable cause, and it was issued based on an affidavit that contained a number of material misstatements and omissions.
Agent Ouzer’s affidavit made the following representations:
• web access logs showed “more than one incidence of access of thumbnail images by the user” of the computer;
• the user “accessed” 76 images, “the majority of which were images of child pornography”;
• the logs showed that the user “successfully viewed suspect child pornography images”;
• “the frequency of successful (GET) requests for the suspect images” showed that “the user intended to view the content”;
• the person residing at the subject premises, that is, defendant James Raymonda, exhibited the “common characteristics ... of someone involved in the distribution, reсeipt, and possession of child pornography”;
• “individuals who have a sexual interest in children or images of children” often maintain their pornographic collections “for several years”; and
• computer files “can be recovered months or even years after they have been downloaded onto a hard drive, deleted, or viewed via the internet.”
In essence, then, Agent Ouzer attempted to paint a picture of Raymonda as a collector of child pornography who accessed 76 images on a website containing child pornography, by making “frequen[t] ... successful (GET) requests for the suspect images.” Indeed, at the suppression hearing, Ouzer testified that the logs showed that Raymonda clicked on 76 thumbnail images, and this clearly was the impression he tried to convey in his affidavit. In addition, the affidavit suggested that the images of child pornography Raymonda accessed were likely still on his computer, even though nine months had passed.
In fact, the circumstances were very different. The computer access logs— which Agent Ouzer had reviewed but did not attach to his affidavit — showed only 17 seconds of activity. As Agеnt Ouzer knew or should have known, it would have been impossible for the user to click on 76 images or to even view all 76 images in 17 seconds and, indeed, it would have taken some time merely for the images to load. Moreover, all of the 76 thumbnails could have been generated by a single click, and no individual full-sized images were actually accessed. The logs simply indicated that the thumbnails were displayed on a webpage, and any files reflected in the logs would have been copied only to the computer’s internet cache, a temporary holding area where the files would have remained for only two days to a month. In fact, the search yielded no evidence of the thumbnail photos in question.
Contrary to the assertion in the search warrant application, and consistent with the credible testimony from [the forensic investigator], the IP logs do not reflect “more than one incidence of access of thumbnail images by thе user.” Further, the search warrant application improperly suggests that the IP logs reflect that the user accessed 76 separate images on January 16, 2011. Such a representation is not supported by the record in this case. Finally, contrary to the boilerplate language used in the search warrant application, Ouzer acknowledged that there was no evidence in this case that the target individual in this case was involved in the distribution of child pornography.... Further, the search warrant application in this case contained misleading statements that significantly exaggerated the credible import of the information that could be deduced from the IP logs obtained by [Homeland Security].
J. App’x at 491-92 (citations omitted).
Ill
I turn to the question of Agent Ouzer’s state of mind when he made the misstatements and omissions. In my view, the government failed to demonstrate that Agent Ouzer acted in good faith. To the contrary, Agent Ouzer could not have “objectively relied” on the now-invalidated search warrant, for he was responsible for the errors that led the magistrate to find probable cause where it did not exist. Indeed, as the district court found, the agent was “grossly negligent” in including “mislеading information” and “inapplicable boilerplate language” in his affidavit.
Our cases have not defined “gross negligence” in the context of the Fourth Amendment. In civil rights damages cases, we “have often equated gross negligence with recklessness, and have defined it as the kind of conduct ... where [the] defendant has reason to know of facts creating a high degree of risk of physical harm to another and deliberately acts or fails to act in conscious disregard or indifference to that risk.” Poe v. Leonard,
In my view, Agent Ouzer executed his affidavit in conscious disregard of the truth and with heedless indifference to Raymonda’s Fourth Amendment rights for the following reasons:
First, no reasonable basis existed for Agent Ouzer to suggest that Raymonda was a collector of child pornography. There was nothing in the logs to show that
Second, even assuming Agent Ouzer did not intend to mislead the magistrate, he acted purposely and without regard for the truth to allay any concerns that the nine-month old evidence was stale. Indeed, he significantly exaggerated the facts to give the misleading impression that Raymonda was a hoarder of child pornography who was likely still, despite the passage of time, to have the illicit images on his computer. Even assuming Agent Ouzer’s involvement in Coon was not a basis for undermining his good faith in this case, he knew that staleness was a concern — his solution was to exaggerate and mislead. This was, in my opinion, a “grossly negligent disregard for [Raymonda’s] Fourth Amendment rights.”
Third, Agent Ouzer omitted critical facts from the affidavit — that the logs revealed that “the images were downloaded over a 17-second period into the internet cache of the user’s computer, and that all 76 of the get commands could have been generated by one click on the webpage at issue.” JA at 483-84. “[R]ecklessness may be inferred when omitted informаtion was clearly critical to assessing the legality of a search.” United States v. Reilly,
Fourth, while the majority notes that a “conscientious investigator” might have analyzed the logs to determine that the download period was only 17 seconds, Maj. Op. at 119-20, in my view, Agent Ouzer should have done precisely that here. A reasonable investigator with experience in the investigation of online child pornography would have appreciated the relevancy of the connection time, conscientiously analyzed the logs to determine the length of the connection time, and appreciated the importance of the 17-second period. See Leon,
Although scant law exists in the Fourth Amendment context, most appellate courts treat gross negligence determinations as factual questions subject to clear error review. See, e.g., United States v. Ford Motor Co.,
Whether Agent Ouzer acted with gross negligence or reckless disregard for the truth is, in my view, a factual question subject to clear error review. Further, because the district court’s findings were premised on credibility determinations, “we grant particularly strong deference to those findings.” United States v. Mendez,
Finally, I note that the deterrence value of suppression here would be strong. See Davis,
For the reasons set forth above, I would not disturb the district court’s conclusions that the agent’s gross negligence precludes application of the good faith exception. I therefore respectfully dissent from the majority’s application of the good faith excep
. I also take issue with the majority’s suggestion that an "isolated boilerplate remark” could not have misled the magistrate judge into finding probable cause. Maj. Op. 119-20. Probable cause determinations are not decided by isolating certain facts and reviewing them independently. Instead, a magistrate considers the totality of the circumstances. Illinois v. Gates,