Fourth Amendment Defenses

INTRODUCTION

The Fourth Amendment protects people from “unreasonable searches and seizures.”[1] When a defendant believes that his property was searched or seized in violation of the Fourth Amendment, he can file a motion to suppress evidence in the federal district court where the charges are pending and ask the judge to suppress the evidence. If the motion is granted, the Government cannot introduce the evidence at trial.

In most federal sex offense cases, law enforcement discovers the evidence in question after obtaining a search warrant and seizing the defendant’s electronic devices (cell phones, computers, and hard drives). To suppress such evidence, a defendant must generally show the following:

1. Standing to contest the search
2. A violation of the Fourth Amendment
3. The “good-faith” exception does not apply

In cases where a search warrant is not obtained, the search can only be upheld where there was an exception to the warrant requirement or where valid consent was given. In these non-search warrant cases, the Government typically cannot rely on the good-faith exception to save an unlawful search.

Anything that contains content requires a search warrant, including emails, text messages, social media sites, and cell phones. In child pornography cases, subpoenas are required to obtain IP addresses and the physical location where the IP address indicates the computer was accessed. It is crucial to ensure that the warrant properly outlines the affiant’s computer expertise and experience, educates the judge about how the location to be searched was determined, describes child pornography rather than erotica, and relies upon relevant and recent evidence. Ensure that the evidence was actually found in the place described in the warrant, as well as that the warrant explicitly allowed the government to seize and search the material. Also look for details as to how they collected and searched the evidence to ensure that it was not altered during the seizure and search.

[1] Fourth Amendment

Practice Tip: Challenging the legality of a search in a federal criminal case is typically done by filing a Motion to Suppress Evidence pursuant to Rules 12 and 41 of the Federal Rules of Criminal Procedure. FRCP 41 allows a defendant to file a motion to suppress in the district court where the trial will occur. FRCP 12 requires a defendant to file the motion prior to trial.

Additionally, most district courts have local rules which establish deadlines for when a motion to suppress must be filed. For instance, in the Eastern District of Virginia, Local Rule 12(A) requires motions to suppress to be filed within 14 days from the date of arraignment or a time fixed by the court.

FOURTH AMENDMENT & TECHNOLOGY

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, and effects, against unreasonable searches and seizures.” Absent an exception to the warrant requirement, this reasonableness requirement in the Fourth Amendment requires law enforcement to obtain a search warrant before seizing and searching a computer or cell phone.

In Riley v. California, 573 U.S. 373 (2014), the Supreme Court ruled that law enforcement must obtain a search warrant before searching digital data on cell phones incident to arrest. Since Riley, courts have grappled with how to apply this rule to searches of cell phones and computers, especially in the context of child pornography cases.

While Riley generally requires law enforcement to obtain a search warrant to search a cell phone, computer, or electronic storage device, more recent cases have expanded the Fourth Amendment’s protections to include the seizure of emails from an internet service provider,[2] the use of malware to infect computers to obtain information,[3] the use of a GPS tracking device,[4] and cell-site location information.[5]

[2] United States v. Warshak (6th Cir. 2010); United States v. Wilson, 13 F.4th 961 (9th Cir. 2021).

[3] United States v. Taylor, 935 F.3d 1279 (11th Cir. 2019).

[4] United States v. Jones, US (2012)

[5] Carpenter v. United States, 138 S.Ct. 2206 (2018).

EXCEPTIONS TO THE WARRANT REQUIREMENT

In the context of federal sex offense cases, there are a number of common exceptions to the search warrant requirement set forth in Riley. These exceptions include the following:

• Voluntary consent was given and the search did not exceed the scope of the consent [6]
• Exigent circumstances [7]
• Abandonment [8]
• A border search where law enforcement suspected contraband on the device [9]
• A search conducted by a private actor [10]
• The defendant was on parole [11]
• The contraband was in plain view [12]
• The discovery of the contraband was inevitable through lawful means. [13]

[6] United States v. Thurman, 889 F.3d 356, 368 (7th Cir. 2018), upholding the search where the defendant “did not restrict the agents’ contemporaneous examination of his phone.”

[7] United States v. Fifer, 863 F.3d 759, 766 (7th Cir. 2017), noting: “[a] central purpose of that exception is to ensure that the police or other government agents are able to assist persons in danger or otherwise in need of assistance.” See also, United States v. Shrum, 59 F.4th 968 (8th Cir. 2023).

[8] United States v. Fisher, 56 F.4th 673 (9th Cir. 2022).

[9] See, United States v. Cano, 934 F.3d 1002 (9th Cir. 2019), finding: “[a]bsent reasonable suspicion, the border search exception did not authorize the agents to conduct a warrantless forensic search of [the defendant’s] phone, and evidence obtained through a forensic search should be suppressed.”

[10] United States v. Meals, 21 F.4th 903 (5th Cir. 2021).

[11] United States v. Wood, 16 F.4th 529 (7th Cir. 2021). But see, United States v. Fletcher, 978 F.3d 1009 (6th Cir. 2020).

[12] United States v. Stacy, 802 Fed. Appx. 611 (2nd Cir. 2020).

[13] United States v. Blackburn, 785 Fed. Appx. 539 (2019).

STANDING

To invoke the protection of the Fourth Amendment, a defendant must be able to show that he has standing to contest the search. In many cases involving the seizure of a defendant’s electronic devices, standing may be presumed, and if the issue of standing is not challenged by the government, it may be waived by the government.[14]

Standing requires a defendant to have a “legitimate expectation of privacy in the premises [or thing] searched.” Byrd, 138 S.Ct. at 1526. The court will inquire: “1) whether the defendant is able to establish an actual, subjective expectation of privacy with respect to the place being searched or items being seized, and 2) whether that expectation privacy is one which society would recognize as reasonable.” United States v. Kye Soo Lee, 898 F.2d 1034, 1037–38 (5th Cir. 1990).[15]

Courts have found that users of peer-to-peer networks have no expectation of privacy in the files shared over such networks.[16] Nor do users have a reasonable expectation of privacy when law enforcement seeks user information for their internet service provider for user information such as name and email address.[17] Thus, when the government acquires subscriber data, including a defendant’s IP address and name, from third-party service providers, the defendant cannot claim a reasonable expectation of privacy.[18]

[14] United States v. Ross, 963 F.3d 1056 (11th Cir. 2020).

[15] The Fifth Circuit has provided the following explanation: whether the defendant has a [property or] possessory interest in the thing seized or the place searched, whether he has a right to exclude others from that place, whether he has exhibited a subjective expectation of privacy that it would remain free from governmental intrusion, whether he took normal precautions to maintain privacy[,] and whether he was legitimately on the premises. United States v. Finley, 477 F.3d 250, 258–59 (5th Cir. 2007).

[16] United States v. Shipton, 5 F.4th 933 (8th Cir. 2021).

[17] United States v. Trader, 981 F.3d 961 (11th Cir. 2020); United States v. Bynum, 604 F.3d 161 (4th Cir. 2010).

[18] United States v. Wheelock, 772 F.3d 825, 828 (8th Cir. 2014)

SEARCH WARRANTS & FOURTH AMENDMENT VIOLATIONS

A defendant can typically only argue that the language in the “four corners” of the search warrant and its supporting affidavit fail to allege probable cause. There is an exception to this rule where the warrant’s affidavit contained material omissions or false statements. (See the section below on Franks Hearings.) In determining whether a motion to suppress evidence is warranted, defense counsel should conduct the following examinations:

• The face of the search warrant: The search warrant itself should be examined to determine if the Fourth Amendment’s particularity requirements have been met. The search warrant should also be examined to determine if the relevant laws and rules were followed by law enforcement and the issuing magistrate.
• The supporting affidavit: The affidavit should be examined to determine if law enforcement set forth a sufficient basis to believe that evidence of a crime would be found at the search location.
• False statements or omitted facts: The defense should determine if the affidavit contains any false statements or if it omits facts that have a bearing on the ultimate finding of probable case. A close review of the Government’s discovery in the case can sometimes yield discrepancies.

PARTICULARITY REQUIREMENT

The purpose of the Fourth Amendment’s particularity clause is to prevent general searches.[19] A valid search warrant therefore requires a particular description of “the things to be seized, as well as the place to be searched.” Perhaps the most famous case on this point is Groh v. Ramirez, 540 U.S. 551 (2004), where the Supreme Court found a Fourth Amendment violation where the search warrant failed to describe the items to be seized “at all.” Id. at 558.

• The place to be searched. The warrant should identify the correct address and provide an adequate description. The Tenth Circuit has reasoned: “[t]he test for determining the adequacy of the description of the location to be searched is whether the description is sufficient to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.”[20]
• The items to be seized. A search warrant may not allow for a “wide-ranging exploratory search that the Framers intended to prohibit.” Garrison, 480 U.S. 84. The warrant must identify identify the things to be seized with sufficient particularity. This is achieved when the warrant enables the searcher to reasonably ascertain and identify the things authorized to be seized.[21]

In child pornography cases involving electronics, courts have upheld search warrants which called for the seizure and search of “any and all computer equipment”[22] but noted that the scope of the search should be limited to the specific federal crime (i.e., a warrant in a child pornography case that allows for the seizure of tax records may be overbroad).[23]

[19] United States v. Schwinn, 376 Fed. Appx. 974 (11th Cir. 2010).

[20] United States v. Lora-Solano, 330 F.3d 1228 (10th Cir. 2003), finding that a single-digit error as to street address did not render the warrant invalid. But see, Taylor v. Hughes, 26 F.4th 419 (4th Cir. 2022), finding that the wrong address on the warrant invalidated the search. See also, United States v. Votteller, 544 F.2d 1355, 1362 (6^th Cir. 1976), finding that search warrant describing entire three-floor, multi-use building as insufficiently particular.

[21] United States v. Leary, 846 F.2d 592 (10th Cir. 1988).

[22] United States v. Grimmett, 439 F.3d 1263 (10th Cir. 2006); See also, United States v. Richards, 659 F.3d 527 (6th Cir. 2011); United States v. Rosa, 626 F.3d 56 (2nd Cir. 2010).

[23] United States v. Riccardi, 405 F.3d 852 (10th Cir. 2005). See also, United States v. Schlingloff, 901 F.Supp.2d 1101 (C.D. Ill. 2012), finding that the agent searching for evidence of passport fraud exceeded the scope of the search warrant by enabling filtering software to search for evidence of child pornography. See also, United States v. Cobb, 970 F.3d 319 (4th Cir. 2020), noting “so long as the Fourth Amendment’s basic requirements of probable cause and particularity are met, the executing officers are “impliedly authorized … to open each file on the computer and view its contents, at least cursorily, to determine whether the file [falls] within the scope of the warrant’s authorization—i.e., whether it relate[s] to the designated … crimes.”

United States v. Cobb, 970 F.3d 319, 329 (4th Cir. 2020), as amended (Aug. 17, 2020)

PROBABLE CAUSE

Fourth Amendment violations are most often the result of a lack of probable cause. The Fourth Amendment requires that “no warrants shall issue, but upon probable cause, supported by Oath.”^[24]

The Supreme Court views probable cause as a “fluid concept–turning on the assessment of probabilities in particular factual contexts–not readily, or even usefully, reduced to a neat set of legal rules.”^[25] A judge must make 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.”^[26]

When analyzing a search warrant and its supporting affidavit, defense counsel should consider specific arguments as to why probable cause does not exist, including lack of a nexus between the crime alleged and the location or thing searched, staleness, and conclusory allegations.

In United States v. Martin (2005), the Second Circuit found probable cause for a search warrant based on an e-group’s essential purpose to trade child pornography based on its welcome page, the affidavit’s discussion of the modus operandi of those who use computers to trade child pornography, its descriptions of the characteristics and proclivities of collectors, the fact that the group’s purpose could be inferred through the site’s technological features, and the affiant’s confirmation that the e-group contained child pornography available to all members. The court also considered the defendant’s residence at the targeted house, voluntary membership in the e-group, and continued membership. Thus, the majority deemed it “common sense” that “an individual who joins such a site would more than likely download and possess such material.”^[27]

Other circuits reached similar conclusions in cases involving defendants’ intentional membership or subscription to child pornography websites.^[28] Additional factors weighing in favor of probable cause included defendants’ actions that indicated that their membership or subscription was intentional,^[29] email addresses or screen names indicative of child pornography,^[30] and criminal history related to child pornography.^[31]

However, the Second Circuit later questioned its precedent, highlighting how easy it is to join an e-group. Martin’s focus on the overriding illegal purpose of the group rather than the activities of the individual targeted for the search might “diminish the Fourth Amendment’s focus on particularity and on protection of the privacy of the individual to be searched.”^[32] However, they were bound by precedent.

Later, in United States v. Falso (2008), the Second Circuit considered a case where a defendant appeared to gain or attempt access to a site with child pornography and had a prior conviction for sexual abuse of a minor. However, the defendant was not alleged to be a member of the site or to have gained access to the site, and it was not determined that the principal purpose of the site was viewing and sharing child pornography. The court found the affidavit lacking probable cause to believe that evidence would be found in the defendant’s home.^[33]

Similarly, the Tenth Circuit found insufficient probable cause when a defendant possessed and shared child erotica, the affiant opined that people who possess child pornography are likely to possess child erotica, and the defendant made sexually suggestive comments about the child in the photographs, but the government failed to provide sufficient probable cause to establish “a nexus between suspected criminal activity and the place to be searched.”^[34]

The Fourth Circuit declined to follow Falso, allowing probable cause where the affidavit alleged that the defendant’s IP address accessed a URL with child pornography content.^[35] The Second, Third, and Fifth Circuits also found probable cause when IP addresses and emails were linked to child pornography sites.^[36]

A single incident of accessing child pornography based on IP address, absent other factors, may not establish probable cause for later possession. The Second Circuit emphasized that deliberate, willful access is crucial for deeming old evidence as establishing probable cause, writing that it was necessary to show that the defendant “accessed [thumbnails of child pornography] in circumstances sufficiently deliberate or willful to suggest that he was an intentional ‘collector’ of child pornography, likely to hoard those–or acquire new ones–long after any automatic traces of that initial incident had cleared.”^[37]

Federal courts have considered several factors in determining whether a suspect is a “collector” of child pornography who is likely to hoard illicit images. This includes whether a suspect has been identified as a “pedophile,”^[38] whether they paid for access to child pornography,^[39] and whether they had an extended history of possessing or receiving pornographic images.^[40]

Courts have inferred that a suspect was a collector of child pornography based on a single incident of possession or receipt based on their access to the material on a series of sufficiently complicated steps that suggest their willful intention to view them^[41] or when the defendant accessed a single file and redistributed it to other users.^[42]

In all of these cases, the inference that someone collected child pornography “proceeded from circumstances suggesting that he had accessed those images willfully and deliberately, actively seeking them out to satisfy a preexisting predilection.”^[43]

Stale evidence, including where the timing of the upload is unclear, weighs against a finding of probable cause. For example, the Seventh Circuit found that when the search warrant did not specify the upload time of child pornography images, and the record indicated a potential two-year gap before officials received the complaints, the evidence was stale and there was no probable cause for the search.^[44]

Other Circuits, however, found that, despite old evidence, factors such as the recent purchase of a child pornography website subscription could still support probable cause, emphasizing the likelihood of use and common practices of consumers. For example, the Sixth Circuit found that probable cause existed in a case in which the defendant purchased a one-month subscription to a child pornography website 16 months before the search, as the act of payment made it highly likely that he used the subscription, and consumers of child pornography usually kept images on their computers (or evidence remained on computers after they deleted images).^[45]

^[24] Fourth Amendment

^[25] Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)

^[26] Illinois v. Gates, 462 U.S. 213, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983)

^[27] United States v. Martin, 426 F.3d 68, 73 (2d Cir. 2005)

^[28] United States v. Hutto, 84 F. App’x 6 (10th Cir. 2003) (Unpublished)

^[29] United States v. Shields, 458 F.3d 269, 277 (3d Cir. 2006); United States v. Wagers, 452 F.3d 534, 536 (6th Cir. 2006); United States v. Gourde, 440 F.3d 1065, 1070 (9th Cir. 2006)

^[30] United States v. Shields, 458 F.3d 269, 279 (3d Cir. 2006); United States v. Froman, 355 F.3d 882, 890 (5th Cir. 2004)

^[31] United States v. Wagers, 452 F.3d 534, 541 (6th Cir. 2006)

^[32] United States v. Coreas, 419 F.3d 151 (2d Cir. 2005)

^[33] United States v. Falso, 544 F.3d 110 (2d Cir. 2008)

^[34] United States v. Edwards, 813 F.3d 953, 960 (10th Cir. 2015)

^[35] United States v. Bosyk, 933 F.3d 319, 329 (4th Cir. 2019)

^[36] United States v. Vosburgh, 602 F.3d 512, 526 (3d Cir. 2010); United States v. Martin, 426 F.3d 68, 75 (2d Cir. 2005); United States v. Froman, 355 F.3d 882, 890 (5th Cir. 2004)

^[37] United States v. Raymonda, 780 F.3d 105 (2d Cir. 2015)

^[38] United States v. Irving, 452 F.3d 110, 124 (2d Cir. 2006); United States v. Harvey, 2 F.3d 1318, 1323 (3d Cir. 1993)

^[39] United States v. Frechette, 583 F.3d 374, 379 (6th Cir. 2009); United States v. Gourde, 440 F.3d 1065, 1072 (9th Cir. 2006); United States v. Payne, 519 F. Supp. 2d 466, 477 (D.N.J. 2007), aff’d, 394 F. App’x 891 (3d Cir. 2010)

^[40] United States v. Pappas, 592 F.3d 799, 802 (7th Cir. 2010); United States v. Allen, 625 F.3d 830, 842 (5th Cir. 2010); United States v. Cox, 190 F. Supp. 2d 330, 334 (N.D.N.Y. 2002)

^[41] United States v. Vosburgh, 602 F.3d 512, 528 (3d Cir. 2010); United States v. Hay, 231 F.3d 630, 634 (9th Cir. 2000)

^[42] United States v. Seiver, 692 F.3d 774, 775 (7th Cir. 2012)

^[43] United States v. Raymonda, 780 F.3d 105, 115 (2d Cir. 2015)

^[44] United States v. Prideaux-Wentz, 543 F.3d 954 (7th Cir. 2008)

^[45] United States v. Frechette, 583 F.3d 374 (6th Cir. 2009)

Fruit of the Poisonous Tree

The “fruit of the poisonous tree” doctrine holds that evidence directly resulting from illegal conduct by an official is inadmissible. Once primary evidence is illegally obtained, the tree is poisoned, and both the initial evidence and subsequent evidence are tainted and inadmissible.[46]

^[46] Silverthorne Lumber Co. v. United States, 251 U.S. 385, 40 S. Ct. 182, 64 L. Ed. 319 (1920); Nardone v. United States, 308 U.S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939)

PRIVATE SEARCH DOCTRINE

The Fourth Amendment does not protect against searches, no matter how unreasonable, conducted by private individuals acting in a private capacity. It only applies to governmental action.

However, when private parties conduct searches as an instrument or agent of the government, Fourth Amendment limitations apply.^[47] “Whether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes necessarily turns on the degree of the Government’s participation in the private party’s activities, a question that can only be resolved in light of all the circumstances.”^[48] A federal regulatory scheme that authorizes and encourages private searches may transform a private search into governmental conduct.^[49]

The Supreme Court’s private search doctrine suggests that the government does not conduct a Fourth Amendment “search” when it merely repeats an investigation already conducted by a private party, so long as it does not “exceed the scope of the private search.”^[50] Thus, when a third party provides the police with evidence that they obtained during their own search the police do not need to stop them or avert their eyes.^[51] However, in the case that the government’s conduct could reveal something previously unknown about non-contraband items, a constitutionally triggered “search” took place.^[52] The Supreme Court established that “additional invasions of respondents’ privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search.”^[53]

Circuits have utilized varying approaches in applying the private search doctrine to electronic searches. Some circuits require an exact match between private and police searches. The Eleventh and Sixth Circuits held that there must be an exact one-to-one match between electronic files viewed by a private party and those later viewed by the police. The Sixth Circuit found that the police exceeded the scope of the private search when the person who discovered the child pornography on her boyfriend’s computer and showed the images to the police was unsure as to whether she opened the same files with the police present as she had opened earlier that day.^[54] The Eleventh Circuit reached the same conclusion when a store employee discovered child pornography on a lost cell phone and showed the police a video that the employee had not previously watched, thus exposing new information exceeding the scope of the private search.^[55]

Other circuits have adopted a more permissive approach to applying the private search doctrine to electronic searches. The Seventh and Fifth Circuits held that officers searching containers previously unexamined by the private party is not necessarily problematic if the police “knew with substantial certainty, based on the statements of the private searchers, their replication of the private search, and their expertise, what they would find inside.”^[56] The Fifth Circuit found that the police did not exceed the private search when examining more items within a closed container than the private searchers. Thus, if the private party accessed a device, the police can too, regardless of the specific information viewed within that device.^[57]

If a federal statute requires a private service provider to report child pornography but does not require the provider to seek out and discover violations, and the provider scans emails of their own volition and out of its own private business interests, it constitutes a private search.^[58] However, if a statute or regulation so strongly encourages a private party to conduct a search that the search is not primarily the result of private initiative, then Fourth Amendment protections apply.^[59]

The Sixth, Seventh, Eighth, and Tenth Circuits have identified two relevant factors in determining the degree of the government’s participation in the private party’s activities, which must be assessed to determine whether a private party is an agent or instrument of the government:^[60]

1. Whether the government knew of and acquiesced in the intrusive conduct.
2. Whether the citizen intended to assist law enforcement or instead acted to further his own purposes.

The Eighth Circuit identified an additional factor:^[61]

3. Whether the citizen acted at the government’s request.

Different Circuits hold varying perspectives on whether further examination of files suspected to contain child pornography constitutes a search under the Fourth Amendment. For instance, the Ninth Circuit determined that law enforcement’s action of enlarging thumbnails that clearly contained child pornography shown to them by a private party did not extend beyond the initial private search. This was because the police gained no new information, and the private interest in those images had dissipated, constituting a constitutional search.^[62] However, a subsequent Ninth Circuit case presented a contrast, where an agent viewed images identified as matching other child pornography images through third-party technology. No one had previously viewed these images, and their exact content was unknown, leading to a determination of an unconstitutional search.^[63]

This contrasts with a Fifth Circuit case involving an electronic service provider flagging email attachments and forwarding them to law enforcement. In this case, officers viewed the images for the first time without a warrant, and the private search exception was justified because the agents’ opening of the files “merely confirmed that the flagged file was indeed child pornography, as suspected.”^[64] In a case with a virtually identical fact pattern, the Sixth Circuit reached the same conclusion, finding that Google’s hash-value matching technology was sufficiently reliable, thus justifying law enforcement’s viewing of the images suspected to be child pornography.^[65] Although they rely on different reasoning, the ultimate conclusions in these two cases diverge from that of the Ninth Circuit’s.

^[47] Fourth Amendment; United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016); United States v. Rosenow, 50 F.4th 715 (9th Cir. 2022), cert. denied, 143 S. Ct. 786, 215 L. Ed. 2d 52 (2023); United States v. Cameron, 699 F.3d 621 (1st Cir. 2012)

^[48] Skinner v. Ry. Lab. Executives’ Ass’n, 489 U.S. 602, 614, 109 S. Ct. 1402, 1411, 103 L. Ed. 2d 639 (1989)

^[49] Skinner v. Ry. Lab. Executives’ Ass’n, 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989)

^[50] United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984); United States v. Miller, 152 F.3d 813 (8th Cir. 1998); United States v. Wilson, 13 F.4th 961 (9th Cir. 2021)

^[51] Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), holding modified by Horton v. California, 496 U.S. 128, 110 S. Ct. 2301, 110 L. Ed. 2d 112 (1990)

^[52] Walter v. United States, 447 U.S. 649, 100 S. Ct. 2395, 65 L. Ed. 2d 410 (1980)

^[53] United States v. Jacobsen, 466 U.S. 109, 104 S. Ct. 1652, 80 L. Ed. 2d 85 (1984)

^[54] United States v. Lichtenberger, 786 F.3d 478 (6th Cir. 2015)

^[55] United States v. Sparks, 806 F.3d 1323 (11th Cir. 2015), overruled by United States v. Ross, 963 F.3d

^[56] United States v. Runyan, 275 F.3d 449, 464 (5th Cir. 2001); Rann v. Atchison, 689 F.3d 832, 838 (7th Cir. 2012)

^[57] United States v. Runyan, 275 F.3d 449, 464 (5th Cir. 2001)

^[58] United States v. Ringland, 966 F.3d 731, 737 (8th Cir. 2020)

^[59] United States v. Stevenson, 727 F.3d 826 (8th Cir. 2013)

^[60] United States v. Bebris, 4 F.4th 551, 561 (7th Cir.), cert. denied, 142 S. Ct. 489, 211 L. Ed. 2d 296 (2021); United States v. Benoit, 713 F.3d 1, 9 (10th Cir. 2013); United States v. Bowers, 594 F.3d 522, 526 (6th Cir. 2010)

^[61] United States v. Wiest, 596 F.3d 906 (8th Cir. 2010); United States v. Ringland, 966 F.3d 731, 735 (8th Cir. 2020)

^[62] United States v. Tosti, 733 F.3d 816 (9th Cir. 2013)

^[63] United States v. Wilson, 13 F.4th 961 (9th Cir. 2021)

^[64] United States v. Reddick, 900 F.3d 636 (5th Cir. 2018)

^[65] United States v. Miller, 982 F.3d 412 (6th Cir. 2020)

GOOD FAITH

Even in the absence of probable cause, the good faith exception can salvage evidence obtained through a search warrant. This exception comes into play when police act with “an objectively reasonable good-faith belief that their conduct is lawful,” or when their conduct involves “simple, isolated negligence.”^[67] The test for whether the good faith exception applies is “whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization.”^[68] The exclusionary rule of probable cause does not apply to a subsequently invalidated warrant under these circumstances. The deterrent value^[69] of exclusion is potent only when police exhibit “deliberate, reckless, or grossly negligent conduct,” outweighing the resulting costs.^[70]

There are four circumstances in which the good-faith exception does not apply:^[71]

1. The issuing judge was knowingly misled
2. The issuing judge wholly abandoned their judicial role
3. The application lacks indica of probable cause to render reliance unreasonable
4. The warrant is so facially deficient, such as failing to identify the place to search or the items to seize, that relying upon it is unreasonable.

A defendant must make a “substantial preliminary showing” that the affiant intentionally or recklessly omitted facts, which requires “a detailed offer of proof” of the missing information.^[72]

Additionally, to rely on profiles, “the affidavit must lay a foundation which shows that the person subject to the search is a member of the class.”^[73] Generic, boilerplate recitations not tailored to specific law enforcement needs do not suffice for probable cause.^[74]

The determination of whether a case qualifies for a good-faith exception is based on the totality of relevant factors, making it a case-by-case decision. Examples from different circuits illustrate various approaches to this matter:

First Circuit: The good faith exception did not apply, as a cursory affidavit description and lack of factual support rendered the warrant invalid. The officer’s responsibility for the warrant’s defects and the failure to incorporate the first affidavit contributed to this decision. Even though they searched devices they had previously seized, and the judge had issued a warrant based on the officer’s affidavit, the warrant was “so bereft of factual support that no reasonable officer would have thought the warrant valid.”^[75]

Second Circuit: The good faith exception applied when the search warrant affidavit did not contain false or recklessly misleading statements, for an investigation revealed the defendant’s email and subscription on a child pornography website, and was not lacking in indicia of probable cause, because the district court had ruled on the legal sufficiency of the alleged facts. Execution of the search warrant was therefore justified.^[76] In another case, an officer’s reliance on nine-month-old evidence and use of boilerplate language regarding the characteristics of someone involved in the distribution, receipt, and possession of child pornography did not constitute gross negligence, as the officer was unaware of a previous ruling finding similarly stale evidence lacking in probable cause. A prior district court holding cannot establish a binding principle of law sufficient to undermine a police officer’s good faith reliance on a later search warrant.^[77]

Third Circuit: Despite the search warrant lacking probable cause, the good faith exception applied as officers relied on the warrant in good faith, supported by detailed facts of the investigation, non-stale evidence, allegations of sexual abuse, and interest in photographs of children in various stages of undress.^[78] In another case, the good faith exception did not apply because the affidavit was “clearly insufficient” and “it was ‘entirely unreasonable’ for an official to believe to the contrary” because the only information linking pornography to the defendant’s residence was a single stale allegation that he had stored adult pornography on his computer.^[79] In another, the good faith exception did not apply when there was no explicit connection between alleged sex crimes committed on school property and possession of child pornography.^[80]

Fourth Circuit: The judge was not knowingly misled when the defendant did not identify any omitted or misstated facts in the affidavit, and the affidavit accurately explained facts from which the magistrate judge could assess evidence strength.^[81]

Fifth Circuit: Incorrect statements about the visibility of child pornography images on the website the defendant subscribed to and failure to include that the defendant did not renew his subscription, as well as a nine-month delay between the defendant’s subscription and the affidavit, did not negate the good faith exception, as the judge could reasonably infer the nature of the child exploitation website based on the affidavit’s information.^[82] In another case, the good faith exception applied regardless of probable cause when the affidavit contained statements from the defendant’s family and Internet communications regarding his sexual exploitation of children and child pornography collection, even though the officer made a boilerplate claim that people who sexually abused children also collected child pornography.^[83]

Sixth Circuit: The good faith exception did not apply when a reasonably well-trained officer would have realized the mismatch between the warrant’s authorization of a search of the defendant’s residence and computers for child pornography and the probable cause described, which was that evidence of child molestation would be found.

Seventh Circuit: An affidavit omitting a detailed description of or copy of an alleged child pornography image but including sufficient evidence regarding connections between the image’s producer’s distribution to email and IP addresses associated with the defendant’s computer did not preclude good faith reliance.^[84] In another case, the agent’s reliability, expertise, and a sufficient nexus between the defendant’s home and criminal activity justified the good faith exception.^[85]

Eighth Circuit: The good faith exception applied when the affidavit’s evidence could lead reasonable officers to believe that a search for child pornography was justified.^[86] In another case, the absence of misleading statements, the judge’s non-abandonment of her role, and a reasonably well-trained officer would not have known the search was illegal based on the affidavit.^[87]

Ninth Circuit: The good faith exception applied when there was an argument for probable cause at the time the warrant was issued, based on the circumstances surrounding the discovery of computers and the photograph found during their initial search.^[88]

Tenth Circuit: The good faith exception applied even though the warrant lacked probable cause, as the affiant’s description of the images as child erotica rather than child pornography was not inaccurate, and the district court and the magistrate judge both did not find that the images, as described, were instead child pornography.^[89]

Eleventh Circuit: The good faith exception applied when facts in the affidavit indicated that screen names registered to the defendant at his address were implicated in four other cases involving, sending, and receiving child pornography, the defendant still lived at that address, was believed to be a collector of child pornography, and the tendency of child pornography collectors to keep images on their computers.^[90]

^[67] Davis v. United States, 564 U.S. 229, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011); United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984)

^[68] United States v. Loy, 191 F.3d 360, 367 (3d Cir. 1999)

^[69] The deterrent value lies in deterring police misconduct and incentivizing officers to act in accord with the Fourth Amendment.

^[70] Herring v. United States, 555 U.S. 135, 144, 129 S. Ct. 695, 702, 172 L. Ed. 2d 496 (2009)

^[71] United States v. Leon, 468 U.S. 897, 899, 104 S. Ct. 3405, 3408, 82 L. Ed. 2d 677 (1984)

^[72] Franks v. Delaware, 438 U.S. 154, 155, 98 S. Ct. 2674, 2676, 57 L. Ed. 2d 667 (1978)

^[73] United States v. Weber, 923 F.2d 1338, 1345 (9th Cir. 1990)

^[74] United States v. Zimmerman, 277 F.3d 426, 433 (3d Cir. 2002); United States v. Weber, 923 F.2d 1338, 1345 (9th Cir. 1990)

^[75] United States v. Sheehan, 70 F.4th 36, 52 (1st Cir. 2023)

^[76] United States v. Falso, 544 F.3d 110, 128 (2d Cir. 2008)

^[77] United States v. Raymonda, 780 F.3d 105 (2d Cir. 2015)

^[78] United States v. Caesar, 2 F.4th 160 (3d Cir. 2021)

^[79] United States v. Zimmerman, 277 F.3d 426, 433 (3d Cir. 2002)

^[80] Virgin Islands v. John, 55 V.I. 1324, 654 F.3d 412 (3d Cir. 2011)

^[81] United States v. Bosyk, 933 F.3d 319 (4th Cir. 2019)

^[82] United States v. Kleinkauf, 487 F. App’x 836 (5th Cir. 2012) (Unpublished)

^[83] United States v. Flanders, 468 F.3d 269 (5th Cir. 2006)

^[84] United States v. Weatherman, 702 F. App’x 452 (7th Cir. 2017) (Unpublished)

^[85] United States v. Prideaux-Wentz, 543 F.3d 954 (7th Cir. 2008)

^[86] United States v. Colbert, 605 F.3d 573, 579 (8th Cir. 2010)

^[87] United States v. Notman, 831 F.3d 1084 (8th Cir. 2016)

^[88] United States v. Krupa, 658 F.3d 1174 (9th Cir. 2011)

^[89] United States v. Edwards, 813 F.3d 953 (10th Cir. 2015)

^[90] United States v. Vanbrackle, 397 F. App’x 557 (11th Cir. 2010) (Unpublished)

FRANKS HEARING

The Supreme Court held that the Fourth Amendment entitles defendants to an evidentiary hearing if they make a “substantial preliminary showing” that the government procured a warrant to search their property with intentional or reckless misrepresentations in the warrant affidavit, and that such statements were “necessary to the finding of probable cause.”^[79]

^[79] Franks v. Delaware, 438 U.S. 154, 98 S. Ct. 2674, 57 L. Ed. 2d 667 (1978)

ANTICIPATORY SEARCH WARRANTS

An “anticipatory warrant” is a warrant based on an affidavit showing probable cause that at some point in the future, but not presently, certain evidence of a crime will be located at a specified place. Most require a “triggering condition” that then allows the warrant’s execution. However, a triggering condition does not need to be outlined in the warrant itself.

Anticipatory search warrants that authorize a search upon the occurrence of a triggering condition do not contravene the Fourth Amendment’s provision that “no Warrants shall issue, but upon probable cause.” For the warrant to comply with probable cause: (1) it must be true not only that if the triggering condition occurs there is a fair probability that contraband or evidence of a crime will be found in a particular place, and (2) there is probable cause to believe the triggering condition will occur.^[77]

For example, the Supreme Court found that an anticipatory warrant that authorizes the search of a defendant’s residence based on an affidavit stating that the warrant would be executed upon the delivery of a videotape containing child pornography was supported by probable cause to search.^[78]

^[77] United States v. Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006)

^[78] United States v. Grubbs, 547 U.S. 90, 126 S. Ct. 1494, 164 L. Ed. 2d 195 (2006)