United States v. Falso

Defendant-appellant David J. Falso (“Falso”) appeals from the June 6, 2006 judgment of the United States District Court for the Northern District of New York (McAvoy, J.). Falso was convicted, upon Ms conditional guilty plea to a 242-count indictment, of crimes relating to child pornography and traveling with the intent to engage in illicit sexual conduct with minors. Prior to Falso’s guilty plea, the district court denied his motion to suppress evidence seized from his home on the grounds that probable cause for the search existed and that, in any event, the “good-faith” exception to the exclusionary rule applied.1

The threshold issue presented on appeal is whether a substantial basis for the district court’s finding of probable cause exists where the law enforcement affidavit supporting the search warrant alleged that Falso “appears” to have “gained or attempted to gain” access to a website that distributed child pornography and had been convicted eighteen years earlier of a misdemeanor based on sexual abuse of a minor. In a divided opinion in United States v. Martin, 426 F.3d 68 (2d Cir.2005), this Court held that probable cause to search the defendant’s home existed, largely based on his membership to a website whose principal purpose was sharing of child pornography (hereafter, a “child-pornography website”). Id. at 75-76. In *113United States v. Coreas, 419 F.3d 151 (2d Cir.2005), a different panel expressed its belief that Martin “was wrongly decided,” but adhered to Martin’s holding because the cases were indistinguishable and Martin was binding precedent. Id. at 159 (2d Cir.2005).

Falso’s case tests the limits of these precedents, insofar as it presents the following distinguishing factor: Falso was not alleged to be a member or subscriber to a child-pornography website; it was alleged only that Falso “appeared ” to “have gained or attempted to gain” access to a site that contained approximately eleven images of child pornography. Absent any allegation that Falso in fact accessed the website at issue, the question is whether Falso’s eighteen-year old conviction involving the sexual abuse of a minor (or some other factor) provides a sufficient basis to believe that evidence of child pornography crimes would be found in Falso’s home. A majority of this panel (Jacobs, C.J. & Soto-mayor, J.) holds that probable cause was lacking. A differently aligned majority of this panel (Sotomayor & Livingston, J.J.), however, holds that the good-faith exception to the exclusionary rule applies. See United States v. Leon, 468 U.S. 897, 923-25, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Thus, notwithstanding the absence of probable cause to sustain issuance of the search warrant, a majority of this panel affirms the district court’s denial of Falso’s motion to suppress the physical evidence seized from his home.2

BACKGROUND

A. The Search Warrant Affidavit

On or about June 1, 2005, the Federal Bureau of Investigation (“FBI”) submitted an application for a warrant to search for and seize evidence of child pornography in Falso’s home. The application was supported by, inter alia, a twenty-six page affidavit by FBI Agent James Lyons (“Agent Lyons”). Among other things, the affidavit provided information about (1) the use of computers and the internet to view and collect child pornography; (2) the characteristics of child-pornography collectors; and (3) the investigation that implicated Falso.

Of the affidavit’s generalized information, Agent Lyons explained that individuals who exploit children, including collectors of child pornography, commonly use computers to: communicate with like-minded individuals, store their child pornography collections, and locate, view, download, collect and organize images of child pornography found on the internet. The affidavit further explained that collectors and distributors of child pornography sometime use online resources to retrieve and store child pornography, including services offered by internet portals such as Yahoo! Inc. (“Yahoo”). The affidavit also contained information gathered by a member of the FBI’s Behavioral Analysis Unit, including his observations that “[t]he majority of individuals who collect child pornography are persons who have a sexual attraction to children,” and that those who collect images of child pornography generally store their collections at home.

Specific to the investigation of Falso, the affidavit explained that the FBI obtained the Internet Protocol address of a website, www.cpfreedom.com, which contained ap*114proximately eleven images of child pornography, and which advertised additional child pornography at an internet address that was hidden until a membership was purchased. The affidavit further stated that an undercover FBI agent paid $99 for a one-month membership and received an e-mail from CP Freedom Group, which provided the internet address, login number, and password for its membership website, www.cp-members.com. The affidavit then explained that an FBI forensic examination of “the website hosting www. cpfreedom.com” revealed “several possible subscribers along with e-mail addresses and other information.” According to the affidavit, the FBI subpoenaed subscriber information for these e-mail addresses, which included cousyl731@yahoo.com. Records obtained from Yahoo revealed that Falso had an active Yahoo account, with a login name of “cousyl731” and the Yahoo e-mail address referenced above. The affidavit also stated that the residential address associated with Falso’s Yahoo account had active internet service during the period immediately preceding the warrant request. The affidavit further stated that, based upon the FBI investigation and the forensic examination, “it appear[ed]” that Falso “either gained access or attempted to gain access to the [non-member] website www.cpfreedom.com.”

The affidavit also revealed that on February 18, 1987 — approximately eighteen years earlier — Falso was arrested by the New York State Police for sexually abusing a seven-year old girl and was charged with Sexual Abuse and Endangering the Welfare of a Child. According to the affidavit, the police report relating to this incident stated that Falso placed his hands inside the girl’s underwear and digitally penetrated her, and acknowledged to police that he may need counseling for latent problems. The affidavit also stated that, on or about September 21, 1987, Falso pled guilty to Acting in a Manner Injurious to a Child Less than Sixteen, a misdemeanor for which Falso received a sentence of three years probation.3

Based on the foregoing, Agent Lyons opined that “there [was] probable cause to believe that the individual utilizing the Yahoo ID ‘eousy 1731’ [i.e. Falso] ... is a collector of child pornography.” Judge McAvoy agreed and issued a search warrant on June 1, 2005, permitting the FBI to search Falso’s home for, inter alia, evidence of child-pornography related crimes.

B. The Search and Seizure

Five law enforcement officers, including Agent Lyons, executed the search warrant at Falso’s home on June 8, 2005. The officers seized Falso’s computer and a box containing child pornography in Falso’s bedroom. Agent Lyons and another officer also interviewed Falso for approximately ninety minutes during the search. Agent Lyons’s report from the interview stated that Falso admitted to, among other things, obtaining child pornography from the internet; engaging in sexual activity with females in other countries whom he believed to be between the ages of sixteen and eighteen; and having been convicted for sexually abusing a seven-year old girl. Falso was placed under arrest at the conclusion of the search. A later search of Falso’s computer revealed additional images of child pornography.

*115C. Falso’s Criminal Proceedings

Falso was indicted on June 16, 2005 for traveling with the intent to engage in illicit sexual conduct with minors in violation of 18 U.S.C. §§ 2423(b), (f) & 2246 (Counts 1-2); production of child pornography in violation of 18 U.S.C. § 2251(a) (Counts 3-10); receiving child pornography via the internet in violation of 18 U.S.C. §§ 2252A(a)(2)(A), (B) & 2256 (Counts 11-233); transporting and shipping child pornography in violation of 18 U.S.C. §§ 2252A(a)(l) & 2256 (Counts 234-241); and possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 242). The indictment also alleged that Falso had a prior conviction relating to the sexual exploitation of children, and sexual abuse involving a minor, which invoked the penalty provisions of 18 U.S.C. §§ 2252A(b)(l), (b)(2) and 2251.

Falso subsequently moved to suppress the evidence seized from his home and computer on the ground that probable cause for the search was lacking. Specifically, Falso claimed that the presence of his e-mail address on the cpfreedom.com website was an insufficient basis for probable cause in the absence of any allegations in the affidavit that Falso was a member or subscriber to the website, or that the overriding purpose of the website was the trading of child pornography.

Falso also sought a Franks hearing,4 claiming that certain of the information in the affidavit was designed to mislead the court into believing that Falso was actually a member of or subscriber to the cpfreedom website, and that the government misleadingly failed to disclose that Falso’s e-mail address could have appeared on the cpfreedom.com website for innocent reasons, such as being part of a spam mailing list. In support, Falso submitted an affidavit from a data forensics expert, Robert DeCicco (“DeCicco”). That affidavit explained that “there is a difference between visiting a website, and become [sic] a member and/or subscriber to the site”; the latter normally “involves the assignment of a password and user name conditioned on the payment of a fee or the provision of specific personal information.” DeCicco’s affidavit further explained that internet service providers [such as Yahoo] do not maintain records identifying the websites visited by their customers and, thus, a review of service provider records “would not disclose whether a customer was a subscriber or member of a particular website.” Moreover, his affidavit stated that “[i]t is common practice for websites to obtain lists of e-mail addresses from other sources ... and to send unsolicited e-mail to such addresses.” Thus, DeCicco concluded, “the fact that [Falso’s] e-mail address appeared on the [cpfreedom.com] website does not mean that he contacted or attempted to contact that site.”

On February 24, 2006, the district court issued an oral ruling denying Falso’s motions, holding that: (1) Falso was not entitled to a Franks hearing; (2) probable cause for the search existed; and (3) even if there was an insufficient basis for probable cause, suppression of the evidence was not warranted because the good-faith exception to the exclusionary rule applied.

More specifically, in response to Falso’s Franks claim, the court found that Agent Lyons did not make any false or misleading statements, and explained that, “[significantly, the court was not misled by Agent Lyons.” The court explained that it *116had never understood Agent Lyons “to be saying that defendant had actually subscribed to the CP Freedom website;” rather, it understood the affidavit to say that there was reason to believe Falso had either gained or attempted to gain access to the site.

The district court then explained its basis for concluding that probable cause existed:

First, there was the information concerning the background of persons dealing in child pornography, including the fact that persons who collect child pornography have a sexual attraction to children. Second, there was information that the web site, CP Freedom, advertised that it contained child pornography, actually had some images of child pornography available on it free of charge and advertised that it had additional images of child pornography upon payment of a fee. Third, the FBI determined that the material associated with the website is hardcore child pornography. Fourth, there was evidence that [Falso] had access or attempted to access the CP Freedom web site. Fifth, there was information [that Falso] actually engaged in inappropriate sexual contact with a minor in the past.

Thus, the court found:

Together, this information set forth a reasonable probability that [Falso] had a sexual attraction to minors and that he was undertaking efforts to appeal to his sexual attraction to minors by viewing pictures of child pornography via the internet. In light of the proclivity of such persons to store images of child pornography on their computer and otherwise maintain images of child pornography, there was a reasonable probability that child pornography would be found in the defendant’s home, including on his computer.

The district court also considered and rejected Falso’s claim that the presence of his email address on the website might simply have been the product of a spam mailing list. While recognizing the proliferation of spam, the court explained that Agent Lyons’s affidavit suggested “something more” — namely, that “it appeared] that someone with [Falso’s] e-mail address ... either gained access or attempted to gain access to the website.”

Additionally, the district court measured Falso’s case against our precedents in Martin and Coreas (discussed infra). After identifying what it perceived to be similarities between those cases and Fal-so’s case,5 the court recognized that, unlike in Martin and Coreas, there was no evidence that Falso was a member of a child-pornography website. The court explained, however, that there “is information ... that [Falso] accessed or attempted to access the site and that free child pornography was available to anyone who accessed the site.” Also contributing to probable cause, the court continued, was:

[I]nformation in this case that was not available in Martin or [Coreas]. That information is defendant’s prior criminal history involving sexual contact with a seven year old' — -conduct that is highly relevant to the criminal activity at issue here. The character provided by the FBI indicates that the majority of individuals who collect child pornography have a sexual attraction to them, [sic] In *117light of [Falso’s] known sexual attraction to minors and his having accessed or gained access to a site offering child pornography, there’s a reasonable probability that he would collect child pornography.

Finally, the district court held that even if there had been an insufficient basis for finding probable cause, suppression of the evidence was not warranted because the good-faith exception to the exclusionary rule applied. In this regard, the court explained that it found no statements in the affidavit to be false or in reckless disregard for the truth, and that “the warrant was not so lacking in indicia of probable cause as to render [the executing officers’] belief in the existence of probable cause entirely unreasonable.”

After the district court denied Falso’s motions, he pled guilty to all 242 counts in the indictment. Falso specifically reserved the right to appeal from the district court’s denial of his motions to suppress. Falso also objected to the district court’s use of his prior state conviction for Endangering the Welfare of a Child as a basis for enhancing the statutory minimum and maximum penalties. On June 2, 2006, the district court sentenced Falso principally to 30 years’ imprisonment.

DISCUSSION

I. Probable Cause

A. Standards for Probable Cause

The Fourth Amendment prohibits “unreasonable searches and seizures,” and requires that “no warrants shall issue, but upon probable cause, supported by Oath.” U.S. Const, amend. IV. The Supreme Court has explained that “probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U.S. 213, 232, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). “The task of the issuing magistrate [or judge 6]is simply to 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.” Id. at 238, 103 S.Ct. 2317.

This Court must afford “great deference” to the district court’s probable cause determination. Gates, 462 U.S. at 236, 103 S.Ct. 2317 (internal quotation marks omitted). Our “duty” on review, therefore, “is simply to ensure that the [district court] had a substantial basis for ... concluding that probable cause existed.” Id. at 238, 103 S.Ct. 2317 (internal marks omitted). Nevertheless, under this standard, we “may properly conclude that ... [a] warrant was invalid because the [district court’s] probable-cause determination reflected an improper analysis of the totality of circumstances.” Leon, 468 U.S. at 915, 104 S.Ct. 3405 (citing Gates, 462 U.S. at 238-39, 103 S.Ct. 2317).

B. Martin and Like Cases

In Martin, this Court considered the sufficiency of an affidavit filed in support of a search warrant of Martin’s residence based on information obtained from an FBI investigation into child pornography e-groups. See Martin, 426 F.3d at 73-77. The majority opinion affirmed the district *118court’s finding of probable cause based on the following factors: (1) the e-group’s welcome page and title, “girls 12-16,” made plain “its essential purpose to trade child pornography” of minor girls;7 (2) the affidavit’s discussion of the “modus oper-andi of those who use computers to collect and distribute child pornography”; (3) the affidavit’s description of the “characteristics and proclivities of child-pornography collectors,” including their tendency to collect pornographic images; (4) the fact that the e-group’s “illicit purpose could be inferred from the website’s technological features” that facilitated trading in child pornography; (5) the affiant’s confirmation that the e-group contained child pornography available to all members; (6) the fact that the defendant lived at the house to be searched; and (7) the fact that the defendant was an e-group member who joined voluntarily and never cancelled his membership. Id. at 75-76. The majority deemed it “common sense” that “an individual who joins such a site would more than likely download and possess such material,” and concluded that the affidavit, as corrected to eliminate statements determined to be false, established probable cause for the search warrant. Id.8

Judge Pooler dissented, expressing her concern that “the majority announces a dangerous precedent.” Id. at 78 (Pooler, J., dissenting). Under the majority’s decision, she explained, the government could obtain a warrant simply where an individual subscribes to an internet e-group that has an illegal purpose, notwithstanding the absence of particularized evidence indicating that the individual visited the e-group after joining or participated in the e-group’s functions. Id. But this result, she *119opined, cannot be squared with the general proscription against finding probable cause based solely on an individual’s “ ‘mere propinquity to others’ suspected of criminal activity.” Id. at 81 (quoting Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979)). In Judge Pooler’s opinion, the affidavit provided insufficient particularized facts as to Martin’s involvement in illegal activity, and the inferences drawn by the majority were ill-supported. For instance, she believed, the affidavit at issue did not support the inferential leaps that: (1) Martin participated in the functions of the e-group simply because he was a member of the group; (2) the overriding purpose of the e-group was illegal, because the group also fostered discussion that did not necessarily include the sharing of pornographic images of children; and (3) all members collect pornographic images of children simply because some do. Id. at 79-82. Finally, she challenged the majority’s “attempts to create the required nexus between Martin and illegal activity by appealing to ‘common sense.’ ” Id. at 83. In this regal’d, Judge Pooler explained that “[wjhile the majority is correct that a magistrate [judge] presented with a warrant may ‘make a practical, common-sense decision,’ that decision must be based on the circumstances set forth in the affidavit.’ ” Id. (quoting Gates, 462 U.S. at 238, 103 S.Ct. 2317).

Two weeks after Martin was decided, the panel in Coreas expressed its view that “Martin itself was wrongly decided,” but “under established rules of this circuit” adhered to Martin’s holding because that case was heard first. Coreas, 419 F.3d at 159. The affidavit at issue in Coreas was substantively identical to the one considered by this Court in Martin, except that it pertained to a member of a different e~ group, titled “Candyman.” Id. at 157 (finding the distinction immaterial for purposes of the case).9 The Coreas panel concurred with Judge Pooler’s minority position in Martin, and detailed how easy it was to become a member of the e-group, including by the innocent or inadvertent single click of a button. Id. at 156, 158. Coreas also explained that Martin — to the extent it focused on the overriding illegal purpose of the group rather than on the activities of the person targeted for the search — “might tend to dilute the First Amendment’s protection against guilt by association and diminish the Fourth Amendment’s focus on particularity and on protection of the privacy of the individual to be searched.” Id. at 158.10

*120Our sister circuits have addressed this issue consistently with the majority’s holding in Martin, although the facts and considerations of the decisions vary. United States v. Shields, 458 F.3d 269 (3d Cir.2006); United States v. Wagers, 452 F.3d 534 (6th Cir.2006); United States v. Gourde, 440 F.3d 1065 (9th Cir.2006) (en banc); United States v. Froman, 355 F.3d 882 (5th Cir.2004); United States v. Hutto, 84 Fed.Appx. 6 (10th Cir.2003) (unpublished). The common thread among these cases is the defendants’ membership in or subscription to websites whose principal purpose was the collection and/or sharing of child pornography. See Shields, 458 F.3d at 272-73, 278; Gourde, 440 F.3d at 1070; Froman, 355 F.3d at 890-91; Hutto, 84 Fed.Appx. at * 8; see also Wagers, 452 F.3d at 543.11 Additional factors weighing in favor of probable cause in some of these cases included: (1) acts of the defendant that tended to negate the possibility that his membership or subscription was unintended, see, e.g., Shields, 458 F.3d at 278-79 (defendant’s membership in multiple sites undermined suggestion that his membership may have been unwitting or innocent); Wagers, 452 F.3d at 536-37 (same); Gourde, 440 F.3d at 1070 (defendant’s subscription required him to provide his credit card information, home address, and email address); (2) e-mail addresses or screen names suggestive of an interest in collecting child pornography, see Shields, 458 F.3d at 279-80 (“LittleLolitaLove@ aol.com e-mail”); Froman, 355 F.3d at 890-91 (“Littlebuttsue” and “Littletitgirly” screen names); and (3) defendant’s criminal history relating to child pornography, Wagers, 452 F.3d at 541.

C. No Probable Cause

Falso’s case stands apart from those preceding it insofar as he was not alleged to have actually accessed or subscribed to any child-pornography website. Rather, Agent Lyons’s affidavit alleged only that Falso was perhaps one of several hundred possible subscribers to the cpfreedom.com website, who appeared either to have gained or attempted to gain access to the site. For this reason, Martin and Coreas are not controlling.

1. Member of or Subscriber to a Child-Pornography Website

Falso asks us to interpret Martin rigidly as requiring, for a finding of probable cause, that a defendant in these types of eases be a member of or subscriber to a child-pornography website. His approach to the issue, however, is antithetical to the “fluid” concept of probable cause espoused by the Supreme Court. See Gates, 462 U.S. at 232, 103 S.Ct. 2317; see also Martin, 426 F.3d at 74. While the probable cause finding in Martin depended heavily on the fact that the defendant was a member of a principally illicit website, nothing in that decision should be read to require these conditions in all similar cases. For example, the absence of membership would not be dispositive if other factors— such as evidence that the defendant otherwise downloaded illegal images — were present.

*121That said, membership in or subscription to a child-pornography website12 is an important consideration in these types of cases because it supports the ultimate inference, drawn in Martin, that illegal activity is afoot. As the majority opinion explained in Martin, “membership in the e-group reasonably implied use of the website,” and it is “common sense that an individual who joins such a site would more than likely download and possess such material.” 426 F.3d at 75. Putting aside whether those inferences are reasonable, see id. at 79-81 (Pooler, J., dissenting) (explaining why they are not); Coreas, 419 F.3d at 156-58 (same), it is the fact of membership to a child-pornography website that largely supports the inferences drawn in Martin that the defendant more likely than not used the website and downloaded images from it.

In Falso’s case, there is no allegation that he subscribed to CP Freedom’s paying-membership site; only that it “appear[ed]” that he “gained access or attempted to gain access” to the nonmember cpfreedom.com website. Even if one assumes (or infers) that Falso accessed the cpfreedom.com site, there is no specific allegation that Falso accessed, viewed or downloaded child pornography. While the non-member site contained approximately eleven images of child pornography, the affidavit lacks any information about whether the images were prominently displayed or required an additional click of the mouse; whether the images were downloadable; or what other types of services and images were available on the site.13

Falso’s case is thus quite unlike Martin, where the supporting affidavits provided at least some of this information about the features of the sites at issue. For example, the supporting affidavit in Martin asserted that members of the e-group had access to, among other features, a “Files” section that enabled users to post images and video clips for other members “to access and download.” Martin, 426 F.3d at 70. Indeed, the affidavit in Martin explained that an FBI agent had downloaded approximately 100 pictures and movies of child pornography from the Files section. Id. at 70. In addition, the affidavits in Martin and Coreas contained information about each site’s “welcome pages,” which the majority in Martin found to be highly relevant to the probable cause determination, insofar as the messages announced the e-groups’ central purpose to trade child pornography. See Martin, 426 F.3d at 75; see also Coreas, 419 F.3d at 157. By contrast, Agent Lyons’s affidavit contains no such information about the cpfreedom.com site.

Agent Lyons’s inconclusive statements about whether Falso even accessed the cpfreedom.com website, coupled with the absence of details about the features and nature of the non-member site, falls short of establishing probable cause. The question, then, is whether other allegations in the affidavit, considered as a whole, provide a basis to support the district court’s finding of probable cause.

2. Falso’s Criminal History

The most obvious other factor that might support a finding of probable cause is Falso’s eighteen-year-old misdemeanor *122conviction for Endangering the Welfare of a Child. The district court found Falso’s conviction “[i]mportant[ ]” and “highly relevant” to the probable cause calculus in light of the affidavit’s representation that “the majority of individuals who collect child pornography are persons who have a sexual attraction to [children].” But this reasoning falls victim to logic.

“It is an inferential fallacy of ancient standing to conclude that, because members of group A” (those who collect child pornography) “are likely to be members of group B” (those attracted to children), “then group B is entirely, or even largely composed of, members of group A.” See Martin, 426 F.3d at 82 (Pooler, J., dissenting) (pointing out the fallacy in a different context).14 Although offenses relating to child pornography and sexual abuse of minors both involve the exploitation of children, that does not compel, or even suggest, the correlation drawn by the district court.15 Perhaps it is true that all or most people who are attracted to minors collect child pornography. But that association is nowhere stated or supported in the affidavit. See Gates, 462 U.S. at 238, 103 S.Ct. 2317 (probable cause assessments are to be made from “all the circumstances set forth in the affidavit”); Gourde, 440 F.3d at 1067 (“All data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath” (internal marks and citation omitted)). While the district court undoubtedly had the safety of the public in mind, an individual’s Fourth Amendment right cannot be vitiated based on fallacious inferences drawn from facts not supported by the affidavit.

Nor is the district court’s reasoning saved by the affidavit’s general statement, relied upon by the government at oral argument, that “computers are utilized by individuals who exploit children (which includes collectors of child pornography) to ... locate, view, download, collect and organize images of child pornography found through the internet.”16 There simply is nothing in this statement indicating that it is more (or less) likely that Falso’s computer might contain images of child pornography. That is, the affidavit’s sweeping representation that computers are used by those who exploit children to, inter alia, view and download child pornography, would be equally true if 1% or 100% of those who exploit children used computers to do those things.

Furthermore, we