United States v. Thomas

• Decision Date: 11 June 2015
• Docket Number: No. 14–1083–cr.,14–1083–cr.
• Citation: 788 F.3d 345
• Parties: UNITED STATES of America, Appellee, v. Derek THOMAS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Second Circuit

788 F.3d 345

UNITED STATES of America, Appellee

v.Derek THOMAS, Defendant–Appellant.

No. 14–1083–cr.

United States Court of Appeals, Second Circuit.

Argued: Jan. 15, 2015.

Decided: June 11, 2015.

Elizabeth D. Mann, Tepper Dardeck Levins & Mann, LLP, Rutland, VT, for Defendant–Appellant.

Nancy J. Creswell (Paul J. Van De Graaf, on the brief), Assistant United States Attorneys, for Eugenia A.P. Cowles, Acting United States Attorney for the District of Vermont, Burlington, VT, for Appellee.

Before: WINTER, CABRANES, and RAGGI, Circuit Judges.

Opinion

JOSÉ A. CABRANES, Circuit Judge:

The question presented is whether a search warrant affidavit that relied upon evidence generated by an automated software program provided a substantial basis for a magistrate judge's conclusion that there was probable cause that child pornography would be found on defendant's computer.

We hold that the affidavit at issue sufficiently established probable cause and that defendant's motions to suppress were properly denied.

The judgment of the United States District Court for the District of Vermont (Christina Reiss, Chief Judge ) is affirmed.

BACKGROUND

Defendant Derek Thomas appeals from the denial of his motions to suppress the searches of his residence and his computer. Thomas pleaded guilty to the production of child pornography, in violation of 18 U.S.C. § 2251(a),¹ but reserved the right to appeal from two orders of the District Court for the District of Vermont (Christina Reiss, Chief Judge ) denying his motions to suppress evidence. On March 31, 2014, the District Court sentenced Thomas principally to 180 months' imprisonment and 8 years' supervised release.

Thomas was arrested as part of a joint federal and state law enforcement investigation in Vermont during 2011 and 2012, known as “Operation Greenwave,” into potential child pornography offenses committed through the use of peer-to-peer (“P2P”) file-sharing software.² As part of the investigation, law enforcement relied upon automated software programs to help locate Internet Protocol (“IP”) addresses engaged in the possession and distribution of child pornography.³ The software, designed for and used by law enforcement, was created by a private “data fusion” company called TLO. United States v. Thomas, No. 5:12–cr–37, 2013 WL 6000484, at *4 (D.Vt. Nov. 8, 2013). TLO provides a suite of software and other products—known collectively as the Child Protection System (“CPS”)—to licensed law enforcement professionals free of charge to investigate child pornography that is collected and distributed over P2P networks. Id.

Traditionally, law enforcement officers seek to detect child pornography offenses by manually sending out search queries for illicit material over P2P networks, one-by-one. CPS automates this process by canvassing these public P2P networks, identifying files that contain child pornography, cataloguing this information, and providing law enforcement officers with a list of the online users who are sharing these files over P2P networks.⁴ Law enforcement officers can then use that list to focus their investigative efforts on those IP addresses—and the associated computers and users—that are believed to be engaging in the possession or distribution of child pornography. Id.

In order to use CPS products, law enforcement must attend and successfully complete a three-day training course. During the course, law enforcement officers are instructed on how to search for child pornography with P2P file-sharing software using both the manual method and the automated CPS method. The officers are then taught how to compare the results, to demonstrate the reliability of the software. Id. If a law enforcement officer completes the course, TLO will allow that officer to use the CPS software in his or her jurisdiction. Id.

In late 2011, Detective Gerard Eno of the South Burlington Police Department was investigating child exploitation offenses. The particular focus of his investigation was offenders who were using P2P file-sharing software to exchange child pornography files. Id. at *7, 11. Detective Eno, who had completed TLO's training course and was licensed by the company to operate its software in Vermont, used CPS to identify an IP address that had offered to share images and video files that were tagged as being potentially child pornography. Detective Eno confirmed that the files indeed constituted child pornography by cross-referencing them with other databases and file-share systems.⁵ Id. at *11.

Using the IP address obtained through CPS, Detective Eno traced the computer to a physical address in Vermont, which turned out to be where defendant Derek Thomas lived. Special App. 41. After conducting a period of surveillance on this residence, a search warrant application for the address was submitted to a magistrate judge. Accompanying the application was a 22–page affidavit by Homeland Security Investigations Special Agent Seth Fiore (the “Fiore Affidavit”), which included a detailed explanation of: (1) P2P file-sharing; (2) how P2P file-sharing software is used to exchange child pornography; (3) the use made, in general, of CPS software during the investigation; and (4) the grounds for probable cause to search the target address and any computers found there (including a description of the files that the CPS software detected on defendant's computer). Id. at 56–82. While the Fiore Affidavit described the use of CPS software in general terms, it did not identify the company that created the software, or refer to the software by name. Id. at 14–15.

The magistrate judge issued the requested search warrant. Id. at 42. Law enforcement agents executed a search on the residence and on Thomas's computer. Id. at 42–43. Child pornography files were thereafter found on the computer. Id. at 43.

Thomas filed four separate motions to suppress the evidence seized pursuant to these searches. Following a consolidated suppression and Franks hearing,⁶ the District Court denied Thomas's motions, concluding that probable cause existed for the search of Thomas's residence and computer.

Relevant here, the District Court found that the Fiore Affidavit adequately disclosed the fact that law enforcement used automated software in conducting its investigations and that Thomas's challenge to the reliability of the automated software was unsupported by any evidence. The District Court also found that the primary function of CPS is simply to produce lists of otherwise public information.

DISCUSSION

The question before us is whether, under the totality of the circumstances, the Fiore Affidavit provided a substantial basis for the magistrate judge's conclusion that there was probable cause that child pornography would be found on a computer in Thomas's residence.

The standard of review for evaluating the district court's ruling on a suppression motion is clear error as to the district court's findings of historical facts, but de novo as to ultimate legal conclusions, such as the existence of probable cause. United States v. Raymonda, 780 F.3d 105, 113 (2d Cir.2015).

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.” Maryland v. Pringle, 540 U.S. 366, 370–71, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (citation omitted). Indeed, the probable-cause standard is “incapable of precise definition or quantification into percentages because it deals with probabilities and depends on the totality of the circumstances.” Id. at 371, 124 S.Ct. 795.

When reviewing a challenged warrant, we “accord considerable deference to the probable cause determination of the issuing magistrate.” Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir.2007). This degree of deference derives from a concern that “[a] grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.” United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965). Accordingly, the task of a reviewing court is simply to ensure that the totality of the circumstances afforded the magistrate “a substantial basis” for making the requisite probable cause determination. Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

We have previously held that “to suppress evidence obtained pursuant to an affidavit containing erroneous information, the defendant must show that: (1) the claimed inaccuracies or omissions are the result of the affiant's deliberate falsehood or reckless disregard for the truth; and (2) the alleged falsehoods or omissions were necessary to the issuing judge's probable cause or necessity finding.” United States v. Rajaratnam, 719 F.3d 139, 146 (2d Cir.2013) (quoting United States v. Canfield, 212 F.3d 713, 717–18 (2d Cir.2000) ) (internal quotation marks and brackets omitted). In the case of omissions, we explained that “the ultimate inquiry is whether, after putting aside erroneous information and correcting material omissions, there remains a residue of independent and lawful information sufficient to support a finding of probable cause or necessity.” Id. (quoting Canfield, 212 F.3d at 718 ) (internal quotation marks and brackets omitted). In general, it is strong evidence that the Government did not deliberately falsify information in the affidavit, or act with “reckless disregard for the truth,” when the alleged omission would have strengthened, rather than weakened, the Government's showing of probable cause. See id. at 155.

Here, Thomas asserts that the evidence recovered from his computer must be suppressed because the Government omitted two crucial items of information from the affidavit that the magistrate relied upon in issuing the relevant search warrants: (1) the fact that CPS, a third-party software source, generated the information upon which the Government relied; and (2) information...