U.S. v. Falso

Decision Date25 September 2008
Docket NumberDocket No. 06-2721-cr.
Citation544 F.3d 110
PartiesUNITED STATES of America, Appellee, v. David J. FALSO, also known as Sealed Premise, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Brenda K. Sannes, Assistant United States Attorney (Glenn T. Suddaby, United States Attorney for the Northern District of New York; Miroslav Lovric, Assistant United States Attorney, on the brief), Syracuse, NY, for Appellee.

Bruce R. Bryan (Vincent L. Briccetti, Briccetti, Calhoun & Lawrence, LLP, White Plains, NY, on the brief), Syracuse, NY, for Defendant-Appellant.

Before: JACOBS, Chief Judge, SOTOMAYOR and LIVINGSTON, Circuit Judges.

Chief Judge JACOBS joins Part I of the discussion and has filed a dissent.

Judge LIVINGSTON joins Part II of the discussion and has filed a concurring opinion.

SOTOMAYOR, Circuit Judge.

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 his 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 United 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. & Sotomayor, 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 approximately 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 cousy1731@yahoo.com. Records obtained from Yahoo revealed that Falso had an active Yahoo account, with a login name of "cousy1731" 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 `cousy 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.

C. 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)(1) & 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)(1), (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...

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