United States v. Raymonda

• Decision Date: 02 March 2015
• Docket Number: Docket No. 13–4899–cr.
• Citation: 780 F.3d 105
• Parties: UNITED STATES of America, Appellant, v. James RAYMONDA, Defendant–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

780 F.3d 105

UNITED STATES of America, Appellant

v.James RAYMONDA, Defendant–Appellee.

Docket No. 13–4899–cr.

United States Court of Appeals, Second Circuit.

Argued: Nov. 3, 2014.

Decided: March 2, 2015.

Monica J. Richards, Assistant United States Attorney, for William J. Hochul, Jr., United States Attorney for the Western District of New York, Buffalo, New York.

Marybeth Covert, Assistant Federal Defender, Federal Public Defender's Office, Western District of New York, Buffalo, New York, for Defendant–Appellee James Raymonda.

Before: WALKER, LYNCH, and CHIN, Circuit Judges.

Opinion

DENNY CHIN, Circuit Judge, filed a separate opinion, concurring in part and dissenting in part.

GERARD E. LYNCH, Circuit Judge:

More than nine months after someone using defendant-appellee James Raymonda's IP address accessed thumbnail images of child pornography on the Internet, government agents obtained a search warrant for his home and discovered over one thousand files of child pornography. The United States District Court for the Western District of New York (William M. Skretny, Chief Judge ) granted Raymonda's motion to suppress, finding that the government's evidence that Raymonda had accessed child pornography on a single occasion nine months earlier was too stale to establish probable cause that he would still possess illicit images at the time of the search. The United States appeals that decision, arguing that the recognized propensity of persons interested in child pornography to collect and hoard such images supports an inference that Raymonda would still possess child pornography when the warrant was sought. Alternatively, the government argues that, even if probable cause was lacking, the evidence should not be suppressed because the agents who executed the search relied in good faith on a warrant duly issued by a judicial officer.

We agree with the district court that a single incident of access to thumbnail images of child pornography, absent any other circumstances suggesting that the suspect accessed those images deliberately or has a continuing interest in child pornography, fails to establish probable cause that the suspect will possess illicit images many months later. However, because the agents in this case relied in good faith on a magistrate judge's independent determination of probable cause, we reverse the district court's order granting Raymonda's suppression motion.

BACKGROUND

I. The Investigation

On January 13, 2011, U.S. Immigration and Customs Enforcement (“ICE”) Special Agent Eric Sajo of the San Diego Cyber Crimes Unit discovered a link on the website www.motherless.com. Posted under a discussion thread dedicated to discussing administrative website content, such as “bugs, feature requests, complaints, or other site related materials,” the link redirected Agent Sajo to the website “www.coolib.org.” That site featured numerous thumbnail links to images of child pornography, spread across several pages hosting up to approximately thirty thumbnails each.

After Agent Sajo obtained a search warrant for the website content of www. coolib.org, the site's host company provided records that included 861 images of child pornography, as well as access log information for each image posted to the site. The host company also produced Internet Protocol (“IP”) logs for individual users who had visited the website, tracking GET requests automatically generated when a user's web browser downloaded the thumbnails on each web page.¹ Organized by individual user, the IP logs indicated which specific files the user's browser had accessed or attempted to access and when the access or attempted access had occurred. Due to the host company's server configurations, the only IP logs available were those for January 16, 2011.

The IP logs revealed that, on January 16, 2011, a user with a particular IP address accessed 76 images from www.coolib.org, the majority of which were thumbnail images of child pornography. Although the IP logs were not organized chronologically, the time stamps on the GET requests suggested that all 76 images were accessed over a period of seventeen seconds. The log showed no user requests for any full-sized versions of the thumbnail images.

On July 13, 2011, Time Warner Cable identified the Internet subscriber associated with that IP address on January 16, 2011 as James Raymonda of Buffalo, New York. The United States Postal Service subsequently confirmed that Raymonda currently received mail at the address associated with that account.

II. The Warrant

Based on the foregoing information, on October 27, 2011, Special Agent Adam J. Ouzer of the Homeland Security Investigations division (“HSI”) of the Department of Homeland Security applied for a warrant to search the property at Raymonda's address for violations of 18 U.S.C. §§ 2252 and 2252A, which prohibit the distribution, possession, or receipt of child pornography.

In support of the application, Agent Ouzer included an affidavit disclosing the details of Agent Sajo's investigation, including Agent Sajo's discovery of www.coolib.org through a link on www.motherless.com, his acquisition of user logs for the IP address in question, and his confirmation that this IP address was associated with Raymonda. Discussing the content of the IP logs, Agent Ouzer stated that “76 images, the majority of which were images of child pornography, ... were accessed by the user of [the] IP address.” While conceding that these logs provided “no record that the user accessed an enlarged (full size) image,” Agent Ouzer concluded that they nevertheless “show more than one incidence of access of thumbnail images by the user.” He also stated that the logs “identified that the user of [the] IP address ... successfully viewed suspect child pornography images contained in Directory 55,” and that “the frequency of successful (GET) requests for the suspect images” contained in the log “provide evidence that the user intended to view the content.” Agent Ouzer did not append the full IP log to his warrant application, nor did he state that the time stamps on the log covered a span of seventeen seconds.

In addition to his account of the investigation, Agent Ouzer's affidavit included numerous boilerplate paragraphs describing the online trade in child pornography and the logistics of recovering digital data from computer hard drives. Agent Ouzer testified that the abundance of information-sharing technologies on the Internet have made computers “a preferred method of distribution and receipt of child pornographic materials,” and that computers' capacity “to store images in digital form makes [them] an ideal repository of child pornography.” Fortunately for investigators, because electronic data stays in a computer's residual memory long after deletion, forensic specialists can recover even ostensibly deleted pornographic files “months or even years after they have been downloaded onto a hard drive ... or viewed via the Internet.” Even Internet files that are “automatically downloaded into a temporary Internet directory ... are only overwritten as they are replaced with more recently viewed” files.

Finally, Agent Ouzer stated that his experience investigating child pornography cases had revealed certain common propensities among persons interested in child pornography. “Individuals who have a sexual interest in children” commonly hoard images of child pornography, “retain[ing] pictures, films, photographs, negatives, ... and videotapes for many years.” Even digital images, seemingly replaceable, “are often maintained for several years and are kept close by, usually at the collector's residence, to enable the individual to view the collection, which is valued highly.” Agent Ouzer concluded that the “person(s) residing at the SUBJECT PREMISES exhibits the common characteristics described above of someone involved in the distribution, receipt, and possession of child pornography.”

Based on Agent Ouzer's application, a magistrate judge issued a search warrant for Raymonda's address. Agent Ouzer and several other HSI agents executed the warrant on November 8, 2011. While several agents searched the house, Agent Ouzer and a colleague asked Raymonda to speak with them outside. The agents told Raymonda about the nature of the warrant, but advised that he was not under arrest and was free to leave. Raymonda nevertheless agreed to speak with them and, in the ensuing conversation, admitted to viewing child pornography online.

Inside the home, HSI agents seized two laptops, a tower computer, and an external hard drive. These items were later found to contain over 1,000 images of child pornography.

III. Indictment and Motion to Suppress

On December 21, 2011, Raymonda was indicted in the Western District of New York on one charge of knowingly receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and four charges of knowingly possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

On March 19, 2012, Raymonda filed a motion to suppress all evidence discovered at his home on November 8, 2011, including his statements to Agent Ouzer, arguing that the search warrant was issued without probable cause and that Agent Ouzer had not relied on that warrant in good faith. Specifically, Raymonda argued that Agent Ouzer's evidence that a user with his IP address allegedly accessed images of child pornography in January 2011 was too stale to suggest that pornographic images would still be found in his home at the time of the search, and that Agent Ouzer's involvement in United States v. Coon, No. 10–CR–110A, 2011 WL 1871165 (W.D.N.Y. May 16, 2011), an earlier case in which one-year-old evidence of possession had been found too stale to create probable cause, should have alerted him to the deficiency.

In support of his motion, Raymonda introduced the expert testimony of Gerald R. Grant, a forensic investigator with the Federal Public Defender's office. Grant testified that GET requests for images...