1

06
- 27 21
- cr U S A v. Fa l so U N IT E D S T A T E S C O U R T O F A P P E A LS FOR THE SECOND C IR C U IT August Term, 2007 (Argued: September

24, 2007 Dec ided: September 25, 2008)

Docke t No. 06-2721-c r

_____________________________________________

UNI TED STATES OF AMERI CA, Appellee ,

– v. – DAVI D J . FAL SO, also known as Sea led Premise, Defendant- Appellant
.

____________________________________________

Be fore J ACOBS, Chief Judge , SOTOMAYOR and L I VI NGSTON, Circuit Judges
.

____________________________________________ Def endant- appellant Da

vid J . Fa lso appea ls from the June 6, 2006 judgment of the United States District Court for the Nor thern District of N ew Yor k (McAvoy , J .), convic ting him, upon his conditional guilty

plea to a 242- count indictment, of cr imes relatingto child pornog raphy and tra v el i n g wi thth e i n t en tt o en gage i ni l l i ci ts ex u al co n d u ctwi thm i n o rs . Inan o p i n i o nb y J u d ge Sotomay or, the Court holds in Part Ithat the district court’s f inding of probable cause was not su pp or te d b y a su bs tanti a l ba sis . In Pa

rt I Ithe Court

ho lds that th e dis tr ic t c ourt ne ve rt he le ss proper ly denied F also’s motion to suppress phy sical evide nce se ized from his home under the g ood-fa ith ex ception to the exclusionary rule. The judgme nt is AFF I RMED. Chi e f Jud g e Jac ob s jo ins Part Iof the dis c us sio n a

nd ha s f ile d a dis se nt. J udg e L ivingston joins Part I Iof the discussion and ha s filed a c oncurr ing opinion.In th is o pin ion we a dd re ss o nly F a lso ’s c ha lle ng e s to the dis tr ic t c ourt ’s de nia l of his 1 mo ti o nto s u

p p r e s s p h y s ic a l e v id e n c e s e iz e d f r o m h is h o me p ur s u an t t o th e s e ar c hw ar r an t. We addre ss and re

ject F also’s re maining c laims in a companion summary order
. 2 BREND A K. SANNES, Assistant United States Attorney (Glenn T. Suddaby , United States Attorney for the N orthern D istrict of NewYork; Miroslav L ovric, Assistant United States Attorney , on the brief ), Sy rac use, NY, for Appellee
. B RU CE R . B RY AN(V inc e nt L . B ri c c e tti , B ri c c e tti , Calhoun & L awr ence , L L P, W hite Plains, NY, on the brief ), Sy rac use, NY, for Defendant-Appe llant
. SOTOMAYOR, Circuit Judge
. Def endant- appellant Da

vid J . Fa lso (“F also”) a

ppeals fr om the J une 6, 2006 judg ment of the United States District Court for the Norther n District of Ne w York ( McAvoy , J .). F also was
c onvic te d, up on

his c on dit ion a l guil ty

ple a to a 24 2- c ount i nd ic tme nt, of c ri me s r e latin g to c hil d pornog raphy

and traveling with the intent to eng ag e in illicit sex ual conduc t with minors. P rior to F a lso ’s g uil ty

ple a , th e dis tr ic t c ourt

de nie d h is m oti on

to s up pr e ss e vid e nc e se ize d f ro m hi s home on the g rounds that proba ble ca use for the sea rch e x isted and that, in any event, the “ g oodfaith” e x ception to the exclusionary rule a pplied. 1 The thre shold issue presente d on appea l is whether a substantial basis for the district court’s f inding of probable cause exis ts where the law e nforc ement af fidavit supporting the
sear ch wa rra nt alleg ed that F also “a

ppear s” to have “g ained or attempted to g ain” a cce ss to a website that distributed child pornog raphy and had be en convic ted eig hteen year s ear lier of a misdemeanor ba sed on sexual abuse of a minor. In a divided opinion in Un ite d S tates v . M ar tin , 42 6 F .3 d 6 8 ( 2d

Cir . 2 00 5) , th is C ourt

he ld t hat pr ob a ble c a us e to s e arc h th e de fe nd ant’ s h omeSom e tim e s w e have e sc he we d a na ly zingpr ob a

ble c a us e wh e n w e re ly

on the g oo d f

a ith 2 exception, see, e .g., United States v. J asorka , 153 F.3d 58, 60- 61 (2d Cir. 1998), but her e we elec t to decide both issues, Leon , 468 U.S. at 925 (“[N]othi ng will prevent re viewingcourts fr om decidingthe [Fourth Amendment] question before turning to the g ood-fa ith issue.”). 3 exis ted, larg ely

based on his member ship to a website whose principal purpose was shar ing of child pornog raphy

(her eaf ter, a “child-por

nog raphy website” ). Id. at 75-76. In United States v. Cor e as , 41 9 F .3 d 1 51 (2 d Ci r. 20 05 ), a dif fe re nt p ane l e xpre sse d it s b e lie f t hat Ma rti n “wa s
wr on g ly de c ide d, ” but a dh e re d to Ma rti n ’s holding be cause the ca ses wer e indistinguishable a nd Ma rti n was bindingprec edent. Id. at 159 (2d Cir. 2005). Fa lso’s case tests the limit s of these pr ece dents, insofar a s it presents the following distinguishing f

actor : Falso wa s not alleg ed to be a member or

subscriber

to a child-pornography website; it was alleg ed only that Fa lso “ appeared

” to “have g ained or a tte mpt e d to g a in” a c c e ss to a site that containe d approximately eleve n imag es of c hild pornog raphy . Absent any alleg ation that F a lso in f

a c t a c c e sse d th e we bs ite a t is su e , th e qu e sti on is whe the r F a lso ’s e ig hte e n- y e ar o ld conviction involving the se x ual abuse of a minor ( or some other fac tor) provide s a suffic ient basis to believe that e vidence of child pornog raphy crimes would be found in Fa lso’s home. A majority of this panel (Jacobs, C.J . & Sotomayor, J.) holds t hat proba ble ca use wa s lacking . A differ ently

alig ned majority

of this panel (Sotomayor & L ivingston, J.J .), howe ver, holds that the g ood-fa ith ex ception to the exclusionary rule a pplies. See U

nited States v. Leon , 468 U.S. 897, 923-25 (1984) . Thus, notwithstanding the a bsence of proba

ble ca use to sustain issuance of the
se arc h w arr ant, a

ma jor ity of thi s p ane l a ff

ir ms t he dis tr ic t c ourt ’s de nia l of F a lso ’s mot ion

to suppress the phy sical evide nce se ized from his home. 2 BACK GR OUND4

A. The Se ar c h Wa r r antAffida vit On or a bout J une 1, 2005, the F eder al B urea u of Investig ation (“F BI ”) submitted an application for

a wa rra nt to searc h for a

nd seize evidenc e of c hild pornog raphy in Falso’s home
. T h e a p p l i c a t i o nw a s s u

p p o rt e d b y, inte r a lia , a twenty -six pag e af fidavit by FB IAg ent J ames Ly ons (“Ag ent Ly ons”). Amongother thing s, the aff idavit provided information about (1) the use of c omputers and the inter net to view and c ollect child pornog raphy ; (2) the c hara cter istics of child-pornog raphy

collector s; and (3) the investigation that impl icated F also. Of the a ffidavit’s g ener alized information, Ag ent Ly ons expl ained that individuals who exploi t children, includingcollector s of child pornog raphy , commonly use computer s to: communicate w ith like-minded individuals, st ore the ir child pornog raphy collections, and loc ate, vie w, do wn loa d, c oll e c t and or g anize ima g e s o f c hil d p or no g ra phy fo un d o n th e int e rn e t. The
a ff ida vit fu rt he r e xpla ine d th at c oll e c tor s a nd dis tr ibutor s o f c hil d p or

no g ra phy so me tim e us e online resour ces to re trieve a nd store child pornography , including se rvice s offe red by internet portals such a s Yahoo! I

nc. (“ Yahoo” ). T h e a f

f i d av i ta l s o c o n t a i n e d

i n f o r m a t i o ng a th e r e d

b y a member of

the FB I ’s B ehavior al Analy sis Unit, including his observations that “[t ]he majority of individuals who collect child pornog raphy are persons who ha

ve a se x ual attra ction to children,” and that those who c ollect imag es of c hild pornog raphy g ener ally store their c ollections at home. Specific to the inve stigation of Fa lso, the aff idavit expl ained that the F BI obtained the Inte rn e t Pr oto c ol a dd

re ss o f a we bs ite , w ww .c pf

re e do m.c om, wh ic h c onta ine d a pp ro ximate ly eleve n imag es of c hild pornog raphy , and which a dvertised a dditional child pornog raphy at an internet a ddress that wa s hidden until a membership wa s purcha sed. The a ffidavit fur ther stated that an under cover

FB Iag ent paid $99 for

a one- month membership and re ceive d an e- mail fromIn actua lity , the conviction re cords introduc ed in conne ction with the pretria l motions 3 clar ify that Fa lso pled g uilty

to the misdemeanor of

Endang eringthe Welfare of a Child under 5 CP F re e do m G ro up , w hic h p ro vid e d th e int e rn e t a dd re ss, log in n

umb e r, and

pa ssw or d f

or its
me mbe rs hip we bs ite , w ww .c p- me mbe rs .c om. Th e a ff ida vit the n e xpla ine d th a t an F B Ifo re ns ic
e xami na tio n o f “ the we bs ite ho sti ngwww. c pf re e do m.c om” re ve a le d “ se ve ra l po ssi ble subscriber s alongwith e-mail addr esses a nd other infor

mation.” Acc ordingto the aff idavit, the FB Isubpoenae d subscriber information for the se e- mail addre sses, which include d cousy 1731@y ahoo.com. Records obta ined from Ya hoo reve aled that F also had a n active Y ahoo
acc ount, with a login name of “ cousy 1731” and the Yahoo e -mail addre ss refe renc ed above
. The aff idavit also stated that the re sidential addre ss associated w ith Falso’s Ya hoo acc ount had ac tive int e rn e t se rv ic e duri ngthe pe ri od imm e diate ly

pr e c e din g the wa

rr ant r e qu e st. Th e a ff

ida vit f urth e r s tate d th at, b a s e d

u p o nth e F B Iinv e s ti g a ti o nan d th e f o r e n s ic e xami n a ti o n , “ it

a p p e ar [e d ]” that F a lso “ e ith e r g a ine d a c c e ss o r atte mpt e d to g a in a c c e ss t o th e [non -m e mbe r] w e bs ite
www.c pfre edom.com.” The a ffidavit also re veale d that on Fe bruar y 18, 1987—approximately eig hteen year s
e arl ie r— F a lso wa s arr e ste d b y

the Ne w Y or

k St a te Pol ic e fo r s e xua lly a bu sin g a se ve n- y e ar o ld g irl and wa s char g ed with Sexual Abuse and Endang ering the Welfare of a Child. Ac c or din g to the af fidavit, the police r eport re lating to this incident stated that F also place d his hands inside the g irl’s underw ear

and dig itally

penetr ated he r, and a cknowledg ed to police that he may need counselingfor late nt problems. The a ffidavit also stated that, on or about September 21, 1987, Fa lso pled g uilty

to Acting in a Manne r Injurious to a Child L ess than Six teen, a misdemeanor for whic h Fa lso rece ived a se ntence of three y ear s probation. 3New Y ork Penal L aw § 260.10- 1 by knowing ly

actingin a manner

likely to be injurious to the phy sical, mental or mor al welf are of a c hild under the a g e of se ventee n. The district cour t took notice of this fa ct when a djudicating Fa lso’s suppression motion. 6 Ba sed on the for eg oing, A g ent Ly ons opined that “ther e [was] probable ca use to believe that th e ind ivi du a l ut ili zingthe Ya ho o I D ‘ c ou sy

17 31 ’ [i .e . F a lso ] . . . is a c oll e c tor of c hil d pornog raphy .” J udg e McA voy ag ree d and issued a se arc h war rant on June 1, 2005, permitting the FB Ito searc h Fa lso’s home for, inte r a lia , evidenc e of c hild-pornog raphy related cr imes. B. The Search and S eizure Five la w enf orce ment office rs, including Ag ent Ly ons, executed the sea rch w arr ant at F a lso ’s ho me on

June 8, 20 05 . T he of

fi c e rs se ize d F a lso ’s c omp ute r a nd a bo x co nta ini ngc hil d pornog raphy

in Falso’s be droom. Ag ent Ly ons and anothe r off icer also interviewe d Fa lso for approximately

ninety minutes during the sear ch. Ag ent Ly ons’s repor t from the intervie w stated that F a lso a dmi tte d to , amon g oth e r t hin g s, ob ta ini ngc hil d p or no g ra phy fr om t he int e rn e t; eng ag ing in se x ual ac tivity with female s in other countrie s whom he believe d to be betwe en the
a g e s o f s ixte e n a

nd e ig hte e n; a

nd havin g be e n c onvic te d f

or se xua lly a bu sin g a se ve n- y e ar o ld g ir l. Fa lso was place d under a rre st at the conc lusion of the sear ch. A late r sea rch of Fa lso’s computer r evea led additional imag es of c hild pornog raphy
. C. F also’s Crim inal Proc eedings F a lso wa s in dic te d o n Jun e 16 , 2 00 5 f or tr ave lin g wi th t

he int e nt t o e ng a g e in i lli c it sexual conduct with minors in viol ation of 18 U.S.C. §§ 2423(b), (f ) & 2246 (Counts 1-2); production of c hild pornog raphy in violation of 18 U.S.C. § 2251(a) (Counts 3-10); re ceiving child pornog raphy

via the interne t in violation of 18 U.S.C . §§ 2252A(a )(2) (A), ( B) & 2256 (Counts 11-233); transportingand shipping child pornog raphy in violation of 18 U.S.C.Se e Fran k s v . D e law ar e , 438 U.S. 154 (1978) (holdingthat, under c erta in limi ted 4 circ umstances, a

defe ndant is entitled under the F ourth Amendment to attac k collater ally the vera city of a w arr ant af

fidavit in the context of challeng ing the exis tence of proba ble ca use). 7 §§ 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 alleg ed that F also had a prior conviction re lating to the se x ual exploit ation of childre n, and sexual abuse involving a minor, which invoked the pe nalty provisions of 18 U.S.C. §§ 2252A(b)(1) , (b)( 2) and 2251. Fa lso subsequently

moved to suppress the e vidence seized from his home and c omputer on the g round that proba

ble ca use for the sea rch w as lac king. Specifica lly , Fa lso claimed that the prese nce of

his e-mail addr ess on the cpf ree dom.com website wa s an insufficie nt basis for probable cause in the absenc e of a ny alleg ations in the aff

idavit that Falso wa s a member or
su bs c ri be r t o th e we bs ite , o r t hat th e ov e rr idi ngpurp os e of the we bs ite wa s th e tr a din g of c hil d pornog raphy
. Fa lso also sought a Franks hear ing, claiming that cer tain of the infor

mation in the 4 aff idavit was desig ned to mislead the c ourt into believing that Fa lso was ac tually a member

of or subscriber

to the cpfr eedom we bsite, and that the g overnme nt misl eading ly failed to disclose that F a lso ’s e -m a il a dd

re ss c ou ld h ave a

pp e are d o n th e c pf

re e do m.c om w e bs ite fo r i nn oc e nt r e a so ns , such as be ing pa

rt of a spa m mailing list. In s up po rt , F a lso su bmi tte d a n a ff ida vit fr om a data fore nsics expert, Robert DeCicc o (“D eCicco” ). Th a t a ff ida vit e xpla ine d th a t “ the re is a differ ence betwee n visiti ng a we bsite, and bec ome [sic] a member and/or subscr iber to the site”; the latter nor

mally “involves the a ssignment of a passwor d and user

name c onditioned on the pay ment of a f

ee or the provision of spec ific per sonal information.” D eCicco’ s aff idavit further explained that internet ser vice pr oviders [such as Ya hoo] do not maintain rec ords identifying the8

websites visited by

their customer s and, thus, a re view of se rvice provider r ecor ds “would not dis c los e wh e the r a

c us tom e r w a s a

su bs c ri be r o r m e mbe r o f a

pa rt ic ula r w e bs ite .” Mo re ov e r, his aff idavit stated that “[i] t is common practice for we bsites to obtain lis ts of e-ma il addresse s from other sourc es . . . and to send unsolicited e -mail to such addr esses.” Thus, DeCicc o conclude d, “the f act that [Fa lso’s] e-mail address a ppear ed on the [cpfr eedom.c om] website doe s not mean that he conta cted or

attempted to contac t that site.” On F e br ua ry 24 , 2 00 6, the dis tr ic t c ourt iss ue d a n o ra l r uli ngde nyingF a lso ’s mot ion s, holding that: (1) Fa lso was not entitled to a Franks hear ing; ( 2) proba ble ca use for the sea rch exis ted; and (3) even if

there was a

n insufficient ba sis for proba ble ca use, suppre ssion of the evidenc e wa s not warr anted be cause the g ood-fa ith ex ception to the exclusionary rule a pplied. Mo re sp e c if

ic a lly , in re sp on se to F a lso ’s Franks claim, the cour t found that Ag ent Ly ons did not make any

false or misleading statements, and e x plained that, “[s]i g nificantly , the cour t was not misled by

Ag ent Ly ons.” The c ourt explained that it had never understood Ag ent Ly ons

“ to b e sayingthat de fe nd ant h a d a c tua lly su bs c ri be d to the CP F re e do m w e bs ite ;” rathe r, it understood the a ffidavit to say that there was re ason to believe Fa lso had either g ained or attempted to g ain ac cess to the site. Th e dis tr ic t c ourt

the n e xpla ine d it s b a sis fo r c on c lud ingtha t pr ob a ble c a us e e xiste d: F ir st, the re wa s th e inf

or matio n c on c e rn ingthe ba c kg ro un d o f p e rs on s d e a lin g in child pornog raphy , including the fac t that persons who c ollect child pornog raphy have a sexual attraction to children. Sec ond, there was infor mation that the web site, CP Free dom, adver

tised that it contained child pornography , actua lly had some imag es of c hild pornog raphy available on it free of cha rg e and a dvertised that it had additional imag es of c hild pornog raphy upon pay ment of a f

ee. T hird, the F B Ide te rm ine d th at th e mate ri a l a sso c iate d w iththe we bs ite is h ard c or e c hil d po rn og ra phy . F ourt

h, the re wa s e vid e nc e tha t [F a lso ] ha d a c c e ss o r atte mpt e d to a c c e ss t he CP F re e do m w e b s ite . F if th, the re wa s in fo rm a tio n [th a t F a lso ] ac tua llyThe district cour t identified the followingsimil arities amongthe sea rch w arr ants: (1) 5 g ener alized information about the use of computers by

those who collec t child pornog raphy ; (2) the g ener al cha

rac teristics and proc liviti es of c hild pornog raphy collector s; (3) the illicit purposes of the we bsites at issue in eac h case to share a nd view child pornography ; and (4) the nexus betwee n the def

endants a nd the re spective w ebsites.

9 e ng a g e d in

ina pp ro pr iate se xua l c on ta c t w itha min or in t he pa st. Thus, the cour

t found: Tog ether , this information set forth a r easona ble proba bility that [Falso] had a se xua l attr a c tio n to min or s and that he wa s und e rt akin g e ff or ts t o a pp e a l to his sexual attraction to minors by viewingpictures of

child pornog raphy

via the int e rn e t. I

n li g ht o f t

he pr oc liv ity

of su c h p e rs on s to sto re ima g e s o f c hil d po rn og ra phy on the ir c omp ute r a

nd oth e rw ise ma int a in i ma g e s o f c hil d pornog raphy , there was a rea sonable proba

bility that child pornog raphy

would be found in the def

endant’ s home, including on his computer. The district cour

t also considere d and re

jected F also’s cla im that the presenc e of his email addre ss on the website mig ht simpl y have be en the pr oduct of a spam mailing list. Whil e
rec og nizi ng the prolifer ation of spam, the c ourt explained that Ag ent Ly ons’s aff idavit sugg ested “somethingmore” —namely , that “it appea r[ed] t hat someone w ith [ Fa lso’s] e-mail address . . . either g ained a cce ss or attempted to g ain ac cess to the we bsite.” Additionally , the district court mea sured F also’s ca se ag ainst our pre cede nts in Ma rti n and Cor e as (discussed inf

ra ). Af te r i de nti fy

ingwh a t it

pe rc e ive d to be sim ila

ri tie s b e tw e e n th os e
case s and F also’s ca se, the cour t rec og nized that, unlike in Ma rti n and Coreas , there was no 5 evidenc e that F also was a member of

a child-por

nog raphy website. The court e x plained, howeve r, that there “is information . . . that [Falso] acce ssed or attempted to acc ess the site and that fre e child pornography was available to anyone who a cce ssed the site.” Al so c on tr ibutin g to pr ob a ble c a us e , th e c ourt

c on tin ue d, wa s: [I ]nformation in thi s case that was not ava ilable in Ma rti n or [ Coreas ]. That10

information is defe ndant’s prior c riminal history involving sexual contac t with a seven year

old – conduct that is hig hly rele vant to the cr iminal activity at issue he re . T he c ha

ra c te r p ro vid e d b y

the F B Iind ic a te s th a t th e ma jor ity of ind ivi du a ls who collec t child pornog raphy have a sexual attraction to them. [si c] I n light of [Falso’s] known sex ual attra ction to minors and his having acc essed or g ained acc ess to a site off

eringchild pornog raphy , there ’s a r easona ble proba bility that he would collect c hild pornog raphy
. Finally , the district court he ld that even if the re ha d been a n insufficient ba sis for finding probable cause , suppression of the e vidence was not wa rra nted bec ause the g ood-fa ith ex ception to t he e xclu sio na

ry ru le a pp lie d. In th is r e g ard , th e c ourt e xpla ine d th at it

fo un d n o s tate me nts in the a ff ida vit to b e fa lse or

in r e c kle ss d isr e g ard

fo r t he tr uth , a nd that “ the wa

rr ant w a s n ot s o lackingin indicia of proba ble ca use as to re nder [the executing office rs’] belief in the e x istence of proba ble ca use entire ly

unrea sonable.” After the district court de nied Fa lso’s motions, he pled guilty to all 242 counts in the ind ic tme nt. F a lso sp e c if

ic a lly re se rv e d th e ri g ht t o a

pp e a l f ro m th e dis tr ic t c ourt ’s de nia l of his mot ion s to su

pp re ss. Fa lso also objected to the district cour t’s use of his prior state conviction for Enda ng eringthe Welfare of a Child as a ba sis for enha ncingthe statutory

minimum and maxi mum penalties. On

June 2, 20 06 , th e dis tr ic t c ourt se nte nc e d F a lso pr inc ipa lly to 3 0 y e ars ’ imprisonment. DI SCU SSIO N I. P r oba ble Ca use A. St anda r ds forP r oba ble Ca use The F ourth Amendment prohibits “unre asonable sear ches a nd seizures,” a

nd require s that “no wa rra nts shall issue, but upon probable ca use, supported by

Oath.” U .S. Const . amend. IV. The Supreme Court has explained that “proba ble ca use is a fluid conc ept—turningon theMany of the c ases discusse d here in involve or ref er to proba

ble ca use dete rminations 6 made by mag istrate judg es. In Fa lso’s case , the proba ble ca use dete rmination was made by the district judge , who both issued the war rant a nd denied F also’s subseque nt suppression motion. Th e law d ra ws no dis tin c tio n, of

wh ic h w e are awa

re , b e tw e e n a

ma g istra te jud g e ’s and

dis tr ic t jud g e ’s dutie s in

makin g pr ob a

ble c a us e de te rm inatio ns .

11 assessment of pr obabilities in particular f actua l contexts —not rea dily , or eve n usefully , reduc ed to a neat set of leg al rules.” Illinois v. Gates , 462 U.S. 213, 232 (1983). “T he task of the issuing
ma g istrate [or

jud g e ] is s imp ly

to m ake a

pr a c tic a l, c omm on -s e ns e de c isi on wh e the r, g ive n a ll 6 the circ umstances se t forth in the af fidavit befor e him, . . . there is a fair probability

that contra band or e vidence of a c rime will be found in a pa rticular pla ce.” Id. at 238. Th is C ourt

mus t a ff or d “ g re at de fe re nc e ” to t he dis tr ic t c ourt ’s pr ob a

ble c a us e deter mination. Gates , 462 U.S. at 236 (interna l quotation marks omitted). Our “duty” on revie w, there fore , “is simply to ensure that the [di strict court] had a substantial basis for
. . . concludingthat probable cause exis ted.” Id. a t 23 8 ( int e rn a l ma rk s o mitte d) . N e ve rt

he le ss, under this standar d, we “ may proper ly conclude that . . . [a] war rant wa s invalid beca

use the [di strict court’s] probable -ca use dete rmination ref

lected a n improper a

naly sis of the totality

of circ umstances.” Leon, 4 6 8 U. S
. at9 1 5 (c i t i n g Gates , 462 U.S. at 238-39). B. Ma rti

n and L ike Cases In Ma rti n , this Court considered the suf ficienc y of an a ffidavit filed in support of a sear ch
wa rr ant o f M art in’ s r e sid e nc e ba se d o n in fo rm a tio n o bta ine d f ro m an F B Iinv e sti g a tio n into c hil d pornog raphy

e-groups. See Ma rti n , 426 F.3d at 73-77. The major ity opinion affirme d the district court’s findingof proba ble ca use base d on the followingfac tors: (1) the e -g roup’s
we lc ome pa g e and

tit le , “ g ir ls 1 2- 16 ,” ma de pla in “ its e sse nti a l pu rp os e to t ra de c hil dThe g irls 12-16 webpa g e conta ined the followingwelcome messag e: 7 Hi all, This gr oup is for all those ho [sic] appre ciate the y oung fema le in here [si c] finest form. Watchingher de velop and g row is like poetry in motion [ sic], to an a g e wh e re sh e take s an inte re st i n th e joy s a nd ple a su re s o f s e x. Th e re is p ro ba bly nothing more stimul ating than watc hing a y oung teen g irl discover the pleasure s of the org asm. The joy

of fe eling like she is actua lly coming into womanhood. I t’s ana g e w h e r e th e y

h av e n o p r e c o n d it io n s a

b o u t a n y th in g , ju s t p ur e o p e n n e s [s ic ]. What a joy

to be a pa

rt of that wonde rful experienc e and to watch the d e v e l o p m e n to f

th i s p e r f e c tf o r m . T h i s i s th e p l a c e t o b e i f yo ul o v e 1 1 t o 1 6 yr old s. Yo u c an s ha

re e xpe ri e nc e s w ithoth e rs , s ha re y our v ie ws and

op ini on s q

uit e fr e e ly wi tho ut c e ns or sh ip. Yo u c an s ha re a ll k ind s o f o the r i nf

or matio n a s w e ll re g ard ing -your [s ic ] curr e nt m od e l: i f you are a ph oto g ra ph e r. Whe re the be st pla c e to m e e t g itl s [si c ] is. Th e dif fi c ult ie s you

e xpe ri e nc e in your q

ue st. Th e be st wa y to c hat up . G oo d p la c e s to pic k g ir ls u p. Gi rl s you

wo uld lik e to s ha

re wi th others. The choice is all y ours. Welcome home! Post vi deos and photog raphs . . . and how a

bout y our true life experience s with them so that other viewe rs ca n paint a me nta l pi c tur e and in [s ic ] som e wa y s sh are the e xpe ri e nc e wi th you . Y ou c ou ld c onne c t w ithoth e rs fr om t he same c ountr

y a s you and g e t to g e the r s oc ia ll [si c ] if y ou wi sh . T he c ho ic e is a ll yours . H owa bo ut a mod e l r e so ur c e fo r p ho togra ph e rs ? I t’ s a ll u p to y ou and is o nly lim ite d b y

y our o wn

ima g inatio ns . M e mbe rs hip is open to anyone, but y ou will need to post something. My be [sic] a little bit about y ourself/what y our intere sts are ( specific ally ), your ag e, location . . . and a pic or vid wo uld be a g oo d to [sic ]. B y

do ingthi s o the r m e mbe rs (o r p ote nti a l me mbe rs ) with the same intere st may then contac t y ou if y ou wish them to. Ma rti n , 426 F.3d at 71. 12 pornog raphy” of minor g irls; (2) the a ffidavit’s discussion of the “ modus operandi of those who 7 use computer s to collect and distribute c hild pornog raphy”; (3) the aff idavit’s descr iption of the

“ c ha ra c te ri sti c s and

pr oc liv iti e s o f c hil d- po rn og ra phy c oll e c tor s, ” inc lud ingthe ir te nd e nc y to collect por

nog raphic imag es; (4) the fac t that the e-group’s “ illicit purpose could be infe rre d from the website’ s technolog ical fe ature s” that fa cilitated tradingin child pornog raphy ; (5) the aff iant’s conf

irmation that the e-group conta ined child pornog raphy available to all members; (6) the fa ct that the def

endant lived at the house to be sea rche d; and (7) the fac t that the defe ndant
was a n e-group member

who joined voluntarily

and neve r ca

ncelled his membe rship. Id. at 75-Th e or ig ina l a ff ida vit c on ta ine d th e fa lse state me nt t hat a ll m e mbe rs of

the we bs ite 8
“ a uto matic a lly” re c e ive d e -m a ils and ima g e s o f c hil d p or

no g ra phy po ste d to the sit e . In f

a c t, ho we ve r, me mbe rs ha d th e op tio n— wi th t he c lic k o f a

butto n— to r e c e ive or

no t r e c e ive the se postings. Id. at 70 -7 1; see also Coreas , 419 F.3d at 154 (noting that a later investigation revea led that 85% of the e -g roup member s elec ted not to rec eive a ny automatic e- mails). 13 76 . T he ma

jor ity de e me d it

“ c omm on

se ns e ” tha

t “ an in div idu a l w ho joi ns su c h a sit e wo uld more than likely

download and posse ss such materia l,” and c oncluded that the a ffidavit, as
corr ecte d to eliminate statements deter mined to be fa lse, established proba ble ca use for the
sear ch wa rra nt. Id. 8 J udg e Pooler dissented, e x pressingher c oncer n that “the major ity

announce s a dang erous prec edent.” Id. at 78 (Pooler, J., diss enting ). Unde r the majority ’s dec ision, she expl ained, the g overnme nt could obtain a wa rra nt simpl y wher e an individual subscr ibes to an interne t e-g roup that has an illeg al purpose, notwithstandingthe abse nce of particula rized evidenc e indicatingthat the individual visit ed the e -g roup af ter joining or par

ticipated in the e- g roup’s func tions. Id. But thi s r e su lt, sh e op ine d, c ann ot b e sq ua re d w iththe g e ne ra l pr os c ri pti on a g a ins t f ind ingpr ob a

ble
cause based solely

on an individual’s “‘ mere propinquity to others’ suspec ted of c riminal activity .” Id. at8 1 (qu o t i n g Y ba rra v . I lli no is , 444 U.S. 85, 91 (1979)). In J udg e Pooler’s op ini on , th e a ff

ida vit pr ov ide d in su ff

ic ie nt p art ic ula

ri zed fa c ts a s to Ma

rt in’ s invo lve me nt i n illega l activity , and the infe renc es dra wn by the majority

wer e ill-supported. F or instance , she be lie ve d, the a ff

ida vit at is su e did

no t su pp or t th e inf e re nti a l le a

ps tha t: ( 1) Ma rt in p art ic ipate d in the func tions of the e-group simply beca use he w as a me mber of the g roup; (2) the overr iding purpose of

the e- g roup wa s illega l, beca use the g roup also foster ed discussion that did not
nece ssarily

include the sha

ringof pornographic imag es of c hildren; and (3) all members c ollect pornog raphic imag es of c hildren simply beca use some do. Id. at 79-82. F inally , she cha lleng edThe Candy man e- g roup, at issue in Coreas , contained the following welcome messag e: 9 This gr oup is for People who love kids. You can post any ty pe of me ssag es you l i k e t o o [ s i c ] o r

an y ty p e o f p i c s o r v i d s y o ul i k e t o o [ s i c ]
. P
. S
. IF W E A LL WORK TOGETHER WE W I L LHAVE TH E BE ST GROUP ON THE NET. Id. , 419 F.3d at 152. The Coreas panel e x plained that “the Ma rti n majority reg arde d the diffe renc es betwe en the [g irls 12-16 and Candy man] websites as immaterial and re g arde d the Candy

man welc ome messag e as e x plicit enoug h to warr ant an infere nce of

unlawful purpose .” Coreas , 4 1 9 F. 3 d at1 5 7 (c i t i n g Ma rti n , 426 F.3d at 73 n.4). 14 the majority ’s “attempts to create the re quired ne x us betwee n Martin and illeg al ac tivity by appea ling to ‘c ommon sense.’” Id. at 83. In this reg ard, Judge Pooler explained that “[w] hile the
ma jor ity is c or re c t th at a ma g istrate [jud g e ] pr e se nte d w itha wa rr ant m ay ‘m ake a pr a c tic a l,
common-sense decision,’ that de cision must be based on the c ircumstance s set forth in the aff idavit.’” Id. (qu o t i n g Gates , 462 U.S. at 238). Two we eks af

ter Ma rti n was de cided, the pa nel in Coreas e xpre sse d it s v ie w that “ Ma rti n itself was wr ong ly

decide d,” but “unde r established r ules of this circuit” a dhere d to Ma rti n ’s holding beca

use that ca se wa s hear d first. Coreas , 4 19 F .3 d at 15 9. Th e a ff ida vit a t is su e in Coreas was substantively identical to the one c onsidered by this Court i n Ma rti n , e xce pt t hat it perta ined to a member

of a diff ere nt e-g roup, titled “Candy man .” Id. at 157 (findingthe distinction i mmaterial for purposes of the case ). The Coreas p an el co n cu rr edwi thJ u d ge 9 Pooler’s minority

position i n Ma rti n , and deta iled how ea sy it was to become a member of the e

g roup, includingby

the innocent or

inadver tent single click of a

button. Id. at 156, 158. Coreas
a lso e xpla ine d th at Ma rti n —to the extent it focuse d on the over riding illega l purpose of the g roup rather than on the activities of the pe rson targ eted f or the sea rch—“ might tend to dilute the First Amendme nt’s protec tion ag ainst g uilt by association and diminish the Four th Amendment’sAfter rehe aringwas de nied by

the pane ls in Ma rti n and Coreas , this Court denied a 10 co n s o l i d at edp et i t i o nfo r r eh ea ri n g e n b an c . S e e Un ite d S

tates v . M ar tin , 430 F.3d 73 ( 2d Cir. 2 0 0 5 ). Inh i s co n cu rr i n g o p i n i o nd en yi n g en banc revie w, J udg e Wesley stressed that the welcome messag e on the e -g roup at issue in Ma rti n made plain the illeg al purposes of the site, and that the de fenda

nt enlisted and re mained on the g roup’s membe rship rolls for two we eks until it was shut down by the FB I
. Id. a t 74 . T hu s, and in r e sp on se to Jud g e Poo le r’ s c on c e rn s, he stated that “this case is not about a ‘passingcuriosity ,’ mere ‘guilt by association’ or ‘sea rch[ing] the homes of innoc ent individuals.’” Id. a t7 5 ( qu o t i n g J u d g e P o o l e r ’ s d i s s e n t )
. In dissent, J udg e Pooler “ urg e[d] the def ense attorney s in these ca ses to seek c ertiora ri.” Id. at 77. Def ense c ounsel did so, and the Supreme Court denied their r equests. Martin v. United States , 12 6 S. Ct. 28 61 (2 00 6) ; Coreas v. United States , 126 S. Ct . 2861 (2006). W age rs may

provide the only

exception with respec t to the principle-pur pose prong . 11 Th e re , th e de fe nd ant w a s a pa yingsu bs c ri be r t o w e bs ite s th a t pr ov ide d il le g a l im a g e s o f c hil d po rn og ra phy . B ut t

he a ff ida vit s su pp or tin g the wa

rr ants a t is su e we re “ sil e nt o n w he the r t he se sites also included leg al pornog raphy ,” 452 F .3d at 543, and ther e wa s no finding that the websites’ pr incipal purpose w as the view ing a nd/or sharingof child pornog raphy
. 15 focus on pa

rticularity and on prote ction of the priva cy of the individual to be sea rche d.” Id. at 158. 10 Our s ist e r c ir c uit s h ave a dd re sse d th is i ssu e c on sis te ntl y wi th t he ma jor ity ’s ho ldi ngin Martin, althoug h the fa cts and c onsiderations of the de cisions vary
. United States v. Shields , 458 F .3 d 2 69 (3 d Ci r. 20 06 ); Un ite d S tates v . W age rs , 4 52 F .3 d 5 34 (6 th C ir . 2 00 6) ; United States v. Gourde , 4 40 F .3 d 1 06 5 ( 9th Cir . 2 00 6) (e n b anc ); United States v. Froman , 3 55 F .3 d 8 82 (5 th Cir. 2004); Un ite d S

tates v . H

utto , 84 F. App’ x 6 (10th Cir. 2003) (unpublished). The common thr e a d amon g the se c a se s is the de fe nd ants ’ m e mbe rs hip in o r s ub sc ri pti on to w e bs ite s w ho se principal purpose was the c ollection and/or shar ing of child pornog raphy
. See Shields , 458 F.3d
a t 27 2- 73 , 2 78 ; Gourde , 4 40 F .3 d at 10 70 ; Froman , 3 55 F .3 d at 89 0- 01 ; Hu tto , 8 4 F . App ’x at * 8; se e als o W

age rs , 4 52 F .3 d at 54 3. Ad dit ion a l f a c tor s w e ig hin g in f

avo r o f p ro ba

ble c a us e in 11 some of these case s included: (1) a cts of the de fenda nt that tended to neg ate the possibility that his membership or subscr iption was unintended, see, e .g. , Shields , 458 F.3d at 278-7916

(def endant’ s membership in multipl e sites under mined sug g estion that his membership may have be e n unw itt ingor

inn oc e nt) ; W

age rs , 4 52 F .3 d at 53 6- 37 (s ame ); Gourde , 440 F.3d at 1070 (def endant’ s subscription require d him to provide his credit ca rd information, home addre ss, and
e -m a il a dd

re ss) ; ( 2) e -m a il a dd

re sse s o r s c re e n n ame s su g g e sti ve of an inte re st i n c oll e c tin g c hil d pornog raphy , see Shields , 4 58 F .3 d at 27 9- 80 (“ L itt le L oli ta L ov e @a ol. c om e -m a il) ; Froman , 355 F.3d at 890-91 (“L ittlebutts ue” a nd “L ittletit g irly ” scr een na mes); and ( 3) def

endant’ s criminal history relating to child pornography , W age rs , 452 F.3d at 541. C. No P r oba ble Ca use Fa lso’s case stands apar

t from those pre cedingit insofar as he was not alleg ed to have actua lly acc essed or

subscribed to a

ny child-pornog raphy

website. Rather , Ag ent Ly ons’s aff idavit alleg ed only

that Fa lso was per

haps one of

sever al hundre d possible subscribers to the cpfr eedom.c om website, who appeared either to have g ained or

attempted to g ain ac cess to the site. For this re ason, Ma rti n and Coreas are not controlling.

1. Mem ber of or Sub scriberto a Child-Por nography Webs ite F a lso a sk s u s to int e rp re t Ma rti n rig idly as re quiring , for a

finding of proba

ble ca use, that a def endant in these ty

pes of c ases be a member of or subscr iber to a c hild-pornog raphy website. Hi s a pp ro a c h to the iss ue , h ow e ve r, is a nti the tic a l to the “ fl uid ” c on c e pt o f p ro ba ble c a us e espoused by

the Supreme Court. See G ates , 4 62 U. S. at 23 2; se e als o M ar tin , 426 F.3d at 74. Whil e the pr obable c ause f inding in Ma rti n de pe nd e d h e avil y on the fa c t th a t th e de fe nd ant w a s a
me mbe r o f a

pr inc ipa lly

ill ic it w e bs ite , n oth ingin t hat de c isi on

sh ou ld b e re a d to re qu ir e the se conditions in all sim ilar ca ses. For example, the absenc e of me mbership would not be dispositi ve if other

fac tors—such as e vidence that the def endant other

wise downloade d illega lAg a in, by thi s w e me an a

we bs ite wh os e pr inc ipa l pu rp os e is t o v ie w a

nd sh are c hil d 12 p o r n o g r a p h y. In Ma rti n , w e le ft

op e n th e iss ue of

wh e the r m e re ly

“ vie wi ng ” c hil d p or

no g ra phy via 13 the interne t is a crime. 426 F .3d at 77. Ther e is, y et ag ain, no nee d to decide the issue here
. 17 imag es—we re pr esent. That said, member ship in or subscription to a child-pornog raphy website is an important

12 consideration in these ty

pes of c ases be cause it supports the ulti mate infe renc e, dra wn in Ma rti n , that illega l activity

is afoot. As the majority opinion ex plained in Ma rti n , “member ship in the eg roup re asonably

implied use of the we bsite,” and it is “common sense that an individual who joins such a site would more than likely download and posse ss such materia l.” 426 F.3d a t 75. Putti ng aside whe ther those infe renc es ar e re asonable , see id. at7 9 -8 1 (P o o l er , J
. , d i s s en t i n g) (e xpla ini ngwhy

the y are no t) ; Coreas , 4 19 F .3 d at 15 6- 58 (s ame ), it i s th e fa c t of me mbe rs hip to a child-por

nog raphy website that lar g ely

supports the infer ence s drawn in Ma rti n that the de fe nd ant m or e lik e ly

tha n n ot u se d th e we bs ite and do wn loa de d im a g e s f

ro m it
. InFa l s o ’s ca s e, th er e i s n o al l ega t i o nth ath e s u b s cr i b edt o C P Fr ee d o m ’s p ay i n gme mbe rs hip sit e ; on ly

that it “ a pp e ar[e d]” that he “ g a ine d a c c e ss o r atte mpt e d to g a in a c c e ss” to the non-membe r cpf

ree dom.com website. Even if one assumes (or infers) that Fa lso acc essed the cpfr eedom.c om site, there is no spec ific alleg ation that Fa lso acc essed, view ed or downloaded
c hil d p or no g ra phy . Wh ile the no n- me mbe r s ite c on ta ine d a pp ro ximate ly

e le ve n im a g e s o f c hil d po rn og ra phy , th e a ff

ida vit la c ks any inf or matio n a bo ut whe the r t

he ima g e s w e re pr omi ne ntl y display ed or r equire d an additional click of the mouse; whethe r the imag es we re downloadable; or what other ty

pes of se rvice s and imag es we re a vailable on the site. 13 Fa lso’s case is thus quit e unlike Ma rti n , w he re the su pp or tin g a ff ida vit s p ro vid e d at le a st18

some of this information about the fe ature s of the sites at issue. F or example, the supporting aff idavit in Ma rti n asser

ted that member s of the e- g roup had a cce ss to, among othe r fe ature s, a

“ F ile s” se c tio n th at e na

ble d u se rs to p os t im a g e s a nd vid e o c lip s f

or oth e r m e mbe rs “ to a c c e ss and download.” Ma rti n , 426 F.3d at 70. I ndeed, the aff idavit in Ma rti n ex pl ain ed t hatan FBI ag ent had downloa ded appr ox imately 100 pictures a

nd movies of child pornog raphy from the Files sec tion. Id. at 70. In addition, the aff idavits in Ma rti n and Coreas contained inf ormation about ea ch site’s “ welcome pag es,” which the majority in Ma rti n fo un d to be highly re le va nt t o the proba ble ca use dete rmination, insofar a s the messag es announc ed the e -g roups’ c entra l purpose to tra de child pornography. See M artin, 42 6 F .3 d at 75 ; see also Coreas , 419 F.3d at 157. By contra st, Ag ent Ly ons’s aff idavit contains no such information about the cpfr eedom.c om site. Ag ent Ly ons’s inconclusive state ments about whethe r F also eve n acc essed the cpfr eedom.c om website, couple d with the absenc e of de tails about the features and nature of the non-member

site, falls short of esta

blishing proba

ble ca use. The que stion, then, is whether other alleg ations in the aff

idavit, considere d as a whole, provide a basis to support the district court’s finding of proba

ble ca use. 2. F also’s Crim inal H istory The most obvious other fa ctor that mig ht support a findingof proba ble ca use is Fa lso’s eig hteen- y ear -old misdemeanor conviction for E ndang eringthe Welfare of a Child. The district
c ourt fo un d F a lso ’s c onvic tio n “ [i]mpo rt ant[]” and “ highly re le va nt” to t he pr ob a ble c a us e calc ulus in li g ht of the af

fidavit’s re prese ntation that “the majority of individuals who collect child pornog raphy

are persons who ha

ve a se x ual attra ction to [ children].” B ut this reasoningIn Ma rti n , J udg e Pooler c riticized the majority ’s infer ence that beca use collec tors of 14 c h i l d p o r n o g r a p h y ar e l i k e l y t o b e s u

b s c r i b e r s o f

e - g r o u p s , th a tth e i n v e r s e a l s o i s tr u e : n am e l y, that subscriber s are likely to collect child pornography
. Id. at 82. B y ana logy , it

may be sa id t hat “ mos t pe op le wh o s e ll d ru g s d o d ru g s. ” Th a t is no t to 15 say , howeve r, that “most people who do drug s sell drug s.” 19 falls victim to logic. “It is an infere ntial fallac y of anc ient standing to conclude that, beca use member s of g ro up A” (t

ho se wh o c oll e c t c hil d p or no g ra phy ) “ are lik e ly

to b e me mbe rs of

g ro up B ” (t

ho se attrac ted to children) , “then g roup B is entirely , or eve n larg ely composed of, me mbers of group A.” Se e Ma rti n , 426 F.3d at 82 (Pooler, J ., dissenting) (pointing out the f allacy in a diffe rent
c on te xt). Al tho ug h o ff

e ns e s r e latin g to c hil d p or no g ra phy and se xua l a bu se of min or s b oth 14 involve the exploit ation of childre n, that does not compel, or e ven sug g est, the cor relation drawn by the district court. Perhaps it is true that all or most people who are attrac ted to minors 15 collect c hild pornog raphy . But that a ssociation is nowhere stated or supporte d in the aff idavit. See G ates , 462 U.S. at 238 (proba ble ca use asse ssments are to be made f rom “a ll the
c ir c ums tanc e s se t f

or th i n th e a ff

ida vit ” ); Gourde , 440 F.3d at 1067 (“All data nece ssary

to show probable cause for the issuanc e of a sear ch wa

rra nt must be contained within the four corne rs of a written af fidavit g iven under

oath” ( internal mar

ks and citation omitted)). While the district court undoubtedly

had the sa fety

of the public in mind, an individual’s Four th Amendment rig ht cannot be vitiated based on f allacious infe renc es dra

wn from f

acts not supported by

the af fidavit. Nor is the district cour

t’s rea soning saved by

the af fidavit’s g ener al statement, re lied upon by the g ov e rnme nt at or a l argume nt, that “ c omp ute rs are uti lize d b y ind ivi du a ls who e xploi t children ( which includes c ollectors of c hild pornog raphy ) to . . . locate , view, download, c ollectThe district cour t itself does not appea

r to have relied on this passag e; cor rec tly so, for 16 the re a so ns e xpla ine d in

the te xt. 20 and org anize imag es of c hild pornog raphy found throug h the interne t.” There simply is nothing 16 in t his state me nt i nd ic atin g that it is m or e (o r l e ss) lik e ly

tha t F a lso ’s c omp ute r m ig ht c on ta in imag es of c hild pornog raphy . That is, the af fidavit’s swee ping r epre sentation that computers a re used by those who exploit children to, inte r a lia , v ie w a nd do wn loa d c hil d p or

no g ra phy , w ou ld be equa lly

true if 1% or 100% of

those who exploit children use d computers to do those thing s. Fur thermore , we a g ree with Falso that e ven if his prior c onviction were rele vant to the
ana ly sis , it

sh ou ld h ave on ly

be e n ma rg ina lly re le va nt b e c a us e the c onvic tio n w a s st a le . T his Court has explained that “[t] wo cr itical fac tors in determiningwhether fac ts supporting a

sear ch
war rant a re stale are ‘the a g e of those f acts a nd the nature of the c onduct alleg ed to have violated the law.’ ” Un ite d S

tates v . O rti

z , 1 4 3 F. 3 d

7 2 8 , 7 3 2 (2 d

C i r. 1 9 9 8 ) ( qu o t i n g United States v. Martino , 664 F.2d 860, 867 ( 2d Cir. 1981)). He re, both fa ctors combine to unde rmine the probity of F also’s prior c onviction. F ir st, the sh e e r l e ng th o f t ime that ha d e la ps e d r e nd e rs F a lso ’s pr ior se x cr ime on ly marg inally

rele vant, if at a ll. Certainly there are case s where it may be appr opriate f

or a district
c o urtt o c o n s i d e r

a d at e d s e x c r i m e ; f

o r e x amp l e , w h e r e th e r e i s e v i d e n c e o f o n g o i n g i mp r o p r i e ty, beca use in such ca ses the prior of fense would tend to be less abe rrational. See, e .g.,United States v. Irv ing , 452 F.3d 110, 124- 25 (2d Cir. 2006) (f inding no e rror

in the district court’s consideration of defe ndant’s twenty -y ear -old conviction for attempted sexual abuse of a minor when de nying de fenda

nt’s motion to s uppress, whe re the re w as evide nce of two-y ear -old letters written by

defe ndant discussing the exploit ation of childre n, evidenc e that he se x ually abusedFa lso pled g uilty to the offe nse of Enda

ng eringthe Welfare of a Child, which 17 criminalizes acts that do not nec essar ily involve sexual contact with minors. The police r eport and information, however , alleg e that F also dig itally penetr ated a

y oung g irl. Our de cision in United States v. Brand , 467 F.3d 179, 198 ( 2d Cir. 2006), is not to the 18 contra ry . In Brand , w e a ff

ir me d th e dis tr ic t c ourt ’s e vid e nti ary ru lin g pe rm itt ingthe g ov e rnme nt, in its prosecution of a de fenda nt for traveling in interstate commer ce f or the purpose of eng ag ing in illi cit sexual contact with a minor, to pre sent the jury with image s of child pornog raphy found on the def endant’ s computer. We explained that the def endant’ s collection of c hild pornog raphy indicated a

n “abnor mal sexual attraction to children,” and thus was r eleva nt to the offense for which the de fenda

nt stood trial, which involved the same a bnormalcy
. See id. at 198 (“ The ‘similarity

or some conne ction’ re quirement [for purpose s of establishing rele vance under the F e de ra l Ru le s o f E vid e nc e ] is s atis fi e d in the ins tant c a se be c a

us e a dir e c t c onne c tio n e xists be tw e e n c hil d p or

no g ra phy and pe do ph ili a .” ). We d

re w o ur c on c lus ion , in

pa rt , f ro m th e Chi ld Pornog raphy

Prevention Ac t of 1996, in which “Cong ress found that ‘child pornog raphy is often us e d b y pe do ph ile s and

c hil d s e xua l a

bu se rs to s timulate and

wh e t th e ir

own s e xua l a

pp e tit e s, and as a model for se x ual ac ting out with childre n,’” id. at 198 (quotingPub. L . No. 104-208, § 121, 110 Stat. 3009, 3009-26 (1996)), a nd from congressional testimony of the F BI , which noted “‘ a strongcorr elation betwe en child pornography offe nders a

nd molesters of c hildren’ a nd that the ‘c orre lation betwee n collection of c hild pornog raphy and ac tual child abuse is too re al and too g rave to ignor e,’” id. at1 9 8 n . 1 7 (qu o t i n g Enhancing Child Protection Laws After the 21 bo y s in Me xico fi ve y e ars e arl ie r, and the state me nt o f a

fr ie nd tha t ha d u se d h is c omp ute r t o
rec eive c hild pornog raphy ). B ut no such evidenc e wa s provided in this case to br idge the temporal g ap betwe en F also’s eig hteen- y ear old sex offe nse and the suspected c hild-pornog raphy offe nse. Se c on d, a lth ou g h F a lso ’s c ri me a lle g e dly inv olv e d th e se xua l a

bu se of a min or , it d id

17 not relate to child pornog raphy
. Cf. W age rs , 452 F.3d at 537, 541 (finding no err or in the district
c ourt ’s re lia

nc e on de fe nd ant’ s se ve n- y e ar- old c onvic tio n o f p os se ssi on of c hil d p or no g ra phy in up ho ldi ngse arc h w arr ant d ir e c te d at sa me ill e g a l a c tiv ity

). Th a t th e law c ri min a lize s b oth c hil d pornog raphy

and the se x ual abuse (or e ndang erme nt) of childre n cannot be enoug h. They are separ ate of

fense s and, as e x plained above , nothing in the a ffidavit dra ws a c orre lation betwee n a pe rs on ’s pr op e ns ity

to c omm it b oth

ty pe s o f c ri me s. 18April 16, 2002 Supreme Court Dec ision, Ashcroft v. Free Spe ech Coalition: Hearing Beforethe

Su bc om m. on Cri me

, Te rro ris m, an d H

om e lan d S

e c ur ity of t heH. Com m. on theJ

ud ic iar y , 1 07 th Cong. ( 2002) (state ment of Michae l J . Heimbac h, Crimes Ag ainst Children Unit, Crimi nal Investig ative Division, FB I )). It is worthy of obser vation, howeve r, that the c orre lation in Brand th a tth e g o v e r

n m e n tr e l i e d

u p o nw a s th a tth e d e f

e n d an t , a kn o w nc o l l e c t o r

o f c h i l d p o r n o g r a p h y, was pre disposed or intended to c ommit t he cha rg ed off ense involvingan intended se x ual ac t ag ainst a minor. That is pre cisely the inverse of the c orre lation relied upon by the district court in F a lso ’s c a se : th at a

pe rs on c onvic te d o f a

c ri me inv olv ingthe se xua l a bu se of a min or wo uld likely collect c hild pornog raphy . But, a s expl ained a bove, the latter

corr elation is not supported by the af fidavit itself and thus ca

nnot support a proba

ble-c ause f

inding. More over, the test of whether evidenc e is “re levant” f

or purpose s of admission under the r ules of evide nce is a

more fl e xible sta

nd ard tha n w he the r e vid e nc e of

a pa st c ri me g ive s r ise to a n in fe re nc e of

pr ob a ble cause that a diffe rent c rime has be en committed. Cf. Brand , 457 F.3d at 197 (discussing rele vancy standard)
. 22 3. Ot he r F ac to r s Absent any

alleg ation that Fa lso acc essed the c pfre edom.com we bsite, and with littl e or no weig ht attachingto his prior conviction, the question re mains whether other a lleg ations in the aff idavit, considere d as a whole, support a f inding of probable cause . Gene ralized alleg ations about: (1) the pr opensity

of collec tors of child pornog raphy to intentionally

maintain illega l ima g e s; ( 2) law e nf

or c e me nt’ s a

bil ity to r e tr ie ve su c h im a g e s f ro m a c omp ute r; and

(3 ) t he a bil ity to view child pornog raphy on the cpf

ree dom.com website, fa il to establish the requisite nexus of i l l e g a l a c t i v i ty t o F a l s o . A l th o u g hF a l s o m i g h th o ar d i m a g e s o f

c h i l d p o r n o g r a p h y if he viewe d and downloade d them, there is no alleg ation in the aff idavit that he was in a

position, or was otherwise inc lined, to do so. * * * In th e e nd , th e dis tr ic t c ourt ’s fi nd ingof pr ob a ble c a us e in F a lso ’s c a se re qu ir e d it to make at least two signif

icant additional infe rential lea ps not require d in Ma rti n and like ca ses. First, in Fa lso’s case there is no alleg ation that he in fa ct g ained a cce ss to the cpfre edom.comTh e F a lso may have atte mpt e d, but f

a ile d, to g a in a c c e ss t o th e c pf re e do m.c om s ite 19 require s a sepa

rate , but relate d, infere nce: that F also neve rtheless obtaine d child pornog raphy from other

unidentified sourc es. As we a dmonished in Coreas , the “[g ]overnment could ea sily have obta ined more 20 information” a

bout Falso. See Coreas , 419 F.3d at 158. Among othe r thing s, it could have mon ito re d th e tr a ff

ic of the c pf re e do m.c om w e bs ite and

a sc e rt a ine d w he the r F a lso (a nd oth e rs ) actua lly downloaded por

nog raphy from the site. See id.

23 website, much le ss that he was a member or

subscriber

of any child-pornog raphy

site. Second, there are no alleg ations to support an infer ence that the sole or pr incipal purpose of the cpfr eedom.c om website wa s the viewingand shar ing of child pornog raphy , much less that imag es of c hild pornog raphy wer e downloada

ble from the site. Thus, it is only afte r makingthe infere nces that (1) F also in fac t acc essed a website (2) whose principal purpose was the vie wing

19
and sh ari ngof

c hil d p or no g ra phy , th at th e dis tr ic t c ourt c ou ld d ra w the ult imate inf

e re nc e , u ph e ld in Ma rti n , that those who bec ome member s of a c hild-pornog raphy website a re likely to collect such imag es. Putting aside the dang ers of Ma rti n ’s ultimate infere nce, see Ma rti n , 426 F.3d at 81 -8 3 ( Poo le r, J., d iss e nti ng ); Coreas , 419 F.3d at 156-58, the dang ers of coupling it with the infere nces dr awn in F also’s ca se ar e exponential. We are not insensitive to “the need f or law e nforc ement to have a ce rtain amount of latitude in conductingcriminal investig ations.” Ma rti n , 4 26 F .3 d at 76 . B ut, a s w e e xpla ine d in Coreas , requiringthe g overnme nt to gather “ evidenc e particularized to the targ et of the se arc h” befor e the wa

rra nt application is made “ will sim ply focus law

enfor ceme nt effor

ts on those who
can r easona

bly be suspec ted of possessingchild pornog raphy .” Id. a t1 5 8 ( e mp h a s i s a d d e d )
. If 20 this proves to be a hindra nce, it is one the F ourth Amendment de mands. Acc ording ly , we f

ind no substantial basis for proba ble ca use and r ever se the district24

court’s c onclusion in this reg ard. II. Good-F aith Exception Our de termination that the district court e rre d in finding pr obable c ause doe s not end the analy sis of whether

the evidenc e seized fr om Falso’s home should be suppresse d. In United States v. Leon , the Supreme Court he ld that the exclusionary rule ba rringillega lly

obtained
e vid e nc e fr om t

he c ourt ro om d oe s n ot a

pp ly to e vid e nc e se ize d “ in o bje c tiv e ly re a so na ble relianc e on” a

war rant issued by

a deta ched a

nd neutra l mag istrate judg e, eve n wher e the wa rra nt is subsequently

deeme d invalid. 468 U.S. 897, 922 (1984). The Court re asoned that, “eve n assuming that the [ex clusionary] rule effe ctively deter s some police misconduct a nd provides incentives for

the law e nforc ement prof ession as a whole to conduct itself in ac cord w ith the F ourt h A me ndme nt, it c ann ot b e e xpe c te d, and sh ou ld n ot b e a

pp lie d, to d e te r o bje c tiv e ly
rea sonable lawenfor ceme nt activity .” Id. at 918-19. Con sis te nt w iththi s r atio na le , th e re are fo ur c ir c ums tanc e s in

wh ic h th e g oo d- fa ith
e xce pti on do e s n ot a

pp ly : “ (1 ) whe re the iss uin g [jud g e ] ha s b e e n k no wi ng ly mis le d; (2) whe re the issuing [judge ] wholl y abandone d his or her judicia l role; (3) where the application is so lacking in indicia of proba ble ca use as to re nder r eliance upon it unreasona ble; and (4) whe re the war

rant is so fac ially

defic ient [such as by

failingto particular ize the place to be
sear ched or

the things to be seized] t hat re liance upon it is unrea sonable.” United States v. Mo or e , 9 6 8 F. 2 d

2 1 6 , 2 2 2 (2 d

C i r. 1 9 9 2 ) ( ci t i n g Leon , 4 68 U. S. at 92 2- 23 ); accord U nited States v. Cance lmo, 64 F.3d 804, 807 ( 2d Cir. 1995). In such circ umstances, r eliance on the leg al judgme nt of the issuing judg e would not be objec tively rea sonable. See Leon , 468 U.S. at 923. He re , F a lso c la ims that th e g oo d- fa ithe xce pti on do e s n ot a

pp ly on the fi rs t and

thi rd of the se25

g ro un ds ; sp e c if

ic a lly , th at th e dis tr ic t c ourt ’s fi nd ingof pr ob a ble c a us e wa s b a se d o n k

no wi ng ly
or re c kle ssl y

mis le a din g state me nts in A g e nt L y on s’ s a ff ida vit , a nd the a ff ida vit oth e rw ise wa s “so lac king in indicia of

probable cause ” as to re nder r eliance upon it unreasona ble. F a lso a lso
se e ks to a vo id a pp lic atio n o f t

he g oo d- fa ithe xce pti on

on the g ro un d th a t di str ic t c ourt imp ro pe rl y denied a Franks he ari ngto c ha lle ng e the ve ra c ity of Ag e nt L y on s’ s a ff ida vit
. A m a jor ity of thi s panel disagree s. A. The District C ourt Was Not Know ingly or Recklessly Misled Ge ne ra lly , th e wa

y a de fe nd ant d e mon str a te s th a t st a te me nts in a n a ff ida vit int e nti on a lly
or re cklessly

misled a district court is throug h a Franks hear ing. I n Fran k s v . D e law ar e , 438 U.S. 154 (1978), the Supre me Court held that althoug h a pre sumption of validity attache s to a law enf orce ment aff

idavit, in certa in circumstanc es a de fenda nt is entitl ed to a he aringto test the
vera city of the a ffiant’ s statements. Id. a t 17 1. Spe c if ic a lly , th e Court

he ld t hat th e F ourt

h Amendment entitles a de fenda nt to a hear ing if

he or she makes a

“substantial pre liminary showing ” that a de liberate falsehood or statement made with rec kless disreg ard f or the truth wa s included in the wa

rra nt affida vit and the statement wa s nece ssary to the judge ’s findingof probable cause . Id. at 15 5- 56 , 1 70 -7 1; see also United States v . Salameh , 152 F.3d 88, 113 ( 2d Cir. 1998). To avoid fishingexpeditions into affidavits that ar e other wise pre sumed truthful, the Court in Leon h el d

th att o m an d at e a nev i d en t i ary h ea ri n g: [T] he cha lleng er’ s attack must be more than conc lusory and must be supported by mor e tha n a me re de sir e to c ro ss- e xami ne . T he re mus t be a lle g a tio ns of de lib e ra te falsehood or

of re ckless disreg ard f

or the truth, and those alleg ations must be acc ompanied by

an off er of proof. The y

should point out specific ally the portion of the wa rra nt affida vit that is claimed to be false ; and they should be acc ompanied by

a stateme nt of supporting rea sons. Affidavits or swor n or otherwise r eliable state ments of witnesses should be f urnished, or the ir absenc eIn United States v. OneParcel of Property Located at 15 Black Ledge , 897 F.2d 97 ( 2d 21 Cir. 1990), we r eviewe d the denial of a Franks hear ing in a

forf eiture c ase f

or cle ar e rror

to the extent that denial rested on f actua l findings. Id. at 100. We did not ex plain why that was the appropr iate standa

rd, howe ver, a

nd we note the exis tence of a c ircuit court split on the issue. Compare United States. v. Re iner , 500 F.3d 10, 14 ( 1st Cir. 2007) (re viewingdenial of Franks hear ing f or cle ar e rror ); Un ite d S

tates v . S te war t , 306 F.3d 295, 304 ( 6th Cir. 2002) (same) ; United States v. Buc hanan , 9 85 F .2 d 1 37 2, 13 78 (8 th C ir . 1 99 3) (s ame ); United States v. Sk inner , 972 F.2d 171, 177 ( 7th Cir. 1992) (same) , with Unit ed States v. G onzalez, Inc. , 412 F.3d 1102, 1 1 1 0 (9 thC i r. 2 0 0 5 ) ( ap p l yi n g de novo standard) ; Un ite d S tates v . M ar tin , 332 F.3d 827, 833 (5th Cir. 2003) (same ). To the e x tent the issue re mains open in our cir cuit, we ne ed not dec ide whether the clea r er ror or de novo standard a

pplies beca

use, under

either standa

rd, we find no err or in the district court’ s denial of a Franks h ea ri n g. 26 satisfac torily

explained. Alleg ations of neg lige nce or innocent mistake a

re ins uf fi c ie nt. Id. at 171. In this case, the district c ourt denied F also’s re quest for a Franks he ari ngbe c a us e it
c on c lud e d th at th e re we re no fa lse or re c kle ssl y

mis le a din g state me nts in t he a ff ida vit
. We find
no err or in the district court’ s denial of a Franks he ari ng , n or in i ts c on c lus ion

that th e state me nts ati s s u e w er e n o t

fa l s e o r m i s l ea d i n g. 21 Fa lso claims that the following para g raph f rom Ag ent Ly ons’s aff

idavit was desig ned to,
and did , mi sle a d th e dis tr ic t c ourt : In o r a bo ut Jul y 20 04 , Sp e c ia l A g e nt T od d G e ntr y re vie we d th e c omp e te d f or e ns ic examination of the website hosting www.c pfre edom.com
. Th e fo re ns ic e xami natio n r e ve a le d s e ve ra l hu nd re d p os sib le su

bs c ri be rs a lon g wi th e -m a il addre sses and other

information

. In or about July 2004, subpoenas we re se rved on appropr iate I SP’s for eac h e-ma il address identified on the www.c pfre edom.com website. In or about Septembe r 2004, all subpoena reque sts were returne d to the FB I . Pursuant to a re view of the subpoenae d rec ords [from internet ser vice providers], the followingsubscriber information (among othe rs) wa s associate d with the www.c pfre edom.com we bsite: David J . Fa lso, 20 Peace ful Drive, Cortland, New Y ork, Ya

hoo User I D: cousy 1731@y ahoo.com. B ased upon investigation and examination conducted by Special Ag ent Todd Ge ntry and oth e rs , it a pp e ars that a

pe rs on wi th [F a lso ’s ] e- ma il a dd re ss e ith e r g a ine d a c c e ss or attempted to g ain ac cess to the we bsite www.c pfre edom.com Specia l Ag entAt oral a rgument, the g overnme nt reve aled a dditional information that was not 22 ref lected in the a ffidavit: namely , that Fa lso’s e-mail addr ess on the site appe are d with a password a

nd userna me associated with it. Although the g overnme nt’s reve lation at oral argument cannot support its probable cause claim, c f. W hite le yv . W ar de n, W y o. Sta te Pe nite nti ar

y , 401 U.S. 560, 565 n. 8 (1971) ( “ [A] n otherwise insuff icient af fidavit ca nnot be reha bilitated by

testimony

conce rninginformation possessed by the af fiant whe n he soug ht the wa rr ant b ut n ot d isc los e d to the iss uin g ma g istra te [jud g e ].” ), it d oe s te nd

to s up po rt

the of fi c e rs ’ g ood-fa ith reliance on the war rant. 27 Gentry ’s investig ation and re view of f orensic e x amination reve aled the material associate d with the www.c pfre edom.com we bsite is hardcor e child pornography
. (empha ses adde d). Fa lso maintains this passag e is misleading beca use it sugg ests (1) that the F BI ’s investigation revea led something more than the exis tence of F also’s e- mail addre ss on the website; and/or ( 2) that F also had a ctually subscribed to the c pfre edom.com we bsite. As an initial matter, we a g ree that the passag e sug g ests that the FB I ’s investig ation reve aled something more than F also’s e- mail addre ss on the site. But the pa ssag e is not misleading be cause the inv e sti g a tio n h a d in

fa c t r e ve a le d a dd iti on a l in fo rm a tio n. In p art ic ula r, the imm e diate ly p r e c e d i n g p ar a g r a

p hi nth e a f

f i d av i te x p l a i n s th a tan

F B I a g e n t , a c t i n g i nanun d e r c o v e r c a p a c i ty, signe d up for a

one-month member ship through the cpfr eedom.c om website and r ece ived an email from the CP Fr eedom Gr oup containingthe member ship information. Thus, as the district court e x plained, the F BI ’s investig ation reve aled not only that Fa lso’s e-mail addr ess was on the
we b s i t e, b u tal s o th atth e w eb s i t e’ s ad m i n i s tra t o rs co m mun i ca t edwi thi t s m em b er s th ro u gh
e-ma il. I f additional information—not mentioned in the affidavit—led the F BI to the qualified
c on c lus ion

that “ it appear[ed] ” that F also either “g ained a cce ss or atte mp te d to ga in a c c ess” to the cpf ree dom website, it is hard to understa nd how the district cour

t could have be en misled for purposes of the g ood-fa ith ex ception. 22That the district cour t rea sonably

rea d the term “ subscriber ” as r efe rringto a Yahoo 23 subscriber

is supported by

an ea rlier por tion of the aff

idavit describingthe use of c omputers by persons who c ollect child pornog raphy . In that section, Ag ent Ly ons notes that collector s of child pornog raphy

use ser vices off ere d by companies, “ such as Ya

hoo!,” which include online storag e ac counts. I t then states that a “ subscriber assig ned to a f

ree online storag e ac count” c an set one up with little identifying inf ormation, and g oes on to use the ter m “subscribe r” or “subscr ibing” seven more times, in each c ase c lear ly ref err ing to Ya

hoo or similar Interne t service s. 28 We are no more pe rsuade d by Fa lso’s claim that the af

fidavit misleading ly

sug g ests that he wa s, in fact, a

subscriber

to the cpfr eedom.c om website. The pur ported c onfusion arises f

rom Ag e nt L y on s’ s u se of

the wo rd “ su bs c ri be r” in t

he a ff ida vit to r e fe r t o tw o ty

pe s o f s ub sc ri be rs : those of the c pfre edom.com we bsite and those of inter net servic e provide rs such a s Yahoo. Considered in conte x t, however , one possible—if not most plausible—readingof the fina l three sentenc es of the a

bove-quote d passag e is the one a dopted by the district court: name ly , that the

“ su bs c ri be r i nf

or matio n” re fe rr e d to is f

or Ya ho o, no t th e c pf

re e do m.c om w e bs ite
. Ev e n if 23 there wer e any

sug g estion (intentional or otherw ise) in the passa g e quoted a bove that F also was in fac t a subscribe r to the cpf ree dom.com website, it was qua lified (if not cla rified) in the pe nu lti mate se nte nc e , w hic h s tate s th at “ it a pp e ars ” F a lso e ith e r “ g a ine d a c c e ss o r atte mpt e d to g ain ac cess” to the site. In a dd iti on

to t he fo re g oin g a lle g e d mi sst a te me nts , F a lso argue s th a t th e a ff ida vit contained material omissions. Specifically , Fa lso claims that beca use the g overnme nt did not disclose incriminatingevidenc e to the contr ary ,“it is reasona ble to assume” that: (1) the g overnme nt identified all subscriber s and that F also was not one; ( 2) the g overnme nt determined that Fa lso had not contac ted the we bsite; and (3) F also’s e- mail addre ss was found in a c omputer fi le ind ic a tiv e of

sp am. Fa lso, however , has made no offe r of pr oof that the a lleg edly omittedTh is i s a ve ry dif fi c ult thr e sh old to m e e t, a s e vid e nc e d b y the many de c isi on s o f t

his 24 Court rejec ting objec tions to t he g ood-fa ith ex ception on this basis. See, e .g., United States v. Jasorka , 153 F.3d 58, 60- 61 (2d Cir. 1998); United States v. Cance lmo , 64 F.3d 804, 807- 08 (2d 29 “fa cts” e x ist. See F

ranks , 438 U.S. at 171 (stating that defe ndant see king a Franks he ari ngmus t support his alleg ations with an “off er of proof” and lodg e an attack that is “more than a mer e de sir e to c ro ss- e xami ne ” ). I t is fo r t his re a so n th a t Un ite d S

tates v . R e ill

y , 76 F.3d 1271 ( 2d Cir. 1996), upon which F also relies, is distinguishable . In Re ill y , th is C ourt

he ld t hat th e g oo d- fa ith
e xce pti on did no t a pp ly wh e re the a ff

iant k ne w c e rt a in f

a c ts that w ou ld u

nd e rm ine pr ob a

ble
cause y et fa iled to provide these f acts to the mag istrate judg e. Id. a t 12 80 (“ F or the g oo d f

a ith
e xce pti on to a pp ly , th e po lic e mus t r e a so na bly be lie ve that th e wa

rr ant w a s b a se d o n a

va lid
a pp lic a tio n o f t

he law t o th e kn ow n f

a c ts. In th e ins tant m a tte r, the of fi c e rs fa ile d to g ive the se fac ts to the mag istrate [judge ].”). By contra st, here the re is no evide nce—just conje cture —that the g ov e rnme nt f

a ile d to dis c los e a dd iti on a l in fo rm a tio n in its po sse ssi on

that mi g ht t e nd

to exculpate Fa lso or otherwise ne g ate the e x istence of probable cause . Moreove r, eve n assuming that any of the stateme nts in the affidavit mis led the district court, F also has not met his burden of demonstratingthat Ag ent Ly ons made the a lleg ed misrepre sentations and that he omitted mater ial information knowing ly or re cklessly . We thus reje ct Fa lso’s challeng e to the g ood-fa ith ex ception on the ground that he ha s failed to make even a pre liminary

showing that the district court wa s knowing ly or re cklessly

misled by

any statements or omissions in Age nt L y ons’s aff idavit. B. The Aff

idavit Was Not “So Lacki ng in Ind icia of Probable Cause” Fa lso’s alternative claim, that the af fidavit was “ so lackingin indicia of proba ble ca use as to rende r re liance upon it unre asonable ,” se e Mo ore , 968 F.2d at 222, fare s no better. Onc e the 24Cir . 1 99 5) ; Mo or e , 9 68 F .2 d at 22 2- 23 (2 d Ci r. 19 92 ); United States v. Fama , 758 F.3d 834, 837-

38 (2d Cir. 1985). As noted in her opinion conc urringin the judgme nt and in Part I I , J udg e L ivingston 25 would not rea ch the que stion whether pr obable c ause w as pre sent here
. 30 district court ruled on the leg al suffic iency of the fa cts alleg ed in the af fidavit, the off

icer s were justified in ex ecutingthe war rant. Cancelmo , 64 F.3d at 809 (“[W] e dec line to hold that the
a g e nts a c te d unr e a so na

bly in a c c e pti ngthe ma g istra te jud g e ’s le g a l c on c lus ion that pr ob a

ble
cause exis ted.”)
. Ev e n if the re may

have be e n a

n inno c e nt e xplanatio n f

or the pr e se nc e of

F a lso ’s e -m a il addre ss on the cpfr eedom.c om website, that does not under mine the offic ers’ g ood-fa ith reliance on the war

rant. As this Court expl ained in Fama : “The f act that a n innocent explanation may be consistent with the fac ts alleg ed . . . does not ne g ate pr obable c ause. N either should it prec lude a g ood faith belief

in probable c ause.” 758 F.2d at 838 (citations omitted). M o re o v er , al th o u gha m aj o ri ty o nth i s p an el fi n d s th atp ro b ab l e c au s e w as l ac k i n g, see supra Part I , that is certa inly an issue upon which r easona ble minds can diff

er, a s ref lected by the differ ent appr oache s to the probable c ause issue r efle cted he re, as we ll as the split of opinions 25 amongthe pane l members in Ma rti n and Coreas
. See Leon , 4 68 U. S. at 92 6 ( a pp lyingg oo d- fa ith exception where the af

fidavit “provide d evidenc e suff icient to cre ate disagree ment among tho ug htf ul a nd c omp e te nt j ud g e s a s to the e xiste nc e of pr ob a ble c a us e ” ); ac c or

d Fama , 758 F.2d
a t 83 8 ( a pp lyingg oo d- fa ithe xce pti on wh e re state of

law w a s unc le ar) ; Un ite d S tates v . S mi th , 9 F.3d 1007, 1015 ( 2d Cir. 1993) (same ). In short, the er

ror in this case , as found by a majority

of the pa nel, was c ommitt ed by

the district court in issuing the w arr ant, not by the offic ers who e x ecute d it. See Canc elmo , 64 F.3d31

a t 80 7. Ac c or din g ly , w e up ho ld t he dis tr ic t c ou

rt ’s a pp lic a tio n o f t

he g oo d- fa ithe xce pti on

to deny Fa lso’s suppression motion. CO NC LU SION For the fore g oing r easons, we hold that the district court’s findingof proba ble ca use wa s not supported by

a substantial basis. Howe ver, be cause the district court prope rly applied the g ood-fa ith ex ception in deny ing F also’s suppre ssion moti on, and for the additional re asons dis c us se d in

our a c c omp anyingsumma ry or de r, we AF F I RM the jud g me nt.32 Docke t No. 06-2721-c r

L I VI NGSTON, Circuit Judge , c on c ur ri ngin p art

and c on c ur ri ngin t he jud g me nt:

Iconcur in the judgme nt and join in Part I I , which dete rmines both that the af fidavit here was not so lackingin indicia of proba ble ca use as to make relianc e upon it unrea sonable a nd that there is no basis in the recor d for c oncludingthat Ag ent Ly ons knowing ly or re cklessly

misled the district court by

omitti ng or misstating infor mation in his search w arr ant af fidavit. Iag ree fully with Part I I ’s conc lusion that the office rs ac ted in “objec tively rea sonable” relianc e on the
sear ch wa rra nt, thus render ing the exclusionary rule inapplica

ble. See U

nited States v. Leon , 468 U.S. 897, 922 (1984). As to Part I , howeve r, I do not join in m y

colleagues’ de termination that the re wa s n o s ub sta

nti a l ba sis fo r t

he dis tr ic t c ourt ’s fi nd ingof pr ob a ble c a us e . In my

vie w, thi s is not a question that need be decide d, g iven that the g ood faith dete rmination is disposi tive. The
ma jor ity ’s ana ly sis of

the iss ue , mo re ov e r, is tro ub le so me in s e ve ra l r e sp e c ts. Th e ma jor ity c ha ra c te ri zes the “ thr e sh old

iss ue ” in t

his c a se to b e wh e the r t

he re wa s a substantial basis for the district cour t’s finding of proba

ble ca use base d on two fac tors alone: (1) that th e se arc h w arr ant a ff ida vit a lle g e d th a t F a lso “ ‘a

pp e are d’ to ‘ have g a ine d o r atte mpt e d to g ain’” acc ess to a we bsite, cpfr eedom.c om, that distributed child pornog raphy ; and (2) that he
was c onvicted of a

misdemeanor e ighte en y ear s ag o in connec tion with the sex ual abuse of a
seven- y ear -old g irl. Concluding that the se arc h war rant a ffidavit fa iled to alleg e that F also in fact33

acc essed the w ebsite at issue, the ma jority poses the ultimate question to be whe ther F also’s prior conviction alone “ provide[d] a suff icient basis to believe that evidence of child pornog raphy crimes would be found in Fa lso’s home.” Slip. Op. at 3. The major ity not surprisingly

answe rs this question in t he neg ative. With respect, howe ver, I believe the majority

sidesteps discussion of the a ctual fa cts alleg ed in the af fidavit and thus mischara cter izes both t he thre shold and ult imate iss ue s invo lve d. In s o d oin g , th e ma jor ity fa ils to r e a d th e a ff

ida vit in i ts t ota lity

and in the commonsense ma

nner the Supreme Court pre scribes. See I llinois v. Gates , 462 U.S. 213, 231-32 (1983)
. The investig ation in this case beg an whe n FB Iag ents obtained the I P address of the
w e b s i t e c p f

r e e d o m . c o m , w h i c hc o n t a i n e d a p p r o x i m a t e l y e l e v e ni m a g e s o f c h i l d p o r n o g r a p h y. The we bsite adver

tised additional child pornog raphy that was available upon pur chase of a membership. An unde rcove r F BI ag ent sig ned up for

a one- month membership for $99 a nd subsequently

rec eived a

n email that provided him with the Interne t addre ss of the re stricted site, a
user na me, and a password. F orensic e x amination of the we bsite hosting cpf ree dom.com reve aled

“ se ve ra l hu

nd re d p os sib le su

bs c ri be rs a lon g wi th e -m a il a dd re sse s a nd oth e r i nf or matio n. ” Th is
e xami na tio n f ur the r r e ve a le d “ that th e mate ri a l a sso c iate d w iththe www. c pf re e do m.c om w e bs ite is hardcor e child pornography .” Ac c or din g to t

he se arc h w arr ant a ff

ida vit , “ su bp oe na s w e re se rv e d o n a pp ro pr iate [I nterne t service providers] for e ach e -mail addre ss identified on the www .cpfr eedom.c om website.” One of

these e mail addre sses, cousy 1731@y ahoo.com, be longe d to Falso, who maintained an a ctive Ya

hoo! ac count duringthe time period re levant to the investig ation. Records obta ined from Time Warne r Cable e stablished the likelihood that Falso maintaine d aAt least four of the c hildren who suff

ere d the depicte d abuse ha ve bee n identified. 1 34 computer at his residence , since Road Runner Interne t service had bee n established ther e. Ad d i t i o n al i n v es t i gat i o nre v ea l edth atFa l s o wa s arre s t edi n1 9 8 7 fo r s ex u al l y ab u s i n g a
seven- y ear -old g irl. Significa ntly , the victim informed the Ne w York State Police that she
re fe rr e d to the a

pp e lla nt, Da vid J. F a lso , a s “ Cou se y .” Th e a ff ida vit a lso a lle g e d th a t F a lso admitted to the police at the time of his arre st that he “may

have latent problems and that he might r e qu ir e so me ty

pe of c ouns e lin g .” F a lso e ve ntu a lly ple d guil ty

to a mis de me ano r i n s tate court. The sea

rch of Fa lso’s home pursuant to wa rra nt uncover ed over

600 printed-out imag es of child pornog raphy , many bear ing w ebsite information in the bottom marg ins. At least 50 of these imag es depic ted pre -pubesc ent childre n eng ag ing in e x plicit sex ual poses and se x ual conduct, includingintercour se with adults. Fa lso’s computer c ontained numer ous additional imag es of c hild pornog raphy , alongwith videotaped sc enes de picting ve ry y oung children
e ng a g e d in

se xua l a c ts. Ins ide a

bo x in F a lso ’s be dr oo m, l aw e nf or c e me nt a g e nts fo un d at le a st 1 eig ht photogr aphs constituting c hild pornog raphy , one of which depicte d a g irl perf orming a sex act on F also. Duringthe sea rch, F also made state ments admitting that he ha d intentionally soug ht out and obtained c hild pornog raphy from the Interne t and that he ha d belong ed to a site whe re he ob ta ine d c hil d p or

no g ra phy fo r a fe e fo r a bo ut a month. He a lso state d th a t he is attr a c te d to y oung g irls and that he tra veled to Tha iland and other countries to have sex wit h minors. Th e ma jor ity e rr s in tw o p ri nc ipa l w ay s in

re a din g the se arc h w arr ant a ff ida vit . F ir st, focusingsolely

on what it terms the af

fidavit’s “inc onclusive” a lleg ation, Slip Op. 18, that “a pe rs on wi th t he e -m a il a dd

re ss o f c ou sy 17 31 @yaho o. c om e ith e r g a ine d a c c e ss o r atte mpt e d to35

g ain ac cess to the we bsite www.c pfre edom.com,” the majority ignor es the unde rlying f

acts that support this alleg ation—namely , that Fa lso’s email addre ss, in addition to t he ema il addresse s of
se ve ra l hu

nd re d o the rs , w a s f

ound on the sit e , a

nd tha t th e we bs ite us e d e ma il t o c or re sp on d w ith its me mbe rs . T he dis se nt m ake s a sim ila r m ist ake – d isr e g ard ingthe pr e se nc e of F a lso ’s e ma il addre ss on the website to af firm, er roneously , that Ly ons’s aff idavit “establishes no more than that F a lso
. . . c lic ke d o n a we bs ite c on ta ini ngc hil d p or no g ra phy , a nd may have a tte mpt e d to view it.” Dissent Slip Op. 9. Wit h respe ct, a pe rson’s ema il address doe s not appea r on a w ebsite bec ause that person ha s “ c lic ke d” on

it a ny mor e tha n h is m a ili nga dd

re ss b e c ome s k

no wn to t he lib ra ry sim ply be c a us e he ’s wa lke d in

and br ow se d th e sta c ks . F a lso a dmi ts a s mu c h in his br ie f b e fo re thi s Court , a c kn ow le dg ingthat an in div idu a l do e s n ot p ro vid e his e ma il a dd re ss t o a we bs ite sim

ply by vis iti ngit. Admittedly , Ly ons’s aff

idavit is not a model of car eful dra fting . At oral a rgument the g overnme nt reve aled that it had f ailed to include infor

mation in the affidavit that would have made the substantial- basis deter mination easier: spe cifica lly , that Fa lso’s email addre ss (along with those of the other

individuals) appea

red w ith a corr espondingusername and pa ssword of the ty pe the unde rcove r F BI

ag ent re ceive d when he purcha sed a me mbership. Neve rtheless, the f act that Fa lso’s email addre ss was found on a website c ontaining e leven f ree imag es of ha

rdcor e child pornog raphy

and off eringmore, for

a fe e, is probative e vidence that Fa lso visit ed that
we bs ite and

e ith e r s igne d u

p o r atte mpt e d to sign u

p f or a me mbe rs hip . G ra

nte d, thi s e vid e nc e is
no t c on c lus ive . F a lso argue s th at hi s e ma il c ou ld h ave be e n o n th e c pf re e do m.c om s ite be c a

us e “the we bsite intended to send [him] an unsolicited e- mail known as ‘spam,’” or be cause it wasTh e ma jor ity dis mis se s Brand

as inapposite bec ause the corr elation on which the 2 g ov e rnme nt r e lie d in

that c a se —th at c oll e c tor s o f c hil d p or no g ra phy are mor e lik e ly

to a bu se children, see Brand, 4 67 F .3 d at 19 7- 99 (p e rm itt ingus e of de fe nd ant’ s p os se ssi on

of c hil d 36 otherwise taken fr om a marke ting list. As we have re peate dly said, howeve r, “[t] he fa ct that an inn oc e nt e xplanatio n ma

y be c on sis te nt w iththe fa c ts a lle g e d .
. . do e s n ot n e g a te pr ob a ble
cause ” or the signific ance of evide nce te nding to e stablish it. Panetta v. Crowley , 460 F.3d 388, 3 9 5 (2 d C i r. 2 0 0 6 ) ( qu o t i n g United States v. Fama , 758 F.2d 834, 838 ( 2d Cir. 1985)). And “evide nce that a per son has visited or subscribe d to websites containingchild pornog raphy supports the conc lusion that he has likely downloaded, ke pt, and otherw ise possessed the materia l.” Un ite d S

tates v . W age rs , 452 F.3d 534, 540 ( 6th Cir. 2006). The majority

simil arly err s in taking the district court to task for g iving we ight to F also’s pr ior c onvic tio n. Th e ma

jor ity c hid e s th e dis tr ic t c ourt

fo r i ts “ fa lla c iou s in fe re nc e ,” su pp os e dly nowher e supported in the a ffidavit, that people who sexually abuse c hildren ar e more likely than oth e rs in t he g e ne ra l po pu latio n to c oll e c t c hil d p or no g ra phy . Sl ip O p. 20 . T he a ff

ida vit c le arl y states, howeve r, that “individuals who exploit children” use c omputers to “locate, view, download, collec t and org anize imag es of c hild pornog raphy found throug h the Interne t.” M o re o v er , th e d i s tri ctco urt ’s i n fe re n ce o f aco n n ec t i o ni s o n e t h atwe , t o o
— ci t i n g a cong ressional finding

—have in the pa st seen fit to draw
. See U nited States v. Brand , 467 F.3d 179, 198 (2d Cir. 2006) (notingthat “possession of c hild pornog raphy . . . share s a conne ction . . . with pedophilia,” and e ndorsing Congr ess’s findingthat “child pornography is often used by pe do ph ile s and

c hil d s e xua l a

bu se rs to s timulate and

wh e t th e ir

own s e xua l a

pp e tit e s, and

a s a model for se x ual ac ting out with childre n” (quotingPub. L . No. 104-208, § 121, 110 Stat. 3009, 3009-26 (1996) )). Our sister Circuits have acte d simil arly
. See, e .g. , Un ite d S tates v . Le bo v itz , 2pornog raphy to prove de fenda

nt’s intent to abuse a minor) —is the inverse of the one on whic h the g ov e rnme nt r e lie d h e re —th at th os e wh o a bu se c hil dr e n a

re mor e lik e ly

to c oll e c t c hil d pornog raphy . Slip Op. 22 n.18. R eg ardle ss of whethe r the fa cts of Brand are analog ous to the fac ts of this case, wha

t matters her e is that we c ited with approva l the cong ressional findingthat
“ c hil d p or no g ra phy is ofte n u se d b

ype do ph ile s a nd c hil d s e x ua l ab us e rs to stim ulate and whet their own sexual appetites.” Id. at 198 (e mphasis added) (quoting Pub. L . No. 104-208, § 121, 110 Stat. 3009, 3009-26 (1996)). Such a finding indicates that pe dophiles and child sexual a b u s e r s ar e m o r e l i k e l y th ano th e r s i nth e g e n e r a l p o p u l a t i o nt o p o s s e s s c h i l d p o r n o g r a p h y— pr e c ise ly the re a so nin g re lie d o n b y the dis tr ic t c ourt

to g ive we ig ht t o th e pr ior c onvic tio n in

its pr ob a ble c a us e c a lc ulu s. 37 401 F.3d 1263, 1271 ( 11th Cir. 2005) (“L aw e nforc ement investig ations have ve rified that pe do ph ile s almost always collect child pornographyor child er otica.” ( emphasis adde d) (quoting S. Re p. No . 1 04 -3 58 , 1 04 th C on g ., 2d Se ss. , at 12 -1 3 ( 19 96 )) ); Un ite d S tates v . B y rd , 31 F.3d 13 29 , 1 33 9 ( 5th

Cir . 1 99 4) (“ [C]omm on

se ns e wo uld

ind ic a te tha

t a pe rs on wh o is se xua lly int e re ste d in

c hil dr e n is lik e ly

to a lso be inc lin e d, i.e ., pr e dis po se d, to o rd e r a nd re c e ive c hil d po rn og ra phy .” ); se e als o O

sb or nev . O hio , 495 U.S. 103, 111 (1990) (obse rvingthat “evide nce
su g g e sts tha

t pe do ph ile s us e c h i l d

p o r n o g r a p h y t o s e d

u c e o th e r c h i l dr e ni n t o s e x u a l a c t i v i ty” (empha sis added))
. I td o es m ak e ad i ff

er en ce th atFa l s o ’s co n v i ct i o no cc urr edei gh t ee ny ea rs ea rl i er , th o u gh perha ps less of a diff

ere nce tha

n the majority

makes out. The Supre me Court has noted e mpirical
rese arc h on child molestation that sugg ests that most reoffe nding a fter a prison sentenc e does not
occur within the first sever al y ear s, but may occur as longas twenty

y ear s following r elea se. Smith v. Doe , 538 U.S. 84, 104 (2003). This Court, moreove r, has noted that the staleness inquiry in child pornog raphy

case s is unique, due to the tendenc y of per sons interested in such material to hoard it, see U

nited States v. Irv ing , 452 F.3d 110, 125 ( 2d Cir. 2006), a fa ct clea rly ref ere nced in the sear ch wa

rra nt affida vit in thi s case . Given the e vidence we c ited in Brand that c hil d38

po rn og ra phy is o ft e n u se d b y

pe do ph ile s a

nd c hil d s e xua l a

bu se rs to s timulate the mse lve s a nd to entice young victims, see Brand , 467 F.3d at 198, “a pe rson of re asonable caution would take int o a c c ount p re dil e c tio ns re ve a le d b y pa st c ri me s o r c onvic tio ns a s p art of the inq uir y int o probable cause .” W

age rs , 452 F.3d at 541 (internal quotation mar ks omitt ed). B eca

use the issue is c omp le x an d unn e c e ssa ry to t he re so lut ion

of thi s c a se , I

wo uld no t op ine , a s th e ma

jor ity fre ely does, that the lapse of time since F also’s convic tion render ed it “mar g inally rele vant, if at all.” Slip Op. 21. In sum, Iconcur

in the judgme nt and join in Part I I . As to Part I , this Court has said that
even when the pr obable c ause que stion is close, “we ne ed not re solve the issue [if] we c onclude that the g ood faith exception applies.” United States v. Cance lmo , 64 F.3d 804, 807 ( 2d Cir. 19 95 ). Ife ar t

he ma jor ity ’s ana ly sis is m or e lik e ly to c lou d th an c lari fy

un de rs tand ingof

F ourt h Am e ndme nt i ssu e s in

the dif fi c ult and ra pid ly e vo lvi ngc on te xt of

Inte rn e t se arc he s. F ind ingit
unnece ssary

to rea ch the issues a ddresse d by the majority

in Part I , Irespe ctfully

decline to do so.39

06-2721-cr DENNIS JACOBS, Chief Judge, dissenting:

I subscribe to Part I of the majority opinion, which holds that Agent Lyons’ affidavit failed to establish a substantial basis for probable cause. As to Part II, however, I conclude that the affidavit was recklessly misleading (at best), and that Agent Lyons–-because he was both the affiant and the executing officer--could not rely in good faith on the imprimatur of the district judge. Accordingly, I would reverse the denial of the motion to suppress, vacate Falso’s conviction, and remand for further proceedings. Judge Sotomayor’s majority opinion says why the affidavit, taken at face value, was insufficient to confer probable cause; and as to that I agree. But in my view the affiant tried to paper over the insufficiency with a statement that is crucial and that is misleading. Therefore, though I agree with Judge Sotomayor that the warrant was signed in error and that an arresting officer40

may ordinarily rely on such a warrant, I conclude that Agent Lyons, as the affiant of the misleading affidavit could not rely in good faith on the judge’s imprimatur. I draw principles from Franks v. Delaware, 438 U.S. 154 (1978), to arrive at the conclusion that the arresting officer cannot rely on a warrant obtained by his own misleading affidavit.

[A] Agent Lyons’ affidavit sets forth the following salient facts: [1] The website contained eleven images of child pornography with more images available to persons who joined as members; [2] New members received an e-mail upon joining; [3] There were several hundred possible members; [4] Most collectors of child pornography retain digital images online and seek out like-minded individuals on the internet; [5] Most such collectors are also sexually attracted to children;41

[6] Falso’s name, address, and e-mail address were associated with the website; [7] It appears that someone with Falso’s e-mail address either gained access to the website, or attempted to do
so; [8] Eighteen years earlier, Falso was convicted for conduct involving sexual abuse of a minor. The majority of these facts ([1] through [5]) are not specific to Falso, or anyone else. As to [5], the affidavit provided evidence that Falso was sexually attracted to children, but the fact of attraction (of any sexual kind) does not make it more or less likely that a person collects pornography (as the majority opinion explains). As to [4], the observation that collectors of child pornography tend to retain their collections online (and seek out like-minded individuals), puts it backwards: “The alleged ‘proclivities’ of collectors of child pornography . . . are only relevant if there is probable cause to believe that [defendant] is such a collector.” United States v. Coreas, 419 F.3d 151, 156 (2d Cir. 2005). Thus, the affidavit’s generic assertions “added fat . . . but certainly no muscle” to this otherwise “‘bare bones’ affidavit.” United StatesSee, e.g ., United States v. Romm, 455 F.3d 990, 998-1001 1 (9th Cir. 2006) (upholding conviction for receipt and possession of child pornography recovered from defendant’s computer cache where defendant acknowledged viewing, “saving” and “downloading” the illicit images); United States v. Stulock, 308 F.3d 922, 925 (8th Cir. 2002) (noting the district court’s acquittal of defendant of possession charges on the ground that “one cannot be guilty of possession for simply having viewed an image on a web site, thereby causing the image to be automatically stored in the browser’s cache, without having purposely saved or downloaded the image”); United States v. Tucker, 305 F.3d 1193, 1205 (10th Cir. 2002) (affirming conviction for possession of child pornography because defendant “continued to view child pornography knowing that the pornography was being saved, if only temporarily, on his computer” (emphasis 42 v. Weber, 923 F.2d 1338, 1346 (9th Cir. 1990) (quoting United States v. Leon, 468 U.S. 897, 926 (1984)). At most, items [1] through [5] might have established probable cause if conjoined with evidence that Falso collected child pornography. But this is precisely where the affidavit is fatally deficient: it fails to allege the requisite substantial “nexus” between Falso and the website. See United States v. Martin, 426 F.3d 68, 75 (2d Cir. 2005). Martin rooted the illegality of possessing child pornography in the “trading” of such material on a website, see Majority Op., supra p. [13] (quoting Martin, 426 F.3d at 75-76), which shows dominion. (This is consistent with the approach of some other circuits. ) But Facts [6] through [8] show 1added)); see also United States v. Perez, 247 F. Supp. 2d

459, 484 n.12 (S.D.N.Y. 2003) (observing that 18 U.S.C. § 2252A(a)(5)(B) “does not criminalize ‘viewing’ the images”). 43 only that Falso, a pedophile, appeared to have accessed–-or appeared to have tried to access–-the website, and that his e-mail address was somewhere on it. No evidence suggested that Falso downloaded any image or took any other active steps with respect to the illicit material. Because there was no probable cause to believe that Falso did anything with images of child pornography, the government lacked probable cause to believe that he committed a crime. Therefore, Agent Lyons had need to create the impression that more was known than was known in fact.

[B] The Fourth Amendment entitles a criminal defendant to a hearing if he or she makes a “substantial preliminary showing” that a “deliberate falsehood” or a statement made with “reckless disregard for the truth” was included in the warrant affidavit, and the statement was “necessary to the judge’s probable cause finding.” United States v. Salameh, 152 F.3d 88, 113 (2d Cir. 1998) (per curiam)(internal cites omitted); see Majority Op., supra p. [25-26] (applying this44

standard). In Franks v. Delaware, the Supreme Court explained that “[t]here must be allegations of deliberate falsehood or of reckless disregard for the truth.” 438 U.S. 154, 171 (1978) (emphasis added). Thus, recklessly misleading statements suffice for Franks purposes. Moreover, “‘Franks protects against omissions that are designed to mislead, or that are made in reckless disregard of whether they would mislead, the magistrate.’” United States v. Awadallah, 349 F.3d 42, 68 (2d Cir. 2003) (emphasis added; other emphasis in original omitted) (quoting United States v. Colkley, 899 F.2d 297, 300-01 (4th Cir. 1990)); see also United States v. Levasseur, 816 F.2d 37, 43 (2d Cir. 1987) (“[M]aterially misleading omissions as well as misrepresentations may be challenged by the defense.”). Importantly, “[r]ecklessness may be inferred where the omitted information was clearly critical to the probable cause determination.” Rivera v. United States, 928 F.2d 592, 604 (2d Cir. 1991) (internal quotation marks omitted). Agent Lyons’ affidavit contained a recklessly misleading (if not outright deliberately false) statement. Paragraph 31 makes very slippery use of the critical wordI have inserted brackets in the cpfreedom website and 2 the e-mail address lest a word processing program automatically convert the terms into hyperlinks that might be inadvertently loaded, with untoward consequences. 45 “subscriber”:

In or about July 2004, Special Agent Todd Gentry reviewed the completed forensic examination of the website hosting www.[]cpfreedom[].com. The forensic examination revealed several hundred possible subscribers along with e-mail addresses and other information. In or about July 2004, subpoenas were served on appropriate ISP’s for each e-mail address identified on the www.[]cpfreedom[].com website. In or about September 2004, all subpoena requests were returned to the FBI. Pursuant to a review of the subpoenaed records, the following subscriber information (among others) was associated with the www.[]cpfreedom[].com website: David J. Falso, 20 Peaceful Drive, Cortland, New York, Yahoo User ID: cousy1731@yahoo.[]com. 2
Affidavit of James T. Lyons ¶ 31 (emphasis added). The46

natural reading of these words and the logical inference is that Falso was a subscriber to the illicit website. This misimpression was created by repetition of the word “subscriber” to reference two distinct groups: members of the illicit website (“several hundred possible subscribers”) and members of Yahoo! (“subscriber information”). That misimpression was set up in the pages immediately preceding this paragraph: Agent Lyons consistently designates Yahoo! members as “users”–-at least five times, not once calling them “subscribers”. See id. ¶ 27. The majority says that, “[c]onsidered in context . . . one possible–-if not most plausible” way to construe this paragraph is that the “subscriber information” referred to in the last sentence of the quoted passage refers to Yahoo! members, not members of the website. Majority Op., supra p. [28] . Maybe so. But, so read, the word “subscriber” would mean two different things within three sentences: the “several hundred possible subscribers” referred to in the first sentence means possible members of the illicit website; the “subscriber information” “associated with” that website (from the third sentence) means Yahoo! members. The majority opinion blandly recites that “Agent Lyons’s47

affidavit alleged only that Falso was perhaps one of several hundred possible subscribers to the cpfreedom[].com website.” Majority Op., supra p. [16] (emphasis added). But the caveat “possible” is dropped two sentences later: so even an attentive reader of the whole passage gets the impression that Falso’s membership was a fact known to the affiant. The repetition of the word “subscriber” to reference two types of membership in close textual proximity was consequential: whether a suspect is a member of a child pornography website is important to the probable cause inquiry. See Rivera, 928 F.2d at 604 (“Recklessness may be inferred where the omitted information was clearly critical to the probable cause determination.” (internal quotation marks omitted)). Judge Livingston considers that “this affidavit is not a model of careful drafting.” Concurring Op. of Livingston, J., supra p. [4] . I respectfully disagree: the misleading effect is achieved by artifice that carefully confuses a very important question of fact. The district court maintained that it was not actually misled; but that is neither here nor there. The test for48

whether an affidavit contains recklessly misleading or false statements is an objective one. We ask whether a false or misleading statement “was included by the affiant in the warrant affidavit,” not whether the issuing magistrate or district court was misled by it. Franks, 438 U.S. at 155-56 (emphasis added). Surely, if a district court granted a suppression motion on the ground that the judge had been misled by an affidavit that we judged to be fair, we would not hesitate to reverse. As the government conceded at oral argument, our review is necessarily confined to the affidavit’s four corners. (We must therefore disregard any litigation backfill, such as the government’s extra-record statement at oral argument, cited by Judge Livingston, that Falso’s e-mail address appeared with a corresponding password and username of the type the undercover FBI agent received when he became a member.) Once we excise the misleading statement, see Salameh, 152 F.3d at 113, Lyons’ affidavit establishes no more than that Falso, an individual with a misdemeanor conviction for conduct involving sexual abuse of a minor from eighteen years earlier, clicked on a website containing child pornography, and may have attempted to view it.49

Assessed in light of “all the circumstances set forth in the affidavit,” Illinois v. Gates, 462 U.S. 213, 238 (1983), these three facts blatantly fail the test of probable cause.

[C] “If a reviewing court determines that a search warrant was not supported by probable cause, a motion to suppress will still be denied if the court finds that the officers who conducted the search acted in good faith reliance on a facially valid warrant.” Id. at 114. Agent Lyons was both the affiant and the executing officer. Accordingly, it is perhaps “somewhat disingenuous, after having gone to the [district judge] with the paltry showing seen here, to suggest, as the government suggests, that at bottom it was the [judge] who made the error and the search and seizure are insulated because the officer’s reliance on that error was objectively reasonable.” United States v. Zimmerman, 277 F.3d 426, 438 (3d Cir. 2002). As the Supreme Court instructs, “suppression is appropriate . . . if the officers were dishonest or reckless in preparing their affidavit.” United States v. Leon, 468 U.S. 897, 926 (1984). This comports with the purposes of50

the exclusionary rule: it is designed to “deter[] some police misconduct and provide[] incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment.” Id. at 918-19. Consequently, the good-faith exception applies only when evidence is seized “in objectively reasonable reliance on” a warrant issued by a detached and neutral judge. Id. at 922. The majority says that “the error in this case was committed by the district court in issuing the warrant, not by the officers who executed it.” Majority Op., supra p. [30] . I respectfully disagree. Normally, the judge’s imprimatur assures the executing officer that there is probable cause. But where, as here, the executing officer is the same officer who misled the judge, the good-faith exception to the exclusionary rule cannot apply. See, e.g., United States v. Alexander, 740 F. Supp. 437, 448 (N.D. Ohio 1990) (ruling that a fraudulent and “deliberately incomplete” affidavit precluded officer’s reliance on Leon); United States v. Boyce, 601 F. Supp. 947, 954 (D. Minn. 1985) (denying good faith defense for an affiant who had, at best, recklessly disregarded the truth by “creat[ing] unmistakable false impressions”).51

An executing officer can hardly claim good-faith reliance on a warrant issued by a judge who was mis-directed by the officer himself: the same principle explains why, at a magic show, the credulity of the audience does not cause the magician to fear that the lady has been sawn in half.