[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 16-13400

Non-Argument Calendar

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D.C. Docket No. 4:15-cr-00134-LGW-GRS-1

UNITED STATES OF AMERICA, 

 Plaintiff-Appellee,

 versus

GERALD MICHAEL ORTEGA, 

 Defendant-Appellant.

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Appeal from the United States District Court

for the Southern District of Georgia

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(February 8, 2017)

Before TJOFLAT, WILLIAM PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM: 

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Gerald Ortega appeals his conviction for possession of child pornography, in 

violation of 18 U.S.C. § 2252A(a)(5)(B). Ortega pleaded guilty to the charge on 

the condition that he reserved his right to appeal the district court’s adverse ruling 

on a pre-trial motion to suppress. On appeal, Ortega argues that the district court 

erred by failing to suppress evidence obtained pursuant to a search warrant 

authorizing a search of his residence. Ortega argues that a subpoena issued to 

Comcast which provided the information supporting probable cause was issued 

without authorization and in violation of state or federal law. Ortega also argues 

that the affidavit attached to the search warrant application contained 

misstatements and omissions that rendered the probable cause determination void. 

We use a mixed standard of review when reviewing a district court’s denial 

of a motion to suppress, examining findings of fact for clear error and the 

application of law to those facts de novo. United States v. King, 509 F.3d 1338, 

1341 (11th Cir. 2007). 

The exclusionary rule is a Court-created “sanction that bars the prosecution 

from introducing evidence obtained by way of a Fourth Amendment violation.” 

Davis v. United States, 564 U.S. 229, 231-32 (2011). The rule’s “sole purpose” is 

to “deter future Fourth Amendment violations.” Id. at 236-37. Application of the 

exclusionary rule requires that the challenged police conduct violate the 

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defendant’s federal constitutional rights. Hudson v. Michigan, 547 U.S. 586, 592 

(2006). 

“[F]ederal law, not state law, governs the admissibility of evidence in federal 

court and complaints that the evidence was obtained in violation of state law are of 

no effect.” United States v. Noriega, 676 F.3d 1252, 1263 n.4. (11th Cir. 2012)

(quotation omitted). As for violations of federal law, we followed many other 

Circuits when we held that “statutory violations by themselves are insufficient to 

justify the exclusion of evidence obtained in that manner.” United States v. 

Thompson, 936 F.2d 1249, 1251 (11th Cir. 1991). The defendant, we held, “would 

have to show that Congress had provided such a remedy for violation of the statute, 

either specifically or by inference . . .. When Congress specifically designates a 

remedy for one of its acts, courts generally presume that it engaged in the 

necessary balancing of interests in determining what the appropriate penalty should 

be.” Id. at 1251-52.

The Electronic Communications Privacy Act (“ECPA”) provides that law 

enforcement only may require disclosure of subscriber information under certain, 

limited circumstances, including when there is (1) a warrant, (2) a court order, (3) 

consent of the subscriber, or (4) an administrative subpoena. 18 U.S.C. § 2703(c). 

Sections 2707 and 2712 provide that a civil action is the appropriate remedy for a 

violation of § 2703, unless criminal prosecution is pursued against a wrongdoer per 

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§ 2701. Section 2708 provides that remedies described in the chapter are the only 

judicial remedies and sanctions for nonconstitutional violations of the chapter. 

The party alleging an unconstitutional search “must establish both a 

subjective and objective expectation of privacy. The subjective component requires 

that a person exhibit an actual expectation of privacy, while the objective 

component requires that the privacy expectation be one that society is prepared to 

recognize as reasonable.” United States v. Segura-Baltazar, 448 F.3d 1281, 1286 

(11th Cir. 2006) (quoting United States v. Robinson, 63 F.3d 1325, 1328 (11th Cir. 

1995). 

The Supreme Court “consistently has held that a person has no legitimate 

expectation of privacy in information he voluntarily turns over to third parties.” 

Smith v. Maryland, 442 U.S. 735, 743-44 (1979). We recently applied the Smith

reasoning to newer technologies in United States v. Davis, 785 F.3d 498, 511 (11th 

Cir. 2015), holding that the defendant had no reasonable expectation of privacy in 

a phone company’s business records which included cell tower location data. We 

have also held that a person does not have a legitimate expectation of privacy to 

phone and fax numbers dialed. Rehburg v. Paulk, 611 F.3d 828, 843 (11th Cir. 

2010). 

A defendant may challenge the veracity of a search warrant using the 

standard set forth in Franks v. Delaware, 438 U.S. 154 (1978). First, the 

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defendant must make a “substantial preliminary showing that a false statement 

knowingly and intentionally, or with reckless disregard for the truth, was included 

by the affiant in the warrant affidavit.” Id. at 155-56. Then, the defendant must 

show that the “allegedly false statement is necessary to the finding of probable 

cause.” Id. at 156. In those cases, the Fourth Amendment requires that a hearing 

be held where the court must determine whether probable cause would still exist if 

the alleged misstatements were excised from the affidavit. Id. 

“The reasoning in Franks also applies to information omitted from warrant 

affidavits.” Madiwale v. Savaiko, 117 F.3d 1321, 1326 (11th Cir. 1997). 

[A] warrant affidavit violates the Fourth Amendment 

when it contains omissions made intentionally or with a 

reckless disregard for the accuracy of the affidavit. A 

party need not show by direct evidence that the affiant 

makes an omission recklessly. Rather, it is possible that 

when the facts omitted from the affidavit are clearly 

critical to a finding of probable cause the fact of 

recklessness may be inferred from proof of the omission 

itself. Omissions that are not reckless, but are instead 

negligent, or insignificant and immaterial, will not 

invalidate a warrant. Indeed, even intentional or reckless 

omissions will invalidate a warrant only if inclusion of 

the omitted facts would have prevented a finding of 

probable cause. 

Id. at 1326-27 (citations and quotations omitted). “The defendant bears the burden 

of showing that, absent those misrepresentations or omissions, probable cause 

would have been lacking.” United States v. Kapordelis, 569 F.3d 1291 (11th Cir. 

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2009) (citation and quotation omitted). See also United States v. Steiger, 318 F.3d 

1039, 1045-46 (11th Cir. 2003). 

“Probable cause to support a search warrant exists when the totality of the 

circumstances allow a conclusion that there is a fair probability of finding 

contraband or evidence at a particular location.” United States v. Brundidge, 170 

F.3d 1350, 1352 (11th Cir. 1999). We give “great deference to a lower court 

judge's determination of probable cause.” Id. (quotation and alteration omitted).

The district court did not err when it denied Ortega’s motion to suppress. In 

order to justify the use of the exclusionary rule, Ortega had to show that he 

suffered a constitutional violation. Mere violation of a state or federal statute when 

seeking the subpoena from Comcast does not rise to the level of a Fourth 

Amendment violation because Ortega had no reasonable expectation of privacy in 

subscriber information that was voluntarily transmitted and stored by the third 

party internet service provider. Further, Ortega does not show that information 

was omitted by the affiant in the warrant affidavit with reckless disregard for the 

truth. The deputy was not required to include information that he believed was

immaterial to the probable cause determination. Even including the information 

that Ortega alleges was wrongfully omitted would not have altered the probable 

cause finding. Based on the facts laid out in the affidavit, there was a fair 

probability that law enforcement would find evidence of possession of child 

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pornography at Ortega’s residence. Accordingly, we affirm the district court’s 

denial of the motion to suppress. 

AFFIRMED.

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