Sunday, September 28th, 2008

Good Faith Efforts

United States v. Falso, No. 06-2721-cr (2d Cir. September 24, 2008) (Jacobs, Sotomayor, Livingston, CJJ)

This opinion, a three-way split, adds another confusing piece to the circuit’s oeuvre in reviewing search warrants in child pornography cases. Judges Sotomayor and Jacobs held that the warrant lacked probable cause; Judge Livingston held that it did not. Judges Sotomayor and Livingston held that the agents relied on the warrant in good faith; Judge Jacobs held that the good faith exception should not apply. In the end, Falso’s conviction and thirty-year sentence were affirmed.


All of the evidence against Falso was recovered from a search of his home and a consensual interview that took place there. This led to a 242-count indictment that covered travel with the intent to engage in sexual contact with minors, production of child pornography, receiving child pornography via the internet, and transporting and possessing child pornography – 242 counts in all.

Probable Cause

The affidavit in support of the search warrant was unusually thin. Sworn out by an FBI agent, it contained mostly generalized information about the use of the internet to view and collect child pornography, and the characteristics of the collectors.

With respect to Falso, the affidavit explained that the FBI had learned of a website,, which contained approximately eleven images of child pornography. The site also advertised additional such materials at an internet address that was hidden until a visitor purchased a membership. With respect to Falso, all the affidavit alleged was that his email address was one of several listed on the site; this suggested that “it appeared” that Falso “either gained access to or attempted to gain access to” it.

The affidavit also revealed that eighteen years earlier, Falso had been arrested in New York for sexually abusing a seven-year-old girl. He pled guilty to a misdemeanor and was sentenced to probation.

The circuit majority concluded, unlike the district court, that this information did not establish probable cause. First, the affidavit did not allege that Falso was a member of the website. That fact, while not dispositive, is an “important consideration” in these cases because it “supports the ultimate inference … that illegal activity is afoot.” Here, the only allegation was that Falso “appeared to” have accessed or tried to access the website, but there was no specific allegation that he accessed, downloaded or viewed child pornography. And while the site contained a few such images, there was no information about where or how the images could be accessed or whether they were downloadable.

Accordingly, “inconclusive statements” about whether Falso even accessed the site, coupled with the absence of details about the site itself “falls short of probable cause.”

Nor did any of the other allegations in the affidavit furnish it. Specifically, information about Falso’s eighteen-year-old conviction was not enough. The affidavit did not allege that all or most people who are attracted to minors collect child pornography. In addition, the age of the conviction rendered it stale, and the affidavit had no information to bridge the temporal gap. Finally, the past offense did not relate to child pornography. “That the law criminalizes both child pornography and the sexual abuse (or endangerment) of children cannot be enough.”

Accordingly, the court reversed the district court’s finding of probable cause.

Judge Livingston, in her dissent, noted that Falso’s email address appeared on the subject website, that it could not have appeared there simply by his visiting the site, and that the site used email to correspond with its members. To her, this was “probative evidence” that he not only visited the site, but that he either signed up to attempted to sign up for a membership. She also disagreed with the majority’s treatment of Falso’s prior conviction, both as to its probative meaning and its age.

Good Faith

The majority – a different one – also held that the good faith exception saved the day.

Falso first claimed that the affidavit misleadingly suggested something more than that his email appeared on the website. The court disagreed, because it was true that the investigation had revealed more than just this. It revealed not only that Falso’s address was on the website but that the site communicated with its members by email. Nor did the affidavit misleadingly suggest that Falso was a subscriber to the subject site. According to the majority, in context, it was clear that the affidavit’s use of the term “subscriber” referred to his Yahoo account, through which he maintained an email address.

The majority also held that the affidavit was not “so lacking in indicia of probable cause as to render reliance upon it unreasonable.” Whether the affidavit established probable cause is an issue “upon which reasonable minds [could] differ.” Thus, the error was “committed by the district court in issuing the warrant, not by the officers who executed it.”

Chief Judge Jacobs, in dissent, characterized the affidavit as “recklessly misleading (at best).” He focused first on the affidavit’s failure to allege a “substantial nexus” between Falso and the website. In his view, the agent tried to “create the impression that more was known than was known in fact” to fill this gap, by using the term “subscriber” in the affidavit to misleadingly make Falso look like a “subscriber” to the target website, and not just to Yahoo. In Judge Jacobs’ view this was an “artifice that carefully confuses a very important question of fact” and was not merely an instance of poor drafting. Since the agent who drafted the misleading affidavit was also the executing officer, the good faith exception should not apply.

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