United States v. Robert Caesar ( 2021 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 19-3961
_____________
UNITED STATES OF AMERICA,
Appellant
v.
ROBERT DEAN CAESAR
_____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(District Court No.: 2:18-cr-00525-001)
District Judge: Honorable Gerald J. Pappert
_____________________________________
Argued February 11, 2021
(Filed June 23, 2021)
Before: CHAGARES, SCIRICA, and RENDELL, Circuit
Judges.
William M. McSwain
Seth M. Schlessinger
Jennifer A. Williams (Argued)
Robert A. Zauzmer
Office of United States Attorney
615 Chestnut Street
Suite 1250
Philadelphia, PA 19106
Counsel for Appellant
Stephen P. Patrizio
Two Penn Center Plaza
1500 John F. Kennedy Boulevard
Suite 1205
Philadelphia, PA 19102
David E. Robbins (Argued)
8 Erika Lane
Broomall, PA 19008
Counsel for Appellee
_________
OPINION
_________
RENDELL, Circuit Judge.
Facing federal child pornography charges, defendant-
appellee Robert Caesar moved to suppress evidence seized
pursuant to search warrants executed by the Pennsylvania State
Police. The District Court granted the motion in part,
suppressing thousands of images of child pornography and
photographs of Caesar’s sexual abuse victims. The
Government now appeals.
The initial warrant application contained information
that Caesar had sexually abused two children in his home and,
on multiple occasions, took to the Internet seeking out used
children’s undergarments and photos and videos of partially
clothed children. Although the supporting affidavit included
no express allegations that Caesar possessed child
pornography, it stated that child abusers “routinely keep” such
images. App. 49. The magistrate judge issued a warrant
authorizing officers to search Caesar’s home for child
pornography and other sexually explicit images of minors,
among other things, and several items of electronic equipment,
later found to contain child pornography, were seized.
Charged under federal law with producing, receiving, and
possessing child pornography, Caesar moved to suppress the
images. The District Court excluded the images, determining
that the statements linking child molestation with child
2
pornography failed to establish probable cause. It further
concluded that the affidavit was so deficient that the good faith
exception to the exclusionary rule did not apply. Because we
conclude that the officers relied on the initial warrant in good
faith, we will reverse that part of the District Court order
suppressing the images and remand for further proceedings.
I. BACKGROUND
The evidence at issue was gathered by State Police
officers pursuant to three search warrants while investigating
Caesar for various sexual offenses involving minors. Because
our Fourth Amendment inquiry turns on the sufficiency of the
affidavits of probable cause presented to the issuing magistrate,
the facts are largely drawn from those affidavits. See United
States v. Zimmerman, 277 F.3d 426, 430 n.3 (3d Cir. 2002).
A. The Initial Tip and Caesar’s eBay Activity
In July 2017, the State Police received a tip from the
National Center for Missing and Exploited Children
(“NCMEC”) about suspicious online activity by an eBay user.
Officers investigated the tip and discovered several outgoing
messages from the user’s account, horses357, seeking to buy
children’s used underwear and swimsuits. In one message, the
user asked for a photo of the inside of the clothing item and for
information about the age and weight of the child who
previously wore it. In another message, the user, posing as a
parent buying swimwear for his son, asked, “who wore this and
at what age?” App. 49. In a third message, the user posed as
a child looking for photos or videos of other children in their
undergarments:
Hi, [i]t’s JJ again. I won these, yeah! But I spent
more than dad said I could. He might not be to
[sic] happy. Can your son David do another
video in these or the white ones before you send
them? Or some pics please? I didn’t win the
black and blue ones my brother wanted.
Someone out bid [sic] me . . . after the sale was
over. Can you ask your son if he would like to
exchange email addresses please? . . . Ok, thanks
again. JJ.
3
App. 50.
The State Police learned that horses357 was registered
to “Robert Caesar . . . of 906 Street Rd., Oxford, PA.” App.
49. Several other pieces of information corroborated Caesar’s
connection to the eBay account. The account listed Caesar’s
work email address and phone number, and the Internet
Protocol (“IP”) address associated with the account was tied to
a home address in Oxford. Driver’s license records also
showed that Caesar’s home address was 906 Street Road. State
Police Trooper Stefano Gallina interviewed the owner of the
residence, who stated that Caesar had rented the house for four
years. The landlord also told Gallina that Caesar had never
been married and had no children.
B. Subsequent Investigation into Sexual Abuse
of the Two Brothers
While the initial investigation was ongoing, in January
2018 Gallina received a referral from Children and Youth
Services alleging that Caesar had sexually abused two
adolescent brothers. On January 17, 2018, Gallina interviewed
the brothers—ages sixteen and fourteen—and their mother,
separately. The older brother told Gallina that, a few years
prior, Caesar began paying the boys to do occasional chores
around his house. “[S]ome time” later, Caesar started
supplying him (then fourteen years old) and his brother (then
twelve years old) with alcohol. App. 50. Around June 2015,
Caesar began sexually abusing the boys. Caesar would provide
the older brother alcohol and then take him to Caesar’s
bedroom, where Caesar performed oral sex on him and forced
the boy to masturbate him. The sexual abuse took place
“several times” and “always” occurred in Caesar’s bed. App.
50. On multiple occasions, Caesar asked the older brother to
engage in other sexual acts with him, but the boy refused. The
boy agreed, however, to let Caesar keep a few articles of his
underwear.
The younger brother advanced similar allegations in his
interview with Gallina. He also stated that Caesar supplied him
with alcohol and brought him to the bedroom, where Caesar
sexually abused him. Both boys claimed that the sexual
4
conduct continued until late December 2017, at which point
their parents prohibited them from returning to Caesar’s house.
In her interview with Gallina, the boys’ mother stated only that
the younger brother returned home from Caesar’s house one
evening in late December 2017 smelling like alcohol. She did
not share any information about the alleged sexual abuse.
The day after these interviews, Gallina applied for two
warrants to search for evidence of aggravated indecent assault
of a minor, in violation of 18 Pa. Cons. Stat. § 3125(a)(8). The
warrant applications sought authority for the following:
• In the first warrant, a search of Caesar’s home for
two categories of evidence: (1) physical evidence of
the alleged sexual abuse, consisting of “[s]emen and
bodily fluid belonging to the victims, children’s
underwear and swimwear,” and (2) “images of child
pornography, child erotica or nudity and/or any
images of the victims in any form (hard copy
photographs, VHS tapes, DVD’s, CD’s, or stored on
personal electronic devices).” App. 47. This second
category of evidence is at issue on appeal.
• In the second warrant, a collection of a sample of
Caesar’s DNA.
The affidavits of probable cause supporting the first and second
warrants each consisted of four single-spaced pages that set
forth a detailed description of Caesar’s eBay messages and the
sexual abuse allegations against him.
In addition, the affidavits provided an extensive
accounting of Gallina’s experience and training as a State
Police trooper and ex-Federal Air Marshal. At the time of the
investigation, Gallina had been a trooper for approximately six
years and “ha[d] investigated several thousand criminal
incidents.” App. 48. Many of these criminal investigations
“included the search and investigation of electronic
communication devices, electronic records and data.” App. 48.
He had also taken courses on general investigation techniques,
investigation methods for drug crimes and violent crimes, and
criminal behavior assessment, among other subjects. None of
Gallina’s training addressed sex crimes specifically.
5
Based on his training and experience, Gallina made
several statements about the tendency of child abusers to
possess child pornography and other sexually explicit images.
He alleged that he
kn[ew] that those involved in the sexual abuse of
children and juveniles routinely keep and
maintain . . . [digital or physical copies of]
photographs of nude children and of children
posed in various states of undress . . . [and]
videos of nude children and of children posed in
various states of undress performing sexual acts
....
App. 49. At other points in the affidavit, Gallina repeated
similar allegations that child abusers “routinely and commonly
store, share, and maintain” sexually explicit images and videos
of children. App. 51. He also averred that individuals who
sexually abuse children often browse the internet for child
pornography and used articles of children’s clothing on
websites such as Craigslist, eBay, and Facebook Marketplace.
A Chester County magistrate judge issued the two
warrants and the State Police searched Caesar’s home the same
day. During the search, officers seized stained bedsheets,
pillowcases, and articles of stained children’s underwear.
They also discovered several pieces of electronic equipment,
including a cell phone, digital camera, various VHS cassettes
and compact discs, two computers, and multiple external hard
drives. One of the hard drives was found wedged between the
mattress and box spring in Caesar’s bedroom. The officers did
not search the devices immediately upon seizing them.
Later that day, following the search, Gallina arrested
Caesar and brought him to the police station for questioning.
After Gallina read Caesar his Miranda1 rights, Caesar agreed
to be interviewed. The interview proceeded for about an hour
until Caesar told Gallina that he did not want to answer more
questions. Notwithstanding Caesar’s multiple invocations of
his right to remain silent, Gallina continued to question him.
Caesar went on to admit that he sexually abused the two
1
See Miranda v. Arizona, 384 U.S. 436 (1966).
6
brothers, used the underwear and swimsuits that he bought on
eBay as a means for sexual gratification, and viewed child
pornography on some of the seized devices. Before the District
Court, the Government conceded that all these post-invocation
admissions should be suppressed. The parties do not contest
this issue on appeal.
Although the initial warrant permitted a search for
images “in any form . . . [including those] stored on personal
electronic devices,” App. 47, Gallina later secured an
additional warrant specifically authorizing a search of the
seized devices’ contents. At oral argument, counsel for the
Government noted that law enforcement officers often seek an
additional standalone warrant to search computer devices as a
“belt-and-suspenders” approach to conducting investigations.
Oral Arg. at 12:20–13:45. The third warrant application
included nearly all the information in the first affidavit, in
addition to a summary of the items seized in the search of
Caesar’s residence and Caesar’s post-invocation admissions
from his interrogation. Equipped with both the initial warrant
and third warrant, the State Police found over 70,000 images
and videos of child pornography on the seized devices. These
images included several sexually explicit photos of the
younger brother.
C. Caesar’s Criminal Proceedings and
Suppression Motion
Caesar was indicted in federal court and charged with
production of child pornography under 18 U.S.C. § 2251(a)
and (e), receipt of child pornography under 18 U.S.C.
§ 2252(a)(2), and possession of child pornography under 18
U.S.C. § 2252(a)(4)(B).2 He then moved to suppress all the
2
In addition, the Chester County district attorney charged
Caesar with various state child sexual assault and child
pornography offenses. While the district attorney’s office
dropped the state child pornography charges in favor of the
federal prosecution, it pursued the sexual assault charges
involving the two brothers, and a jury convicted Caesar in
August 2020. In that case, the Chester County Court of
Common Pleas suppressed Caesar’s post-invocation
7
evidence seized in the search of his home. The District Court
denied the motion as to the DNA sample and physical evidence
of sexual abuse but granted it with respect to the “images of
child pornography, child erotica or nudity and any images of
the victims” 3 discovered on the electronic devices. United
States v. Caesar, No. 18-525, 2019 U.S. Dist. LEXIS 206763,
at *26 (E.D. Pa. Nov. 26, 2019). This timely appeal followed.
If affirmed, the District Court’s suppression order would
effectively terminate Caesar’s federal prosecution, which
involves only the child pornography charges.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction under 18 U.S.C.
§ 3231. We exercise jurisdiction over this interlocutory appeal
under 18 U.S.C. § 3731. In reviewing the District Court’s
suppression order, we review its factual findings for clear error
and exercise de novo review over its legal conclusions. See
United States v. Werdene, 883 F.3d 204, 209 (3d Cir. 2018).
III. DISCUSSION
The Fourth Amendment forbids “unreasonable searches
and seizures” and mandates that “no Warrants shall issue, but
upon probable cause.” U.S. Const. amend. IV. The violation
of an individual’s Fourth Amendment rights, however, does
not always guarantee suppression of evidence derived from an
illegal search. See United States v. Katzin, 769 F.3d 163, 170
(3d Cir. 2014) (en banc). That is because “the exclusionary
rule is not an individual right,” but a prudential remedy meant
to deter law enforcement officials from engaging in
unreasonable searches and seizures. Herring v. United
States, 555 U.S. 135, 141 (2009); see also Stone v. Powell, 428
U.S. 465, 482 (1976) (describing the exclusionary rule as “a
statements, but not any physical evidence obtained in the
searches.
3
Although courts have distinguished child pornography and
“child erotica,” for convenience we will refer to the “images of
child pornography, child erotica or nudity” identified in the
first and third warrants collectively as “child pornography.”
See, e.g., United States v. Vosburgh, 602 F.3d 512, 520 n.7 (3d
Cir. 2010).
8
judicially created means of effectuating the rights secured by
the Fourth Amendment”); Elkins v. United States, 364 U.S.
206, 217 (1960) (“The [exclusionary] rule is calculated to
prevent, not to repair.”).
Because the suppression remedy is an “extreme
sanction” that carries significant costs, United States v. Leon,
468 U.S. 897, 926 (1984), however, it “has always been our
last resort, not our first impulse,” Hudson v. Michigan, 547
U.S. 586, 591 (2006). Given these costs, the Supreme Court in
Leon established the “good faith” exception to the exclusionary
rule, which prohibits suppression of “evidence obtained in
objectively reasonable reliance” on a warrant later invalidated
for lack of probable cause. 468 U.S. at 922.
A. The District Court Opinion
The District Court concluded that the officers lacked
probable cause to search for the images and that the good faith
exception did not apply. In so holding, the District Court
primarily relied on our opinion in United States v. Zimmerman,
a Fourth Amendment case that, as here, involved a warrant
application that alleged the supposed tendency of child
molesters to possess child pornography. The District Court
determined that, under Zimmerman, Gallina’s statements about
the molestation-pornography link were merely “boilerplate”
and that, without more factual support, these statements failed
to establish probable cause to search for evidence of child
pornography. Caesar, 2019 U.S. Dist. LEXIS 206763, at *18,
20. Despite the detailed averments about Caesar’s eBay
messages and prolonged sexual abuse of the brothers, the
District Court held that the first affidavit “lacked any facts
tying Caesar’s home to child pornography or to images of the
victims.” Id. at *18. Absent such facts, the court reasoned, the
affidavit failed to state probable cause to search for the images.
Citing Zimmerman and our opinion in Virgin Islands v. John,
654 F.3d 412 (3d Cir. 2011), the District Court further held that
the weaknesses of the first affidavit were so glaring that it was
“entirely unreasonable” and, “at a minimum, grossly
negligent” for Gallina to rely on the constitutionally infirm
warrant. Id. at *20. Thus, the good faith exception to the
exclusionary rule did not apply.
9
The District Court concluded that the third warrant also
did not render the images admissible. Although the third
warrant provided additional authorization to search the
electronic devices—separate from the initial warrant—the
District Court held that the images were nonetheless tainted by
the unlawful search of Caesar’s house because Gallina
leveraged the fruits of that search to elicit Caesar’s confession
during the interrogation.4 Pointing to what it considered to be
Gallina’s “grossly negligent” reliance on the first warrant and
his willful violation of Caesar’s right to remain silent during
the later interrogation, the District Court also held that Gallina
did not rely on the third warrant in good faith. Id. at *22 n.6,
23 n.8. The court therefore concluded that the images should
be suppressed.
On appeal, the Government urges that the District Court
erred in two ways. First, it argues that the searches of Caesar’s
home and electronic devices were supported by probable cause
and therefore did not violate the Fourth Amendment’s
prohibition against unreasonable searches and
seizures. Second, it argues that in any event, the State Police
reasonably relied on the magistrate judge’s probable cause
determinations such that the good faith exception should
4
The District Court declined to decide whether Gallina’s
violation of Caesar’s right to remain silent alone required
suppression of the images. As the District Court noted, the
“fruit of the poisonous tree” doctrine does not apply to
nontestimonial, physical evidence derived from a suspect’s
voluntary statements made before officers inform him of his
Miranda rights. See United States v. Patane, 542 U.S. 630,
636 (2004) (“The Self-Incrimination Clause . . . is not
implicated by the admission into evidence of the physical fruit
of a voluntary statement.”); United States v. DeSumma, 272
F.3d 176, 180–81 (3d Cir. 2001). But we have not opined
whether that same principle applies to physical evidence
derived from a suspect’s statements elicited in violation of
Edwards v. Arizona, 451 U.S. 477 (1981), where the suspect
invokes his right to an attorney or right to remain silent, yet
officials continue the interrogation. We need not address that
question here.
10
apply.5
We need only address the Government’s second
argument to resolve this appeal. Because we conclude that the
good faith exception applies, we need not determine whether
probable cause supported the searches in the first place. See,
e.g., United States v. Ninety-Two Thousand Four Hundred
Twenty-Two Dollars & Fifty-Seven Cents, 307 F.3d 137, 145
(3d Cir. 2002) (“turn[ing] ‘immediately to a consideration of
the officers’ good faith’” rather than first analyzing probable
cause (quoting Leon, 468 U.S. at 925)); see also Katzin, 769
F.3d at 170.
B. The Exclusionary Rule and Good Faith
Exception
As required by Leon and its progeny, we apply the
exclusionary rule only in those “unusual cases” where it may
achieve its “remedial objectives”: to appreciably deter
unreasonable searches and seizures by law enforcement
officers. Leon, 468 U.S. at 908, 918. The rule is designed to
eliminate any incentive for officers to violate suspects’ Fourth
Amendment rights by prohibiting the admission of illegally
seized evidence at trial. Herring, 555 U.S. at 139–40. By
doing so, suppression “compel[s] respect for the [Fourth
Amendment’s] constitutional guaranty in the only effectively
available way.” Elkins, 364 U.S. at 217.
In determining whether to suppress the fruits of an
unconstitutional search, we must undertake a “rigorous” cost-
benefit analysis, weighing the “deterrence benefits of
exclusion” against its “substantial social costs.” Davis v.
United States, 564 U.S. 229, 237–38 (2011); accord Herring,
555 U.S. at 141. Those costs include interfering with courts’
truth-seeking function, and more specifically, concealing
“reliable, trustworthy evidence bearing on guilt or innocence”
and, in some instances, “set[ting] the criminal loose in the
community without punishment.” Davis, 564 U.S. at 237.
5
The parties do not contest the part of the District Court’s order
denying Caesar’s motion to suppress the bedsheets,
pillowcases, underwear, and DNA sample. Accordingly, that
part of the District Court order will be affirmed.
11
Exclusion is a “bitter pill,” id., swallowed only where it would
result in a “substantial deterrent effect” that outweighs its
resulting costs, Leon, 468 U.S. at 907 n.6.
The Leon good faith exception to the exclusionary rule
effectuates this balance by forbidding suppression where
officers act in “good faith” or “objectively reasonable reliance”
on a search warrant later held to be defective. 468 U.S. at 922;
see also Katzin, 769 F.3d at 171. Under these circumstances,
where an officer acted illegally but did so “in the objectively
reasonable belief that [his] conduct did not violate the Fourth
Amendment,” it is unlikely the threat of suppression would
deter any future constitutional violations. Leon, 468 U.S. at
918. We do not exclude the fruits of unconstitutional searches
in such cases because any marginal deterrent benefit is
outweighed by its costs.
Since Leon, the Supreme Court has further refined the
good faith exception, placing the culpability of the officer’s
misconduct at the center of the deterrence analysis. See
Herring, 555 U.S. at 143; Davis, 564 U.S. at 238. It could be
said that these more recent pronouncements in Herring and
Davis have expanded the reach of the good faith exception and
further narrowed the scope of the exclusionary rule. See Davis,
564 U.S. at 258–59 (Breyer, J., dissenting). Since the deterrent
effect of exclusion “varies with the culpability of the law
enforcement conduct” at issue, the exclusionary rule applies
only where the official conduct is “sufficiently deliberate that
exclusion can meaningfully deter it, and sufficiently culpable
that such deterrence is worth the price paid by the justice
system.” Herring, 555 U.S. at 143–44. To trigger the
exclusionary rule, law enforcement conduct must be
“deliberate, reckless, or grossly negligent,” or involve
“recurring or systemic negligence.” Id. at 144. “[S]imple,
‘isolated’ negligence,” in turn, does not warrant suppression.
Davis, 564 U.S. at 238.
Thus, “[t]he test for whether the good faith exception
applies is ‘whether a reasonably well trained officer would
have known that the search was illegal despite the magistrate’s
authorization.’” United States v. Loy, 191 F.3d 360, 367 (3d
Cir. 1999) (quoting Leon, 468 U.S. at 922 n.23). Guided by
Herring and Davis, we examine the totality of the
12
circumstances, “consider[ing] not only any defects in the
warrant but also the officer’s conduct in obtaining and
executing the warrant and what the officer knew or should have
known.” United States v. Franz, 772 F.3d 134, 147 (3d Cir.
2014). In doing so, we bear in mind that police officers are not
trained attorneys and generally cannot be expected to second-
guess a magistrate’s probable cause determination. See
Messerschmidt v. Millender, 565 U.S. 535, 547 (2012).
Accordingly, “[t]he mere existence of a warrant typically
suffices to prove that an officer conducted a search in good
faith,” United States v. Hodge, 246 F.3d 301, 307–08 (3d Cir.
2001), and “will obviate the need for any deep inquiry into
[the] reasonableness” of the officer’s reliance on the warrant,
United States v. Stearn, 597 F.3d 540, 561 (3d Cir. 2010)
(internal quotation marks omitted).
In “rare circumstances,” id., however, a warrant may be
so flawed that “the officer will have no reasonable grounds for
believing that [it] was properly issued,” Leon, 468 U.S. at 923(footnote omitted). We have identified four such situations in
which the good faith exception does not apply:
(1) where the magistrate judge issued the
warrant in reliance on a deliberately or
recklessly false affidavit;
(2) where the magistrate judge abandoned his
or her judicial role and failed to perform
his or her neutral and detached function;
(3) where the warrant was based on an
affidavit so lacking in indicia of probable
cause as to render official belief in its
existence entirely unreasonable; or
(4) where the warrant was so facially
deficient that it failed to particularize the
place to be searched or the things to be
seized.
United States v. Tracey, 597 F.3d 140, 151 (3d Cir. 2010); see
also Leon, 468 U.S. at 923. According to Caesar and the
District Court, this case presents the third exception to the good
faith exception above. Tracey, 597 F.3d at 151.
13
Leon provided early guidance as to how the good faith
exception can apply notwithstanding a warrant affidavit that
lacks facts sufficient to establish probable cause. There, police
officers initiated an investigation based on a confidential
informant’s tip that the defendants were selling drugs and later
secured a facially valid warrant to search the defendants’
homes and automobiles. Leon, 468 U.S. at 901–02. The court
of appeals suppressed the evidence seized because the warrant
application contained no information regarding the informant’s
reliability or the basis of his statements and accordingly failed
to satisfy probable cause. Id. at 905. While declining to review
the lower court’s probable cause determination, the Supreme
Court noted that the affidavit nevertheless relayed the details
of the officers’ “extensive investigation” and provided “much
more than a ‘bare bones’ affidavit.” Id. at 926. And as
demonstrated by the divided panel opinions of the lower court,
the affidavit “provided evidence sufficient to create
disagreement among thoughtful and competent judges as to the
existence of probable cause.” Id. Accordingly, the Court held
that the officers’ reliance on the magistrate’s probable cause
determination was objectively reasonable, and that suppression
would not advance the remedial purposes of the exclusionary
rule. Id.Although we decline to rule on probable cause, “the
probable cause inquiry remains highly relevant” to our good
faith analysis. Stearn, 597 F.3d at 562. In determining whether
the good faith exception should apply, we examine whether an
officer could reasonably believe that probable cause existed by
assessing the facts in light of the relevant legal standards and
pronouncements in applicable precedent. Under that
precedent, probable cause is a “fluid concept,” turning on “the
factual and practical considerations of everyday life,” which
requires only a “fair probability that contraband or evidence of
a crime will be found in a particular place.” Illinois v. Gates,
462 U.S. 213, 231–32, 238 (1983). As we explain below, the
existence of probable cause here is a close question under our
Fourth Amendment caselaw, but that does not preclude the
determination that the officers acted in good faith.
C. The Officers Seized the Images from Caesar’s
Home in Good Faith Reliance on the Initial
Warrant
14
The question before us is whether the facts set forth in
the initial affidavit of probable cause were so deficient that the
officers’ reliance on the accompanying warrant to search
Caesar’s home and electronic devices was entirely
unreasonable.6 Like the District Court, we are mindful of our
opinions in Zimmerman and John. Both those cases address
the extent to which police officers can reasonably rely on
warrants supported, in part, by police officers’ statements
about the tendency of child sexual abusers to possess child
pornography. In both cases, divided panels concluded that the
good faith exception did not apply. However, Zimmerman and
John are distinguishable on their facts, and they do not
persuade us that the first affidavit was so obviously defective
that no reasonable officer would have believed there was
probable cause to search for child pornography and images of
Caesar’s sexual abuse victims. Moreover, given the Supreme
Court opinions in Herring and Davis, both of which were
controlling when the warrant was issued, we cannot conclude
that the officers’ conduct in seizing and searching the devices
was sufficiently flagrant to justify suppression of the images.
1.
Because the District Court’s reasoning relied almost
entirely on our precedent in Zimmerman and John, we will
discuss those opinions in some detail.
In Zimmerman, the police secured a warrant to search
the home of the defendant, a high school teacher and coach, for
evidence of sexual abuse of minors, including adult
pornography and child pornography. 277 F.3d at 429–30. The
affidavit of probable cause included three categories of
information. First, some of Zimmerman’s students alleged that
he had sexually abused them at school and on athletics road
trips. Id. at 430–31. Second, some current students and one
former student stated that Zimmerman had shown them adult
pornography at Zimmerman’s home six and ten months before
the warrant application. Id. at 430, 434. Third, the affidavit
related a postal inspector’s opinion that “persons with a sexual
interest in children may possess child pornography and keep it
in their homes for extended periods of time.” Id. at 431.
6
We address the third warrant in Part III.C.3, infra.
15
During the search of Zimmerman’s home, police seized several
images of child pornography, among other items. Id.We held that the affidavit failed to set forth probable
cause to search for child pornography and that the good faith
exception did not apply. Id. at 429. As to probable cause, we
noted that the warrant application “contained no information
that Zimmerman had ever purchased or possessed child
pornography,” and that “there was absolutely no information
in the affidavit . . . indicating that child pornography was—or
ever had been located [in his home].” Id. at 432–33. Because
the Government conceded that the police lacked probable
cause, we declined to determine how much weight, if any, to
attribute to the postal inspector’s statement about the
molestation-child pornography connection. Id. at 433 n.4. We
noted, however, that “there [was] nothing” in the postal
inspector’s statement about Zimmerman, the facts of his case,
or the results of the investigation. Id. at 434. And without
additional factual support, such “[r]ambling boilerplate
recitations [regarding a molestation-pornography link] . . . may
have added fat to the affidavit, but certainly no muscle” in the
probable cause calculus. Id. at 433 n.4 (internal quotation
marks and citation omitted).
The good faith exception did not apply because the
affidavit was “clearly insufficient” and “it was ‘entirely
unreasonable’ for an official to believe to the contrary.” Id. at
437. We reached that conclusion because—having already
rejected the postal inspector’s statements—the only
information linking pornography of any kind to Zimmerman’s
residence was a single stale allegation that Zimmerman had
stored a video of adult pornography on his home computer. Id.Then-Judge Alito, who would later write the majority
opinion for the Supreme Court in Davis, dissented. He
reasoned that, even if the warrant did not state “fresh probable
cause” to search for child pornography, the majority
improperly refused to apply the good faith exception. Id. at
438 (Alito, J., dissenting). Pointing to Zimmerman’s
“allegedly extended course of conduct with the students and
his use of [adult] sexual materials in carrying out that course of
conduct,” the dissent concluded that the affidavit provided
some evidence that Zimmerman would possess “similar
16
materials” in his home at the time of the search. Id. at 440.
Unlike the majority, the dissent declined to opine whether the
affidavit “provided fresh probable cause.” Id. But because
“there is no bright line between fresh and stale probable cause,”
the dissent concluded that this case did not present one of the
“rare circumstances in which, although a neutral magistrate has
found that there is probable cause, a lay officer executing the
warrant could not reasonably believe that the magistrate was
correct.” Id.Unlike Zimmerman, John involved a warrant
application that lacked any express statement about the link
between molestation and pornography but nonetheless relied
on an unsupported inference that child abusers often collect
child pornography. There, the officer applied for a warrant to
search the home of John, a teacher, after some of his sixth-
grade students reported that he had sexually assaulted them in
his classroom. John, 654 F.3d at 414. The students claimed
that John maintained two notebooks where he kept
“inappropriate” notes about his female students, which he
brought to and from school each day. Id. The warrant sought
permission to collect the notebooks and child pornography. Id.We held that the affidavit was “wholly lacking in
probable cause[] because [e]ven a cursory reading of [the]
affidavit reveals that there is not a single assertion that John
was in any way associated with child pornography.” Id. at 419(second alteration in original) (internal quotation marks
omitted). The allegations that John had committed sex crimes
on school property and that “he kept two particular pieces of
evidence of those crimes in his home” were inadequate “to
establish—or even to hint at—probable cause as to the wholly
separate crime of possessing child pornography.” Id.Accordingly, the affidavit needed to allege the existence of an
“assault-pornography correlation” explicitly and state the basis
for the allegation. Id. Such a statement might be supported by
“studies . . . show[ing] that a correlation exists between one
crime and the other,” or “perhaps extensive investigatory
experience.” Id. at 420. But because the affidavit did not
include either, we would not permit the officer to infer a
connection between two distinct crimes to support a showing
of probable cause or a good faith determination. Id.
17Judge Fuentes dissented. Underscoring the Supreme
Court’s then-recent opinions in Herring and Davis, he
concluded that the officer’s conduct was not sufficiently
culpable to warrant the suppression remedy. Id. at 423(Fuentes, J., dissenting). He reasoned that, given the shortage
of circuit court opinions addressing analogous fact patterns at
the time of the search, a reasonably well-trained police officer
would have acted just as the officer did: “[S]he would submit
a request to a judge asking whether there is probable cause for
a warrant. And, lacking legal training herself, she would then
rely on that judicial determination to do her job.” Id. at 425.
The dissent observed that even subsequent court of appeals
opinions addressing the question presented—whether probable
cause to believe someone has molested a child “automatically”
supplies probable cause to believe that person possesses child
pornography—“provide[d] conflicting guidance.” Id.(citing United States v. Hodson, 543 F.3d 286, 292–93 (6th Cir.
2008); United States v. Falso, 544 F.3d 110, 122, 125 (2d Cir.
2008); and United States v. Colbert, 605 F.3d 573, 578–79 (8th
Cir. 2010)). And if “even judges, steeped in law and acting in
the utmost good faith, can have different opinions on the issue
. . . it was not objectively unreasonable—let alone, entirely
unreasonable—for [the officer] to take one side of the
controversy over the other, even if we now disagree with that
decision.” Id. According to the dissent, suppression would not
adequately deter officers from making such a mistake, and the
good faith exception should therefore apply. Id.
2.
With these precedents in mind, we turn to the facts of
this case. Here, the District Court faulted Gallina’s initial
warrant application for many of the same deficiencies of the
Zimmerman and John warrants, even concluding that, as in
those cases, “nothing in the first affidavit hinted that Caesar
ever had child pornography or images of the victims in his
home.” Caesar, 2019 U.S. Dist. LEXIS 206763, at *16. The
court further held that the only “conceivable bases” for
probable cause to search for child pornography “were the
‘unexamined biases and stereotypes’ Gallina briefly mentioned
in the affidavit.” Id. at *20 (quoting John, 654 F.3d at 421).
We are not so sure.
18
Setting aside Gallina’s statements about the link
between molestation and pornography for now, we conclude
that the initial affidavit provided more than the “bare bones” or
“paltry” affidavits that preclude good faith reliance. United
States v. Pavulak, 700 F.3d 651, 664 (3d Cir. 2012);
Zimmerman, 277 F.3d at 438. As in Leon, the affidavit detailed
the origin of Gallina’s investigation and the multiple steps
officers took leading to the issuance of the initial warrant: the
receipt of the NCMEC tip, review of the eBay messages and
associated IP address, verification of Caesar’s driver’s license
records, and four interviews with Caesar’s landlord, the
victims, and victims’ mother. See 468 U.S. at 901. By relying
on interviews that were conducted only days before the search,
the affidavit supplied more than a solitary piece of stale
evidence. See Zimmerman, 277 F.3d at 437. Moreover, the
affidavit was not merely based upon a single uncorroborated
anonymous tip, see United States v. Williams, 3 F.3d 69, 73–
74 (3d Cir. 1993), or an officer’s conclusory statement that he
believed probable cause existed, see Pavulak, 700 F.3d at 664.
Indeed, the existence of probable cause to search for
sexually explicit images presents a closer question here than in
Zimmerman and John, where we concluded with little trouble
that probable cause was absent. The initial affidavit stated a
stronger basis than the warrant applications in both those
cases—namely because it included detailed allegations that
Caesar sexually abused the two brothers not in school, but in
his home for over two years, and because Caesar used eBay to
seek out images of children in various stages of undress.
Taking these facts together, the affidavit contained some basis
for believing Caesar had sexually explicit images of children
in his house. The third exception to the good faith exception,
for affidavits “so lacking in indicia of probable cause as to
render official belief in its existence entirely unreasonable,” is
therefore of questionable applicability. Tracey, 597 F.3d at
151.
The District Court’s primary criticism of the affidavit
was that it failed to formally accuse Caesar of violating
Pennsylvania’s child pornography statute7 and identified no
7
See 18 Pa. Cons. Stat. § 6312(c), (d), (g) (prohibiting the
dissemination, viewing, and possession of child pornography).
19
direct evidence that Caesar took photos of his victims or kept
child pornography in his home—the two categories of images
identified in the warrant application. But therein lies the rub.
“[D]irect evidence linking the place to be searched to the crime
is not required” to establish probable cause. Hodge, 246 F.3d
at 305 (alteration in original) (internal quotation marks
omitted). Rather, probable cause to search for an item “can be,
and often is, inferred by ‘considering the type of crime, the
nature of the items sought, the suspect’s opportunity for
concealment and normal inferences about where a criminal
might hide’” the fruits of his crime. United States v. Jones, 994
F.2d 1051, 1056 (3d Cir. 1993) (citation omitted); see also
United States v. Price, 558 F.3d 270, 282 (3d Cir. 2009).
Whether or not they were enough to satisfy probable cause, the
allegations about Caesar’s prolonged sexual abuse of the two
brothers and his interest in photos of children in various stages
of undress supported the reasonableness of the officers’ belief
that probable cause existed.
First, Gallina’s affidavit set forth a connection between
Caesar’s sexual interest in children and the site of the search
where the electronic equipment was located. In Zimmerman
and John, nearly all the alleged sexual abuse occurred at the
schools where the defendants worked. In contrast, the alleged
sexual abuse here occurred exclusively in the defendant’s
home, in his bedroom, several times over two years, ending
only weeks before the search. As the District Court noted, the
affidavit did not claim that Caesar photographed the brothers
or used child pornography in aid of his sexual abuse. The
brothers’ allegations could nevertheless lead a reasonable
officer to believe there was a critical link between the
defendant’s pursuit of sexual gratification via children and
possession of equipment containing explicit images of children
in his home. That link was certainly closer than in Zimmerman
and John.
The strong allegations tying child molestation to
Caesar’s home are particularly significant as they relate to the
search for images of Caesar’s victims. As described in the
warrant application, such images would have constituted
evidence of the allegations of child molestation. Significantly,
Caesar concedes on appeal that the affidavit set forth probable
cause to search for physical evidence of sexual abuse in his
20
home. While not necessarily sufficient to establish probable
cause, the facts supporting that search would tend to support a
further search, in the same location, for related evidence of the
same crime—including photographs of the crime victims. The
fact that Caesar allegedly abused the brothers in his home and
kept their used underwear also provided a basis for believing
that he would have kept other mementos of the boys in his
house.
Second, and arguably more importantly, the affidavit
recounted Caesar’s interest in images of partially dressed
minors and the steps he took to secure such images. Gallina
averred that Caesar, a single man with no children, bid on used
children’s underwear and swimwear and, in at least two
instances, requested videos or photos of children modeling the
posted clothing items. The District Court summarily dismissed
these communications and any images Caesar might have
received8 as stale because they were at least six months old as
of the search in January 2018. Again, we are not so sure.
Although the “[a]ge of the information supporting a warrant
application is a factor in determining probable cause . . . , [a]ge
alone . . . does not determine staleness.” United States v.
Harvey, 2 F.3d 1318, 1322 (3d Cir. 1993) (citations omitted).
Rather than simply count the “months between the facts relied
on and the issuance of the warrant,” id. (citation omitted), we
must also consider “a number of variables, such as the nature
of the crime, of the criminal, of the thing to be seized, and of
the place to be searched,” United States v. Williams, 124 F.3d
411, 420 (3d Cir. 1997) (quoting United States v. Tehfe, 722
F.2d 1114, 1119 (3d Cir. 1998)).
Gallina could reasonably have downplayed the six-
month gap in time between the NCMEC tip and warrant
application because “pedophiles rarely, if ever, dispose of child
pornography.” Zimmerman, 277 F.3d at 434. Such evidence
is therefore less likely to grow stale. See United States v.
Vosburgh, 602 F.3d 512, 529 (3d Cir. 2010) (“[I]nformation
8
Although the District Court referred to the “eBay images,”
we note that the initial affidavit failed to clearly state whether
Caesar received any images from other eBay users in response
to his solicitations. See Caesar, 2019 U.S. Dist. LEXIS
206763, at *19, n.5.
21
concerning [child pornography] crimes has a relatively long
shelf life.”); United States v. Shields, 458 F.3d 269, 279 n.7 (3d
Cir. 2006) (nine-month-old evidence that defendant
participated in online groups sharing child pornography was
not stale). While Gallina did not specifically allege that
Caesar’s eBay messages contained child pornography, the
child-focused sexual nature of the messages was obvious based
on the other information in the affidavit. In one of its most
graphic portions, the affidavit stated that after receiving a
message from Caesar soliciting children’s undergarments,
another eBay user replied, “If you buy it I will lube it and cum
into [it] for you in skype real show and you can watch this.”
App. 49. Clearly, the NCMEC, Gallina, and magistrate judge
were not alone in detecting Caesar’s infatuation with children
and the sexual intentions behind his eBay messages. The role
these communications played in Caesar’s sexual pursuits could
reasonably suggest that he would not quickly discard them.
That Caesar sought out the images of partially dressed
children by using a computer further counsels that the
messages might not have been stale at the time of the officers’
search. We have observed that images and files stored on
computers are “not the type of evidence that rapidly dissipates
or degrades.” Vosburgh, 602 F.3d at 529. Electronic files can
remain indefinitely on computer devices, and digital forensic
investigators often recover such evidence long after it is
deleted. Id.; see also United States v. Gourde, 440 F.3d 1065,
1071 (9th Cir. 2006) (en banc) (noting the “long memory of
computers”). It is therefore, at minimum, a close question
whether this evidence was stale at the time of the search. See
Zimmerman, 277 F.3d at 440 (Alito, J., dissenting) (“[T]here is
no bright line between fresh and stale probable cause.”).
We view these averments as something more than the
“nothing” that the District Court concluded. Caesar, 2019 U.S.
Dist. LEXIS 206763, at *16. Instead, Caesar’s eBay activity,
taken together with the detailed allegations of ongoing and
contemporaneous sexual abuse in his house, could indicate his
interest in pursuing visual sexual stimulation online. It was not
entirely unreasonable to believe that Caesar, an individual who
had sought to obtain photos of partially dressed children,
would likely possess such photos—or perhaps more explicit
photos—in the place where he pursued his physical sexual
22
interests with the two brothers. Evaluating these facts in
totality, as required, we disagree with the District Court’s
assessment. See D.C. v. Wesby, 138 S. Ct. 577, 588 (2018)
(“Our precedents recognize that the whole is often greater than
the sum of its parts—especially when the parts are viewed in
isolation.”).
The District Court was also critical of Gallina’s
statements, from his purported experience, about the link
between molestation and possession of child pornography. In
both John and Zimmerman we expressed skepticism about the
existence of an “intuitive relationship” between child sexual
abuse and child pornography. John, 654 F.3d at 422;
Zimmerman, 277 F.3d at 433 n.4. Even in his dissent in John,
Judge Fuentes acknowledged that the evidence of a correlation
between the two offenses is “mixed.” John, 654 F.3d at 423
n.2 (Fuentes, J., dissenting). But in assessing whether Gallina
acted in good faith, we cannot ignore the volume of social
science research and legal authority discussing the tendency of
child sexual abusers to possess child pornography. The
legislature has also weighed in on this question. In support of
the Child Pornography Prevention Act of 1996, Congress
issued findings that “child pornography is often used by
pedophiles and child sexual abusers to stimulate and whet their
own sexual appetites, and as a model for sexual acting out with
children.” Pub. L. No. 104-208, § 121, 110 Stat. 3009 (1996);
see also S. Rep. No. 104-358, at 12–13 (1996) (“Law
enforcement investigations have verified that pedophiles
almost always collect child pornography or child erotica.”).
More recently, the United States Sentencing Commission has
commented on the frequency of “criminal sexually dangerous
behavior”9 among child pornography offenders. U.S. Sent’g
Comm’n, Federal Child Pornography Offenses 169 (2012)
(“Sentencing Commission Report”). According to the
Commission, social scientists have reached “varying
conclusions” on this issue, but a consensus has identified
“some correlation between viewing child pornography and sex
9
As defined in the Sentencing Commission Report, “criminal
sexually dangerous behavior” consists of “contact” sex
offenses, “non-contact” sex offenses, and certain prior non-
production child pornography offenses. Sent’g Comm’n Rep.
at 174.
23
offending.” Id. at 102, 169; see also id. at 171–74 (canvassing
the scholarship).
Several of our sister circuits have favorably cited these
findings in other contexts,10 and some have even called the
molestation-pornography nexus “common sense,” United
States v. Byrd, 31 F.3d 1329, 1339 (5th Cir. 1994), or
“intuitive,” Colbert, 605 F.3d at 578. Guided by our opinion
in John, we do not go that far. We nevertheless credit the
weight of these authorities in concluding it was not entirely
unreasonable for an officer to believe the initial affidavit set
forth probable cause to search for the images.
As we explained in John, the existence of a molestation-
pornography correlation is a factual question. And in John we
noted that officers who rely on this correlation must offer a
factual basis for the magistrate judge to evaluate
independently. See 654 F.3d at 419–20. Gallina did just that,
or attempted to do so. He explicitly relied on his experience
and training to conclude that child sexual abusers tend to
possess child pornography. The District Court rejected these
statements about the molestation-pornography connection as
insufficient “boilerplate” that was not “tailor[ed]” to the facts
of this case. Caesar, 2019 U.S. Dist. LEXIS 206763, at *18.
But Gallina clearly attempted to support his belief in the
molestation-pornography nexus by reciting his lengthy
experience conducting criminal investigations and the
10
See United States v. Lebovitz, 401 F.3d 1263, 1271 (11th Cir.
2005) (citing Congress’s factual findings in affirming the
defendant’s sentence under the Sentencing Guidelines); United
States v. Brand, 467 F.3d 179, 198 (2d Cir. 2006) (citing
congressional findings in holding that evidence of child
pornography was admissible under Federal Rule of Evidence
404(b), in part because “child pornography shares a strong
nexus with pedophilia”); see also Byrd, 31 F.3d at 1339(rejecting defendant’s entrapment argument because “common
sense would indicate that a person who is sexually interested
in children is likely to also be inclined, i.e., predisposed, to
order and receive child pornography”); Colbert, 605 F.3d at
578 (“Child pornography is in many cases simply an electronic
record of child molestation.”).
24
extensive list11 of investigative training courses he had
completed. By providing this exhaustive summary, Gallina at
the very least tried to comply with John’s requirements, further
supporting our conclusion that he searched for the images in
good faith.
Even if it was questionable whether there existed
probable cause to search for the images, Gallina’s reliance on
the initial warrant and his conduct securing the warrant did not
approach the standard of gross negligence required to trigger
the exclusionary rule. See Franz, 772 F.3d at 147. We have
described gross negligence generally “as the want of even scant
care and the failure to exercise even that care which a careless
person would use.” United States v. Wright, 777 F.3d 635, 640
(3d Cir. 2015) (quoting Fialkowski v. Greenwich Home for
Children, Inc., 921 F.2d 459, 462 (3d Cir.1990)).
11
The full list of courses included the following: Criminal
Behavior Assessment; Basic Narcotics Investigator;
Identifying Deceptive Behavior; First Contact (“detailing
behaviors and tendencies of suspects during interdictions of a
traffic stop”); Current Drug Trends; Commercial Vehicle
Interdiction; Passenger Vehicle Interdiction; Conducting
Complete Traffic Stops; Operation Safe Highways Initiative
for Effective Law Enforcement Detection; Background
Investigator; Wiretap ‘A’ Certification; Cell Phone Use in
Drug Investigations; Interview and Interrogation; Statement
Analysis (“detailing techniques and methods at identifying and
analyzing truthful and deceptive written and verbal
statements”); Ritual Homicide Investigation; and Violent
Crime Behavioral Analysis (“utilizing behavioral analysis in
identifying, analyzing, and investigating homicides, child
abductions, and kidnappings”). App. 48.
While Gallina lacked experience investigating sex
offenses such as the ones in this case, the summary of his
background analyzing criminal behavior in other contexts and
his generally applicable training satisfied John’s basic
requirements. Coupled with his obvious familiarity and
personal connection with the facts of this case, contra
Zimmerman, 277 F.3d at 433 n.4, Gallina’s statements linking
child molestation to child pornography were adequately
tailored to support a good faith determination.
25
Based on the record, we cannot say that Gallina acted
without “even scant care” in the execution of the first warrant.
Id. As required, he submitted a warrant application that set
forth several facts tending to show that child pornography and
images of sexual abuse victims might be found in Caesar’s
house. “[T]hose facts presented the magistrate with the
judgmental task of evaluating their cumulative significance
and testing it against the legal standard of probable cause.”
Williams, 3 F.3d at 74. Where, as here, probable cause presents
a close judgment call, we conclude that suppression would not
meaningfully deter future Fourth Amendment violations.
Once the magistrate judge makes the call in such cases, officers
are entitled to rely on it and execute the authorized search
without sanction.12
3.
Caesar urges that the images must nonetheless be
suppressed because they were recovered from his electronic
devices only after execution of the third warrant. As discussed
above, that warrant’s affidavit of probable cause was based in
12
Caesar argues that reversing the District Court would
“open[] the door to assume that every person accused of child
molestation is automatically under investigation for child
pornography.” Appellee’s Br. 31. These concerns are
misplaced. Our good faith determination does not disturb a key
principle of our holdings in Zimmerman and John: that
probable cause to believe a defendant engaged in child
molestation, alone, cannot establish probable cause to search
for evidence of the separate crime of possessing child
pornography. See Falso, 544 F.3d at 122, 128 (holding that the
affidavit failed to state probable cause because it relied on a
“fallacious inference” linking child sexual abuse to child
pornography, but applying the good faith exception because
“[probable cause] is certainly an issue upon which reasonable
minds can differ”); cf. United States v. Edwards, 813 F.3d 953,
966, 972 (10th Cir. 2015) (concluding that probable cause was
lacking because the affidavit relied on a “logically fallacious”
link between possession of child pornography and other
“pedophilic tendencies,” but applying the good faith exception
because the link “[was] not so obviously unsound that it
rendered reliance on the warrant objectively unreasonable”).
26
part on a summary of the items seized in the search of Caesar’s
home and Caesar’s post-invocation admissions that he viewed
child pornography on some of the electronic devices. Caesar
argues that the third warrant was therefore tainted by the
unlawful seizure of the devices and illegally obtained
confession and that it failed to independently supply probable
cause to search the devices themselves. This argument ignores
the fact that the initial warrant expressly permitted a search for
the digital images themselves. See App. 47 (authorizing a
search for the specified images “in any form . . . [including
those] stored on personal electronic devices” (emphasis
added)); see also United States v. Gregoire, 638 F.3d 962,
967–68 (8th Cir. 2011) (“A search warrant which specifically
authorized the seizure of a computer and a search for financial
records clearly contemplates at least a limited search of the
computer’s contents without the need of a second warrant.”
(internal quotation marks omitted)).
Even if a warrant lacks such express authorization,
courts have routinely upheld subsequent searches of legally
seized electronic equipment. Multiple circuit courts have
recognized that “a second warrant to search a properly seized
computer is not necessary where the evidence obtained in the
search did not exceed the probable cause articulated in the
original warrant.” United States v. Evers, 669 F.3d 645, 652
(6th Cir. 2012) (internal quotation marks omitted); see also
United States v. Upham, 168 F.3d 532, 536 (1st Cir. 1999)
(“The extraction of unlawful images from within the computer
and diskettes was . . . contemplated by the warrant” where
“[t]he warrant explicitly authorized the seizure of both the
computer plus diskettes and the unlawful images” and “[t]he
images . . . were ‘inside’ the computer or diskettes.”).13
Accordingly, we do not believe a distinction between the
devices and images is warranted for purposes of our good faith
inquiry. Because the initial warrant permitted both the seizure
and search of the electronic devices and supported the officers’
13
Those holdings accord with Federal Rule of Criminal
Procedure 41, which provides that, unless otherwise specified,
a warrant authorizing the seizure of electronic storage media
also “authorizes a later review of the media or information
consistent with the warrant.” Fed. R. Crim. P. 41(e)(2)(B).
27
good faith reliance, the third warrant was unnecessary to
review the contents of the devices.
In reaching this conclusion, we recognize Gallina’s
egregious conduct during his interrogation of Caesar. Caesar
invoked his right to remain silent at least six times, but Gallina
continued to question him about the sexual abuse allegations
and electronic devices seized during the search of his home.
Caesar urges that this misconduct reflects Gallina’s “overly
aggressive and illegal” approach to the investigation as a whole
and that such conduct was sufficiently culpable to warrant
suppression of the images. Appellee’s Br. 43. But Gallina’s
misconduct following the seizure of the devices does not alter
our conclusion that he and the other officers relied on the initial
warrant in good faith. Cf. United States v. Crews, 445 U.S.
463, 475 (1980) (“The exclusionary rule enjoins the
Government from benefiting from evidence it has unlawfully
obtained; it does not reach backward to taint information that
was in official hands prior to any illegality.”). Once the
officers seized the devices, they were also entitled to search the
devices, as explicitly authorized by the magistrate judge.14
14
Because we conclude that the third warrant was superfluous,
we need not decide whether Caesar’s ill-gotten confession or
any of the evidence seized under the first warrant might have
tainted the third warrant such that it could not support an
officer’s good faith reliance. That question—whether the good
faith exception may apply to a warrant issued on the basis of
evidence derived from an earlier constitutional violation—is
not one that we have squarely addressed. We note, however,
that several of our sister circuits have held that the good faith
exception may, under certain circumstances, overcome the
taint of earlier unconstitutional conduct. See United States v.
Massi, 761 F.3d 512, 525–28 (5th Cir. 2014); United States v.
McClain, 444 F.3d 556, 564–566 (6th Cir. 2005); United
States v. Fletcher, 91 F.3d 48, 51–52 (8th Cir. 1996); United
States v. Thomas, 757 F.2d 1359, 1368 (2d Cir. 1985). But see
United States v. McGough, 412 F.3d 1232, 1239–40 (11th Cir.
2005) (holding that the good faith exception did not apply
where the officer presented tainted evidence in support of a
warrant application); United States v. Vasey, 834 F.2d 782,
789–90 (9th Cir. 1987) (same).
28
We will not punish the Government because Gallina
took the extra step of securing an unnecessary warrant but then
committed serious errors in doing so. Given our conclusion
that an officer could rely on the first warrant in good faith,
suppressing the images based on the third warrant’s flaws
would put the Government in a worse position than if the
officers had simply searched the devices immediately upon
seizing them. Cf. Nix v. Williams, 467 U.S. 431, 443–44 (1984)
(holding that the benefits and costs of the exclusionary rule
“are properly balanced by putting the police in the same, not a
worse, position that they would have been in if no police error
or misconduct had occurred”). Excluding the images under
these circumstances would not meaningfully deter future
Fourth Amendment violations. On the contrary, suppression
might discourage police officers from seeking judicial
authorization for follow-up searches in cases where, unlike
here, an additional warrant is actually needed. We therefore
conclude that the images should not be suppressed.
IV. CONCLUSION
For the foregoing reasons, we will reverse that part of
the District Court’s order suppressing the images of child
pornography and images of sexual abuse victims seized from
Caesar’s electronic devices. The District Court’s order will be
affirmed in all other respects. The case will be remanded to
the District Court for further proceedings consistent with this
opinion.
29