FBI’s ‘Good Faith’ Saves Child Pornography Evidence Again

Bloomberg Law’s® extensive network of reporters and editors helps subscribers to stay ahead of legal

By Jordan S. Rubin

Child pornography evidence obtained with a wide-ranging warrant shouldn’t have been suppressed, the U.S. Court of Appeals for the First Circuit held Oct. 27.

Reaching a similar conclusion as two other federal appeals courts—the Eighth and the Tenth—that recently decided the issue when confronted with evidence from the same warrant, the First Circuit said the FBI relied on the warrant in good faith and thus suppression would be inappropriate ( United States v. Levin , 2017 BL 386222, 1st Cir., No. 16-1567, 10/27/17 ).

Alex Levin was one of many defendants across the country netted in an FBI sting aimed at catching those committing child pornography crimes.

The sting was made possible due to a warrant the FBI obtained from a magistrate judge in the Eastern District of Virginia. The warrant essentially allowed the government to hack into any computer that accessed a particular child pornography website—which the government infiltrated and was running as part of the sting—thereby allowing the FBI to obtain information about the computers that accessed the site, and in turn, identify the computers’ users like Levin.

Levin accessed the site from Massachusetts, the FBI learned with the hacking warrant, and it used that information to uncover more child pornography evidence against him in that state.

The federal district court suppressed the evidence, reasoning that the Virginia magistrate judge didn’t have authority to issue a warrant to be executed outside her district. It was as if there was no warrant at all, the district court said.

But the lower court should’ve applied the good faith exception to the exclusionary rule to allow the evidence, the First Circuit said in an opinion by Judge Juan R. Torruella, joined by Judges Bruce M. Selya and Sandra L. Lynch. The warrant’s validity was a “novel question,” the court said, rather than a situation where agents acted in bad faith.

Therefore the potential deterrent effects on law enforcement of suppressing evidence don’t outweigh the great cost to society of suppression, the appeals court said.

J. W. Carney, Jr. & Associates, Boston, represented Levin. The U.S. Attorney’s Office for the District of Massachusetts represented the government.

To contact the reporter on this story: Jordan S. Rubin in Washington at jrubin@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request White Collar & Criminal Law News