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IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Norfolk Division
UNITED STATES OF AMERICA
v.
LARRY JAMES REECE II,
Defendant.

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CRIMINAL NO. 2:16cr104

GOVERNMENT’S RESPONSE TO DEFENDANT’S FIRST MOTION TO SUPPRESS
Now comes the United States of America, by and through attorneys, Dana J. Boente,
United States Attorney for the Eastern District of Virginia, and Elizabeth M. Yusi, Assistant
United States Attorney, and submits its response in opposition to the defendant, LARRY JAMES
REECE II’s First Motion to Suppress the search warrant of his residence.

For the reasons set

forth below, the defendant’s motion should be denied.
INTRODUCTION
In September 2015, the Homeland Security Investigations (HSI) Cyber Crimes Center,
Child Exploitation Investigations Unit (C3/CEIU) became involved in an ongoing child
pornography investigation. This investigation involved multiple individuals, believed to be
residing across the United States as well as abroad, who are members of an Internet-based

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bulletin board1 (hereafter referred to as Bulletin Board A) dedicated to the advertisement,
distribution and production of child pornography. Bulletin Board A had over 1,500 “approved
users2,” who actively posted new content and engaged in online discussions involving the sexual
exploitation of minors. In general, members would post preview images and download links to
several different cloud-based storage services3. Among other things, these posts contained the

1

“Bulletin Board” means an Internet-based website that is either secured (accessible with a
password) or unsecured, and provides members with the ability to view postings by other
members and make postings themselves. Postings can contain text messages, still images, video
images, or web addresses that direct other members to specific content the poster wishes.
Bulletin boards are also referred to as “internet forums” or “message boards.” A “post” or
“posting” is a single message posted by a user. Users of a bulletin board may post messages in
reply to a post. A message “thread,” often labeled a “topic,” refers to a linked series of posts
and reply messages. Message threads or topics often contain a title, which is generally selected
by the user who posted the first message of the thread. Bulletin boards often also provide the
ability for members to communicate on a one-to-one basis through “private messages.” Private
messages are similar to e-mail messages that are sent between two members of a bulletin board.
They are accessible only by the user who sent/received such a message, or by the Website
Administrator.
2

This figure is taken from a posting by one of Bulletin Board A’s administrators.
Administrators manage the technical details required for the running of the site. As such, they
may promote members, set rules, create sections and act as moderators.

3

“Cloud-based storage service,” as used herein, refers to a publicly accessible, online storage
provider that collectors of child pornography can use to store and trade child pornography in
larger volumes. Users of such a service can share links and associated passwords to their stored
files with other traders of child pornography in order to grant access to their collections. Such
services allow individuals to easily access these files through a wide variety of electronic devices
such as desktop and laptop computers, mobile phones, and tablets, anywhere and at any time.
An individual with the password to a file stored on a cloud-based service does not need to be a
user of the service to access the file. Access is free and readily available to anyone who has an
Internet connection.
2

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title of the image, the file name, the file size, and a password4 which users could input to access
and open the content of the file associated with the image file. Law enforcement obtained a
court order under 18 U.S.C. § 2703(d) from the United States District Court for the District of
Columbia to one of the cloud-based storage services concerning the unique download links
found on Bulletin Board A. The storage service provided, among other information, business
records that contained the IP addresses connected to the downloading of the specific files. The
users connected to the IP addresses actually attempted, if not succeeded, in downloading the
information. Among the IP addresses identified accessing Bulletin Board A was one associated
with defendant LARRY JAMES REECE II.

Following the execution of a search warrant at

REECE’s home in Chesapeake, Virginia, REECE was indicted and arrested on charges of receipt
and access with intent to view child pornography involving a prepubescent minor. REECE now
seeks to suppress the information obtained by the search warrant of his home.

For the reasons

that follow, his motion should be denied.
First, the affidavit supporting the search warrant application for REECE’s residence set
forth ample probable cause to conclude that any user downloading the child pornography from
the cloud-based service may have evidence of child pornography at the residence connected to
the Internet account.

Any user of Bulletin Board A knew of its illicit content and intended to

access that content.

Bulletin Board A was no ordinary website, but a hidden service operating

on an anonymous network that was dedicated to the sharing of child pornography. The

4

Defendant claims that the affiant to the application “omits the fact that the person using Mr.
Reece’s IP address never entered a password to access the video.” Def. Mot. at 4 (emphasis
omitted). However, without having access to the user’s computer prior to the search warrant,
the government is unaware how the affiant could know such information.
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magistrate judge who authorized the warrant reasonably concluded that there was a fair
probability that anyone who logged into the cloud-based storage service links did so with
knowledge of its content and intent to view that content.
Second, the defendant’s claim that the probable cause supporting the search warrant was
stale has no merit.

Looking at the totality of the circumstances, the five-month delay between

the criminal activity and the search warrant did not make the probable cause stale.

Especially

considering the Fourth Circuit has stated that child pornography activity is not stale as a matter
of law if acted upon within a year.
Third, the defendant makes no showing—much less a substantial, preliminary one—to
justify a Franks hearing. Everything is the affidavit was and remains accurate.

REECE

cannot and does not point to anything that was not true or that was omitted. Defendant’s
Franks arguments consist of little more than a disagreement with the opinions and conclusions of
the veteran HSI agent contained within his affidavit, none of which suffice to justify a Franks
hearing.
Finally, even if the search warrant was somehow flawed, the good faith exception is an
independent bar to suppression.

The warrant affidavit set forth probable cause for its request to

search a particular location for particular information.
relied on that affidavit in authorizing the warrant.

And, a neutral and detached magistrate

Law enforcement’s reliance on that

authorization was therefore objectively reasonable and suppression is thus unwarranted.
For these and the other reasons outlined below, the defendant’s first motion to suppress
should be denied.

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BACKGROUND
The charges in this case arise from an investigation into Bulletin Board A, a global online
forum through which users advertised, distributed, and/or accessed illegal child pornography.
Images and videos shared through the site were highly categorized according to victim age and
gender, as well as the type of sexual activity.

The site also included forums for discussion of all

things related to child sexual exploitation, including tips for grooming victims and avoiding
detection.
I.

The Network
Bulletin Board A operated on a network (“the Network5”) available to Internet users who

were aware of its existence.

The Network was designed specifically to facilitate anonymous

communication over the Internet. In order to access the Network, a user must have installed
computer software that is publicly available, either by downloading software to the user’s
existing web browser, downloading free software available from the Network’s administrators,
or downloading a publicly-available third-party application.6

Using the Network prevented

someone attempting to monitor an Internet connection from learning what sites a user visited and

5

The actual name of the Network is known to law enforcement. The network remains active
and disclosure of the name of the network would potentially alert its members to the fact that law
enforcement action is being taken against the network, potentially provoking members to notify
other members of law enforcement action, flee, and/or destroy evidence. Accordingly, for
purposes of the confidentiality and integrity of the ongoing investigation involved in this matter,
specific names and other identifying factors have been replaced with generic terms and the
network will be identified as “the Network.”
6

Users may also access the Network through so-called “gateways” on the open Internet,
however, use of those gateways does not provide users with the full anonymizing benefits of the
Network.
5

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prevented the sites the user visited from learning the user’s physical location.

The Network’s

software protected users’ privacy online by bouncing their communications around a distributed
network of relay computers run by volunteers all around the world, thereby masking the user’s
actual IP address which could otherwise be used to identify a user.

Because of the way the

Network routed communication through other computers, traditional IP identification techniques
were generally not viable.
Websites that were accessible only to users operating within the Network can be set up
within the Network.

Bulletin Board A was one such website.

These websites operated the

same as regular public websites with one critical exception - the IP address for the web server
was hidden and instead was replaced with a Network-based web address.

A user could only

reach such sites if the user was using the Network client and operating in the Network.

In order

to access Bulletin Board A, a user also had to either know the exact web address or discover its
exact web address, for example, from other users or from servers on the Network that maintain
indexes of known servers.

Moreover, because neither a user nor law enforcement could

identify the actual IP address of the web server, it was not possible to determine through public
lookups where the computer that hosts the website was located. Accordingly, it was not
possible to obtain data detailing the activities of the users from the website server through public
lookups.
II.

Bulletin Board A and its contents.
Bulletin Board A was dedicated to the advertisement and distribution of child

pornography. It had over 1,500 users who actively posted new content and who engaged in
online discussions involving the sexual exploitation of minors. Bulletin Board A had various

6

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sections containing forums and subforums in which members posted messages and/or images for
other members to view. For example, there were sections labeled “Girls” and “Boys” and
within each of these sections are several forums, including: “Pre-teen Hardcore;” “Pre-teen
Softcore/Non-nude;” “Model/Producer section;” “Babies and toddlers” and “Requests.” Typical
posts contained: text; preview images of child pornography or erotica available for download;
links to external file sharing websites from which the advertised images or videos may be
downloaded; and any required passwords.
Although Bulletin Board A itself operated on the anonymity network described herein,
many of the external file sharing websites from which images or videos advertised on Bulletin
Board A would be downloaded operated on the ordinary Internet. The investigation determined
that some users accessed and downloaded child pornography images and videos advertised on
Bulletin Board A from those file sharing sites without using the anonymity network.
Accordingly, IP address information was available to help identify such users.
In October of 2015, C3/CEIU began working with the Department of Justice, Child
Exploitation and Obscenity Section (CEOS), High Technology Investigative Unit (HTIU).
Since that time, HTIU has captured content contained on and advertised through Bulletin Board
A. C3/CEIU personnel reviewed this content and observed various postings by board members.
One such post was found within the section titled “Girls,” forum “Pre-teen Hardcore,” sub-forum
“Videos.” This post was made to the board by a member (hereafter referred to as Board
Member A) on October 26, 2015, and it consisted of the title: “Hot latin doggyfuck” followed by
a preview still image file containing several smaller still images from the video in question,
affording the user the opportunity to pre-view the content of said video. In addition, the posting

7

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provided the filename: “(~pthc center~)(opva)(2013) Hot latin doggyfucking
WP_20130324_052315Z,” the file size: 7.70 MB, the Archive name: myuimy5r6yu5e433e.7z,
the Duration: 00:00:49, the Download link, Password, and the Download key, among other
information. If the user were to hover their cursor over the download link, the post would
provide the full download link: http://[FSS].com/mkj6j8qjxixb/myuimy5r6yu5e433e.7z.html.7
This post also contained a password, which users could input to open the content of the file
associated with that unique URL8.
HTIU downloaded the file titled “(~pthc center~)(opva)(2013) Hot latin doggyfucking
WP_20130324_052315Z” from the above listed URL. This file was encrypted, but by using the
password provided in the post detailed above, the file could be opened and viewed. The video
file consisted of what appeared to be an adult male engaged in sexual activity with what
appeared to be an underage minor. Specifically, the video depicted a scene recorded from
above, showing what appears to be an adult male from the waist down, with his pants pulled

7

The unique string of characters in this file path following the words [FSS].com is known to law
enforcement. Disclosure of the unique string of characters, or of the file-sharing service’s name,
could potentially alert investigation targets to the fact that law enforcement action is being taken
against the board and its users, potentially provoking members to notify other members of law
enforcement action, flee, and/or destroy evidence. Accordingly, for purposes of the
confidentiality and integrity of the ongoing investigation involved in this matter, information
from the unique URL has been replaced with generic characters and the file sharing service will
be referred to generically as “FSS.”
8

The term URL (short for Universal Resource Locator) refers to the unique address for a file
that is accessible on the Internet. For example, a common way to get to a website is to enter the
URL of the website's home page file in the Web browser's address line. Additionally, any file
within that website can be specified with a URL. The URL contains the name of the protocol to
be used to access the file resource, a domain name that identifies the specific computer on the
Internet, and a pathname, a hierarchical description that specifies the location of a file in that
computer.
8

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down and with an erect penis, and the lower back and buttocks of what appears to be a minor,
engaging in sexual intercourse (either actual or simulated) until the adult male ejaculates on the
apparent minor’s back and buttocks. The video file is 49 seconds in duration and contains
audio.
Law enforcement determined that these unique URLs, like the one mentioned above, that
were posted by members of Bulletin Board A and which provided board members access to files
depicting minors engaging in sexually explicit conduct, were hosted by several different cloudbased storage services. One of the storage services used by Bulletin Board A’s members,
hereafter referred to as FSS (“File Sharing Site”), offered users free cloud storage for data,
documents, images and music. FSS users may store files on the FSS, allow other users to access
and download those files, and create passwords to protect their files from download by
individuals who do not possess the password.
Based upon the information detailed above, law enforcement had reason to believe that
FSS’ service was used by members of Bulletin Board A to store files containing child
pornography and to make them available to other members. FSS provided this service using
computer servers owned, maintained, controlled or operated by a provider whose name is known
to law enforcement. The investigation revealed that this provider’s headquarters were located in
the United States.
On December 7, 2015, the United States District Court of the District of Columbia issued
an Order pursuant to 18 U.S.C. § 2703(d), directing FSS to disclose certain records and other
information relating to a list of unique URLs that contained files which had been viewed by law
enforcement and determined that each depicted minors engaging in sexually explicit conduct.

9

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This Order was sent to FSS. In response to that Order, FSS produced business records which
included the dates, times and IP addresses connected to the downloading of the file content
associated with the URLs specified in the application for the Order.
FSS provided the following information concerning the access, download and/or
attempted download of file content associated with the following unique URL
http://[FSS].com/mkj6j8qjxixb/myuimy5r6yu5e433e.7z.html: On October 28, 2015, at 5:51:47
PM (17:51:47) Eastern Daylight Time [EDT], IP address 70.161.118.157 was used to download,
and/or attempted to download, file content associated with that URL. That URL contained the
link to the above-described 49 second video file depicting what appears to be an adult male from
the waist down, with his pants pulled down and with an erect penis, and the lower back and
buttocks of what appears to be a minor, engaging in sexual intercourse (either actual or
simulated) until the adult male ejaculates on the apparent minor’s back and buttocks.
III.

The Identification of Defendant’s Residence and Execution of the Search
Warrant
Using publically available search tools, law enforcement determined that IP address

70.161.118.157 was controlled by Internet Service Provider (ISP9) Cox Communications, Inc.
(Cox) on the date and time in question. On or about December 15, 2015, a Department of
Justice subpoena was issued to Cox requesting subscriber information relating to the use of IP
address on October 28, 2015 at 17:51:47 EDT. On or about January 6, 2016, Cox produced

9

“ISP” refers to the term “Internet Service Provider.” Individuals who have an Internet
account and an Internet-based electronic mail (e-mail) address must have a subscription,
membership, or affiliation with an organization or commercial service which provides access to
the Internet. A provider of Internet access and services is referred to as an Internet Service
Provider or "ISP.”
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business records that provided that the account holder, the wife of REECE, was receiving
Internet service at defendant REECE’s residence (the subject premises) in Chesapeake, Virginia.
HSI performed additional public records checks and surveillance, which confirmed that
REECE’s wife and the defendant REECE, appeared to reside at the subject premises.
On April 5, 2016, a special agent with HSI applied for and was granted a search warrant
of the subject premises by this Court. The Honorable Magistrate Judge Lawrence R. Leonard
reviewed the application, affidavit in support, and search warrant and signed the search warrant
at approximately 2:54 P.M. See Exs. A (Search Warrant), B (Application in Support) and C
(Affidavit in Support).
The affidavit in support of the application for the search warrant was written by a HSI
special agent who has worked with HSI for almost 10 years. Ex. C, ¶ 1.

He is a computer

forensic specialist as well as an agent. Id. And, he has investigated the sexual exploitation of
children for years. Id. In his affidavit, the special agent explained the importance and
specialization of search and seizing computers and electronic media in appropriate, controlled
environments. Id. at ¶¶ 27-30. He also discusses the characteristics of those who use the
Internet to gain access to child pornography. Id. at ¶ 31.
The affidavit also described, in great detail and in stark terms, the purpose of Bulletin
Board A. Bulletin Board A was “dedicated to the advertisement, distribution and production of
child pornography.” Ex. C at ¶ 37. It described the forums and subforums that made it very
clear the purpose of Bulletin Board A. Id. at ¶ 38. Bulletin Board A’s illicit purpose was also
apparent to anyone who visited it.

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The affidavit also described, in detail, FSS, the third-party file sharing services that
hosted some of the files being shared through Bulletin Board A. Ex. C at ¶¶ 37-44. The affiant
continued and explained how FSS’ responded to a court order with information about the IP
addresses that were used to download known images of child pornography from their file sharing
service. Id. at ¶ 45. He also explained how, on October 28, 2015, the IP address connected to
the subject premises was used to download, or at least attempt to download, the described
explicit video of the sexual abuse of a child. Id. at ¶ 47.
At the time of the application to the search warrant, the affiant had no knowledge if the
user of the IP address at the subject premises was indeed a member of Bulletin Board A and he
did not state otherwise. The affidavit explained how law enforcement came to believe that a
user at the subject premises downloaded child pornography. These URLs were unique and were
not searchable. Someone had to share the specific URL and password in order for the user to
have accessed it.
The affidavit then explained the link between the IP address and the subject premises.
Id. at ¶¶ 48-54. Attachments A and B to the search warrant and application in support precisely
identified the location to be searched and the items that law enforcement was entitled to seized.
Exs. A and C.
The search warrant was executed on April 15, 2016, at the subject premises. Law
enforcement seized numerous electronic media. Images of child pornography were located on
the electronic media attributable to the defendant.

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LEGAL STANDARD & ARGUMENT
An experienced HSI agent explained to a neutral and detached magistrate why there was
probable cause to believe that a user who downloaded a video of child pornography
approximately five months prior to search warrant application was located at the subject
premises.

He supported this conclusion with a detailed description of how law enforcement

discovered the file sharing service’s unique URLs that contained the child pornography.

The

agent also described how, based on his experience and that of others he spoke with, those that
collected child pornography using the Internet and computers had unique characteristics.
Relying on this information, the magistrate judge authorized the HSI to execute a search
of REECE’s residence. The warrant was a clear in its description of where and what would be
searched. The Fourth Amendment asks no more.
As detailed below, nothing in the defendant’s First Motion to Suppress undermines this
conclusion. There was no “sleight of hand,” as the defendant maligns, and no trickery in order
to get the search warrant approved by the Court.
of suppression must clear a high hurdle.

Defendants seeking the extraordinary remedy

The defendant falls far short, and his motion should be

denied.
I.

The warrant affidavit amply supports the magistrate’s finding of probable
cause for issuance of the warrant

Probable cause exists when “the known facts and circumstances are sufficient to warrant
a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.”
Ornelas v. United States, 517 U.S. 690, 696 (1996). It is a fluid concept that focuses on “the
factual and practical considerations of everyday life on which reasonable and prudent men, not

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legal technicians, act.” Illinois v. Gates, 462 U.S. 213, 231 (1983) (internal quotation marks
omitted).
Importantly, probable cause does not require a showing of “absolute certainty.” United
States v. Gary, 528 F.3d 324, 327 (4th Cir. 2008).

It demands only “a fair probability that

contraband or evidence of a crime will be found in a particular place,” Id. (quoting Gates, 462
U.S. at 238), a finding that, in turn, “depends on the totality of the circumstances and involves a
‘practical common-sense decision whether’” such a fair probability exists. United States v.
Moses, 540 F.3d 263, 268 (4th Cir. 2008) (quoting Gates, 462 U.S. at 238).

“This standard is

not defined by bright lines and rigid boundaries.” United States v. Grossman, 400 F.3d 212,
217 (4th Cir. 2005).

“Instead, the standard allows a magistrate judge to review the facts and

circumstances as a whole…” Id. (citing United States v. Williams, 974 F.2d 480, 481 (4th
Cir. 1992)).

As in this case, “the nature of the unlawful activity alleged, the length of the

activity, and the nature of the property to be seized” must be assessed to determine probable
cause.

United States v. Richardson, 607 F.3d 357, 370 (4th Cir. 2010). Further, it is “no

defense that the affidavit contained only one allegation or a prior transmission of only one illicit
image.

Given the evident difficulty of obtaining child pornography, it is very unlikely that an

individual would acquire a single image mistakenly or on a whim.”

United States v. Ramsburg,

114 Fed. App’x 78 at *4 (4th Cir. 2004).
Recognizing that reasonable minds may differ regarding whether a particular affidavit
establishes probable cause, the Supreme Court “concluded that the preference for warrants is
most appropriately effectuated by according ‘great deference’ to a magistrate’s determination.”
United States v. Leon, 468 U.S. 897, 914 (1984) (quoting Spinelli v. United States, 393 U.S. 410,

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419 (1969); see also Grossman, 400 F.3d at 217; United States v. Blackwood, 913 F.2d 139,142
(4th Cir. 1990).

“[T]he task of a reviewing court is not to conduct a de novo determination of

probable cause, but only to determine whether there is substantial evidence in the record
supporting the magistrate’s decision to issue the warrant.” Massachusetts v. Upton, 466 U.S.
727, 728 (1984).

“When reviewing the probable cause supporting a warrant, a reviewing court

must consider only the information presented to the magistrate who issued the warrant.”

United

States v. Wilhelm, 80 F.3d 116, 118 (4th Cir. 1996) (citing Blackwood, 913 F.2d at 142).
The warrant affidavit amply supported a finding of probable cause.

The affiant had

specialized training and experience in the field, consulted with others who had even more
experience than he, and set forth in detail why there was probable cause to believe anyone who
downloaded the unique URL from the FSS did so intending to view and/or trade child
pornography.

Accordingly, his affidavit provided ample justification for obtaining a search

warrant and the nexus between the nature of the crime, the facts and circumstance of the crime,
and the place to be searched.
Here, the affiant’s assessment—and the magistrate’s reasonable reliance upon it—was
supported by specific, articulable facts and inferences drawn from his training, experience, and
that of others.

The affiant did not state and did not mislead the Court by stating that REECE

was a member of Bulletin Board A.

Rather, he explained how the URLs were located, because

they were not able to located through search engines or other ways.

At most, there was a

reasonable inference that the user of the computer may have learned of the URL from Bulletin
Board A.

These URLs and the files that were contained therein had passwords and were secure.

They had to be cut and pasted in order to be shared with others.

15

Indeed, this did not guarantee

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that child pornography would be found at REECE’s residence.

However, the Fourth

Amendment requires probable cause only.
Further, the “collector language” used by affiant in the affidavit clearly applies to those
that collect child pornography using hidden networks and third-party sites. Law enforcement
officers may “draw on their own experience and specialized training to make inferences from
and deductions about the cumulative information available to them that might well elude an
untrained person.” United States v. Johnson, 599 F.3d 339, 343 (4th Cir. 2010) (quoting United
States v. Arvizu, 534 U.S. 266, 273 (2002) (collecting cases). In making probable cause
determination, magistrates “may rely upon an experienced officer’s conclusions as to the
likelihood that evidence exists and where it is located.” United States v. Brown, 958 F.2d 369
(4th Cir. 1992) (unpublished table decision) (collecting cases); see also United States v. Terry,
911 F.2d 272, 275 (9th Cir. 1990) (quoting United States v. Fannin, 817 F.2d 1379, 1382 (9th
Cir. 1987)); United States v. Fauntleroy, 800 F. Supp. 2d 676, 686 (D.Md. 2011) (“The issuing
judge is entitled to rely on the affiant’s training and experience on the issue whether those
involved in certain types of illegality customarily store evidence in their home.”).

This applies

with equal force in child pornography cases. See, e.g., Richardson, 607 F.3d at 370-71 (finding
affidavit that included statements based on affiant’s training and experience regarding child
pornography trafficking and storage provided substantial basis for probable cause
determination); United States v. Hay, 231 F.3d 630, 635-36 (9th Cir. 2000) (same). The
defendant is certainly free to disagree with the affiant’s assessment, but his disagreement does
not mean that the magistrate was compelled to do the same.

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II.

The probable cause was not stale with a mere five months having passed
between the activity and the application for the warrant.

Next, defendant claims that the information contained in the warrant was too stale to
support probable cause. The activity traced to REECE’s house occurred on October 28, 2015,
and the search warrant was signed on April 5, 2016.

Approximately five months passed

between the alleged criminal activity and the signing of the warrant.

Contrary to defendant’s

assertion, the delay between the download, identification, and the search warrant was not
unreasonable and did not hamper the probable cause that was the basis for the search warrant.
A search warrant must allege facts “so closely related to the time of the issue of the
warrant as to justify a finding of probable time at that time.” United States v. McCall, 740 F.2d
1331, 1335-36 (4th Cir. 1984).

However, “’[t]he vitality of probable cause cannot be quantified

by simply counting the number of days between the occurrence of the facts supplied and the
issuance of the affidavit.’” Id. at 1336.

Instead, as the defendant points out in his

memorandum, the Court “look[s] to all the facts and circumstances of the case, including the
nature of the unlawful activity alleged, the length of the activity, and the nature of the property to
be seized.” Richardson, 607 F.3d at 370 (quoting McCall). Further, findings of staleness
“become less appropriate when the instrumentalities of the alleged illegality tend to be retained.”
United States v. Ramsburg, 114 Fed. App’x 78, at *4 (4th Cir. 2004).
In the context of child pornography cases, it is the “widespread view” of courts that
“collectors and distributors of child pornography value their sexually explicit materials highly,
‘rarely if ever’ dispose of such material, and store it ‘for long periods’ in a secure place, typically
in their homes.” Richardson at 370 (quoting United States v. Lacy, 119 F.3d 742, 746 (9th Cir.
1997))(four month time period between transmission of child pornography and search warrant
17

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“does not preclude a finding of probable cause based on staleness in light of the other
information supplied by” law enforcement); see also United States v. Sassani, 139 F.3d 895 (4th
Cir. 1998)(upholding a search warrant based on a six month lapse); United States v. Watzman,
486 F.3d 1004, 1009 (7th Cir. 2007)(“’[i]nformation a year old is not necessarily stale as a
matter of law, especially where child pornography is concerned.’”)(quoting United States v.
Newsom, 402 F.3d 780, 783 (7th Cir. 2005)); United States v. Wagers, 452 F.3d 534, 540 (6th
Cir. 2006); United States v. Shields, 458 F.3d 269, 279 n.7 (3d Cir. 2006) (information nine
months old not stale); United States v. Hay, 231 F.3d 630, 636 (9th Cir. 2000) (six month time
period between transmission of child pornography images and warrant did not render
information too stale). The Fourth Circuit has gone so far as to say that “information a year old
is not stale as a matter of law in child pornography cases.” United States v. Davis, 313 Fed.
App’x 672, 674 (4th Cir. 2009); but cf. United States v. Raymonda, 780 F.3d 105, 116-17 (2d
Cir. 2015) (nine-month old information was stale).
The Affidavit for Search Warrant requested the ability to conduct a search because on
October 28, 2015, a user of a computer downloaded child pornography from defendant’s
residence in Chesapeake, Virginia. There was only a 5-month lapse between the illegal activity
and the search warrant. Further, defendant was not even identified by Cox until January 2016,
when Cox Communications responded that REECE’s wife was the customer associated with the
IP address and that he still had internet connectivity.

Thus, there was only a 3-month lapse

between the defendant’s identification and the execution of the search warrant.

As discussed by

the HSI agent in his affidavit, those that use the Internet to collect child pornography typically
maintained their collections for a long period of time.

18

Three months is nowhere near the one-

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year limit set by the Fourth Circuit as a matter of law.

Thus, it was reasonable for the issuing

judge to believe that the defendant may still possess images of child pornography at his residence
and defendant’s Motion to Suppress should be denied on this account as well.
III.

REECE has made no showing that justifies a Franks hearing, let alone
established that the warrant contained a material and intentional or reckless
falsehood or omission.

“An accused is generally not entitled to challenge the veracity of a facially valid search
warrant affidavit.” United States v. Allen, 631 F.3d 164, 171 (4th Cir. 2011). “In its decision
in Franks v. Delaware, however, the Supreme Court carved out a narrow exception to this rule,
whereby an accused is entitled to an evidentiary hearing on the veracity of statements in the
affidavit.” Id. (citing Franks v. Delaware, 438 U.S. 154, 155–56 (1978)). To be entitled to a
hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155-56 (1978), a 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.” Franks,
438 U.S. at 155-56 (quotations omitted).

When a Franks hearing is sought based on

information omitted from an affidavit, the defendant must show: (1) that the omission is the
product of a deliberate falsehood or of a reckless disregard for the truth, and (2) inclusion of the
omitted information in the affidavit would defeat probable cause.

United States v. Colkley, 899

F.2d 297, 301-02 (4th Cir. 1990); accord United States v. Clenney, 631 F.3d 658, 664-65 (4th
Cir. 2011) (affirming denial of motion for Franks hearing based on omissions that were neither
“designed to mislead the magistrate” nor “material”).

In addition to this substantial preliminary

showing, a defendant must also demonstrate that the alleged falsity or omission was material to
the probable cause determination. Franks, 438 U.S. at 155-56; accord United States v.

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McKenzie-Gude, 671 F.3d 452, 462 (4th Cir. 2011); United States v. Cioni, 649 F.3d 276, 286
(4th Cir. 2011); Clenney, 631 F.3d at 663; and Allen, 631 F.3d at 171. For materiality, the
central question is whether the inclusion in the affidavit of the “deliberately omitted facts” would
“defeat the probable cause showing and thus render false the original ‘literally true’ affidavit.”
United States v. Tate, 524 F.3d 449, 456-57 (4th Cir. 2008). This is so because the purpose of a
Franks hearing is “to prevent the admission of evidence obtained pursuant to warrants that were
issued only because the magistrate was misled into believing that there existed probable cause.”
United States v. Friedemann, 210 F.3d 227, 229 (4th Cir. 2000) (emphasis added).
In the seminal case, Franks v. Delaware, the Supreme Court stressed that there is a
presumption of validity with respect to a search warrant affidavit.

438 U.S. at 155-56.

such, under Franks, conclusory allegations of a defect will not do. Id. at 171.
must offer allegations of intentional falsehood accompanied by an offer of proof.

As

Defendants
Affidavits or

sworn or otherwise reliable statements of witnesses should be furnished or their absence
satisfactorily explained before a hearing is granted. Id.; see also United States v. Chandia, 514
F.3d 365, 373 (4th Cir. 2008).
Franks, 438 U.S. at 171.

Allegations of negligence or innocent mistake are insufficient.

In Franks and subsequent cases, the Supreme Court was clear that the

rule it had announced has “a limited scope,” one that places a heavy burden on the defendant.
Id. at 169; see also United States v. Jeffus, 22 F.3d 554, 558 (4th Cir. 1994).

A defendant

cannot meet that burden through a conclusory argument based on “bare allegations” that fail to
make the requisite preliminary substantial showing.
373 (4th Cir. 2008).

20

United States v. Chandia, 514 F.3d 365,

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Applying these principles, there can be little doubt that the defendant has not made
anything resembling a substantial, preliminary showing of an intentional or reckless falsehood or
omission. First, his offer of proof hardly suffices.

He asserts that REECE’s IP address never

entered a password in order to download the file from the FSS.

The government is not clear

why REECE believes that a password was needed to download the URL. The password was to
open the file, not to download it. The affiant could not and did not swear that the file was ever
opened; to wit, he specifically states that the person did or attempted to download the file.

This

alleged “omission” is not factually correct.
Second, REECE alleges the collector language included in the affidavit was put in
without any evidence supporting that REECE was indeed a collector.

To the contrary, based on

the investigation of a bulletin board hosted on an anonymous network and password protected
files on a third-party file sharing service, there was sufficient evidence, in the affiant’s
experience and in that of others, that the person downloading child pornography through this
medium and format could have fit the collector profile.
Third, defendant alleges that the information concerning Bulletin Board A had no nexus
to REECE and his residence.

Because of the hidden nature of Bulletin Board A, defendant is

correct that law enforcement did not know without a doubt that REECE was a member of
Bulletin Board A.
board.

And, the affiant did not state that REECE was a member of the bulletin

However, law enforcement’s information and belief from their investigation was that

only those accessing Bulletin Board A would have access to the unique URLs and passwords
containing the child pornography. There was no intentional “hide the ball” or other sinister

21

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plan by law enforcement in its application of the search warrant.

It was only based on fact,

training, and experience.
Finally, in its conclusion, the affiant concluded that a user at the subject premises
received or attempted to receive, possessed and/or accessed with intent to view child
pornography “via the listed e-mail account.”

Ex. C at ¶ 55. Admittedly, this was a typo on

behalf of the affiant and in no other place in the affidavit is an “e-mail account” allegedly
connected to REECE’s residence. However, this was an innocent mistake and not done with
malice or otherwise.

If a failing at all, it was—at worst—an unintentional oversight.

Indeed,

it would be a stretch to characterize the agent as negligent; it certainly cannot be said he acted
recklessly or with some intent to deceive.

And, “mere[ ] negligen[ce] in... recording the facts

relevant to a probable-cause determination” is not enough to warrant a Franks hearing. Colkley,
899 F.2d at 301 (quoting Franks, 438 U.S. at 170). Similarly, a “good faith mistake” by the
affiant will not invalidate the warrant. See Id.
Indeed, much of what he characterizes as “false statement” and “misleading statements”
reflect little more than REECE’s opinion about the weight the Court should attach to particular
statements in the affidavit and the training and experience of those involved with the
investigation. The defendant’s mere disagreement with the affiant’s description of the facts or
the inferences to be drawn from those facts in light of his training and experience, however, does
not an omission or falsehood make.
The defendant is certainly free to contest whether the facts contained in the affidavit,
considering the totality of the circumstances, supported probable cause—as he apparently does.
He is not, however, entitled to a Franks hearing simply because he does not like the inferences

22

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drawn from those facts by the affiant. And he certainly cannot convert his disagreement into a
showing that the affidavit was somehow misleading just by declaring it so. Nothing in Franks
requires an affiant to “list every conceivable conclusion” and his failure to do so in no way
“taint[s] the validity of the affidavit.” Colkley, 899 F.2d at 301 (quoting United States v.
Burnes, 816 F.2d 1354, 1358 (9th Cir. 1987)) (internal quotation marks omitted).
Even so, beyond conclusory assertions that a particular statement is wrong or misleading,
the defendant offers nothing that would suggest it constitutes an intentional or reckless
falsehood. “Franks clearly requires defendants to allege more than ‘intentional’ omission in this
weak sense.” Colkley, 899 F.2d at 301. “To mandate an evidentiary hearing, the challenger’s
attack must be more than conclusory and must be supported by more than a mere desire to crossexamine.” Franks, 438 U.S. at 171.
In short, the sum total of the defendant’s Franks argument seems little more than a
recitation of his principal argument against the finding of probable cause: that is, it was
theoretically possible that a user may have accessed the URLs without intent to view child
pornography. The affiant did not claim otherwise. He merely concluded, based upon the
available facts and his training and experience, that it was probably done purposefully and
intentionally. More importantly, the magistrate agreed.
IV.

None of REECE’s claimed defects in the warrant justify the extraordinary
remedy of suppression and, even if that warrant does not satisfy the Fourth
Amendment, the good faith exception bars suppression.

As a threshold matter, the defendant’s dissatisfaction with having been discovered is
understandable. But the mere fact that he objects to having been unmasked, without more, does
not warrant suppression of evidence obtained pursuant to a warrant issued by a neutral and

23

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detached magistrate based on a finding of probable cause. For all of the reasons outlined above,
the warrant does not contravene the requirements of the Fourth Amendment. But even if it did,
suppression of the information derived from the execution of that warrant is not appropriate.
The Fourth Amendment’s exclusionary rule does not provide “a personal constitutional
right, nor is it designed to redress the injury occasioned by an unconstitutional search.” Davis v.
United States, 564 U.S. 229, 236 (2011) (quoting Stone v. Powell, 428 U.S. 465, 468 (1976))
(internal quotation marks omitted). The exclusionary “rule’s sole purpose … is to deter future
Fourth Amendment violations.” Davis, 564 U.S. at 236 (collecting cases).

The real deterrent

value “is a ‘necessary condition for exclusion,’ but it is not a ‘sufficient’ one.” Id. at 237
(quoting Hudson v. Michigan, 547 U.S. 586, 596 (2006)). There are substantial costs associated
with its application. Id. (“Exclusion exacts a heavy toll on both the judicial system and society
at large…It almost always requires courts to ignore reliable, trustworthy evidence bearing on
guilt or innocence.”). The practical effect in nearly every case “is to suppress the truth and set
the criminal loose in the community without punishment.” Id. (citing Herring v. United States,
555 U.S. 135, 141 (2009)).

Accordingly, it is to be employed “only as a ‘last resort’”—that is,

when “the deterrence benefits of suppression … outweigh its heavy costs.”

Id. (quoting

Hudson, 547 U.S. at 591); United States v. Stephens, 764 F.3d 327, 335 (4th Cir. 2014)
(“[E]xclusion of evidence has ‘always been [the] last resort, not [the] first impulse.’” (quoting
Hudson, 547 U.S. at 591) (alterations in original)). “Police practices trigger the harsh sanction
of exclusion only when they are deliberate enough to yield meaningful deterrence, and culpable
enough to be worth the price paid by the justice system.” Id. (quoting Davis, 564 U.S. at 240).

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Under the good faith exception to the Fourth Amendment’s exclusionary rule,
suppression is not warranted when officers rely in good faith on an objectively reasonable search
warrant issued by a neutral and detached judge. United States v. Leon, 468 U.S. 897, 900
(1984). This objective standard is measured by “whether a reasonably well trained officer
would have known that the search was illegal despite the magistrate’s authorization.” Id. at 922
n. 23. “[A] warrant issued by a magistrate normally suffices to establish that a law enforcement
officer has acted in good faith in conducting the search.” Id. at 922 (internal quotation marks
omitted). The Supreme Court observed that “suppression of evidence obtained pursuant to a
warrant should be ordered only on a case-by-case basis and only in those unusual cases in which
exclusion will further the purposes of the exclusionary rule.” Id. at 918. The Court identified
only four circumstances in which exclusion of evidence seized pursuant to a warrant is
appropriate. Those are when: (1) the issuing magistrate was misled by the inclusion of knowing
or recklessly false information; (2) the issuing magistrate wholly abandoned the detached and
neutral judicial role; (3) the warrant is facially deficient as to its description of the place to be
searched or the things to be seized; or (4) the affidavit upon which the warrant is based is so
lacking in indicia of probable cause that no reasonable officer could rely on it in good faith. Id.
at 923-924. None apply here.
Here, the warrant affidavit contained no knowingly or recklessly false information that
was material to the issue of probable cause.

Nor does the defendant allege that the issuing

magistrate abandoned his judicial role. The warrant clearly and particularly described the
locations to be searched and the items to be seized.

And the affidavit made a strong,

comprehensive showing of probable cause to issue the search warrant.

25

Absent any of these

 Case 2:16-cr-00104-AWA-DEM Document 26 Filed 11/14/16 Page 26 of 27 PageID# 151

errors, once the magistrate signed the warrant, the agents’ reliance on that authority was
objectively reasonable. See Massachusetts v. Sheppard, 468 U.S. 981, 989-90 (1984) (“[W]e
refuse to rule that an officer is required to disbelieve a judge who has just advised him, by word
and by action, that the warrant he possesses authorizes him to conduct the search he has
requested.”). Ultimately, agents acted reasonably in relying on the magistrate’s authorization of
the warrant, and so the evidence seized pursuant to it should not be suppressed.
CONCLUSION
For the foregoing reasons, the defendant’s First Motion to Suppress the search warrant of
his residence should be denied.
Respectfully submitted,
DANA J. BOENTE
UNITED STATES ATTORNEY
By: ______/s/___________________
Elizabeth M. Yusi
Assistant United States Attorney
Attorney for the United States
United States Attorney’s Office
101 West Main Street, Suite 8000
Norfolk, Virginia 23510
Phone: (757) 441-6331
Fax: (757) 441-6678
Email: elizabeth.yusi@usdoj.gov

26

 Case 2:16-cr-00104-AWA-DEM Document 26 Filed 11/14/16 Page 27 of 27 PageID# 152

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 14th day of November, 2016, I electronically filed the
foregoing with the Clerk of Court using the CM/ECF system, which will send an electronic
notification of such filing to the following:
Amanda Conner, Esq.
Kirsten Kmet, Esq.
Assistant Federal Public Defenders

______/s/________________________
Elizabeth M. Yusi
Assistant United States Attorney
Attorney for the United States
United States Attorney’s Office
101 West Main Street, Suite 8000
Norfolk, Virginia 23510
Phone: (757) 441-6331
Fax: (757) 441-6678
Email: elizabeth.yusi@usdoj.gov

27