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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
UNITED STATES OF AMERICA,
v.

Case No. 2:16cr104

LARRY JAMES REECE II,
Defendant
DEFENDANT=S MOTION TO SUPPRESS
Comes now the defendant, Larry James Reece II, by counsel and pursuant to Federal Rule
of Criminal Procedure 12, and hereby moves this Honorable Court to enter an order suppressing all
evidence seized in violation of the Fourth Amendment. On April 15, 2016, the FBI conducted a
search of Mr. Reece’s house pursuant to a warrant that was 1) unsupported by probable cause, 2)
issued based on stale evidence, and 3) supported by an affidavit that was tainted by the material
omission of important facts. Mr. Reece asks the Court to suppress all evidence seized during that
search as well as the fruits of such evidence.
QUESTIONS PRESENTED
Probable Cause: Under the Fourth Amendment, warrants must be
supported by probable cause. Here, the warrant application alleged
that Reece’s IP address attempted to access the web address of a
popular file sharing service, which itself bore no indicia of child
pornography. In other words, someone clicked once on a hyperlink
like this: “Click here.” Did that single mouse click—without
more—provide probable cause to search Reece’s home?
Staleness: The Fourth Circuit has held that time is a crucial element
of probable cause determinations. Here, the warrant affidavit
provided no evidence that anyone was a collector of child
pornography. It alleged a single attempt to access one illicit file.
Does a single incident of attempted access create a fair probability
that child pornography will be found in a person’s home more than
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five months later?
Material Omissions: A Franks hearing is required upon a
preliminary showing that a warrant affiant misled or omitted
material facts. Here, the affidavit described a membership-based
child porn website, emphasized the proclivities of child porn
collectors, implied that Reece accessed a password protected illicit
file, and asserted that his email address was used to access child
porn. Yet the government had no evidence that Reece ever visited
the website, collected child pornography, entered a password, or
used an email address. Is a Franks hearing warranted?
STATEMENT OF FACTS
On April 5, 2016, the government applied for a warrant to search Mr. Reece’s home in
Chesapeake, Virginia. (Ex. A, Search Warrant Application.) Homeland Security Special Agent
Harald S. Julsrud provided the affidavit in support of the search warrant. Although the affidavit is
14 pages long, only about 1 page describes facts specific to the government’s investigation of Mr.
Reece.
Much of the affidavit is dedicated to a detailed description of the government’s background
investigation into a child pornography website referred to as “Bulletin Board A.” (Ex. A, ¶¶
37-45.) According to the affidavit, Bulletin Board A is a website that is dedicated to the
advertisement and distribution of child pornography. (Ex. A, ¶ 37.) The affidavit alleges that
Bulletin Board A has over 1,500 “approved users.” (Ex. A, ¶ 37.) One posting on Bulletin
Board A contained a link to a specific child pornography video that is described in Paragraph 40 of
the affidavit. To access this video, a Bulletin Board A user had to click on a hyperlink that would
send the user to a specific URL where the video file was stored. The URL was associated with a

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popular commercial file hosting site: http://ziifile.com.1 Before actually gaining access to the
video, however, the user would have to enter a password that was provided in the Bulletin Board A
post. (Ex. A, ¶ 39.) According to the affidavit, the Bulletin Board A post contained thumbnail
previews of the video and a suggestive filename that included the infamous child pornography
catchphrase “pthc.” (Ex. A, ¶ 39.)
Based on this information, it appears likely that someone who landed on this URL by
navigating through Bulletin Board A’s posting and clicking on the hyperlink intended to access
child pornography. Such a person would have been on Bulletin Board A to begin with—a site
dedicated to child porn. Maybe he was even one of the site’s 1,500 approved members. Such a
person would have seen the illicit video’s thumbnail previews, and perhaps even caught the
reference to ‘pthc’ in the filename, all before clicking the link to access it. But—to be clear—the
affidavit never asserts that Mr. Reece’s IP address is associated in any way with Bulletin Board A.
Paragraphs 46-47 of the warrant affidavit provide the only nexus between this illicit video
and Mr. Reece’s IP address:

1 Ziifile.com is the file sharing site referred to as “FSS” in the warrant affidavit.
2 The only apparent reference to this fact is the affidavit’s concession that the IP address may have been used
only to attempt to download file content associated with that URL.
(Ex. A, ¶ 47.)
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(Ex. A, ¶¶ 46-47 (emphasis added).) Despite all the talk of Bulletin Board A, the affidavit does
not allege that Mr. Reece clicked on any link in Bulletin Board A. It does not allege that Mr.
Reece was one of Bulletin Board A’s 1,500 “approved users.” It does not allege that Mr. Reece
ever even visited Bulletin Board A. The only allegation is that someone using the Reeces’ IP
address navigated to this URL: http://[FSS].com/mkj6j8qjxixb/myuimy5r6yu5e433e.7z.html.
Unlike the hyperlink posted in Bulletin Board A, this web address contains no catchphrase
or indicator that the website being accessed contained illicit content. And although this URL
could be accessed by clicking the link in Bulletin Board A, it could also be accessed by clicking
any other hyperlink. The affidavit is silent as to how the person using Mr. Reece’s IP address
navigated to this URL. Moreover, the affidavit does not allege that the video was either viewed or
downloaded by Mr. Reece’s IP address. Indeed—after having established that this video could be
downloaded only after entering a password—the affidavit omits the fact that the person using Mr.
Reece’s IP address never entered a password to access the video. 2 In sum, the affidavit
establishes only that Mr. Reece’s IP address navigated one time to this seemingly innocuous URL.
The affidavit provides no facts to show that the person using this IP address knew the nature of the
website’s contents before navigating to it or that anyone ever actually received illicit content.
The affidavit contains a boilerplate recitation of the “characteristics” of collectors of child
pornography writ large. (Ex. A, ¶ 31.) But the affidavit contains no specific facts to support an
inference that anyone associated with Mr. Reece’s IP address was a collector of child
pornography. Again, the only allegation specific to Mr. Reece’s IP address is the single instance

2 The only apparent reference to this fact is the affidavit’s concession that the IP address may have been used
only to attempt to download file content associated with that URL. (Ex. A, ¶ 47.)

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of attempted access of an illicit video in October of 2015.
On the same day the warrant application was submitted, the magistrate judge signed the
warrant authorizing the search of Mr. Reece’s home. The search was executed 10 days later, on
April 15, 2016. During the search, law enforcement obtained various paper documents, several
computers, a camera, a hard drive, and a smartphone. Three months later, on July 21, 2016, Mr.
Reece was charged in a four-count indictment with receiving and accessing with intent to view
child pornography.
ARGUMENT
The warrant in this case was issued in contravention of the Fourth Amendment for three
reasons. First, the warrant was not supported by probable cause because the application alleged
only that on a single occasion someone using Mr. Reece’s IP address navigated to a web address
that contained on its face no indicia of child pornography. Second, insofar as the Court finds that
the facts could have supported probable cause to search Mr. Reece’s home in October 2015, these
scant facts did not still provide probable cause to search over five months later when the
government sought a warrant in April of 2016. Third, the affidavit in support of the warrant
application contained misleading statements and material omissions, without which the warrant
would not have issued. For all these reasons, the search of Mr. Reece’s home was conducted in
violation of the Fourth Amendment and suppression is appropriate.
I.

A single mouse click on a link to an unsuspicious web address—without more—does
not provide probable cause to search a person’s home.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches and seizures” and states that “no
Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly
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describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend.
IV.

“Ordinarily, when a search violates the Fourth Amendment, the fruits thereof are

inadmissible under the exclusionary rule, a judicially created remedy designed to safeguard Fourth
Amendment rights generally through its deterrent effect.” United States v. Doyle, 650 F.3d 460,
466 (4th Cir. 2011) (internal quotation marks omitted).
Here, the application for the search warrant did not provide probable cause to search Mr.
Reece’s home. The affidavit clearly established facts about an illicit posting on Bulletin Board A.
The affidavit established that Bulletin Board A was a child pornography site; that Bulletin Board A
had 1,500 approved members; that one posting on Bulletin Board A included a link to an illicit
video file that was hosted on a popular file sharing site; that the Bulletin Board A posting included
thumbnails of the video file and a suggestive filename that included the phrase ‘pthc’; and that the
posting contained a password that was needed to actually download the video file from the file
sharing site.
But the affidavit contains no facts that connect Mr. Reece’s IP address to Bulletin Board
A. This is the affidavit’s critical shortcoming. Rather than connecting Mr. Reece to Bulletin
Board A, the affidavit connects Mr. Reece’s IP address only to the ziifile.com web address. To be
sure, it is possible that this URL was accessed by clicking on the link posted on Bulletin Board A.
But the affidavit provides absolutely no facts to support that assumption. All that the affidavit
establishes is that on October 28, 2015, someone using Mr. Reece’s IP address attempted to
navigate to this web address: http://[FSS].com/mkj6j8qjxixb/myuimy5r6yu5e433e.7z.html.
Nothing in this web address indicates that it is associated with child pornography. In fact, the
affidavit establishes that the file sharing service—whose name was contained in the

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URL—advertises itself as prohibiting not just child pornography, but all pornography. (Ex. A, ¶
43.) So not only did the name of the web address provide no independent basis for believing that
the site contained child pornography—for example, it does not include the letters
‘pthc’—ziifile.com’s service agreement gave an innocent user who clicked on this link reason to
believe that the file hosted at that URL did not contain pornography of any kind. In sum, the
affidavit builds a strong probable cause case against users of Bulletin Board A, but fails to connect
Mr. Reece’s IP address to that site. Unless the affidavit is read carefully, it is easy to miss this
sleight of hand.
In child pornography cases around the country, courts have consistently emphasized that
probable cause to search a person’s home will not be found based on the single click of a
computer’s mouse. Particularly analogous facts were addressed by the Second Circuit in United
States v. Coreas, 419 F.3d 151, 156 (2d Cir. 2005). In Coreas, the warrant was supported by
allegations that Coreas had clicked on a subscription link after reading the following invitation:
“This group is for People who love kids. You can post any type of messages you like too or any
type of pics and vids you like too. P.S. IF WE ALL WORK TOGETHER WE WILL HAVE THE
BEST GROUP ON THE NET.” Coreas, 419 F.3d at 152. The Second Circuit found that
probable cause to search was not supported by that single click:
In the view of this panel, that does not remotely satisfy Fourth
Amendment standards.… All that Coreas did, so far as the [ ]
affidavit shows, was to respond to a three-sentence suggestive
invitation from Candyman to join its e-group by clicking a button
that added his e-mail address to its roll of members but in no way
committed him to partaking in any of its various activities, lawful or
unlawful, or even to receiving its e-mails (which he had the option
to refuse from the outset). The notion that, by this act of clicking a
button, he provided probable cause for the police to enter his
private dwelling and rummage through various of his personal
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effects seems utterly repellent to core purposes of the Fourth
Amendment.
Coreas, 419 F.3d at 156 (emphasis added). Just as here, there was no problem linking the
Candyman group to child pornography. The problem was that the evidence did not sufficiently
show that Coreas knew that the link he was about to click would give him access to child
pornography. At least in Coreas, however, the suspect had some clue that the link he was clicking
was related to kids. As the Second Circuit said, the three-sentence invitation was “suggestive.”
Id. Here, there is absolutely no evidence as to how Mr. Reece might have come to click on a link
that sent him to the facially innocent web address of the ziifile.com file sharing site.
The defense is aware of no case in which a court has upheld a warrant based on the single
click of a mouse when the government made no showing that the suspect had some way of
knowing what he was clicking on. In United States v. Gourde, 440 F.3d 1065, 1070 (9th Cir.
2006), the Ninth Circuit upheld a search warrant when the government did not show any actual
downloading of child pornography, but the government had shown that the suspect was the
member of a child pornography website. And the government showed that the nature of the
website would have been apparent to someone who innocently navigated to the site before
becoming a member.

Id.

The Ninth Circuit’s holding was rooted in the fact that the

government’s evidence was inconsistent with innocent navigation to the website: “Gourde could
not have become a member by accident or by a mere click of a button.” Id.
Other courts have relied on the same principle. In United States v. Payne, the Third
Circuit held that a warrant was supported by probable cause only because the government had
shown that the “Defendant could not have undertaken the multi-step process required to join
Illegal.CP by accident or with a mere click of a button.” 519 F. Supp. 2d 466, 475 (D.N.J. 2007),
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aff’d, 394 F. App’x 891 (3d Cir. 2010). See also United States v. Vosburgh, 602 F.3d 512, 517 (3d
Cir. 2010) (emphasizing that probable cause determination rested on finding that suspect had to
have taken several steps because “[a] user seeking to access a link to child pornography posted on
Ranchi cannot do so with a simple click of the mouse”); United States v. Diaz, 529 F. Supp. 2d
792, 799 (S.D. Tex. 2007) (distinguishing from situation “where the defendant was only required
to click on a subscribe link”); United States v. Kreitzer, No. 3:12-CR-133, 2013 WL 3479245, at
*9 (S.D. Ohio July 10, 2013) (contrasting facts that presented probable cause with an “innocuous”
link “that an unsuspecting user might click on, only to be confronted with a pornographic image
containing a child”).
A single click on a hyperlink to a web address that on its face contains nothing indicative of
illegal activity cannot possibly support probable cause to search a person’s house. The link to this
web address could have appeared anywhere in any form. “Each day, billions of unsolicited email
messages are sent over the Internet.” United States v. Kelley, 482 F.3d 1047, 1055–56 (9th Cir.
2007) (Thomas, J., dissenting). This link could have appeared in an email. Or it could have
appeared on some other website. Clicking on any of the three items below, would send someone
to the web address in question:3
www.cnn.com/2016-politics/ClintonEmails/Comey//77382.html

Click Here for good times!

3 The actual links appear here as they appear in the warrant affidavit, using the [FSS].com introduction
rather than the ziifile.com introduction of the actual web address. Accordingly, the hyperlinks here will not actually
cause a reader of this motion to navigate to any working web address in the event of an inadvertent mouse click.

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Without more, the fact that someone using Mr. Reece’s IP address attempted to access the
URL of a popular file sharing service, which itself bore no indicia of child pornography, does not
provide probable cause to search Mr. Reece’s home. Because the warrant was not supported by
probable cause, the search of Mr. Reece’s residence violated the Fourth Amendment.
II.

Absent some evidence of “collecting” behavior, an isolated, unsuccessful attempt to
access one illicit video over the internet does not provide probable cause to search a
person’s home over five months later.
Even if the Court finds that the facts in the warrant application supported probable cause to

search Mr. Reece’s home in October of 2015, this evidence was stale by time the government
applied for the warrant over five months later.
The Fourth Circuit has explained that the Fourth Amendment “bars search warrants issued
on less than probable cause, and there is no question that time is a crucial element of probable
cause.”

United States v. McCall, 740 F.2d 1331, 1335-36 (4th Cir. 1984). “A valid search

warrant may issue only upon allegations of ‘facts so closely related to the time of the issue of the
warrant as to justify a finding of probable cause at that time.’” Id. (quoting Sgro v. United States,
287 U.S. 206, 210-11 (1932)). “Consequently, evidence seized pursuant to a warrant supported
by ‘stale’ probable cause is not admissible in a criminal trial to establish the defendant’s guilt.”
McCall, 740 F.2d at 1336.
There are two sets of facts that raise staleness issues: those where the facts were sufficient
to establish probable cause when the warrant was issued but the government’s delay in executing
the warrant tainted the search; and those where the warrant itself is suspect because the
information on which it rested was too old to furnish “present” probable cause. See McCall, 740
F.2d at 1336. This case presents the second type of staleness issue—where the information on

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which the warrant rested was too old to furnish ‘present’ probable cause.

“To determine

staleness, the court must examine all relevant facts and circumstances, including ‘the nature of the
unlawful activity alleged, the length of the activity, and the nature of the property to be seized.’”
United States v. Washington, 139 F. App’x 479, 482 (4th Cir. 2005) (quoting McCall, 740 F.2d at
1336.
Here, the warrant application alleged only a single instance in which someone using Mr.
Reece’s IP address attempted to access a web address that contained illicit content. This incident
occurred on October 28, 2015. (Ex. A, ¶ 47.) The government did not apply for the warrant to
search Mr. Reece’s house until April 5, 2016—over five months later.
A broad range of items were to be seized pursuant to the warrant, but they consisted mostly
of electronic equipment and computers. (Ex. A, Attachment B.) To be sure, the warrant
application indicates that computer files “can be recovered months or even years after they have
been downloaded onto a hard drive.” (Ex. A, ¶ 36.) But the affidavit does not establish that
anyone using Mr. Reece’s IP address actually downloaded or viewed any illicit files. So the
nature of the items seized cuts neither for nor against the staleness argument here. While the
affidavit establishes that once files are saved on a computer they can be recovered later, the
affidavit provides no evidence that any illicit files were ever actually saved on or accessed by a
computer utilizing Mr. Reece’s IP address.
The length of the activity alleged demonstrates that the evidence supporting probable cause
was stale. The activity alleged was a single instance of attempted access. Thus, the alleged
activity lasted a fraction of a second. The affidavit does not allege that the video file was ever
even successfully viewed, let alone downloaded, saved, and stored on any computer located at Mr.

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Reece’s home.
Finally, the nature of the activity alleged demonstrates the staleness of the government’s
evidence. To be sure, the affidavit discusses the characteristics of child pornography collectors in
the abstract. (Ex. A, ¶ 31.) But the affidavit contains no facts suggesting that Mr. Reece was a
collector of child pornography.

Thus, the affidavit’s assertion that “[c]ollectors of child

pornography prefer not to be without their child pornography for any prolonged period of time,”
can be accepted as true by the Court but is still entirely meaningless to the probable cause
determination here. (Id.) The affidavit again provides a detailed description of facts that would
be relevant only if the affidavit in some way connected them to Mr. Reece or his IP address.
Absent that nexus, many of the facts and assertions contained in the affidavit are simply irrelevant.
The Second Circuit recently held that a warrant was not supported by probable cause in a
case very similar to this. See United States v. Raymonda, 780 F.3d 105, 116–17 (2d Cir.), cert.
denied, 136 S. Ct. 433 (2015). In Raymonda, the Second Circuit acknowledged that “the
determination of staleness in investigations involving child pornography is ‘unique’” because “it is
well known that images of child pornography are likely to be hoarded by persons interested in
those materials in the privacy of their homes, [so] evidence that such persons possessed child
pornography in the past supports a reasonable inference that they retain those images—or have
obtained new ones—in the present.” Id. at 114 (internal quotation marks omitted). “Crucially,
however, the value of that inference in any given case depends on the preliminary finding that the
suspect is a person ‘interested in’ images of child pornography.” Id.

“The alleged ‘proclivities’

of collectors of child pornography, that is, are only relevant if there is probable cause to believe
that a given defendant is such a collector.” Id. (internal quotation marks omitted).

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In Raymonda, the affidavit did not demonstrate that the defendant was a collector of child
pornography. The court explained:
[T]o establish probable cause in this case, where the agents applied
for a warrant on the basis of nine-month-old evidence, it was not
enough simply to show that the suspect had at some point accessed
thumbnails of child pornography. It was necessary to show that he
accessed them in circumstances sufficiently deliberate or willful to
suggest that he was an intentional “collector” of child pornography,
likely to hoard those images—or acquire new ones—long after any
automatic traces of that initial incident had cleared. No such
propensity-raising circumstances are present in the record. Agent
Ouzer’s affidavit alleged only that, on a single afternoon more than
nine months earlier, a user with an IP address associated with
Raymonda’s home opened between one and three pages of a website
housing thumbnail links to images of child pornography, but did not
click on any thumbnails to view the full-sized files. The affidavit
contained no evidence suggesting that the user had deliberately
sought to view those thumbnails or that he discovered
www.coolib.org while searching for child pornography…. Nor was
there any evidence that the user subsequently saved the illicit
thumbnails to his hard drive, or that he even saw all of the images,
many of which may have downloaded in his browser outside
immediate view. Far from suggesting a knowing and intentional
search for child pornography, in short, the information in Agent
Ouzer’s affidavit was at least equally consistent with an innocent
user inadvertently stumbling upon a child pornography website,
being horrified at what he saw, and promptly closing the window.
Under those circumstances, absent any indicia that the suspect was
a collector of child pornography likely to hoard pornographic
files, we hold that a single incident of access does not create a fair
probability that child pornography will still be found on a
suspect’s computer months after all temporary traces of that
incident have likely cleared. We thus conclude that the warrant
issued in this case was not supported by probable cause.
Raymonda, 780 F.3d at 116–17 (footnote omitted) (emphasis added). At least in Raymonda, the
government had shown that the IP address in question actually accessed child pornography, albeit
in thumbnail form. Here, the affidavit established only that someone using Mr. Reece’s IP

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address navigated to the file sharing site web address, was prompted for a password before
viewing any substantive content, and when so prompted clicked away and exited out to close the
screen.
The defense submits that the affidavit here does not establish that probable cause ever
existed to search Mr. Reece’s home. But insofar as the scant facts here ever gave rise to probable
cause, the passage of over five months between the single instance of alleged attempted access and
the application for a warrant rendered the factual basis for the warrant stale. For that reason, the
search of Mr. Reece’s home violated the Fourth Amendment.
III.

By emphasizing the proclivities of child pornography collectors and the
inflammatory investigation into Bulletin Board A while omitting critical facts
demonstrating the missing nexus between these subjects and the Reece’s residence,
the affiant misled the magistrate.
In Franks v. Delaware, 438 U.S. 154, 156 (1978), the Supreme Court held that “where the

defendant makes 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, and if the allegedly false statement is necessary to the finding of probable cause, the
Fourth Amendment requires that a hearing be held at the defendant’s request.”
The doctrine applies to omissions, not just false statements. United States v. Colkley, 899
F.2d 297, 300 (4th Cir. 1990); see also United States v. Eccleston, 615 F. App’x 767, 780 (4th Cir.
2015). Franks relief may also be justified when the “agents’ failure to verify readily available
information amount[s] to a reckless disregard for the truth.” In re Search Warrants Served on
Home Health & Hospice Care, Inc., 121 F.3d 700 (4th Cir. 1997) (unpublished). And the
doctrine further applies when the affiant intentionally or recklessly omitted facts required to
prevent technically true statements in the affidavit from being misleading. See United States v.
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Tate, 524 F.3d 449, 456-57 (4th Cir. 2008). If an omission or statement is recklessly or
intentionally false or misleading the court must determine if the offending inaccuracy is “material”
to the probable cause determination. “To determine materiality, a court must excise the offending
inaccuracies and insert the facts recklessly omitted, and then determine whether or not the
‘corrected’ warrant affidavit would establish probable cause.” Miller v. Prince George’s Cty.,
475 F.3d 621, 628 (4th Cir. 2007) (internal quotation marks omitted).
Here, a Franks hearing is required based on several misleading statements and omissions
contained in the affidavit. First, the affidavit asserts that the child pornography video hosted on
the file sharing site was password protected, but the affidavit omits the fact that the person who
allegedly navigated to the file sharing site from Mr. Reece’s IP address never entered a password.
This is critical to the probable cause issue. The affidavit already leaves open the question whether
Reece accessed the file sharing site via Bulletin Board A. But a judge reading the affidavit knows
that the post on Bulletin Board A contained the file sharing site’s URL and the password to access
the video. So if someone navigated to the file sharing site but did not enter the password, it
suggests that this person did not navigate to the file sharing site through Bulletin Board
A—otherwise, he would have known the password and entered it.
Second, the affidavit is misleading because it contains a detailed, boilerplate description of
the characteristics of child pornography collectors without any evidence that Mr. Reece (or anyone
else in his home) was a collector of child pornography.

In Raymonda, Judge Chin wrote

separately to acknowledge the impropriety of similar boilerplate allegations when the evidence to
support collection was even stronger than it was here. There the evidence “only showed that
Raymonda had opened the coollib.org webpage, whether purposely or inadvertently, some nine

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months earlier, and that he may have viewed—without clicking on—the thumbnail sketches and
that there was activity for a period of no more than 17 seconds.” Raymonda, 780 F.3d at 124
(Chin, J., concurring in part and dissenting in part). Judge Chin concluded, “Without any
evidence that Raymonda was a collector of child pornography, it was inappropriate—and
heedlessly indifferent—for Agent Ouzer to rely on boilerplate language regarding the proclivities
of collectors.” Id. The same is true here.
Third, the affidavit misleadingly overemphasized the importance of Bulletin Board A,
suggesting a nexus between the Reece residence and Bulletin Board A that the government had no
evidence to support. The affiant noted that “BULLETIN BOARD A has over 1,500 ‘approved
users.’” (Ex. A, ¶ 37.) But the affidavit omits the fact that Mr. Reece was not an approved user
and that, in fact, the government had no evidence that anyone using Mr. Reece’s IP address had
ever even visited Bulletin Board A. A magistrate reviews a warrant application ex parte and
relies on the government to provide not just technically true facts but an honest overall depiction of
the evidentiary landscape. Here, the application’s overemphasis of Bulletin Board A’s contents
and de-emphasis of the missing nexus between the Reece residence and Bulletin Board A gave the
magistrate a distorted view of the government’s evidence.
Finally, the affidavit falsely stated that a computer located at Mr. Reece’s home
“possessed and/or attempted access with intent to view child pornography via the listed e-mail
account.” (Ex. A, ¶ 55 (emphasis added).) The government had no evidence that Mr. Reece or
anyone else used any email account to access any illicit material. The reference to this phantom
email account bolstered the notion that the government had established some nexus between Mr.
Reece’s residence and the actual possession or accessing of child pornography when, in fact, there

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was none.4
The defense respectfully submits that a Franks hearing is warranted on these bases.
CONCLUSION
The warrant in this case was issued in contravention of the Fourth Amendment. The
affidavit’s only specific allegation about the Recces is consistent with someone clicking once on a
hyperlink, being sent to a web address that lacked any indicia of child pornography, and declining
to enter a password when prompted. The Fourth Amendment’s probable cause bar is not so low.
Moreover, even if the Court finds that these facts could have supported probable cause to search
Mr. Reece’s home in October 2015, they were stale by April of 2016. Finally, the affidavit in
support of the warrant application contained misleading statements and material omissions,
without which the warrant would not have issued. For all these reasons, the search of Mr. Reece’s
home was conducted in violation of the Fourth Amendment and suppression is appropriate.
Respectfully submitted,
LARRY REECE II
By:

/s/
Amanda C. Conner, Esquire
VSB # 88317
Assistant Federal Public Defender
Attorney for Larry Reece II
Office of the Federal Public Defender
150 Boush Street, Suite 403
Norfolk, Virginia 23510
(757) 457-0800
(757) 457-0880 (telefax)
amanda_conner@fd.org

4 The defense is continuing to investigate the truthfulness of other facts contained in the affidavit and may
request leave to supplement this Motion is other material omissions or misstatements come to light.

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 Case 2:16-cr-00104-AWA-DEM Document 21 Filed 10/31/16 Page 18 of 18 PageID# 71

CERTIFICATE OF SERVICE
I certify that on this 31st day of October, 2016, I electronically filed the foregoing with the
Clerk of Court using the CM/ECF system, which will send a notification of such filing (NEF) to:
Elizabeth Yusi
Assistant United States Attorney
United States Attorney’s Office
101 West Main Street, Suite 80000
Norfolk, VA 23510
Phone: 757-441-6331
Fax: 757-441-6689
elizabeth.Yusi@usdoj.gov

_________/s/_______________
Amanda C. Conner, Esquire
VSB # 88317
Assistant Federal Public Defender
Attorney for Larry Reece II
Office of the Federal Public Defender
150 Boush Street, Suite 403
Norfolk, Virginia 23510
(757) 457-0800
(757) 457-0880 (telefax)
amanda_conner@fd.org

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 Case Document 21-1 Filed 10/31/16 Page 1 of 1 Page D# 98

SEALED

DOCUMENT