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United States v. Tolbert

United States District Court, D. New Mexico

July 7, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DONALD ALVIN TOLBERT, Defendant.

          MEMORANDUM OPINION AND ORDER

         This matter is before the Court on Defendant Donald Tolbert's Motion to Reconsider Denial of Motion to Suppress Evidence Obtained in Violation of the Fourth Amendment Under United States v. Ackerman [Doc. 134]. Tolbert filed a supplement to the motion [Doc. 135], the United States filed its response [Doc. 145], and Defendant filed his reply [Doc. 150]. In the motion, Defendant asks the Court to reconsider its July 27, 2018 Memorandum Opinion and Order [Doc. 127] denying his motion to suppress evidence on the grounds that the search of his emails and attachments performed by NCMEC violated his rights under the Fourth Amendment. After reviewing all of the foregoing as well as the applicable legal authorities, the Court concludes that the motion to reconsider should be denied.

         LEGAL STANDARD

         Motions to reconsider are proper in criminal cases even though the Federal Rules of Criminal Procedure do not specifically provide for them. United States v. Randall, 666 F.3d 1238, 1241-42 (10th Cir. 2011); United States v. Christy, 739 F.3d 534, 539 (10th Cir. 2014). A district court should have the opportunity to correct alleged errors in its dispositions. See United States v. Dieter, 429 U.S. 6, 8 (1976).

         A motion to reconsider may be granted when the court has misapprehended the facts, a party's position, or the law. Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000). Specific grounds include: “(1) an intervening change in the controlling law, (2) new evidence previously unavailable, and (3) the need to correct clear error or prevent manifest injustice.” Id. A motion to reconsider should not be used to revisit issues already addressed or advance arguments that could have been raised earlier. Id.

         DISCUSSION [1]

         The thrust of Tolbert's motion to reconsider is that the Government failed to present testimony from the NCMEC analyst who looked at the five CyberTips at issue in this case, opened the associated emails and attachments, performed the open source searches, and then forwarded the CyberTips to the New Mexico Attorney General's Office, Internet Crimes Against Children Division. Tolbert also points out that the Government failed to present testimony from Homeland Security Investigations Agent Melva Boling, who prepared and signed the affidavit in support of the September 30, 2016 search warrant for the Dell Dimension and eMachine computers found in Tolbert's mother's home.

         With respect to the inevitable discovery exception to the warrant requirement, Tolbert argues that without such testimony, it is impossible to know what the analyst or anyone else at NCMEC would have done if the NCMEC analyst had not opened the emails and attachments without a warrant. Tolbert contends that in the absence of such testimony, there is no evidence that without opening the emails and attachments, the NCMEC analyst would have conducted the open source searches that eventually led that person to conclude that the person behind the emails was in New Mexico-and therefore there could have been no inevitable discovery of the evidence against Tolbert, as there is no evidence that the CyberTips would have been forwarded to law enforcement in New Mexico.

         With regard to the good faith exception to the warrant requirement, Tolbert's argument is less clear. He asserts in conclusory fashion that the testimony of the NCMEC analyst and Agent Boling was necessary to making a finding of good faith, but he does not explain why. He does argue that the Court should not have concluded that the good faith exception applied because the record contained no evidence of “why the nontestifying NCMEC analyst believed that 18 U.S.C. § 2258A(a) & (b)(4) authorized the analyst to open and view emails and attachments without [] a warrant.” See Doc. 134 at ¶ 19. Later, Tolbert argues that in the absence of any evidence of the NCMEC's subjective knowledge regarding the constitutionality of his or her actions, the good faith exception cannot apply.

         Although evidence obtained in violation of the Fourth Amendment generally cannot be used, one of the exceptions to the exclusionary rule is when law enforcement acts in good faith, or in “objectively reasonable reliance, ” on a statutory scheme. See United States v. Vanness, 342 F.3d 1093, 1097 (10th Cir. 2003) (citing United States v. Leon, 468 U.S. 897 (1984) and Illinois v. Krull, 480 U.S. 340 (1987)).

         The key phrase here is “objectively reasonable.” Tolbert argues repeatedly in his motion to reconsider that there can be no good faith exception without testimony from the NCMEC analyst to explain what that person believed their authority to be, and whether they acted in subjective good faith in performing the challenged search.[2] In fact, the law requires no such evidence of the searching party's subjective beliefs. For example, in Illinois v. Krull, 480 U.S. 340, 355 (1987), a case this Court discussed in its prior opinion, the Supreme Court stated, “As we emphasized in Leon, the standard of reasonableness we adopt is an objective one; the standard does not turn on the subjective good faith of individual officers.” (citing United States v. Leon, 468 U.S. 897, 919, n. 20 (1984). Thus, evidence regarding the NCMEC analyst's subjective good faith (or bad faith) is not necessary, and the lack of testimony on that topic is not fatal to the good faith exception. What matters is whether it was objectively reasonable for the NCMEC analyst to open and view Tolbert's email given the statutory scheme governing NCMEC. This Court concluded that it was, and nothing in Tolbert's motion to reconsider alters that conclusion.

         Other courts have concluded that NCMEC's actions in opening and viewing emails were objectively reasonable under similar circumstances. For example, in United States v. Keith, 980 F.Supp.2d 33, 46 (D. Mass. 2013), AOL identified a matching hash value in an email and sent NCMEC a CyberTipline report with the suspect file, just as it did in this case. The court concluded that NCMEC was an agent of law enforcement subject to the constraints of the Fourth Amendment, which NCMEC violated when it investigated the email further. Id. at 41-43, 46. However, the court declined to suppress the evidence because the good faith exception applied due to the statutory scheme. Id. at 46. The court stated:

“T]hose who heretofore regarded NCMEC's role only as that of a private party, so that the Fourth Amendment was inapplicable, were not acting in willful or negligent disregard of constitutional principles, but rather pursuant to a view of NCMEC's statutorily sanctioned role and activity that was, under all the circumstances, objectively reasonable, just as the officers' view of the statutory scheme was found to be in Krull. In that case the Court explained that “evidence should be suppressed only if it can be said that the law enforcement officer had knowledge, or may properly be charged with knowledge, that the search was unconstitutional under the Fourth Amendment.” Krull, 480 U.S. at 348-49, 107 S.Ct. 1160 (internal quotation marks and citation omitted).
There is nothing in the record in this case that would suggest either NCMEC or the police or the magistrate who issued the warrant knew or ought to have known that by relying on the CyberTipline report they were doing something that was unconstitutional under the Fourth Amendment. No persuasive argument can be made that an organization like NCMEC needs to be deterred from acting in good faith in a way that is consistent with explicit congressional will.”

Id. Similarly, in United States v. Ackerman, 296 F.Supp.3d 1267, 1275 (D. Kan. 2017), on remand from the Tenth Circuit, the district court concluded that the good faith exception applied to NCMEC's search of emails and attachments after AOL submitted a CyberTipline report under ...


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