United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
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.
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).
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.
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.
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.
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.
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)).
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. 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.
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 ...