such persons supplying hearsay information absent some reason by Defendant to do so. See Smith, supra, at 1012. At base, Defendant's argument raises questions for trial, i.e., whether the information related in support of the search warrant constitutes proof beyond a reasonable doubt. On this record, the court finds that Defendant's motion to suppress evidence seized from his residence on the basis that the search warrant was issued without probable cause should be DENIED.
Alternatively, Defendant's motion to suppress must be denied under the good faith exception to the exclusionary rule established by Leon, supra, which renders evidence seized pursuant to a challenged warrant admissible provided the police act with objective and reasonable good faith, even if the judicial officer erred in finding probable cause. Leon, supra, at 922, 104 S.Ct. 3405. In Leon, the Supreme Court held that the good faith exception applies provided the officer's reliance on the judicial officer's probable cause determination and on the technical sufficiency of the issued warrant is objectively reasonable. Id. However, suppression remains an appropriate remedy where the judicial officer was misled by relying on information which the affiant knew was false or would have known but for his reckless disregard for the truth, or where the issuing judicial officer wholly abandoned his judicial role. Id. at 923. In the instant case, based on this court's review of the search warrant application, the court finds that the investigating agents who executed the search warrant had a good faith basis to believe that the search warrant was lawfully issued based on a finding of probable cause.
In particular, the record establishes that Agent Forrest was sworn and related intricate details about a complex child pornography distribution organization through an Internet service provider. The record also establishes that much of Agent Forrest's information was gathered from other FBI agents investigating the distribution of child pornography, and was corroborated by the subpoenaed business records of Paycom, AOL and Verizon, as well as by the United States Postal Inspector for West Seneca and a recent telephone directory, sources which are not generally subject to challenge absent some indication of fraud not presented on this record.
Upon this record, there is no basis to find that Agent Forrest, as a reasonable law enforcement officer, lacked a good faith belief in the existence of probable cause or that the court failed to act lawfully in considering and issuing the warrant. To sustain Defendant's argument would require the court infer that Agent Forrester fabricated the entire application. On the record presented to the court, there is no basis whatsoever for such a finding. Moreover, the issuing judicial officer is entitled to rely on the truthfulness of warrant applications made under oath in evaluating the likely existence of an undisclosed informant. See Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) ("There is a presumption of validity with respect to the affidavit supporting the search warrant"). Thus, the prerequisites for application of the Leon good faith exception are present, and Defendant's motion also should be DENIED as to this issue.
Based on the foregoing, Defendant's motion to suppress evidence seized pursuant to the search warrant issued for his residence should be DENIED.
Pursuant to 28 U.S.C. § 636(b)(1), it is hereby
ORDERED that this Report and Recommendation be filed with the Clerk of the Court.
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of the Court within ten (10) days of service of this Report and Recommendation in accordance with the above statute, Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure and Local Rule 72.3.
Failure to file objections within the specified time or to request an extension of such time waives the right to appeal the District Court's Order. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989); Wesolek v. Canadair Limited, 838 F.2d 55 (2d Cir. 1988).
Let the Clerk send a copy of this Report and Recommendation to the attorneys for the Government and the Defendant.