The opinion of the court was delivered by: LEONARD WEXLER, Senior District Judge.
This case arises out of an investigation of individuals
suspected of receiving and/or distributing child pornography via
the internet. Defendant here is charged, inter alia, with receipt
of child pornography in violation of 18 U.S.C. § 2252A.
In July of 2002, Defendant moved to suppress evidence obtained
after execution of a search warrant. The evidence sought to be
suppressed was obtained from Defendant's computer and included
several images of child pornography. The motion to suppress was
fully briefed by January 10, 2003. On January 17, 2003, in an
oral ruling delivered from the bench, this court denied the
motion. Presently before the court is Defendant's motion to
reconsider the denial of his initial motion to suppress. For the
reasons set forth below, the motion is denied.
I. The Candyman Investigation and Representations Made By the
The warrant that authorized the search of Defendant's computer
was one of many issued throughout the country arising from an
investigation of an internet group known as the "Candyman" group.
The investigation began in January of 2001, when FBI Supervising
Special Agent Geoffrey Binney joined an "e-group," known as the
Candyman group. E-groups are on line fora through which persons
with similar interests can interact on the internet. Such groups
allow individuals to communicate with each other via e-mail and
by posting information on a website that members can visit.
As described by Agent Binney, the website for the Candyman
group stated that the group was for "people who love kids." It
further stated that members could post any type of messages or
"pics and vids" they would like. Although the home page for the
group did not use the words "child pornography," categories
referred to on that page included a "transgender" category and
made it clear that the site provided access to such images. Agent
Binney described the Candyman group as existing for the express
purpose of sharing messages, photographs and videos relating to
In addition to describing the Candyman group in general terms,
Agent Binney represented that all individuals who joined the
group automatically received all e-mails transmitted by group
members. It was later revealed that this statement was not true
of all who joined the group. Instead, the automatic receipt of
e-mail applied only to those who joined the group by e-mail and
not to those who joined at the group's website. Specifically,
those who joined the Candyman group by sending an e-mail to a
certain web address would receive a confirming e-mail and would
then automatically receive all e-mails posted by group members.
Others, who joined the group by clicking on a "subscribe" icon at
the group's website, would be presented with several e-mail
options. While the default setting on that site was the option of
automatic e-mail receipt, members joining at the website could
opt out of receiving any e-mails from group members. Any member,
whether or not they chose to receive e-mails, could visit the
group's website and view files and previously posted e-mails
containing images of child pornography.
Despite the fact that not all members of the Candyman group
automatically received all member e-mails, Agent Binney
represented that this was, in fact, the case. Consequently, every
search warrant affidavit
involved in the Candyman investigation, including the affidavit
authorizing the search of Defendant's computer, contained the
false statement that every member of the group automatically
received all member e-mails.
II. The Initial Motion to Suppress
Defendant's initial motion to suppress argued that the
statement contained in the search warrant affidavit regarding
automatic e-mail receipt was false, misleading and/or made with
reckless disregard for the truth. The motion further argued that
absent that false statement, the affidavit was insufficient to
establish the requisite probable cause. Accordingly, the motion
sought a hearing pursuant to Franks v. Delaware, 438 U.S. 154,
98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) or, in the alternative,
immediate suppression of all fruits of the warrant and a
consequent dismissal of the indictment.
Denying the motion, this court held that even assuming that the
relevant statement was intentionally false, the affidavit, absent
the statement, demonstrated probable cause to execute the warrant
authorizing the search. The finding of probable cause, ...