The opinion of the court was delivered by: Honorable Richard J. Arcara United States District Judge
Defendant Jeff Coon is charged with one count of distribution of child pornography, one count of receipt of child pornography, and three counts of possession of child pornography. On June 21, 2010, the defendant filed a motion to suppress evidence seized pursuant to a search warrant issued by Magistrate Judge Hugh B. Scott on March 31, 2009. The motion to suppress was referred to Magistrate Judge Scott, pursuant to 28 U.S.C. § 636. On August 20, 2010, Magistrate Judge Scott issued a Report and Recommendation ("Initial Report and Recommendation") wherein he found that probable cause to issue the warrant was lacking. The government moved for reconsideration of the Initial Report and Recommendation and on November 8, 2010, Magistrate Judge Scott issued a second Report and Recommendation ("Second Report and Recommendation"). The Second Report and Recommendation reversed his Initial Report and Recommendation and found, instead, that there was probable cause to issue the search warrant.
The defendant filed objections to the Second Report and Recommendation and the government filed a response. In his objections, the defendant argues that: (1) it was improper for the Magistrate Judge to reconsider his Initial Report and Recommendation; and (2) the Magistrate Judge's recommendation to deny suppression is erroneous. In response, the government argues that the Magistrate Judge had authority to reconsider and reverse his Initial Report and Recommendation and correctly found, in the Second Report and Recommendation, that there existed probable cause to issue the warrant. Alternatively, the government asserts that the good faith exception to the warrant requirement applies.*fn1
On April 11, 2011, this Court heard oral argument on the defendant's objections and requested additional briefing. The matter was deemed submitted on April 15, 2011. For the reasons stated, the Court finds that (1) probable cause to issue the warrant was lacking, but (2) the good faith exception applies. Accordingly, the motion to suppress is denied.
On April 11, 2008, a Federal German Police (Bunderskriminalamt or "BKA") computer crime unit downloaded from the IP address 126.96.36.199, a video depicting child pornography. On May 6, 2008, the BKA requested assistance from the United States Immigration and Customs Enforcement (ICE) Cyber Crimes Center to identify the subscriber of the IP address on April 11, 2008 - the date that the video was downloaded. In that notice, German Police identified Verizon as the IP address holder.
On February 25, 2009, almost ten months after being notified by the BKA, ICE issued a summons to Verizon requesting the subscriber name associated with IP address 188.8.131.52 on the date in question --April 11, 2008. The following day, Verizon complied, identifying Tabitha Coon, located at 422 21st Street in Niagara Falls, New York, as the user of IP address 184.108.40.206 on April 11, 2008. Verizon's response also advised that the Coon account was opened in February 2008 and closed in August 2008.
At some point thereafter, ICE conducted public records and utility checks and determined that Tabitha and Jeff Coon resided at 422 21st Street in Niagara Falls, New York. On March 31, 2009, ICE agents presented this information to Magistrate Judge Scott and requested a warrant to search 422 21st Street, Niagara Falls, New York. In the warrant application, agents advised the Magistrate Judge that: (1) they had learned from German authorities that an individual with the IP address of 220.127.116.11 had downloaded a video containing child pornography on April 11, 2008; (2) in response to a subpoena, Verizon identified the subscriber using that IP address on that date as Tabitha Coon at 422 21st Street, Niagara Falls; and (3) that a public records and utility check of that residence revealed that, as of March 20, 2009, Tabitha and Jeff Coon reside at that location. The warrant did not indicate that the Coon's Verizon account had closed in August 2008.
Magistrate Judge Scott issued the warrant on March 31, 2009. The warrant was executed on April 6, 2009, almost a full year after the child pornography had been discovered by the BKA. Agents seized multiple computers, hard drives and storage media from the defendant's residence. Forensic analysis of that computer uncovered several images of child pornography. As noted, a six-count indictment was filed against the defendant on April 15, 2010.
The defendant moves to suppress the evidence seized arguing that probable cause was lacking. He contends that the information in the warrant application was simply too stale to provide probable cause as almost an entire year had elapsed between the time the child pornography was first discovered by the BKA (April 11, 2008) and the time that the warrant was ultimately executed (April 6, 2009).
In response, the government points out that technology exists to recover deleted computer files. Because forensic experts can recover computer evidence long after files have been deleted, the government asserts that there was a "fair probability" that the downloaded child pornography would still be on the defendant's computer.
Before addressing the merits of the staleness argument, the Court rejects the defendant's contention that the Magistrate Judge lacked authority to reconsider his Initial Report and Recommendation. Like district judges, magistrate judges possess the inherent authority to reconsider their own interlocutory orders prior to the entry of judgment. See United States v. LoRusso, 695 F.2d 45 (2d Cir. 1982)("A district court has the inherent power to reconsider and modify its interlocutory orders prior to the entry of judgment."); see also United States v. Green, 414 F.2d 1174, 1175 (D.C.Cir.1969) (trial judge had authority to withdraw oral decision granting defendant's motion to dismiss indictment); United States v. Jerry, 487 F.2d 600, 604-05 (3d Cir.1973) (district court had authority to rescind written order improvidently permitting defendant to withdraw guilty plea). In any event, the Magistrate Judge's authority to ...