United States v. Delaney

1

United States of America, Appellee, v. Jacob Delaney, Defendant-Appellant.

No. 22-1095-cr

United States Court of Appeals, Second Circuit

October 27, 2023

UNPUBLISHED OPINION

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 27^th day of October, two thousand twenty-three.

Appeal from a judgment of the United States District Court for the Northern District of New York (McAvoy, J.).

FOR APPELLEE: STEVEN D. CLYMER (RICHARD D. BELLISS, CARINA H SCHOENBERGER, ON THE BRIEF), ASSISTANT UNITED STATES ATTORNEYS, FOR CARLA B. FREEDMAN, UNITED STATES ATTORNEY FOR THE NORTHERN DISTRICT OF NEW YORK, SYRACUSE, NY.

FOR DEFENDANT-APPELLANT: RICHARD D. WILLSTATTER (THEODORE S GREEN, ON THE BRIEF), GREEN & WILLSTATTER, WHITE PLAINS NY.

PRESENT: JOSEPH F. BIANCO, SARAH A. L. MERRIAM, MARIA ARAUJO KAHN, CIRCUIT JUDGES.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Defendant-appellant Jacob Delaney appeals from the district court's judgment of conviction, entered on May 13, 2022, on one count of receipt of child pornography in violation of 18 U.S.C §§ 2252A(a)(2)(A) and (b)(1), and three counts of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). On appeal, Delaney challenges the district court's: (1) denial of his motion to suppress and (2) imposition of two special conditions of supervised release at sentencing that restrict his interaction with minors. We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal, to which we refer only as necessary to explain our decision to affirm.

I. Background

On December 10, 2019, a federal magistrate judge approved a no-knock warrant to search Delaney's residence for evidence of child pornography-related offenses. In support of the warrant application, the government submitted a thirty-seven page sworn affidavit from FBI Special Agent David Fallon, which alleged that a "user of the Internet account at [Delaney's residence] ha[d] been linked to an online community of individuals who regularly send and receive child pornography via a website that operated on the Tor anonymity network." Appellant App'x at 76. The Tor network is "a computer network available to Internet users that is designed specifically to facilitate anonymous communication over the Internet." Id. It anonymizes communications by routing user communications through a global relay of intermediary computers along randomly assigned paths. "Because a Tor user's communications are routed through multiple nodes before reaching their destination, when a Tor user accesses an Internet website, only the IP address of the last relay computer (the 'exit node'), as opposed to the Tor user's actual IP address, appears on that website's IP address log." Id. at 77. This routing makes it so that law enforcement cannot "use public lookups or ordinary investigative means to determine the true IP address - and therefore the location - of a computer server that hosts a hidden service." Id. at 79.

The affidavit asserted that, in August 2019, the FBI received a tip from a foreign law enforcement agency ("FLA") in a country with "an established rule of law." Id. at 82. The affidavit also attested that the FLA had provided reliable and accurate information to U.S. law enforcement in the past. According to the affidavit, the FLA determined that a user of an IP address "accessed online child sexual abuse and exploitation material via a website" on April 22, 2019.^[1]Id. at 81. The FLA stated: "Users were able to view some material without creating an account. However, an account was required to post and access all content." Id. The affidavit did not define the terms "material" and "accessed." The affidavit described the "Tor-network-based website" as "an active online forum" that was "dedicated to the sexual exploitation of minor and/or prepubescent males." Id. at 79. The site allowed "users" to communicate with other "users, either within forums that were openly accessible to any user of the site, within forums only accessible to particular users, or in one-to-one private message chats between users." Id. "Child pornography images and videos were trafficked through this chat site via the posting of web links within forum messages." Id. at 80. ^[2] The affidavit stated that accessing the website "required numerous affirmative steps by the user," including downloading Tor software and finding the site's 16- or 56-character web address, which was not readily accessible through a search engine. Id. at 84.

The affidavit went on to assert that publicly available information indicated that the user's IP address was registered to Charter Communications. In November 2019, an administrative subpoena was issued to Charter Communications, the results of which linked the IP address to Delaney. The affidavit reported that further investigation, including physical surveillance, confirmed the location of Delaney's residence. Agent Fallon asserted that, in his experience, individuals who have a sexual interest in children "often maintain their child pornography images in a digital or electronic format in a safe, secure and private environment, such as a computer and surrounding area" and that these images "are often maintained for several years." Id. at 90. However, the affidavit provided no information indicating that Delaney had any history of inappropriate contact with children or with child pornography; the only evidence linking Delaney to such material was the single instance of the IP address assigned to him accessing the target site.

On December 12, 2019, law enforcement executed the search warrant at Delaney's residence and uncovered over 15,000 images and 290 videos involving minors engaged in sexually explicit conduct on multiple electronic devices. At the time of the search, Delaney told law enforcement that he used the Tor network to access child pornography.

Following Delaney's arrest, a grand jury returned an indictment charging him with one count of receiving child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (b)(1), and three counts of possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2). Delaney moved to suppress both the physical evidence seized during the search of his residence and the statements he made to law enforcement during the search. In a decision dated July 19, 2021, the district court denied the suppression motion.

After the denial of his motion, Delaney pled guilty to all four counts in the indictment pursuant to a conditional plea agreement, in which he reserved his right to appeal the district court's suppression decision. The district court then sentenced Delaney principally to concurrent 78-month terms of imprisonment on each count of conviction, to be followed by ten years of supervised release, with certain special conditions. This appeal followed.

II. Motion to Suppress

Delaney challenges the district court's denial of his suppression motion, arguing that the district court erred in determining both that the warrant application was supported by probable cause and that the good faith exception to the Fourth Amendment's exclusionary rule applied. We affirm the district court's denial of the motion to suppress based on the good faith exception, without reaching the question of whether the warrant was supported by adequate probable cause.^[3] On appeal from a district court's ruling on a motion to suppress evidence, we review legal conclusions de novo and findings of fact for clear error. United States v. Ganias, 824 F.3d 199, 208 (2d Cir. 2016) (en banc).

It is well established that "[w]hen an officer genuinely believes that he has obtained a valid warrant from a magistrate [judge] and executes that warrant in good faith," the good faith exception applies, and evidence seized pursuant to the warrant should not be suppressed. United States v. Raymonda, 780 F.3d 105, 118 (2d Cir. 2015). "[H]owever, the officer's reliance on the duly issued warrant 'must be objectively reasonable.'" Id. (quoting United States v. Leon, 468 U.S. 897, 922 (1984)). Accordingly, the good faith exception to the exclusionary rule does not apply "in at least four circumstances: (1) where the issuing magistrate has been knowingly misled; (2) where the issuing magistrate wholly abandoned his or her judicial role; (3) where the application is so lacking in indicia of probable cause as to render reliance upon it unreasonable; and (4) where the warrant is so facially deficient that reliance upon it is unreasonable." United States v. Boles, 914 F.3d 95, 103 (2d Cir. 2019) (quoting Raymonda, 780 F.3d at 118). "The burden is on the government to demonstrate the objective reasonableness of the officers' good faith reliance" on the search warrant at issue. See United States v. George, 975 F.2d 72, 77 (2d Cir. 1992).

Delaney argues that the affidavit was so lacking in indicia of probable cause that it was unreasonable to rely on it. We find that argument unpersuasive. The affidavit was not so "bare...