United States v. Streett
Opinion
JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on: (i) the Defendant's Motion to Suppress Evidence, filed December 1, 2017 (Doc. 78)("Motion"); (ii) the Defendant's Supplemental Motion to Suppress All Evidence Seized and Any Fruits of the Poisonous Tree Obtained as a Result of the Unlawful Search, filed July 24, 2018 (Doc. 141)("Supp. Motion"); (iii) the Defendant Bentley Streett's Motion to Suppress Proposed Findings of Fact and Conclusions of Law, filed November 3, 2018 (Doc. 174)("Streett's Proposed Findings"); and (iv) the United States' Proposed Findings of Fact and Conclusions of Law (September 11, 2018 Evidentiary Hearing), filed November 2, 2018 (Doc. 168)("United States' Proposed Findings"). The Court held an evidentiary hearing on September 11, 2018. The primary issues are: (i) whether the Grand Jury Subpoena Duces Tecum at 1 (issued November 4, 3013), filed July 24, 2018 (Doc. 141-1)("Subpoena"), constitutes a search under the Fourth Amendment to the Constitution of the United States; (ii) whether the Subpoena violates New Mexico law and the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution of the United States; (iii) whether the Affidavit for Search Warrant (undated), filed July 24, 2018 (Doc. 141-2)("First Affidavit"), provides probable cause to believe that evidence of Streett's alleged criminal activity would be found in his cellular telephone records; (iv) whether, even if the Search Warrant at 4 (issued February 12, 2014), filed July 24, 2018 (Doc. 141-2)("First Warrant"), issued based on the First Affidavit, lacks probable cause, Bernalillo *1228County Sheriff's Office Detective Kyle Hartsock relied on the First Warrant in good faith when he obtained Streett's cellular telephone records; (v) whether the First Affidavit violates the Due Process Clause, because, as Streett argues, it lacks substantial evidence to support probable cause as required by New Mexico law; (vi) whether the Affidavit for Search Warrant (executed February 24, 2014), filed December 1, 2017 (Doc. 78-1)("Second Affidavit"), provides probable cause to believe that evidence of Streett's alleged criminal activity would be found at the residence at 4620 Plume Road NW, Albuquerque, New Mexico 87120 ("4620 Plume residence"); (vii) whether, even if the Search Warrant at 14 (issued February 24, 2014), filed August 15, 2018 (Doc. 144-5)("Second Warrant"), issued based on the Second Affidavit, lacks probable cause, Hartsock relied on the Second Warrant in good faith when he searched the 4620 Plume residence; (viii) whether, even if the Second Warrant lacks probable cause and Hartsock did not execute the Second Warrant in good faith, law enforcement inevitably would have obtained a warrant to search the 4620 Plume residence; and (ix) whether, even if the Second Warrant contains an incurable defect, even if Hartsock did not execute the Second Warrant in good faith, and even if law enforcement would not have inevitably obtained a search warrant for the 4620 Plume residence, Hartsock would have discovered the identities of the charged victims. The Court will deny the Motion and the Supp. Motion. The Court holds that the Subpoena is not a search under the Fourth Amendment, because of the third-party doctrine. The Court concludes that the Subpoena does not violate New Mexico law, because a grand jury issued it after presentment of evidence, and that the Subpoena does not violate the Due Process Clause, for the same reasons it does not violate the Fourth Amendment or New Mexico law. The Court holds that the First Affidavit provides probable cause to search Streett's cellular telephone records and, even if it does not provide probable cause, that Hartsock relied on the First Warrant in good faith. Finally, the Court holds that the Second Affidavit does not provide probable cause to search the 4620 Plume Residence, but the Court will not suppress the resulting evidence because it concludes that: (i) Hartsock acted in good faith when he executed the Second Warrant; (ii) Hartsock would have inevitably discovered the evidence, because he would have obtained a valid warrant had the Second Warrant not issued; and (iii) Hartsock would have inevitably discovered the victims' identities through Streett's telephone records. Accordingly, the Court will deny the Motion and Supp. Motion, and will not exclude the telephone records or evidence seized from the 4620 Plume residence from the trial.
FACTUAL BACKGROUND
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JAMES O. BROWNING, UNITED STATES DISTRICT JUDGE
THIS MATTER comes before the Court on: (i) the Defendant's Motion to Suppress Evidence, filed December 1, 2017 (Doc. 78)("Motion"); (ii) the Defendant's Supplemental Motion to Suppress All Evidence Seized and Any Fruits of the Poisonous Tree Obtained as a Result of the Unlawful Search, filed July 24, 2018 (Doc. 141)("Supp. Motion"); (iii) the Defendant Bentley Streett's Motion to Suppress Proposed Findings of Fact and Conclusions of Law, filed November 3, 2018 (Doc. 174)("Streett's Proposed Findings"); and (iv) the United States' Proposed Findings of Fact and Conclusions of Law (September 11, 2018 Evidentiary Hearing), filed November 2, 2018 (Doc. 168)("United States' Proposed Findings"). The Court held an evidentiary hearing on September 11, 2018. The primary issues are: (i) whether the Grand Jury Subpoena Duces Tecum at 1 (issued November 4, 3013), filed July 24, 2018 (Doc. 141-1)("Subpoena"), constitutes a search under the Fourth Amendment to the Constitution of the United States; (ii) whether the Subpoena violates New Mexico law and the Due Process Clause of the Fifth and Fourteenth Amendments to the Constitution of the United States; (iii) whether the Affidavit for Search Warrant (undated), filed July 24, 2018 (Doc. 141-2)("First Affidavit"), provides probable cause to believe that evidence of Streett's alleged criminal activity would be found in his cellular telephone records; (iv) whether, even if the Search Warrant at 4 (issued February 12, 2014), filed July 24, 2018 (Doc. 141-2)("First Warrant"), issued based on the First Affidavit, lacks probable cause, Bernalillo *1228County Sheriff's Office Detective Kyle Hartsock relied on the First Warrant in good faith when he obtained Streett's cellular telephone records; (v) whether the First Affidavit violates the Due Process Clause, because, as Streett argues, it lacks substantial evidence to support probable cause as required by New Mexico law; (vi) whether the Affidavit for Search Warrant (executed February 24, 2014), filed December 1, 2017 (Doc. 78-1)("Second Affidavit"), provides probable cause to believe that evidence of Streett's alleged criminal activity would be found at the residence at 4620 Plume Road NW, Albuquerque, New Mexico 87120 ("4620 Plume residence"); (vii) whether, even if the Search Warrant at 14 (issued February 24, 2014), filed August 15, 2018 (Doc. 144-5)("Second Warrant"), issued based on the Second Affidavit, lacks probable cause, Hartsock relied on the Second Warrant in good faith when he searched the 4620 Plume residence; (viii) whether, even if the Second Warrant lacks probable cause and Hartsock did not execute the Second Warrant in good faith, law enforcement inevitably would have obtained a warrant to search the 4620 Plume residence; and (ix) whether, even if the Second Warrant contains an incurable defect, even if Hartsock did not execute the Second Warrant in good faith, and even if law enforcement would not have inevitably obtained a search warrant for the 4620 Plume residence, Hartsock would have discovered the identities of the charged victims. The Court will deny the Motion and the Supp. Motion. The Court holds that the Subpoena is not a search under the Fourth Amendment, because of the third-party doctrine. The Court concludes that the Subpoena does not violate New Mexico law, because a grand jury issued it after presentment of evidence, and that the Subpoena does not violate the Due Process Clause, for the same reasons it does not violate the Fourth Amendment or New Mexico law. The Court holds that the First Affidavit provides probable cause to search Streett's cellular telephone records and, even if it does not provide probable cause, that Hartsock relied on the First Warrant in good faith. Finally, the Court holds that the Second Affidavit does not provide probable cause to search the 4620 Plume Residence, but the Court will not suppress the resulting evidence because it concludes that: (i) Hartsock acted in good faith when he executed the Second Warrant; (ii) Hartsock would have inevitably discovered the evidence, because he would have obtained a valid warrant had the Second Warrant not issued; and (iii) Hartsock would have inevitably discovered the victims' identities through Streett's telephone records. Accordingly, the Court will deny the Motion and Supp. Motion, and will not exclude the telephone records or evidence seized from the 4620 Plume residence from the trial.
FACTUAL BACKGROUND
Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d) ("When factual issues are involved in deciding a motion, the court must state its essential findings on the record."). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure and the voluntariness of an individual's confession or consent to a search. See United States v. Merritt,
1. On October 31, 2013, the National Center for Missing and Exploited Children ("NCMEC")4 received an online tip stating that Streett "requested a nude photograph by text message from my 15 year old daughter." CyberTipline Report at 1, 3 (dated October 31, 2013), filed August 15, 2018 (Doc. 144-1)("NCMEC Tip").5
2. The NCMEC Tip lists the "Incident Time" as October 21, 2013, 5:00 UTC.6 NCMEC Tip at 3.
*12313. NCMEC assigns its cyber tips priority levels from 1 to 4, with 1 being the highest-priority and 4 being the lowest, based on the threat or danger to the child victim. See Transcript of Motion to Suppress Proceedings at 13:17-25 (Zimmerman, Whitsitt)(taken September 11, 2018), filed September 28, 2018 (Doc. 159)("Tr.").
4. The NCMEC Tip states that it has a priority level of 3, the second-lowest priority level which NCMEC assigns its cyber tips and the lowest level assigned to submissions from an individual person, and that "[a]dditional information [is] required to determine possible risk." NCMEC Tip at 1. See Tr. at 13:17-24 (Zimmerman, Whitsitt); id. at 17:9-18 (Zimmerman, Whitsitt).
5. The NCMEC Tip was not provided confidentially; the submitter provides her name and provides her cellphone number while writing: "[My daughter] does not know that I saw the text and am reporting it. I do not want the subject alerted."7 NCMEC Tip at 3 (redacting the "Submitter" portion from the copy filed with the Court). See Tr. at 23:15-24 (Zimmerman, Whitsitt)(stating that there is no "indication that the mother wished to remain confidential"); id. at 96:8-10 (Mease, Hartsock)(stating that the submitter provided her name and it is redacted).
6. The submitter states that "[i]t does not appear that my daugher [sic] sent this man any photos as he requested. My concern is that he is on-line solicitating [sic] nude photos from other minor children and could possibly have received some." NCMEC Tip at 4.
7. The submitter also provides Streett's address as "Albuquerque, NM United States," his telephone number as "(505) 242-2677," and his age as approximately thirty-eight, but does not provide how she knows this information.8 NCMEC Tip at 3.
*12328. The Tip's submitter later emailed "NCMEC's general email," saying "I just sent a report of child exploitation in on-line. I realized after the fact that I entered the wrong phone number for the subject" and, after stating the original number provided is a contact number for the Albuquerque Police Department, provided Streett's correct telephone number as "505-974-9704". NCMEC Tip at 6.
9. According to a NCMEC note on the Tip, the first "provided number for the reported user appears to result back to the police department" and, per the submitter's email, the correct "number is: 505-974-9704." NCMEC Tip at 6-7.
10. The note continues to provide an "ITACT"9 for 505-974-9704, which provides the subscriber name as "STREETT BENTLEY," the "Phone In-Service Period: Active for 1 month or less," the carrier as T-Mobile USA, and the "Street Address: Albuquerque NM 87102-3472." NCMEC Tip at 7.
11. The note also provides a "TLO"10 for Streett, providing a date of birth of (redacted)/1975, other names and dates of birth associated with him, and associated telephone numbers besides the 974-9704 number: 505-550 (remainder redacted), a mobile; 505-349 (remainder redacted), but does not say with what type of telephone this number is associated; and 505-877(redacted), a landline. NCMEC Tip at 8.
12. The TLO also notes that Streett is a deceased individual's social security number, and provides the social security number as (redacted)-6364. See NCMEC Tip at 8.
13. There are two "Possible Criminal Records" for Streett in the note as well, NCMEC Tip at 8, but they do not indicate "a previous significant criminal history," Tr. at 23:8-10 (Zimmerman, Whitsitt). See id. at 46:8-13 (Zimmerman, Whitsitt)(stating "there was no indication of any criminal history of" Streett being a sex offender).
14. The note concludes with an address summary, providing a list of eight addresses, with the only non-redacted address being the 4620 Plume residence with associated dates of "4/12/2004 to 10/30/2013." NCMEC Tip at 9.
15. Another NCMEC note on the Tip states: "The victim did not appear to engage with the reported user. Based on the *1233user, I will send to the NM ICAC."11 NCMEC Tip at 10.
16. The NCMEC Tip concludes by saying it "was made available to the Law Enforcement Agencies listed below" and then lists the New Mexico Attorney General's Office -- naming special agent Anthony M. Maez as the assigned investigator -- and the Bernalillo County Sheriff's Office -- listing detective Kyle Hartsock as the assigned investigator. NCMEC Tip at 11.
17. Special Agent Jon Whitsitt began his career in law enforcement in June 2006, see Tr. at 9:14-15 (Whitsitt), and worked in the Attorney General's Office as a criminal analyst, "primarily focus[ing] on cyber tip management," from approximately September 2011, until approximately September 2014, Tr. at 10:9-21 (Zimmerman, Whitsitt). See id. at 53:22 (Whitsitt)(clarifying that he did not leave the Attorney General's Office in 2013 as previously stated).
18. The position of criminal analyst is not one of "sworn law enforcement capacity"; it is a civilian position. Tr. at 34:5-7 (Whitsitt, Zimmerman).
19. At some date which Whitsitt could not recall, he transitioned to the position of special agent -- which is a law enforcement officer position. See Tr. at 54:3-11 (Whitsitt, Zimmerman).
20. Whitsitt currently works at the Gallup Police Department. See Tr. at 9:10 (Whitsitt).
21. Whitsitt was a special agent when investigating the NCMEC Tip. See NCMEC Tip at 11 (releasing the tip on November 1, 2013, to the Attorney General's Office); Letter to Custodian of Records at T-Mobile from Special Agent Jon R. Whitsitt at 1 (dated November 1, 2013)(submitted to the Court at the September 11, 2018 evidentiary hearing as Defendant's Hearing Exhibit B)("Preservation Letter")(showing Whitsitt's signature on November 1, 2013, as "Jon R. Whitsitt, Special Agent - ICAC").
22. Whitsitt had special training as a criminal analyst to review NCMEC's cyber tips: he was "trained in [Internet Crimes Against Children] procedures and NCMEC, and reading those tip reports," and also "attended training at the [NCMEC office] in cyber tip management." Tr. at 16:8-16 (Zimmerman, Whitsitt).
23. "[C]yber tip management" refers to triaging the tips that the New Mexico Attorney General's Internet Crimes Against Children task force receives from NCMEC -- after NCMEC has screened them -- as New Mexico's "ICAC coordinator." Second Affidavit at 4. See Tr. at 10:20-11:5 (Zimmerman, Whitsitt); First Affidavit at 2.
24. NCMEC asks the ICAC coordinators to "validate the information" in the cyber tips, because it forwards every tip received without "vouch[ing] for the accuracy of any of the information." Tr. at 33:6-14 (Zimmerman, Whitsitt).
25. Whitsitt's triage process is first "figuring out the most information [he]
*1234could without launching a full-fledged investigation, and then presenting the information to [his] supervisor who would then assign the case to the appropriate law enforcement agency." Tr. at 11:4-9 (Whitsitt).
26. Whitsitt "looked at the facts or the elements of the cyber tip," and, if he believed that a child "is in immediate threat or danger," that tip would take "an ultimate priority." Tr. at 13:6-12 (Whitsitt).
27. Whitsitt would receive variable numbers of cyber tips on any given day -- some days no tips, other days up to fourteen tips -- but he could not recall how many cyber tips he received on the day that he got the NCMEC Tip. See Tr. at 12:23-13:3 (Whitsitt, Zimmerman).
28. Whitsitt could not recall what priority NCMEC assigned the Tip in this case. See Tr. at 15:1-4 (Zimmerman, Whitsitt).12
29. The NCMEC Tip was the only tip about Streett that Whitsitt received. See Tr. at 45:19-23 (Zimmerman, Whitsitt); id. at 46:1-7 (Zimmerman, Whitsitt)(discussing that more tips could make an investigation a higher priority).
30. As to the NCMEC Tip, Whitsitt completed
an initial assessment on the information provided, which included accessing a system called TLO, which provides very basic information such as date of birth, Social Security numbers, previous addresses possible employment history, as well as running an NCIC criminal check; that checks for current wants/warrants, as well as Department of Motor Vehicle records. [He] also check[ed] employment history to see if [the Attorney General's Office] ha[s] a current employer on file or previous employers.
Tr. at 18:25-19:11 (Whitsitt). See Office of the Attorney General of New Mexico Investigations Division Confidential Matter Report at 2 (undated)(submitted to the Court at the September 11, 2018, evidentiary hearing as Defendant's Hearing Exhibit E)("AG Report")(describing the investigative actions Whitsitt took).
31. Nothing "raised a red flag" during Whitsitt's investigation of the NCMEC Tip. Tr. at 14:16-18 (Zimmerman, Whitsitt). See id. at 46:1-16 (Zimmerman, Whitsitt)(discussing that, if there had been multiple tips involving Streett or if he had a criminal history of being a sex offender, Whitsitt would have had to assign the NCMEC Tip a higher priority).
32. Whitsitt stated that there was not probable cause to believe that sexual exploitation had occurred, see Tr. at 25:21-26:7 (Whitsitt, Zimmerman, Mease, Court), but believed that, if the information in the NCMEC Tip were true, a crime had been *1235committed which justified further investigation, see Tr. at 57:11-24 (Mease, Whitsitt).13
33. The crime "[s]exual exploitation of children" is contained in
[i]t is unlawful for a person to intentionally possess any obscene visual or print medium depicting any prohibited sexual act or simulation of such an act if that person knows or has reason to know that the obscene medium depicts any prohibited sexual act or simulation of such act and if that person knows or has reason to know that one or more of the participants in that act is a child under eighteen years of age.... It is unlawful for a person to intentionally cause or permit a child under eighteen years of age to engage in any prohibited sexual act or simulation of such an act if that person knows, has reason to know or intends that the act may be recorded in any visual or print medium or performed publicly.
34. "Prohibited sexual act" is defined in
35. Whitsitt did not speak with the submitter's daughter -- identified as M.Y. -- to determine her relationship with Streett or the nature of the text message communication with him, and did not speak with the submitter to check the credibility of the NCMEC Tip, see Tr. at 27:6-12 (Zimmerman, Whitsitt), although he could have called them, see Tr. at 66:10-14 (Zimmerman, Whitsitt).
36. It was not Whitsitt's job to "reach out to witnesses and conduct interviews" when conducting cyber tip maintenance, and nobody else at the Attorney General's Office does so when they are doing cyber tip maintenance. Tr. at 59:14-24 (Mease, Whitsitt).
37. Whitsitt acted under the assumption that the NCMEC Tip's submitter did not want Streett alerted, see Tr. at 21:21-25 (Whitsitt), because of the Tip's language "I do not want the subject alerted," NCMEC Tip at 3. See also Tr. at 59:1-5 (Whitsitt)(acknowledging that the word "subject" is ambiguous and could refer to either the submitter's daughter or to Streett);
38. Whitsitt then "prepared a subpoena duces tecum for the telephone number provided in the [NCMEC] tip," Tr. at 24:20-21 (Whitsitt), as he did "for most cases" where "it appeared that possible or alleged sexual exploitation had occurred," as part of his job "to obtain all possible information related to the cyber tip," Tr. at 25:2-18 (Whitsitt, Zimmerman).
39. To seek the subpoena duces tecum, Whitsitt first gave his supervisor the information he had gathered on the NCMEC Tip -- "that the mother reported that her daughter had received a request from a man to send him a nude photograph" and that Whitsitt had conducted a criminal check -- and then recommended that they get "a grand jury subpoena duces tecum." Tr. at 26:8-27:3 (Zimmerman, Whitsitt).
40. A subpoena is the "quickest and least intrusive way to get ... basic subscriber records back from a third party in a case like this," Tr. at 85:11-13 (Whitsitt), especially because ICAC cases normally start with limited information, like "just an IP address or a user name maybe, or a phone number," Tr. at 85:20-22 (Whitsitt).
41. Whitsitt recommends a subpoena duces tecum only if he believes that a cyber tip "needs further investigation" and if he believes "that information can be garnered from a subpoena duces tecum." Tr. at 32:18-20 (Whitsitt).
42. Not every cyber tip gives rise to the need for a subpoena duces tecum, because there has been no "possible violation of New Mexico State statute or federal law" which requires "further investigation." Tr. at 32:23-33:5 (Zimmerman, Whitsitt).
43. Subpoenas are actively sought both in the "inquiry" and "full-blown case" stages of investigation in the Attorney General's Office. Tr. at 38:6-10 (Zimmerman, Whitsitt).
44. After receiving authorization to proceed from his supervisor, Whitsitt then "had to consult with an attorney assigned to the New Mexico Attorney General's Office, Crimes Against Children Task Force." Tr. at 27:23-28:1 (Whitsitt).
45. This consultation involved Whitsitt providing that attorney "a brief on what *1237[he] had; basically the same conversation [he] had with the supervisor; what the elements of the cyber tip were, the legwork, so to speak, of what [Whitsitt] had done thus far, and the reason [he] was asking for the grand jury subpoena duces tecum." Tr. at 28:6-11 (Whitsitt).
2. The Subpoena.
46. On November 1, 2014, Whitsitt sent T-Mobile USA a preservation letter requesting "pursuant to 18 U.S.C. Section 2703(f) that all known information relating to the T-Mobile telephone number (505) 974-9704, on the date of October 21, 2013 be preserved for a period of 90 days pending issuance of a formal court order," because that "user is suspected of criminal sexual communication with a child." Preservation Letter at 1. See Tr. at 29:15-30:10 (Zimmerman, Whitsitt).
47. "Criminal sexual communication with a child" is contained in
[c]riminal sexual communication with a child consists of a person knowingly and intentionally communicating directly with a specific child under sixteen years of age by sending the child obscene images of the person's intimate parts by means of an electronic communication device when the perpetrator is at least four years older than the child,
48. The Preservation Letter does not contain an Attorney General's Office case or inquiry number, but provides the NCMEC Tip number. See Preservation Letter (redacting the NCMEC Tip number from the copy provided to the Court).
49. At the time, there would not have been a case number as the investigation was still in the "initial inquiry" stage and would have only had an inquiry number. Tr. at 37:7-12 (Whitsitt).
50. On November 4, 2013, the Second Judicial District Court, County of Bernalillo, State of New Mexico, issued a Grand Jury subpoena duces tecum to T-Mobile commanding its appearance at the Bernalillo County Courthouse on November 25, 2013. See Subpoena at 1.
51. The Subpoena requests the following records for disclosures:
Subscriber information for the telephone number (505) 974-[remainder redacted] that had been utilized on or about October 21, 2013. Including the name(s) and addresses of the person(s) who opened the account, the date the account was opened, detailed method of payment, alternate telephone number(s), email addresses, and any identifying information which would tend to identify the person(s) subscribing to this service.
Subpoena at 1.
52. In the alternative, the Subpoena provides that the requested records "may be turned over to Special Agent Jon R. Whitsitt, a representative of the New Mexico Office of the Attorney General, acting as an aid to the GRAND JURY." Subpoena at 1.
53. The Subpoena does not contain an Attorney General's Office case number or inquiry number. See Subpoena at 1.
54. The Subpoena does not mention the Stored Communications Act,
55. The Subpoena was issued on the basis of testimony regarding the NCMEC
*1238Tip.14 See Tr. at 39:8-40:20 (Zimmerman, Whitsitt).
56. On December 27, 2013, T-Mobile responded to the Subpoena, which it states was served on it on December 27, 2013,15 by sending Whitsitt an email containing the subscriber information for 505-974-9704. See Email from Cathleen Rodriguez to SA Whitsitt (dated December 27, 2013), filed August 15, 2018 (Doc. 144-3)("T-Mobile Email").
57. It was "typical" that T-Mobile provide the information requested in a subpoena duces tecum "subsequent to the date they were asked to present it or return" it. Tr. at 41:9-12 (Zimmerman, Whitsitt).
58. Subpoenas were normally served "the same day or the day after" they are issued, Tr. at 55:4-8 (Zimmerman, Whitsitt), and it is "unusual for a service provider to turn something around on the exact same day that it's received," Tr. at 63:5-8 (Mease, Whitsitt).
59. The T-Mobile Email states that "Bentley A. Streett" is the "Billing Account Name" and the "Mobile Number Name," that the account was established on "06/04/2010," that "Telephone 1" and "Telephone 2" are 505-877-8596, that the address is the 4620 Plume residence, that Streett was born in 1975, and that Streett's social security number is (redacted)-6364. T-Mobile Email at 1.
*123960. While a social security number "could be" part of the "basic identifying data" for which the Subpoena asks,
61. The Stored Communications Act,
(A) name;
(B) address;
(C) local and long distance telephone connection records, or records of session times and durations;
(D) length of service (including start date) and types of service utilized;
(E) telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and
(F) means and source of payment for such service (including any credit card or bank account number),
of a subscriber to or customer of such service....
62. After receiving the T-Mobile Email, Whitsitt prepared a "supplemental report," to add to the initial report which contains "all the information from the case file," for presentation to Whitsitt's supervisor Anthony Maez. Tr. at 48:23-49:5 (Zimmerman, Whitsitt). See AG Report at 4.
63. The AG Report is undated, but the initial report provides the investigatory actions Whitsitt took -- a TLO search, a New Mexico Motor Vehicle Division ("MVD") and criminal history return, an employment history search, a preservation letter to T-Mobile, and a subpoena duces tecum to T-Mobile -- and the attached supplemental report states that T-Mobile responded to the Subpoena on December 27, 2013, and identifies the subscriber of 505-974 (remainder redacted) as "Bentley Streett of (portion redacted) Albuquerque, NM." AG Report at 2, 4.
64. On February 5, 2014, Whitsitt's supervisor at the Attorney General's Office assigned the NCMEC Tip "to the particular law enforcement agency that would have been responsible for further investigation," Tr. at 53:5-12 (Zimmerman, Whitsitt) -- specifically, the Bernalillo County Sheriff's Office Crimes Against Children Unit, with Hartsock16 as the case agent, see Tr. at 80:13-23 (Mease, Hartsock);
65. The Bernalillo County Sheriff's Office Crimes Against Children Unit is affiliated with the ICAC task force, investigating a cyber tip if the Attorney General's Office believes that the Bernalillo County Sheriff's Office is best "geographically located to investigate" and "has the right resources to do an investigation." Tr. at 73:25-74:20 (Mease, Hartsock).
66. Hartsock currently is a Special Agent in Charge at the Second Judicial District Attorney's Office. Tr. at 71:18-21 (Hartsock, Mease).
67. Hartsock graduated from the Academy in 2004, see Tr. at 128:18-19 (Hartsock), then worked at the Bernalillo County Sheriff's Office for about fifteen years; where he worked in the driving-while-intoxicated unit for about three years after patrol, see 72:6-7 (Hartsock).
68. The training at the Academy included two to three weeks of training on search warrants, and after graduation Hartsock received on-the-job training. See Tr. at 132:11-133:1 (Zimmerman, Hartsock).
69. In 2009, Hartsock became a detective in the Crimes Against Children Unit, and in 2010 he started "a task force position with the [Federal Bureau of Investigation's ('FBI') ] Regional Computer Forensic Laboratory," doing digital forensics for about three and a half years before returning to the Crimes Against Children Unit. Tr. at 72:7-12 (Hartsock). See 72:20-73:6 (Mease, Hartsock).
70. While at the FBI's Regional Computer Forensic Laboratory, Hartsock became *1241a certified forensic examiner after completing the FBI's training program for digital evidence, and has experience handling large data sets and drawing inferences from the data. See Tr. at 75:1-5 (Mease, Hartsock);
71. When Hartsock returned to the Crimes Against Children Unit, it had "transitioned to what's called the Ghost Unit," which "specialized in juvenile sex trafficking, missing persons, and child exploitation cases." Tr. at 72:16-19 (Hartsock).
72. In Hartsock's ten years working in the field, he prepared approximately 100 affidavits for search warrants, see Tr. at 133:2-10 (Zimmerman, Hartsock), and worked on "several dozen" cases involving sexual abuse of children, Tr. at 132:5-7 (Hartsock).
73. Hartsock is familiar with Bernalillo County Sheriff's Department Rules and Regulations (dated June 10, 2014)(submitted to the Court at the September 11, 2018, evidentiary hearing as Defendant's Exhibit F)("BCSO Rules"), see Tr. at 134:11-19 (Zimmerman, Hartsock), but said he had never looked up New Mexico's rule on probable cause in warrants, see Tr. at 135:24-136:18 (Zimmerman, Hartsock), although he "knew the rule existed," Tr. at 189:1 (Hartsock). Compare BCSO Rules at 1 (stating that "[p]robable cause must be based on what the Deputy believes to be reasonably trustworthy information"), with N.M. Ct. R. 5-211 (stating that probable cause must "be based on substantial evidence," which could be hearsay if "there is a substantial basis for believing the source of the hearsay to be credible").
3. The Cellular Telephone Records Search for 505-974-9704.
74. The referral that Hartsock received from the Attorney General's Office contained the NCMEC Tip, the Subpoena, and the Subpoena's results. See Tr. at 83:13-84:13 (Mease, Hartsock).
75. This was the first ICAC referral Hartsock had ever received as the case agent. See 80:13-23 (Mease, Hartsock).
76. Hartsock believed that the nature of the NCMEC Tip -- that Streett allegedly requested a nude photograph from a fifteen-year-old girl -- warranted further investigation, because New Mexico law prohibits the asking or possessing of sexually explicit images of a child under the age of eighteen. See Tr. at 87:19-88:15 (Hartsock, Mease).
77. On February 12, 2014, Hartsock obtained a search warrant for the T-Mobile telephone records for 505-974-9704 on the basis of an undated affidavit that he submitted, which was incorporated into the warrant. See First Affidavit at 3; First Warrant at 4; Tr. at 72:1-2 (Hartsock);
78. The Honorable Ross C, Sanchez, former New Mexico District Court Judge for the Second Judicial District Court, approved the First Warrant. See First Warrant at 1.
79. The First Warrant, like all warrants, must be supported by probable cause to be valid under the Fourth Amendment. See Tr. at 145:23-25 (Zimmerman, Hartsock).
80. The First Affidavit requests the: (i) "Account Subscriber Information identifying the name(s), address and other phone number associated with [the 505-974-9704] account"; (ii) "all phone calls made and received, listing the phone numbers called or calling from and the dates, times and durations from 7/31/2013-2/5/2014"; and (iii) "all text and mixed messages made *1242and received, listing the phone number(s) texted or texted from and the dates and times from 7/31/2013-2/5/2014." First Affidavit at 1.
81. Hartsock chose the "7/31/2013-2/5/2014" period, First Affidavit at 1, because he "decided to do 90 days prior to when the incident was reported to NCMEC" through the current date, but did not say why he decided on the "90 days prior," Tr. at 148:22-23 (Hartsock). See Tr. at 148:21-25 (Zimmerman, Hartsock).
82. With the First Warrant, Hartsock sought to determine if Streett was texting M.Y. and if any "picture messages were being sent." Tr. at 91:8-12 (Hartsock).
83. The First Affidavit describes how NCMEC "received an online tip about an adult male soliciting a nude photograph of a fifteen year old girl over text message conversation" on October 31, 2013. First Affidavit at 2. See NCMEC Tip at 1.
84. The First Affidavit describes the tipster as a "confidential informant," First Affidavit at 2, because Hartsock wanted "to keep the identity of the mother private," Tr. at 94:17-18 (Hartsock).
85. The NCMEC Tip does not say "keep my name out of [the investigation]"; rather, Hartsock interpreted the NCMEC Tip in that manner. Tr. at 12-17 (Mease, Hartsock).
86. This was the first time Hartsock had relied on information coming from a person who he believed "didn't want to be named in a search warrant," Tr. at 94:11-13 (Hartsock), and relied on advice from "someone in narcotics" to refer to the tipster as a CI, Tr. at 94:14-17 (Hartsock).
87. Hartsock recalls only one other time he kept an informant's name confidential in a warrant. See Tr. at 133:20-134:3 (Hartsock).
88. Hartsock should not have used the term "confidential informant" and should "have identified that her identity is known to me, or identified her as a relative to the child who could be at risk.... Or ... just put her name, because she's going to have to be disclosed in my case eventually, no matter what." Tr. at 95:21-24. See
89. Hartsock found the tipster "trustworthy" as the victim's mother, but did not put this fact in the First Affidavit. Tr. at 144:5-19 (Hartsock, Zimmerman)(acknowledging that "the judge wouldn't have seen [the CI] as the mother" from the four corners of the First Affidavit). See First Affidavit at 2 (not revealing the CI as M.Y.'s mother).
90. The First Affidavit states that the tipster "physically observed the cell phone of the fifteen year old female," and that the tipster said that "the conversation was between MY and a male named Bentley Streett who lived in Albuquerque, NM." First Affidavit at 2.
91. The First Affidavit states that the tipster did not provide how she knew Streett was the male who requested the photograph nor how she knew that he resides in Albuquerque. See First Affidavit at 2.
92. The First Affidavit states that the tipster said that she "did not see a photograph or other media transmitted from MY to the requester, but was concerned that it could happen in the future." First Affidavit at 2. See NCMEC Tip at 4.
93. The First Affidavit does not discuss whether the tipster had provided accurate *1243information to law enforcement in the past. See First Affidavit at 2.
94. Hartsock tried to contact the tipster "to gather more information[,] but ha[d] failed to do so at the time of writing" of his affidavit, First Affidavit at 2, but did not try harder to contact her, believing he had "a small likelihood of actually getting her to participate in the investigation" because "she didn't want her daughter to know," Tr. at 239:13-16 (Hartsock). See Tr. at 140:23-141:11 (Hartsock, Zimmerman)(discussing how Hartsock tried to reach M.Y.'s mother, but failed, and did not contact local police for help);
95. The First Affidavit states that "[t]he New Mexico Attorney Generals [sic] Internet Crimes Against Children task force received the tip and issued a subpoena to T-Mobile USA for the account information related to 505-974-9704, and discovered it was registered to Bentley Streett, who lives in Bernalillo County." First Affidavit at 2.
96. Hartsock believed that the Subpoena corroborated the NCMEC Tip, because T-Mobile's return verified that Streett owned the number and lived in Albuquerque. See Tr. at 87:2-16 (Hartsock, Mease);
97. Hartsock requested the call, text, and mixed media message history for 505-974-9704 to confirm the online tip "and find out if any mixed media messages that contain nudity of MY or the requester" had been sent. First Affidavit at 2.
98. A person requesting nude photographs "has to make many requests before they attain a nude photograph." First Affidavit at 2.
99. Hartsock averred that he needs the telephone records, because, based on the NCMEC Tip, "the frequency or infrequency of mixed media messages" between M.Y. and Streett could evidence such requests, and "contain child pornography or the attempt to entice sex from a minor." First Affidavit at 3.
100. Hartsock had no information that sexually explicit images had been sought or that sexually explicit images existed. See Tr. at 172:21-173:16 (Zimmerman, Hartsock).
101. Hartsock thought he had probable cause to believe that a crime had been committed, because "[e]ven if the underage person doesn't send an image, simply soliciting ... a nude or a sexually explicit image" is a crime, Tr. at 169:9-13 (Hartsock, Zimmerman), and in his "training and experience ... usually when 40-year-old men text 15 year olds for nude pictures, they're not for medical reasons. They're going to be sexually explicit," Tr. at 169:23-170:1 (Hartsock).
102. Hartsock had run searches to determine if Streett had any outstanding *1244warrants for his arrest or significant criminal history and did not find anything, but did not include this information in the First Affidavit. See 163:1-19 (Zimmerman, Hartsock); First Affidavit at 1-3.
103. As a matter of course, however, Hartsock does not include the criminal history of the suspect in his search warrants, because he is not sure if he can due to bias and prejudice. See Tr. at 166:17-22 (Hartsock).
104. Hartsock executed the First Warrant on February 12, 2014, and T-Mobile thereafter emailed the requested records to him on February 18, 2014. See Search Warrant Return of Inventory at 5 (dated March 11, 201418 ), filed July 24, 2018 (Doc. 141-2)("First Warrant Return"); Hartsock Report at 3.
105. The telephone records show about "136 communications back and forth between Bentley Streett's listed phone number on the cyber tip and the alleged victim's phone number, including right around the October 30th, 31st date of the cyber tip," and a mixed media message sent from Streett to the alleged victim. Tr. at 97:12-18 (Hartsock).19 See Hartsock Report at 3.
106. Hartsock described the returned telephone records as being of a "very large size" and that he counted communications with "135 different area codes," Tr. at 107:3-13 (Hartsock), with a total of approximately 56,000 calls and text messages, see Tr. at 97:7-9 (Hartsock);
107. Hartsock generated a map with multiple colored dots which "represent the approximate location of the different area codes that were found" in the telephone records, Tr. 110:4-12 (Mease, Hartsock), spread across the United States and parts of Canada, and showing "that this person's phone is in communication with virtually every geographical region of the country," Tr. at 110:16-18. See Map (undated)(submitted to the Court at the September 11, 2018, evidentiary hearing as Government's Hearing Exhibit 1).
108. The Map's dots indicate Streett was communicating with two people in Minnesota, where the NCMEC Tip submitter and her daughter, M.Y., reside. See Map at 1; Hartsock Report at 3-4; Kittson County Sheriff's Department Report at 1 (dated February 23, 2014)(submitted to the Court at the September 11, 2018, evidentiary hearing as Defendant's Hearing Exhibit L)("Vig Report").
109. The number of area codes with which Streett was texting fits the mold of *1245someone who meets people on the internet, which "has no geographical boundaries." Tr. at 111:3-16 (Hartsock). See Vig Report at 1 (stating that M.Y. told officers that she met Streett on Twitter); Second Affidavit at 4 (same).
110. Hartsock also used Streett's telephone records to generate a pivot table20 on Excel to "show[ ] in order ... what numbers were on his phone records the most to least." Tr. at 111:13-16 (Hartsock). See Excel Table (undated)(submitted to the Court at the September 11, 2018, evidentiary hearing as Government's Exhibit 2).
111. Hartsock thought that "every MMS message in the records is potentially of interest because it's showing pictures being communicated."21 Tr. at 122:3-5 (Hartsock).
112. The highest frequency number in the telephone records is for the number 40404, which "is a short message text code used by Twitter to indicate to a person's cellphone that they either have a notification or someone is responding to a post or direct massage on Twitter." Tr. at 113:17-21 (Mease, Hartsock). See Excel Table at 1.
113. The second highest frequency number in the telephone records is for a telephone number with a 740 area code and a total of 4,218 text messages exchanged in the approximately six-month scope of the First Warrant, see Excel Table at 1; First Affidavit at 1; indicating that this individual "is probably one of the most important people in [Streett's] life," Tr. at 114:13-16 (Mease, Hartsock).
114. Hartsock called this telephone number and spoke with a girl identified as M.S., who indicated that she is under eighteen, does not live in New Mexico, knew she was speaking to Streett, that she met Streett on Twitter, and that they had "sexual conversations." Tr. at 116:10-13 (Hartsock). See Tr. at 114:17-24 (Mease, Hartsock).
115. M.S. indicated she knew a minor male who also communicated with Streett -- identified in the Second Superseding Indictment as "John Doe" -- and law enforcement later interviewed this male based on M.S.' information. See Tr. at 116:14-3 (Mease, Hartsock).
116. The third highest frequency number in the telephone records is for a telephone number with a 915 area code with a total of 3,211 text messages and fifty MMS messages exchanged in the approximately six-month scope of the First Warrant. See Excel Table at 1, 5, 6; First Affidavit at 1. See also Tr. at 120:21-121:8 (Mease, Hartsock)(describing how T-Mobile codes MMS messages differently and how to tell if the record is of MMS messages).
117. The 915 telephone number belongs to the girl identified as Jane Doe 3 in the Second Superseding Indictment, who was later interviewed and who provided her electronics to law enforcement for investigation, which revealed "photographs *1246that are the subject of the indictment." Tr. at 118:17-20 (Mease, Hartsock). See Tr. at 117:7-11 (Mease, Hartsock);
118. The telephone records reveal the telephone numbers and number of messages exchanged in the approximately six-month scope of the First Warrant with Jane Doe 1 (telephone number beginning with 815), Jane Doe 2 (telephone number beginning with 416), Jane Doe 4 (telephone number beginning with 605), and John Doe (telephone number beginning with 707). See Tr. at 119:20-120:2 (Mease, Harstock)(discussing Jane Doe 1 in the records);
119. Law enforcement interviewed Jane Doe 1, who also turned over her electronics, which revealed "photographs relating to the underlying indictment." Tr. at 120:6-14 (Mease, Hartsock).
120. The telephone records reveal 591 text messages and six MMS messages exchanged with Jane Doe 1. Excel Table at 2, 10.
121. None of the alleged victims named in the indictment independently contacted police to make a complaint. See Tr. at 125:14-25 (Mease, Hartsock, Court, Zimmerman).
122. Hartsock could not charge a crime based on the telephone records. See Tr. at 181:16-17 (Hartsock).
4. The February 24, 2014, Search of the 4620 Plume Residence.
123. On February 24, 2014, Hartsock swore an affidavit supporting an application for a search warrant to search the 4620 Plume residence and obtained the search warrant the same day. See Second Affidavit at 13; Second Warrant at 14.
124. The Honorable Christina T. Jaramillo, then-New Mexico Magistrate Judge for the Bernalillo County Metropolitan Court, approved the Second Warrant telephonically. See Second Warrant at 14.
125. The Second Warrant incorporates the Second Affidavit, stating it is "hereby made part of this warrant." Second Warrant at 14.
126. The Second Affidavit begins by providing a description of the appearance of the 4620 Plume residence, including that the only car not "backed in" the driveway was a brown Fiat with the New Mexico license plate "PL8SPCL." Second Affidavit at 1.
127. The Second Affidavit does not provide to whom the brown Fiat is registered. See Second Affidavit at 1-13.
128. Hartsock did not run the MVD records for the brown Fiat, nor did he look up assessor information for the 4620 Plume residence. See Tr. at 193:5-194:1 (Zimmerman, Hartsock)(discussing Hartsock's lack of recollection and not having this information anywhere); Hartsock Report at 3-4 (not providing this information); Second Affidavit at 1-13 (same).
129. The MVD records reveal a brown Fiat with New Mexico license plate PL8SPCL has been titled to and registered by Pamela Lesiak since August 8, 2013, at the 4620 Plume residence. See PL8SPCL - NM -Vehicles at 1 (dated September 13, 2018)(filed with the Court at the September 11, 2018, evidentiary hearing *1247as Government's Exhibit 5).22 See also State of New Mexico Motor Vehicle Division Certificate of Vehicle Registration (undated)(filed with the Court at the September 11, 2018, evidentiary hearing as Defendant's Exhibit N)(showing a Fiat with license plate PL8SPCL registered to Lesiak from 2013-2014).
130. The assessor records also show that Lesiak paid the 2013 tax bill for the 4620 Plume residence and that Streett granted her the property in 2005. See 2013 Tax Bill at 2 (undated)(filed with the Court at the September 11, 2018, evidentiary hearing as Defendant's Exhibit J); Warranty Deed at 3 (dated October 7, 2005)(filed with the Court at the September 11, 2018, evidentiary hearing as Defendant's Exhibit J).
131. In hindsight, knowing that the Fiat and home are tied to Lesiak in the MVD and assessor records, Hartsock "wouldn't have changed [his] mind to go forward with the warrant." Tr. at 201:10-11 (Hartsock);
132. This description of the 4620 Plume residence came from a "limited surveillance" that Hartsock conducted "during daytime hours, so [he] could get a description for [his] warrant and try to see if [he] could learn anything more about the house." Tr. at 101:6-9 (Hartsock).
133. The Second Affidavit provides that the 4620 Plume residence contains many pieces of personal property that constitute a criminal offense and/or are material evidence of a criminal offense, including, but not limited to: (i) any electronic device "capable of sending text, photos and video using online based communication services," and any device enabling a computer to do so; (ii) any storage device "that can store images or other files that could contain child pornography"; (iii) "[a]ll documents which indicate proof of residence at 460 [sic] Plume Rd NW"; (iv) "[a]ll photographs ... which depict a minor posed or candid in a sexual manner"; (v) "contracts, agreement records and accounts with Internet providers, computer bulletin boards or other computer on line service provider, and accounts with other persons, companies or corporations evidencing manufacturing, production, distribution, receiving, possessing, or sales" of any materials or documents "relating to sexual conduct of persons under the age of 18"; (vi) "personal property tending to establish the identity of person or persons having the dominion and control over the computer equipment"; (vii) lock boxes or safes, or evidence of such off-site containers, where "evidence of crimes against children may be stored for safekeeping against seizure"; and (viii) "[a]ll phones and all cell phone records to establish ownership." Second Affidavit at 1-3.
134. The Second Affidavit again describes the NCMEC Tip and subsequent Subpoena issued to T-Mobile in same manner as in the First Affidavit. See Second Affidavit at 4.
135. The Second Affidavit does not identify the CI as the alleged victim's mother nor provide whether she has provided accurate information in the past. See Second Affidavit at 3-4.
*1248136. Again, the Second Affidavit does not include Streett's lack of outstanding warrants or criminal history. See Second Affidavit at 4-13.
137. The Second Affidavit provides some additional background information on the partnership between NCMEC and the New Mexico Attorney General's Office, stating that NCMEC screens the online tip first -- because anybody can submit one through its website -- then assign it to the appropriate state's "ICAC coordinator," who "conducts a basic investigation to find out what county or city has jurisdiction over the case." Second Affidavit at 4.
138. The Second Affidavit then discusses what Hartsock learned from Minnesota law enforcement's interviews with M.Y. and with her mother. See Second Affidavit at 4.
139. On February 21, 2014, Hartsock reached out through the ICAC network to law enforcement in Minnesota, where M.Y. resided, to attempt to make "in-person contact with mom and daughter, to get more information about what had occurred" -- especially because Hartsock believed the mixed media message "could have been child pornography." Tr. at 98:1-16 (Hartsock). See Hartsock Report at 3.
140. At the time that Hartsock reached out to local law enforcement, he lacked "specific knowledge of" how to contact law enforcement in another state, Tr. at 182:9-10 (Hartsock), because he wanted "to make sure someone with ICAC background" would contact M.Y. and her mother, Tr. at 180:4-6 (Hartsock).
141. Hartsock waited to contact local law enforcement until after he executed the First Warrant, because he wanted to establish if M.Y. was still talking to Streett, as it would "affect [his] ability to interview someone over the phone or law enforcement's ability to interview [M.Y.] in person if [she is] still in contact with [Streett]." Tr. at 151:23-182:2 (Hartsock).
142. On February 23, 2014, Matthew Vig, with the Kittson County Sheriff's Office, made contact with M.Y. and her mother at the Kittson County Sheriff's Office in Minnesota. See Hartsock Report at 4; Vig Report at 1.
143. Vig took a statement from M.Y., who said she was fourteen-years-old at the time23 and that Streett knew of her age, because her Twitter page showed her age of fourteen and because she told Streett that she was fourteen. See Vig Report at 1.
144. Vig reported that M.Y. said that Streett asked her "to send him nude photos to him, two or three times," but that she did not send him any photographs. Vig Report at 1.
145. The Vig Report states that M.Y. said Streett sent her a "face photo, no nudity," and that he "was older," but that she "did not know his true age." Vig Report at 1.
146. The Second Affidavit states that M.Y. "consensually gave her cellphone to Deputy Vig so he could download it and confirm the details of her relationship with Bentley." Second Affidavit at 5. See Vig Report at 1 (stating that, "with consent, I received M (remainder redacted)'s cell *1249phone as evidence").24
147. Hartsock believed that the Vig Report "more strongly corroborated" the NCMEC Tip and that this corroboration, combined with "the phone records showing the high amount of communication, and that mixed media message being sent," led Hartsock to draft a search warrant for Streett's home. Tr. at 100:13-18 (Hartsock).
148. The Second Affidavit concedes there is no evidence that M.Y. sent Streett any nude photographs, but notes that Streett's asking constitutes a crime under
149. New Mexico Stat. Ann. § 30-37-3.2 provides that the crime of
[c]hild solicitation by electronic communication device consists of a person knowingly and intelligently soliciting a child under sixteen years of age, by means of an electronic communication device, to engage in sexual intercourse, sexual contact or in a sexual or obscene performance, or to engage in any other sexual conduct when the perpetrator is at least four years older than the child,
and that "electronic communication device" includes a computer and cellphone.
150. New Mexico Statute § 30-37-1 does not define "sexual or obscene performance," but defines "sexual conduct" as an "act of masturbation, homosexuality, sodomy, sexual intercourse or physical contact with a person's clothed or unclothed genitals, pubic area, buttocks or, if such person be female, breast."
151. Hartsock states that, in his "training and experience[,] a person does not try to gain child pornography only once and one way," and thus he "seeks to ensure no photographs were received from our victim that would violate further law of child exploitation and to ensure there were no other victims that our suspect has contacted asking for explicit images of minors." Second Affidavit at 5.
152. The remainder of the Second Affidavit provides how Hartsock's "training and experience" leads him to believe that evidence of child pornography may be found in the various pieces of personal property which he wants to search and seize. Second Affidavit at 5-13.
153. The Second Affidavit does not discuss the information gleaned from the telephone records that Hartsock obtained *1250under the First Warrant. See Second Affidavit at 2-13.25
154. The Second Affidavit does not provide how Hartsock decided to search the 4620 Plume residence or why he believes Streett's personal property or evidence of Streett's alleged criminal activity will be found at the residence, see Second Affidavit at 1-13; Motion at 3, but Hartsock would have been able to add that information to the Second Warrant if the judge to whom he presented the Second Affidavit had asked where in Bernalillo County Streett lived, see Tr. at 103:4-9 (Mease, Hartsock). See also Tr. at 192:15-17 (Hartsock)(admitting it was a mistake to connect the address to Streett);
155. The 4620 Plume address "came from the cyber tip; it came from the grand jury subpoena returns, and T-Mobile also provided it to [Hartsock] when they returned [Hartsock's] search warrant records," Tr. at 100:24-101:2 (Hartsock); the Hartsock Report provides that Streett's "New Mexico driver's license also showed this as his address," Hartsock Report at 4. See Tr. at 161:7-14 (Hartsock)(stating that Hartsock had no indication that Streett "was living anywhere else," because his driver's license and the subscriber billing information returned to 4620 Plume and that, "reasonably, to the best of my ability, without knocking on his door beforehand without a warrant, I was able to verify he lived there");
156. Hartsock executed the Second Warrant on February 25, 2014, leaving a copy of the Warrant with Lesiak, Streett's live-in girlfriend, and taking the following property: one Mac laptop, one Mac desktop, one "smart phone," and one "regular cell phone." Search Warrant Return and Inventory at 15 (dated March 4, 2014), filed August 15, 2018 (Doc. 144-5). See Tr. at 103:10-14 (Mease, Hartsock); Hartsock Report at 4.
157. Streett was also present at the 4620 Plume residence upon execution of the Second Warrant. See Tr. at 103:13-14 (Mease, Hartsock); Hartsock Report at 4.
158. Hartsock escorted Street, unhandcuffed, to his unmarked vehicle and, after Hartsock read Streett his Miranda 26 warnings, *1251Streett agreed to speak. See Hartsock Report at 4.
159. Streett stated that only he and his girlfriend, Lesiak, lived in the 4620 Plume residence and that they were in a " 'somewhat' open relationship." Hartsock Report at 4.
160. Streett confirmed that he uses his personal Twitter account -- @thebiguy69 -- "to meet and interact with woman [sic] and girls," and, while "he asks his followers to be at least 18 years of age," he "texts some of the girls he meets on [Twitter with] his cell phone," and "did recall a couple of users that he knew were under 19 years of age, one of them being the name 'M(remainder redacted).' " Hartsock Report at 5.
161. Streett also told Hartsock that "he may have asked some of the under 18 girls for nude photographs of themselves," but that he did not believe he had child pornography on his cellphone -- the Nokia Lumia smartphone retrieved from the residence. Hartsock Report at 5.
162. Streett discussed how he had previously traveled out of New Mexico to meet women whom he met online on two occasions: (i) around January 5, 2014, when he traveled to Phoenix, Arizona, to meet nineteen-year-old J., saying they had no sexual relationship; and (ii) on January 19, 2014, when he drove to Decatur, Illinois, to meet twenty-year-old F.S., with whom he engaged in "foreplay." Hartsock Report at 5.
5. The Subsequent Search Warrants Resulting from Evidence Seized from the 4620 Plume Residence.
163. On May 21, 2014, Hartsock swore to an affidavit supporting an application for a warrant to search Streett's primary cellular telephone taken during the search of the 4620 Plume residence: "A Nokia Lumia cell phone running a Microsoft Operating System." Affidavit for Search Warrant at 1 (executed May 21, 2014), filed December 1, 2017 (Doc. 78-2)("Third Warrant").
164. The Third Warrant requests that the Second Judicial District Court allow Hartsock to send "[t]he text and mixed media messages stored on" Streett's Nokia cellular telephone "to the built in back-up service provided by Microsoft, which will transmit the phone[']s text and mixed media messages over the internet to Microsoft[']s servers. Once there, Microsoft can provide a disk or download of the messages in electronic format." Third Warrant at 1.
165. The Third Warrant also "requests that Microsoft preserve these message[s] and not allow the user to initiate any request that could delete or alter the messages once uploaded." Third Warrant at 4.
166. The Third Warrant provides the same description of the NCMEC Tip and Vig's follow-up with M.Y. that the Second Affidavit provides. See Third Warrant at 1-3.
167. Hartsock again states that his "training and experience" counsels that "a person does not try to gain child pornography only once and one way," so he wants to ensure Streett received no photographs from M.Y. or any other underage victims. Third Warrant at 3.
168. The Third Warrant describes Hartsock's execution of the Second Warrant *1252and his conversation with Streett, in which Streett "admitted to meeting many women and girls on Twitter and other social media websites and ask[ing] them for nude photographs of themselves." Third Warrant at 3.
169. According to the Third Warrant, Streett said in this conversation that "he remembered meeting MY and talking to her via text messages on his phone but couldn't remember if he asked her to send a naked photograph. He did know she was under 18 years old during their conversations." Third Warrant at 3. See Hartsock Report at 5 (stating that when asked about M.Y., Streett said he knows her).
170. According to the Third Warrant, the Nokia telephone "contains thousands of messages between Bentley and other women, some who identify themselves as young as 14 years old and contain photographs of genitals being sent and received from Bentley." Third Warrant at 4.
171. Microsoft told Hartsock that it could not prevent a remote user from erasing data from the phone, so he physically went through the conversations contained on the telephone. See Hartsock Report at 6.
172. Hartsock extracted "[a]pproximately 13,000 different text messages" from the Nokia telephone, Tr. at 104:19-20 (Hartsock), and found that it appeared that Streett was texting minors, because Streett "would store the contacts as the name of the person, their location, their age and sometimes their usernames," Hartsock Report at 6. See Tr. at 104:19-105:3 (Hartsock, Mease).
173. Hartsock found the conversation with M.Y., which showed that Streett "indirectly ask[ed] her for a nude photograph around the time the complaint was made." Hartsock Report at 8.
174. In a conversion with a person identified as "B," Streett discussed a sexual relationship he had "with a young follower" and sent B "a selfie of him and a white female who appears to be a teenager. It appears they are in a hotel or motel room...." Hartsock Report at 10-11.
175. After writing another warrant for "a longer expansion of records for Bentley from T-Mobile" to determine with whom Streett had the sexual relationship, he found "a large amount of texting between two phone numbers," one beginning with "414"27 and the other with "815." Hartsock Report at 11-12.
176. On June 24, 2014, Hartsock swore to an affidavit to obtain a search warrant for the "call, SMS, MMS and any other recorded transaction records or meta data from 4/1/2013-2/28/2014,"28 and the "cell tower locations for each call or SMS, MMS or other recorded transaction or meta data *1253from 4/1/2013-2/28/2014" for Verizon Wireless Account 414-(remainder redacted). Affidavit for Search Warrant at 1 (executed June 24, 2014), filed December 1, 2017 (Doc. 78-3)("Fourth Warrant").
177. The Fourth Warrant provides the same information regarding the NCMEC Tip and Vig's contact with M.Y. as previous affidavits provide. See Fourth Warrant at 1-3.
178. According to the Fourth Warrant, Hartsock "interviewed Bentley Streett who admitted to meeting wom[e]n on Twitter and asking them for nude photographs, 1-2 of them he knew were under 18 when he asked for the nude photographs. He stated that Twitter and text messaging were his primary ways of communicating with the underage girls." Fourth Warrant at 3.
179. The Fourth Warrant states that, after reviewing text messages on Streett's cellular telephone, Hartsock found "multiple conversations" in which Streett "sends a photo of himself with a young teenage looking female and tells a story that he went to Illinois and Indiana in July of 2013 and met a virgin 15 year old girl that he had sexual contact with for a few days." Fourth Warrant at 3.
180. According to the Fourth Warrant, Hartsock obtained Streett's telephone records, and identified the 414-(remainder redacted) number as one which Streett was "sending and receiving hundreds of text messages from in a short time span during early July, 2013." Fourth Warrant at 3.
181. Hartsock says that he wants to determine if this user is a "possible victim[ ] of sexual exploitation or sexual coercion to perform intimate acts. By Bentley's statements he had physical sexual intercourse with her at his motel room, and with the phone location information affiant seeks to identify that hotel room." Fourth Warrant at 3.
182. On August 26, 2014, Hartsock swore to an affidavit for a search warrant to obtain "[a]ccount subscriber and a list of all other phone numbers associated with [Verizon Wireless] account [815-(remainder redacted),] including their names, address and other contact information between 6/1/2013-12/31/2013." Affidavit for Search Warrant at 1 (executed August 26, 2014), filed December 1, 2017 (Doc. 78-4)("Fifth Warrant").
183. After providing the same information regarding the NCMEC Tip and Hartsock's meeting with Streett as in the Fourth Warrant, the Fifth Warrant describes a photograph that Streett "appears to have taken ... with the young female he had intercourse with," purportedly the fifteen-year-old virgin the Fourth and Fifth Affidavits describe Streett meeting in Illinois and Indiana. Fifth Warrant at 3.
184. The Fifth Warrant describes this photograph as showing "what appears to be the inside of a motel room door." Fifth Warrant at 3.
185. According to the Fifth Warrant, the photograph "was found on the cell phone and by looking at the meta data on the photo, Bentley's phone that was seized was the phone that took the photograph. The date is 7/13/13 for the photo and his call records indicate very high usage that day to this phone number." Fifth Warrant at 3.
186. Hartsock says he "believes the girl in the photo was using" the 815-(remainder redacted) number to communicate with Streett and that he "seeks to identify the owner of the cell phone account to find the girl and find her involvement with Bentley." Fifth Warrant at 4.
*1254187. This 815 telephone number is the same 815 number discussed infra ¶¶ 118-120, belonging to Jane Doe 1. See Tr. at 124:1-9 (Mease, Hartsock).
PROCEDURAL BACKGROUND
In December 2015, a grand jury returned a Second Superseding Indictment,29 charging Streett with two counts of traveling in interstate commerce from New Mexico to Illinois "for the purpose of engaging in any illicit sexual conduct" with a person under eighteen years of age -- Jane Doe 1 -- that "would be in violation of Chapter 109A of Title 18, United States Code, had the sexual act occurred," in violation of
1. The Motion.
Streett filed the Motion on December 1, 2017. See Motion at 1. The crux of Streett's argument in the Motion is that the Second Affidavit "is devoid of any indication that Mr. Streett resided at 4620 Plume, much less any indication that contraband related to Mr. Streett's alleged criminal activity would be found at this residence," and, thus that "evidence obtained as a result of th[is] unreasonable search ... was wrongfully obtained in violation *1255of Mr. Streett's Fourth Amendment rights, and should be excluded." Motion at 1. The Motion likens the Second Affidavit to the affidavit at issue in United States v. Gonzales,
The Motion concludes by arguing that "all evidence later discovered as a result of this illegal search of [4620 Plume] must also be excluded. This includes evidence discovered pursuant to the three search warrants which were later obtained in the months after the initial search of 4620 Plume." Motion at 10. This exclusion is necessary, Streett asserts, under "the fruit of the poisonous tree doctrine." Motion at 9 (citing Wong Sun v. United States,
2. The Supp. Motion.
Streett filed the Supp. Motion on July 24, 2018, to set forth three additional arguments for suppression of evidence: (i) that Carpenter v. United States, --- U.S. ----,
Streett argues that the Subpoena is improper under the Fourth Amendment, because it gathers data that "included much more than merely numbers dialed," generating 2,305 documents.31 Supp. Motion at 6. He then argues that "there is no way to *1257know whether there was a pending grand jury investigation necessary for the subpoena to issue or that it was issued at the behest of the District Attorney," and that "[s]ubpoenas issued without a pending grand jury matter are unlawful." Supp. Motion at 7 (citing State v. Martinez,
Streett next argues that the First Warrant lacks probable cause. See Supp. Motion at 9. He says that he is challenging the First Warrant on its face, so the Court must look to "the four corners of the [First Affidavit] to determine whether the warrant is supported by probable cause." Supp. Motion at 9 (citing Whiteley v. Warden, Wyo. State Penitentiary,
Streett argues that, because the NCMEC Tip does not state how the tipster knew the requestor was an adult or how he would have known that M.Y. was a minor, and because the requestor asked *1258only for a nude photograph, the First Affidavit fails to establish probable cause "to search for private subscriber information based on the notion that the search warrant 'could contain child pornography or the attempt to entice sex from a minor.' " Supp. Motion at 14 (quoting First Affidavit at 3). Streett further argues the First Affidavit is deficient in providing "no information that would indicate the reliability of the CI's information," and in not disclosing how the CI knew the identity or location of the requestor. Supp. Motion at 14 (citing First Affidavit at 2). The First Affidavit, in Streett's view, "relies solely on a confidential informant's hearsay tip to NCMEC," and does not provide "the necessary reliability or ... corroboration to justify the speculative nature of the affidavit." Supp. Motion at 15. Streett acknowledges that an affidavit may rely on hearsay, but he notes the Tenth Circuit, in United States v. Harris,
Streett also argues that Hartsock omitted the information the Subpoena provides -- "like the numbers dialed, the nature of the communication, and the size of any messages conveyed"32 -- and Streett's lack of criminal history. Supp. Motion at 18. Streett argues that "Hartsock had failed to come up with any further facts to support probable cause" and that "[t]he most basic of investigations went undone." Supp. Motion at 18. Streett argues that Hartsock's failure "to do even the minimal amount of investigation to verify the confidential informant's allegations" precludes the application of the good-faith doctrine. Supp. Motion at 16 (citing United States v. Bishop,
*1259Streett then argues that the First Affidavit's lack of substantial evidence violates the Due Process Clause of the Fourth and Fourteenth Amendments, because the New Mexico Rules of Criminal Procedure require substantial evidence to support probable cause. See Supp. Motion at 19. Streett notes that the Supreme Court of the United States has held that "[a] petitioner may also be entitled to habeas relief if he shows that the alleged violations of state law resulted in a denial of due process," and has emphasized that federal courts should not reexamine a state court's determination of state law. Supp. Motion at 19 (citing Hicks v. Oklahoma,
Streett concludes by asking for exclusion of the evidence here, because "Hartsock's lack of investigation before seeking this search warrant should be the kind of uninspired, if not lazy police work the Fourth Amendment was meant to deter." Supp. Motion at 23. Streett points to the lengthy sentence he faces if convicted as another reason why such law enforcement should not be tolerated. Streett argues that "[n]o crime had been committed under New Mexico law," but that was not going to stop Hartsock's search. Supp. Motion at 23. Finally, Streett asks the Court to find the Subpoena, the search of Streett's telephone records, and the search of the 4620 Plume residence unlawful under the Fourth Amendment, and to exclude "all evidence seized including any evidence discovered as fruits of those searches." Supp. Motion at 24 (citing Wong Sun v. United States,
3. The Response.
The United States responds. See United *1260States' Amended33 Response in Opposition to Defendant's Motions to Suppress Evidence (Docs. 78, 141), filed August 15, 2018 (Doc. 144)("Response"). The United States argues that the Court should deny Streett's Motion and Supp. Motion, because Carpenter v. United States does not apply to the Subpoena here, and because probable cause supports the First and Second Warrants. See Response at 1. Even if probable cause is found lacking, the United States argues, "the executing officer acted with an objective good-faith belief that the warrants were properly issued." Response at 2. The United States begins by arguing that the Subpoena is valid under the Fourth Amendment and that Streett "misstates the scope of the data produced as a result of this subpoena," by contending "that 2,305 pages of phone records were provided by T-Mobile in response to the grand jury subpoena, when, in reality, those records were produced as a result of the later search warrant submitted to T-Mobile." Response at 6 (emphasis in original)(citing First Affidavit at 1). The United States then notes that the Supreme Court's protection of cell-site locator information in Carpenter v. United States is limited to cell-site location information and cannot be extended to protect "basic cellular subscriber information." Response at 6. The United States District Court for the District of New Mexico has already rejected such an expansive reading of Carpenter v. United States, the United States contends, in United States v. Tolbert,
The United States then argues that probable cause supports both the First and Second Warrants. See Response at 8, 10-15. First, it notes that no information was obtained via the Third Warrant, and that Streett does not have standing to challenge the Fourth and Fifth Warrants, because these are third-party accounts, so the United States will not address Streett's challenge in the Motion to these *1261three warrants under the fruit-of-the-poisonous-tree doctrine. See Response at 8 n.3. Then the United States notes that probable cause is determined by a "totality of the circumstances" and that the Court should review the magistrate judge's determination deferentially. Response at 9 (citing Illinois v. Gates,
The United States argues that the First Affidavit contains "numerous reasons for issuing a search warrant to T-Mobile for Defendant's records," noting that it describes "an adult male soliciting a nude photograph from a 15-year-old female through text message." Response at 10 (citing First Affidavit at 2). The United States also tries to justify Hartsock's use of the term "confidential informant," saying it was used "to reflect the parent's concerns with alerting Defendant, and presumably her daughter, to the fact of the tip," and is not "indicative of some nefarious intent." Response at 11-12. The United States notes that the First Affidavit states "that the reporting party observed the minor's cellular phone, but noted that the minor had complied with the requests for nude photographs." Response at 11 (citing First Affidavit at 2). According to the United States, the First Affidavit verifies the reporting party's identification of the requestor, and his location and telephone number, because of the information obtained via the Subpoena. See Response at 11. Streett, the United States argues, ignores this verification. See Response at 12. The United States also notes the First Affidavit's language "that the requested records could 'contain child pornography or the attempt to entice sex from a minor.' " Response at 11 (quoting First Affidavit at 3). As to Streett's contention that a nude photograph does not establish probable cause, the United States notes that "the state magistrate determined that the information regarding Defendant's attempted solicitation of nude photographs was sufficient to establish probable cause that the requested records would contain evidence of a criminal offense." Response at 12. The magistrate judge, the United States argues, "could reasonably infer that Detective Hartsock's description of Defendant 'soliciting' a 'nude photograph' from a minor was in violation of N.M.S.A. § 30-6A-3." Response at 12 (footnote omitted). The United States contends that Streett "would seem to require evidence of a completed offense in order to justify a request for a search warrant." Response at 13.
The United States then argues that, because Hartsock obtained additional information from the interview that Vig conducted with M.Y. and with her mother, Hartsock was better able "to verify and corroborate the initial information to NCMEC" in the Second Affidavit. Response at 13. According to the United States, this interview confirmed M.Y.'s mother was the CI and that the NCMEC Tip "did not stem from a 'family dispute over a boyfriend,' as suggested by Defendant." Response at 13 (quoting Supp. Motion at 13). The United States argues that M.Y.'s mother "is the 'unquestionably honest citizen' contemplated by the Supreme *1262Court in Gates ," because she made the Tip out of concern for her daughter, so " 'rigorous scrutiny' [of her basis of knowledge] is unnecessary." Response at 14 (quoting Illinois v. Gates,
The United States also argues that, if the First and Second Affidavits lack probable cause, then the good-faith exception applies and will allow admission of the evidence collected from the execution of the First and Second Warrants. See Response at 15. As to the Second Affidavit, the United States writes that "a natural reading of the affidavit provides sufficient indicators of probable cause that a crime occurred through the use of Defendant's cellular phone, which was registered to his home address in Bernalillo County." Motion at 19 (citing Illinois v. Gates,
The United States also argues that the evidence "would have been inevitably discovered by lawful means," making an important distinction with United States v. Gonzales, because no inevitable discovery argument was addressed in that case. Motion at 20 & n.6. Hartsock, the United States notes, "was aware of facts that sufficiently established probable case." Motion at 21 (heading capitalization omitted). The United States argues that the evidence "clearly demonstrates that Detective Hartsock knew that 4620 Plume Rd. NW, was, in fact, Defendant's residence." Motion at 22 (citing NCMEC Tip at 9; T-Mobile Email at 1). Hartsock's knowledge, the United States argues, shows "the inevitability of him rectifying any deficiency identified by the judge." Motion at 22 n.7.
*1263Thus, the United States asserts, Hartsock would have been able to obtain a valid warrant and "the evidence obtained during the search of Defendant's residence need not be suppressed because it would have been inevitably discovered." Motion at 22.
Finally, the United States argues that "the Court need not suppress the evidence found at Defendant's residence, because Detective Hartsock would have inevitably discovered the victims' identities due to law enforcement efforts already underway" -- namely, the First Warrant, issued to obtain Streett's telephone records from T-Mobile. Motion at 23. These telephone records contain the telephone numbers for Streett's other victims, so "Hartsock would have inevitably identified, located, and interviewed each of these victims." Motion at 23. The United States also notes how "Hartsock sought a separate search warrant for [M.Y.]'s phone records, which showed numerous contacts with Defendant's phone." Motion at 23. Further, the United States contends that, "even if the Court concludes that the very nature of the victims' identities is tainted, the independent source doctrine would remove any taint from the search," because "the same evidence would have been discovered through an independent source -- Defendant's phone records from T-Mobile, and the separate search warrant for [M.Y.]'s phone records." Motion at 23-24. The United States argues: "[T]he victims provided their electronic devices for forensic examination, which resulted in the location of evidence to independently support the charged offenses." Motion at 24.
4. The Reply.
Streett replies to reiterate his request for the "suppression of all evidence seized subsequent to and as a result of the" Subpoena, First Warrant, and Second Warrant. Reply to Government's Amended, Nunc Pro Tunc Response in Opposition to Defendant's Motion to Suppress All Evidence Seized and Any Fruits of the Poisonous Tree Obtained as a Result of the Unlawful Searches at 1-2, filed September 12, 2018 (Doc. 154)("Reply"). Streett contends that he has standing to challenge the Fourth and Fifth Warrants, as poisonous fruits of the search under the Second Warrant. See Reply at 2 & n.1. As to the Subpoena, Streett states that "it is impossible to determine whether Hartsock or the New Mexico Attorney General Special Agent Jon R. Whitsitt ('Whitsitt') presented evidence to a sitting grand jury with a prosecutor and an actual case to consider." Reply at 3. If the Subpoena issued outside this process, Streett argues, it "was obtained in violation of New Mexico law and due process." Reply at 3 (citing In re Chavez,
*1264United States v. Marshall,
Further, Streett argues that, for the good-faith exception to apply to a subpoena issued "unilaterally and not after a presentation of evidence," there must be "more than evidence that police acted consistently with a department's practice, even if that practice is approved by a supervisor." Reply at 5 (citing Tuskan v. Jackson Cty., No. 1:13cv356,
Streett then argues that the First Affidavit does not establish probable cause, because Hartsock did not corroborate the information in the NCMEC Tip, or "determine the credibility of either the confidential informant or the minor before seeking the phone warrant," despite the Tip "warn[ing] that '[a]dditional information required to determine possible risk.' " Reply at 7 (quoting NCMEC Tip at 1). Streett notes that Hartsock "provided no further case-specific probable cause basis" and "failed to date the affidavit." Reply at 7. According to Streett, the First Affidavit provides no "evidence of suspected criminal activity from a reliable or verified source," but relies only on information "nearly four-months-old" and "Hartsock's hunch that he might find something based on a tip he never checked out." Reply at 8. Streett also notes that the date on which the informant submitted the NCMEC Tip -- Halloween, "a well-know [sic] day for pranks and hoaxes" -- "should have given Hartsock pause and reason to follow up on the validity of the tip." Reply at 9. Streett argues that, for a magistrate judge to draw reasonable inferences from the First Affidavit, "there must be enough facts to establish the informant's veracity or sufficient independent corroboration to support *1265the facts." Reply at 9 (citing United States v. Danhauer,
Further, Streett argues that the First Affidavit lacks probable cause even if the NCMEC Tip is considered. See Reply at 10. He first notes that the First Affidavit does not mention a specific crime and "that the Government cannot decide what crime had been committed," because Hartsock alleges a violation of
Streett then argues that the "additional information Hartsock added for the house warrant ... highlights the glaring inadequacy and dearth of facts contained in the phone warrant." Reply at 14. According to Streett, the Second Affidavit "uses the same speculative language in support of a fishing expediting [sic]," and does not "allege a sufficient nexus between an alleged crime and the location of the evidence sought." Reply at 15. Streett argues that the United States does not demonstrate such a nexus in the Response, and "offers no reason for failing to establish any connection in the affidavit between any criminal activity and the 4620 address used for the house warrant," so the Second Warrant lacks probable cause. Reply at 15. Streett, thus, argues that, if the Court *1266concludes that the First Warrant is valid, the Court should suppress the evidence and fruits obtained from the search of the 4620 Plume residence. See Reply at 15.
As to the good-faith doctrine, Streett agrees with the United States' statement of the law, but argues that the good-faith doctrine is inapplicable to either warrant. See Reply at 15-16. Streett notes that the United States "makes no effort to establish a good faith exception for the phone warrant, apparently recognizing that exclusion cannot be remedied by good faith there." Reply at 16. Streett then distinguishes the cases on which the United States relies to establish good faith as to the Second Warrant by noting that the magistrate judge telephonically approved the Second Warrant and that Hartsock did not conduct much of an investigation. See Reply at 16-17. Streett alleges that the Second Affidavit "lacked two basic elements that were needed to establish probable cause," namely: (i) "facts constituting a crime"; and (ii) "a minimal nexus between a crime and the address." Reply at 17-18. Streett acknowledges that the Tenth Circuit applied the good-faith doctrine where a "natural reading of the affidavit indicates that the vehicle identified in the probable cause section is the vehicle involved in the criminal offense." Reply at 18 (internal quotation marks omitted)(quoting United States v. Beck,
Streett also argues that the inevitable-discovery doctrine is inapplicable, because the United States has not "prove[d] by a preponderance of the evidence that the same information 'inevitably would have been discovered by lawful means.' " Reply at 21 (quoting Nix v. Williams,
RELEVANT FOURTH AMENDMENT LAW
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. amend. IV. Fourth Amendment rights are enforceable against state actors through the Due Process Clause of the Fourteenth Amendment. See Mapp v. Ohio,
1. The Fourth Amendment "Standing" Analysis.
"The Tenth Circuit has referred to the test whether a particular search implicates a defendant's Fourth Amendment interests -- whether the search violates the defendant's reasonable privacy expectation -- as one of 'standing.' " Ysasi v. Brown,
In Rakas v. Illinois,
Had we accepted petitioners' request to allow persons other than those whose own Fourth Amendment rights were violated by a challenged search and seizure to suppress evidence obtained in the course of such police activity, it would be appropriate to retain Jones '[34 ] use of standing in Fourth Amendment analysis. Under petitioners' target theory, a court could determine that a defendant had standing to invoke the exclusionary rule without having to inquire into the substantive question of whether the challenged search or seizure violated the Fourth Amendment rights of that particular defendant. However, having rejected petitioners' target theory and reaffirmed the principle that the "rights assured by the Fourth Amendment are personal rights, [which] ... may be enforced by exclusion of evidence only at the instance of one whose own protection was infringed by the search and seizure," Simmons v. United States , 390 U.S. [377, 389,88 S.Ct. 967 ,19 L.Ed.2d 1247 (1968) ], the question necessarily arises whether it serves any useful analytical purpose to consider this principle a matter of standing, distinct from the merits of a defendant's Fourth Amendment claim. We can think of no decided cases of this Court that would have come out differently had we concluded, as we do now, that the type of standing requirement discussed in Jones and reaffirmed today is more properly subsumed under substantive Fourth Amendment doctrine. Rigorous application of the principle that the rights secured by this Amendment are personal, in place of a notion of "standing," will produce no additional situations in which evidence must be excluded. The inquiry under either approach is the same. But we think the better analysis forthrightly focuses on the extent of a particular defendant's rights under the Fourth Amendment, rather than on any theoretically separate, but invariably intertwined concept of standing. The Court in Jones also may have been aware that there was a certain artificiality in analyzing this question in terms of standing because in at least three separate places in its opinion the Court placed that term within quotation marks.
Rakas v. Illinois,
[N]othing we say here casts the least doubt on cases which recognize ... as a *1270general proposition, the issue of standing [generally.] ... But this Court's long history of insistence that Fourth Amendment rights are personal in nature has already answered many of these traditional standing inquiries, and we think that definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing.
The Minnesota courts analyzed whether respondents had a legitimate expectation of privacy under the rubric of "standing" doctrine, an analysis that this Court expressly rejected 20 years ago in Rakas .... Central to our analysis [in Rakas v. Illinois ] was the idea that in determining whether a defendant is able to show the violation of his (and not someone else's) Fourth Amendment rights, the "definition of those rights is more properly placed within the purview of substantive Fourth Amendment law than within that of standing." [ Rakas v. Illinois,439 U.S. at 140 ,99 S.Ct. 421 .]
Minnesota v. Carter,
2. Whether a Fourth Amendment Search Occurred.
A court cannot suppress evidence unless the search was a Fourth Amendment search. See Mapp v. Ohio,
a. The Trespass-Based Analysis.
In Florida v. Jardines,
*1271United States v. Jones,
The Fourth Amendment "indicates with some precision the places and things encompassed by its protections": persons, houses, papers, and effects. The Fourth Amendment does not, therefore, prevent all investigations conducted on private property; for example, an officer may (subject to Katz ) gather information in what we have called "open fields" -- even if those fields are privately owned -- because such fields are not enumerated in the Amendment's text.
But when it comes to the Fourth Amendment, the home is first among equals.
Florida v. Jardines,
In United States v. Alabi,
When a law enforcement officer sees only the exterior of a credit or debit card, however, given that the financial institution which issues the card places the same information on the magnetic strip as embossed on the card's exterior, the only instances in which the information inside the credit or debit card is not information already seen by and known to the officer is when the information has been reencoded for unlawful purposes. In these instances, not only does the person asserting his or her Fourth Amendment right not own or otherwise lawfully possess the information contained inside the card on the magnetic strip, but the person has stolen the information with the intent to use that information to steal further from the person whose information is on the magnetic strip. Protecting this area from law enforcement search and seizure would thus not further the Fourth Amendment's express purpose of protecting "[t]he right of the people to be secure in their persons, houses, papers, and effects...." U.S. Const. amend IV.
b. Katz v. United States ' Reasonable-Expectation-of-Privacy Test Remains Good Law.
The Court has noted that, in light of the Supreme Court's recent decisions in Florida v. Jardines and United States v. Jones, both of which the Honorable Antonin Scalia, former Associate Justice for the Supreme Court of the United States, wrote for the majority, and both of which analyze whether government conduct constituted a Fourth Amendment search using the trespass-based approach, "the question arises whether the Katz v. United States reasonable-expectation-of-privacy test is still good law." United States v. Alabi,
In my view, the only thing the past three decades have established about the Katz test (which has come to mean the test enunciated by Justice Harlan's separate concurrence in Katz ) is that, unsurprisingly, those "actual (subjective) expectation[s] of privacy" "that society is prepared to recognize as 'reasonable,' " bear an uncanny resemblance to those expectations of privacy that this Court considers reasonable. When that self-indulgent test is employed (as the dissent *1273would employ it here) to determine whether a "search or seizure" within the meaning of the Constitution has occurred (as opposed to whether that "search or seizure" is an "unreasonable" one), it has no plausible foundation in the text of the Fourth Amendment. That provision did not guarantee some generalized "right of privacy" and leave it to this Court to determine which particular manifestations of the value of privacy "society is prepared to recognize as 'reasonable.' " Rather, it enumerated ("persons, houses, papers, and effects") the objects of privacy protection to which the Constitution would extend, leaving further expansion to the good judgment, not of this Court, but of the people through their representatives in the legislature.
Minnesota v. Carter,
In June 2013, Justice Scalia dissented from the Supreme Court's decision in Maryland v. King,
We are told that the "privacy-related concerns" in the search of a home "are weighty enough that the search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee." But why are the "privacy-related concerns" not also "weighty" when an intrusion into the body is at stake? (The Fourth Amendment lists "persons" first among the entities protected against unreasonable searches and seizures.).
Maryland v. King,
Today's judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking *1274of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the "identity" of the flying public), applies for a driver's license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.
Maryland v. King,
The Supreme Court's recent decision in Carpenter v. United States, --- U.S. ----,
c. Katz v. United States ' Reasonable-Expectations-of-Privacy Analysis.
"Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted." Rakas v. Illinois,
"Official conduct that does not 'compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." Illinois v. Caballes,
In assessing when a search is not a search, we have applied somewhat in reverse the principle first enunciated in Katz v. United States . Katz involved eavesdropping by means of an electronic listening device placed on the outside of a telephone booth -- a location not within the catalog ("persons, houses, papers, and effects") that the Fourth Amendment protects against unreasonable searches. We held that the Fourth Amendment nonetheless protected Katz from the warrantless eavesdropping because he "justifiably relied" upon the privacy of the telephone booth. As Justice Harlan's oft-quoted concurrence described it, a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.
Kyllo v. United States,
A "reasonable expectation of privacy" is "said to be an expectation 'that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.' " United States v. Jones,
i. Subjective Expectation of Privacy.
A defendant maintains a subjective expectation of privacy when he or she "has shown that 'he sought to preserve something as private.' " Ysasi v. Brown,
This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.
United States v. Miller,
The Supreme Court has recognized, however, that subjective expectations of privacy do not always coincide with the interests that the Fourth Amendment is universally thought to protect. In Smith v. Maryland, for instance, the Supreme Court identified situations in which it would not follow the subjective approach:
Situations can be imagined, of course, in which Katz ' two-pronged inquiry would provide an inadequate index of Fourth Amendment protection. For example, if the Government were suddenly to announce on nationwide television that all homes henceforth would be subject to warrantless entry, individuals thereafter might not in fact entertain any actual expectation or [sic] privacy regarding their homes, papers, and effects. Similarly, if a refugee from a totalitarian country, unaware of this Nation's traditions, erroneously assumed that police were continuously monitoring his telephone conversations, a subjective expectation of privacy regarding the contents of his calls might be lacking as well. In such circumstances, where an individual's subjective expectations had been "conditioned" by influences alien to well-recognized Fourth Amendment freedoms, those subjective expectations obviously could play no meaningful role in ascertaining what the scope of Fourth Amendment protection was. In determining whether a "legitimate expectation of privacy" existed in such cases, a normative inquiry would be proper.
Smith v. Maryland,
[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the "tradeoff" of privacy for convenience "worthwhile," or come to accept this "diminution of privacy" as "inevitable," and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.
Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user's claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in [United States v. ] Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.
Carpenter v. United States, 138 S.Ct. at 2217. The Court notes, however, that, regardless what the Supreme Court decides to do with social media on the internet, only the most ignorant or gullible think that what they post on the internet is or remains private. See United States v. Meregildo,
ii. Privacy Expectation That Society Is Prepared to Recognize as Reasonable.
Under the second step of Katz v. United States' reasonable-expectation-of-privacy approach, courts must determine "whether society is prepared to recognize that [subjective privacy] expectation as objectively reasonable." United States v. Ruiz,
No single factor determines whether an individual legitimately may claim under the Fourth Amendment that a place should be free of government intrusion not authorized by warrant. In assessing the degree to which a search infringes upon individual privacy, the Court has given weight to such factors as the intention of the Framers of the Fourth Amendment, the uses to which the individual has put a location, and our societal understanding that certain areas deserve the most scrupulous protection from government invasion.
Oliver v. United States, 466 U.S. at 177-78,
The Supreme Court has held that "[o]fficial conduct that does not 'compromise any legitimate interest in privacy' is not a search subject to the Fourth Amendment." Illinois v. Caballes,
We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. A "canine sniff" by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.
In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here -- exposure of respondent's luggage, which was located in a public place, to a trained canine -- did not constitute a "search" within the meaning of the Fourth Amendment.
United States v. Place,
In United States v. Jacobsen, the Supreme Court extended this holding to the chemical field test of a white powdery substance to reveal that the substance was cocaine. See 466 U.S. at 122-24,
The removal of the plastic bags from the tube and the agent's visual inspection of their contents enabled the agent to learn nothing that had not previously been learned during the private search. It infringed no legitimate expectation of privacy and hence was not a "search" within the meaning of the Fourth Amendment.
United States v. Jacobsen,
The field test at issue could disclose only one fact previously unknown to the agent -- whether or not a suspicious white powder was cocaine. It could tell him nothing more, not even whether the substance was sugar or talcum powder. We must first determine whether this can be considered a "search" subject to the Fourth Amendment -- did it infringe an expectation of privacy that society is prepared to consider reasonable?
....
A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. This conclusion is not dependent on the result of any particular test. It is probably safe to assume that virtually all of the tests conducted under circumstances comparable to those disclosed by this record would result in a positive finding; in such cases, no legitimate interest has been compromised. But even if the results are negative -- merely disclosing that the substance is something other than cocaine -- such a result reveals nothing of special interest. Congress has decided -- and there is no question about its power to do so -- to treat the interest in "privately" possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably "private" fact, compromises no legitimate privacy interest.
....
Here, as in Place , the likelihood that official conduct of the kind disclosed by the record will actually compromise any legitimate interest in privacy seems much too remote to characterize the testing as a search subject to the Fourth Amendment.
United States v. Jacobsen,
Most recently, where a "dog sniff was performed on the exterior of respondent's car while he was lawfully seized for a traffic violation," the Supreme Court, again relying on United States v. Place and also on United States v. Jacobsen, held that "[a]ny intrusion on respondent's privacy expectations does not rise to the level of a constitutionally cognizable infringement." Illinois v. Caballes,
*1281
This conclusion is entirely consistent with our recent decision that the use of a thermal-imaging device to detect the growth of marijuana in a home constituted an unlawful search. Kyllo v. United States ,533 U.S. 27 [121 S.Ct. 2038 ,150 L.Ed.2d 94 ] ... (2001). Critical to that decision was the fact that the device was capable of detecting lawful activity -- in that case, intimate details in a home, such as "at what hour each night the lady of the house takes her daily sauna and bath."Id. , at 38 [121 S.Ct. 2038 ].... The legitimate expectation that information about perfectly lawful activity will remain private is categorically distinguishable from respondent's hopes or expectations concerning the nondetection of contraband in the trunk of his car. A dog sniff conducted during a concededly lawful traffic stop that reveals no information other than the location of a substance that no individual has any right to possess does not violate the Fourth Amendment.
Illinois v. Caballes,
In United States v. Alabi, the defendants possessed thirty-one credit and debit cards, "many of them in their own names, several of which had information on the magnetic strips that related to persons other than the Defendants."
3. Search Warrants Require Probable Cause.
"The Supreme Court requires that a magistrate judge be provided information sufficient to determine the existence of probable cause before he or she issues a warrant." United States v. Romero,
is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
United States v. Reed,
"A reviewing court should accord great deference to a magistrate's determination of probable cause...." United States v. Reed,
"The deference accorded a magistrate judge's probable cause determination, however, is not boundless." United States v. Alabi,
*1283United States v. Sedillo,
RELEVANT LAW ON THE EXCLUSIONARY RULE
When evidence is obtained in violation of a person's rights under the Fourth or Fifth Amendments, the government will generally be prohibited from using that evidence in a criminal prosecution against that person. See Sanchez-Llamas v. Oregon,
1. The Good-Faith Exception.
Recognizing that the "sole purpose" of the exclusionary rule "is to deter future Fourth Amendment violations," the Supreme Court has held that evidence will not be excluded where the officer who obtained the evidence -- through an unlawful search or seizure -- acted in good faith. Davis v. United States,
a. Warrants Based on Illegally Obtained Information.
"When a search is conducted pursuant to a warrant that is based on illegally obtained information, a court is not to blindly apply the good-faith exception." United States v. Alabi,
When a warrant is tainted by some unconstitutionally obtained information, we nonetheless uphold the warrant if there was probable cause absent that information. "An affidavit containing erroneous or unconstitutionally obtained information invalidates a warrant if that information was critical to establishing probable cause. If, however, the affidavit contained sufficient accurate or untainted evidence, the warrant is nevertheless valid." United States v. Snow ,919 F.2d 1458 , 1460 (10th Cir. 1990).
United States v. Sims,
b. United States v. Leon.
In United States v. Leon, the Supreme Court faced the question whether to apply the good-faith exception when a police officer mistakenly thought probable cause supported a warrant from which he obtained evidence. See 468 U.S. at 905,
"The Tenth Circuit therefore now applies the rule that, in cases where the police obtained a warrant but the affidavit supporting the warrant does not establish probable cause, suppression of the evidence found is generally not warranted, so long as the officers relied in good faith on the warrant." United States v. Martinez,
"[T]he suppression of evidence obtained pursuant to a warrant should be ordered ... only in those unusual cases in which exclusion will further the purposes of the exclusionary rule," [United States v. Leon, 468 U.S.] at 918,104 S.Ct. 3405 "Where an officer acting with objective good faith obtains a search warrant from a detached and neutral magistrate and the executing officers act within its scope, there is nothing to deter." United States v. Nolan ,199 F.3d 1180 , 1184 (10th Cir. 1999).
United States v. Tuter,
First, evidence should be suppressed if the issuing magistrate was misled by an affidavit containing false information or information that the affiant would have known was false if not for his "reckless disregard for the truth." Second, the exception does not apply when the "issuing magistrate wholly abandon[s her] judicial role." Third, the good-faith exception does not apply when the affidavit in support of the warrant is "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Fourth, the exception does not apply when a warrant is so facially deficient that the executing officer could not reasonably believe it was valid.
United States v. Danhauer,
c. Herring v. United States.
In Herring v. United States, officers arrested Herring pursuant to an arrest warrant listed in the Dale County, Alabama, warrant database. See
*1286The Supreme Court affirmed the Eleventh Circuit's affirmation of the district court's denial of Herring's motion to suppress, based primarily on the good-faith exception to the exclusionary rule. See
d. Davis v. United States.
In Davis v. United States, the Supreme Court confronted the question whether to apply the exclusionary rule when police conduct a search in objectively reasonable reliance on binding judicial precedent. See
The Supreme Court determined that the "acknowledged absence of police culpability dooms [the defendant's] claim." Davis v. United States,
2. The Inevitable-Discovery Exception.
Under the inevitable-discovery exception, "illegally obtained evidence may be admitted if it 'ultimately or inevitably would have been discovered by lawful means.' " United States v. Christy,
In Cunningham and Souza we applied inevitable discovery to situations like the one here -- where there was "one line of investigation that would have led inevitably to the obtaining of a search warrant by independent lawful means but was halted prematurely by a search subsequently contended to be illegal." Cunningham ,413 F.3d at 1204 n.1. In Cunningham , police searched the defendant's home after getting his consent.Id. at 1202 . The defendant later contested the search, claiming his consent was coerced.Id. We held that even if the search was illegal, the evidence was admissible because the officers "would have obtained a search warrant" if the search had not occurred.Id. at 1205 . In Souza , police illegally opened a UPS package that contained drugs.223 F.3d at 1200, 1202 . We held the evidence admissible under inevitable discovery because the officers "would have obtained a warrant" had the illegal search not occurred.Id. at 1206 . Thus, our case law does not require a second investigation when the first (and only) investigation would inevitably have discovered the contested evidence by lawful means.
*1288....
Thus, lest there be any doubt, we reaffirm the notion that inevitable discovery requires only that the lawful means of discovery be "independent of the constitutional violation," [United States v. ] Larsen , 127 F.3d [984,] 987 [ (10th Cir. 1997) ], and conclude that a second investigation is not required.
United States v. Christy,
In United States v. Souza, the Tenth Circuit "set forth the standard for considering whether the inevitable discovery doctrine applies to a warrantless search," United States v. Cunningham,
1) "the extent to which the warrant process has been completed at the time those seeking the warrant learn of the search"; 2) the strength of the showing of probable cause at the time the search occurred; 3) whether a warrant ultimately was obtained, albeit after the illegal entry; and 4) "evidence that law enforcement agents 'jumped the gun' because they lacked confidence in their showing of probable cause and wanted to force the issue by creating a fait accompli."
United States v. Souza,
[T]he prerequisite to a consideration of the inevitable discovery exception in these cases, steps taken to obtain a warrant prior to the unlawful search, is present in this case. Special Agent Rowden took steps to alert his office that he would be coming back to prepare a warrant for the package and made sure that the affidavit form would be ready when he got back to his office. Also, the package was specifically placed on the floor behind Detective Sloan for the purpose of obtaining a warrant.
United States v. Souza,
[A]t the time the illegal search occurred, probable cause to believe the package contained contraband was extremely strong. The package itself contained several suspicious characteristics, including all of the openings on the box being heavily taped, the box having been sent through third party shipping, the sender having only used a first name, and the box being solid so that no side of it could be compressed. Moreover, the box was alerted to by a certified narcotics dog, which is itself sufficient to create probable cause.
United States v. Souza,
very reluctant to apply the inevitable discovery exception in situations where the government fails to obtain a search warrant and no exception to the warrant requirement exists, in this case the inevitability of discovery of the evidence convince[d] [it] that [the case before it was] one of those occasions when the doctrine should apply.
United States v. Souza,
In United States v. Owens, the Tenth Circuit emphasized the "danger of admitting unlawfully obtained evidence on the strength of some judge's speculation that it would have been discovered legally anyway."
Several factors suggest that motel employees performing routine cleaning may not have inevitably discovered the cocaine. First, if the [motel]'s staff had cleared [the defendant's] room, they would not necessarily have opened and searched all his luggage and closed containers. In fact, such an intrusion would have been a significant invasion of his privacy. Second, even if the room had been cleared and the white powder inside the closed bag had been discovered by the motel staff, the lack of any police involvement in routine room cleanings suggests that police discovery of the evidence would not have been inevitable. The evidence certainly does not demonstrate that the [motel]'s staff would necessarily have recognized the powder as cocaine or have called the police if they had so recognized it. Finally, absent the unlawful search, [the defendant] might have posted bail on the charge of receiving stolen property and could have returned to his motel room before either the cleaning staff or the police discovered the contraband. Alternatively, a friend could have returned to claim the closed bag.
In United States v. Cunningham, the Tenth Circuit "appl[ied] the inevitable discovery doctrine ... because [it was] convinced that without Mr. Cunningham's disputed consent, the warrant to search his house would have been issued and the incriminating evidence would have been discovered."
Here, the officers took substantial steps to obtain a warrant before the contested search occurred. The record demonstrates *1290that they had focused their investigation on 1175 and 1179 East 76th Terrace, and had drafted an affidavit to support a search warrant for one of these homes. As a result of their conversation with the AUSA, the officers decided that further surveillance on the two homes was necessary before they specifically selected one to search, and they proceeded to conduct that surveillance immediately. The officers' actions clearly indicate they took steps to obtain a search warrant and that they intended to obtain the warrant for either 1175 or 1179 East 76th Terrace as soon as possible.
United States v. Cunningham,
The officers also possessed strong probable cause for their search of 1179 East 76th Terrace by the time Mr. Cunningham arrived at the home. Prior to that time, they had acquired background information about the alleged check-writing ring, narrowed their investigation to one residential block, and focused on the two homes sharing a common driveway. The officers' surveillance had uncovered the following additional information: a red car containing two individuals identified earlier in the investigation arrived, parked briefly, and then pulled out from behind 1179 East 76th Terrace; a black pickup truck previously observed in the investigation was stopped containing Mr. Cunningham, who said that he lived at 1179 East 76th Terrace; the residents of 1175 East 76th Terrace told officers that the home next door had been receiving all of the traffic that evening, and the officers ruled out 1175 East 76th Terrace as the location visited by the alleged check supplier; and a gray Blazer previously observed in the investigation was seen parked by 1179 East 76th Terrace. The government thus had sufficient probable cause for a search of 1179 East 76th Terrace at the time of Mr. Cunningham's disputed consent to search his home.
United States v. Cunningham,
There is also no evidence the officers "jumped the gun" due to a lack of confidence about probable cause and out of a desire to force the issue. Instead, the record indicates that the search occurred at the time it did because of the coincidental arrival of Mrs. Cunningham. Her presence on the scene led to a series of events that culminated in her son's release from jail, his return home, and his consent to search. As a result, we are satisfied the government has demonstrated that, as in Souza , but for Mrs. Cunningham's arrival at 1179 East 76th Terrace on the evening of the search, the officers would have obtained a search warrant and the evidence in question would have been found.
United States v. Cunningham,
*1291In United States v. Christy, the Court applied the four United States v. Souza factors and determined that the inevitable-discovery exception applied. See
The Court finds that Carvo had strong probable cause that Christy committed crimes. At the time of the search, Carvo believed he had probable cause for the California crime of unlawful sexual intercourse, because Christy and K.Y. exchanged naked pictures through electronic mail transmissions over the internet and then arranged a meeting in the middle of the night for K.Y. to run away with Christy.
....
... Because Carvo knew that K.Y. and Christy were exchanging naked pictures, "the belief that there was a sexual relationship or sexual interest between the two was reasonable." These circumstances are sufficient to form "a reasonable ground for belief of [Christy's] guilt," for the California crime of unlawful sexual intercourse.
Carvo also had strong probable cause for the federal crime of coercion or enticement. Carvo believed that he had probable cause for the federal crime of enticement or coercion, because of Christy's and K.Y.'s communications through the internet and electronic mail transmissions, because Christy sent K.Y. naked pictures of himself and solicited pictures of K.Y., which showed her breasts, and because cellular telephone evidence shows that Christy traveled across state lines to bring K.Y. to New Mexico.
....
... Because Carvo knew that Christy and K.Y. communicated through electronic mail transmissions, that Christy sent K.Y. naked pictures of himself and solicited pictures of K.Y., because evidence showed that Christy traveled across state lines with K.Y., and because Carvo had strong probable cause that Christy committed the California crime of unlawful sexual intercourse, Carvo had "a reasonable ground for belief of [Christy's] guilt," for the federal crime of coercion or enticement. Because Carvo had strong probable cause for the California crime of unlawful sexual intercourse and for the federal crime of enticement or coercion, this factor weighs in favor of application of the inevitable discovery doctrine.
The deputies "ultimately did obtain a warrant, albeit based in part on information retrieved" from Littlefield's actions of peering through a crack in the blinds in Christy's window, and from the deputies' entry into Christy's residence and subsequent interview of Christy. United States v. Cunningham ,413 F.3d at 1205 .
*1292Although portions of the affidavits supporting the warrants were based on information the Court has found illegally obtained, the affidavits also included information from the California investigation. Although the Tenth Circuit appears to rely on illegally obtained information in its inevitable discovery analysis, the Court does not believe that it can do so. Carvo had strong probable cause that Christy committed California and federal crimes, and Carvo's probable cause was based on his investigation, and not on any information he learned from the [the Bernalillo County Sheriff's Office ("BCSO") ] or from the Albuquerque FBI. Because Carvo had strong probable cause for a California crime and a federal crime, based on information that he learned in his investigation, and not based on information he learned from the BCSO or from the Albuquerque FBI, Carvo would have obtained search warrants that were not based on illegally obtained information. Based upon Carvo's belief that he had probable cause for both violations of California state law and violations of federal law, he would "have asked [BCSO] and/or -- either one -- the FBI to obtain a search warrant for [Christy's] Albuquerque residence, vehicle, computers, cell phones, things of that nature." If the BCSO or Albuquerque FBI were not able to obtain a search warrant for these locations, Carvo would have written a federal search warrant himself and come to the District of New Mexico to seek the warrant with himself as the affiant. Carvo is cross designated to acquire both state and federal search warrants. This factor thus weighs in favor of application of the inevitable-discovery doctrine.
There is "no evidence that the officers 'jumped the gun' due to a lack of confidence about probable cause and out of a desire to force the issue." United States v. Cunningham ,413 F.3d at 1205 . The record indicates that the search occurred when it did because the deputies believed that they had exigent circumstances to enter Christy's residence. This factor thus weighs in favor of application of the inevitable discovery doctrine.
On appeal, the Tenth Circuit affirmed the Court's decision. See
The district court found that Officer Carvo knew that K.Y. was a minor, there was a large age difference between her and Mr. Christy, the two exchanged sexually explicit pictures, and *1293that Mr. Christy traveled across state lines with K.Y. Given those factual findings, it is a reasonable inference that a sexual relationship existed between Mr. Christy and K.Y. Officer Carvo also knew that K.Y. was potentially suicidal, had left her depression medication behind, and ran away from home with Mr. Christy. Based on that knowledge, Officer Carvo's belief that K.Y. was at risk for sexual victimization and assault was reasonable. Thus, Officer Carvo had reasonable grounds to believe that Mr. Christy engaged in sexual activity in violation of California law and coerced or enticed K.Y. to travel across state lines to engage in criminal sexual activity in violation of federal law. The district court was correct in weighing this factor in favor of applying inevitable discovery.
United States v. Christy,
Mr. Christy argues that the deputies "jumped the gun" by forcing entry into his home due to their lack of confidence about probable cause. Yet as the district court found, no evidence supports the theory that the deputies forced entry for that reason. Instead, the deputies forced entry because they believed K.Y. was in danger. Mr. Christy argues that the search was not in fact justified by exigent circumstances and points to the district court's conclusion that it was not. But that is beside the point. The record fully supports the reasonableness of the deputies' assessment of danger. The district court was correct in weighing this factor in favor of the government.
United States v. Christy,
3. The Independent-Source Exception.
If the information found during an "unconstitutional search[ ] ... [is] used to obtain [a] search warrant," then "evidence seized during the later search conducted pursuant to [the] warrant would be inadmissible as fruit of the poisonous tree." United States v. Hatfield,
In Segura v. United States, police unlawfully entered an apartment and spotted drug-trafficking paraphernalia in plain view. See 468 U.S. at 801,
The Supreme Court held that, because the warrant was based on information obtained before the search, the evidence seized was from an independent source and was not fruit of the poisonous tree. See 468 U.S. at 813-14,
Segura v. United States was limited to situations where the challenged evidence was not in plain view during an unlawful search. Murray v. United States addressed this question that Segura v. United States left open: whether the independent-source doctrine was available for evidence observed in plain view during an unlawful search. See
Murray v. United States dealt with a situation in which federal law enforcement obtained a warrant for a warehouse after illegally forcing entry to that warehouse. Based upon tips from informants, federal agents began surveillance of several defendants. See
The Supreme Court stated that "reseizure of tangible evidence already seized" could be allowed in the right circumstances.
"A source is genuinely independent if the government can show that the evidence was obtained by 'means sufficiently distinguishable to be purged of the primary taint.' " United States v. Forbes,
In support of this principle, the Tenth Circuit has approvingly discussed United States v. Moore,
LAW REGARDING PROCEDURAL DUE PROCESS CLAIMS
The Fourteenth Amendment states: "No State shall ... deprive any *1296person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1.
The Due Process Clause encompasses two distinct forms of protection: (i) procedural due process, which requires a state to employ fair procedures when depriving a person of a protected interest; and (ii) substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons.
Reid v. Pautler,
"[T]o determine whether due process requirements apply in the first place, we must look not to the 'weight' but to the nature of the interest at stake." Bd. of Regents of State Colls. v. Roth,
"Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized ... as essential to the orderly pursuit of happiness of free men." In a Constitution for a free people, there can be no doubt that the meaning of 'liberty' must be broad indeed.
Bd. of Regents of State Colls. v. Roth,
"The Fourteenth Amendment's procedural protection of property is a safeguard of the security of interests that a person has already acquired in specific benefits." Bd. of Regents of State Colls. v. Roth,
Thus, the Court has held that a person receiving welfare benefits under statutory and administrative standards defining eligibility for them has an interest in continued receipt of those benefits that is safeguarded by procedural due process. Similarly, in the area of employment, the Court has held that a public college professor dismissed from an office held under tenure provisions, and college professors and staff members dismissed during the terms of their contracts, have interests in continued employment that are safeguarded by due process.
Bd. of Regents of State Colls. v. Roth,
Based upon these decisions, "[t]o have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Bd. of Regents of State Colls. v. Roth,
Property interests, of course, are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law -- rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.
Bd. of Regents of State Colls. v. Roth,
"[O]nce it is determined that the Due Process Clause applies, 'the question remains what process is due.' " Cleveland Bd. of Educ. v. Loudermill,
*1298Cleveland Bd. of Educ. v. Loudermill,
"the root requirement" of the Due Process Clause [is] "that an individual be given an opportunity for a hearing before he is deprived of any significant property interest." Boddie v. Connecticut ,401 U.S. 371 , 379 [91 S.Ct. 780 ,28 L.Ed.2d 113 ] ... (1971) (emphasis in original).... This principle requires "some kind of a hearing" prior to the discharge of an employee who has a constitutionally protected property interest in his employment. Board of Regents v. Roth , 408 U.S. at 569-570 [92 S.Ct. 2701 ]....
....
... [T]he pretermination "hearing," though necessary, need not be elaborate. We have pointed out that "[t]he formality and procedural requisites for the hearing can vary, depending upon the importance of the interests involved and the nature of the subsequent proceedings." Boddie v. Connecticut , 401 U.S. at 378 [91 S.Ct. 780 ].... In general, "something less" than a full evidentiary hearing is sufficient prior to adverse administrative action. Mathews v. Eldridge , 424 U.S. at 343 [96 S.Ct. 893 ]....
Cleveland Bd. of Educ. v. Loudermill,
The United States Court of Appeals for the Second Circuit has stated:
The Supreme Court ... explained that procedural due process is a flexible standard that can vary in different circumstances depending on "the private interest that will be affected by the official action" as compared to "the Government's asserted interest, 'including the function involved' and the burdens the Government would face in providing greater process." Hamdi v. Rumsfeld ,542 U.S. 507 , [529],124 S.Ct. 2633 ,159 L.Ed.2d 578 (2004) (quoting Mathews v. Eldridge,424 U.S. at 335 ,96 S.Ct. 893 ). A court must carefully balance these competing concerns, analyzing " 'the risk of an erroneous deprivation' of the private interest if the process were reduced and the 'probable value, if any, of additional or substitute safeguards.' "Id. (quoting Mathews v. Eldridge,424 U.S. at 335 ,96 S.Ct. 893 ).
United States v. Abuhamra,
The Court has previously considered procedural due process violations several times. For example, in A.M. through Youngers v. New Mexico Department of Health, No. CIV 13-0692,
LAW REGARDING SUBSTANTIVE DUE PROCESS CLAIMS
The Due Process Clause of the Fourteenth Amendment provides that "no State shall ... deprive any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV, § 1. In general, state actors may be held liable under § 1983 only for their own affirmative acts that violate a plaintiff's due process rights and not for third parties' acts. See Robbins v. Oklahoma,
1. Exceptions to the General Rule.
There are, however, two exceptions to the general rule. The first -- the special-relationship exception -- arises when the state has a custodial relationship with the victim, which triggers an affirmative duty to provide protection to that individual. See Christiansen v. City of Tulsa,
It is true, of course, that "state actors are generally only liable under the Due Process Clause for their own acts and not private violence." There are, however, two exceptions to that rule. First, the state may be subject to constitutional liability if it does not perform a duty to provide protection to an individual with whom the state has a special relationship because it has assumed control over that individual, such as in a prison. Second, the state may be constitutionally liable if it creates a danger that results in harm to an individual, even if that harm is ultimately inflicted by a private party. The "shocks the conscience" standard applies to both types of suits.
Radecki v. Barela,
2. The Special-Relationship Exception.
The first exception to the general principle that a state's negligent failure to protect an individual cannot trigger liability under the Due Process Clause is the special-relationship doctrine. A plaintiff must show that they were involuntarily committed to state custody to establish a duty to protect under the special-relationship doctrine. See Liebson v. N.M. Corr. Dep't,
3. The Danger-Creation Exception.
The Due Process Clause protects against "deliberately wrongful government decisions rather than merely negligent government conduct." Uhlrig v. Harder,
(i) the state and individual actors must have created the danger or increased plaintiff's vulnerability to the danger in some way; (ii) the plaintiff must be a member of a limited and specifically definable group; (iii) the defendant's conduct *1301must put the plaintiff at substantial risk of serious, immediate, and proximate harm; (iv) the risk must be obvious and known; (v) and the defendant must have acted recklessly in conscious disregard of that risk.
Peña v. Greffet,
In determining whether the danger-creation exception applies, the Tenth Circuit has focused on the deliberateness of the conduct in relation to the caused harm. See Christiansen v. City of Tulsa,
4. What Shocks the Conscience.
A government actor's official conduct intended to injure in a way that cannot reasonably be justified by any government interest most likely shocks the conscience. See Cty. of Sacramento v. Lewis,
Establishing these limits advances "three basic principles highlighted by the Supreme Court in evaluating substantive due process claims: (1) the need for restraint in defining their scope; (2) the concern that § 1983 not replace state tort law; and (3) the need for deference to local policymaking bodies in making decisions impacting upon public safety."
Camuglia v. City of Albuquerque,
*1302In Martinez v. Uphoff,
In Schaefer v. Las Cruces Public School District,
Assuming the absolute worst from the Schaefers' alleged facts, the Defendants were aware of three instances of an unknown eighth-grade student racking various sixth-grade students within the span of a month, and failed to implement policies to improve hallway monitoring and stop this conduct from occurring in time to prevent AS from falling victim to the same fate. Further, the Defendants indicated to the sixth graders that it had policies in place to punish individuals that assaulted other students but did not, in fact, have such policies.
While such behavior may be worthy of remedy under tort law, and perhaps worthy of punishment in the form of punitive damages, the Court's conscience is not shocked.
... Any number of actions by the Defendants might have remedied the problem, but the Court's conscience is not shocked by the Defendants' failure to consider or implement such a policy. Even if the Defendants knew that students frequently -- more than three times per month -- attacked other students in the halls and declined to implement safety measures to minimize that conduct, the Court is not convinced that it would rise to the level of shocking the conscience.
LAW REGARDING DIVERSITY JURISDICTION AND ERIE
Under Erie Railroad Co. v. Tompkins,
ANALYSIS
The Court concludes that neither the Subpoena nor the First Warrant are searches under the Fourth Amendment, because of the application of the third-party doctrine. The Court also concludes that the Subpoena is valid under New *1308Mexico law and does not violate Streett's due process rights, and the Court will not suppress the subscriber information evidence. Further, even if the First Warrant is a search under the Fourth Amendment mandating a valid warrant, the Court concludes that probable cause supports the First Warrant -- and, if probable cause is lacking, that the good-faith doctrine applies -- so the Court will not suppress the telephone records evidence. Finally, the Court concludes that probable cause does not support the Second Warrant to search Streett's home, but the good-faith and inevitable-discovery doctrines apply, so the Court will not suppress the resulting evidence and there are no fruit-of-the-poisonous-tree problems with the Third or Fourth Warrants. Accordingly, the Court will deny the Motion and the Supp. Motion.
I. THE SUBPOENA IS VALID UNDER THE FOURTH AMENDMENT AND UNDER NEW MEXICO LAW, AND DOES NOT VIOLATE STREETT'S DUE PROCESS RIGHTS.
In the Supp. Motion, Streett proffers two reasons why the Subpoena is invalid: (i) it is a search under the Fourth Amendment, requiring a warrant that probable cause supports; and (ii) it is invalid under New Mexico law. See Supp. Motion at 7, 9. In his Reply, Streett contends that, if issued in violation of New Mexico law, the Subpoena was obtained in violation of due process. See Reply at 3. The Reply admits that the mistake of Streett's counsel "regarding the source of the more than two thousand pages of phone records was a large basis of the argument under Carpenter for suppression of the subpoena and its fruits," but Streett maintains the Subpoena's unlawfulness, because "more than basic identifying information was provided by T-Mobile in response to that initial subpoena." Reply at 4 n.2 (citing T-Mobile Email at 1). The Court thus examines the Subpoena under the Fourth Amendment and New Mexico law, and concludes that the Subpoena is valid under both. The Court therefore will not suppress evidence gathered as a result of the Subpoena.
A. THE SUBPOENA DOES NOT CONSTITUTE A SEARCH UNDER THE FOURTH AMENDMENT.
The case on which Streett relies to argue against the Subpoena's validity is distinguishable, because it deals with "whether the Government conducts a search under the Fourth Amendment when it accesses historical cell phone records that provide a comprehensive chronical of the user's past movements." Carpenter v. United States, 138 S.Ct. at 2211. The information obtained from the Subpoena -- Streett's subscriber information -- provides no such insight into Streett's movements and, thus, the privacy analysis from Carpenter v. United States is inapplicable.
The Supreme Court has recognized that the Fourth Amendment seeks to safeguard people from unreasonable searches, and has provided two basic guideposts in determining what constitutes an unreasonable search: (i) that the Fourth "Amendment seeks to secure 'the privacies of life' against 'arbitrary power,' " Carpenter v. United States, 138 S.Ct. at 2213-14 (quoting Boyd v. United States,
Subscriber information, unlike the cell-site records at issue in Carpenter v. United States, fits neatly under existing Supreme Court and Tenth Circuit precedent under the third-party doctrine. The Tenth Circuit has noted, regarding the expectation of privacy in information associated with an IP address, that "[e]very federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment's privacy expectation." United States v. Perrine,
Streett argues that the disclosure under the Subpoena was unlawful, because T-Mobile provided "more than basic identifying information," including "[h]is social security number." Reply at 4 n.2. He avers that his social security number is "private and confidential information," which should *1310be considered in deciding whether the Subpoena is unlawful. Reply at 4 n.2 (internal quotation marks omitted)(quoting Meyerson v. Prime Realty Servs., LLC,
Further, that the Subpoena led to the disclosure of what Streett contends is confidential information -- his social security number -- does not mean the Subpoena violated the Fourth Amendment. First, law enforcement already had access to Streett's social security number. See NCMEC Tip at 8 (providing Streett's social security number); Tr. at 18:25-19:4 (Whitsitt)(discussing how he accessed the TLO system to investigate Streett after receiving the NCMEC Tip, which provides social security numbers). Second, in the context of administrative subpoenas, the Tenth Circuit found a subpoena duces tecum enforceable, even though it sought "personal, private, and confidential" matters, and no probable cause was shown, because "administrative 'fishing expeditions' are often permitted; and ... administrative subpoenas may be enforced for investigative purposes unless they are plainly incompetent or irrelevant to any lawful purpose." Equal Emp't Opportunity Comm'n v. Univ. of N.M.,
B. THE SUBPOENA IS VALID UNDER NEW MEXICO LAW AND DOES NOT VIOLATE STREETT'S RIGHT TO DUE PROCESS.
Streett argues that, if the Subpoena was issued without the "pending grand *1311jury investigation necessary" or if it was not "issued at the behest of the District Attorney," it is unlawful under New Mexico law. Supp. Motion at 7 (citing State v. Martinez,
Here, the Subpoena provides that: (i) the Second Judicial District Court issued the Subpoena; (ii) the Subpoena was issued in the investigation of "Telephone number (505) 974-[remainder redacted]," with the number "No. GJ-2013-04"43 ; (iii) and the Subpoena commands T-Mobile's *1312"Custodian of Records" to appear and bring the requested records. Subpoena at 1. Unlike the subpoenas at issue in State v. Martinez, which were issued unilaterally and not pursuant to a "pending prosecution, court action, or grand jury proceeding," State v. Martinez,
Moreover, even if the Subpoena were not valid under New Mexico law, it would not violate the Fifth Amendment. A violation of state law does not automatically mean that the federal Constitution has been violated. See United States v. Mikulski,
First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.
Mathews v. Eldridge,
The privacy interest here, Streett contends, is the disclosure of his private information in contravention of his constitutional right to privacy. See Reply at 6. Streett cites to no case establishing a right to privacy in one's subscriber information. See Reply at 6. The first case he cites as establishing a "constitutional right of personal privacy" is Roe v. Wade,
Whether Streett has an interest to which due process applies does not end the inquiry, however. The next factor assesses the value of additional procedures in obtaining a subpoena. Even if the Subpoena here were issued in violation of New Mexico law -- which it was not -- Streett desires that "a third party determine the need for the information," Reply at 6, which was done here because a grand jury listened to testimony and decided to issue the Subpoena, see Tr. at 39:23-40:15 (Zimmerman, Whitsitt); Log of Grand Jury Room at 1. Even if this were approval were insufficient under New Mexico law, additional safeguards would not decrease the risk of law enforcement unilaterally obtaining a subpoena here, because a third party determined the need for a subpoena as the Stored Communications Act requires. See Walters v. Nat'l Ass'n of Radiation Survivors,
II. THE FIRST AFFIDAVIT ESTABLISHES PROBABLE CAUSE TO SEARCH STREETT'S TELEPHONE RECORDS.
Streett argues that the First Affidavit "is immediately conspicuous and questionable because it is blank on the portion of the form calling for the date Hartsock signed as the affiant," and lacks probable cause because it "offered no case-specific facts." Supp. Motion at 10-11 (citing First Affidavit at 3, 11). Because the First Affidavit relies mainly on the NCMEC Tip -- which Hartsock characterizes as a CI's Tip -- in an attempt to establish probable cause, Streett alleges that Hartsock's failure to corroborate the CI's Tip or to indicate the CI's reliability means the First Affidavit lacks probable cause. See Supp. Motion at 14. Streett avers that the "Court may proceed directly to the good faith issue," Reply at 15, but the Court does not, because "resolution of [this] Fourth Amendment issue is necessary to guide future action by law enforcement officers and magistrates," United States v. Danhauer,
First, the Court concludes that Streett has no reasonable expectation of privacy in the telephone numbers with which he texts, or in whether those texts are SMS or MMS messages.44 The Supreme Court has recognized "that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a 'justifiable,' a 'reasonable,' or a 'legitimate expectation of privacy that has been invaded by government action.' " Smith v. Maryland,
*1315Rakas v. Illinois,
Probable cause must support search warrants to comply with the Fourth Amendment's requirements. See United States v. Brinklow,
Here, the First Warrant issued to search the subscriber information, telephone calls made and received, and SMS and MMS made and received between July 31, 2013, and February 5, 2014, for the telephone number 505-974-9704. See First Warrant at 4; First Affidavit at 1. To support a finding of probable cause, the First Affidavit provides one short paragraph describing the NCMEC Tip, in which Hartsock calls M.Y.'s mother a "confidential informant." First Affidavit at 2. Hartsock writes that the CI states that she "physically observed [M.Y.'s] cell phone," that Streett was the requester asking M.Y. for a nude picture, and that Streett lives in Albuquerque, but that she "did not state in the complaint how [she] knew the name or location of the requester." First Affidavit at 2. Hartsock states that he has failed to make contact with M.Y.'s mother. See First Affidavit at 2. He provides, however, that the New Mexico Attorney General's Office obtained a Subpoena for the subscriber information for the 505-974-9704 telephone number, and T-Mobile verified that the number belongs to Streett, who lives in Bernalillo County. See First Affidavit at 2. Although the First Affidavit does not explicitly state that the 505-974-9704 telephone number is the number that requested the nude photograph, this is logically inferred from the natural reading of the First Affidavit, because the NCMEC Tip provides that Streett requested the photograph and because the New Mexico Attorney General's Office subpoenaed the account information for this telephone number, discovering it belongs to Streett. See *1317United States v. Beck,
Streett first argues that the allegation that he requested a nude photograph from a minor does not provide any evidence of a crime. See Supp. Motion at 14.46 He notes that the NCMEC Tip states that there had only been one text and, to the informant's knowledge, M.Y. did not send Streett a nude photograph. See Supp. Motion at 18. Streett further argues that Hartsock is merely speculating as to criminality in the First Affidavit, because he writes that he "needs the records to see a wide picture of the frequency of communication between MY and the requestor, and the frequency or infrequency of mixed media messages that based on the Cl's [sic] complaint, could contain child pornography or the attempt to entice sex from a minor." Supp. Motion at 19 (emphasis in the Supp. Motion)(quoting First Affidavit at 2-3). Streett avers that, similar to the allegation that the "defendant had shown the victim pictures of nude children" being insufficient to provide probable cause to believe the defendant possessed child pornography, the allegation that Streett asked for a nude photograph of a minor is insufficient to provide probable cause that Streett possessed child pornography. Supp. Motion at 14 (quoting United States v. Doyle,
In United States v. Doyle, the affidavit sought a warrant to search for evidence of child pornography, and the Fourth Circuit found "remarkably scant evidence in the affidavit ... to support a belief that Doyle in fact possessed child pornography. The bulk of the information supplied in the affidavit concerned allegations of sexual assault." United States v. Doyle,
Whether a tip from a confidential informant may provide probable cause is determined by the veracity, reliability, timeliness, and basis of knowledge of the informant. See United States v. Knox,
Whoever informs a law enforcement officer that a crime has been committed or otherwise provides information to an on-duty peace officer, knowing that person is a peace officer, regarding the conduct of others, knowing that it is false and intending that the officer shall act in reliance upon it, is guilty of a misdemeanor.
A low showing of veracity and reliability alone, however, is not fatal to the probable cause determination, because "[w]hen there is sufficient corroboration of an informant's information there is no need to establish the veracity of the informant." United States v. Danhauer,
Finally, it does not matter that the First Affidavit does not identify the date it was sworn.51 The lack of a date does not remove the probable cause that the First Affidavit provides. The First Affidavit was provided under oath, and the judge approved *1322the First Warrant despite the lack of a date on the First Affidavit. The First Affidavit contains the date that NCMEC received the Tip -- October 31, 2013 -- and was executed to support the First Warrant, which is dated February 12, 2014. Further, Hartsock testified that the judge was supposed to fill in the date that Hartsock swore the affidavit -- noting the language "subscribed and sworn to before me," First Affidavit at 3 (capital letters omitted) -- although he "started filling out that part ... for the judge on future ones," Tr. at 159:15-25 (Hartsock, Zimmerman). Hartsock recalls writing the First Affidavit on February 5, 2014, and this is supported by his Report, so because the warrant was issued a week later on February 12, 2014, it is clear that the affidavit was not sitting around for long. See Tr. at 160:1-5 (Zimmerman, Hartsock); First Warrant at 4; Hartsock Report at 3. The Court accordingly defers to the judge's finding of probable cause and will not suppress the telephone records seized pursuant to the First Warrant.
III. EVEN IF THE FIRST AFFIDAVIT LACKS PROBABLE CAUSE TO SEARCH STREETT'S TELEPHONE RECORDS, THE EXCLUSIONARY RULE DOES NOT REQUIRE SUPPRESSION OF THE RESULTING EVIDENCE, BECAUSE THE GOOD-FAITH EXCEPTION APPLIES.
There is a presumption that an officer acts in good faith when relying upon a search warrant. See United States v. McKneely,
Streett avers that Hartsock's search pursuant to the First Warrant was completely speculative and devoid of probable cause. See Supp. Motion at 19. Streett argues that the good-faith exception is not available to Hartsock, because he "failed to do even the minimal amount of investigation to verify the confidential informant's investigations." Supp. Motion at 16. The Court construes this argument as one that the First Affidavit lacks any indicia of probable cause or that it is facially deficient, rendering official belief in it unreasonable.52 The Tenth Circuit rejected such an argument in circumstances with less indicia of the informant's veracity or independent corroboration than here. In United States v. Danhauer, the Tenth Circuit concluded that the affidavit lacked probable cause, because "the affiant neither established the veracity of the informant, nor obtained sufficient independent corroboration of the informant's observation," providing no nexus between the alleged criminal activity -- the manufacturing of methamphetamine -- and the place to be searched.
Here, Hartsock's reliance on the judge's issuance of the First Warrant is also not "wholly unwarranted," because the First Affidavit contains indicia of probable cause. United States v. Danhauer,
IV. THE FIRST AFFIDAVIT DOES NOT DENY STREETT DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS.
Streett argues that the First Affidavit lacks "substantial evidence to support a probable cause finding to issue a search warrant" as the New Mexico Rules of Criminal Procedure requires, and thus denied him due process under the Fifth and Fourteenth Amendments. Supp. Motion at 19. Rule 5-211 requires probable cause be "based on substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished." N.M. Ct. R. 5-211(E).53 Streett does not contend that he was deprived "of life, liberty, or property without due process of law," U.S. Const. amend. XIV, § 1, but only that he "was denied due process here because of Hartsock's violation of state procedural law," Supp. Motion at 21. A violation of state law, however, does not automatically mean that the federal Constitution has been violated. See United States v. Mikulski,
V. THE SECOND AFFIDAVIT DOES NOT ESTABLISH PROBABLE CAUSE TO SEARCH THE 4620 PLUME RESIDENCE.
To comply with the Fourth Amendment, a search warrant may only "issue only upon probable cause." United States v. Brinklow,
The Second Affidavit does not allege sufficient facts to establish probable cause to search the 4620 Plume residence.55 The Second Affidavit relies primarily on the NCMEC Tip as providing probable cause to search the 4620 Plume residence for evidence of solicitation and child pornography. Although the Second Affidavit erroneously identifies the tipster as a "confidential informant," whether the tipster -- the alleged victim's mother -- is or is not a confidential informant does not change the analysis. Law enforcement verified the telephone number which she provided as belonging to Streett and that Streett resides in Albuquerque as reported. See Second Affidavit at 4. Further, law *1327enforcement contacted the alleged victim, who turned over her cellular telephone for evidence collection and confirmed that Streett asked her for a nude photograph, while knowing that she was only fourteen-years-old. See Second Affidavit at 4-5. The Second Affidavit thus set forth "sufficient independent corroboration of an informant's information, [so] there is no need to establish the veracity of the informant." United States v. Danhauer,
The Second Affidavit does not, however, indicate Streett's connection with the 4620 Plume residence. The Tenth Circuit, in United States v. Gonzales, concluded that probable cause did not exist to search a residence when the supporting affidavit merely identified " '321 E. Church' as the place to be searched," but "never specified that 321 E. Church was Mr. Gonzales's residence or that there was any connection between that location and Mr. Gonzales, the vehicle, or the suspected criminal activity."
A magistrate judge could logically infer that Streett's personal property -- such as his cellular telephone or personal computer -- would be found at his residence. See United States v. Biglow,
VI. THE EXCLUSIONARY RULE DOES NOT REQUIRE SUPPRESSION OF THE EVIDENCE OBTAINED VIA THE ILLEGAL SEARCH OF THE 4620 PLUME RESIDENCE, BECAUSE BOTH THE GOOD-FAITH AND INEVITABLE-DISCOVERY EXCEPTION APPLY.
The Court concludes that suppression of the evidence seized during the search of the 4620 Plume residence does not promote the purpose of the exclusionary rule. The evidence will come in, because Hartsock and his fellow deputies executed the search warrant for the 4620 Plume residence in good faith. Further, even if the good-faith exception does not apply here, the evidence would have been inevitably discovered. Accordingly, the Court will not suppress the evidence found at the 4620 Plume residence or the fruits of that evidence.
A. HARTSOCK AND HIS FELLOW OFFICERS RELIED ON THE SECOND WARRANT IN GOOD FAITH WHEN THEY SEARCHED THE 4620 PLUME RESIDENCE.
There is a presumption that, "when an officer relies upon a warrant, the officer is acting in good faith," United States v. McKneely,
*1329United States v. Knox,
A showing of "minimal nexus" requires significantly less than a showing of probable cause. See United States v. Welch,
Streett does not allege that Hartsock knowingly included false information in the Second Affidavit that misled the issuing judge or that the issuing judge wholly abandoned her judicial role. See generally Motion at 6-9. Streett argues that the good-faith exception cannot apply here, because "the Affidavit in support of the warrant was so lacking in any indicia of probability and so facially deficient." Motion at 6. See Streett's Proposed Findings ¶ 2, at 35 (citing United States v. Danhauer,
Streett relies on United States v. Gonzales for his argument against the good-faith exception. In that case, the officer sought a warrant to search the home of the defendant -- a convicted felon -- for a firearm, because officers found ammunition, but no matching firearm, in the vehicle he was driving. See
no facts explaining how the address was linked to Mr. Gonzales, the vehicle, or the suspected criminal activity, or why *1330the officer thought the items to be seized would be located at the residence. Rather, besides the physical description of the address, the only facts before the magistrate were that Mr. Gonzales was a convicted felon and a Glock 10 mm magazine was found in a vehicle in which he was the only occupant. The only attempt at a connection was the detective's assertion that in his experience, "firearm [sic] are often kept at the residence."
In United States v. Gonzales, the Tenth Circuit noted that "the only facts before the magistrate were that Mr. Gonzales was a convicted felon and a Glock 10mm magazine was found in a vehicle in which he was the only occupant."
Judge Brack contrasted the affidavit's facts with the affidavit in United States v. Tisdale,
The Second Affidavit's facts linking Streett's suspected criminal activity to his residence are not as strong as those in United States v. Tisdale, but not as weak as those in United States v. Gonzales. It is true that there are no facts in the Second Affidavit that link Streett specifically to the 4620 Plume residence, which is why the Second Warrant lacks probable cause. See generally Second Affidavit at 1-13. The Second Affidavit contains, however, facts that necessarily implicate Streett's residence as containing evidence of his suspected criminal activity. See Second Affidavit at 3-5. The Second Affidavit describes a conversation that law enforcement had with M.Y., in which she describes how she, only fourteen years old at the time, met Streett on Twitter and that "he has asked her to take and send him a nude photograph of her two or three times." Second Affidavit at 4-5. The Second Affidavit also describes the NCMEC Tip, containing the same indications of criminal activity as M.Y.'s statement to law enforcement, and T-Mobile's response to the Subpoena shows that 505-974-9704 is "registered to Bentley Streett, who lives in Bernalillo County," but does not say how this telephone number was obtained. Second Affidavit at 4. See also supra Part II (analyzing the reliability of the NCMEC Tip). These facts necessarily mean, however, that the Second Affidavit is not "devoid of factual support." United States v. Cardall,
Further, applying the exclusionary rule to the evidence seized from the 4620 Plume residence will not further the rule's "purpose of deterring improper police action." United States v. Gonzales,
Hartsock testified that he believed that M.Y.'s statement to law enforcement in Minnesota and Streett's telephone records showing a high amount of communication with M.Y. -- including a MMS message from Streett -- corroborated the NCMEC Tip, so he drafted a search warrant to search the 4620 Plume residence, because this address was the one provided in the NCMEC Tip, in the Subpoena return, and in T-Mobile's return under the First Warrant. See Tr. at 100:13-101:2 (Hartsock, Mease). Hartsock also spoke about how he surveilled the house to provide "a description for my warrant and try to see if I could learn anything more about the house," but did not recall seeing any humans. Tr. at 101:6-12, 18-19 (Hartsock). He then obtained the Second Warrant from "a detached and neutral magistrate," and executed it within its scope, so there is nothing to deter here. United States v. Tuter,
*1333Davis v. United States,
B. LAW ENFORCEMENT OFFICERS WOULD HAVE OBTAINED A VALID WARRANT AND THE 4620 PLUME RESIDENCE WOULD HAVE BEEN SEARCHED LEGALLY EVEN IF HARTSOCK AND HIS FELLOW OFFICERS HAD NOT RELIED ON THE SECOND WARRANT IN GOOD FAITH.
"The inevitable discovery doctrine provides an exception to the exclusionary rule, and permits evidence to be admitted 'if an independent, lawful police investigation inevitably would have discovered it.' " United States v. Cunningham,
1) "the extent to which the warrant process has been completed at the time those seeking the warrant learn of the search"; 2) the strength of the showing of probable cause at the time the search occurred; 3) whether a warrant ultimately was obtained, albeit after the illegal entry; and 4) "evidence that law enforcement agents 'jumped the gun' because they lacked confidence in their showing of probable cause and wanted to force the issue by creating a fait accompli."
United States v. Souza,
No exception to the warrant requirement applies here, for "searches and seizures inside a home without a warrant are presumptively unreasonable," Payton v. New York,
C. EVEN IF THE GOOD-FAITH AND INDEPENDENT-DISCOVERY EXCEPTIONS DO NOT APPLY, LAW ENFORCEMENT OFFICERS WOULD HAVE DISCOVERED THE OTHER VICTIMS' IDENTITIES FROM THE RECORDS OBTAINED FROM THE FIRST WARRANT.
The United States' last argument against suppression is that the telephone records obtained via the First Warrant "contain[ ] the phone numbers for each of the other charged victims" -- Hartsock sought a search warrant for the telephone records of one of these victims -- and, thus, "Hartsock would have inevitably identified, located, and interviewed each of these victims."59 Response at 23. Hartsock obtained the victims' identities through searching Streett's cellular telephone after executing the Second Warrant, so the independent-source doctrine, for which the United States argues, is inapplicable. See Murray v. United States,
Unlike the analysis in the previous section, there is no need to go through the Tenth Circuit test for when a warrant exception does not apply. No new warrant is needed to obtain the victims' identities, because Hartsock already received Streett's extensive telephone records which contained the telephone numbers of all the charged victims via the valid First *1336Warrant. See Response at 23. He sorted the numbers contacted in an Excel table to determine the most frequently contacted numbers, finding only two with New Mexico area codes and a total of 135 different area codes. See Tr. at 107:4-13 (Hartsock); Map at 1. Without the Second Warrant to search the 4620 Plume residence, Hartsock would have more thoroughly investigated these telephone records. See Tr. at 107:18-21 (Mease, Hartsock). As a law enforcement officer with about ten years of experience at the time, Hartsock knew that people who want nude photographs from minors "obsessively try to gain nude images from one particular minor or multiple minors," and he believed Streett's texting pattern fit this "mold[,] potentially dead-on." Tr. at 107:18-108:15 (Mease, Hartsock). He testified that he thus would have tried to identify the owners of the telephone numbers which Streett was texting, either with public information or legal service -- such as a subpoena or search warrant -- or even by calling the numbers to see who answered. See Tr. at 108:8-15 (Hartsock). He also testified that he obtained a victim's identity by cold-calling M.S., see Tr. at 116:14-3 (Mease, Hartsock), and that all of the MMS messages caught his attention, see Tr. at 122:3-5 (Hartsock). Finally, all of the alleged victims named in the Second Superseding Indictment are present in the telephone records. See Tr. at 117:3-118:20 (Mease, Hartsock); id. at 119:20-123:13 (Mease, Hartsock). Hartsock also obtained a warrant for one such telephone number based in part on the hundreds of text messages exchanged with Streett in July 2013. See Fourth Warrant at 3. This evidence establishes by a preponderance that Hartsock would have obtained the victims' identities through his search of Streett's telephone records and, thus, that suppression of this evidence is unwarranted. See Nix v. Williams,
Because all the evidence from the search of the 4620 Plume residence will come in under the good-faith and inevitable-discovery doctrines, there are no fruit-of-the-poisonous-tree issues with the subsequent Third and Fourth Warrants. See United States v. Leon,
IT IS ORDERED that: (i) the requests in the Defendant's Motion to Suppress Evidence, filed December 1, 2017 (Doc. 78), are denied; and (ii) the requests in the Defendant's Supplemental Motion to Suppress All Evidence Seized and Any Fruits of the Poisonous Tree Obtained as a Result of the Unlawful Search, filed July 24, 2018 (Doc. 141), are denied. The Court therefore will not exclude from trial the telephone subscriber information and records, or any of the evidence seized from Defendant Bentley Streett's residence or obtained as a result of that search.
Footnotes
Q. And what does that say?
A. It reads, "It does not appear that my daughter sent this man any photos as he requested. My concern is that he is online soliciting nude photos from other minor children and could possibly have received some."
Q. So at that time you had no indication of a crime that had been committed?
....
A. No, I did not.
Tr. at 22:6 (Zimmerman); id. at 22:9-21 (Zimmerman, Whitsitt)(objection and ruling omitted). It appears from this questioning that Whitsitt is only answering whether he had an indication that a crime had been committed from the portion of the NCMEC Tip he read, because of his later testimony regarding his preparing the Subpoena:
Q. You did not on your own decide that a grand jury subpoena was needed?
A. No, I would do that for most cases.
Q. I'm sorry? Do what?
A. Obtain grand jury subpoenas, if it appeared that possible or alleged sexual exploitation had occurred.
Q. Did you have any indication here -- you had --
A. Possible, yes.
Q. Maybe?
A. Possible.
Q. Not enough to satisfy you or any probable cause that would justify any further investigation?
....
A. Not at that point, no.
Tr. at 25:12-26:4 (Zimmerman, Whitsitt)(objection and ruling omitted). This testimony, combined with Ms. Mease's cross-examination cited supra ¶ 31, shows that Whitsitt believed it possible that "sexual exploitation had occurred," but did not have probable cause showing that sexual exploitation had occurred. Tr. at 25:16-17 (Whitsitt). Whitsitt clarifies that, when he sought the Subpoena, he was still investigating whether a crime had been committed:
Q. You've indicated before there was insufficient evidence that the crime of criminal sexual communication or any crime had been committed at this point?
A. At that point the case was still under investigation, so we did not know whether or not that crime had been committed yet. It was still under investigation.
Tr. at 31:2-9 (Zimmerman, Whitsitt). Accordingly, the Court does not adopt Streett's Proposed Findings on this point, and concludes that its own ¶ 31 is more accurate.
Q. And do you recall testifying on that day for this case?
A. I believe so. It's been a long time. I'm not sure if that's the exact -- it should have been the exact day I testified, but --
Tr. at 39:23-40:2 (Zimmerman, Whitsitt). The Grand Jury Log that Streett provided purporting to show the proceedings for the Subpoena, however, shows Owen Pena as testifying on behalf of the Attorney General's Office. See Log of Grand Jury Room on 11/4/2013 at 1, filed November 3, 2018 (Doc. 174-1)("Grand Jury Log"). The Grand Jury Log shows the grand jury proceedings for a period of forty minutes. See Grand Jury Log at 1-3. The Grand Jury Log provides that the grand jury is considering subpoenas for "ROBLOX Corporation // Cyber Tip 21353331; T-Mobile," among a number of IP addresses. Grand Jury Log at 1. There does not seem to be any information in the Grand Jury Log connecting it to the Subpoena here, however, for the cyber tip number it provides does not match the NCMEC Tip's number, and there is no telephone number associated with T-Mobile. See Grand Jury Log at 1; NCMEC Tip at 11 (providing the unredacted number as beginning with the numbers "216"). Regarding T-Mobile, the Grand Jury Log provides "how information known that offender in NM // investigation of T-Mobile // male requested photos // number tracked to T-Mobile // how obtaining number will aid in investigation//" and "phone will indicate who used phone on date of incident." Grand Jury Log at 1. This information does not convince the Court that Pena testified regarding the Subpoena in question despite Streett's statement that "Special Agent Owen Pena testified in support of the grand jury subpoenas issued on November 4, 2013, not Whitsitt," Streett's Proposed Findings at 18 n.2, and the United States' statement that it "understands that Officer Jon Whitsitt did not provide testimony in front of the state grand jury on November 4, 2013," United States' Sealed Notice of Correction to Proposed Findings of Fact and Conclusions of Law (September 11, 2018 Evidentiary Hearing) at 1, filed November 6, 2018 (Doc. 175). The Court therefore does not make a finding as to who testified at the grand jury proceedings.
The Court concludes that these two specific instances of alleged misconduct do not bear on Hartsock's credibility as a witness at the hearing. First, Hartsock does not deny the existence of the IA Report such that introducing it shows he was lying; when asked if Internal Affairs had questioned him about the inadequacy of his investigation or reporting he said "I can't recall," Tr. at 205:15 (Hartsock), and when asked more generally about the existence of complaints about him, he said he "presume[s]" that there are, Tr. at 206:1 (Hartsock). See Tr. at 205:9-206:1 (Zimmerman, Mease, Court, Hartsock). The Court notes that the IA Report is thirteen years old, from early in Hartsock's career in law enforcement, so that he could not remember the specific subject of the Report is plausible. Second, the two prior instances of alleged misconduct do not point to Hartsock's character for truthfulness but, rather, his prior failings in properly investigating and therefore, the Court does not consider them. While the Federal Rules of Evidence's rules on character evidence do not bind the Court in a suppression hearing, the Court must decide this case's facts, and Hartsock's prior instances of alleged misconduct have little, if anything, to do with this case besides showing a propensity to not fully investigate things. This propensity has little, to no, bearing on Hartsock's credibility, and the Court finds Hartsock a credible witness here. As he testified before the Court, the Court looked at him carefully and listened to him clearly, and saw and heard nothing for the Court not to believe him. The Court therefore will not adopt Streett's Proposed Findings on pages 17-18.
Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him.
Miranda,
In February 2015, a grand jury returned a Superseding Indictment, charging Streett with two counts of traveling in interstate commerce from New Mexico to Illinois "for the purpose of engaging in any illicit sexual conduct" with a person under eighteen years of age that "would be in violation of Chapter 109A of Title 18, United States Code, had the sexual act occurred," in violation of
That case is this case in every way that matters. Here, police officers came to Joelis Jardines' door with a super-sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted. The equipment they used was animal, not mineral. But contra the dissent, see [569 U.S. at 16-17,133 S.Ct. 1409 ] (opinion of Alito, J.)(noting the ubiquity of dogs in American households), that is of no significance in determining whether a search occurred.
569 U.S. at 12,
[a] decision along those lines would have looked ... well, much like this one. It would have talked about " 'the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' " [569 U.S. at 6,133 S.Ct. 1409 ] (quoting Silverman v. United States ,365 U.S. 505 , 511 [81 S.Ct. 679 ,5 L.Ed.2d 734 ] . (1961) ). It would have insisted on maintaining the "practical value" of that right by preventing police officers from standing in an adjacent space and "trawl[ing] for evidence with impunity." [133 S.Ct.] at 1414. It would have explained that " 'privacy expectations are most heightened' " in the home and the surrounding area. [569 U.S. at 7,133 S.Ct. 1409 ] (quoting California v. Ciraolo , 476 U.S. [at] 213 [106 S.Ct. 1809 ] ... ). And it would have determined that police officers invade those shared expectations when they use trained canine assistants to reveal within the confines of a home what they could not otherwise have found there. See [569 U.S. at 8-9], and n.2-3 [133 S.Ct. 1409 ].
569 U.S. at 13,
The highest state court is the final authority on state law, but it is still the duty of the federal courts, where the state law supplies the rule of decision, to ascertain and apply that law even though it has not been expounded by the highest court of the State. An intermediate state court in declaring and applying the state law is acting as an organ of the State and its determination, in the absence of more convincing evidence of what the state law is, should be followed by a federal court in deciding a state question. We have declared that principle in West v. American Telephone and Telegraph Co. ,311 U.S. 223 ,61 S.Ct. 179 ,85 L.Ed. 139 (1940), decided this day. It is true that in that case an intermediate appellate court of the State had determined the immediate question as between the same parties in a prior suit, and the highest state court had refused to review the lower court's decision, but we set forth the broader principle as applicable to the decision of an intermediate court, in the absence of a decision by the highest court, whether the question is one of statute or common law.
... We have held that the decision of the Supreme Court upon the construction of a state statute should be followed in the absence of an expression of a countervailing view by the State's highest court, and we think that the decisions of the Court of Chancery [the New Jersey trial court] are entitled to like respect as announcing the law of the State.
....
The question has practical aspects of great importance in the proper administration of justice in the federal courts. It is inadmissible that there should be one rule of state law for litigants in the state courts and another rule for litigants who bring the same question before the federal courts owing to the circumstance of diversity of citizenship. In the absence of any contrary showing, the rule [set forth by two New Jersey trial courts, but no appellate courts] appears to be the one which would be applied in litigation in the state court, and whether believed to be sound or unsound, it should have been followed by the Circuit Court of Appeals.
Fid. Union Tr. Co. v. Field,
The Court must decide how to weigh Tenth Circuit caselaw against more-recent state court decisions, choosing a point on the spectrum between the two extremes: rigidly adhering to Tenth Circuit precedent unless there is intervening caselaw directly on point from the state's highest court, on one end; and independently interpreting the state law, regarding the Tenth Circuit precedent as no more than persuasive authority, on the other. In striking this balance, the Court notes that it is generally more concerned about systemic inconsistency between the federal courts and the state courts than it is about inconsistency among federal judges. Judges, even those within a jurisdiction with ostensibly identical governing law, sometimes interpret and apply the law differently from one another; this inconsistency is part and parcel of a common-law judicial system. More importantly, litigants seeking to use forum selection to gain a substantive legal advantage cannot easily manipulate such inconsistency: cases are assigned randomly to district judges in this and many federal districts; and, regardless, litigants cannot know for certain how a given judge will interpret the state law, even if they could determine the identity of the judge pre-filing or pre-removal. All litigants know in advance is that whomever federal district judge they are assigned will look to the entirety of the state's common law in making his or her determination -- the same as a state judge would. Systemic inconsistency between the federal courts and state courts, on the other hand, not only threatens the principles of federalism, but litigants may more easily manipulate the inconsistency. When the Tenth Circuit issues an opinion interpreting state law, and the state courts subsequently shift away from that interpretation, litigants -- if the district courts strictly adhere to the Tenth Circuit opinion -- have a definite substantive advantage in choosing the federal forum over the state forum, or vice versa.
The Court further notes that district courts may be in a better position than the Tenth Circuit to be responsive to changes in state law. Tenth Circuit decisions interpreting a particular state's law on a specific issue are further apart in time than the collective district courts' are. More importantly, the Tenth Circuit does not typically address such issues with the frequency that the state's courts themselves do. As such, Tenth Circuit precedent can lag behind developments in state law -- developments that the district courts may be nimble enough to perceive and adopt. Additionally, much of the benefit of having a consistent Tenth Circuit-wide interpretation of a particular state's law is wasted. Other than Oklahoma, every state encompassed by the Tenth Circuit contains only one federal judicial district, and there is relatively little need for federal judges in Wyoming and Kansas to have a uniform body of New Mexico law to which to look. Last, the Court notes, respectfully, that district courts may be in a better position than the Tenth Circuit to develop expertise on the state law of the state in which they sit. Every federal judicial district in the nation, except the District of Wyoming, covers at most one state. It is perhaps a more workable design for each district court to keep track of legal developments in the state law of its own state(s) than it is for the Tenth Circuit to monitor separate legal developments in eight states.
Having outlined the relevant considerations, the Court thinks the proper stance on vertical stare decisis in the context of federal court interpretations of state law is as follows: the Tenth Circuit's cases are binding as to their precise holding -- what the state law was on the day the opinion was published -- but lack the positive precedential force that its cases interpreting a federal statute or the federal Constitution possess. A district court considering a state law issue after the publication of a Tenth Circuit opinion on point may not come to a contrary conclusion based only on state court cases that were available to the Tenth Circuit and that the Tenth Circuit considered, but it may come to such a conclusion based on intervening state court cases.
When interpreting state law, the Tenth Circuit does not and cannot issue a case holding that x is the law in New Mexico; it holds that the proper interpretation of New Mexico law, at the time the opinion is released, is x. Its holdings are descriptive, not prescriptive -- interpretive, not normative. Because federal judicial opinions lack independent substantive force on state law issues, but possess such force regarding federal law issues, the Court thinks the following is not an unfair summary of the judicial interpretive process: (i) when interpreting federal law, the federal appellate courts consider the existing body of law, and then issue a holding that both reflects and influences the body of law; that holding subsequently becomes a part of the body of law; but (ii) when interpreting state law, the federal appellate courts consider the existing body of law, and then issue a holding that only reflects the body of law; that holding does not subsequently become a part of the body of law. The federal district courts are bound to conclude that the Tenth Circuit's reflection of the then-existing body of law was accurate. The question is whether they should build a doctrine atop the case and use the existence of the Tenth Circuit's case to avoid any responsibility to independently consider the whole body of state law that exists when the time comes that diversity litigants raise the issue in their courtrooms. Giving such effect to the Tenth Circuit's interpretations of state law is at tension with Erie, giving independent substantive effect to federal judicial decisions -- i.e., applying federal law -- in a case brought in diversity.
The purpose of Erie is well-known and simple, and the Court should not complicate it beyond recognition: it is that the same substantive law governs litigants' cases regardless whether they are brought in a federal or state forum. For simplicity's sake, most courts have settled on the formulation that "the federal court must attempt to predict how the states' highest court would rule if confronted with the issue." Moore's Federal Practice § 124.22[3] (citing Comm'r v. Estate of Bosch,
The Erie doctrine results in federal cases that interpret state law withering with time. While cases interpreting federal law become more powerful over time -- forming the groundwork for doctrines, growing upward from one application (Congress may create a national bank) to many (Congress may set quotas on wheat-growing for personal consumption), expanding outward from the general (states must grant criminal jury trials) to the specific (the jury need not be twelve people, nor must it be unanimous) -- federal cases interpreting state law often become stale. New state court cases -- even when not directly rebuking the federal court's statement of law -- alter the common-law legal landscape with their dicta, their insinuations, and their tone. The Supreme Court, which picks its cases sparingly and for maximum effect, almost never grants certiorari to resolve issues of state law.
The Court's views on Erie, of course, mean little if the Tenth Circuit does not agree. In Wankier v. Crown Equipment Corp.,
[w]here no controlling state decision exists, the federal court must attempt to predict what the state's highest court would do. In performing this ventriloquial function, however, the federal court is bound by ordinary principles of stare decisis. Thus, when a panel of this Court has rendered a decision interpreting state law, that interpretation is binding on district courts in this circuit, and on subsequent panels of this Court, unless an intervening decision of the state's highest court has resolved the issue.
Wankier v. Crown Equip. Corp.,
It is difficult to know whether the Honorable Michael W. McConnell's, former United States Circuit Judge for the Tenth Circuit, limitation of "intervening decision" to cases from the highest state court was an oversight or intentional. Most of the Tenth Circuit's previous formulations of this rule have defined intervening decisions inclusively as all subsequent decisions of "that state's courts," a term which seems to include trial and intermediate appellate courts. Even Koch v. Koch Industries, Inc.,
In the absence of intervening Utah authority indicating that a plaintiff is not required to prove a safer, feasible alternative design, we are bound to follow the rule of Allen [v. Minnstar, Inc.,8 F.3d 1470 (10th Cir. 1993), a Tenth Circuit case interpreting an issue of Utah law], as was the district court. "Following the doctrine of stare decisis, one panel of this court must follow a prior panel's interpretation of state law, absent a supervening declaration to the contrary by that state's courts or an intervening change in the state's law." Koch v. Koch Indus., Inc.,203 F.3d at 1231 .
Wankier v. Crown Equip. Corp.,
Whether the decision to limit the intervening authority a district court can consider was intentional or not, the Tenth Circuit has picked it up and run with it. In Kokins v. Teleflex, Inc., the Tenth Circuit, quoting Wankier v. Crown Equipment Corp., refused to consider an opinion from the Court of Appeals of Colorado holding directly the opposite of an earlier Tenth Circuit interpretation of Colorado law. See Kokins v. Teleflex, Inc.,
The Tenth Circuit has set forth a stringent restriction on its district courts' ability to independently administer the Erie doctrine. More importantly, the Tenth Circuit's view may be at tension with the above-quoted Supreme Court precedent, as well as its own prior caselaw. Moore's Federal Practice lists the Tenth Circuit as having been, at one time, a "court [that] hold[s] that a prior federal appellate decision [interpreting state law] is persuasive." Moore's Federal Practice § 124.22[4] (citing State Farm Mut. Auto. Ins. v. Travelers Indem. Co.,
363 F. Supp. 3d 1212 (United States v. Streett) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.