Case 1:13-cr-01876-JB Document 41 Filed 04/07/14 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

UNITED STATES OF AMERICA, Plaintiff, vs. JASON LOERA, Defendant.

) ) ) ) ) ) ) ) )

CR No. 13-1876 JB

UNITED STATES= RESPONSE TO MOTION TO SUPPRESS EVIDENCE (Doc. 35) Defendant Loeras motion to suppress the child pornography recovered by FBI agents from his bedroom should be denied on one, or several, of the following grounds: (1) Defendant Loera has failed to establish his standing to seek suppression of the child pornography, asserting only that the electronic media and illegal images at issue were allegedly his; (2) the agents preliminary preview of the CDs on-site during execution of the first search warrant on November 20, 2012, was within the scope of the first search warrant; (3) on November 27, 2012, for the limited purpose of providing a neutral Magistrate Judge with a description of just four images depicting the sexual abuse of a child, an FBI agent was permitted to open files on the CDs where agents had seen child pornography during execution of the first search warrant on November 20, 2012; (4) even if the FBI agent was not permitted to open the files on November 27, 2012, in order to provide such a description, probable cause to issue the second search warrant still exists if those descriptions are excised from the affidavit in support of the second warrant; (5) even if the search warrant issued on November 29, 2012, suffered from an incurable defect, any error did not rise to the level justifying exclusion of evidence and agents relied on that warrant in good faith in carrying

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out their search; and (6) even if the FBI had not obtained the November 29, 2012, search warrant authorizing the search of the computer and other electronic media for evidence of child pornography, agents would have inevitably discovered such evidence while searching the media pursuant to the search warrant issued on November 19, 2012. BACKGROUND On November 19, 2012, a United States Magistrate Judge issued a search warrant authorizing the FBI to search Defendant Loeras residence in connection with the FBIs investigation into the illegal hijacking of the domain www.susana2010.com and its associated email accounts through the use of computers or other electronic devices (hereinafter the First Warrant, attached hereto as Exhibit 1). That domain was created on July 18, 2009. Exh. 1 5 (affidavit). Not surprisingly, given the nature of the investigation, the First Warrant authorized the FBI to search and seize computers and other electronic media. See, e.g., Exh. 1 at Attachment B, 2-4. Defendant Loera possessed a large volume of electronic media, including CDs, computers, external hard drives, a thumb drive, a tablet, and a smart phone. During execution of the First Warrant, FBI agents conducted a cursory preview of CDs found in Defendant Loeras bedroom to see if a determination could be made on-site as to whether or not a particular CD should be seized so that an off-site forensic examination, also authorized by the First Warrant, could be conducted. In performing this on-site triage, FBI Special Agents Cravens and Nishida discovered that Defendant Loera stored child pornography on at least four of his CDs. Agents seized those CDs and also seized other electronic media as authorized by the First Warrant.

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On November 29, 2012, Agent Cravens obtained a search warrant to search the CDs and other electronic media seized from Defendant Loeras bedroom for evidence of child pornography (hereinafter the Second Warrant, attached hereto as Exhibit 2). As he set forth in his affidavit in support of his application for the Second Warrant, Agent Cravens went back to the four CDs on which child pornography had been seen during the on-site preview, and on November 27, 2012, opened some files on those CDs and included in his affidavit a brief description of three still images and one video of child pornography that Defendant Loera stored on those CDs. Contrary to Defendant Loeras claim, the child pornography was not located using the computer forensics software FTK either on-site or by Agent Cravens in preparing his affidavit. 1 At both Defendant Loeras residence and the FBI office, Agent Cravens simply clicked on the CD and on some of the files stored on the CD and the illegal images were readily apparent. In his affidavit in support of the Second Warrant, Agent Cravens explained that he had been an FBI Special Agent for eight years and that he had experience in investigating crimes against children on the Internet and computer crimes. Exh. 2 2. He explained how the FBI previewed loose media during execution of the First Warrant and that during the preview, four writable CDs which appeared to contain images of child pornography were found. He further

In preparing his affidavit, Agent Cravens tried to use FTK Imager, an imaging tool that also has limited previewing capabilities, but he was unable to get that product to work so he resorted to just clicking on files or thumbnails. In addition, Defendant Loera asserts that on November 27, 2012, Agent Nishida conducted a search of Defendant Loeras laptop and its hard drive for evidence of child pornography. That is not what Agent Nishida did. Although he was authorized to search the computer for evidence related to the domain hijacking, on November 28, 2012, Agent Nishida only imaged the hard drive and pre-processed it. He did not begin to conduct a search of the hard drive until December 4, 2012, after the Second Warrant was obtained. 3

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explained that a week after the First Warrant was executed, he reviewed those four CDs. Agent Cravens then, based on his review of the CDs on November 27, 2012, provided a total of five sentences to more fully describe three still images and one video of child pornography from the four CDs. 2 Those sentences are: MAR36020.jpg, an image of a fully nude female the writer believes to be between 6 and 10 years of age, with her mouth on the penis of an adult male, Exh. 2 24.a., img20040422053035.jpg, an image of two fully nude males the writer believes to be between 6 and 12 years of age lying on a bed. Both of the males are facing up with one male on top of the other male with the lower males penis inserted into the top male, Exh. 2 25.a., img20040417113808.jpg, an image of a fully nude female the writer believes to be between 6 and 12 years of age on a recessed wall frame with a mirror sitting in a squat position with her legs spread apart and her hands on her knees, Exh. 2 26.a., and AnyaCool_Sc.rm, a video of a fully nude female the writer believes to be between 6-12 years of age lying in different positions on a grey blanket near some trees masturbating. Exh. 2 27.a. Agent Cravens also provided information about how electronic media is used in connection with child pornography. Before being presented to the United States Magistrate Judge, Agent Cravens application package was reviewed by the Assistant U.S. Attorney who was assigned to this case at the time. The Magistrate Judge issued the Second Warrant on November 29, 2012. Beginning in December of 2012, following the issuance of the Second Warrant, Agent Nishida, who is a CART Examiner, conducted a forensic examination of the electronic media

Because of the volume of material to be previewed on-site, and because the purpose of the preview was to determine what items the FBI would seize for later examination under the authority of the First Warrant, Agent Cravens and Agent Nishida did not make notes about the child pornography images they saw during the on-site preview. 4

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seized from Defendant Loera for evidence set forth in both the First Warrant and the Second Warrant. It did not take Agent Nishida long to find more child pornography that Defendant Loera had stored on his electronic media. In a matter of minutes, Agent Nishida found that on his laptop, Defendant Loera had the following: numerous child pornography images in his My Documents folder; bookmarked sites with references such as Jailbait Cam, Lot of preteens, and Lolita Danny; under the All my files.txt tile on his desktop were references to webcams, including 11yo Maria Antonia, 3 10 yo Kopia, 14 yo-Lil-And-Girlfriend, and Spycam 9 yr Undress; and on his desktop in a file titled v.txt, descriptions of what are likely movie files including Vicky 10yo Anal Pumped (33m52s). During his search for child pornography under the Second Warrant, Agent Nishida found so many still images and movies of child pornography that, after reaching several hundred, he simply stopped counting. ARGUMENT 1. Defendant Has Not Established Standing In order to challenge the lawfulness of a search and seizure under the Fourth Amendment, a defendant must first establish his or her standing to do so. United States v. Marchant, 55 F.3d 509, 512 (10th Cir. 1995) (citations omitted). [A] threshold issue in deciding a motion to suppress evidence is whether the search at issue violated the rights of the particular defendant who seeks to exclude the evidence. Marchant, 55 F.3d at 512 (internal quotations and citations omitted). Here, Defendant Loera has not established his standing to contest the FBIs search. As a result, his motion should be denied.

Where yo is a common term child pornographers use for years old. 5

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Defendant Loera seeks suppression of [a]ny and all evidence seized from Mr. Loeras alleged effects pursuant to the governments illegal seizure and search of Mr. Loeras effects at Mr. Loeras residence . Doc. 35 1 (emphasis added); see also Doc. 35 2 (seeking suppression of all evidence seized from Mr. Loeras alleged effects), 3 (the alleged effects of Mr. Loera), and 4 (Mr. Loeras alleged effects). By not claiming a possessory or property interest in the evidence he seeks to suppress, he lacks standing to do so. See, e.g., United States v. Mosley, __ F.3d __, 2014 WL 804005, at *2 (10th Cir. 2014) (noting that a defendant who lacks a possessory or property interest in the evidence at issue lacks standing to challenge a search (although in the context of a vehicle search, an individual may challenge evidence seized during an illegal detention)). Because he lacks standing, Defendant Loeras motion should be denied. 2. The On-Site Preview of the CDs Was Within the Scope of the First Warrant Even if Defendant Loera had standing to contest the search of the electronic media at issue, his motion should be denied. Defendant Loeras first two arguments are that Agent Cravens and Agent Nishidas on-site preview of the CDs was outside the scope of the First Warrant. Those arguments must fail as the agents search was well within the bounds of the First Warrant. 4

To the extent Defendant Loera is asserting a particularity challenge as part of his argument, it is worth noting that the Tenth Circuit has adopted a somewhat forgiving stance when faced with a particularity challenge to a warrant authorizing the seizure of computers and also recognize(s) that a computer search may be as extensive as reasonably required to locate the items described in the warrant. United States v. Grimmett, 439 F.3d 1263, 1270 (10th Cir. 2006) (internal quotation marks and citations omitted). In addition, a warrant allowing the search of a computer is sufficiently particular if, as is the case with both the First Warrant and the Second Warrant, the search is limited to a search for evidence of a violation of a particular federal statute. See, e.g., United States v. Christie, 717 F.3d 1156, 1165 (10th Cir. 2013) (pointing out that the Tenth Circuit has said warrants may pass the particularity test if they limit their scope either to evidence of specific federal crimes or to specific types of material. (internal quotation marks and citations omitted)). 6

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The First Warrant outlined how the domain, and email accounts associated with, www.susana2010.com, which was established back on July 18, 2009, Exh. 1 5, was hijacked through the use of computers or other electronic devices. It described how subscriber information came back to Defendant Loera. The First Warrant noted that computer equipment was used to create and store records related to the electronic hijacking and that records covered by the warrant might be found on storage media, to include CDs. Exh. 1 32.c., 33, 34.e. The First Warrant described how the internet and email accounts were used in the hijacking, see Exh. 1 at 4-11, and explained how browsers and email programs store information on storage media that could reveal online nicknames and passwords and how storage media can indicate who used a computer or storage medium. Exh. 1 35.a, 35.b. Although Defendant Loera seems to suggest that all image files were beyond the scope of the First Warrant, see Doc. 36 at 4-5, the First Warrant in fact authorized agents to search and seize, among other things, pictures that could be found on physical objects upon which computer data can be recorded/stored, such as the CDs at issue here. Exh. 1 at Attachment B, 3 and 3.a. 5 Furthermore, under the First Warrant, if agents concluded that an on-site review of the electronic media was impractical, they could seize the

Not only could image files establish who used or owned a particular piece of electronic media or contain other evidence relevant to the domain hijacking investigation, such as GoDaddy images, the Tenth Circuit has recognized that a criminal can change identifiers in an effort to conceal evidence. See, e.g., United States v. Burgess, 576 F.3d 1078, 1093-94 (10th Cir. 2009) (noting that [i]t is unrealistic to expect a warrant to prospectively restrict the scope of a search by directory, filename, or extension or to attempt to structure search methods that process must remain dynamic, that illegal activity may not be advertised even in the privacy of ones personal computer it could well be coded or otherwise disguised, and allowing that unless specifically authorized by the warrant there would be little reason for officers searching for evidence of drug trafficking to look at tax returns (beyond verifying the folder labeled 2002 Tax Return actually contains tax returns and not drug files or trophy pictures)); United States v. Welch, 291 F. Appx 193, 197, 205 (10th Cir. 2008) (unpublished) (Logically, someone looking to conceal incriminating images would delete or hide them under a different name in an unlikely location.). 7

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media for off-site review. Exh. 1 37. The First Warrant noted that when searching the electronic media, agents might employ techniques that would allow them to scan the entire media to determine if an item was covered by the warrant. Exh. 1 37. Because of the large number of CDs Defendant Loera possessed, Agents Cravens and Nishida easily could have concluded that it would be impractical to review the media on-site, and could have seized all of the CDs for off-site review. Exh. 1 37. Instead, in an effort to leave with Defendant Loera items that did not contain information sought by the First Warrant, Agents Cravens and Nishida conducted an on-site, manual preview of the CDs. It was while previewing the CDs for evidence related to the domain hijacking, within the scope of the First Warrant, that the agents happened upon some of the child pornography that Defendant Loera possessed. As part of his beyond the scope argument, Defendant Loera asserts that the child pornography images the agents found on-site during their preview, after seeing the first image of child pornography, were beyond the scope of the First Warrant. Doc. 36 at 7, 9. That part of his argument, too, must fail. Agents were not required to stop their search for evidence related to the domain and email hijacking just because they came upon child pornography. In support of his assertion, Defendant Loera cites United States v. Carey, 172 F.3d 1268, 1273 (10th Cir. 1999). Defendant Loeras reliance on Carey is misplaced. First, as the Tenth Circuit pointed out in Carey, and has recognized since, Carey is limited to its facts. See Carey 172 F.3d at 1276 ([W]e are quick to note these results are predicated only upon the particular facts of this case, and a search of computer files based on different facts might produce a different result.); United States v. Burgess, 576 F.3d 1078, 1092 (10th Cir. 2009) (reiterating that the 8

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Carey holding was limited. Both the majority and the concurring opinions were careful to warn that the case was fact intense.). Second, as Judge Baldock pointed out in his concurring opinion in Carey, if the record showed that Detective Lewis had merely continued his [warrant-authorized] search for drug-related evidence, and, in doing so, continued to come across evidence of child pornography, I think a different result would be required. That is not what happened here, however. Carey, 172 F.3d at 1277 (Baldock, J., concurring); see also United States v. Welch, 291 F. Appx 193, 197, 205 (10th Cir. 2008) (unpublished) (affirming denial of motion to suppress where child pornography warrant was obtained after officer saw 11 images of child pornography during search for drug evidence). The Tenth Circuit made clear that the searching officer in Carey, after finding child pornography, abandoned that search [for warrant-authorized drug-related evidence] to look for more child pornography, and only went back to searching for drug-related documents after conducting a five hour search of the child pornography files. Carey, 172 F.3d at 1273. That is not what happened here, however. Unlike the searching officer in Carey, who admitted that each time he opened a subsequent JPG file, he expected to find child pornography and not material related to drugs [yet he] still continued to open every JPG file to confirm his expectations, Carey, 172 F.3d at 1273, the agents search here was limited to previewing a limited number of files to see if the CD contained information that they were authorized to seize under the First Warrant. Unlike the officer in Carey, the agents here did not abandon their search for electronic hijacking-related evidence and begin a search for child pornography without a warrant. 6
6

This conclusion is supported by the fact that the agents here, unlike the officer in Carey, actually did seek and obtain a search warrant to search for child pornography before Agent Nishida began his search for child pornography. 9

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The agents authorized actions on-site in ascertaining which CDs to seize for later, authorized off-site review for evidence related to the email and domain hijacking was wholly reasonable. See, e.g., United States v. Hargus, 128 F.3d 1358, 1361 (10th Cir. 1997) (setting forth the standard that [t]he ultimate determination of reasonableness under the Fourth Amendment, however, is a question of law which we review de novo, considering the totality of the circumstances. (citation omitted)). The agents did not exceed the scope of the First Warrant when they conducted their on-site preview of the CDs. They were well within the bounds of the First Warrant, finding Defendant Loeras child pornography only while looking for evidence of the electronic hijacking as authorized by the First Warrant. 3. Agent Cravens Did Not Exceed the Scope of the First Warrant on November 27, 2012 -- For the Limited Purpose of Providing a Neutral Magistrate Judge with a Description of Just Four Images Depicting the Sexual Abuse of a Child, He Was Not Prohibited from Opening Files on the CDs Where Agents Had Seen Child Pornography 7 In the clamor of the First Warrants execution, neither Agent Cravens nor Agent Nishida recorded a description of the child pornography they saw while previewing the CDs for evidence related to the domain and email hijacking. While Agent Cravens could have obtained a warrant to search Defendant Loeras electronic media for evidence related to child pornography by, as he did, describing in his affidavit his training and experience and the fact that FBI agents saw images of child pornography on Defendant Loeras electronic media during execution of the First Warrant, he wanted to provide the Magistrate Judge who issued the Second Warrant with a description of a few of those images. For that limited purpose, he reviewed some of the files on the four CDs and included in his affidavit a very brief description, totaling five sentences, of three still images and

As with the other arguments contained in this response, the Court need not reach this argument should it conclude that Defendant Loera lacks standing to seek suppression. 10

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one video. Agent Cravens knew, as objectively demonstrated by his seeking and obtaining the Second Warrant, that he would need to obtain a warrant authorizing a purposeful search for child pornography before the FBI engaged in such an endeavor. His limited review of some files so that he could include a brief description in his affidavit did not rise to the level of an unlawful search outside the scope of the First Warrant. Generally, law enforcement engaged in a lawful search who wish to abandon that search and begin a focused search for child pornography, need to obtain a search warrant before beginning the child pornography search. See, e.g., United States v. Burgess, 576 F.3d 1078, 1094-95 (10th Cir. 2009) (noting that as our cases seem to require, [the officer] immediately closed the gallery view when he observed a possible criminal violation outside the scope of the warrants search authorization and did not renew the search [for child pornography] until he obtained a new warrant.); Welch, 291 F. Appx at 204 (pointing out that Carey provided some rough guidance for those conducting searches (as opposed to those issuing warrants)). Here Agent Cravens obtained a search warrant for child pornography. The FBIs search for child pornography then occurred when Agent Nishida searched the electronic media for child pornography pursuant to the Second Warrant beginning in December of 2012. Agent Cravens viewing of some images to provide brief descriptions in his affidavit in support of the Second Warrant did not go beyond the scope of the First Warrants searching authority.

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4. Even if Agent Cravens Exceeded the Scope of the First Warrant by Looking at Images on November 27th in Order to Include a Description in His Affidavit, Excising Those Descriptions Still Results in a Valid Warrant If the Court were to conclude that the law prohibited Agent Cravens from looking at the images on the CDs in his effort to include a description of the images in his affidavit, the Court still should find that the Magistrate Judge properly issued the Second Warrant. Agent Cravens affidavit establishes probable cause even if his brief description of the illegal images is excised from the warrant. As this Court has noted, if illegally obtained information is used to obtain a search warrant, the Court is to consider the warrant with the illegally obtained information excluded and determine, based on the remaining information, whether probable cause nevertheless existed. If the remaining content of the warrant affidavit establishes probable cause, the search pursuant to that warrant was appropriate, and the evidence need not be excluded. United States v. Christy, 785 F. Supp. 2d 1004, 1034 (D.N.M. 2011) (Browning, J.) (citing United States v. Sims, 428 F.3d 945, 954 (10th Cir. 2005); United States v. Cusumano, 83 F.3d 1247, 1250 (10th Cir. 1996) (en banc), and United States v. Snow, 919 F.2d 1458, 1460 (10th Cir. 1990)). As this Court knows, probable cause exists when there is a fair probability that contraband or evidence of a crime will be found in a particular place. United States v. Simpson, 152 F.3d 1241, 1246 (10th Cir. 1998) (citations and internal quotations omitted). Here, in the affidavit he swore out, Agent Cravens described how he had been an FBI agent for eight years, that his experience included investigations of crimes against children on the Internet, that when he used the term child pornography he meant a visual depiction involving the use of minors engaged in sexually explicit conduct that has a nexus to interstate commerce, 12

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that such images are illegal, how computers and other electronic media are used in the illicit child pornography industry, including how computers are used to save images to CDs, and that child pornography images were found on four CDs during execution of the First Warrant. Exh. 2 2, 6, 7-19, 21. In addition, the Tenth Circuit has acknowledged that the term child pornography has a generally understood meaning and referring to images of child pornography has been sufficient to support a search warrant in this circuit. See, e.g., Simpson, 152 F.3d at 1247 (in affirming denial of motion to suppress noting that courts have acknowledged that such generalized descriptions as child pornography are adequate to convey to the officer executing the search warrant the nature of the material sought. This is because the words child pornography need no expert training or experience to clarify their meaning. (citations and internal quotation marks omitted)); United States v. Haymond, 672 F.3d 948, 959 (10th Cir. 2012) (upholding search warrant where affidavit described peer-to-peer investigation, including the fact that [the agent] observed a user with an IP address linked to [the defendants] residence who had numerous files of child pornography available for other LimeWire users to access, view, and download and that [t]his information would cause a reasonable person to believe evidence of child pornography would be recovered from [the defendants] residence); United States. v. Cervini, 16 F. Appx 865, 868 (10th Cir. 2001) (unpublished) (affirming denial of motion to suppress where affidavit indicated that two images of child pornography were posted to an Internet newsgroup with an IP address that resolved to the defendants residence, concluding that [t]he totality of the facts enable a reasonable person to draw the common-sense conclusion that evidence of the crime would be found at [the defendants] residence). 13

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Thus, even without Agent Cravens description of the images he saw on November 27, 2012, his affidavit established sufficient probable cause for the Magistrate Judge to issue the Second Warrant. 5. Even if the Second Warrant Suffered from an Incurable Defect, Any Error Did Not Rise to the Level Justifying Exclusion of Evidence and Agents Relied on that Warrant in Good Faith in Carrying out Their Search The abuses that led to the exclusionary rule featured intentional conduct that was patently unconstitutional. Herring v. United States, 555 U.S. 135, 143 (2009). The exclusionary rule is meant to deter a flagrant or deliberate violation of rights . United States v. Otero, 563 F.3d 1127, 1134 (10th Cir. 2009) (quoting Herring, 555 U.S. at 144). Furthermore, [t]o trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. Herring, 555 U.S. at 144. When law enforcement mistakes do not amount to systemic error or reckless disregard of constitutional requirements, any marginal deterrence does not pay its way. Herring, 555 U.S. at 147-48 (internal quotation and citation omitted). Also, an agents knowledge and understanding ... and [his] appreciation for constitutional intricacies are not to be judged by the standards applicable to lawyers. United States v. Cardall, 773 F.2d 1128, 1133 (10th Cir.1985). As in Herring, any error that may have occurred here should not result in suppression as it does not rise to th[e] [required] level. Herring, 555 U.S. at 144. In United States v. Leon, 468 U.S. 897 (1984) the Supreme Court held that evidence seized pursuant to a warrant issued by a neutral and detached magistrate later found invalid may still be admissible if the executing officer acted in objective good faith and with reasonable reliance on the warrant. United States v. Reed, 195 F. Appx 815, 825 (10th Cir. 2006) 14

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(unpublished). The Supreme Court in Leon recognized four situations in which an officer would not have reasonable grounds for believing a warrant was properly issued. Reed, 195 F. Appx at 825. None of those situations are present here and, as a result, the good faith exception would apply should the Court find the Second Warrant to be invalid. The four situations recognized by Leon where the exclusionary rule would apply are (1) the issuing judge was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) the issuing judge wholly abandoned his judicial role and failed to perform his neutral and detached role; (3) the affidavit issued to support the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) the warrant is so facially deficient that the executing officers cannot reasonably presume it to be valid. Reed, 195 F. Appx at 825-26 (citing Leon, 468 U.S. at 918, 923). In this case, the issuing Magistrate Judge was not mislead by any false facts, he remained neutral and detached, the affidavit overwhelmingly established probable cause, and there was nothing on the face of the warrant that would lead executing agents to presume it was invalid. The facts of this case exude good faith and demonstrate that any error that may be found is not systemic or the result of a reckless disregard of constitutional requirements. The FBI did not ignore the warrant requirement and conduct a wholesale warrantless search of Defendant Loeras electronic media for child pornography-related evidence. To the contrary, Agent Cravens obtained the Second Warrant so that the FBI would be authorized to conduct a search for evidence related to child pornography after such evidence was discovered during execution of the First Warrant. He sought the Second Warrant only after it had been approved by a lawyer. He

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informed the Magistrate Judge of the steps he had taken to obtain the descriptions he included in his affidavit. The Second Warrant was appropriately limited to seeking evidence related to violations of 18 U.S.C. 2252. See Otero, 563 F.3d at 1134-35 (noting that in United States v. Riccardi, 405 F.3d 852 (10th Cir. 2005) the Tenth Circuit found a number of factors that indicated the good faith of the officers which included that the officer had the warrant approved by a lawyer, the search was limited to the crime for which there was probable cause; the officers who executed the warrant had been involved in the investigation, and further noting that, one of the more important facts that [Otero] shares with [Riccardi] is the officers attempts to satisfy all legal requirements by consulting a lawyer.). As objectively demonstrated by his efforts in obtaining the Second Warrant, Agent Cravens was trying to comply with the law. If the Court now finds that he did something wrong, his actions were at most negligent. That is not enough to justify exclusion. Furthermore, Agent Nishida did not begin searching the electronic media for evidence related to child pornography until a neutral Magistrate Judge had issued the Second Warrant. Agent Nishida reasonably and in good faith relied on the Magistrate Judges determination that probable cause existed for the FBI to conduct a search for child pornography-related evidence on Defendant Loeras electronic media. In fact, Agent Nishida knew that probable cause existed because he had seen child pornography on Defendant Loeras CDs during his on-site preview in connection with the execution of the First Warrant. Even if the Court determines that there was some technical defect with the Second Warrant, this is not a case where the exclusionary rule should come into play. At the very least, Leons good-faith exception should apply.

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6. Even if the FBI Had Not Obtained the Second Warrant Authorizing the Search of the Computer and Other Electronic Media for Evidence of Child Pornography, Agents Would Have Inevitably Discovered Such Evidence While Searching the Media Pursuant to the First Warrant Even evidence obtained in violation of the Fourth Amendment should not be suppressed if agents inevitably would have discovered that evidence through lawful means. See United States v. Christy, 739 F.3d 534, 540 (10th Cir. 2014). In the inevitable discovery arena, if this Court finds a Fourth Amendment violation, it is then to determine how likely it is that a warrant would have been issued and that the evidence would have been found pursuant to the warrant. Christy, 739 F.3d at 541 (quoting United States v. Souza, 223 F.3d 1197, 1204 (10th Cir. 2000)). In this case, if the Second Warrant is imagined not to have existed, not only is it likely that a child pornography warrant would have been issued and that evidence would have been found pursuant to that warrant, it is certain. Defendant Loera had so much readily accessible child pornography on his electronic media that not only would agents have inevitably discovered the contraband while searching under the authority of the First Warrant, they would have done so, in all likelihood, in a matter of minutes. When Agent Nishida searched Defendant Loeras laptop, which had not been previewed during the execution of the First Warrant, he quickly found that Defendant Loera had saved, among other things, several child pornography sites in his bookmarks, he had a text file on his desktop that contained easily recognizable child pornography terms, and he stored easily located images of child pornography. Even if there had been no on-site preview of Defendant Loeras CDs, Agent Nishida would have come across this easily accessible child pornography evidence Defendant Loera had on his laptop while he was conducting a search pursuant to the First Warrants authority. 17

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Once Agent Nishida found that evidence the FBI would have obtained a search warrant authorizing a search for child pornography and Agent Nishida would have uncovered more child pornography during a search authorized by that warrant. We know Agent Nishida and the FBI would have done that after finding child pornography because that is exactly what they did when Agent Nishida and Agent Cravens found child pornography during the on-site execution of the First Warrant. As a result, even if the Court invalidates the search conducted pursuant to the Second Warrant, because the evidence obtained during that search inevitably would have been discovered by the FBI through lawful means, the evidence obtained should not be suppressed. In addition, to the extent the four Souza factors can be applied to a case where a search warrant was actually obtained, a search was conducted pursuant to that warrant, and the warrant was later found to be defective, all four factors favor a finding of inevitable discovery in this case. The Souza factors are: 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. Christy, 739 F.3d at 541 (quoting Souza, 223 F.3d at 1204). In this case, the warrant process had been completed, as both the First Warrant and the Second Warrant were obtained prior to Agent Nishida beginning his search for child pornography. Thus, the first Souza factor supports a finding of inevitable discovery. The strength of the showing of probable cause at the time Agent Nishida conducted his search is undeniably high -- both Agent Cravens and Agent Nishida had personally seen child pornography during their on-site preview of Mr. Loeras CDs. In addition, as discussed above, 18

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even without Agent Cravens description of the images he saw on November 27, 2012, his affidavit established probable cause that evidence of child pornography would be found on Defendant Loeras electronic media. Thus, the second Souza factor supports a finding of inevitable discovery. The Second Warrant was obtained and, as discussed above, had there been no Second Warrant, there is no question that the FBI would have obtained a warrant authorizing a search for child pornography evidence once Agent Nishida found such evidence during his search for evidence related to the electronic hijacking that was authorized by the First Warrant. This Souza factor, too, supports a finding of inevitable discovery. Finally, agents here did not jump the gun. They had complete confidence that probable cause existed to support the issuance of a search warrant, they obtained that search warrant, and then, only after obtaining that search warrant, did Agent Nishida conduct a search for child pornography-related evidence. This fourth, and final, Souza factor supports a finding of inevitable discovery. The facts of this case demonstrate that if the Court finds the Second Warrant to have been invalid, the evidence obtained from the search authorized by that warrant should not be suppressed as it inevitably would have been lawfully discovered.

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For all of the reasons set forth in this response, Defendant Loeras motion to suppress should be denied. Respectfully submitted, DAMON P. MARTINEZ Acting United States Attorney Electronically filed on 4/7/14 DEAN TUCKMAN Assistant United States Attorney P.O. Box 607 Albuquerque, NM 87103 (505) 346-7274

I HEREBY CERTIFY that on April 7, 2014, this document was filed electronically through the Court=s CM/ECF system, which should cause it to be served on counsel of record. Electronically filed on 4/7/14 DEAN TUCKMAN Assistant United States Attorney

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