## Facts

- FBI investigated a child-pornography website and obtained a list of email addresses that appeared to be associated with attempts to access the site; one email address was linked to David J. Falso.
- A warrant affidavit asserted that Falso “appears to have gained or attempted to gain access” to a website containing approximately eleven child-pornography images.
- The affidavit did not allege that Falso was a confirmed member or subscriber, nor that he actually accessed, viewed, downloaded, or possessed child pornography.
- The affidavit also described an 18-year-old misdemeanor conviction for sexual abuse of a minor and stated that persons with a sexual interest in children often keep child-pornography images at home.
- A magistrate judge issued a warrant to search Falso’s residence and computer; agents executed the warrant and found child pornography.
- Falso was indicted on numerous counts and entered a conditional guilty plea preserving his right to appeal the denial of his suppression motion.

## Issues

1. Whether the affidavit provided a substantial basis for finding probable cause to search Falso’s home based on an equivocal allegation of attempted website access plus an 18-year-old sex-offense conviction.
2. If probable cause was lacking, whether the seized evidence was admissible under the Leon good-faith exception to the exclusionary rule.

## Decision

- The Second Circuit held that the warrant was not supported by probable cause because the affidavit did not establish a fair probability that evidence of child-pornography crimes would be found at Falso’s home.
- The court nevertheless held that suppression was unwarranted because the executing officers’ reliance on the warrant was objectively reasonable under Leon.
- The court affirmed the denial of the motion to suppress.

## Legal Principles

- Probable cause requires a fair probability, under the totality of the circumstances, that evidence of a crime will be found in the place to be searched; equivocal assertions and weak inferences cannot substitute for concrete connecting facts.
- A suspect’s past wrongdoing, standing alone, does not establish present probable cause; an old, minimally described conviction carries limited weight absent current corroboration linking the suspect, the offense, and the place to be searched.
- In child-pornography website investigations, probable cause is stronger when the affidavit alleges facts such as confirmed membership/subscription, actual access, or other conduct indicating knowing involvement; mere attempted access, without more, may be insufficient.
- Under Leon, evidence obtained pursuant to a warrant will not be suppressed when officers reasonably rely on a warrant issued by a neutral magistrate, unless the affidavit is so lacking in indicia of probable cause that belief in probable cause is entirely unreasonable.

## Conclusion

The court concluded the affidavit did not establish probable cause to search for child pornography based on a vague allegation of attempted website access and a remote misdemeanor conviction, but admitted the evidence because agents executed a magistrate-issued warrant in objectively reasonable reliance under the Leon good-faith exception.


United States v. Falso, 544 F.3d 110 (2d Cir. 2008)