11th Circuit rules evidence justifies charges in Florida child pornography case

A federal appeals court has rejected arguments from a Tallahassee man charged with child pornography that police were wrong to rely on evidence from his internet service provider through the federally authorized CyberTip program.

In a 24-page ruling Thursday by a three-judge panel of the 11th U.S. Circuit Court of Appeals, Judge Andrew Brasher wrote that the arresting officer reasonably relied on evidence service provider Synchronoss forwarded to the Tallahassee Police Department through the National Center for Missing and Exploited Children’s (NCMEC) CyberTip program.

The court noted that the officer had extensive experience with this type of case and that the exclusionary rule under the 4th Amendment did not apply.

“When asked to exclude evidence of crime, we must keep in mind that the purpose of the exclusionary rule is to deter police misconduct. Suppression of evidence is a remedy of last resort,” Brasher wrote.

“The Supreme Court has recognized that good faith mistakes cannot be deterred and are not worth the ‘heavy toll’ the exclusionary rule takes on society and the courts,” he continued. “In a case like this one — the execution of a warrant based on a tip from a source established by Congress that has proven credible in the past — we see little deterrence benefit from the exclusionary rule.”

Judge Kevin Newsom and Paul Huck of the U.S. District Court for the Southern District of Florida, sitting by designation, signed the opinion.

The case involved Kevan Gibbs, accused of uploading suspected child sexual abuse material to his account, according to the written opinion, and charged with sexual exploitation of a minor and possession of child pornography.

A federal trial judge excluded images of a man sexually abusing a young girl on the ground that the affidavit in support of the search warrant that produced them “was too vague and conclusory to support probable cause or allow reasonable reliance on the resulting warrant,” the opinion says.

“Gibbs argues that the affidavit lacks sufficient indicia of probable cause because it does not describe the images found in his Synchronoss account. As the Supreme Court has explained, however, the existence of probable cause depends on the totality of the circumstances, not any particular factor,” Brasher wrote.

“It is true that an affidavit may establish probable cause by describing the alleged contraband — in this case child pornography. And it is true that this affidavit did not describe the pictures that were on Gibbs’s account,” he continued.

“But information from a trustworthy source can also provide probable cause,” he concluded.

“We also think it reasonable for a law enforcement officer to conclude that, when an electronic service provider says it has identified suspected child pornography on a customer’s account, there is probable cause to believe there is child pornography on the account.

“According to the affidavit, electronic service providers ‘maintain records pertaining to their subscribers,’ including ‘information concerning content uploaded and/or stored on or via the ESPs [sic] servers.’”

The ruling described NCMEC as “a particularly reliable source from which to receive a tip,” he wrote.

“As the affidavit makes clear, Congress created NCMEC to support law enforcement in the aid of sexually exploited children. It has ‘serve[d] as a repository for information about child pornography’ for over forty years. Recognizing its accuracy, we have held that NCMEC reports and spreadsheets bear sufficient indicia of reliability in the restitution context.”