United States v. Ackerman

FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit FOR THE TENTH CIRCUIT February 26, 2020 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA, Plaintiff – Appellee, v. No. 17-3238 (D.C. No. 6:13-CR-10176-EFM-1) WALTER ACKERMAN, (D. Kan.) Defendant – Appellant. —————————— ELECTRONIC FRONTIER FOUNDATION; BRENNAN CENTER FOR JUSTICE; CENTER FOR DEMOCRACY & TECHNOLOGY; NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS; DOWNSIZE DC FOUNDATION; DOWNSIZEDC.ORG; FREE SPEECH COALITION; FREE SPEECH DEFENSE AND EDUCATION FUND; GUN OWNERS FOUNDATION; GUN OWNERS OF AMERICA, INC.; CONSERVATIVE LEGAL DEFENSE AND EDUCATION FUND; RESTORING LIBERTY ACTION COMMITTEE, Amici Curiae. ORDER AND JUDGMENT* * This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. Before HARTZ, MATHESON and EID, Circuit Judges. The defendant-appellant, Walter Ackerman, used his AOL email account to send child pornography. AOL recognized one of the images as child pornography and sent a copy of the email to the National Center for Missing & Exploited Children (NCMEC). Without a warrant, NCMEC opened and inspected the email. Ackerman believed that this was an unconstitutional search and filed a motion to suppress the evidence obtained from it. The district court denied the motion, but we reversed and remanded. On remand, the district court again denied the motion. The district court concluded that Ackerman’s constitutional rights were not violated, and in any event, the suppression motion should be denied because the good-faith exception to the exclusionary rule applies. In this appeal, Ackerman challenges the district court’s second denial of his motion. Because we agree with the district court that the good-faith exception to the exclusionary rule applies, we affirm. I. On April 22, 2013, Ackerman used his AOL email account to send four images of child pornography. See R1.1 at 1 (Indictment); R1.37 at 6 (Memorandum and Order Denying Motion to Suppress); R1.61 at 11–12 (Transcript of Motion Hearing). AOL’s automated system immediately recognized one of the images as child pornography, stopped the email from being delivered, and terminated Ackerman’s AOL account. See R1.37 at 6; R1.61 at 91. The following day, AOL’s automated system generated and sent a report to NCMEC’s CyberTipline that contained a digital copy of Ackerman’s April 22 2 email. See R1.37 at 5–6; R1.61 at 92, 95 (describing the process generally). A NCMEC employee reviewed the report, determined that Ackerman’s email contained four images of child pornography, and forwarded the report to Kansas law enforcement. See R1.37 at 6. Upon receiving NCMEC’s report of Ackerman’s illegal activity, Kansas law enforcement obtained a search warrant of Ackerman’s residence. See R1.37 at 6–7. At Ackerman’s residence, law enforcement discovered more child pornography on several devices. See id. Ackerman was then charged with one count of possession of child pornography, 18 U.S.C. § 2252(a)(4)(B), and one count of distribution of child pornography, 18 U.S.C. § 2252(a)(2). …Original document