In this child pornography case, defendant argued that NCMEC was not a private actor citing Ackerman from the Tenth Circuit, but the record was not sufficiently developed for the court to conclude that. There was probable cause for the search warrant through AOL’s service through its finding child pornography in defendant’s emails. United States v. DiTomasso, 2019 U.S. App. LEXIS 22522 (2d Cir. July 30, 2019).
In Nebraska, an IAC claim can be made on direct appeal for that which is apparent from the record or it is defaulted if there is separate counsel. Appellate counsel asserts that trial counsel was ineffective for not making a motion to suppress arguing that probable cause or consent for the search is not apparent from the record. But, that’s not arguing that there was no probable cause or consent. [I.e., if it wasn’t pursued, it’s not there.] State v. Sherrod, 27 Neb. App. 435 (July 30, 2019).*