The search warrant for defendant’s phone was defective and lacked probable cause. Child nudity alone is not child pornography, and the affidavit tracks the statute and doesn’t show that it was pornography. “We hold that the affidavit failed to cross this threshold. Its cursory description that the trooper saw ‘images of prepubescent penises that lacked pubic hair’ did little more than signify that the images contained child nudity. That description offered no detail as to the focus of the images, how the children were positioned in the images, or whether the images were sexually provocative in any other respect. See Rex, 22 N.E.3d at 1070-71. As was the case in Brunette, the affidavit here failed to provide a ‘reasonably specific description’ from which to assess probable cause. Brunette, 256 F.3d at 19.” In addition, the good faith exception does not save it because of the complete lack of probable cause. United States v. Sheehan, 2023 U.S. App. LEXIS 14311 (1st Cir. June 8, 2023):
Notwithstanding the salutary considerations that have spawned it, the good-faith exception is not a panacea for every invalid warrant. Importantly, an officer cannot be said to have relied on a warrant in good faith when the supporting affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.” Leon, 468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11, 95 S. Ct. 2254, 45 L. Ed. 2d 416 (1975) (Powell, J., concurring in part)). That a magistrate approved the warrant despite its obvious deficiencies does not mitigate the unreasonableness of the officer’s conduct. See Vigeant, 176 F.3d at 572; see also Malley v. Briggs, 475 U.S. 335, 346 n.9, 106 S. Ct. 1092, 89 L. Ed. 2d 271 (1986) (“The officer … cannot excuse [her] own default by pointing to the greater incompetence of the magistrate.”). And an officer’s reliance on a magistrate’s approval of a facially deficient warrant is especially unreasonable when those “deficiencies arise from the failure of the [officer] conducting the search to provide the required supporting information in the affidavit.” Cordero-Rosario, 786 F.3d at 72-73; cf. Groh v. Ramírez, 540 U.S. 551, 563-65, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004) (“[B]ecause petitioner himself prepared the invalid warrant, he may not argue that he reasonably relied on the Magistrate’s assurance that the warrant contained an adequate description of the things to be seized and was therefore valid.”). In such circumstances, suppression “remains an appropriate remedy.” Leon, 468 U.S. at 923.
“The government bears the burden of showing that its officers acted with objective good faith.” Brunette, 256 F.3d at 17. In assessing the government’s good-faith arguments, “we evaluate all of the attendant circumstances at the time of the warrant application and its execution.” Id. Here, the government has done little more than to state, in a conclusory fashion, that there were sufficient facts indicative of probable cause such that it was not objectively unreasonable for the officers to have relied on the second search warrant. But the record, fairly read, belies the government’s optimistic characterization.
For a start, the second affidavit was “so lacking in indicia of probable cause” that any reliance upon it was objectively unreasonable. Leon, 468 U.S. at 923. As we already have discussed, see supra Part IV(B), the affidavit encompassed little more than a cursory description of the images seen on Sheehan’s phone and the bare fact of his assault — a showing so bereft of factual support that no reasonable officer would have thought the warrant valid. See Doyle, 650 F.3d at 470-76 (holding that evidence of molestation and possession of nude images not enough to engender good-faith reliance that warrant for child pornography was supported by sufficient probable cause); United States v. Hodson, 543 F.3d 286, 293 (6th Cir. 2008) (finding good-faith exception did not apply when evidence of only child molestation was used to obtain search warrant for child pornography). And even though a magistrate ultimately approved the warrant application, Officer Puricelli herself was responsible for the warrant’s defects: she had available a trove of other information that she could have included in the warrant application but which she chose to withhold. Her decision to submit a bare bones affidavit and keep relevant data points to herself undercuts any suggestion that she was justified in relying on the magistrate’s assurances of the warrant’s legality. See Cordero-Rosario, 786 F.3d at 72-73.
When we have upheld searches for child pornography under the good-faith exception, we have done so based on affidavits that exhibited much more specificity and diligence than the second affidavit here. See United States v. Robinson, 359 F.3d 66, 67-70 (1st Cir. 2004) (upholding warrant on good-faith grounds when affidavit included evidence that defendant had surreptitiously photographed adolescents, viewed pornography on his computer around minors, and asked a child to pose provocatively for him); see also Syphers, 426 F.3d at 466-68. So, too, other circuits — in applying the good-faith exception — have done so only when the affidavits at issue contained detailed information about the history of the investigation and/or the defendant’s pedophilic predilections. See, e.g., United States v. Caesar, 2 F.4th 160, 174 (3d Cir. 2021) (holding good-faith exception applicable when affidavit described receipt of tip from National Center for Missing and Exploited Children, defendant’s suspicious online behavior seeking pictures of children in underwear, and evidence of sexual abuse of two children); United States v. Edwards, 813 F.3d 953, 971-73 (10th Cir. 2015) (same when affidavit stated that defendant had posted hundreds of images of child erotica, described some of those images in detail, contained defendant’s comments related to those postings, and provided affiant-officer’s opinion, based on training and experience, that purveyors of child erotica also possess child pornography). The affidavit prepared by Officer Puricelli in connection with the application for the second search warrant is conspicuously lacking in this level of detail.
Nor can it be said — even considering all the attendant circumstances — that Officer Puricelli held an objectively reasonable belief that her first affidavit was incorporated into the application for the second search warrant. To be sure, the second affidavit made clear that the devices to be searched had been seized during a previous search of Sheehan’s home and that a prior warrant application concerning those items had been submitted to the Hingham District Court. But those facts — whether viewed singly or in the ensemble — do not form the basis for a reasonable belief that the first affidavit was incorporated into the second when considered within the context of the record as a whole.
