In this case, without any warrant, National Center for Missing and Exploited Children (NCMEC) opened emails and attachments forwarded by AOL and Cybertips and discovered child pornography. They then investigated the IP address in question.
NCMEC then forwarded the CyberTip reports containing those emails and attachments, as well as the results of its public record searches, to the New Mexico Attorney General’s Office, Internet Crimes Against Children (“ICAC”) division. The defendant here moved to suppress “all evidence obtained directly or indirectly as a result of NCMEC’s warrantless search.” He argued, following the reasoning of the 10th Circuit in United States v. Ackerman, 831 F.3d 1292 (10th Cir. 2016) that NCMEC is a government entity or agent and therefore was required to obtain a warrant.
The Court here concluded that despite the warrantless search, the evidence should not be suppressed because both the good faith and the inevitable discovery exceptions to the warrant requirement apply here. The Court found a similarity to Illinois v. Krull in that there was a statutory scheme in place which expressly authorized NCMEC to open emails and attachments forwarded to it by Internet Service Providers.The Court concluded that law enforcement’s belief in the legality of their actions was objectively reasonable at the time.
The Court rejected the argument that the Carpenter decision meant that it was improper for law enforcement to use Grand Jury subpoenas toward internet service providers like AOL. The Court rejected the argument that the thirs party doctrine did not apply because the records sought in this case were more like the bank and telephone records in Miller and Smith than the comprehensive, detailed, and long-term location information in Carpenter.
The Court also held that two additional sources of information that would have led to inevitable discovery of the evidence without opening the five emails or their attachments: two additional CyberTips from AOL to NCMEC that are not the subject of the motion to suppress.
As a result of the good faith and inevitable discovery exceptions, the motion to suppress was denied by the District Court.
The case is United States v. Tolbert, 2018 U.S. Dist. LEXIS 125944, 2018 WL 3611053 (U.S. Dist. Ct. N.M.), ( July 27).