Does “Copy and Paste” Affidavit Amount to “Reckless Disregard” of the Facts?

United States v. O’Neill, 2024 WL 862161 (6th Cir. 2024)

Charles O’Neill’s son told his mother he had seen photographs of nude and partially nude minor boys on O’Neill’s phone as it was on the counter charging. The son told his mother he had looked through O’Neill’s iPad and found more photos of nude boys ranging in age from under five to 17. O’Neill’s wife then looked through O’Neill’s phone herself and found two albums, one containing “over one thousand images” of young boys in varying states of nudity.

O’Neill’s wife and son approached local police to report their discovery. The wife told an officer her son informed her he had “observed obscene photographs of young male children on his father’s cellular phone.” Based on the report, an investigator obtained a search warrant for O’Neill’s home to seize computers, phones, notebooks and other items that could contain evidence of crimes involving sexually explicit depictions of minors. The investigator wrote that “a report was received about a citizen possessing pornographic material involving a minor.”

The investigator included a statement in the affidavit that collectors tend “to maintain their collections at a secure, private location for long periods of time, and based on the fact that O’Neill had child pornography available on a peer-to-peer network there is probable cause to believe that evidence of the offenses of distributing, receiving and possessing child pornography is currently located” at O’Neill’s home. However, the investigator had no information that O’Neill had accessed a peer-to-peer network. The investigator copied and pasted information from an unrelated child pornography case affidavit and failed to excise the inaccurate information.

Because O’Neill was known to carry a gun, two officers went to his home to detain him prior to the warrant execution. As the investigator and others began to search the house, the detaining officers removed a cell phone from O’Neill’s front shirt pocket. Forensic technicians reviewed the phone and identified what they believed to be child pornography and child erotica. The investigator arrested O’Neill and took him to a police station for questioning. Officers found O’Neill’s iPad; a forensic examination identified 7,791 images, “most” of which “appeared to be of partially clothed prepubescent males,” including “multiple images of child pornography, mostly of prepubescent males, with the focus of the image on the child’s genitals.”

The day after the arrest, O’Neill’s son went to O’Neill’s barn on his own initiative and entered a room O’Neill had declared off-limits. The son intended to secure firearms he believed to be stored there. He found “a computer tower with monitor, computer discs, blank and used discs, vibrators and other sex toys, condoms, and children’s clothing and ‘costumes,’” along with “approximately fifteen firearms.” The son informed the investigator about his find. Because the barn was outside town limits, the investigator shared this information with a sheriff’s office investigator.

The sheriff’s office investigator obtained a search warrant for the barn, copying much of the first investigator’s affidavit and including information about the son’s discovery in the barn. When officers searched the barn, they seized a computer, camcorder, camera, digital storage devices, miscellaneous clothing, a vibrator, sexual paraphernalia, latex gloves, lubricant, “‘Speedo’ type underwear,” “satin type one-piece outfits,” “men’s white brief style underwear,” “fecal-stained sweatpants, and four vials of Promethazine, an antihistamine that can also be used for sedation.” Among the discs were recordings of O’Neill fondling a young boy’s genitals and performing oral sex on him. The boy was identified and interviewed. He told investigators O’Neill had sexually abused him for approximately six years.

The investigators here took “imperfect” steps to ensure the accuracy of the information copied and pasted from another affidavit. The warrants were not facially deficient, nor were they mere “bare bones” conclusory claims without factual support.

O’Neill was charged with sexually exploiting a minor and receiving or distributing child pornography. He asked the trial court to suppress the evidence found in his home and barn, arguing the affidavits contained false statements and did not support probable cause that evidence of a crime would be found. The trial court ruled that both the initial investigator and sheriff’s office investigator’s affidavits contained false statements about O’Neill’s access to peer-to-peer networks. The court also ruled the statement in the affidavit “about a citizen possessing pornographic material involving a minor” did not create probable cause to believe “that what O’Neill possessed was child pornography.” The trial court noted that “nude, or partially nude photos, even of children,” are not, without more, “pornography” (New York v. Ferber, 458 U.S. 747 (1982)). However, because neither investigator knowingly or recklessly misled the issuing magistrate, and their reliance on the warrants was objectively reasonable under the good-faith exception in United States v. Leon (468 U.S. 897 (1984)), suppression was not appropriate. O’Neill pleaded guilty to both charges conditional on his appeal of the trial court’s denial of his motion to suppress evidence. O’Neill was sentenced to 32 years in federal prison.

When an officer objectively and reasonably relies on a search warrant, the evidence will be admitted despite the warrant’s failings (United States v. Leon). Only if an officer’s reliance on the search warrant was “wholly unwarranted” will the evidence be suppressed. The Leon good-faith doctrine will not apply when the affiant makes deliberately false statements or omissions or acts in reckless disregard of the truth. A court cannot give the benefit of the good-faith exception to the exclusionary rule in any of the following circumstances: First, if the issuing court was misled by information in or omissions from the affidavit that the affiant knew was false or would have known was false but for his or her reckless disregard of the truth; second, where the issuing court wholly abandoned judicial neutrality; third, where the warrant is based on an affidavit so lacking in probable cause as to render a probable cause finding entirely unreasonable; and fourth, where the warrant so poorly describes the place to be searched or the things to be seized that executing officers are unable to rely on the descriptions.

O’Neill claimed the first, third and fourth conditions should have barred the introduction of the evidence. The majority of the appellate court disagreed. The court noted the recklessness standard asks whether the officer “in fact entertained serious doubts as to the truth of the affidavits or had obvious reasons to doubt the accuracy of the information contained therein.” That was not the case. The investigators here took “imperfect” steps to ensure the accuracy of the information copied and pasted from another affidavit. The warrants were not facially deficient, nor were they mere “bare bones” conclusory claims without factual support. The court held the investigators’ reliance on the search warrants was objectively reasonable, and therefore suppression was not required.

The dissent wrote the warrant was deficient and could not be saved by the good-faith exception. The dissent was highly critical of the copy-and-paste errors. The majority countered that, even if it shared the dissent’s view on the investigators’ state of mind, denial of the suppression motion was proper because the remaining content of the affidavit would likely establish probable cause.

It is probably fair to say the majority of search warrant affidavits are built upon the framework of a prior affidavit. That admittedly happened here. A little more effort into proofreading and perhaps a second critical eye on the affidavits might have prevented the basis for the suppression motion.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over four decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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