Motion to Suppress Evidence in Federal Child Pornography Cases

The 2% Chance That Changes Everything

Motions to suppress evidence succeed less then 2% of the time. Read that number again. Less then 2%. Defense attorneys file thousands of these motions every year in federal criminal cases, and the vast majority fail. The government wins. The evidence stays in. The case proceeds to trial or plea. So why do attorneys keep filing suppression motions that almost always lose?

Because when they win, the entire case collapses.

Welcome to Spodek Law Group. We’re putting this information on our website because the motion to suppress is the most misunderstood weapon in federal criminal defense. People hear the 2% success rate and assume its not worth trying. They dont understand that suppression motions create leverage even when they fail – and when they succeed, prosecutors dont limp forward with weakened cases. They dismiss. Everything falls apart becuase the foundation crumbled.

Todd Spodek has filed suppression motions in federal child pornography cases. The Fourth Amendment still provides protections – when you know where to look. Understanding how these motions work, what grounds exist for filing them, and why they matter even when the odds seem hopeless is essential for anyone facing charges based on seized digital evidence.

The 2% Success Rate Nobody Wants You To Know

Heres the paradox that defines suppression motion strategy. Motions to suppress evidence succeed in less then 1% of cases involving primary warrants. Only 2% of all defendants have there motions sustained. Approximately 1.5% of defendants are allowed to go free as a result of successful suppression.

Those numbers sound devastating. They sound like suppression motions are a waste of time and money. They sound like you should just accept that the evidence is coming in and focus on other defense strategies.

But heres what the numbers dont tell you. When a judge grants a suppression motion, the prosecution dosent proceed to trial with a weakened case. They dont limp forward. They dismiss. Entire cases collapse becuase the evidence that built the prosecutions foundation gets suppressed.

In child pornography cases specificaly, suppression of the digital evidence often ends the prosecution entirely. Theres no case without the images. Theres no crime without the content. Suppress the evidence from the computer seizure, and theres nothing left to prosecute.

This is why the 2% number is misleading. Its not 2% of defendants get a slightly better outcome. Its 2% of defendants get there cases dismissed entirely. The other 98% of motions fail – but even failed motions change plea negotiations, force the government to justify there actions, and create appellate records.

The Good Faith Exception That Gutted The Fourth Amendment

Heres the irony that explains why so many suppression motions fail. The “good faith exception” was created in United States v. Leon to avoid punishing police officers for honest mistakes. If an officer relied in good faith on a warrant that turned out to be defective, the evidence wouldnt be suppressed. Made sense in theory. In practice, it gutted Fourth Amendment protection.

The good faith exception now saves warrants that would otherwise be unconstitutional. Officers dont need valid warrants – they need warrants that were “objectively reasonable” to rely upon. The question isnt wheather the warrant was actually legal. The question is wheather the officers reliance on it was reasonable.

This creates a devastating system for defendants. You can prove the warrant was defective. You can demonstrate it lacked probable cause. You can show the particularity requirement wasnt met. And the motion still gets denied becuase the officer’s “good faith” reliance saves the search.

The exception has four limits. Good faith dosent apply when the affiant knew information was false. It dosent apply when the magistrate abandoned neutrality. It dosent apply when the affidavit so clearly lacked probable cause that belief in it was unreasonable. And it dosent apply when the warrant was facially deficient to the point no reasonable officer would rely on it.

But in practice, these exceptions are narrow. Courts bend over backwards to find officers acted in good faith. The result is that the exclusionary rule – designed to deter Fourth Amendment violations – rarely actually excludes evidence anymore.

Franks Hearings – Challenging The Warrant Affidavit

Heres the hidden connection that offers a path around the good faith exception. If you can prove the officer lied in the warrant application – or was reckless with the truth – good faith protection dissapears.

A Franks hearing is named after Franks v. Delaware, a Supreme Court case that established defendants’ rights to challenge evidence based on false statements in warrant affidavits. The court held that when a warrant affidavit contains a statement thats both false AND included knowingly, intentionally, or with reckless disregard for truth, the warrant is invalid.

But getting a Franks hearing is hard. You must make a “substantial preliminary showing” that the false statement was knowing or reckless. You cant just allege falsity – you need evidence. Affidavits. Sworn statements. Documentation. Your attack must be specific, pointing out exactly what was false and why you believe the officer knew it.

And even if you prove falsity, theres another hurdle. If you remove the false information and probable cause still exists, suppression is denied anyway. The false statement must be essential to the probable cause determination – not just wrong, but determinative.

Heres the inversion that matters. Filing a Franks motion isnt about proving the affidavit was factually wrong. Its about proving the officer KNEW it was wrong when they submitted it. Negligence isnt enough. Mistake isnt enough. You need knowing falsity or reckless disregard – essentially intentional misconduct.

NCMEC As State Actor – The Circuit Split That Could Save You

Heres something most defendants never learn about. The National Center for Missing and Exploited Children may or may not be a government agent – depending on which federal circuit your in.

NCMEC recieves CyberTips from tech companies when they detect apparent child pornography. NCMEC reviews those tips and forwards relevant information to law enforcement. The question is: when NCMEC reviews content, is that a government search subject to Fourth Amendment requirements?

The Tenth Circuit said yes. In United States v. Ackerman, the court found NCMEC is a governmental entity or agent that searched the defendants email without a warrant. The reasoning was compelling. NCMEC recieves up to 75% of its budget from the federal government. Its required to perform over a dozen law enforcement functions. Government officials sit on its board. Day-to-day statutory control over its operations looks like a government agency.

But the Fifth Circuit disagreed. In United States v. Meals, the court found Facebook was a private actor and NCMEC didnt exceed the scope of Facebooks private search. Different circuits, different outcomes for nearly identical legal questions.

This matters enormously for your case. If NCMEC is a state actor, then there review of CyberTip content is a search requiring a warrant. If they reviewed content before law enforcement obtained a warrant, everything downstream could be suppressed. The entire investigation chain – CyberTip to warrant to seizure to prosecution – might be tainted.

Your attorney needs to know which circuit your case is in and what that circuits position is on NCMEC as state actor. This is a live constitutional issue with genuine suppression potential.

Digital Evidence Particularity Requirements

Heres another paradox in federal search law. The Fourth Amendment requires warrants to “particularly” describe the place to be searched and items to be seized. Courts have recognized this particularity “assumes even greater importance” with digital searches, becuase computer hard drives contain the scope and quantity of private information comparable to an entire residence.

But in practice, courts allow officers to seize entire computers based on vague warrant descriptions. “All computer equipment and written materials” – without mentioning any particular crime – has been found to lack particularity. But warrants only slightly more specific often survive challenges.

Oregon Supreme Court emphasized that warrants for digital data must describe evidence “with a heightened degree of specificity.” But heightened specificity is subjective. What seems particularized to one judge looks like a general warrant to another.

The practical reality is that courts permit some delay in executing digital search warrants “becuase of the complexity of the search.” Your data can sit with the government for months while they analyze everything. The constitutional principle of reasonableness technically applies to seizure duration – but courts give investigators substantial leeway.

Some magistrate judges require independent third-party screening for email searches – someone outside the investigative team reviews content first to screen out non-responsive material. But this isnt universal. It varies by jurisdiction. There is no consistent standard for how digital searches should be conducted.

The Private Search Doctrine Problem

Heres a system revelation that undermines many suppression arguments. The Fourth Amendment dosent restrict private citizens. Tech companies arent bound by constitutional requirements. When Google, Facebook, Dropbox, or any other private entity searches your data and finds evidence of criminal activity, there is no Fourth Amendment violation – becuase the Fourth Amendment only applies to government action.

This is the “private search doctrine.” If a private actor finds evidence and turns it over to the government, the government can use that evidence regardless of how it was obtained. The private search already happened. Constitutional protections dont apply retroactivly.

Heres the hidden connection this creates. Tech company detects apparent child pornography in your cloud storage. They review it – private search, no Fourth Amendment issue. They report to NCMEC. NCMEC reviews the same content NCMEC was already shown – arguably not exceeding scope of private search. NCMEC reports to law enforcement. Law enforcement obtains warrant based on NCMEC report. Warrant is executed. Evidence is admitted.

The only point in this chain where Fourth Amendment protections clearly apply is when law enforcement acts. Everything before that happens in a constitutional free zone. Your attorney needs to identify wheather the government exceeded the scope of any private search – becuase thats where suppression arguments have traction.

Why Attorneys File Motions That Fail

Heres the uncomfortable truth about suppression motion strategy. Defense attorneys who focus solely on grant rates miss the negotiation leverage. A well-developed suppression motion threat can result in dismissal or dramaticaly better plea offers, even if the motion would technicaly be denied.

The motion creates work for the prosecution. They have to respond. They have to brief the issues. They have to justify every step of there investigation. Government attorneys are busy. Sometimes, offering a better plea deal is easier then litigating a suppression motion they’ll probly win.

The motion creates an appellate record. If you plead guilty or lose at trial, the suppression issue is preserved for appeal. Courts of appeal sometimes see Fourth Amendment questions differently then trial courts. The motion you lost at district level might succeed on appeal.

The motion forces discovery. To respond to your suppression motion, the government must disclose details about how evidence was obtained. Warrant applications. Affidavits. Chain of custody documentation. Information you might not otherwise see becomes available.

And sometimes – that 2% of the time – the motion wins. The warrant was defective. The good faith exception dosent apply. The evidence gets suppressed. The case disappears.

Even losing motions have value. But the 2% that win have transformative value. Your attorney needs to evaluate wheather your case is potentially in that 2%.

What Makes A Successful Suppression Motion

Heres what actually wins suppression motions in federal child pornography cases.

Warrant affidavit problems. The officer included materially false statements. The officer omitted critical information that would have undermined probable cause. The informant was unreliable and the officer knew it. These are Franks hearing issues – and if you can get the hearing and prove your case by preponderance of evidence, suppression follows.

Staleness issues. The information supporting probable cause was too old. Child pornography cases present unique staleness questions – courts recognize that people who collect these materials tend to retain them. But if the warrant application relies on information from years ago without explaining why its still relevant, staleness challenges have potential.

Particularity problems. The warrant was so vague it authorized a general search. The warrant failed to connect the items sought to any criminal activity. The warrant was “facially deficient” to the point no reasonable officer would rely on it.

Exceeding warrant scope. Officers searched places or items not covered by the warrant. The warrant authorized search of computers, but officers searched phones. The warrant authorized search for child pornography, but officers reviewed unrelated personal documents.

State actor arguments. NCMEC conducted a search beyond the scope of any private search. Law enforcement directed or participated in what appeared to be a private company search. The government tried to use private actors to circumvent Fourth Amendment requirements.

Each of these is a potential path to suppression. Your attorney needs to examine every document, every affidavit, every step of the investigation to identify which paths exist in your case.

What Your Attorney Needs To Look For

If your facing federal child pornography charges, heres what your attorney should be examining for suppression potential.

The warrant application and affidavit. What did the officer claim to know? How did they know it? Is the information accurate? Is anything materially false or misleading? Were important facts omitted?

The CyberTip documentation. How did the investigation start? What did NCMEC recieve? What did NCMEC review? Did NCMEC exceed the scope of any private search? Is there an argument that NCMEC is a state actor in your circuit?

The warrant itself. What does it authorize? How specific is it? Does it connect items to be seized to the alleged crime? Is it so vague that no reasonable officer would rely on it?

The search execution. Did officers stay within warrant scope? Did they search items not covered? Did they exceed time limitations? Did they properly handle digital evidence?

The chain of custody. How was evidence handled after seizure? Were proper procedures followed? Is there any indication of tampering or contamination?

The timeline. How old was the information supporting probable cause? Does staleness undermine the warrant? How long did it take to analyze seized devices?

Your attorney should be skeptical of every step. The government wins 98% of suppression motions – but that 2% exists for a reason. Constitutional violations happen. Finding them requires looking.

The Timeline That Works Against You

Heres something most defendants dont understand about suppression motion timing. Federal courts impose strict deadlines. Miss the deadline and your waive the right to challenge the search entirely.

In many districts, motions to suppress must be filed within 14 days of arraignment. Some districts allow longer periods. Some impose shorter ones. Local rules vary. But the universal truth is that the clock starts running immediatly.

This creates pressure that works against defendants. You need time to investigate how evidence was obtained. You need time to review warrant applications and affidavits. You need time to research the law and develop arguments. But you dont have time. The deadline approaches whether your ready or not.

And heres the cascade that traps defendants. You get arrested. Your overwhelmed. Your trying to find an attorney. Your trying to understand charges. Your trying to figure out bail. Meanwhile, the suppression motion deadline is ticking. By the time you focus on Fourth Amendment issues, the deadline may have passed.

Your attorney should calendar suppression deadlines immediatly upon taking your case. This isnt something to address later. This is something that must happen in the first days of representation. Missing the deadline is malpractice. Missing the deadline is unrecoverable.

What To Do Right Now

If your facing federal child pornography charges and believe evidence may have been illegally obtained, several things matter immediatly.

Preserve everything. Keep all documentation related to your arrest, the search, the seizure. Anything that might be relevant to how evidence was obtained.

Document your recollection. What happened during the search? What did officers say? What did they do? Your memory will fade. Write it down now while details are fresh.

Request warrant documentation. Through your attorney, obtain copies of the search warrant, the supporting affidavit, and any other warrant-related documents. These are the foundation of any suppression motion.

Ask about CyberTip origin. If the investigation started with a CyberTip, your attorney should investigate NCMEC’s involvement and wheather state actor arguments apply.

Consult promptly. Some districts require suppression motions within 14 days of arraignment. Missing deadlines can waive your rights. Dont wait.

Todd Spodek has evaluated federal search and seizure issues in child pornography cases. Not every case has suppression potential. But many cases have issues that warrant examination. The 2% success rate means 98% of motions fail – but that also means thousands of defendants every year get there cases dismissed through successful suppression.

Call Spodek Law Group at 212-300-5196. The Fourth Amendment still means something. Whether it means something in your case depends on examining how evidence was obtained. That examination starts with a consultation.