*1 This case proceeds before the court on Defendant Kenneth Michael Mininger's Motion to Suppress Evidence. (Doc. 43). Mininger seeks to suppress evidence obtained from a warrantless search of two SD cards seized from a home in South Carolina; evidence obtained from search warrants issued for Mininger's person and residence in Florence, Alabama; and evidence obtained from searches of Mininger's devices occurring after expiration of the ten-day period for executing the search warrants.

On November 27, 2021, the Greenville County Sheriff's Office responded to the home of S.H. in South Carolina. Mininger, a resident of Alabama, traveled to South Carolina to visit S.H. (Mininger's ex-spouse) and her minor children. During the visit, S.H.'s daughter discovered two cameras disguised as USB charging blocks in her bedroom and in a hall bathroom shared by S.H.'s children with open access to everyone. The daughter removed SD cards from the cameras and viewed footage of her bedroom on one of the cards. Mininger admitted planting the cameras. He left the home with one of the cameras in his possession, but S.H. kept the other camera and both SD cards. S.H. signed a consent form to allow officers to search the cards. Both cards contained images of minor children in states of undress.

Based on the events of November 27 and the images found on the SD cards, the Florence Police Department obtained search warrants for Mininger's person and residence in Lauderdale County, Alabama. Officers seized 170-200 computers and storage media devices from Mininger's home. Based on off-site forensic examination conducted largely after the warrants' 10-day execution deadline, officers located hundreds of images of child sexual abuse material and child exploitation material.

As the evidence will portray, Mininger possessed a reasonable expectation of privacy in the SD cards left at the South Carolina residence, and he did not abandon that expectation when S.H. instructed him to leave. Therefore, officers exceeded the scope of the initial search conducted by S.H.'s daughter.

However, Mininger placed the SD cards in an area where other occupants of the residence could freely access them, and he did not password-protect the cards' contents. S.H. thus exercised common authority over the SD cards such that she validly consented to the government's warrantless search of them. Because the search of the SD cards in South Carolina did not violate the Fourth Amendment, Alabama officers properly relied on the recovered images in obtaining the Lauderdale County search warrants.

Moreover, the Lauderdale County warrants were not overbroad. Because retrieving the contents of an SD card requires connecting the media to a computer or other reader, probable cause existed to search Mininger's laptops and electronic storage devices for evidence of child sexual abuse material. In addition, possessors of child sexual abuse material commonly collect voluminous files on their home computers and share files on the Internet.

*2 Nor was the warrant improperly executed. Under federal law, officers may continue forensic examination after the 10-day execution period given the complicated nature of the technology at issue.

For the foregoing reasons, the undersigned RECOMMENDS the court DENY Mininger's Motion to Suppress Evidence.

On November 26, 2021, Kenneth Mininger traveled to South Carolina to visit S.H. and her minor children. (Doc. 54 at 9). Mininger and S.H. married in October 2013 and divorced in October 2017. (Id. at 7). Several months after the divorce, they became close friends again. (Id. at 8). Mininger visited S.H.'s South Carolina residence approximately 5-8 times between May 2018 and November 2021.[2] (Id. at 9). As of November 2021, Minor One was 17 years old, Minor Two was 17 years old, and Minor Three was 13 years old. (Id. at 10). During Mininger's stay, Minor Two was in the hospital and absent from the residence. (Id.).

Mininger stayed in Minor Two's unoccupied bedroom, located upstairs. (Id. at 11). Mininger also used the upstairs hall bathroom—shared by the children with open access to everyone—and the downstairs powder room. (Id. at 12, 14). S.H. did not restrict Mininger's access to any of the other rooms (id. at 11), but she testified there existed “no reason at all” for Mininger to enter Minor One's upstairs bedroom. (Id. at 21). Mininger had never stayed in Minor One's bedroom on previous visits. (Id. at 30). To S.H.'s knowledge, Mininger brought a rucksack and several electronic devices—a phone, an iPad, a laptop, and USB drives—into the residence.[3] (Id. at 10; 12). Mininger generally kept his devices on or near his person or on the kitchen table. (Id. at 12).

On November 27, 2021, Mininger and S.H. watched television on a set of couches downstairs. (Id.). S.H. received a text message from Minor One, who reported finding “cameras in [her] bedroom pointed at [her] bed” and “a camera in the bathroom.” (Id. at 13). S.H. went upstairs to Minor One's bedroom without mentioning the text message to Mininger. (Id.).

Minor One showed S.H. two cameras disguised as USB charging blocks. (Id.). Minor One explained she inspected the blocks because she noticed small camera lenses above the USB inputs. (Id. at 13-14). She then removed the SD cards from the devices and “looked at them.”[4] (Id. at 15). Specifically, Minor One told S.H. that one of the SD cards contained footage of her and a friend watching a movie on her bed the previous evening. (Id.). S.H. did not examine the contents of the SD cards herself. (Id.). Nor did Minor One mention viewing any of the children in states of undress.[5] (Id.).

*3 A few moments later, Mininger came upstairs.[6] (Id.). At that time, S.H. held the two cameras, and Minor One held the SD cards. (Id. at 16). Initially, Mininger denied knowledge of the devices; he picked one of the cameras out of S.H.'s hand, verbally identified it as a phone charger, and kept the device on his person. (Id. at 16, 20). Minor One informed Mininger the blocks were hidden cameras. (Id. at 16). Mininger expressed surprise and asked whether Minor Three planted the cameras. (Id.). He denied planting the cameras himself. (Id. at 17). Mininger then attempted to take possession of the SD cards to “plug them in and see that's [sic] going on.” (Id. at 19). S.H. refused. (Id.). At some point during this exchange, S.H. placed the SD cards in her pocket. (Id. at 20). She instructed Mininger to leave the home. (Id. at 16).

S.H. entered her bedroom and sat on a chair. (Id.). Mininger followed S.H. into the room and repeatedly denied placing the cameras. (Id. at 17). S.H. ordered Mininger to leave the residence a second time. (Id.).

S.H. returned downstairs “because [she] didn't want to be around [Mininger].” (Id. at 18). Minor One left the residence to stay with a friend. (Id.). After Minor One's exit, Mininger admitted placing the cameras to watch Minor One's 18-year-old friend. (Id.). S.H. ordered Mininger to leave the residence a third time. (Id.).

Mininger went upstairs, stayed there for approximately 15 minutes, and came back down with his rucksack. (Id. at 18-19). S.H. told Mininger to drive straight home to Alabama. (Id. at 19). Mininger left the residence with one of the cameras in his possession. (Id. at 20). He did not attempt to contact S.H. to request the return of the other camera or the SD cards. (Id.).

After Mininger departed, S.H. asked Minor One to come home. (Id. at 21). Upon her return, Minor One told S.H. she wanted to call the police. (Id.).

On the evening of November 27, Deputy Ochoa of the Greenville County Sheriff's Office responded to S.H.'s residence. (Id. at 37). At approximately 10:30 p.m., Deputy Ochoa called Forensic Investigator Michael Bryan in the Specialized Investigative Division of the Internet Crimes Against Children Section to inquire about how to proceed with the SD cards and the remaining camera. (Id. at 37-38). During the phone call, Deputy Ochoa informed Investigator Bryan that Mininger lived in Alabama. (Id. at 50). Investigator Bryan advised Ochoa to secure the camera and SD cards in property evidence and obtain a written consent form from S.H. to search the evidence. (Id. at 38). S.H. signed the consent form. (Id. at 24, 38; DX003).

On November 30, 2021, Investigator Bryan commenced a forensic examination of the SD cards.[7] (Doc. 54 at 39). One of the SD cards contained 64GB of storage, and the other card contained 128GB of storage. (Id. at 40). The 64GB SD card corresponded to the camera located in the bathroom, and the 128GB SD card corresponded to the camera located in the bedroom. (Doc. 48-3 at 4). Neither of the cards employed password protection. (Doc. 54 at 40).

The 64GB SD card from the bathroom “captured three (3) victims using the bathroom in the toilet and captured [Mininger] taking a shower. A thirteen (13) year old child is seen urinating, and the seventeen (17) year old daughter, and [the] daughter's eighteen (18) year old friend [are] seen using the restroom with their buttocks exposed to the camera.” (Doc. 48-3 at 4). The card also contained images of Mininger adjusting the camera. (Doc. 54 at 41). The 128GB SD card “captured two (2) different views in the bedroom.” The videos “were taken between May of 2018, late 2019, and early 2020. In those videos, the seventeen (17) year old daughter is seen undressing and dressing. Her buttocks and breasts are visible in the video .... The daughter would have been between fourteen (14) and sixteen (16) years old.” (Doc. 48-3 at 4). Investigator Bryan estimated each SD card held 24 hours of footage. (Doc. 54 at 42).

*4 Also on November 30, Investigator Bryan spoke to S.H. and asked her to write a statement of the events that took place on November 27. (Id. at 40). S.H.'s statement, received on December 1, averred that Mininger lived in Alabama and listed his address. (Id. at 40-41). In addition, Investigator Bryan contacted the South Carolina Internet Crimes Against Children Commander, Special Agent Kevin Atkins, to locate officers in Alabama to assist in the investigation. Special Agent Atkins put Investigator Bryan in contact with Alabama officers Zach Maxwell and Michael Danley. (Id. at 41). In the evening, Investigator Bryan spoke to “either Agent Maxwell or somebody from ... [the Alabama Internet Crimes Against Children] task force ... [to give] them a brief of the case.” (Id. at 65).

On December 1, 2021, Investigator Bryan sent a follow-up email to Alabama officers. The email provided a summary of the facts of the investigation and discussed plans to provide Alabama officers with an affidavit in support of a search warrant for Mininger's Florence residence. (Id.). Investigator Bryan stated he had completed his examination of the SD card from the bathroom and was halfway through the SD card from the bedroom. (Id. at 79).

Later on December 1, Investigator Bryan obtained a search warrant for the SD cards to “backstop [S.H.'s] consent.” (Id. at 42-43). The affidavit in support of the search warrant contained no mention of the SD cards' contents. However, Investigator Bryan testified he “would have” given the magistrate judge “a full account of what had occurred up to that point.”[8] (Id. at 46). The magistrate judge signed the search warrant at approximately 4:00 p.m. (Id. at 66). Investigator Bryan and a colleague completed the warrant return at approximately 4:15 p.m.[9] (Id. at 67-68). And at 4:55 p.m., Investigator Bryan sent Alabama officers an affidavit in support of a search warrant for Mininger's residence.[10] (Id. at 80). Bryan testified the last-modified time on the document reflected 4:30 p.m. (Id. at 71, 81).

On December 2, 2021, at 4:40 p.m. (id. at 94), Investigator Michael Danley of the Florence Police Department obtained two search warrants—one for “Mininger's person, any vehicles in which he is an occupant of, and surrounding property,” and one for Mininger's residence (id. at 85). The applications for both warrants featured information obtained from Investigator Bryan in South Carolina, including descriptions of the child sexual abuse material located on the SD cards.[11] (Id. at 90). Both warrants directed officers to execute the searches within 10 days. (Id. at 104).

*5 On December 3, 2021, prior to executing the search warrants, members of the Florence Lauderdale SWAT team observed Mininger outside his residence underneath a carport. (Id. at 88). When they approached Mininger, they observed a marijuana pipe in plain view. (Id.). Upon making contact with Mininger, officers “briefly informed him why [they] were there” and “took him inside the residence and had a conversation with him.” (Id. at 112).

At 10:45 a.m., Investigator Danley obtained an amended search warrant vis-à-vis Mininger's residence to encompass evidence of drug paraphernalia. (Id. at 94-96). Danley testified the officers on his team did not search the residence until he returned with the amended warrant. (Id. at 109).

Officers left copies of all three warrants (two original search warrants and one amended search warrant) at Mininger's residence. (Id. at 115-16). However, officers did not file the original warrant obtained for Mininger's residence, and they have not located it to date. (Id. at 95). Officers took photographs of the warrants left at Mininger's home at the end of their search. (Id. at 112-13; doc. 60-1).

Offers turned in one search log for both of the executed search warrants. (Doc. 54 at 99). Officers executed the first warrant for Mininger's person at 8:27 a.m. and obtained a Samsung telephone (item number one on the search log). (Id. at 98, 106). Officers executed the amended search warrant for Mininger's residence after 10:45 a.m. and obtained approximately 170-200 electronic or storage media devices. (Id. at 106, 90-91). Officers transferred most of the items collected to the evidence technician working on the scene, who marked and placed the items in manilla envelopes. (Id. at 91). Law enforcement then transported these items to the Florence Police Department and placed them in an evidence vault. (Id.). Investigator Danley subsequently took some of the electronic devices (marked with five item numbers) to Agent Maxwell for forensic examination—Mininger's personal cellular device (Item 1), Mininger's work cellular device (Item 11), seven cameras believed to be similar to the ones discovered in South Carolina (Item 2M), a camera pen (Item 2N), and four flash drives (Item 20). (Id. at 101; DX009 at 16).

On December 7, 2021, Agent Maxwell analyzed one of the flash drives in his custody and located images of suspected child exploitation material. (DX009 at 16). “As of December 10, 2021, a total of two-hundred and thirty-two (232) images were identified as a violation of the Alabama Criminal Code: Possession of Child Pornography. A total of two-hundred and twenty-seven (227) images were identified as a violation of the Alabama Criminal Code: Production of Child Pornography.” (DX009 at 18).

Investigator Danley took ten servers and hard drives to Computer Forensic Analyst Emerson Gudel at the Homeland Security Office in Birmingham because “some of [the devices] were one terabyte drives [and the Florence Police Department] didn't have the resources and capability to ... hold all that storage.” (Doc. 54 at 92). Gudel conducted a search of the servers and hard drives pursuant to the amended search warrant for Mininger's residence.[12] (Id. at 119).

*6 On February 22, 2022, Gudel initiated the paperwork intake process. (Id. at 122). On February 23, Gudel began creating forensic backups of the drives to ensure the originals could not be altered. (Id. at 123). Forensic backup creation concluded on March 3, 2022. (Id.). Next, Gudel processed the forensic backups using a series of software programs to “take all the database information that a computer typically holds and puts it into a more human readable format.” (Id.). Gudel then utilized “keyword searches” and “training and experience” to search for “artifacts of interest.”[13] (Id. at 124). Such artifacts included encryption programs, peer-to-peer file sharing software, and virtual machines.[14] (Id. at 126).

On July 25, 2023, Gudel authored an investigative report describing his findings. (DX005). In particular, line item A.G.—a 10TB external hard drive—and line item A.I.—a desktop computer containing three drives—contained suspected child sexual abuse materials. (Doc. 54 at 128). During the investigation, Gudel located a VeraCrypt virtual encrypted disk on both line items.[15] (Id.). Through “brute force attack” (id. at 133), Gudel identified “passwords to open both an outer, and inner (hidden) VeraCrypt volume present on both line item AG and line item AI.” (DX005). Within the inner (hidden) VeraCrypt volume, Gudel identified suspected child sexual abuse materials, as well as another VeraCrypt virtual encrypted disk which “appeared to contain approximately 43 GBs of suspected [child sexual abuse materials].” (DX005).

On July 27, 2022, the Government charged Mininger with violations of 18 U.S.C. §§ 2251(a) and (e) (sexual exploitation of children) and 18 U.S.C. §§ 2252A(a)(5)(B) and (b)(2) (certain activities relating to material constituting or containing child pornography) in the Northern District of Alabama. (Doc. 1). In addition, sexual exploitation of a minor and voyeurism charges remain pending against Mininger in South Carolina state court. (Doc. 54 at 37).

I. MININGER POSSESSED A REASONABLE EXPECTATION OF PRIVACY IN THE SD CARDS PRIOR TO MINOR ONE'S SEARCH.

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” However, as an initial matter, a defendant who moves to suppress evidence must possess a “reasonable expectation of privacy” in the place or item searched. Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., Concurring); see also United States v. Cohen, 38 F.4th 1364, 1368 (11th Cir. 2022) (“To have Fourth Amendment standing to challenge a search, a person must have a reasonable expectation of privacy in the place searched.”); United States v. Cooper, 203 F.3d 1279, 1284 (11th Cir. 2000) (“[T]he Fourth Amendment protects an individual in those places where she can demonstrate a reasonable expectation of privacy against government intrusion.”). A defendant's reasonable expectation of privacy “must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas v. Illinois, 439 U.S. 128, 143 n. 12 (1978). A defendant bears the burden of establishing a “subjective expectation of privacy that society recognizes as reasonable.” Kyllo v. United States, 533 U.S. 27, 33 (2001) (quoting Katz, 389 U.S. at 361 (Harlan, J., concurring)).

*7 Generally, “the Fourth Amendment provides protection to the owner of every container that conceals its contents from plain view.” United States v. Ross, 456 U.S. 798, 822-23 (1982). “Nevertheless, the mere placement of personal property into a closed container does not ensure that a subjective expectation of privacy will ultimately be judged by society as legitimate.” U.S. v. McKennon, 814 F.2d 1539, 1544 (11th Cir. 1987).

Electronic storage devices qualify as “closed containers.” See United States v. Dorvilus, No. 08-20400-CR-GRAHAM/TORRES, 2008 WL 11422554, at *8 (S.D. Fla. July 27, 2008) (“[A]n iPhone or any other electronic storage device is tantamount to a ‘closed container’ that deserves Fourth Amendment protection.”); United States v. Blas, No. 90-CR-162, 1990 WL 265179, at *21 (E.D. Wisc. Dec. 4, 1990) (“an individual has the same expectation of privacy in a pager, computer, or other electronic data storage and retrieval device as in a closed container.”).

Accordingly, a defendant generally possesses a reasonable expectation of privacy in electronic storage media. See Riley v. California, 573 U.S. 373, 393 (2014) (recognizing a heightened privacy interest in cell phones because of “their immense storage capacit[ies]”); United States v. Harling, 705 F. App'x 911, 917 (11th Cir. 2017) (determining warrantless search of USB drives “was a per se violation of the Fourth Amendment”); United States v. Taylor, 250 F. Supp. 3d 1215, 1228 (N.D. Ala. 2017) (finding reasonable expectation of privacy in “information that could be gleaned only from [defendant's] computer”); United States v. Alabi, 943 F. Supp. 2d 1201 (D.N.M. 2013) (“Courts have found that there is an objectively reasonable privacy expectation in information stored in electronic storage media such as CD–ROMs, DVDs, USB drives, cellular telephones, pagers, and laptop computers, because individuals have put those locations to use for storing information. Among the information stored on these media may include personal information such as names, addresses, birthdates, and social security numbers. These items are bought and sold almost exclusively for the individual's ability to ‘manipulat[e]’ the information and data within them, ... so that users can store and manipulate the information stored within them.” (internal citations omitted)).

Mininger claims a reasonable expectation of privacy in SD cards, “the dominant form of flash memory card on the market ... widely used in consumer electronics devices such as cellular phones and digital cameras.” Oliver v. SD-3C LLC, 751 F.3d 1081, 1084 (9th Cir. 2014). Like the media forms discussed above, SD cards constitute closed containers because their contents cannot be ascertained by purely visual inspection. More importantly, SD cards serve as repositories for the legitimate storage of personal data. Based on these characteristics, Mininger maintained a reasonable expectation of privacy in the contents of the SD cards prior to Minor One's examination of them.

The Government asserts items or places put to illegal use stand unprotected by the Fourth Amendment. (Doc. 48 at 6 (“Society does not recognize a privacy interest in voyeurism or in attempts to produce child pornography in another person's residence.”)). But the Supreme Court's decision in Walter v. United States, 447 U.S. 649 (1980) (Stevens, J., plurality), rejects the proposition that the incriminating nature of an otherwise legitimate item obviates a privacy expectation thereto.

*8 In Walter, a private party opened a misdelivered package and observed individual film boxes with supposed obscene pictures and explicit descriptions on the boxes' surfaces, information that provided probable cause perpetrators had committed a crime under applicable federal law. The private party produced the rolls of film to the Federal Bureau of Investigation. Without a warrant, agents viewed the contents of the films and confirmed they contained contraband. The Government subsequently indicted the petitioners on obscenity charges, on which they were convicted. Id. at 651-52.

Notwithstanding the split opinions reflected in the Walter decision, there ensued a clear majority the petitioners secured a reasonable expectation of privacy in the films:

Id. at 654 (emphasis added).[16] The Court reached its conclusion by relying upon Justice Stewart's concurrence in a prior opinion buttressing the findings at bar:

Id. at 653.

*9 Therefore, illegal use of a legitimate item does not abridge an individual's reasonable expectation of privacy as to that item. See Taylor, 250 F. Supp. at 1227 (“But these conclusions [that an individual can have no reasonable expectation of privacy in property used to conduct illegal activity] are a bridge too far for this court. The nature of [a defendant's] privacy interest cannot depend on whether he was engaging in illegal activity, or the Fourth Amendment would lose all meaning.”); Cohen, 38 F.4th at 1369 (“ ‘[I]f illegally operating a vehicle stripped one's expectation of privacy, common traffic infractions would eviscerate the Fourth Amendment's protections.’ ”) (quoting United States v. Bettis, 946 F.3d 1024, 1029 (8th Cir. 2020)); United States v. Washington, 573 F.3d 279, 283 (6th Cir. 2009) (“[T]he use of a space for illegal activity does not alter the privacy expectations of a person who would otherwise have standing.”); c.f., Arizona v. Hicks, 480 U.S. 321, 324-25 (1987) (assuming defendant possessed a reasonable expectation of privacy in stolen stereo equipment); Minnesota v. Carter, 525 U.S. 83, 110 (1998) (“If the illegality of the activity made constitutional an otherwise unconstitutional search, such Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty.”) (Ginsburg, J., dissenting).

To parry the foregoing concern, the Government contends Mininger's conduct exhibited a “wrongful presence” within the meaning of Cohen, supra, a finding which would eviscerate his privacy expectation. See id., 38 F.4th at 1370 (“[T]he proper question is whether the defendant's illegal conduct has the same effect as a defendant's ‘wrongful presence.’ ... [T]he common theme in the Supreme Court's examples of individuals whose activities equate to a wrongful presence—a burglar plying his trade or a car thief—is that their conduct ‘interferes with another's valid property interest.’ ” (quoting Bettis, 946 F.3d at 1029)). In Cohen, the defendant, convicted in the district court for being a felon in possession of a firearm, received valid permission from a third party to operate that party's rented vehicle. Id. The Eleventh Circuit concluded the defendant maintained a reasonable privacy expectation in the rented vehicle so as to challenge law enforcement's search of said vehicle; principally, the defendant's alleged crime of unlicensed driving “did not interfere with the authorized renter's valid possessory interest.” Id.

As applied to the dispute at bar, Mininger's criminal use of the SD cards did not constitute a “wrongful presence” as countenanced by that doctrine. First, Mininger himself held a possessory interest in the SD cards; he did not unlawfully invade another person's possessory interest in property. Here, as in Walter, the officers searched closed containers belonging to Mininger.

More crucially, Mininger did not resemble “a burglar plying his trade or a car thief”; in those scenarios, the owner of the property in question did not authorize the defendant's presence vis-à-vis the pertinent property interests, principally the possessory right to exclude. Cohen, 38 F.4th at 1368 (“The Supreme Court has explained that ‘one of the main rights attaching to property is the right to exclude others,’ and that, on the whole, ‘one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of the right to exclude.’ ” (quoting Byrd v. United States, 584 U.S. 395, 405, 138 S. Ct. 1518, 1527 (2018))). In this case, Mininger received permission to occupy S.H.'s residence. To be sure, his occupancy occasioned the crimes alleged at bar, and assuredly contravened S.H.'s authorization. Yet, those circumstances do not differ appreciably from those presented in Cohen, where the defendant obtained permission to use another person's rental vehicle, subsequently unlawfully drove it without a license, and deposited a firearm in it that he could not legally possess. Thus, Mininger's authorized presence on S.H.'s property does not equate to a wrongful presence pursuant to that doctrine's strictures.

*10 In a similar vein, the Government cites cases denying a reasonable expectation of privacy in a defendant's closed containers brought onto another's property, yet those decisions reflect the defendants lacked permission to enter the premises at issue. United States v. Sawyer, 929 F.3d 497, 499 (7th Cir. 2019) (holding defendant did not have a reasonable expectation of privacy in a backpack he carried while trespassing on another's property); United States v. John, 59 F.4th 44, 50 (1st Cir. 2023) (determining defendant could not maintain a reasonable expectation of privacy in a case left in an apartment he did not have permission to occupy). Mininger's circumstances differ from those authorities because he set foot in S.H.'s home with a license to do so. Though S.H. later revoked such permission after discovering the cameras, it remains undisputed Mininger initially secured permission to occupy S.H.'s property.

Relatedly, the Government points to the SD cards' placement in hidden cameras as evidence Mininger lacked a reasonable expectation of privacy, citing the Eleventh Circuit's opinion in United States v. Sarda-Villa, 760 F.2d 1232 (11th Cir. 1985). In that case, United States Customs officers conducted a warrantless search of a boat's hidden fuel tanks and subsequently recovered contraband. The defendants claimed a reasonable expectation of privacy in the boat's hidden compartments, claiming they “took elaborate pains to ensure that the hidden compartment containing the drugs would be the most secret place on the boat.” Id. at 1236. The Eleventh Circuit refused to confer Fourth Amendment standing to defendants, explaining “society is [not] prepared to recognize a justifiable expectation of privacy solely on the basis of [defendants'] efforts to secret the contraband.” Id. at 1236.

However, the Government fails to recognize Sarda-Villa's narrow scope. Namely, “[Sarda-Villa] does not stand for the proposition that there is never an expectation of privacy when a secret compartment is used.” U.S. v. Massell, 823 F.2d 1503, 1507 (11th Cir. 1987). Rather, Sarda-Villa establishes that efforts to hide contraband may not constitute the sole basis for a defendant's reasonable expectation of privacy. That said, “other factors [in hidden compartment cases may] convey standing,” such as “an unrestricted right of occupancy or custody and control of the premises as distinguished from occasional presence.” Id. at 1506, 1507 (internal citations and quotation marks omitted).

Regardless of Sarda-Villa's scope, the Government's reference stands particularly inapposite because the privacy analysis in the present case centers not on the hidden cameras, but on the SD cards standing alone. Indeed, Minor One had already removed the SD cards from the cameras by the time police officers arrived on the scene, rendering a search of the hidden cameras themselves irrelevant given the location of the incriminating evidence. And in any event, the Sarda-Villa decision cannot hold sway over the Walter decision.

In addition, contrary to the Government's contention Mininger abandoned the SD cards, he did not relinquish his privacy expectation when he left S.H.'s home without the SD cards in his possession. “In determining whether there has been abandonment, the ‘critical inquiry is whether the person prejudiced by the search ... voluntarily discarded, left behind, or otherwise relinquished his interest in the property in question so that he could no longer retain a reasonable expectation of privacy with regard to it at the time of the search.' Whether abandonment has occurred is a question of intent that may be inferred from acts, words, and ‘other objective facts.’ ” United States v. Cofield, 272 F.3d 1303, 1306 (11th Cir. 2001) (citations omitted); see also United States. v. Lindsey, No. 8:23-cr-71-KKM-SPF, 2023 WL 5808865, at *4 (M.D. Fla. Sept. 8, 2023) (“When a defendant abandons trash by leaving it outside on the curb, ... abandons a bag by disclaiming association with it, ... or abandons a vehicle by leaving it on the side of the highway with the engine running, ... the defendant gives up his right to exclude others from the object that he abandoned.”) (citations omitted). Police pursuit or the existence of a police investigation does not of itself render abandonment involuntary, but it may serve as a relevant consideration. United States v. Colbert, 474 F.2d 174, 176 (5th Cir. 1973) (en banc).[17] The burden of proving abandonment lies with the Government. Cofield, 272 F.3d at 1306.

*11 In the present case, Mininger did not voluntarily abandon his interest in the SD cards. First, Mininger affirmatively attempted to take possession of the SD cards after Minor One removed them from the hidden cameras by offering to “plug them in and see what's going on.” (Doc. 54 at 26). Second, Mininger successfully took possession of one of the hidden cameras, indicating his intent to re-acquire the repositories. Moreover, S.H. thwarted Mininger's efforts to possess the SD cards by explicitly refusing to hand them over. (Id. at 19 (“I said no. I didn't want him to get ahold of those SD cards.”), 27 (“I said, you are not getting these back.... And so, no, I wouldn't give them to him” (emphasis added)). Finally, Officer Bryan testified Mininger “probably would not have received [his] property” had he called law enforcement to retrieve the cameras or SD cards. (Id. at 52).[18]

The Government aligns the present circumstances with United States v. Sparks, 806 F.3d 1323 (11th Cir. 2015) (overruled on other grounds by United States v. Ross, 963 F.3d 1056 (11th Cir. 2020)). In that case, two defendants left a cell phone containing hundreds of images of child sexual abuse material at a Walmart store. An employee recovered the phone, conversed with the defendants, and agreed to return it. However, “unbeknownst to Defendants,” the employee changed her mind upon viewing the phone's contents. Id. at 1329 (emphasis added). Given the following facts, the court determined the defendants voluntarily relinquished their reasonable expectation of privacy in the cell phone:

Id. In addition, the defendants shortly obtained new cell phones, “demonstrating their intent to abandon the phone [in question]” and “signif[ying] the finality of their earlier calculated decision to abandon the seized phone and cease seeking its return from the known finder.” Id. at 1343-44.

Crucially, the present case diverges from Sparks because S.H. verbally manifested an intent to keep the SD cards in her possession and ordered Mininger to leave the premises immediately. In addition, given Investigator Bryan's testimony at the evidentiary hearing, Mininger could not have retrieved the SD cards through “reasonable effort” because the ongoing investigation precluded such action. Sparks, 806 F.3d at 1343. Finally, the undersigned has located no evidence at bar suggesting Mininger engaged in affirmative acts demonstrating an intent to abandon the cards, such as acquiring replacement cards. Given these facts, the court will not characterize Mininger's actions as voluntary, and the Government cannot carry its burden of proof.

*12 In sum, Mininger possessed a reasonable expectation of privacy in the SD cards prior to Minor One's initial search of them. This expectation did not disappear because Mininger used the cards to engage in illegal activity, secreted them in hidden cameras, or involuntarily left them in S.H.'s possession.

II. MININGER RETAINED A REASONABLE EXPECTATION OF PRIVACY IN THE PORTIONS OF THE SD CARDS UNEXAMINED BY MINOR ONE.

Though a defendant may possess a reasonable expectation of privacy in an electronic storage device, a private-party search of the device may undermine the owner's privacy expectation against the government. However, the government's warrantless search may not exceed the scope of the private-party search. See United States v. Jacobsen, 466 U.S. 109, 115 (1984) (“[I]nvasions of [defendant's] privacy by the government ... must be tested by the degree to which they exceeded the scope of the private search.”).

A majority of the Court adopted this standard in Walter, discussed previously. In Walter, the government “claim[ed] ... that because the packages had been opened by a private party, thereby exposing the descriptive labels on the boxes, petitioners no longer had any reasonable expectation of privacy in the films, and ... the warrantless screening therefore did not invade any privacy interest protected by the Fourth Amendment.” 447 U.S. at 658 (opinion of Stevens, J., joined by Stewart, J.). The Court concluded the government may not exceed the scope of a private search without independent justification. According to two Justices:

Id. at 658-59 (opinion of Stevens, J., joined by Stewart, J.) (footnotes omitted). Two concurring Justices “agree[d] ... that the Government's warrantless projection of the films constituted a search that infringed petitioners' Fourth Amendment interests despite the fact that the Government had acquired the films from a private party.” Id. at 660 (White, J., Concurring, joined by Brennan, J.).

The decision in United States v. Ditirro, No. 2:16–cr–00216–KJD–VCF, 2017 WL 6029685 (D. Nev. April 17, 2017), presents facts similar to this case. In that case, the defendant's ex-girlfriend discovered an SD card stuck to her clothes. Upon plugging the card into her cell phone, the ex-girlfriend and another private party discovered the card contained child sexual abuse material. Police officers subsequently viewed the contents of the SD card without a warrant. Noting, as an initial matter, that the defendant's reasonable privacy expectation undergirded his challenge to the search of the SD card, the district court concluded “the Officers viewed images outside the scope of [the private parties'] search and violated [defendant's] Fourth Amendment rights.” Id. at *4. Accordingly, it suppressed the officers' testimony regarding the content they viewed on the SD cards. Id. The Ninth Circuit affirmed. United States v. Ditirro, 835 F. App'x 280 (9th Cir. 2021) (“Because police officers' initial search of Ditirro's SD card exceeded the scope of previous searches by private individuals, the officers conducted a warrantless search that presumptively violated the Fourth Amendment.”).

*13 Like the private parties in Ditirro, Minor One conducted an initial search of the SD cards and confirmed they contained contraband.[19] However, the Greenville County Police Department's warrantless search of the cards comprised a full forensic examination beyond the scope of Minor One's search. Indeed, Investigator Bryan testified each card contained approximately 24 hours of footage and his review of the footage commenced before he obtained a search warrant. (Doc. 54 at 42). Therefore, Mininger retained a reasonable expectation of privacy in the portions of the SD cards unexamined by Minor One, and officers in the present case exceeded the scope of Minor One's search.

III. OFFICERS OBTAINED VALID THIRD-PARTY CONSENT TO CONDUCT A CONSTITUTIONAL WARRANTLESS SEARCH OF THE SD CARDS.

It “is a basic principle of Fourth Amendment law ... that searches and seizures ... without a warrant are presumptively unreasonable.” Kentucky v. King, 563 U.S. 452, 459 (2011) (citations and internal quotation marks omitted). Nonetheless, “this presumption may be overcome in some circumstances because the ultimate touchstone of the Fourth Amendment is reasonableness.... Accordingly, the warrant requirement is subject to certain reasonable exceptions.” Id. (citations and internal quotation marks omitted). “Of course, the burden of proving an exception to the warrant requirement lies with the Government.” United States v. Holloway, 290 F.3d 1331, 1337 (11th Cir. 2002) (citing United States v. Jeffers, 342 U.S. 48, 51 (1951)).

Voluntary consent constitutes a valid exception to the warrant requirement if the government demonstrates “permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.” United States v. Matlock, 415 U.S. 164, 171 (1974); see also United States v. Harris, 526 F.3d 1334, 1339 (11th Cir. 2008) (A “third party who has ‘common authority over or other sufficient relationship to the premises or effects sought to be inspected’ may give valid consent to search an area.” (quoting Matlock, 415 U.S. at 171)). Thus, “the consent of one who possesses common authority over premises or effects is valid as against the absent, nonconsenting person with whom that authority is shared.” Matlock, 415 U.S. at 170; see also Harris, 526 F.3d at 1339 (“Specifically, a third party's consent is valid if he has mutual use of the property, with joint access to or control of the area for most purposes.” (citing Matlock, 415 U.S. at 171 n.7)). Courts do not measure common authority by strict concepts of property law; rather, they appraise whether evidence reflects “mutual use of ... property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.” Matlock, 415 U.S. at 171 n. 7.

As the above formulation clearly portrays, “the touchstone of the third-party consent rule is assumption of the risk.” United States v. Thomas, 818 F.3d 1230, 1242 (11th Cir. 2016). See Frazier v. Cupp, 394 U.S. 731, 740 (1969) (“Petitioner, in allowing [third party] to use the bag and in leaving it at his house, must be taken to have assumed the risk that [third party] would allow someone else to look inside.”); United States v. Hiles, Nos. 89–2238, 89–2383, 1990 WL 106174, *4 (6th Cir. July 27, 1990) “[petitioner] took the risk that [third party] could have become suspicious [and] called her entire neighborhood to look through the contents” of suitcases placed in clothes closet of lessee of premises); United States v. Davis, 967 F.2d 84, 88 (2d Cir. 1992) (“Here, [third party's] actual possession of the footlocker, and the fact that [petitioner] never prohibited [third party] from examining [petitioner's] containers therein, lead us to conclude that [petitioner] assumed the risk that [third party] would permit others to search the trunk and its contents.”); U.S. v. Tucker, 57 F. Supp. 2d 503, 516 (W.D. Tenn. 1999) (“[B]y storing the unlocked ammo boxes in a common area of the apartment, defendant indicated a lowered expectation of privacy in the containers and assumed the risk that [third party] might permit a search of them.”).

*14 Importantly, actual use does not constitute a prerequisite to consent; a third party need only possess common authority over the premises or item searched. See United States v. Link, 14-CR-223, 2015 WL 729671, at *8 (E.D. Wisc. Feb. 19, 2015) (“It is also not determinative that [third party] did not often use the computers or hard drives. The issue is whether she had joint access, not whether she used such access”); United States v. Duran, 957 F.2d 499, 505 (7th Cir. 1992) (“Accordingly, the mere fact that [third party] neither used the [property] nor left any of her personal effects there does not bear on whether [defendant] maintained exclusive dominion over the structure. One can have access to a building or a room but choose not to enter.”).

Courts generally find valid third-party consent to a search “where the defendant failed to password-protect a computer [or other storage media device] that was shared with others or located in a common area.” United States v. Waddell, 840 F. App'x 421, 431 (11th Cir. 2020). See also United States v. Stabile, 633 F.3d 219, 233 (3d Cir. 2011) (“Here, the facts weigh in favor of a determination that [third party] had the authority to consent to a search and seizure of the shared hard drives. First, the computer was not password-protected. The failure to use password protection indicates that [defendant] relinquished his privacy in the contents of the computer.... Moreover, all of the computers and seized hard drives were located in common areas of the home, such as on the main floor and in the basement, rather than in a private bedroom.... These factors indicate that, under the totality of the circumstances, [third party] had unfettered access to the hard drives and had authority to consent to the seizure of all of them.”); United States v. King, 604 F.3d 125, 137 (3d Cir. 2010) (“Here, [petitioner] placed his hard drive inside the computer [third party] owned and that the two of them shared, without any password protection. As a result, he assumed the risk that [third party] would consent to its seizure.”); United States v. Marchante, 514 F. App'x 878, 882 (11th Cir. 2013) (finding third party possessed common authority over thumb drive located in shared nightstand, even though third party disclaimed ownership, because “[t]here was no evidence the thumb drive was encrypted or locked such that [third party] could not access it”).

Given the above precedent and caselaw, the undersigned finds S.H. possessed common authority over the SD cards. On one hand, Mininger manifested a subjective expectation of privacy in the SD cards, and S.H. disclaimed her interest in the SD cards when the police arrived on the scene.[20] Moreover, SD cards and other forms of electronic storage media traditionally command a high degree of privacy due to their large storage capacities.

On the other hand, Mininger placed the cameras—disguised as USB charging blocks—in unrestricted areas of the home (a hall bathroom shared by the children and a bedroom in which Mininger possessed no privacy interest of his own). The SD cards lacked password protection, allowing any member of the family to examine them. This fact carries significant weight, as Minor One did examine the contents of the SD cards and encountered no difficulty in doing so. Furthermore, Mininger could have password-protected the SD cards; as S.H.'s testimony established, Mininger worked in IBM's ethical hacking department and possessed sophisticated knowledge of encryption techniques. (Doc. 54 at 9; see also id. at 142 (“[T]he depth of encryption on this particular case was very challenging, both in password complexity and software utilized to create those encrypted containers.”)). That S.H. herself did not examine the cards is immaterial, because the test for consent centers around joint authority, not actual use. See Link, 2015 WL at *8. Nor does S.H.'s disclaimer of ownership bear much probative value, as courts do not measure consent by traditional laws of property and ownership. See Matlock, 415 U.S. at 171 n.7.

*15 A recent Eighth Circuit case identified by the Government bolsters these conclusions. In United States v. Bermel, 88 F.4th 741 (8th Cir. 2023), a defendant's minor daughter impliedly consented to the search of a camera and memory card found partially hidden in a common bathroom within the defendant's residence. Noting “apparent authority turns on [the officer's] reasonable reliance on indicia of common authority, like mutual use or joint access and control,” the court concluded the daughter possessed apparent authority over the camera and memory card because

Id. at 745.

The facts in the present case appear even more conclusive: because S.H. boasts a possessory interest in the entire South Carolina residence, her interest in the common bathroom and Minor One's bedroom far surpasses mere use. In addition, as in Bermel, the cameras could be easily moved or carried from room to room. Finally, the cameras were not completely concealed from view, as demonstrated by Minor One's discovery of them.

Taken as a whole, these considerations indicate S.H. possessed the actual authority to consent to the Government's search of the cards. In sum, Mininger assumed the risk members of S.H.'s family would become suspicious and examine the contents of the cards, as so happened.[21]

IV. OFFICERS IN ALABAMA REASONABLY RELIED ON THE FRUITS OF THE WARRANTLESS SEARCH IN SOUTH CAROLINA TO OBTAIN WARRANTS TO SEARCH MININGER'S PERSON AND RESIDENCE.

Because the warrantless search in South Carolina did not violate the Fourth Amendment, officers in Alabama properly relied on evidence obtained from the SD cards to obtain search warrants for Mininger's person and residence. “[P]robable cause exists when the facts, considering the totality of the circumstances and viewed from the perspective of a reasonable officer, establish ‘a probability or substantial chance of criminal activity.’ ” Washington v. Howard, 25 F.4th 891, 898 (11th Cir. 2022) (quoting District of Columbia v. Wesby, 538 U.S. 48, 57, 138 S. Ct. 577, 586 (2018)). “Probable cause does not require conclusive evidence and ‘is not a high bar.’ ” Id. at 899 (quoting Wesby, 538 U.S. at 57, 138 S. Ct. at 586). “Although probable cause requires more than reasonable suspicion that criminal behavior is afoot, it doesn't entail the same ‘standard of conclusiveness and probability as the facts necessary to support a conviction.’ ” United States v. Babcock, 924 F.3d 1180, 1192 (11th Cir. 2019) (quoting United States v. Dunn, 345 F.3d 1285, 1290 (11th Cir. 2003)). “Rather, it requires only ‘a substantial chance’ that evidence of criminal activity exists.” Id. at 1192 (citing Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983)); see also Washington, 25 F.4th at 899 (“A reviewing court must simply ask ‘whether a reasonable officer could conclude ... that there was a substantial chance of criminal activity.’ ” (quoting Wesby, 538 U.S. at 57, 138 S. Ct. at 586)).

*16 The evidence presented in the affidavit—including descriptions of the images recovered from the SD cards—established probable cause to search Mininger's person, residence, and all forms of electronic storage media therein for evidence of child exploitation material. In addition to describing the images viewed on the SD cards, the affidavit particularly established Mininger placed hidden cameras in areas used by minors, brought laptops and electronic storage devices into S.H.'s residence, and “upload[ed] and scan[ed] different things using USB drives.” (Doc. 48-3 at 4). Notably, retrieving the contents of an SD card requires plugging the device into a laptop or other card reader device. Moreover, as the warrant affidavit averred, “[w]ith digital cameras, images of child pornography can be transferred directly onto a computer. A modem allows any computer to connect to another computer through the use of a telephone, cable, or wireless connection. Through the Internet, electronic contact can be made to literally millions of computers around the world.” (Doc. 48-3 at 7). Given these facts, Alabama officers possessed the requisite authority to search any device in Mininger's residence capable of producing, distributing, or storing child sexual abuse material.

If the South Carolina officers had conducted an unconstitutional, warrantless search of the SD Cards, a later-obtained lawful search warrant would not cure the violation under the independent search doctrine. Reviewing the applicable standard readily portrays this conclusion.

“The exclusionary rule bars admission of evidence resulting from a Fourth Amendment violation, unless an exception applies.” United States v. Watkins, 10 F.4th 1179, 1180 (11th Cir. 2021) (en banc) (citing Nix v. Williams, 467 U.S. 431, 442-43 (1984)). Under the independent source exception, “evidence obtained from a lawful source that is independent of any Fourth Amendment violation is admissible, the rationale being that the exclusionary rule should not put the government in a worse position than if the constitutional violation had not occurred.” United States v. Noriega, 676 F.3d 1252, 1260 (11th Cir. 2012) (citations omitted). The Government bears the burden to establish, by a preponderance of the evidence, that it would have obtained the evidence in question from an independent source. United States v. Byrd, 765 F.2d 1524, 1529 (11th Cir. 1985) (“[T]he government need only show by a preponderance of the evidence that, in fact, the evidence used was derived from legitimate, independent sources.” (citing United States v. Seiffert, 501 F.2d 974, 982 (5th Cir. 1974)).

“When a government agent makes an initial warrantless [search] that arguably violates the Fourth Amendment and then relies in part on what he saw during that [search] to obtain a search warrant, [the Eleventh Circuit] appl[ies] a two-part test to determine whether evidence seized during the execution of the warrant was discovered independent of the initial entry and is therefore admissible regardless of whether that first [search] violated the Fourth Amendment.” Noriega, 676 F.3d at 1260.

United States v. Maxi, 886 F.3d 1318, 1329-30 (11th Cir. 2018) (quoting United States v. Bush, 727 F.3d 1308, 1316 (11th Cir. 2013) (per curiam)).

As an initial matter, Mininger argues the independent source doctrine does not apply in the present case “because the government never proved ... Investigator Bryan ever found any evidence pursuant to the search warrant.” (Doc. 59 at 9; id. at 9-10 (“the threshold showing, prior to applying the independent source doctrine, is that some evidence was uncovered during the execution of the search warrant.”)). But Mininger cites no caselaw—in the Eleventh Circuit or elsewhere—to underpin this theory.

*17 In any event, Supreme Court precedent posits a contrary proposition. In Murray v. United States, the petitioner argued, as here, that the exclusionary rule extended “only to evidence obtained for the first time during an independent lawful search.” 487 U.S. 533, 538 (1988). In response, the government contended the doctrine applied in a broader sense to “evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the illegal activity.” Id. The Court sided with the government's approach, noting the independent source doctrine since its inception included “that particular category of evidence acquired by an untainted search which is identical to the evidence unlawfully acquired.” Id. (emphasis in original); see also id. at 545 n. 1 (Marshall, J., dissenting) (“The clearest case for the application of the independent source exception is when a wholly separate line of investigation, shielded from information gathered in an illegal search, turns up the same evidence through a separate, lawful search. Under these circumstances, there is little doubt that the lawful search was not connected to the constitutional violation.” (emphasis added)).

The warrant return completed by Investigator Bryan and Investigator Bevil formally verified the occurrence of a second search. (Doc. 54 at 67-68; doc. 48-1 at 2).[22] Though Investigator Bryan obtained the search warrant for the SD cards at 4:00 p.m. and completed the return a mere 15 minutes later, the above precedent does not require the second lawful search to yield previously undiscovered evidence. (Id.). Moreover, Investigator Bryan testified his forensic examination of the cards continued through December 2—after the South Carolina magistrate judge issued the search warrant. (Doc. 54 at 68). Hence, contrary to Mininger's contention, the foregoing facts do not foreclose application of the independent source doctrine.

Regarding the first factor of the independent source doctrine, the affidavit for the South Carolina warrant did not include any reference to the images the officers had viewed prior to seeking the warrant. See Doc. 48-1 at 1. However, Investigator Bryan testified he “would have” given the magistrate judge “a full account of what had occurred up to that point,” including what he viewed on the SD Cards. (Id. at 46). Therefore, one presumes the South Carolina magistrate judge's issuance of the warrant relied upon Investigator Bryan's verbal account of what he viewed on the SD Cards.[23]

*18 Excluding consideration of Investigator Bryan's verbal recount of the content he viewed on the SD Cards, the balance of the information supported a finding of probable cause to search the SD cards for evidence of Voyeurism and Peeping Tom under South Carolina law.

The following facts remain after excising descriptions of the SD cards' contents:

Section 16-17-470 of the South Carolina Code of Laws defines the term “peeping tom” as “any person” who “peeps through windows, doors, or other like places” or “employs the use of video or audio equipment” on the premises of another “for the purpose of spying upon or invading the privacy of the persons spied upon and any other conduct of a similar nature, that tends to invade the privacy of others.” The same code section defines voyeurism as “knowingly view[ing], photograph[ing], audio record[ing], video record[ing], produc[ing], or creat[ing] a digital electronic file, or film[ing] another person, without that person's knowledge and consent, while the person is in a place where he or she would have a reasonable expectation of privacy” for the purpose of “arousing or gratifying sexual desire.”

As aforementioned, “probable cause exists when the facts, considering the totality of the circumstances and viewed from the perspective of a reasonable officer, establish ‘a probability or substantial chance of criminal activity.’ ” Washington, 25 F.4th at 898 (quoting Wesby 538 U.S. at 57, 138 S. Ct. at 586). The facts alleged in the South Carolina warrant application portray Mininger knowingly planted video recording equipment in rooms frequently used by residents and visitors, particularly minors. Moreover, residents of a home retain a high degree of privacy in bathrooms and bedrooms. Furthermore, Mininger expressly admitted placing the cameras to capture footage of Minor One's 18-year-old friend. This admission alone conclusively satisfies the elements of peeping tom and voyeurism, which do not depend on the victim's minor status or sexually explicit nudity. Given the elements of the South Carolina crimes of peeping tom and voyeurism and the above facts, the undersigned finds Investigator Bryan's affidavit established probable cause to search the SD cards.

However, the Government cannot establish Investigator Bryan's decision to obtain the South Carolina warrant stood unprompted by the initial warrantless search. Investigator Bryan testified he sought the warrant to “backstop [S.H.'s] consent.” (Doc. 54 at 42). If S.H. theoretically withdrew her consent before the forensic examination of the SD cards commenced, one assumes Investigator Bryan would have applied for a search warrant at that time. However, this abstract scenario cannot dispel concerns regarding the timeline in which Investigator Bryan actually obtained the South Carolina warrant.

*19 In particular, Investigator Bryan submitted the warrant application on December 1, after he had already commenced forensic examination of the SD Cards in earnest.[24] In addition, Bryan's concern regarding S.H.'s consent arose after he examined the SD cards. See Doc. 54 and 43 (“I was not familiar with [S.H.'s] relationship with Mr. Mininger. But I didn't want our investigation to be stopped if she withdrew consent for those devices.” (emphasis added)). Moreover, Investigator Bryan conferred and collaborated with agents in Alabama after confirming the SD cards contained child sexual abuse material. In turn, the Alabama agents escalated the investigation to encompass Mininger's residence.

The foregoing facts indicated Investigator Bryan did not want the investigation to face a roadblock and thus, he desired a “backstop” in case S.H. withdrew her consent. Such an indication establishes the course of the investigation influenced Bryan's decision to seek a warrant to search the SD cards, ostensibly due to a belief S.H.'s withdrawal of consent would have tainted his search of the cards and rendered them unavailable for the South Carolina and Alabama prosecutions. Therefore, the evidence garnered before his search of the SD cards did not prompt Investigator Bryan to seek the warrant; rather, the risk of losing the evidence he had already viewed on the SD cards spurred his endeavor to obtain a warrant. The undersigned will not artificially disentangle Investigator Bryan's stated justification with facts suggesting the content of the SD cards prompted the South Carolina warrant application and, later, the Lauderdale County warrant application.

Assuming Investigator Bryan conducted an unlawful, warrantless search of the SD cards, the independent source doctrine would not cure the Lauderdale County warrant, either. Absent a description of the cards' contents, the remaining evidence submitted in the warrant application does not amount to probable cause for crimes relating to the production and possession of child sexual abuse material.

If the court excised from the Lauderdale County warrant affidavit all descriptions of the SD cards' contents, the following evidence remains:

Although these details amount to probable cause for the crimes of peeping tom and voyeurism under South Carolina law, they do not evince a nexus between those alleged crimes and Mininger's residence so as to establish probable cause that evidence of sexual exploitation of a minor or CSAM possession existed at the residence. The facts at the evidentiary hearing established Minor One removed the SD cards from the cameras and viewed at least some of their contents. Minor One reportedly told her mother, “This [indicating one of the SD cards] was in the bathroom. This [indicating the other card] was in my room, pointed at my bed. And I took the SD cards out of these devices and I looked at them. And it's just me and [eighteen-year-old friend] watching a movie last night.” (Doc. 54 at 13) (emphasis added).[25] According to this verbal observation, Minor One did not specifically mention viewing images or videos of herself or her minor siblings in states of nudity—although an implicit inference of such content certainly arises. In addition, absent later forensic examination of the SD cards' contents, the evidence in the warrant application does not corroborate whether the footage captured was continuous or whether the cameras recorded activity in the rooms in question throughout the duration of Mininger's visit. Moreover, a purely exterior inspection of the cards would not allow one to ascertain the amount of occupied storage or the character of any additional data. Furthermore, the testimony recounting Mininger's use of USB drives to ostensibly upload data to a computer only weakly suggests he may have uploaded images from the SD cards to his computers in the absence of other evidence.

*20 In sum, the foregoing recited facts of events occurring in South Carolina do not amount to a fair probability Mininger's Lauderdale residence contained crimes of sexual exploitation of a minor or CSAM possession. If the Lauderdale warrant application established the SD cards contained voluminous information corresponding to the time he occupied the premises, or that it actually contained CSAM (as it did), then a sufficient nexus would have manifested between the SD cards and Miniger's residence.

As to the second factor in the independent source analysis, Detective Danley testified he would have sought a search warrant even if Investigator Bryan had not relayed the contents of the SD cards. (Doc. 54 at 90). However, because the evidence does not support a probable cause finding, the undersigned need not credit or discredit this testimony. The independent source doctrine analysis fails at step one, obviating analysis at step two.

V. THE SEARCH WARRANTS FOR MININGER'S PERSON AND RESIDENCE WERE NOT OVERBROAD.

Mininger next argues the Alabama search warrants were overbroad because “[t]here was no evidence ... that Mr. Mininger used computers to commit this crime ... nor that he committed any additional sexual exploitation crimes.” (Doc. 43 at 7-8). The undersigned disagrees.

As discussed previously, probable cause existed to search Mininger's person, residence, and electronic devices therein for evidence of child sexual abuse materials because the content of an SD card must be viewed on another device, and an Internet connection would enable images to be widely transferred. Furthermore, the application for the Alabama warrants recounted the tendency of CSAM possessors to store such material at their residences in electronic media, and to share such material with other possessors. (Doc. 48-3 at 11-12). Such facts align with decisions identifying a probable-cause nexus between child sexual abuse material and electronic storage media located within a defendant's residence. See United Sates v. Vincent, No. 3:21-cr-00010-TCB-RGV2022, WL 1401463, *3-4, 7 (N.D. Ga. May 3, 2022) (finding affiant's testimony that people with a sexual interest in minors “[o]ften maintain their collections that are in digital or electronic format in a safe, secure, and private environment, such as a computer, smartphone, or memory device,” and “use online resources to retrieve and store child pornography,” established probable cause to search devices within defendant's residence); United States v. Kelly, No. 2:20-CR-030-SCJ-JCF, 2021 WL 1379516, *4 (N.D. Ga. Jan. 12, 2021) (finding affiant's statement that CSAM possessors generally “[maintain] child pornography collections in digital or electronic format ‘such as a computer or other electronic storage devices,’ ” among other characteristics, sufficient to support probable cause determination); United States v. Riccardi, 405 F.3d 852, 860 (10th Cir. 2005) (holding the affidavit's statement that “possessors of child pornography often obtain and retain images of child pornography on their computers,” along with other facts, was “more than enough to support” probable cause); United States v. Potts, 559 F. Supp. 2d 1162, 1172 (D. Kan. 2008) (finding sufficient nexus to residence given testimony that “[c]rimes involving child pornography are often tied to a secure place, like a private residence”); United States v. Lamb, 945 F. Supp. 441, 460 (N.D.N.Y. 1996) (“The observation that images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes is supported by common sense and the cases”); see also United States v. Cubero, 754 F.3d 888, 898 n. 9 (11th Cir. 2014) (“Unlike precomputer-based child pornography consumption, which typically involved time-consuming and costly film-based cameras and photocopiers and distribution in printed form through the postal system, the current computer-based technologies have reduced the barriers to child pornography consumption.”). Given the common characteristics of child sexual abuse material possession, as well as the affiant's training and experience, probable cause existed to search Mininger's person and residence for evidence of child sexual abuse materials. The warrants were not overbroad because they authorized the search of Mininger's computers and other electronic storage devices.

*21 Furthermore, Mininger claims the Alabama warrants failed the particularity requirement because they lacked a limiting principle. (See Doc. 43 at 8 (“The warrants here placed no limits whatsoever on the searches of Mr. Mininger's computers and electronic devices, permitting general searches of their contents.”)). Specifically, Mininger argues the following language renders the warrant unduly broad:

(Doc. 48-3 at 1; Doc. 59 at 15). Mininger appears to read these clauses without reference to additional language cabining the search of Mininger's residence to evidence of “Child Pornography and Sexual Exploitation.” (See Doc. 59 at 16). The undersigned disagrees with Mininger's construal.

Of course, the Fourth Amendment forbids “general, exploratory rummaging in a person's belongings.” Coolidge v. New Hampshire, 403 U.S. 443, 467 (1971). Accordingly, “[a] warrant which fails to sufficiently particularize the place to be searched or the things to be seized is unconstitutionally over broad [and the] resulting general search is unconstitutional.” United States v. Travers, 233 F.3d 1327, 1329 (11th Cir. 2000); see also Groh v. Ramirez, 540 U.S. 551, 559 (2004) (“We have clearly stated that the presumptive rule against warrantless searches applies with equal force to searches whose only defect is a lack of particularity in the warrant.”). But “the particularity requirement must be applied with a practical margin of flexibility, depending on the type of property to be seized,” and “a description of property will be acceptable if it is as specific as the circumstances and nature of activity under investigation permit.” United States v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir. 1982).

In the Eleventh Circuit, “there are generally two types of limitations that can particularize ... a warrant. The first is narrowing the search based on the subject matter of the [records searched].... The second is a temporal limitation.” United States v. McCall, 84 F.4th 1317, 1327 (11th Cir. 2023). The undersigned finds the warrant at issue sufficiently particularized according to the subject matter sought.

According to the Supreme Court in Andresen v. Maryland, reviewers must interpret the language of a warrant in context. 427 U.S. 463, 480-82 (1978). In that case, petitioner argued warrants authorizing the search of his offices for specified documents related to the sale and conveyance of certain realty were fatally general. Id. at 479. Specifically, petitioner asserted the Court must construe the phrase “together with other fruits, instrumentalities and evidence of crime at this (time) unknown,” which appeared in each warrant at the end of a sentence listing specific items pertaining to the realty, in isolation. Id. A majority of the Court disagreed:

*22 Id. at 480-82.

As Andresen makes clear, general language—here, “any and all records”—does not contravene the particularity requirement when the rest of the warrant narrows and contextualizes the challenged language. See United States v. Gordon, 722 F. App'x 931, 933 (11th Cir. 2018) (“This claim [that the magistrate judge's command paragraph contained general language] ignores the rest of the warrant, which specifically lists the location ... as well as the property to be seized.”); United States v. Brooks, 648 F. App'x 791, 793 (11th Cir. 2016) (“That some of the descriptions of the items-to-be-seized contained no express reference to child pornography or to the exploitation of children fails to render the search warrant impermissibly overbroad. When read within the context of the entire warrant, the descriptions are sufficiently particular to enable officers to ‘reasonably ascertain and identify the things to be seized’ as being only those items pertinent to an investigation related to child pornography.”) (first emphasis added); United States v. Wagner, 951 F.3d 1232, 1248 (10th Cir. 2020) (“[Defendant] may not rely on selective portions of a warrant that, read in its proper context, ‘contained sufficiently particularized language requiring a nexus with child pornography.’ ”) (quoting United States v. Grimmett, 439 F.3d 1263, 1271 (10th Cir. 2006)). Here, the phrase “Child Pornography and Sexual Exploitation,” read in context, sufficiently constrains the broad categories of records listed in the clauses above. As such, Mininger's reference to cases condemning unconstrained “all records” searches stands inapposite. (Doc. 59 at 14-16).

Warrants limiting the government's search “to computers, digital storage devices, accessories, and other materials that could contain [child sexual abuse material]” satisfy the particularity requirement. United States v. Gabel, No. 10–60168, 2010 WL 3927697, *10 (S.D. Fla. Sept. 16, 2010), aff'd, 470 F. App'x 853 (11th Cir. 2012); see also id. (“The warrant did not authorize a fishing expedition. As the Government's counsel pointed out at the evidentiary hearing, the warrant would not authorize law enforcement, for example, to search and seize information found on a computer or digital storage device related to tax evasion or some other fraud, or any crimes other than those pertaining to the exploitation of children or the distribution and possession of child pornography.”); United States v. Carroll, 886 F.3d 1347, 1352 (11th Cir. 2018) (“[Petitioner] contends that the warrant permitted a general search of his home, but the warrant afforded the officers little latitude when it authorized the seizure of computers, related storage devices, and other media which might contain evidence of child pornography.”)[26]

*23 Furthermore, because the subject matter of the investigation—evidence of child sexual abuse material—sufficiently narrowed the warrant at issue, the Government need not impose an additional temporal limitation on the search. Crucially, the nature of child sexual abuse material—particularly the penchant for collectors to hoard such material—generally obviates the necessity for date restrictions in search warrants vis-à-vis such material. See United States v. Deppish, 994 F. Supp. 2d 1211, 1220 (D. Kan. 2014) (“Defendant also complains that the search warrant had no temporal limitation on the emails to be searched.... A temporal limitation was not reasonable because child pornography collectors tend to hoard their pictures for long periods of time.” (footnote omitted)); United States v. Johnson, No. 5:19-CR-140, 2021 WL 2667168, at **4-5 (D. Vt. June 29, 2021) (rejecting defendant's contention search warrant contained no date restriction because the “Government was under no constitutional requirement to limit the search to images downloaded during any particular period of time. The protection against an overly broad search was met ...by the requirement that the Government search only for evidence of child pornography crimes, not the date of the conduct giving rise to probable cause.” (citing United States v. Trader, 981 F.3d 961, 969 (11th Cir. 2020))); McCall, 84 F.4th at 1328 (“Given these considerations, we think the preferred method of limiting the scope of a search warrant for a cloud account will usually be time-based. By narrowing a search to the data created or uploaded during a relevant time connected to the crime being investigated, officers can particularize their searches to avoid general rummaging.... Of course, the circumstances of an investigation may not require any subject-or time-limitation on a cloud warrant ....”) (emphasis added).[27]

Moreover, courts in this circuit have determined warrants limiting the government's search “to computers, digital storage devices, accessories, and other materials that could contain [child pornography]” satisfy the particularity requirement without reference to when the conduct under investigation purportedly occurred. United States v. Gabel, No. 10–60168, 2010 WL 3927697, *10 (S.D. Fla. Sept. 16, 2010), aff'd, 470 F. App'x 853 (11th Cir. 2012); see also Carroll, 886 F.3d at 1352. (11th Cir. 2018).

In the present case, the warrants limited the search of Mininger's person and residence to materials that could contain evidence of child pornography and sexual exploitation. Under the circumstances, such guidelines sufficiently limited the search vis-à-vis the nature of the investigation, and the undersigned finds the particularity requirement satisfied.

*24 Even if the warrants failed the particularity requirement, the good faith exception would apply. As an initial matter, the good faith exception covers searches conducted pursuant to an overly broad warrant. United States v. Travers, 233 F.3d 1327, 1330 (11th Cir. 2000) (citing United States v. Accardo, 749 F.2d 1477, 1481 (11th Cir. 1985)). In this context, an officer acts in good faith when he reasonably presumes the warrant valid on its face. See United States v. Leon, 468 U.S. 897, 918-19 (1984) (“But even assuming that the [exclusionary] rule effectively deters some police misconduct and provides incentives for the law enforcement profession as a whole to conduct itself in accord with the Fourth Amendment, it cannot be expected, and should not be applied, to deter objectively reasonable law enforcement activity.”); Travers, 233 F.3d at 1330 (“[O]fficers do not act in objective good faith ... if the warrant is so overly broad on its face that the executing officers could not reasonably have presumed it to be valid.”). In the Eleventh Circuit, indicia of good faith include a warrant's identification of the specific crime under investigation and a close nexus between the stated crime and the property to be searched. McCall, 84 F.4th at 1328; see also United States v. Delgado, 981 F.3d 889, 899 (11th Cir. 2020) (declining to suppress evidence on overbreadth grounds if the warrant “adequately conveys its parameters”).

As established previously, the Lauderdale warrant established a close relationship between the electronic devices contained within Mininger's residence and child sexual abuse material. Retrieving the contents of an SD card requires plugging the device into a laptop or other card reader device, and images of child pornography may be transferred directly onto a computer (or any computer in the world using an Internet connection). See McCall at 1328 (noting a “close connection” between crime and data to be searched justified operation of good faith exception, even though warrant fell short of particularity requirement). In addition, the warrant limited the government's search to evidence of “Child Pornography and Sexual Exploitation.” (Doc. 48-3 at 1). See McCall at 1328 (noting warrant “was tailored to the specific crime under investigation”). Given these considerations, the officers “reasonably could have believed that the [items specified in the warrant] fell within the practical margin of flexibility for [their] broad investigative task.” Id. In sum, the officers did not act in bad faith in obtaining or executing the warrants.

VI. OFFICERS DID NOT CONTRAVENE THE WARRANTS' TEN-DAY EXECUTION DEADLINE.

Under Alabama law, “A search warrant may be executed ... within 10 days after its date; if not executed after such time, it is void.” Ala. Code § 15-5-12. Mininger argues the government continued searching the devices retrieved from him and his residence after the warrants became void. (Doc. 43 at 9 (“Alabama law and the warrants at issue required that they be executed within ten days, yet the government continued to conduct searches under them for over nineteen months. Because the warrants became void after ten days, they cannot justify the searches that continued after that time.”)). Mininger's argument reflects two flaws. First, federal law, not state law, dictates a warrant's reasonableness under the Fourth Amendment. Second, forensic examination conducted after a warrant's stated execution period remains permissible so long as it withstands a reasonableness inquiry. Given the complexity of the present case, the government's nineteen-month forensic examination stood reasonable.

“[C]onstitutional considerations, rather than the demands of state law,” direct courts' analysis of a warrant's execution. United States v. Gilbert, 942 F.2d 1537, 1541 (11th Cir. 1991); see also United States v. Patterson, No. 2:15-CR-00024-RWS-JCF, 2016 WL 9024812, *4 (N.D. Ga. Jan. 21, 2016) (“[S]tate law violations do not constitute violations of the Fourth Amendment or require suppression of the evidence seized as a result of the execution of [a] warrant.”); Tucker v. County of Jefferson, 110 F. Supp. 2d 117, 124 (N.D. N.Y. 2000) (“The mere fact that the arrest was not authorized by state law does not render it unconstitutional.”). That said, “[u]nder some circumstances, compliance with state law ... may be relevant to [the court's] Fourth Amendment reasonableness analysis.... But it cannot rule the day; the primary focus of our inquiry is always federal law.” United States v. Garcia, 707 F.3d 1190, 1195 (10th Cir. 2013) (internal quotation marks and citations omitted).

*25 As an initial matter, the officers may not have actually violated Alabama's warrant execution requirement. This court decided an analogous issue in United States v. Carlisle, No. 5:16-cr-00024-MHH-HGD, 2017 WL 2021090 (N.D. Ala. May 12, 2017). In that case, officers acting under the authority of a valid Alabama warrant searched a defendant's residence and seized electronic devices believed to contain evidence of child sexual abuse and exploitation. Id. at *1-2. Though the officers seized the items within the timeframe specified in the warrant, forensic review concluded over a year later. Id. at *3. As here, the defendant argued the officers contravened Alabama law's warrant execution requirement by failing to complete their forensic analysis within 10 days. Id. at *5. Rejecting the defendant's contention, the court determined the officers “executed” the warrant within the meaning of § 15-5-12 when they physically seized the computers, not when they accessed the files therein. Id. (citing Hatfield v. McDaniel, No. 2:11-cv-590-WKW, 20012 WL 5187770, at *6 (M.D. Ala. Oct. 19, 2012)). Accordingly, the court denied the defendant's motion to suppress.

Moreover, other state courts hold law enforcement may conduct forensic examinations after their applicable statutory warrant execution deadlines. See, e.g., State v. Drachenburg, No. 2022AP2060-CR, 2023 WL 6629737, *1 (Wis. Ct. App. October 12, 2023) (“We conclude that the circuit court properly denied the motion to suppress, because the deadline to execute a search warrant in Wis. Stat. § 968.15(1) applies to the search of the places, and seizure of the items, designated in a search warrant and does not apply to later, off-site analysis of those items that is also authorized in the warrant.”); Com. v. Kaupp, 899 N.E.2d 809, 820 (Mass. 2009) (“Under similar provisions and rules in other jurisdictions, courts have held that the police do not need to complete forensic analysis of a seized computer and other electronic data storage devices within the prescribed period for executing a search warrant.... Because a written return listing the devices to be examined was filed seven days after the search warrant issued, there was no violation of G.L. c. 276, § 3A.”).

Even assuming officers violated Alabama's ten-day warrant execution requirement, the Fourth Amendment itself does not contain warrant expiration deadlines. United States v. Gerber, 994 F.2d 1556, 1559 (11th Cir. 1993) (“[The Fourth Amendment] contains no requirements about when the search or seizure is to occur or the duration”); see also United States v. Syphers, 426 F.3d 461, 469 (1st Cir. 2005) (“The Fourth Amendment itself ‘contains no requirements about when the search or seizure is to occur or the duration.’ ” (quoting Gerber, 994 F.2d at 1559–60)). Accordingly, courts “have concluded that completing a search shortly after the expiration of a search warrant does not rise to the level of a constitutional violation, and cannot be the basis for suppressing evidence seized, so long as probable cause continues to exist and the government does not act in bad faith.” Gerber, 994 F.2d at 1560; see also United States v. Nicholson, 24 F.4th 1341, 1351-52 (11th Cir. 2022). In addition, courts consider whether the delay prejudiced the defendant. Syphers, 426 F.3d at 469.

Hence, courts generally permit later forensic examination of computers and other forms of technology after a warrant's execution deadline. See United States v. Hodges, 1:09-CR-562, 2010 WL 4639238, *4 (N.D. Ga. Sept. 15, 2010) (“[C]ompletion of the analysis of the hard drives after the expiration of the search warrant could not rise to the level of a constitutional violation and cannot be the basis for suppressing evidence seized because probable cause continues to exist, the government did not act in bad faith, and there was no prejudice to the Defendant.... The nearly two month delay was not unreasonable given that [law enforcement] had to clone the hard drives, load the images into his forensic analysis program, ran out of disc space, competed with other agents for time to use the imaging machine, and had difficulty accessing the information on the hard drives due to Defendant's encryption efforts.”); United States v. Maali, 346 F. Supp. 2d 1226, 1246 (M.D. Fla. 2004) (“Warrants authorizing seizure of computer equipment for later off-site search of their contents for evidence pertaining to the alleged crimes have been upheld, especially where, as here, the supporting affidavit explained the reason such off-site analysis was necessary.”); United States v. Burgess, 576 F.3d 1078, 1097 (10th Cir. 2009) (“Here, the warrant to search was secured prior to the hard drives being seized and there is no indication the officers were not diligent in executing the search. Probable cause to search was unaffected by the delay and the reasons to search the computer and hard drives did not dissipate during the month and a half the items sat in an evidence locker.”); United States v. Cameron, 652 F. Supp. 2d 74, 81-82 (D. Me. 2009) (“[T]he Court concludes that so long as the search warrant was timely executed and the computer and the discs were seized within the period the warrant stipulated, the continued forensic inspection of the computer and the discs did not violate the Fourth Amendment, Rule 41(e), or the conditions of the search warrant itself.”); United States v. Gorrell, 360 F. Supp. 2d 48, 55 n. 5 (D.D.C. 2004) (“[T]he warrant only required that the search of the defendant's home occur on or before [the execution deadline]. The warrant did not limit the amount of time in which the government was required to complete its off-site forensic analysis of the seized items and the courts have not imposed such a prophylactic constraint on law enforcement. Although the delay in processing was lengthy, it did not take the data outside the scope of the warrant such that it needs to be suppressed.”); United States v. Habershaw, No. 01– 10195–PBS, 2002 WL 33003434, at *8 (D. Mass. May 13, 2002) (“Further forensic analysis of the seized hard drive image does not constitute a second execution of the warrant or a failure to ‘depart the premises’ as defendant claims, any more than would a review of a file cabinet's worth of seized documents.”); United States v. Hay, 231 F.3d 630, 637 (9th Cir. 2000) (“[T]he affidavit explained why it was necessary to seize the entire computer system in order to examine the electronic data for contraband. It also justified taking the entire system off site because of the time, expertise, and controlled environment required for a proper analysis.”); Upham, 168 F.3d at 535 (“As a practical matter, the seizure and subsequent off-premises search of the computer and all available disks was about the narrowest definable search and seizure reasonably likely to obtain the images.”).

*26 Given the foregoing criteria, law enforcement's continued forensic examination of Mininger's devices was reasonable under the circumstances. First, the government searched Mininger's residence and seized all relevant items before the ten-day expiration deadline. Second, there existed no lapse in probable cause during the months that Mininger's devices remained in the possession of law enforcement. Within a week of obtaining the warrants, Alabama officers recovered “a total of two-hundred and thirty-two (232) images ... identified as a violation of the Alabama Criminal Code: Possession of Child Pornography” and “[a] total of two-hundred and twenty-seven (227) images ... identified as a violation of the Alabama Criminal Code: Production of Child Pornography.” (DX009 at 18). Such evidence likely enhanced, rather than weakened, the existence of probable cause, which buttressed efforts to continue examination of the remainder of Mininger's devices. See Hodges, 2010 WL 4639238 at *4 (“[P]robable cause was actually enhanced by the delay because prior to the ... expiration of the search warrant, [the government] began looking at the hard drives and found hundreds of images which contained erotica of young boys and child pornography.”). Third, the court finds no evidence law enforcement acted in bad faith, as Investigator Gudel testified the level of encryption encountered in this case was particularly complex and sophisticated.[28] Finally, Mininger does not identify any prejudice resulting from the delay.

Based on the foregoing analyses, the undersigned RECOMMENDS the Court DENY Mininger's Motion to Suppress Evidence.

Either party may file specific, written objections to this Report and Recommendation within fourteen (14) days. Failure to file written objections to the proposed findings and recommendation contained in this Report and Recommendation shall bar an aggrieved party from attacking the factual findings on appeal. Written objections shall specifically identify the portions of the proposed findings and recommendation to which objection is made and the specific basis for objection. An objecting party must serve a copy of the objections upon opposing counsel.

The undersigned DIRECTS the Clerk to serve a copy of this Report and Recommendation upon counsel for the United States and counsel for the Defendant.

DONE this 6th day of March, 2024.