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FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
No. 24-12448
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
versus
KEVAN CARTER GIBBS, II,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 4:23-cr-00061-MW-MAF-1
Before NEWSOM and BRASHER, Circuit Judges, and HUCK, * District
Judge.
* Honorable Paul C. Huck, United States District Judge for the Southern District of Florida, sitting by designation.
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2 Opinion of the Court 24-12448
BRASHER, Circuit Judge:
In this appeal, we must again decide whether a criminal
should “go free because the constable has blundered.” People v.
Defore, 150 N.E. 585, 587 (1926) (Cardozo, J.). A software company
alerted the National Center for Missing and Exploited Children that
Kevan Gibbs had uploaded suspected child sexual abuse material
to his account. NCMEC forwarded the tip to law enforcement. After reviewing the tip, Tallahassee Police Department Detective
Paul Osborn requested and received a warrant to search the account that was the subject of the tip. He discovered images of a
man sexually abusing a young girl. The investigation progressed
with additional searches until Gibbs was eventually charged with
sexual exploitation of a minor and possession of child pornography.
Gibbs moved to suppress the evidence obtained from these
searches on the ground that the initial search was conducted without probable cause in violation of the Fourth Amendment. The district court excluded the evidence, concluding that Detective Osborn’s affidavit was too vague and conclusory to support probable
cause or allow reasonable reliance on the resulting warrant.
The government argues that the evidence is admissible under the good faith exception to the exclusionary rule. Gibbs argues
that Detective Osborn’s affidavit merely recited the “bare bones”
conclusions of anonymous tipsters and lacked any indicia of probable cause. We agree with the government. We believe the affidavit, which invoked the general trustworthiness of NCMEC’s
CyberTip program, contained sufficient indicia of probable cause
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24-12448 Opinion of the Court 3
to render Detective Osborn’s reliance on the resulting warrant reasonable. Accordingly, the good faith exception to the exclusionary
rule applies, and we reverse the district court.
I.
Synchronoss Technologies manages cloud storage accounts
linked to Verizon cell phones. Verizon subscribers can use Synchronoss accounts to store their photos and videos. Under 18
U.S.C. § 2258A, electronic service providers like Synchronoss must
report child sex abuse material to NCMEC’s CyberTipline if they
have “actual knowledge” that such material is on their platforms.
Id. § 2258A(a)(1)(A), (B). In making a CyberTip report, electronic
service providers may include information about the individual
suspected of possessing child pornography, their geographic location, a depiction of the child pornography, and other relevant information. Id. § 2258A(b)(1)-(5).
NCMEC is a private, non-profit organization established by
Congress to track missing and exploited children. It serves as an
information clearinghouse, receiving and processing reports about
child pornography through a CyberTipline. “Pursuant to its clearinghouse role . . . and at the conclusion of its review,” NCMEC is
required to forward CyberTips to law enforcement. Id. § 2258A(c).
Upon learning that a user had uploaded suspected child sex
abuse material to his account, a Synchronoss administrator alerted
NCMEC. NCMEC sent a CyberTip containing this information, including Gibbs’s phone number, to law enforcement. Detective Osborn reviewed the tip and presented a Florida state court judge
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with an affidavit requesting a warrant to search Gibbs’s Synchronoss account. The affidavit states that it was “[r]eviewed and
approved by Tallahassee Police Department Legal Advisor Theresa Flury.” Doc 38 at 24.
Detective Osborn’s affidavit provides relevant information
about his background. Specifically, it says that he was a twenty-year
veteran of the Tallahassee Police Department, spent over seven
years in the Special Victims Unit, attended over 1,500 hours of “advanced training” in child sexual abuse investigations, and had investigated more than 600 NCMEC CyberTips.
The affidavit provides a brief statement of probable cause.
“On 10/26/2022, I reviewed Cybertip # 127205611, which was
generated by the National Center for Missing and Exploited Children (NCMEC) after an administrator of Synchronoss advised a
user uploaded suspected child sexual abuse material to their account on, or about, 06/15/2022. This following suspect information was included in the tip: Phone: 7792274759.” Id. at 23. The
affidavit describes the law that had been violated (possession of
child pornography), the place to be searched (the account with the
associated phone number), and the property to be seized (images,
videos, and other content). It says that the “case was initially assigned to law enforcement” in Alabama, but “they discovered the
suspect now resides” in Florida, and that Detective Osborn had
confirmed a Tallahassee address associated with the account. Id.
In addition to this statement of probable cause, the affidavit
also contains an extensive definitions section. It defines NCMEC as
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a “repository for information about child pornography” and states
that “[c]ompanies that suspect child pornography has been stored
or transmitted on their systems can report that information to
NCMEC in the form of a CyberTipline Report (CyberTip).” Id. at
20. CyberTips are defined as investigative reports transmitted to
law enforcement under section 2258A. The affidavit explains that
an electronic service provider can “provide to NCMEC information about the child exploitation activity it believes has occurred” including any “information it may have collected in connection with the suspected criminal activity.” Id. at 21. “NCMEC
then attempts to locate where the activity occurred” and sends the
CyberTip to law enforcement. Id.
The affidavit defines “Electronic Service Providers” as commercial organizations in business to provide individuals and businesses with Internet access. They “provide a range of functions”
including “remote storage.” They also “maintain records pertaining to their subscribers,” including “information concerning content uploaded and/or stored on or via the ESPs [sic] servers.” Id. at
20. The affidavit describes a “Categorization System” used by some
electronic service providers to assist with the classification of child
sex abuse material. The affidavit also defines “Hash Value,” a mathematical algorithm that was not relevant to the investigation.
The judge approved the warrant. Detective Osborn executed it and found pictures on the Synchronoss account of a man
sexually abusing a young girl. He then obtained another warrant
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for a pen register and trap-and-trace device for Gibbs’s phone number. The data Detective Osborn collected led law enforcement to
the victim and to Gibbs’s arrest. Subsequent searches of Gibbs’s cell
phone uncovered additional child sex abuse material. Gibbs was
charged with sexual exploitation of minors and possession of child
pornography under 18 U.S.C §§ 2251 and 2252A.
Gibbs moved to suppress the evidence against him. He asserted that the affidavit for the initial Synchronoss warrant failed to
establish probable cause. He also argued that the good faith exception did not apply because the warrant lacked indicia of probable
cause. If the initial search was unlawful, Gibbs argued and the government agreed that all subsequently discovered evidence would
be inadmissible as fruit of the poisonous tree.
The district court granted Gibbs’s motion to suppress. The
court concluded that Detective Osborn’s probable cause statement
was “bare-bones” and “conclusory.” Doc. 41 at 5. The affidavit did
not describe the images, discuss how the CyberTip was generated,
or explain whether anyone had viewed the content of Gibbs’s files.
The court also observed that the lengthy definitions section was
overly general. It took issue with the affidavit’s inclusion of extraneous definitions, like the discussion of “hash values,” reasoning
that their inclusion could have misled the state judge into believing
those tools were used in the investigation. Because the affidavit
was bare bones, the court held that no reasonable officer could
have relied on it. Accordingly, the good faith exception did not apUSCA11 Case: 24-12448 Document: 38-1 Date Filed: 09/17/2026 Page: 7 of 24
24-12448 Opinion of the Court 7
ply to Detective Osborn’s search. The court suppressed all evidence obtained from the search of Gibbs’s Synchronoss account
and subsequent searches.
The government timely appealed.
II.
Rulings on motions to suppress evidence involve mixed
questions of law and fact. Legal questions are reviewed de novo and
underlying facts are reviewed for clear error. United States v. Reid,
69 F.3d 1109, 1113 (11th Cir. 1995). We review de novo whether the
good faith exception applies. United States v. Morales, 987 F.3d 966,
974 (11th Cir. 2021). The government bears the burden of demonstrating that the good faith exception applies. Id.
III.
The Fourth Amendment protects “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures” and provides that “no Warrants shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be searched,
and the persons or things to be seized.” U.S. CONST. amend. IV.
Under the exclusionary rule, the government may not use evidence
seized during an unlawful search in a subsequent criminal prosecution. United States v. Martin, 297 F.3d 1308, 1312 (11th Cir. 2002).
Under the good faith exception to the exclusionary rule, the government may rely on evidence obtained in violation of the Fourth
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Amendment if law enforcement acted in objectively reasonable
good faith. United States v. Leon, 468 U.S. 897, 907-08 (1984).
The government does not argue that the warrant in this case
was supported by probable cause. It argues only that the district
court erred in declining to apply the good faith exception to the
exclusionary rule. We will therefore assume, without deciding,
that Detective Osborn’s affidavit did not establish probable cause
to search Gibbs’s Synchronoss account.
We conduct a two-part analysis to determine whether the
good faith exception permits us to consider evidence obtained in
violation of the Fourth Amendment. First, we consider whether
the facts fall into any of four limited circumstances where the good
faith exception does not apply: (1) where the judge issuing the warrant was misled by information in an affidavit that the affiant knew
was false or would have known was false except for his reckless
disregard of the truth; (2) where the issuing judge “wholly abandoned his judicial role”; (3) where the affidavit supporting the warrant is “so lacking in indicia of probable cause as to render official
belief in its existence entirely unreasonable”; and (4) where, depending on the circumstances of the particular case, a warrant is
“so facially deficient—i.e., in failing to particularize the place to be
searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid.” Martin, 297 F.3d at 1313 (citation modified). Second, if none of those circumstances is present,
we ask whether the officer reasonably relied on the search warrant.
Morales, 987 F.3d at 974.
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We address each element in turn.
A.
Of the four categories to which the good faith exception
does not apply, Gibbs argues only in favor of the third: that the
affidavit underlying the warrant was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. We disagree. Although all too brief, we believe Detective
Osborn’s affidavit contained sufficient indicia of probable cause to
justify relying on the resulting warrant.
Probable cause exists when “there is a fair probability that
contraband or evidence of a crime will be found in a particular
place.” Illinois v. Gates, 462 U.S. 213, 238 (1983). An affidavit in support of a warrant must state facts sufficient to justify the conclusion
that evidence will probably be found at the premises to be
searched. Martin, 297 F.3d at 1314 (citing United States v. Hove, 848
F.2d 137, 140 (9th Cir. 1988)). The affidavit should establish a connection between the defendant and the place to be searched. Id. If
the affidavit mentions an informant, the affidavit should demonstrate the informant’s basis of knowledge and veracity. Id.
Of course, the question here is not whether the affidavit establishes actual probable cause—the government concedes it did
not. The question is whether the affidavit was so lacking in indicia
of probable cause that it was unreasonable to rely on the resulting
warrant. “We look only to the face of the affidavit to determine
whether it lacked sufficient indicia of probable cause.” United States
v. McCall, 84 F.4th 1317, 1325 (11th Cir. 2023) (citation omitted). An
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affidavit lacks indicia of probable cause when it provides “no hint”
as to why police believed they would find incriminating evidence.
Id. (quoting Morales, 987 F.3d at 976). That belief must be so
“plainly incompetent” in light of the affidavit that “no officer of reasonable competence would have requested the warrant.” Id. (first
quoting Messerschmidt v. Millender, 565 U.S. 535, 553 (2012); and
then quoting Malley v. Briggs, 475 U.S. 335, 346 n.9 (1986)).
Gibbs argues that the affidavit lacks sufficient indicia of probable cause because it does not describe the images found in his Synchronoss account. 1 As the Supreme Court has explained, however,
the existence of probable cause depends on the totality of the circumstances, not any particular factor. Gates, 462 U.S. at 233, 238. It
is true that an affidavit may establish probable cause by describing
the alleged contraband—in this case child pornography. See United
States v. Lapsins, 570 F.3d 758, 764-65 (6th Cir. 2009); United States
v. Chrobak, 289 F.3d 1043, 1044-45 (8th Cir. 2002). And it is true that
this affidavit did not describe the pictures that were on Gibbs’s account.
But information from a trustworthy source can also provide
probable cause. In Jones v. United States, for example, the Supreme
1 Courts disagree about the circumstances that allow a law enforcement officer
to conduct a warrantless examination of digital files that form the basis of a
CyberTip. Compare United States v. Miller, 982 F.3d 412 (6th Cir. 2020), and
United States v. Reddick, 900 F.3d 636 (5th Cir. 2018), with United States v. Maher,
120 F.4th 297 (2d Cir. 2024), and United States v. Wilson, 13 F.4th 961 (9th Cir.
2021).
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Court upheld a warrant based on an anonymous tip by an informant who had previously given accurate information and was considered trustworthy. 362 U.S. 257, 271 (1960), overruled on other
grounds by United States v. Salvucci, 448 U.S. 83 (1980). The affidavit
merely referred to a “supply of heroin” and did not otherwise describe the illegal contraband. Id. at 267 n.2. But because the informant had proved reliable in the past, his statement helped to establish
probable cause. Id. at 271. Likewise, in United States v. Harris, the
Court found probable cause where an affidavit relied on an unidentified informant who had experience purchasing illicit whiskey,
knew about the trade, and averred that whiskey was being consumed on the defendant’s property. 403 U.S. 573, 575-76 (1971).
Once again, the affidavit did not describe the contraband such that
the reviewing magistrate could make an independent determination of its legality. Id.
Of course, an affidavit must describe some of the underlying
circumstances to justify good faith reliance on a resulting warrant.
The Supreme Court’s opinions in Nathanson v. United States, 290
U.S. 41 (1933), and Aguilar v. Texas, 378 U.S. 108, 114 (1964), abrogated on other grounds by Illinois v. Gates, 462 U.S. 213 (1983), are illustrative. The Supreme Court has cited these precedents as examples of search warrants that so clearly lacked probable cause that
law enforcement officers could not have relied on them in good
faith. See Leon, 468 U.S. at 915. In Nathanson, a warrant was issued
upon the sworn allegation that the affiant “has cause to suspect and
does believe that certain merchandise” was in a specified location.
290 U.S. at 44. The Court held that the warrant was improperly
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issued because “[m]ere affirmance of belief or suspicion is not
enough” without “supporting facts or circumstances” to explain
why the affiant had the belief. Id. at 47. In Aguilar, the affidavit
stated that police “received reliable information from” an unidentified “credible person” that a dwelling contained heroin. 378 U.S.
at 109. The Court held that the warrant was invalid because,
“[a]lthough an affidavit may be based on hearsay information and
need not reflect the direct personal observations of the affiant, the
magistrate must be informed of some of the underlying circumstances” for an unidentified informant’s conclusion. Id. at 114.
Applying this case law, we see several details in Detective
Osborn’s affidavit that go to the reliability of his “informant” and
explain the circumstances of the informant’s report. According to
the affidavit, the CyberTip went through two layers of review: the
initial generation of the tip by Synchronoss, and NCMEC’s receipt
and forwarding of the tip to law enforcement. Under 18 U.S.C. §
2258A(a)(1)(A), referenced in the affidavit, Synchronoss was obligated to generate the CyberTip only upon obtaining “actual
knowledge” of child pornography. The affidavit states that “an administrator of Synchronoss advised a user uploaded suspected child
sexual abuse material to their account,” establishing that Synchronoss had knowledge of the contents of the files. As in Harris,
the affidavit explained the circumstances of the administrator’s
knowledge. That is, the Synchronoss administrator was in a position to know about the existence of child pornography on the very
platform that he monitored.
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We also think it reasonable for a law enforcement officer to
conclude that, when an electronic service provider says it has identified suspected child pornography on a customer’s account, there
is probable cause to believe there is child pornography on the account. According to the affidavit, electronic service providers
“maintain records pertaining to their subscribers,” including “information concerning content uploaded and/or stored on or via the
ESPs [sic] servers.” Doc. 38 at 20. Of course, the electronic service
provider could be wrong. But the tip here is not much worse than
the tips in Jones and Harris, where informants merely reported seeing heroin and whiskey. Although the informants did not describe
the heroin or whiskey, they were the kind of informants who could
be expected to distinguish illegal contraband from innocuous substances. So too here.
NCMEC is also a particularly reliable source from which to
receive a tip. Like the tipster in Jones, who was known as an accurate informant, NCMEC regularly informs police of potential child
pornography. As the affidavit makes clear, Congress created
NCMEC to support law enforcement in the aid of sexually exploited children. It has “serve[d] as a repository for information
about child pornography” for over forty years. Doc. 38 at 20. Recognizing its accuracy, we have held that NCMEC reports and
spreadsheets bear sufficient indicia of reliability in the restitution
context. United States v. Sotelo, 130 F.4th 1229, 1249 (11th Cir. 2025)
(“It is also notable that the report comes from the NCMEC, the
only organization in the country dedicated to the notification and
identification of child pornography victims.”). The Fifth Circuit has
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similarly observed that “NCMEC cyber-tips regularly form the basis of investigations in both this circuit and across the nation; their
reliability ha[s] seemingly been rarely questioned.” United States v.
Landreneau, 967 F.3d 443, 453 (5th Cir. 2020).
Detective Osborn’s affidavit also contained a definitions section that bolstered the reliability of NCMEC and the reporting process in general. The affidavit describes NCMEC as a “repository for
information about child pornography” and states that companies
report child pornography on their platforms to NCMEC. Doc. 38
at 20. It also states that CyberTips can come from both companies
and concerned individuals, and that electronic service providers
can provide NCMEC with information regarding incident type and
incident time, as well as files and screenshots. And, as we have explained, Synchronoss had to have actual knowledge of child pornography. These are the kinds of “supporting facts” and “underlying circumstances” the Supreme Court has found necessary to establish probable cause. Nathanson, 290 U.S. at 47; Aguilar, 378 U.S.
at 114.
Recently, the Seventh Circuit held that a similar CyberTipbased affidavit established probable cause in part because of the system’s reliability. In United States v. Braun, the court reasoned that
an officer’s affidavit established probable cause in part because the
officer explained that electronic service providers had generated
CyberTips to NCMEC, that NCMEC had forwarded these tips to
police as required by law, and that the officer had previously relied
on NCMEC CyberTips and considered them reliable. No. 25-2740,
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slip op. at 11-12 (7th Cir. Aug. 20, 2026). Citing the Fifth Circuit’s
decision in Landreneau, the court concluded that “[s]uch indicia of
reliability lent credence to the accuracy of the CyberTip reports.”
Id. at 12. To be sure, there were other statements in the warrant
application that also helped establish probable cause—allegations
about previous internet chats with young girls and a suspicious file
name. See id. at 13-14. But, in finding probable cause to search based
on the CyberTip, the Seventh Circuit did not require that the officer personally view the images or describe them in the warrant
application. Id. at 9. If the warrant affidavit in Braun was sufficient
to establish probable cause, then this affidavit had enough indicia
of probable cause for an officer to rely on the resulting warrant.
Finally, we note that, unlike the affidavits in Jones and Harris,
Detective Osborn’s affidavit disclosed the names of the entities that
had generated and forwarded the tip. A tip from a known informant is stronger than an anonymous one because it is possible to assess the known informant’s knowledge and reputation. Cf. Florida
v. J.L., 529 U.S. 266, 270 (2000) (discussing principle in the reasonable suspicion context).
Gibbs makes three arguments to resist the conclusion that
the affidavit contained sufficient indicia of probable cause. None
works.
First, Gibbs argues that Detective Osborn should have tried
to “corroborate, verify, or investigate” the CyberTip before seeking a warrant. No doubt, the indicia of probable cause would have
been greater if Detective Osborn had recounted his review of the
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child abuse material. But affidavits may be based on hearsay and
need not reflect the affiant’s direct personal observations. Aguilar,
378 U.S. at 114. Though desirable, independent police corroboration of an informant is not necessary to create indicia of probable
cause if an affidavit otherwise establishes an informant’s basis of
knowledge and veracity. United States v. Brundidge, 170 F.3d 1350,
1353 (11th Cir. 1999).
Second, Gibbs takes issue with Detective Osborn’s inclusion
of a few unrelated definitions in the affidavit, such as “Hash Value”
and references to a “Categorization System.” To be sure, Detective
Osborn’s inclusion of unrelated terms was sloppy. But these were
relatively minor definitions included at the end of the section.
Gibbs does not take issue with the more relevant definitions of
“NCMEC,” “ESP,” and “CyberTip,” which the affidavit actually
referenced in its probable cause section. Affidavits do not have to
be perfect; we have applied the good faith exception even where
the affidavit contained significant imperfections. See Martin, 297
F.3d at 1315 (finding indicia of probable cause even though affidavit’s deficiencies as to dates, times, and links between the defendant
and criminal activity “le[ft] much to be desired”). There is no reason to conclude that the state judge was misled by the extraneous
definitions of terms that did not actually appear in the probable
cause narrative.
Finally, Gibbs argues that it was “possible” that no one ever
viewed the contents of the Synchronoss account. That is, he posits
that, perhaps, neither the electronic service provider nor anyone at
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NCMEC actually saw images of child pornography on Gibbs’s account. This argument flips the standard for the good faith exception. To avoid the good faith exception, it must have been “entirely
unreasonable” for Detective Osborn to rely on the warrant that he
secured. Id. at 1313, 1315. At the beginning of any investigation, it
is “possible” for an informant to be wrong. After all, even when an
affidavit establishes obvious, ironclad probable cause, the resulting
search may prove fruitless. But the good faith exception requires
that we weigh likelihood and reasonableness; it does not demand
certainty.
In short, we conclude that the affidavit, although it did not
describe the contraband and obviously could have been better,
contained sufficient indicia of probable cause to render Detective
Osborn’s reliance on the resulting warrant reasonable. At the very
least, we cannot say the affidavit provides “no hint” as to why police believed they would find incriminating evidence in Gibbs’s
Synchronoss account. McCall, 84 F.4th at 1325.
B.
Having rejected Gibbs’s argument that the affidavit lacked
indicia of probable cause, we turn to whether Detective Osborn
reasonably relied on the warrant. Morales, 987 F.3d at 974. We have
held that, “[i]n all but the most unusual circumstances, it is objectively reasonable for a law enforcement officer to rely on a court
order.” McCall, 84 F.4th at 1329 (quoting United States v. Stowers, 32
F.4th 1054, 1067 (11th Cir. 2022)). Only if the circumstances of the
warrant establish that a reasonably well-trained officer would
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know the resulting warrant was illegal despite the state judge’s authorization may we conclude that the detective acted unreasonably. Id.
We cannot say it was unreasonable for Detective Osborn to
rely on the warrant. Information in the affidavit can support a finding of good faith reliance on the warrant. United States v. Robinson,
336 F.3d 1293, 1297 (11th Cir. 2003); Morales, 987 F.3d at 976. As we
have already explained, the warrant was based on a CyberTip reviewed by NCMEC and generated by a Synchronoss administrator
based on actual knowledge of child pornography on the Synchronoss platform. Detective Osborn’s reliance on the warrant was
neither entirely unreasonable nor “plainly incompetent.” McCall,
84 F.4th at 1325.
Two other facts in the affidavit also serve to justify Detective
Osborn’s reliance on the resulting warrant. First, in determining
whether an officer reasonably relied on a warrant, we consider “a
particular officer’s knowledge and experience.” Herring v. United
States, 555 U.S. 135, 145 (2009). And Detective Osborn explained in
the affidavit that he was a seasoned detective with years of experience in child sex abuse investigations, was familiar with NCMEC
and its reliability, and had investigated hundreds of NCMEC
CyberTips. Second, the affidavit states that Detective Osborn received approval from a Tallahassee Police Department legal advisor before submitting his warrant application to the judge. The Supreme Court and this Court have consistently held that an officer’s
effort to receive approval from lawyers is indicative of objectively
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reasonable good faith reliance. Massachusetts v. Sheppard, 468 U.S.
981, 989 (1984); United States v. Taxacher, 902 F.2d 867, 872 (11th
Cir. 1990); McCall, 84 F.4th at 1329.
Finally, there is no evidence that Detective Osborn intentionally omitted facts that would have defeated a finding of probable cause, provided information he knew was false, or otherwise
engaged in misconduct. United States v. Gregory, 128 F.4th 1228,
1245 (11th Cir. 2025). “Assuming such evidence existed, [Gibbs]
would have been free to present it, but he did not.” Robinson, 336
F.3d at 1297.
* * *
When asked to exclude evidence of crime, we must keep in
mind that the purpose of the exclusionary rule is to deter police
misconduct. McCall, 84 F.4th at 1323. Suppression of evidence is a
remedy of last resort. Hudson v. Michigan, 547 U.S. 586, 591 (2006).
The Supreme Court has recognized that good faith mistakes cannot be deterred and are not worth the “heavy toll” the exclusionary
rule takes on society and the courts. Davis v. United States, 564 U.S.
229, 237-38 (2011). In a case like this one—the execution of a warrant based on a tip from a source established by Congress that has
proven credible in the past—we see little deterrence benefit from
the exclusionary rule.
IV.
We REVERSE and REMAND for further proceedings consistent with this opinion.
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24-12448 NEWSOM, J., Concurring 1
NEWSOM, Circuit Judge, concurring:
For me, this is a close case. The affidavit that Detective Osborn submitted in support of his warrant application leaves a lot to
the imagination—and thus a lot to be desired. Detective Osborn
explained that he had received a CyberTip generated by the National Center for Missing and Exploited Children after an unnamed
“administrator” at a company called Synchronoss advised NCMEC
that a user had uploaded “suspected” child sexual abuse material to
his account. Br. of Appellant at 8. Questions abound: Who is this
nameless, faceless “administrator”? Why did he or she “suspect[]”
the material was illicit? Did NCMEC review the tip’s contents before forwarding it along to law enforcement? Did Detective Osborn verify the content himself? And how often do NCMEC tipbased investigations yield evidence of a crime? Lots of questions—
not many answers. A judge confronted with this affidavit would
have to pile inference on top of inference in order to conclude that
“there [wa]s a fair probability that contraband or evidence of a
crime w[ould] be found” on Gibbs’s account. See Illinois v. Gates,
462 U.S. 213, 238 (1983). With so many weak links in the causal
chain, probable cause seems like a stretch. Such a stretch, in fact,
that the government doesn’t even contend that probable cause existed.
But here’s the thing: In “marginal cases,” we’ve said, “suppression is inappropriate.” United States v. McCall, 84 F.4th 1317,
1323 (11th Cir. 2023) (quoting United States v. Ventresca, 380 U.S.
102, 109 (1965)). The good-faith exception to the exclusionary rule
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applies to all but the most clear-cut Fourth Amendment violations.
Gibbs asserts that two exceptions to the exception (so to speak) apply here. First, he says that Detective Osborn’s affidavit was “so
lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.” See United States v. Leon, 468 U.S.
897, 923 (1984) (citation omitted). And second, he says that Detective Osborn unreasonably relied on the search warrant that the
judge ultimately issued. See United States v. Martin, 297 F.3d 1308,
1318 (11th Cir. 2002). It seems to me that these two categories substantially overlap, but I’ll just take them in turn.
First, while I agree with the majority that the affidavit contains at least some indicia of probable cause, those indicia are pretty
doggone weak. The majority notes, for instance, that “[a]ccording
to the affidavit, the CyberTip went through two layers of review:
[(1)] the initial generation of the tip by Synchronoss, and [(2)]
NCMEC’s receipt and forwarding of the tip to law enforcement.”
Maj. Op. at 12. That’s true, but neither layer of “review” inspires
much confidence. I agree, for instance, that Synchronoss “was obligated to generate the CyberTip only upon obtaining ‘actual
knowledge’ of child pornography,” id. at 12–13 (emphasis added),
but nothing would have prevented the company from generating
a tip based on something less—it wasn’t obligated, that is, not to
generate a tip without such knowledge. Indeed, the governing statutory framework at least arguably promotes over-reporting and
thus skews the balance. Companies are penalized for failing to report illegal material, but not for mistakenly reporting material that
turns out to be lawful. 18 U.S.C. §§ 2258A(e), 2258B(a) & (b). And
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perhaps tellingly, all Detective Osborn’s affidavit says is that the
unnamed Synchronoss administrator “suspected” CSAM—not that
he or she actually saw anything.
Nor do I put a lot of stock in NCMEC’s “review.” Of course,
I take seriously the majority’s point that NCMEC’s involvement
lends credibility to the tip because “NCMEC regularly informs police of potential child pornography.” Maj. Op. at 13. But unlike a
tipster who law enforcement knows provides reliable tips, we don’t
know, at least from Detective Osborn’s affidavit, whether
NCMEC’s reports regularly unearth evidence of crime. Indeed,
based on the affidavit, we don’t know whether NCMEC regularly
reviews tips before sending them to law enforcement or simply
serves as a conduit. And we most certainly don’t know whether
NCMEC reviewed this one.
Having said all that, and despite what seem to me to be some
pretty glaring shortcomings, I agree with the majority that Detective Osborn’s affidavit isn’t so bare-bones that it lacks any indicia of
probable cause. After all, we’ve said that an affidavit lacks such indicia only when it provides “no hint” as to why law enforcement
believed they would find incriminating evidence—when it is so bereft that it would be “plainly incompetent” to so conclude. McCall,
84 F.4th at 1325 (quoting Messerschmidt v. Millender, 565 U.S. 535,
553 (2012)). I can’t say that here. We know why Detective Osborn
believed there was illicit material on Gibbs’s computer: because he
received a tip from NCMEC that Gibbs had “uploaded suspected
child sexual abuse material to [his] account.” Br. of Appellant at 8.
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Thus, the affidavit “establish[ed] a connection between the [account] and any criminal activity.” Martin, 297 F.3d at 1314.
Second, let me turn briefly to objective reasonableness. Recall that in this case, after Detective Osborn prepared his affidavit,
it was vetted twice. First, he had it “[r]eviewed and approved by
[a] Tallahassee Police Department Legal Advisor.” Br. of Appellant
at 9. Then, of course, a state-court judge deemed it sufficient and
issued a warrant based on it. I would be extremely reluctant to hold
that an officer acted unreasonably in declining to countermand the
conclusions both of his in-house lawyer and of a neutral magistrate.
I won’t say never, but the bar is—and has to be—extremely high.
The case law bears out my reluctance. We’ve long held that
seeking approval from lawyers and judges “is indicative of objective good faith.” United States v. Taxacher, 902 F.2d 867, 872 (11th
Cir. 1990) (citing Massachusetts v. Shephard, 468 U.S. 981, 989–90
(1984)); see also Messerschmidt, 565 U.S. at 553–555. And for good
reason: Taking the care to confirm with a lawyer and a judge that
an affidavit establishes probable cause—and then acting on their
directives—is hard to square with the “deliberate, reckless, or . . .
grossly negligent” conduct that the Supreme Court has required
before excluding evidence. See Herring v. United States, 555 U.S. 135,
144 (2009).
* * *
Bottom line: This was a bad affidavit. But it was not completely bankrupt, and both a lawyer and a neutral magistrate signed
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off on it. That’s enough to trigger the good-faith exception and
forestall the application of the exclusionary rule.