United States v. Loera (182 F. Supp. 3d 1173, 2016)

United States District Court for the District of New Mexico 2016-04-19

Citations

Full opinion text

MEMORANDUM OPINION AND ORDER

' James 0. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendant’s Motion to Reconsider Court’s Memorandum Opinion and Order [Doc. 62] on Defendant’s Motion to Suppress Evidence [Doc. 35], filed March 8, 2016 (Doc. 109)(“Motion to Reconsider”). The Court held a hearing on April 8, 2016. The primary issues are: (i) whether the Court should reconsider its rulings, set forth in the last forty pages of its Memorandum Opinion and Order, filed October 20, 2014 (Doc. 62)(“Motion to Suppress MOO”), 59 F.Supp.3d 1089 (D.N.M.2014)(Browning, J.), that: (a) Special Agent Aaron Cravens and Special Agent Brian Nishida a'cted in good faith when they continued to search Defendant Jason Loera’s CDs after discovering child pornography on November 20, 2012, (b) probable cause still existed for issuance of the second search warrant even though Cravens illegally opened files on Loera’s CDs on November 27, 2012, to provide a description of images on the CDs in the second search warrant affidavit, (c) even if the second search warrant suffered from an incurable defect, Nishida relied on the warrant in good faith when he searched Loera’s CDs and laptop for child pornography, and (d) even if the second search warrant contained an incurable defect and Nishida did not execute the second search warrant in good faith, the agents inevitably would have discovered child pornography; and (ii) whether suppression is warranted on the grounds that the United' States violated rule 41(e)(2)(B) of the Federal Rules of Criminal Procedure. The Court will deny the Motion to Reconsider. First, the Court concludes that its legal conclusions set forth in the last forty pages of its Motion to Suppress MOO are not good candidates for reconsideration. Even if the Court agreed that its legal conclusions set forth in the last forty pages of its Motion to Suppress MOO were good candidates for reconsideration, however, the Court would not modify its rulings or conclude that suppression is warranted in this case. Second, the Court has considered Loera’s argument that the Court should suppress the evidence on the grounds that the agents violated rule 41(e)(2)(B)—an assertion he makes for the first time in his Motion to Reconsider—but concludes that suppression is not warranted in this case, because there is no evidence that the agents violated rule 41(e)(2)(B). Accordingly, the Court will deny the Motion to Reconsider.

FACTUAL BACKGROUND

In its Memorandum Opinion and Order, filed October 20, 2014 (Doc. 62)(“Motion to Suppress MOO”), 59 F.Supp.3d 1089 (D.N.M.2014)(Browning, J.), the Court made, on pages five through twenty-five, one-hundred and twenty findings of fact. See Motion to Suppress MOO at 5-25, 59 F.Supp.3d at 1096-1108. Loera has stated that he does not challenge any of the Court’s findings of fact. See Transcript of Hearing a t 21:18-25 (Court, Walz)(taken April 8, 2016)(“Tr.”). The Court will therefore integrate those findings of fact herein by reference, and not repeat them. The Court will restate only some facts that are needed to evaluate the Motion to Reconsider.

Loera’s apartment and electronic media were subject to a search (the first search), made pursuant to a search warrant (the first search warrant), on November 20, 2012, to search for evidence of computer fraud and electronic mail hijacking. See Motion to Suppress MOO at 512; 59 F.Supp.3d at 1096-1100. While Cravens and Nishida conducted the search, they found evidence of child pornography within Loera’s electronic medium. See Motion to Suppress MOO at 12-19; 59 F.Supp.3d at 1100-04. The agents seized and took-as evidence the material, which was outside the first search warrant’s scope. See Motion to Suppress MOO at 12-19; 59 F.Supp.3d at. 1100-04. Cravens conducted a second search of the material seized during the execution of the first search warrant, which contained child pornography, on November 27, 2012 (the second search) to obtain a better description of the material found and develop probable cause to search for evidence of child pornography. See Motion to Suppress MOO at 19-21; 59 F.Supp.3d at 1104-05. Subsequently, agents applied for a received a second search warrant on November 29, 2012 (the second search warrant). See Motion to Suppress MOO at 21; 59 F.Supp.3d at 1105. Based on both the first and second search warrants, Nishida conducted searches of Loera’s Dell laptop computer and hard drive in December of 2012 and CDs in April, 2013. See Motion to Suppress MOO at 23-25; 59 F.Supp.3d at 1106-08. As a result of the searches, Nishida discovered evidence of child pornography. See Motion to Suppress MOO at 23-25; 59 F.Supp.3d at 1106-08.

PROCEDURAL BACKGROUND

A federal grand jury indicted Loera on two counts of receipt of visual depictions of minors engaged in sexually explicit conduct, allegedly occurring on September 9, 2009, and one count of possession of a visual depiction of a minor engaged in sexually explicit conduct, allegedly occurring on February 20, 2010. See Indictment at 1-2, filed May 29, 2013 (Doc. 2). Early in 2014, a federal grand jury filed a superseding indictment that charged Lo-era with three counts of possession of material containing any visual depiction of a minor engaged in sexually explicit conduct, each allegedly occurring on November 20, 2012. See Superseding Indictment at 1-2, filed January 9, 2014 (Doc. 25)(“Supersed-ing Indictment”).

The Court issued the 166-page Motion to Suppress MOO on October 20, 2014. In its Motion to Suppress MOO, the Court denied Loera’s Motion to Suppress Evidence, filed March 7, 2014 (Doc. 35)(“Mo-tion to Suppress”). See Motion to Suppress MOO at 1-2; 59 F.Supp.3d at 1094-95. The Court explained:

The Court heard the parties’ arguments on the Motion on August 19, 2014. The primary issues are: (i) whether Defendant Jason Loera may seek suppression of the child pornography found on Lo-era’s laptop computer and compact discs (“CDs”); (ii) whether the Search and Seizure Warrant, issued November 19, 2012, submitted to the Court at the May 20, 2014, evidentiary hearing as Government’s Hearing Exhibit 9 (“First Warrant”), satisfies the particularity requirement in the Fourth Amendment to the Constitution of the United States of America; (iii) whether Federal Bureau of Investigation (“FBI”) Special Agent Aaron Cravens’ and Special Agent Brian Nishida’s on-site preview of Loera’s CDs during the execution of the First Warrant on November 20, 2012, was within the First Warrant’s scope; (iv) whether the agents conducted an unlawful search when they continued searching Loera’s CDs for evidence of computer fraud and electronic mail hijacking after they discovered child pornography; (v) whether the agents acted in good faith when they continued to search for evidence of computer fraud and electronic mail, hijacking after discovering child pornography; (vi) whether Cravens was permitted to open files on Loera’s CDs on November 27, 2012, for the limited purpose of providing a United States Magistrate Judge a description of four images depicting the sexual abuse of a child; (vii) whether, even if Cravens was not permitted to open the files on November 27, 2012, and even if those descriptions are excised from the, affidavit in support of the Second Warrant, probable cause to issue the Search and Seizure Warrant (issued November 29, 2012), submitted to the Court at the May 20, 2014, evidentiary hearing as Government’s Hearing Exhibit 10 (“Second Warrant”) still exists; (viii) whether, even if the Second Warrant suffered from an incurable defect, Nishida relied on that warrant in good faith when he searched Loera’s CDs and laptop for child pornography; and (ix) whether, even if the Second Warrant contained an incurable defect and Nishi-da did not execute the Second Warrant in good faith, the agents inevitably would have discovered child pornography.

The Court will deny the Motion. The Court concludes that Loera may seek suppression of the child pornography evidence, because he admitted that the CDs and laptop on which the agents discovered child pornography were within his control and possession when the agents seized them. The Court holds that the First Warrant satisfies the particularity requirement in the Fourth Amendment, because it limited the agents’ search to evidence of computer fraud and electronic mail hijacking. The Court concludes that the agents’ on-site preview of Loera’s CDs during the execution of the First Warrant on November 20, 2012, was within the warrant’s scope, because the warrant authorized the agents to open image and video files, and files with last-modified and created dates before July 29, 2011. The Court further holds that, while the Court is concerned with the soundness of the United States Court of Appeals for the Tenth Circuit’s law related to computer searches, under that law, which the Court, as a district court, must faithfully apply, the agents conducted an unlawful search when they continued searching for evidence of electronic mail hijacking and computer fraud on Loera’s CDs after they discovered child pornography. The Court concludes, however, that the agents acted in good faith when they did so. The Court holds that Cravens was not permitted to open files on Loera’s CDs on November 27, 2012, for the limited purpose of providing a United States Magistrate Judge a description of four images depicting the sexual abuse of a child. The Court concludes, however, that, even if Cravens was not permitted to open the files on November 27, 2012, and even if those descriptions are excised from the Affidavit in Support of an Application Under Rule 41 for a Warrant to Search and Seize (issued November 29, 2014), submitted to the Court at the May 20, 2014, evidentiary hearing as Government’s Hearing Exhibit 9 (“Second Affidavit”), probable cause to issue the Second Warrant still existed. The Court holds that, even if the Second Warrant suffered from an incurable defect, Nishida relied on that warrant in good faith when he searched Loera’s CDs and laptop for , child pornography. Finally, the Court holds that, even if the Second Warrant contained an incurable defect and Nishida did not execute the second warrant in good faith, the agents inevitably would have discovered child pornography on Loera’s CDs and laptop. Accordingly, the Court will deny the Motion, and not exclude the child pornography evidence from the trial.

Motion to Suppress MOO at 1-2; 59 F.Supp.3d at 1094-95.

1. The Motion to Reconsider.

Loera filed the Motion to Reconsider on March 8, 2016. See Motion to Reconsider at 1. Loera first argues that, because there was a clear violation of Rule 41(e)(2)(B) of the Federal Rules of Criminal Procedure, the Court must suppress all evidence. See Motion to Reconsider at 3-5. Loera contends that rule 41(e)(2)(B) instructs agents that, if they seize any electronically stored media through the warrant process, later reviews are permitted only if those reviews are consistent with the warrant. See Motion to Reconsider at 4. Loera asserts that here, the Court deemed the agents November 27 search unconstitutional, because “Cravens’ November 27, 2012, searches of Loera’s CDs violated the Fourth Amendment” of the Constitution of the United States of America. According to Loera, the Court reasoned that Cravens was not searching for evidence of electronic fraud and' computer hijacking as the first warrant authorized, but instead hoped to find child pornography, so that he could provide a description of the child pornography in his affidavit for the second search warrant. See Motion to Reconsider at 4. Loera maintains that this violation “supports a motion to suppress for a Rule 41 violation that automatically excludes the 4 contraband CDs and the fruits and instrumental-ities of that search (i.e. computer hard drives).” Motion to Reconsider at 4. Lo-era further asserts that, because the rule 41 violation occurred before the issuance of the second search warrant to search for child pornography, the Court should not entertain “good faith” arguments. See Motion to Reconsider at 4.

Loera explains that, under the framework that the Tenth Circuit set forth in United States v. Krueger, 809 F.3d 1109 (10th Cir.2015), suppression of evidence is required when a Rule 41 violation has taken place:

[O]ur review is guided by the analytical framework this Court adopted in United States v. Pennington, 635 F.2d 1387 (10th Cir.1980) [_] Under this framework, we begin by considering whether Rule 41 was in fact violated. [... ] If we determine that the Rule 41 violation is not of constitutional import, we then consider whether the defendant can establish that, as a result of the Rule violation, “(1) there was ‘prejudice’ in the sense that the search might not have occurred or would not have been so abrasive if the Rule had been followed, or (2) there is evidence of intentional and deliberate disregard of a provision in the Rule.” Pennington, 635 F.2d at 1390. Unless the defendant can establish prejudice or intentional disregard of the Rule, a non-constitutional violation of Rule 41 will not, by itself, justify suppression.

Motion to Reconsider at 4-5 (quoting United States v. Krueger, 809 F.3d at 1113-14 (emphasis in United States v. Krueger), Loera insists that the Court need not look at whether suppression should occur based on prejudice, or intentional or deliberate disregard for the rule, because the clear constitutional violation of rule 41 requires suppression of all evidence obtained. See Motion to Reconsider at 5. Further, Loera maintains that, as the Tenth Circuit has noted, “Rule 41 is not coextensive with the Fourth Amendment because Rule 41 incorporates standards that are in some respects ‘more specific and more stringent.’” Motion to Reconsider at 5 (quoting United States v. Krueger, 809 F.3d at 1114).

Loera quotes United States v. Vasser, 648 F.2d 507 (9th Cir.1980), for the proposition that:

Suppression.is not required in all cases where the issuance of a search warrant fails to conform to the dictates of Rule 41. Only a “fundamental” violation of Rule 41 requires automatic suppression, and a violation is “fundamental” where it, in effect, renders the search unconstitutional under .traditional Fourth Amendment standards'

Motion to Reconsider at 5,(quoting United States v. Vasser, 648 F.2d at 510). Loera contends that Cravens’ search was a “fundamental” violation of rule 41(e)(2)(B) and all four contraband CDs along with any other evidence obtained should be suppressed. Motion to Reconsider at 5. Lo-era further'asserts that the Court should suppress the Dell laptop computer and hard drive, because the probable cause that was developed through Cravens’ unconstitutional search extended to the laptop. See Motion to Reconsider at 5. According to Loera, Cravens committed an impermissible error in his search of the CDs to obtain the warrant = for ■ the ■ two computers. See Motion to Reconsider at 5. Loera therefore contends that the computers and all other electronic media are the warrantless search’s fruits and instru-mentalities and the Court should therefore suppress them. See Motion to Reconsider at 5-6.' " Although Loera maintains that there was a “fundamental” violation of rule 41, requiring automatic suppression, he argues that the evidence demonstrates that: (i) there was prejudice in that the search might not have occurred or would not have been so abrasive if the agents had followed the rule; and (ii) there is evidence of intentional and deliberate disregard of the rule’s provision. Motion to Reconsider at 6. Loera explains:

The Government Agents’ testimony and records demonstrate evidence of intentional and deliberate disregard of Rule 41 by their actions for the November 27 search. Since the majority of the evidence for the 2nd search warrant affidavit was from the November 27 unconstitutional search, all fruits and in-strumentalities of the second search warrant must be suppressed. There can be a strong showing of prejudice as the search would not have occurred if the rule had been followed. If the rule had been followed, the search on November 27 would never have occurred, and no descriptions for the warrant would have been made available for a warrant seeking additional authority to search the media seized at Defendant’s home for evidence of CP.

Motion to Reconsider at 6.

Finally, on this point, Loera maintains that, “because the warrant did not authorize a further search of the media past what Agent Cravens and Agent Nishida initially found, the Agents acted contrary to the Supreme Court instructions in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984).” Motion to Reconsider at 6. Loera argues that the agents had authorization pursuant to Rule 41 from the warrant to seize or image copy all remaining CDs if they concluded that it would not be practicable to review the media on site and to return to them once a second warrant was issued. See Motion to Reconsider at 7. Instead, according to Loera, the agents did not stop their search. See Motion to Reconsider at 7. Loera asserts that the agents continued to search, and to open text files and images on CDs that the agents knew contained child pornography. See Motion to Reconsider at 7.

Loera next argues that the Court committed clear error in invoking the Supreme Court’s decision in Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990). See Motion to Reconsider at 8. Loera contends that, in the Court’s Motion to Suppress MOO, the Court concluded that the agents performed an unlawful search on November 20, 2012—after finding alleged evidence of child pornography—but that it found that the agents acted in good faith when they continued to search Loera’s CDs for email offenses. See Motion to Reconsider at 8. According to Loera, the Court concluded that the agents could have reasonably relied on Horton v. California—binding Supreme Court precedent—in continuing to search for email hacking offenses after finding the first child pornography image. See Motion to Reconsider at 8. Loera contends that an unlawful search under United States v. Carey, 172 F.3d 1268 (10th Cir.1999), occurred when the agents continued to look for email hacking material after allegedly finding evidence of a crime on the first CD. See Motion to Reconsider at 9. Lo-era argues that, because the search was unconstitutional under United States v. Carey, “the essential predicate for a war-rantless seizure of incriminating evidence, (no Fourth Amendment violations) denies the Agents the lawful right of access to the contraband on the CDs through Horton, thus, negating the Good Faith exception on this point.” Motion' to Reconsider at 9.

Loera asserts that, because the agents executed an unlawful search under United States v. Carey and had no lawful right of access to continue searching the CDs under the first search warrant, the Court may not invoke Horton v. California in support of the United States’ ability to seize any of the contraband CDs on November 20, 2012. See Motion to Reconsider at 9. Loera contends that law enforcement officers must have probable cause to seize contraband under the plain-view exception and argues:

Due to the fact that the Agents had to take out the CDs from the FBI’s evidence control locker on November 27 and execute an unconstitutional search of the CDs to provide a description for a second search warrant, that activity shows that the Agents did not have probable cause when they left the Defendants residence oh November 20.

Motion to Reconsider at 9. Loera rejects the Court’s .conclusion that the agents acted in good faith or pursuant to the plain-view doctrine when they continued to search the CDs after encountering child pornography. See Motion to Reconsider at 10. Loera maintains that the agents knew that they were outside of the scope of the first search warrant when they continued to search for evidence of email hacking' after finding child pornography. See Motion to Reconsider at 10. According to Loera, by continuing to search, the agents violated the terms of the first search warrant, rule "41(e)(2)(B), and Supreme Court case law that “any reasonably trained officer executing federal level search and seizure warrants are required to know,” Motion to Reconsider at 10-11. Loera reiterates that the warrant did not authorize a further search of the media beyond what the agents initially found, and that the agents acted contrary to the Supreme Court’s instructions in United States v. Leon and rule 41. See Motion to Reconsider at 11.

Loera argues that the agents knew, understood, or should have known that they needed a warrant to continue searching. See Motion to Reconsider at 12. According to Loera, the agents, once they discovered child pornography, did not seek any additional guidance to continue their search. See Motion to Reconsider at 12. Loera asserts that Nishida knew from his reading of the first search warrant affidavit and attachments that it did not authorize a search for child pornography. See Motion to Reconsider at 12. Loera further explains:

Defendant asserts that all the Agents knew they needed a warrant to continue their searches once the Agents became aware of evidence of another crime, and did not rely on any binding appellate precedent from the 10th Circuit or Supreme Court to continue their improperly obtained. Nor did the Agents rely on the terms and conditions of the search warrant they had in hand when they arrived at Mr. Loera’s house to search the residence where Defendant resided.

Had Agent Cravens stopped his search, noted the attributes of the image he allegedly saw, and then sought a 2nd search warrant for evidence of CP, then the Fourth Amendment and Rule 41(e)(2)(B) may have been satisfied and the search perhaps could have continued under the 10th circuit framework of United States v. Walser, 275 F.3d 981 (10th Cir.2001) and United States v. Burgess, 576 F.3d 1078 (10th Cir.2009).

Defendant contends that the Agents executing the 1st search warrant willfully ignored all the safeguards in place that protect the public’s Fourth Amendment rights. As noted, Rule 41(e)(2)(B) expressly states the warrant only authorizes searches and seizures of items consistent with the warrant.

Motion to Reconsider at 12-13. Loera asserts that the agents should have stopped, and made some modicum of effort to ask an FBI legal advisor or counsel in the United States Attorney’s Office whether to continue their search for hacking and email offenses. See Motion to Reconsider at 13. According to Loera, a week later, the agents again without a warrant or exception to the warrant requirement searched CDs to secure an image to place in a second warrant affidavit to search for child pornography. See Motion to Reconsider at 13-14. Loera “strongly urges the Court to not view, the Agents’ actions as ‘isolated negligence or ignorance of the subtleties of 10th circuit law.’ ” Motion to Reconsider at 14. In conclusion on this point, Loera maintains that the deterrence value is high in excluding the child pornography evidence, and that the agents knew or should have known that their actions were unconstitutional, such that they cannot rely on the good-faith exception. See Motion to Reconsider at 14.

Loera next takes issue with the Courts’ conclusion that the agénts had probable cause for the issuance of the second search warrant despite the illegal search. See Motion to Reconsider at 15. Loera argues that, if the agents believed they had probable cause to support the issuance of the second search warrant, they would have not needed to knowingly perform an unconstitutional search to obtain the descriptions for the second search warrant. See Motion to Reconsider at 15. According to Loera, “[t]his action was taken because they lacked the ‘strength of the showing of probable cause,’ thus precipitating the Agents ‘jumping the gun’ in their search on November 27.” Motion to Reconsider at 15 (quoting United States v. Souza, 223 F.3d 1197, 1204 (10th Cir.2000)). Loera reiterates his argument from his Motion to Suppress, contending that, in this ease, there was no independent and substantial basis that the four CDs contained child pornography. See Motion to Reconsider at 15-16. Loera maintains that the agents did not have notes which described what they saw during the search on November 20, 2012, and that the warrant application was not developed based on their recollection, but rather, based on the fruits of the illegal search conducted on November 27, 2012. See Motion to Reconsider at 15-16. In sum, Loera contends:

Here the government: (1) fails to establish probable cause because it relies on unsubstantiated evidence from the Agents’ unconstitutional Nov. 20th 2012 search. As noted above, if the government had sufficient probable cause after the initial search on the Nov. 20th, therefore, why perform another unconstitutional search on • Nov. 27th 2012. And (2) the government fails to provide a nexus between the CD’s and the other electronic media which they sought to search. (i.e. computers and associated hard drives.) The government failed to show in the warrant even the most rudimentary connection between the CD’s and the Dell laptop computer.

Motion to Reconsider at 16.

Loera’s next argument is that the Court cannot apply the good-faith exception here to prevent exclusion of the child pornography evidence. See Motion to Reconsider at 17. Loera asserts that the Tenth Circuit has held that the good-faith doctrine cannot be applied.if the officer relying on the warrant’s good faith knows that it is invalid. See Motion to. Reconsider at 17 (citing United States v. Gonzales, 399 F.3d 1225 (10th Cir.2005)). Loera contends that the same reasoning should apply to information illegally obtained. See Motion to Reconsider at 17. According to Loera, the Court stated in United States v. Martinez, 696 F.Supp.2d 1216, 1262 (D.N.M.2010)(Browning, J.), aff'd, 643 F.3d 1292 (10th Cir.2014): “The Court concludes that the good-faith exception to the exclusionary rule should not be applied in a case, such as this one, where officers learn information during an unconstitutional search and give that information to another officer for incorporation into the warrant affidavit.” Motion to Reconsider at 17 (quoting United States v. Martinez, 696 F.Supp.2d at 1262). Loera maintains that information in the affidavit that was illegally obtained misled the Honorable W. Daniel Schneider, United States Magistrate Judge, who issued the second search warrant, and that, without this information, the warrant lacked probable cause. See Motion to Reconsider at 18. Loera further asserts that Nishida knew the warrant could not be valid because of the illegally obtained material. See Motion to Reconsider at 18.

According to Loera, in obtaining and executing the second search warrant for child pornography, the agents attempted a “good faith handoff.” Motion to Reconsider, at 18. Loera insists that at least three factors that United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), sets forth support excluding the illegally obtained evidence that is the subject of the Motion to Reconsider. See Motion to Reconsider at 18. First, Loera asserts that information in an affidavit which the affiant knew was false or would have known was false except for his reckless disregard for the truth misled Judge Schneider. See Motion to Reconsider at 18-19. Second, Loera contends that the affidavit in support of the second warrant was so lacking in probable cause as to render official belief in its existence entirely unreasonable. See Motion to Reconsider at 19. Third, Loera asserts that the second warrant was so facially deficient that the executing agents could not reasonably presume it to be valid. See Motion to Reconsider at 19-20.

Loera asserts that the agents in this case,relied.on the “good faith, handoff’ to undercut the exclusionary rule’s deterrent function. See Motion to Reconsider at 20 (citing United States v. Martinez, 696 F.Supp.2d 1216 (D.N.M.2010)). According to Loera, the Court in United States v. Martinez was not willing to recognize good faith for the officers, because they all knew or should have known their actions were unconstitutional. See Motion to Reconsider at 20. Loera asserts that the agents disregarded the first search warrant and rule 41’s terms to pass off the fruits of that illegal search to Nishida, who then executed the second search warrant. See Motion to Reconsider at 20. Loera maintains that Cravens and Boady possessed knowledge of rule 41 and its provisions. See Motion to Reconsider at 21. Loera asserts that, given Cravens and Boady’s familiarity with the first search warrant and rule 41, they could not have been acting in good faith when they conducted an unconstitutional search on November 27, 2012, to provide descriptions for the application for the second search warrant. See Motion to Reconsider at 21. Loera accordingly asks the Court to suppress all evidence obtained as a result of the second search warrant. See Motion to Reconsider at 21. Loera further asserts that Nishida knew the first search warrant’s breadth and scope, and “[a]fter reading the 2nd warrant ... would have known that Agent Cravens’ actions on November 27 violated Rule 41(e)(2)(B) and the provisions of the 1st warrant and could not have been acting in good faith in executing the second warrant.” Motion to Reconsider at 22. . According to Loera, Nishida knew or should have known that the only way Cravens could have obtained the descriptions of the materials used in the affidavit for the second warrant was through an unconstitutional search of the CDs outside the scope of the first search warrant. See Motion to Reconsider at 22. In sum, on this issue, Loera maintains that all three agents disregarded rule 41(e)(2)(B) and the search warrant’s terms. See Motion to Reconsider at 22-23.

Loera’s last argument is that application of the inevitable discovery doctrine is not appropriate in this case. See Motion to Reconsider at 23-27. Loera contends that the Court “must determine ‘how likely it is that a warrant would have been issued and that the evidence would have been found pursuant to the warrant.’ [United States u] Souza, 223 F.3d at [1204] 541.” Motion to Reconsider at 23 (quoting United States v. Christy, 739 F.3d 534, 541 (10th Cir. 2014)). Loera maintains that the United States cannot prove by a preponderance of the evidence that they would have inevitably discovered images of child pornography on the Dell laptop computer. See Motion to Reconsider at 24-25. Moreover, Loera contends that the United States v. Souza factors indicate that inevitable discovery is not appropriate here. See Motion to Reconsider at 25. First, Loera argues that, regarding the extent to which the warrant process has been completed at the time those seeking the warrant learn of the search, the Court agreed with him that the United States was not in the process of seeking a search warrant for child pornography before the search on November 27, 2012, nullifying inevitable discovery on this factor. See Motion to Reconsider at 25. Second, Loera contends that the strength of the showing of probable cause for the second warrant is weak given that Cravens could not remember the exact image, did not write down the name of the file or the image he saw, and relied entirely on his memory. See Motion to Reconsider at 25-26.

Third, Loera contends that the third United States v. Souza factor—whether a warrant was obtained, albeit after the illegal entry—weighs in his favor. See Motion to Reconsider at 26. Loera asserts that, in the Court’s Motion to Suppress MOO, the Court noted that Cravens used information from his unconstitutional search on November 27, 2012, to seek and obtain a second search warrant for evidence of child pornography. See Motion to Reconsider at 26. According to Loera, with the Court correctly excising the fruits of the unconstitutional November 27, 2012, search, probable cause hinges on Cravens’ recollection of. what he saw during the November 20, 2012, search. See Motion to Reconsider at 26. Loera asserts that Cravens could not draw on any facts from that search to describe with particularly the images he saw. See Motion to Reconsider at 26. Loera maintains: “Facts from the November 20 search do not support that the Agents would be able to receive an untainted search warrant, other than the one which was ultimately obtained. In other words, the warrant the government ultimately received was an unconstitutional one.” Motion to Reconsider at 26.

Finally, Loera addresses the evidence that law enforcement ‘“jumped the gun’ because they lacked confidence in their showing of probable cause and wanted to force the issue by creating a fait accompli.” Motion to Reconsider at 26-27. Loera explains:

As noted, Agent Cravens knew on November 20 that he needed a search warrant to view the contents of Defendant’s electronic media for evidence of CP. When Case Agent Boady took out the CD’s on Nov. 27th and gave then! to Cravens, Agent Boady was aware that under Rule 41 for which the 1st search warrant was issued, any electronic media seized at Defendant’s residence could only be reviewed for evidence consistent with that warrant.

As previously shown in the 2nd Souza factor, because of the lack of Agent Cravens confidence in describing with sufficient particularity the images he saw on November 20, Agent Boady tasked Agent Cravens with an unconstitutional search for probable cause to find the images for a 2nd search warrant for evidence of CP.

The government cannot show through a preponderance of the evidence that the evidence at issue would have been discovered without the Fourth Amendment violations.

Motion to Reconsider at 26-27. In sum, Loera contends that all the fruits and in-strumentalities of the November 27, 2012, search, CDs, and all subsequent searches on the Dell laptop containing alleged child pornography were fruits of the poisonous tree, and that the Court must suppress that evidence based on rule 41 and Fourth Amendment violations. See Motion to Reconsider at 27.

2. The United States’Response.

The United States responded on March 22, 2016. See United States’ Response to Motion to Reconsider (Doc. 109), filed March 22, 2016 (Doc. 119)(“Response”). The United States asks the Court to deny the Motion to Reconsider. Response at 1. The United States contends that motions to reconsider are generally disfavored, but that courts have discretion whether to entertain such motions. See Response at 2. According to the United States, motions to reconsider are proper only when: (i) there has been an intervening change in the controlling law; (ii) there is newly discovered evidence which was previously unavailable; or (iii) it is necessary to correct clear error or prevent manifest injustice. See Response at 2 (quoting United States v. Harmon, 871 F.Supp.2d 1125, 1144 (D.N.M.2012)(Browning, J.)). The United States stresses that “[a] motion to reconsider is not an opportunity to rehash arguments previously addressed or to advance new arguments that could have been raised in prior briefing.” Response at-2. The United States urges the Court to exercise its discretion and decline to entertain the Motion to Reconsider, because it was not timely filed and because it has not met the legal standard for reconsideration. See Response at 2. The United States maintains that the Court thoroughly discharged its duty in denying Loera’s Motion to Suppress. See Response at 2-3. The United States contends that the suppression issue has been .extensively litigated and that Loera should not now receive “a second bite at the suppression apple.” Response at 3.

The United States asserts that Loera does not and cannot suggest that the law has changed since the Court denied his Motion to Suppress, and that he does not argue that there is newly discovered evidence that was not available to him previously. See Response at 3. Rather, according to the United States, Loera’s arguments are ones that he made previously or that he could have made previously. See Response at 3. The United States specifically takes issue with Lo-era’s repeated references to rule 41(e)(2)(B). See Response at 3 n.2. The United States argues that, not only is his argument unsound, but rule 41(e)(2)(B) has been in effect throughout this case’s pendency and Loera could have raised this argument at any time. See Response at 3 n.2. The United States also notes that, in United States v. Krueger, 809 F.3d 1109 (10th Cir.2015), the Tenth Circuit explained that, other than rule 41(b)(1), “which is unique from other provisions of Rule 41 because it implicates substantive judicial authority,” the Tenth Circuit has “never concluded] that the alleged Rule 41 violation(s) at issue justified suppression.” Response at 3 n.2 (quoting United States v. Krueger, 809 F.3d 1115-16 n. 7). Moreover, the United States asserts that, because Loera is simply making arguments that he previously made or that he could have made previously, “the United States need not waste the Court’s time here by addressing the rehashed arguments Defendant Loera makes in his motion to reconsider.” Response at 3-4.

The United States argues that “Loera’s stated basis for his motion is insufficient on its face, namely that ‘the Court should reconsider its decision and determine that the Agents did not follow the proper procedures during their investigation.’ ” Response at 4 (quoting Motion to Reconsider at 2). The United States contends that Loera’s complaint about the procedures that the agents followed formed the basis of his Motion to Suppress and that there is no point in rehashing that extensive litigation. See Response at 4. The United States concludes by observing.

It is interesting to note that Defendant Loera embraces as sound the Court’s reluctant rejection of the United States’ position concerning the agents’ ability to continue their warrant-authorized search after coming across Defendant Loera’s child, pornography. He embraces the Court’s decision that the second warrant’s affiant was not permitted to open files on CDs he knew contained child pornography for the limited purpose of including in his affidavit a description of four images. Yet he rejects as clearly erroneous or manifestly unjust the conclusions reached by the. Court that did not go his way. The record concerning the motion to suppress demonstrates that Defendant Loera’s position is impossible to maintain, that reconsideration is not available to him, and that his motion should be denied.

Response at 4-5. The United States accordingly asks the Court to deny the Motion to Reconsider. See Response at 5.

3. Loera’s Reply.

Loera replied on April 6, 2016. See Reply in Support of Defendants Motion to Reconsider Court’s Memorandum Opinion and Order [Doc. 62] on Defendant’s Motion to Suppress Evidence [Doc. 35], filed April 6, 2016 (Doc. 123)(“Reply”). Loera contends that

[t]his reconsideration argument is advanced to show the Court that there is a subtle, but important difference in the recent case law between a clear constitutional violation of a search conducted pursuant [to] Fed. R. Crim. P. 41(e)(2)(B) and an illegal search that does not rise to the level of a constitutional violation of the rule pursuant to the recently decided case of United States v. Krueger, 809 F.3d 1109 (10th Cir.2015).

Reply at 1-2. Loera explains that the Tenth Circuit decided United States v. Krueger in November, 2015, after the Court issued its Motion to Suppress MOO denying his Motion to Suppress. See Reply at 2. Loera next attacks the United States’ argument that the Court dismiss the Motion to Reconsider on the basis that the motion is untimely. See Reply at 2. Loera contends that the United States does not point to any time restrictions which the rule or case law have established and maintains that the Court’s ability to hear the Motion to Reconsider is at the Court’s discretion. See Reply at 2 (citing United States v. Christy, 739 F.3d 534 (10th Cir.2014)). Loera stresses that the Court appointed his current counsel on December 1, 2015, and maintains that the Motion to Reconsider is timely and proper under the circumstances to correct clear error or to prevent manifest injustice. See Reply at 2-3.

Loera next addresses the circumstances under which it is appropriate for a Court to consider a motion to reconsider. See Reply at 3. Loera agrees that he is not asserting that there is newly discovered evidence and that a party should not use a motion to reconsider to rehash arguments that it made or could have made. See Reply at 3. Loera maintains that a motion to reconsider is a tool to “correct clear error or prevent manifest injustice.” Reply at 3 (quoting United States v. Christy, 739 F.3d at 539). Loera contends, however, that the United States is incorrect that his Motion to Reconsider is a mere rehashing of arguments previously presented. See Reply at 3. Loera explains:

[T]he motion requests the Court consider further and clarifying argument that was not available earlier and to correct clear error based on the developing case law. The reconsideration argument is advanced to show the Court that there is a subtle, but important difference in the recent case law between a clear constitutional violation of a search conducted pursuant Fed. R. Crim. P. 41(e)(2)(B) and an illegal search that does not rise to the level of a constitutional violation of the rule as decided in United States v. Krueger, 809 F.3d 1109 (10th Cir.2015). Kmeger was decided in November, 2015, after the argument and Court’s Order denying the Defendant’s Motion to Suppress. The Court has already determined that the search conducted on November 20, 2012, was illegal, [Doc. 62 at pg 91] and the search conducted on November 27, 2012 was unconstitutional, [Doc. 62 at 144]. Krueger implies, if not specifically holds, that if there is a non-constitutional violation of Fed. R. Crim. P. 41(e)(2)(B) then “[u]nless the defendant can establish prejudice or intentional disregard of the Rule, a non-constitutional violation of Rule 41 will not, by itself, justify suppression.” Krueger, at 1114 (10th Cir.2015).

Reply at 3-4.

According to Loera, in United States v. Krueger, the Tenth Circuit determined that suppression of evidence for rule 41 violations furthers the exclusionary rule’s purpose. See Reply at 4. Loera asserts that United States v. Krueger represents a change in the law that permits defendants to challenge government searches which violate rule 41, See Reply at 4. Loera asks the Court to consider whether the rule violation was: (i) of a constitutional import; or (ii) whether the search that the agents conducted led to prejudice or deliberate disregard for the rule. See Reply at 4. Loera maintains that, in the Court’s Motion to Suppress MOO, the Court already concluded that the November 27, 2012, search was unconstitutional and that it 'should consider whether -rule 41 violations of a constitutional magnitude require suppression. See Reply at 4-5. Loera asserts that, “[w]ith the four CD’s suppressed, the remaining electronic media are fruits of the poisonous tree and suppressible;” Reply at 5. Loera further argues that, because the rule violation in this case .was of a constitutional magnitude, “the suppression of the CD’s makes any Probable Case, Good Faith or Inevitable Discovery Arguments by the government moot.” Reply at 5. Loera concludes that, because the November 27, 2012, searches of Loera’s CDs was an unconstitutional violation of. rule 41(e)(2)(B), “all evidence obtained should be suppressed and not just excised from the second search warrant affidavit.” Reply at 5. Loera insists that “the Court misapplied the law when it only excised the evidence obtained by the illegal search and did not fully suppress all of the information obtained through the illegal and unconstitutional search.” Reply at 5.

Last, Loera addresses the application of the plain-view exception to this case. See Reply at 5-6. Loera contends that the Court permitted the seizure of the four CDs and their removal from his dwelling even though the evidence found on them was outside the first search warrant’s scope. See Reply at 5-6. He argues that there was no probable cause allowing the seizure of the four CDs pursuant to the plain-view doctrine that Arizona v. Hicks, 480 U.S. 321, 107 S.Ct. 1149, 94 L.Ed.2d 347, and Horton v. California, 496 U.S. 128, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990), set forth. See Reply at 6. Loera maintains that, if the Court considers the Supreme Court’s conception of the plain-view doctrine with the Tenth Circuit’s decision in United States v. Carey, 172 F.3d at 1268, it would conclude that “the invocation of the plain view doctrine is prohibited in cases where computer files are searched.” Reply at 6. Loera takes issue with the Court’s conclusion that United States v. Carey can be distinguished in that the agents could have reasonably relied on Horton v. California to continue searching the CDs once the agents discovered the child pornography. See Reply at 7. According to Loera, “the Tenth Circuit in Carey refused to accept the plain view argument because ‘the items seized were not authorized by the warrant. Further they were in closed files and not in plain view.” Reply at 7. Loera also argues that the November 27, 2012 search was essentially a continuation of the November 20, 2012 search. See Reply at 7-8. According to Loera, on both dates, the officers did not have a valid warrant or exception to the warrant requirement that allowed the agents to search for evidence of child pornography. See Reply at 8. Loera further explains;

The Defendant notes that because the agents have yet to identify to the Court what CD was discovered first by Agent Cravens on November 20, 2012, the court should conclude that all four CDs should be suppressed. If the court determines that the four alleged CDs are suppressed, all the fruits and instrumen-talities (computers) seized as a result of the November 20, 2012 search should also be suppressed. No probable cause, good faith or inevitable discovery arguments by the government would cure the unlawful searches and seizures.

Reply at 8. In conclusion, Loera maintains that the entire investigation that the agents conducted was a result of continuous unconstitutional actions that violated the Fourth Amendment and rule 41(e)(2)(B). See Reply at 8.

4. The Hearing on the Motion to Reconsider.

The Court held a hearing on the Motion to Reconsider on April 8, 2016. Loera first took up argument on in his Motion to Reconsider. See Tr. at 3:1-4 (Court, Walz). Loera began by stressing that he did not intend to rehash all of the arguments that the Court addressed in its Motion to Suppress MOO, but rather to focus on two points: (i) that he believes the Court committed clear error in some of its determinations; and (ii) that a recent Tenth Circuit case—United States v. Krueger—establishes that there can be suppression based specifically on rule 41. See Tr. at 3:9-21 (Walz). Loera maintained that he could not have presented the rule 41 issue to the Court because the Tenth Circuit did not decide United States v. Krueger until November 10, 2015, after the Court issued its Motion to Suppress MOO. See Tr. at 3:21-4:2 (Walz). According to Loera, before the Tenth Circuit’s decision in United States v. Krueger, there had never been a suppression in the Tenth Circuit based on rule 41. See Tr. at 4:3-5 (Walz). Loera then argued that, as United States v. Krueger explains, rule 41 is not necessarily coextensive with the Fourth Amendment, because “Rule 41 incorporates standards that are in some respects more specific and more stringent than traditional Fourth Amendment analysis....” Tr. at 4:6-17 (Walz).

Loera then argued that he has several strong arguments, based on the case history, that the Court should suppress all the evidence. See Tr. 5:22-25 (Walz). Loera maintained that the Court need not even get into the good-faith exception, handoff, or inevitable discovery “because of the clear violation of Rule 41 and in particular 41(e)(2)(B).” Tr. at 5:22-6:3 (Walz). Lo-era explained that the analysis should focus on Rule 41(e)(2)(B), which “deals with a warrant seeking electronically stored information.” Tr. at 6:11-13 (Walz). After discussing what he views as rule 41’s general contours, Loera contended that the Court erred in its determination that the child pornography pictures were in plain view. See Tr. at 6:14-8:9 (Walz). The Court then asked Loera to read the language in rule 41(e)(2) that he alleges the United States violated. See Tr. at 8:10-14 (Court). The Court further explained that the language in Rule 41(e)(2) goes to what the warrant’s contents should include and asked Loera whether he was arguing that the first search warrant was itself deficient. See Tr. at 8:16-21 (Court). Loera responded “no,” and the Court then asked Loera how the United States could have violated rule 41(e)(2) in any way if he.is not challenging the first search warrant’s contents. Tr. at 8:22-25 (Court, Walz). Loera responded that he thinks “we’re on some cutting edge legal argument here,” and explained that rule 41(e)(2)(B) sets forth the confines of the warrant itself and describes what can be seized. Tr. at 9:1-7 (Walz). The Court and Loera then engaged in the following exchange:

THE COURT: It really doesn’t, does it. What 41, my reading of 41E2 B is that it simply is saying that a warrant may authorize the seizure of electronic storage media. I don’t think that’s a big deal. But I think what the second sentence is probably the bigger deal. Unless otherwise specified the warrantf] authorized a later review of the media. So it allows an FBI agent to seize the ESI, and then later with the same warrant without getting a new warrant review that material probably in its offices with software or something like that. Isn’t that all that really 41 E 2 B does[?] MR. WALZ: I think that’s correct as far as what the Court states. What it does not authorize is the facts and that’s why we have to look at the facts of this case, is that agents Nashida and Cravens, pursuant to this warrant that’s facially valid, the. first warrant, they come across child pornography in looking at discs. There were four of them from what the Court described in the memorandum opinion order that was set aside. At that point they could no longer, pursuant to the'seizure aspect continue a search for child pornography. So they are violating the confines. Now, facially the warrant is okay, but they’re violating the description of what is allowed to be seized.

THE COURT: But using the language of 41E2B, tell me how they violated] 41E2B.

MR. WALZ: Well Your Honor sure as the Court correctly zeroed in on it the warrant authorizes a later review of the media or information consistent with the warrant. So by the very terms of the language itself, in 41E2 B, the actions must be consistent with the warrant, the actions of the agents were not consistent with the warrant. That constituted the violation, ■

THE COURT: Well, it would seem to me, you know, it’s your argument, but it seems to me your argument is not that they violated 41 E 2 B but again just what we dealt with at the-first hearing, which was the issue of whether they violated the Fourth Amendment as construed by the Tenth Circuit.

MR. WALZ: Right.

Tr. at 9:8-10:26 (Court, Walz).

The Court then explained that it did not understand what the rule 41 issue adds. See Tr. at 11:1-3 (Court). Loera conceded that the recent Tenth Circuit decision in United States v. Krueger was not interpreting this provision and agreed that case dealt with an invalid warrant under rule 41 issued in one jurisdiction being executed in another jurisdiction. See Tr. at 11:712:5 (Court, Walz). Loera maintained that United States v. Krueger made clear that a defendant could advance a separate suppression argument based on a rule 41 violation. See Tr. at 11:16-22 (Walz). The Court noted that the United States v. Krueger situation—where the officers arguably did not have a warrant—was an extreme situation in comparison to the case at hand. See Tr. at 12:11-16 (Court). The Court observed that it does not appear that rule 41 “add[sj anything to the constitutional analysis, either I got it right or I got it wrong, but the Rule 41 analysis doesn’t seem to me to get us anywhere.” Tr. at 12:13-16 (Court). Loera countered that he wanted to preserve the record and observed that the Tenth Circuit talks about how rule 41 is not coextensive with the Fourth Amendment, suggesting that it could not have just been talking about the warrant’s facial validity. See Tr. at 12:17-13:2 (Walz). The Court then noted that the United States v. Krueger case is an example of where the Fourth Amendment is not coextensive with rule 41, because the Fourth Amendment does not itself indicate who issues the warrant and where it can be executed. See Tr. at 13:3-7 (Court). The Court further explained that one could read the Fourth Amendment as permitting a federal judge in New Mexico to issue a warrant that agents execute in New York. See Tr. at 13:9-18 (Court, Walz). Loera maintained, however, that rule 41 might provide a separate suppression remedy for the seizure of items outside the warrant’s scope. See Tr, at 14:2-17 (Walz).

Loera then argued that, in his briefing, he noted why he contends that the plain-view doctrine does not save the illegal searches in this case and why the good faith exception is inapplicable here. See Tr. at 16:2-6 (Walz). Loera asserted that, under United States v. Carey, the agents were required to get a second warrant, but instead continued the illegal search. See Tr. at 16:9-18 (Walz). Loera maintained that this conduct was on all fours with the United States v. Carey decision and that the Court’s conclusion was potential clear error. Loera further asserted that

Now, why there is no good faith is because Agent Nashida was there at the first search, he kn[e]w that is there was child pornography on the discs, he get the, later he gets to do the search pursuant to the warrant, sees the statements there in. He knows, he has to show that Agent Cravens did an unconstitutional search on the 27th and misled the United States magistrate by putting in information that they know that they cannot constitutionally support by case authority under the Fourth Amendment or Rule 41. They can’t have good faith, cannot have a good faith hand off under any circumstance.

Tr. at 17:5-17 (Walz). Loera also contended that that neither the plain view nor the inevitable discovery doctrine save the illegal searches. See Tr. at 17:17-23 (Walz). Loera maintained that here there was a continuing illegal search, and that, for the inevitable discovery doctrine, the officers must be in a position where they could have seen the material. See Tr. at 17:19-18:5 (Walz). Loera asserted, however, that the Court has already ruled that the searches' on November 20, 2012, and November 27, 2012, were illegal and suggested that the agents were therefore not legally present when they saw the material. See Tr. at 18:1-5 (Walz). Loera concluded his remarks by stating: •

Also, they had to open things. It wasn’t just like you’re scrolling down and pictures popping pup. They had to take specific steps unlike in Hicks, or like [Hicks] where the[y are] moving the stereo around to look at a serial number that wasn’t in plain view, they’re actively searching, actively searching for this material. Particularly on the November 27 search. So where does that get us, Your Honor, I mean [] from a clear error standpoint? If the Court conceptualizes even under Fourth Amendment forg[e]t 41 if you will even under Fourth Amendment analysis and controlling case authority, if indeed November 27 is a continuation of the November 240 search, which it had to be because there was no warrant issued intervening warrant issued, we have now continuous conduct that certainly appears to be intentional, and even pursuant to the case law, I would even state continuing and outrageous in nature in wanton violation of even traditional Fourth Amendment analysis, which should under all the balancing tests that are contained in the case law, the exclusionary rule should be upheld in this particular case.

Therefore, Your Honor, there was never good faith. There was never inevitable discovery. The second warrant was improper, and even excising—and I read the transcript about excising the material that may have been improper, does that somehow save the warrant? The answer to that is no. I don’t think you can get to that point based on the continuous and flagrant disregard for established case authority and continuous violations of the Fourth Amendment. And the parameters, Your Hon- or. ■ I’ll say the parameters of Rule 41, which are continuous in nature. Therefore, Your Honor, this case is very much like United States v. Carey. We think that’s applicable, we do not believe that the plain view is applicable based on our citation to ease authority in the brief. We don’t think good faith, inevitable discovery saves the day either for this unconstitutional search, which was continuous in nature. Your Honor those are my primary points. May I confer with co-counsel for just a second.

Tr. at 18:6-20:19 (Walz).

The Court then asked Loera a number of questions. See Tr. at 20:22-25 (Court, Walz). The Court first asked whether Lo-era would agree that the rule 41 argument is a new motion rather than a motion to reconsider anything in the Motion to Suppress MOO, and Loera “absolutely agree[d].” Tr. at 20:23-21:5 (Court, Walz). Loera agreed that the rule 41 argument is not-a, motion to reconsider, because the Court never considered it before this motion, but clarified that he “think[s] the Fourth ■ Amendment analysis that the Court does interacts with any rule 41 violations but specifically you were never presented an argument like this at the suppression hea[r]ing.” Tr. at 21:6-17 (Court, Walz). The Court then asked Loera whether in his motion to reconsider he has any disagreement with the facts and Loera indicated that he does not. See Tr. at 21:18-25 (Court, Walz). The Court then walked through the various issues that it addressed in its Motion to Suppress MOO and asked Walz whether he was contending that the Court erred. See Tr. at 22:1-25:14 (Court, Walz). First, Loera agreed with the Court that the first warrant satisfied the Fourth Amendment’s particularity requirement. See Tr. at 22:1-12 (Court, Walz). Second, he also did not have any problem with the Court’s ruling on standing. See Tr. at 22:13-17 (Court, Walz). Third, Loera agreed that the first warrant authorized the agents to open image and video files and that it authorized the agents to open files with last modified dates before July 19, 2011. See Tr. at 23:5-8 (Court, Walz); id. at 23:19-24:5 (Court, Walz). Fourth, Loera agreed that he was not disagreeing the Court’s conclusion beginning on page 109 that the agents should have stopped searching once they encountered child pornography. See Tr. at 24:6-12 (Court, Walz). Loera then confirmed that he is not asking the Court to reconsider anything up until page 124 of the Motion to Suppress MOO, when the Court begins to discuss the good faith doctrine. See Tr. at 24:13-23 (Court, Walz). The Court observed that it looks like Loera is asking the Court to reconsider the last forty pages of its Motion to Suppress MOO. See Tr. at 24:24-25:2 (Court).

The Court then explained that it was surprised that Loera had focused so much on the concept of “plain view” in his briefing given that the Court did not use that language in its opinion ■ other than in a layperson sort of way. Tr.