United States v. Cordero-Rosario (252 F. Supp. 3d 79, 2017)

OPINION AND ORDER

GUSTAVO A. GELPI, United States District Judge

I. Background

On February 1, 2013, defendant Hilton Cordero-Rosario (“defendant “or “Corde-ro-Rosario”) entered into a conditional agreement in which he pleaded guilty to count 21 of the superseding indictment charging him with possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B). (Docket No. 80.) Per the terms of said agreement, Cordero-Rosario reserved the right to challenge on appeal the Court's order denying his motion to suppress. Id. The Court sentenced Corde-ro to one hundred and twenty months imprisonment, the statutory maximum, followed by fifteen years of supervised release. (Docket No. 114.)

Cordero-Rosario subsequently appealed the Court’s denial of his motion to suppress in which he moved to exclude all evidence seized from the two, searches conducted by the Puerto Rico Police Department (“PRFD”), as well as the evidence that stemmed therefrom.- The First Circuit vacated the Court’s suppression ruling and remanded the case back to this Court. The appellate court found that the searches that took place on February 4 and February 26 were invalid because they lacked probable cause, thus violated Cordero-Rosario’s Fourth Amendment Rights. See United States v. Cordero-Rosario, 786 F.3d 64, 68-72 (1st Cir. 2015). The court, however, remanded the matter for a hearing and determination on whether evidence obtained pursuant to the consent of defendant’s former spouse was tainted by the prior unlawful searches. Cordero-Rosario, 786 F.3d at 77.

In light of the First Circuit’s ruling, the Court must determine which evidence, if any, is tainted by the prior unlawful-PRPD searches, pursuant to the “fruit of the poisonous tree” doctrine and the taint/attenuation test articulated in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975) and United States v. Finucan, 708 F.2d 838 (1st Cir. 1983). Cordero-Rosario, 786 F.3d at 77.

Following remand, the-Court ordered the government to inform if it had independent evidence .to present its case. (Docket No. 129.) The Government in turn, listed the following evidence: Á) images and other evidence found in the family desktop computer, to support Counts 1-20 of the Superseding Indictment (Production of Child Pornography), and Count 21 of the Superseding Indictment (Possession of Child Pornography); ' B) evidence obtained from the 320 GB Western Digital external hard drive, with serial number WMAM1543470 (hereinafter “320 GB External Hard Drive”), to support Count 22 of the Superseding Indictment (Possession of Child Pornography); and C) the live testimony of the then minor involved, referred throughout this Opinion as MMTH.

The undersigned referred the pending admissibility issues to Magistrate Judge Silvia Carreño-Coll for a hearing and Report and Recommendation. (Docket . No. 143.) A suppression hearing was held on April 13, 2016 before Judge Carreño-Coll. (Docket No. 161.) The Government presented the following witnesses: Agent Rebecca González Ramos,- Agent Lillian Agudelo, Deborah Martorell and Idalia Hornedo, MMTH’s mother.

Defendant Cordero-Rosario submitted to the Court his legal arguments after the hearing, in writing. (Docket'No. 164.) The Government responded. (Docket No. 165.) Judge Carreño-Coll issued her report and recommendation, which is discussed in full below. (Docket No. 191.) Defendant Corde-rb-Rosario objected. (Docket Nos, 192 & 208). The Government responded in opposition to Cordero-Rosario’s objections. (Docket No. 205.) Per leave of Court, Cordero-Rosario replied. (Docket No. 210.)

II. The Report and Recommendation

Judge Carreño-Coll recommends the suppression of the evidence obtained as a result of the computer search executed pursuant to the consent of defendant’s former spouse, Deborah Martorell, As to the remaining evidence — 320 GB External Hard Drive, the live testimony of MMTH and the Sony CyberShot Camera — she recommends admission. (Docket No. 191.)

The undersigned ACCEPTS and ADOPTS, Magistrate Judge Carreño-Coll’s factual findings and legal conclusions regarding the suppression of evidence obtained as a result of the computer search, pursuant to Martorell’s consent. (Docket No. 191 from 33 to 38.) Accordingly, the evidence found during the search of the family computer during the “federal investigation” — including the sexually explicit images of MMTH, and chat conversations between Cordero and' MMTH contained therein — are suppressed.

Due to the fact-intensive nature of the issue before the Court, Judge Carreño-Coll shrewdly pieced together, in chronological order, the events relevant to Corde-ro-Rosario’s ‘ Suppression. The undersigned ADOPTS the findings of fact in Judge Carreño-Coü’s Report and Recommendation. (See Docket Nos. 191 from 9 to 27.) The Court will not retell the story, only the facts relevant to the Court’s de novo review will be discussed,

Cordero-Rosario objects to the Report and Recommendation, arguing that the 320 GB External Hard Drive and MMTH’s live testimony are tainted and therefore must be suppressed. Specifically, Cordero-Ro-sario argues that the record does not support the conclusion that the circumstances that led up to the discovery of the 320 GB External Hard Drive present ample indicia of attenuation from the initial taint. (Docket No, 201 at 6.) He raises the same argument as to MMTH’s testimony. Id.

In response to Cordero-Rosario’s objection, the Government argues that Marto-rell’s testimony evinces the existence of intervening circumstances that... were strong- enough to break the chain and purge the taint of the initial illegality. (Docket No. 208.) The Government posits Martorell’s decision, to voluntarily surrender the 320 GB External Hard Drive can only be understood to be the product of her detached reflection and a desire to be cooperative with federal law enforcement authorities. Further, the Government notes that in her testimony, Martorell explained that her decision to turn over the hard drive “was driven by a sincere desire to see if there were any more victims of the defendant and to confirm the allegations that were raised by her daughter PCM prior to the PRPD searches.” (Docket Ño. 208 at 13.) Hence, “her primary concern was that her daughter not be labeled a liar for having had the courage to come forward with allegations of sexual misconduct by her father; an interest and motivation that predates, and is otherwise unrelated to, the tainted PRPD searches.” Id.

Upon Cordero-Rosario’s objections, the Court reviews de novo the Magistrate Judge’s factual findings and legal conclusions regarding the admissibility of the 320 GB External Hard Drive and the testimony of MMTH.

III. Standard of Review

The Court may refer motions to suppress to a ."United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B). See Fed. R. Crim. P. 59; see also L. Crim. R. 159; Mathews v. Weber, 423 U.S. 261, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). An adversely affected party may contest the report and recommendation by filing its objections. Fed. R. Crim. P. 59. Moreover, 28 U.S.C. § 636(b)(1), in pertinent part, reads as follows:

[A]ny party may serve and file written objections to such proposed findings and recommendations as provided by rules of court. A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.

“Absent objection, ... [a] district court ha[s] a right to assume that [the affected party] agree[s] to the magistrate’s recommendation.” Templeman v. Chris Craft Corp., 770 F.2d 245, 247 (1st Cir. 1985). Additionally, “faitee to raise objections to the Report and Recommendation waives that party’s right to review in the district court and those claims not preserved by such objections are precluded upon appeal.” Davet v. Maccarone, 973 F.2d 22, 30-31 (1st Cir. 1992); see Henley Drilling Co. v. McGee, 36 F.3d 143, 150-51 (1st Cir. 1994) (holding that objections are required when challenging findings actually set out in a magistrate’s recommendation, as well as the magistrate’s failure to make additional findings); see also Lewry v. Town of Standish, 984 F.2d 25, 27 (1st Cir. 1993) (stating that “[objection to a magistrate’s report preserves only those objections that are specified”); Borden v. Sec. of H.H.S., 836 F.2d 4, 6 (1st Cir. 1987) (holding that appellant was entitled to a de novo review, “however he was not entitled to a de novo review of an argument never raised”); see Fed. R. Crim. P. 59(d).

IV. Legal Analysis

The Court must determine which evidence, if any, is tainted by the unlawful PRPD searches. In doing so, the Court must define the outer limits of contamination following an illegal search.

Magistrate Judge Carreño-Coll ultimately concluded that the police obtained Martorell’s consent to search the family computer by exploitation of the illegality:

When she gave consent, Martorell had already seen some of the images that were in the unlawfully seized computer. What is more, she had seen those crude images scarcely a month before she signed the consent form. The close temporal proximity between viewing the pictures and granting consent leads this court to the conclusion that the impression of seeing those pictures was fresh in her mind.

Martorell’s emotional testimony confirms it. She described how, when she saw the pictures, she kept asking herself whether there could be pictures of her daughter or other victims in there. She also related how she went home after the meeting with the state prosecutors and began to go frantically through Cordero’s belongings.- It seems that whereas before, Martorell could have harbored doubts as to the extent of Cordero’s action-which might explain why she did not come forward previously-seeing those pictures provided confirmation.

(Docket No. 191 at 34-36.) The undersigned agrees with the Magistrate Judge’s finding that “Martorell’s mental state was deeply influenced by the images that she had seen, the images that had been illegally obtained by the PRPD.” (Docket No. 191 at 36.) Consequently, Judge Carreño-Coll concluded that “Martorell’s consent flowed directly from the original unlawful search that yielded the images and cannot be said to be the result of ‘detached reflection.’” Id. at 37 (quoting State of Iowa v. Lane, 726 N.W.2d 371, 386 (Iowa 2007)).

The Court adopts Magistrate Judge Carreño-Coll’s finding that Martorell’s consent was obtained in exploitation of the illegality, thus, the “federal investigation” stemmed from the investigation led by local authorities. Judge Carreño-Coll found that the Lane factors “inexorably lead[ ] to the conclusion that the taint was not attenuated.” (Docket No. 191 at 38). Consequently, she concluded that Martorell’s consent was tainted by the prior unlawful searches. Id. As .a result of this finding, “it follows that the evidence obtained as a result of the subsequent search of the computer conducted by the federal agents must be excluded.” Id.

A. .Applicable Law and. First . Circuit’s Mandate

The First Circuit’s pellucid mandate traces the path for the Court on remand. “[I]f the District Court should find that the Puerto Rico police’s unlawful searches did not taint the federal authorities’ consent-based search, then the District Court must decide which,, if any, of. the government’s evidence stemmed solely from the Puerto Rico police’s searches.” Cordero-Rosario, 786 F.3d at 78. On the other hand, if the Court rules that unlawful searches tainted the federal investigation, “then the District Court must decide which, if any, evidence the government seeks to introduce must be suppressed in consequence of that tainted relationship.” Id.

The question whether evidence obtained after an illegal search should be suppressed as the fruit of the poisonous tree depends upon “whether, granting establishment of the primary illegality, the evidence .,. has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.” Finucan, 708 F.2d at 843 (quoting Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963) (internal quotation marks omitted) (emphasis added). “Such án analysis depends primarily upon weighing the facts in the particular case, and is thus a matter especially suitable for resolution by the district court.” Id. “The notion of the ‘dissipation of the taint’ attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost.” Cordero-Rosario, 786 F.3d at 75-76 (quoting Brown, 422 U.S. at 609, 95 S.Ct. 2254 (Powell, J. concurring)).

The Supreme Court in Brown spelled the following factors relevant to the taint/attenuation analysis: (1) the time that elapsed between the underlying illegality and the later acquisition of the evidence at issue; (2) the presence or absence of intervening circumstances between those points in time; and (3) the purpose and flagrancy of the official misconduct in question. Brown, 422 U.S. at 603-04, 95 S.Ct. 2254.

“[T]he indirect fruits of an illegal search or arrest should be suppressed when they bear a sufficiently close relationship to the underlying illegality.” United States v. Camacho, 661 F.3d 718, 728-29 (1st Cir. 2011) (quoting New York v. Harris, 495 U.S. 14, 19, 110 S.Ct. 1640, 109 L.Ed.2d 13 (1990)). Moreover, “[s]uppression is not appropriate, ... if ‘the connection between the illegal police conduct and the discovery and seizure of the evidence is ‘so attenuated as to dissipate the taint.’” Camacho, 661 F.3d at 728-29 (quoting Segura, 468 U.S. at 804, 104 S.Ct. 3380 (quoting Nardone v. United States, 308 U.S. 338, 341, 60 S.Ct. 266, 84 L.Ed. 307 (1939)).

In Cordero-Rosario, the First Circuit distinguished this case from Brown and United States v. Navedo-Colón, 996 F.2d 1337 (1st Cir. 1993), which presents the classic scenario in which a defendant seeks to suppress his own confession made after an unlawful search or seizure. 786 F.3d at 76. Here, Cordero-Rosario is seeking to suppress evidence obtained pursuant to consent supplied not by himself but by- his then-wife — a third party. Id

In Finucan, the appeals court deemed dispositive factors: 1) whether absent the illegal search, “the investigators [would] have known the identity of all of the third parties [or] what to ask them.’ In that regard, we considered whether ‘the government anticipated that the illegal search would help lead it to the other dealers and documents’” and; 2) whether “‘third parties would have come forward on their own had the investigators not sought them out.”’ Cordero-Rosario, 786 F.3d at 77 (quoting Finucan, 708 F.2d at 844) (internal citations omitted) (alteration in original).

After discussing Brown and Finucan, the First Circuit concluded.that “[t]he success of Cordero’s suppression motion turns on whether the evidence obtained pursuant to [Martorell’s] voluntary consent was tainted by the prior unlawful searches by the Puerto Rico police,” and recognized the that this inquiry is “highly fact dependent and “amorphous.”’ Id. To this end, the First Circuit expressly outlined the factors the court should consider when conducting the attenuation analysis of evidence acquired by third-party consent. 786 F.3d at 78. The Court may consider the Finucan factors as well as the Brown factors, “which courts have applied in cases involving motions to suppress allegedly tainted evidence acquired pursuant to third parties granting consent to searches.” Cordero-Rosario, 786 F.3d at 77 (internal citations and quotations omitted); see also United States v. Hill, 649 F.3d 258, 267-68 (4th Cir. 2011); Lane, 726 N.W.2d at 380-92 (discussing numerous considerations in addition to the Brown factors in fruit of the poisonous tree case involving third-party consent) (some internal citations omitted). Finally, the Court concluded that “[b]alancing these factors will illuminate the extent of attenuation in this case, and, along with it, the deterrence value of excluding evidence derived from [Martorell’s] consent.” Cordero-Rosario, 786 F.3d at 77-78.

B. 320 GB External Hard Drive

Per the First Circuit’s mandate, the Court now turns to the attenuation/taint analysis of the 320 GB External Hard Drive. For purposes of the attenuation/taint analysis, the Court summarizes only the relevant facts. Then, the . Court weighs the Brown and Finucan factors, along with the deterrence value of the exclusionary rule based oh the relevant factors of this case.

Magistrate Judge Carreño-Coll found that the 320 GB External Hard Drive was not tainted by the illegal PRPD searches and therefore, the External Hard Drive should not be suppressed. Cordero-Rosario objects to this finding. Id. Specifically, Cordero-Rosario contends that Martorell’s decision to turn over the external hard drive was not an act of volition sufficiently withdrawn from the initial illegality, thus he argues, said evidence is tainted by the prior illegal search. (Docket No. 201.) He further argues that,' because the external hard drive first came up during 'the April 15, 2011 meeting — the meeting where Martorell consented to the search of the family computer that Magistrate Judge Carreño-Coll found to be tainted by the initial illegality — the record does not support the finding of ample indicia of attenuation enough to break the chain and purge the taint. (Docket No. 201 at 7.)

Key to the Court’s attenuation/taint analysis of the 320 GB External Hard Drive is Martorell’s April 15, 2011 meeting with federal authorities and the events that took place after. As part of the local investigation that took place during March 2011, Martorell met with state prosecutors and was shown explicit images, which had been obtained through the illegal searches conducted by the PRPD. Local agents also told Martorell that they were going to contact federal authorities. Less than a month later, Martorell was contacted by Agent Lillian Agudelo, a Special Agent with Homeland Security .Investigations, Cyber Crimes Group. Agudelo asked Mar-torell if they could meet. On April 15, 2011, Martorell met.with Agent Agudelo and Agent Pacheco at the ICE offices in San Patricio. At the Suppression Hearing, Agent Agudelo testified that the purpose of the meeting, was to obtain ■ Martorell’s consent to search the family computer that had been previously searched by the local authorities. Martorell signed the consent form. After signing the consent form, Mar-torell informed Agudelo that there were other devices at her house that were left behind by the local authorities. She offered these to Agudelo so'that they could be searched as well. (Docket No. 194 at 87.)

Q. Do you recognize this?

A. Yes.

Q. And what is this document?

A. That’s the document that I signed that day.

Q. This is your signature down below?

A. Yes.

Q. And this second page here, explain to us what that is.

A. There, in writing, that I’m authoriz- ■ ing, that I’m giving all my consent for the computer of the home to be investigated. And that the information that the computer was used by the family, and that it didn’t have a password.

Q. Did anybody force you to sign this consent?

A. No.

Q. Did anybody make you any promises in exchange for signing this consent?

A. No. The opposite. I wanted the Federal investigation.

Q. Why?

A. Because for transparency, I wanted them to look for more. When I saw those pictures of my neighbor, I asked myself, are there pictures of my daughter? Is there any other victim? And trust. I mean, if it was a Federal investigation, I trusted that investigation because of all the things that were happening with the investigation with my 'daughter. I mean, I wanted to be sure. I wanted everything — I wanted to get to the end of this. I wanted a serious investigation.

Q. After signing that consent, what, if anything, did you discuss with Agent Agudelo?

A. I told her that there were also several things at the home, because since he built the computer, all the parts that were left over from building the computer were there, in addition to the old phones that were there.

And since I also didn’t know about the parts of the computer, I wanted her to go there to check on it, to look at it and take anything — if it was necessary, for her to take anything, in case there was more material there.

Q. What effect, if any, did the fact that the locals had found child pornography have on your decision to turn over the equipment to the Federal authorities?

A. The investigation, I wanted them to investigate, to look in the computer. That the state authorities had found something, okay. Yes. But I wanted to know if there was anything more.

Q. What is it that you wanted them to investigate?

A. The contents. All the contents. I want them to get to the bottom, to wherever they were going to go. But I wanted the investigation to occur.

(Docket No. 194 at 43-44.) A few days after the meeting at ICE in San Patricio, Agent Agudelo called Martorell to follow up on the additional electronic devices she mentioned and offered to hand over to the federal authorities. Agent Agudelo instructed her to put the items together and said she would pick them up. On April 21, 2011 — just 6 days after the meeting at ICE — Agent Agudelo went to Martorell’s residence to pick up the devices. Martorell had organized them on the dining room table, as he had instructed. Among these items was the 320 GB External Hard Drive. Agudelo took the External Hard Drive and several other electronic devices.

At the suppression hearing, Agent Agu-delo testified that Martorell’s demeanor was telling of her willingness to cooperate. She wanted to help the investigation “find the truth.” (Docket No. 194 at 94.) Marto-rell testified that it was her desire help the federal authorities investigate further the findings of the local investigation. Using Martorell’s own words, she wanted the federal authorities “to , get to the bottom” of what the local authorities had illegally obtained. Martorell also testified that, because of Cordero-Rosario’s position in the San Juan Municipal Police, she was concerned as to the integrity of the local investigation and that .Defendant’s position with the San Juan Municipal Police could influence the investigation.

i Temporal Proximity

The close temporal proximity between viewing the pictures, granting consent and turning over the electronic devices weighs in the defense’s favor. As reasoned by Magistrate Judge Carreño-Coll, Marto-rell’s emotional testimony is telling of how greatly influenced she was with “the impression of seeing those pictures which showed that they were still fresh in her mind.” (Docket No. 191 at 35.) Both Mar-torell’s consent and her voluntary proffer of the electronic devices took place simultaneously, during her April 15 meeting at ICE.

ii. Intervening Circumstances

“[I]n determining whether intervening circumstances may have purged the taint of a prior illegality, we look not at the defendant’s conduct, but rather at intervening event[s] of significance that render inapplicable the deterrence and judicial integrity purposes that justify excluding tainted evidence.” United States v. Washington, 387 F.3d 1060, 1073-74 (9th Cir. 2004) (citing United States v. Perez-Esparza, 609 F.2d 1284, 1289, 1290 n. 3 (9th Cir. 1979); see also Dunaway v. New York, 442 U.S. 200, 218, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); United States v. Ricardo D., 912 F.2d 337, 343 (9th Cir.1990). “Intervening circumstances that militate in favor of attenuation .must be sufficiently important to ensure that potentially tainted evidence was ‘come at by way of some process other than the exploitation of an illegal search.” Washington, 387 F.3d at 1074 (citing Wong Sun, 371 U.S. at 487-88, 83 S.Ct. 407).

Magistrate Judge Carreño-Coll found intervening circumstances between the illegality and Martorell’s voluntary turnover the electronic devices sufficient to render her action “an act' of volition sufficiently withdrawn from the original illegality.” (Docket No. 191 at 39.) The intervening circumstances being: 1) the Agents had no prior knowledge of those other devices of their contents, 2) the fact that six days elapsed between the meeting with Agudelo and the actual turnover of the devices and Martorell did not change her mind, and 3) that she even “took on the task of gathering the gadgets and organizing them on the kitchen table.” Id. at 39-40. For these reasons, she concluded that Martorell’s “actions are indicative of the detached reflection and a desire to be cooperative described in Lane.” (Docket No. 191 at 40.)

The undersigned finds it difficult to distinguish Martorell’s signing of the consent form with her decision to turn over the. external hard drive. Agent Agudelo called Martorell to accept the devices she had offered. As a result — just six days after giving consent — Martorell- put her words into action, and organized the devices, per Agudelo’s instructions. The post-consent events do not rise to the level of “intervening circumstances” sufficient to break the chain and purge the taint. The mere passing of six days and her affirmative actions were still linked to the original illegality and .cannot be deemed, in this case, a product of her detached reflection. Marto-rell’s testimony proves that, at that moment, her mental state was still influenced by the illegally obtained pictures. As a result of that influence, Martorell was, essentially, following orders.

As Magistrate Judge Carreño-Coll correctly concluded, “Martorell’s consent flowed directly from the original unlawful search that yielded the images and cannot be said to be the result of ‘detached reflection.’” (Docket No. 191 at 37) (quoting Lane, 726 N.W.2d at 386). Relevant to the Court’s analysis is the deep psychological injuries that are a natural consequence of the facts of this case, specifically by Mar-torell’s mental, state after enduring the agonizing task of seeing the crude pictures obtained by the PRPD. When discussing her conclusion that Martorell’s consent was obtained by exploitation of the illegality, Magistrate Judge Carreño-Coll reasoned , that: “As in Finucan, the agents banked on the illegally obtained evidence in guiding their investigation, at least in the beginning. Relying on the Wong Sun rationale, ... the police obtained Marto-rell’s consent by exploitation of the illegality.” (Docket No. 191 at 34.) “When she gave consent, Martorell had already seen some of the images that were in the unlawfully seized computer. What is more, she had seen those crude images scarcely a month before she signed the consent form.” Id. at 35, “It follows that, Marto-rell’s mental state, at the moment she offered the electronic devices, was also deeply influenced by the images that she had seen, the images that had been illegally obtained by the PRPD.” Id. at 35.

As such, the Court finds no intervening circumstances between the illegal searches and Martorell’S turnover of the 320 GB External Hard Drive thus, that would render it “sufficiently an act of free will to purge the primary taint of the unlawful invasion.” Perez-Esparza, 609 F.2d at 1289.

Hi. Purpose and flagrancy of the official misconduct

“The exclusionary rule exists to deter' police misconduct. The third factor of the attenuation doctrine reflects that rationale by favoring exclusion only when the police miscondnct is most in need of deterrence—that is, when it is purposeful or flagrant.” Utah v. Strieff, — U.S. -, 136 S.Ct. 2056, 2063, 195 L.Ed.2d 400 (2016) (citing Davis v. United States, 564 U.S. 229, 236-37, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011)(emphasis added)). This factor “is considered the most- important factor because it is directly ‘ tied to the purpose of the exclusionary rule — deterring police misconduct.” United States v. Simpson, 439 F.3d 490, 496 (8th Cir. 2006). Purposeful and flagrant conduct exists when: (1) the impropriety of the official’s misconduct was obvious or i the official knew, at the time, that his conduct was likely unconstitutional but engaged in it nevertheless; and (2) the misconduct was investigatory' in design and purpose and executed “in the hope that something might turn up.” Id. (quoting Brown, 422 U.S. at 605, 95 S.Ct. 2254.)

When evaluating the flagrancy of the conduct, there are numerous factors to consider. “Some factors may weigh in favor of finding the conduct to be flagrant including that the illegal conduct involves the physical entry of the home[,] [which] is the chief evil against which the. wording of the Fourth'Amendment is directed.” Hill, 649 F.3d at 270 (internal quotations omitted). “Other factors may weigh in favor of finding "the conduct was not flagrant, including that the officers did 'not use or explgit the evidence that they obtained during the initial search to gain consent.” Id. (emphasis added).

The parties dispute the source of the federal government’s knowledge that child pornography found during the lewd acts investigation conducted by the PRPD. Agent González testified at the suppression hearing that she first heard about the child pornography material in the news. (Docket No. 194 at 27.) Cordero-Rosario, on the other hand, contends that Gonzalez became aware of the existence of child pornography when she received a tip from the PRPD. (Docket No. 201 at 10.) During cross-examination, defense counsel confronted Gonzalez with a “Report of Investigation” from Martorell’s May 16, 2011 interview. Judge Carreño-Coll deemed Gonzalez’s version truthful. Gonzalez “explained that it is not customary to include in an ROI that an agent received information “from the news, even when that is the case.” (Docket No. 191 at 14 n.11.) The undersigned gives deference to the Magistrate Judge’s assessment of the witness’ credibility and therefore adopts her finding of “Gonzalez’ explanation to be truthful and have no reason to doubt that she, in fact, first heard about the child pornography materials through the news.” Id.

Irrespective of the source of the information, Agent González testified that she contacted local prosecutors to verify the finding of child pornography material by the PRPD. She met with the local prosecutors and reviewed the search warrants. (Docket No. 191 at 15.) As soon as she reviewed the search warrants, she became concerned that these could be insufficient to search for child pornography. Id. Next, Agent González arranged a meeting with her supervisors and members of the United States Attorney’s Office. (Docket No. 191 at 16.) The purpose of the meeting was to discuss her concerns regarding the state warrants. Then, they decided “to create an individual investigation away from the state and local search warrants.” Id. “[I]t was decided that the federal agents would try to obtain Martorell’s consent to search the computer that had been seized by the PRPD.” Id.

Ironically, the “independent federal investigation” picked up where the PRPD left off. The close ties between the investigations manifests the flagrancy of the federal authorities’ investigation. Agent González and the United. States Attorney’s office designed and orchestrated what they believed to be an “independent federal investigation.” Even. though Agents Pacheco and Agudelo were not privy to the discussions by "the federal authorities where they, discussed the flawed PRPD investigation, when assigned to conduct the “independent federal investigation” they were given specific instructions by their superiors to get Martorell’s consent to search the computer that the PRPD has seized. This decision evinces they were acting upon the fruits of the PRPD searches to guide their investigation. In a like manner, Magistrate Judge Carreño-Coll reasoned that “[t]he mere creation of a ‘taint team’ is not enough to attenuate the initial taint” and pointed out that “[r]ather than initiating the independent investigation on a tabula rasa, Agudelo reached out to Martorell with the intention of getting consent to search the computer held by the PRPD.” (Docket No. 191 at 84).

The Government strongly urges the Court not to accuse the federal agents of engaging in misconduct for carrying out a separate investigation,' arguing that the “application of the exclusionary rule is a draconian measure that is geared towards “deterring lawless conduct by federal officers,” and “closing the doors of the federal courts to any use of evidence unconstitutionally obtained.” (Docket No. 208) (citing Brown, 422 U.S. at 599, 95 S.Ct. 2254.) As such, the Government argues against suppression because there is no “lawless conduct to deter.” Id.

In no way is the Court condemning the Government’s efforts to conduct an independent investigation. Nevertheless, the federal authorities should have steered with more caution rather than jump the gun. In Puerto Rico, as in many other jurisdictions, federal and state authorities work together to combat crime. All things considered, the Court finds that the flagrancy of the not-so-independent federal investigation constitutes the type of behavior the exclusionary rule aims to deter.

iv. The Finucan Factors

As stated previously, “[t]he question whether evidence obtained after an illegal search should be suppressed as the fruit of the poisonous tree depends upon ‘whether, granting establishment of the primary illegality, the evidence ... has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’” Finucan, 708 F.2d at 843 (quoting Wong Sun, 371 U.S. at 488, 83 S.Ct. 407.)

The first Finucan factor echoes the Court’s discussion above. Absent the illegal search, would the investigators have known the identity of all of the third parties or what to ask? Did the government anticipate that the illegal search would help lead it to the other evidence? As analyzed in the Court’s discussion of the third Brown factor (i.e., purposeful and flagrant police misconduct) the federal authorities used the PRPD’s investigation for leads to guide their independent investigation.

The Court agrees with the Magistrate Judge’s finding that “[a]s in Finucan, the agents banked on the illegally obtained evidence in guiding their investigation, at least in the beginning.” (Docket No. 191 at 34) (emphasis added). It is uncontested that the federal authorities used the PRPD investigation to map their own investigation and thus, they expected it would lead them to the unlawful material. Consequently, this factor weighs in favor of exclusion.

The second Finucan factor, “[wjhether ‘third parties would have come forward on their own had the investigators not sought them out” also weighs in favor of exclusion. Martorell expressed — on multiple occasions — her desire to help the authorities. Finucan, 708 F.2d at 844. However, as Magistrate Judge Carreño-Coll pointed out, she did not do so until she was approached. “Even though Martorell emphasized that she wanted an independent federal investigation, the fact is that she did not come forward on her own.” (Docket No. 191 at 34.) The fact that Martorell did not contact the authorities, having the opportunity to do so, but instead she waited for them to contact her supports the reasoning above as to the absence of intervening circumstances and that the federal authorities, by way of her involvement in the investigation, exploited the illegality.

Finally, the Court turns to the purpose of the exclusionary rule, deterrence. “The [exclusionary] rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way—by removing the incentive to disregard it.” Brown, 422 U.S. at 599-600, 95 S.Ct. 2254 (internal citations and quotations omitted). “But despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons.” Brown, 422 U.S. at 600, 95 S.Ct. 2254 (internal citations and quotations omitted).

“For exclusion to be appropriate, the deterrence benefits of suppression must outweigh its heavy costs.” Davis, 564 U.S. at 237, 131 S.Ct. 2419. The Supreme Court has cautioned that the exclusionary rule “almost always' requires courts to ignore reliable, trustworthy evidence bearing on guilt or innocence. And its bottom-line effect, in many cases, is to suppress the truth and set the criminal loose in the community without punishment. Our cases hold that society must swallow this bitter pill when necessary, but only as a ‘last resort.’ ” Id.

Having taken into account the totality of the circumstances, and after weighing the Brown and Finucan factors, the Court finds that the 320 GB External Hard Drive was not obtained by means sufficiently distinguishable, but rather by exploitation of the illegality. Consequently, the external hard drive is tainted by the prior unlawful searches and therefore, must be excluded. Regrettably, such determination comes at a high price insofar as “[t]he exclusionary rule generates substantial social costs, ... which sometimes include setting the guilty free and the dangerous at large.” Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) (internal citations and quotation marks omitted).

C. MMTH’s Live Testimony/ CyberShot Camera

The Court turns to the attenuation/taint analysis of the testimony of MMTH and the Cybershot Camera. When applying the exclusionary rule to live-witness testimony, a closer more direct link between the illegality and that kind of testimony is required. United States v. Ceccolini, 435 U.S. 268, 278, 98 S.Ct. 1054, 55 L.Ed.2d 268 (1978).

Magistrate Judge Carreño-Coll recommends MMTH’s live testimony be admitted because pursuant to Ceccolini, “MMTH would have come forward, either on her own, or prompted by her mother.” (Docket No. 191 at 42.) Magistrate Judge Carreño-Coll further reasoned that: “Hor-nedo’s eagerness to reach out to federal authorities, which she displayed again during the hearing in this case by contacting the prosecutor and asking to testify out of her own will, is a testament to her disposition. The same can be said for MMTH.” (Docket No. 191 at 42-43.)

An examination of these facts leads to the conclusion that those statements were the product of detached reflection and a desire to be cooperative. Ultimately, the record shows that the illegality which led to the discovery of MMTH did not play a significant part in her willingness to come forward.

(Docket No. 191 at 43.) Cordero-Rosario argues that the Magistrate Judge’s finding is unsupported. (Docket No. 201.) The Government opposes this contention and argues that “MMTH’s willingness to come forward is supported not only by the testimony of Idalia Hornedo, the minor’s mother, but also by the testimony of Special Agent Agudelo who interviewed MMTH.” (Docket No. 208 at 22.) Further, the Government argues that “MMTH freely and voluntarily agreed to be interviewed demonstrated her willingness to come forward and cooperate with the authorities. So voluntary and free was her cooperation that she alerted Agent Agudelo to the existence of the Sony Cyber Shot camera.” (Docket No. 208 at 22.)

“The greater the willingness of the witness to freely testify, the greater the likelihood that he or she will be discovered by legal means and, concomitantly, the smaller the incentive to conduct an illegal search to discover the witness.” Ceccolini, 435 U.S. at 276-78, 98 S.Ct. 1054.

Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can,, and often do, come forward and offer evidence entirely of their own volition. And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence. The time, place and manner of the initial questioning of the witness may be such that any statements are truly the product of detached reflection and a desire to be cooperative on the part of the witness. And the illegality which led to the discovery of the witness very often will not play any meaningful part in the witness’ willingness to testify-

Ceccolini, 435 U.S. at 276-78, 98 S.Ct. 1054. The circumstances that led to MMTH’s involvement in the investigation follow.

When contacted by Agudelo, MMTH did not refuse to be interviewed and nothing on the record shows that her testimony was coerced in any way. In fact, while being interviewed, MMTH narrated unpleasant details about her interactions with Cordero and revealed that she possessed the camera where the seized pictures had been taken, information that was not known to the PRPD. Moreover, the interview with MMTH took place in May, three months after the PRPD had illegally seized Cordero’s computer.

(Docket No. 191 at 42-43.) Relevant to the Court’s consideration is the second Finucan factor, “[w]hether third parties would have come forward on their own had the investigators not sought them out.” Finucan, 708 F.2d at 844. With this element, “the ‘degree of free will’ exercised by those who come forward and offer evidence entirely of their own volition” is of particular pertinence. Ceccolini, 435 U.S. at 276, 98 S.Ct. 1054; see also Garcia-Aguilar v. Lynch, 806 F.3d 671, 675 (1st Cir. 2015).

The undersigned agrees with Magistrate Judge Carreño-Coll’s finding that MMTH would have come forward on her own, had she not been sought out by the authorities. The circumstances surrounding MMTH’s involvement weigh strongly in finding that MMTH’s live testimony was sufficiently attenuated from the initial illegality. (Docket No. 191 at 43.) The undersigned adopts Magistrate Judge Carreño-Coll’s factual findings and legal conclusions regarding the admissibility of MMTH’s live testimony and the Sony Cybershot Camera.

V. Conclusion

Upon de novo review, the Court ADOPTS Magistrate Judge Carreño-Coll’s Report and Recommendation at Docket No. 191 consistent with this Opinion. For the foregoing reasons, GRANTS IN PART and DENIES in part the Government’s “Motion in Compliance Explaining Why None of the Government’s Evidence Should Be Suppressed” at Docket No. 135.

To sum up, the Court SUPPRESSES and EXCLUDES: 1) the evidence found during the search of the family computer during the “federal investigation” — including the sexually explicit images of MMTH, and chat conversations between Cordero and MMTH contained therein, and 2) the evidence obtained from the 320 GB External Hard Drive.

The Court ADMITS: 1) the live testimony of MMTH, and 2) the Sony Cyber Shot Camera.

SO ORDERED.

REPORT AND RECOMMENDATION

SILVIA CARREÑO-COLL, UNITED STATES MAGISTRATE JUDGE

When does the taint end? Or can you un-poison the fruit? These are the questions I must answer in determining if the evidence obtained by the federal agents is tainted by the unlawful searches carried out by the police of Puerto Rico.

I. Procedural Background

After being accused by the Commonwealth of Puerto Rico for lewd and lascivious acts against his daughter, Defendant Hilton Cordero-Rosario was indicted- at the federal level for production of child -pornography. According to the 22-count indictment, Cordero persuaded, induced, enticed, and coerced a minor, to engage in sexually explicit conduct by producing photographs that showed the minor’s genital areas and depicted her in sexual poses. Docket No. 3, Cordero-was also charged with possession of child pornography.for storing images depicting minors.engaging in sexually explicit conduct in his xlesktop computer and in an external hard drive, in violation of 18 U.S.C. § 2252(a)(4)(B). Id. A superseding indictment was returned on January 18,2012. Docket No. 29.

The computer containing the incriminating images had been seized by the Police of Puerto Rico (“PRPD”) pursuant to a state search warrant obtained during the investigation into the lewd acts charges. A second search followed on February 25, 2012, where more electronic equipment was seized.

On June 25, 2012, Cordero filed a motion to suppress all evidence seized during the two searches carried out by the PRPD at his residence and all evidence subsequently seized. The motion to suppress was denied without a hearing. Cordero eventually pled guilty to one count of possession of child pornography and a forfeiture allegation, but reserved the right to appeal the decision denying the suppression of the evidence. Docket No. 80. After sentencing, Cordero filed a notice of appeal to challenge the sentence imposed and the order denying the motion to suppress. Id.

The Circuit Court determined that the evidence seized by the PRPD must be excluded insofar as the warrants did not contain probable cause. The court remanded for the holding of an evidentiary hearing to establish if the evidence obtained by the federal agents was also tainted and, therefore, subject to exclusion. Docket No. 125; In light of the First Circuit holding, the District Court ordered .the United States to inform whether it would continue with the prosecution and if so, whether it had independent evidence to support the charges. Docket No. 129. The government responded and argued that it had independent evidence to support all the counts of the indictment. Docket No. 135. The defendant opposed. Docket No. 142.

The presiding Judge referred the motion at Docket No. 135 and the response at Docket No. 142, to the undersigned for a Report and Recommendation. Docket No. 143. A hearing was held oh April 13, 2016. Docket No. 161. Prior to the hearing, the Defendant argued vehemently that the government had to itemize the evidence that it was going to advance as untainted. Docket No. 155. I determined that, in keeping with the spirit of the First Circuit’s order, it was necessary to retrace the factual ins and outs of this case without the straightjacket that an itemization would impose. Docket No. 156. As such, the ample scope of the hearing allowed both parties to present extensive evidence that translated into post-hearing memo-randa. Docket Nos. 164 and 165.

While the Report and Recommendation was pending, a second superseding indictment was returned against Cordero. Docket No. 171. The indictment includes a new count of sex trafficking of children.

On November, 2016, Cordero filed a motion for release from custody. Docket No. 183. As a result, the District Court ordered that Speedy Trial findings be included in the Report and Recommendation.

II. Speedy Trial Findings

The Speedy Trial Act (“STA”) provides that a defendant be tried within seventy days of “the filing date (and making public) of the information or indictment, or from the date the defendant has appeared before a judicial officer of the court in which such charge is pending, whichever date last occurs.” 18 U.S.C. § 3161(c)(1). The STA, however, mandates that “in computing the time in which a trial must commence there shall be excluded ‘delay resulting from any pretrial motion, from the filing of the motion through the conclusion of the hearing on, or other prompt disposition of, such motion.”’ § 3161(h)(1)(F); see also United States v. Mitchell, 723 F.2d 1040, 1046 (1st Cir. 1983). Though this language “contains no time limits for hearing pretrial motions and acting on them,” Mitchell, 723 F.2d at 1046, the Supreme Court has construed section 3161(h)(l)(F)as setting forth a two-tiered approach to determining the extent of ex-cludable delay caused by the submission and disposition of pretrial motions. See U.S. v. Barnes, 159 F.3d 4, 11 (1st Cir. 1998) (citing Henderson v. United States, 476 U.S. 321, 329-30, 106 S.Ct. 1871, 90 L.Ed.2d 299 (1986)). In essence, the rule is that any delay permitted is that which is “reasonably necessary.” Mitchell, 723 F.2d at 1046.

On September 9, 2015, the court referred the Government’s Motion in Compliance Explaining Why None of the Government’s Evidence Should be Suppressed, Docket No. 135, and the defense’s Response in Opposition, Docket No. 142, to the Magistrate Judge for an evidentiary hearing and a Report and Recommendation. Docket No. 143. On April 13, 2016, the Magistrate Judge held a hearing on the motions. Docket No. 161. All the time from September 9, 2015, to April 13, 2016 is automatically excludable as delay resulting from a pretrial motion “from the filing of the motion through the conclusion of the hearing.” 18 U.S.C. § 3161(h)(1)(F); United States v. Salimonu, 182 F.3d 63, 69 (1st Cir.1999) (“[A]s long as a hearing on the motion is to be conducted before trial, the delay until the hearing automatically should be considered delay ‘resulting from’ a pretrial motion.’ ”).

At the end of the hearing on April 13, 2016, the Court granted defendant 5 working days to submit a written brief. On April 20, 2016, the defendant filed his brief. Docket No. 164. On April 29, 2016, the government filed a response to defendant’s brief. Docket No. 165. On May 4, 2016, defendant filed a motion to strike the response in opposition. Docket No. 166. That same day, the government filed a response in opposition to defendant’s motion to strike. Docket No. 167.

The statute “excludes time after a hearing has been held where a district court awaits additional filings from the parties that are needed for proper disposition of the motion.” Henderson, 476 U.S. at 331, 106 S.Ct. 1871. The speedy trial clock may also be stopped for up to 30 days after the last filing while the Court has the motion “actually under advisement.” United States v. Scott, 270 F.3d 30, 55 (1st Cir. 2001). Taking these principles into consideration, the time from April 4, 2016 (the day the Court ordered defendant to file his brief) until June 4, 2016 (30 days after the last filing), is excludable. In addition, the First Circuit has adopted the view that the 30-day language contained in § 3161(h)(1)(J) “does not apply literally” when the court is asked to decide many motions, as is the case here. See United States v. Anello, 765 F.2d 253, 257 (1st Cir. 1985).

The defendant in this ease has raised complex legal issues that require the careful review and consideration of extensive testimony and a vast record. The court understands that the ends of justice are better served by devoting sufficient time to consider the issues thoroughly. See United States v. Aquino, 1 Fed.Appx. 26, 29 (2nd Cir. 2001). Moreover, while the Report and Recommendation was pending, the government filed a second superseding indictment against Cordero. On July 11,. 2016, the government filed an informative motion regarding the effect of the second superseding indictment on the adjudication of the motion pending resolution. Therefore, the court had to take pause to consider these new procedural circumstances as part of its analysis of the suppression sought. Anello, 765 F.2d at 257 (holding that a delay in deciding new motions was not unreasonable, given that “these new motions raised issues that would turn on the court’s resolution of some of the other' suppression motions.”). Based on these considerations, the period under which the Report and Recommendation was pending constitutes an excludable period of delay under the STA.

Also, because the second superseding indictment filed on July 7, 2012, included a new count, the STA clock was reset. See United States v. Barnes, 251 F.3d 251, 258-59 (1st Cir. 2001). After applying the exclusions I find that the new effective STA date is March 20, 2017.

Ill, The First Circuit’s Mandate

Since the First Circuit’s opinion of May 4, 2015 (the “Opinion”) sets the roadmap for any subsequent proceedings on the suppression issue, it merits independent mention. The First Circuit held that the PRPD’s February 4 and February 26 searches were invalid because they violated Cordero’s Fourth Amendment rights. See United States v. Cordero-Rosario, 786 F.3d 64, 71-72 (1st Cir. 2015); see also Docket No. 125 at page 20. The issue, then, is whether the evidence upon which the federal charges are premised has a separate, independent basis. On this matter, the First Circuit’s directive is clear. First, the District Court may hold an evi-dentiary hearing “to determine whether the Puerto Rico police’s prior searches so tainted the evidence the federal agents later obtained pursuant to the consent that the defendant’s then-wife supplied that such evidence must be suppressed.” Cordero-Rosario, 786 F.3d at 66-67, and Docket No. 125 at pages 3-4. Should the District Court find that suppression is required, then the court must also determine which evidence must be suppressed. Id.

IV. Findings of Fact

A detailed, chronological description of the factual background is essential in this case. The First Circuit recognized it as such when, despite making its own findings of facts, it encouraged the District Court to “feel free to explore fully the historical facts as it deems necessary.” Cordero-Rosario, 786 F.3d at n. 1. Guided by that notion, I will piece together the factual backdrop, as told by the witnesses who testified at the hearing, and as gathered by the evidence on the record.

At the hearing, the ultimate burden of persuasion fell on the government to show that the evidence it intends to present is untainted. See Alderman v. United States, 394 U.S. 165, 183, 89 S.Ct. 961, 22 L.Ed.2d 176 (1969). Though I will not delve expansively into the lewd acts claims because such charges are not before me, I must necessarily examine some elements of that initial investigation for context.

(i) The state investigation

It was on Thanksgiving day, 2010, that Martorell learned' her husband had committed lewd acts against their daughter. It wasn’t until January of 2011, however, that Martorell asked Cordero to leave the house where they lived with PCM and a younger daughter.

On February, 2011, PCM spoke to a teacher and to the school’s social worker' about the lewd acts incident. As a result, the Department of the Family of the Commonwealth of Puerto Rico commenced an investigation and a protective order was issued on February 4, 2011. On that same day, the PRPD agents interviewed PCM and, with the information gathered, PRPD agent Noel Ramos Ortiz swore an affidavit in support of a search warrant. The object of the warrant were any desktop computers, towers, laptops, monitors and other devices to be found at Cordero’s residence, located in Apt. 2704 of Jardines de Parque Escorial, in Carolina. See Government’s Exhibit No. 8, and Docket No. 86-1.

A warrant was issued and executed later that day. During the search, the PRPD seized a desktop computer and other electronic devices. A subsequent examination of the computer seized revealed child pornographic images of a girl identified as Cordero’s neighbor. The police referred to her as MMTH.

On February 25, 2011, Agent Ramos filed a second affidavit with the Court of First Instance to search for other evidence “that was left behind” during the first search,- -particularly some cameras and memory cards, Docket No, 51-2. The warrant-was issued and a second search ensued' on February 26, 2011, where the PRPD seized another group of electronic devices. Id. This search was conducted in the presence of Martorell only.

By March, 2011, while Martorell was hospitalized receiving psychological treatment, she learned that Cordero was being accused, As she read the news on her phone, she found out that the police had extracted images of child pornography from the family’s desktop computer. The images showed á minor female who had been . identified as C.ordero’s neighbor. Martorell said that she . had . previously heard from the state prosecutors, that there could be some photos of a sexual nature in the computer, but was not expecting them to be pictures of a minor, much less of their neighbor, MMTH.

After being released from the hospital, Martorell went back home. A few days later, she had a meeting with the state prosecutors where they showed her some of the pictures that had been recovered from the computer. Some depicted MMTH, and others depicted Cordero’s penis. After the meeting, she was “desperate” and started going through Cordero’s belongings.

Around that time, Martorell started asking the state prosecutors to notify federal authorities. When they responded that they had already contacted them, Marto-rell said that she began to wait for .a call from the federal agents.

(ii) The federal investigation

On or around April of 2011, Rébecca Gonzalez, then Group Supervisor of the Cybercrimes Unit at Homeland Security Investigations (“HSI”), heard in the news that the PRPD had found child pornography in items seized at Cordero’s home as part of an ongoing lewd acts investigation. According to González, she had previously learned through the media that the PRPD had been investigating Cordero for having subjected his biological daughter to lewd acts, in violation of Puerto Rico law. González knew the defendant because he was Commissioner of the San Juan Police and had participated in a number of law enforcement coordination meetings where she was present.

Next, González contacted Inés Carrau, then District Attorney in Carolina, to verify what she had heard on the news and to discuss the evidence seized in the state investigation. On April 11, 2011, a meeting took place between González, Carrau, HSI Special Agent Salvador Santiago and state prosecutor Lillian Cabrera. At that meeting, Carrau told González that they had identified a now. 19-year-old female from the sexually explicit images extracted from the computer. Carrau showed González a forensic preview of several pictures depicting the victim in sexual poses. At that time, González ,did not know who MMTH was and the images had not yet been the subject of a federal investigation.

González also received a copy of the state search warrants that the PRPD used to seize defendant’s belongings. González testified that as-soon as she reviewed the search warrants, she. realized that the search warrant applications were not supported by probable cause to believe that child pornography would be found at the place to be searched. Prompted by that determination, González arranged a meeting with her superiors and members of the United States Attorney’s Office, including the United States Attorney for the District of Puerto Rico, Rosa Emilia Rodriguez. At that meeting, González brought, the concern she had regarding the state search warrants and it was decided that the federal agents would try to obtain Martorell’s consent to search the computer that had been seized by the PRPD. The purpose, in González’ own words, was “to create an individual investigation away from the state and local search warrants.”

At that point, there was no case number assigned, no agents in charge and no resources allocated. González described it as a “pre-investigation” phase. After the meeting with her superiors, González assigned the case to special agents Lillian Agudelo Doval and Alek Pacheco. She wanted to assign the case to agents that had not interacted with Cordero in the past and that were not aware of the meeting with the Carolina prosecutors.

At the time, Agudelo worked in the cy-bercrimes team at U.S. Immigration and Customs Enforcement (“ICE”). She testified that a few days prior to April 15, 2011, she was preparing a search warrant in another case when González told her team that the desktop computer the local authorities had seized in the Cordero investigation had yielded child pornography.

A couple of days later, Agudelo was assigned as case agent in the aptly-named “taint team.” Agudelo was instructed by González to st