                                                                     FILED
                                                         United States Court of Appeals
                          UNITED STATES COURT OF APPEALS         Tenth Circuit

                                FOR THE TENTH CIRCUIT                    February 26, 2020
                            _________________________________
                                                                        Christopher M. Wolpert
                                                                            Clerk of Court
 UNITED STATES OF AMERICA,

        Plaintiff - Appellee,

 v.                                                            No. 17-3238
                                                    (D.C. No. 6:13-CR-10176-EFM-1)
 WALTER ACKERMAN,                                               (D. Kan.)

        Defendant - Appellant.

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        Amici Curiae.


                                  ORDER AND JUDGMENT*



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Before HARTZ, MATHESON and EID, Circuit Judges.


       The defendant-appellant, Walter Ackerman, used his AOL email account to send

child pornography. AOL recognized one of the images as child pornography and sent a

copy of the email to the National Center for Missing & Exploited Children (NCMEC).

Without a warrant, NCMEC opened and inspected the email. Ackerman believed that

this was an unconstitutional search and filed a motion to suppress the evidence obtained

from it. The district court denied the motion, but we reversed and remanded. On

remand, the district court again denied the motion. The district court concluded that

Ackerman’s constitutional rights were not violated, and in any event, the suppression

motion should be denied because the good-faith exception to the exclusionary rule

applies. In this appeal, Ackerman challenges the district court’s second denial of his

motion. Because we agree with the district court that the good-faith exception to the

exclusionary rule applies, we affirm.

                                            I.

       On April 22, 2013, Ackerman used his AOL email account to send four images of

child pornography. See R1.1 at 1 (Indictment); R1.37 at 6 (Memorandum and Order

Denying Motion to Suppress); R1.61 at 11–12 (Transcript of Motion Hearing). AOL’s

automated system immediately recognized one of the images as child pornography,

stopped the email from being delivered, and terminated Ackerman’s AOL account. See

R1.37 at 6; R1.61 at 91. The following day, AOL’s automated system generated and sent

a report to NCMEC’s CyberTipline that contained a digital copy of Ackerman’s April 22


                                             2
email. See R1.37 at 5–6; R1.61 at 92, 95 (describing the process generally). A NCMEC

employee reviewed the report, determined that Ackerman’s email contained four images

of child pornography, and forwarded the report to Kansas law enforcement. See R1.37 at

6.

       Upon receiving NCMEC’s report of Ackerman’s illegal activity, Kansas law

enforcement obtained a search warrant of Ackerman’s residence. See R1.37 at 6–7. At

Ackerman’s residence, law enforcement discovered more child pornography on several

devices. See id. Ackerman was then charged with one count of possession of child

pornography, 18 U.S.C. § 2252(a)(4)(B), and one count of distribution of child

pornography, 18 U.S.C. § 2252(a)(2). See R1.1.

       Ackerman filed a motion to suppress. He argued that both AOL and NCMEC

were government actors and that their searches violated his Fourth Amendment rights.

See R1.13. The district court denied Ackerman’s motion following an evidentiary

hearing. See United States v. Ackerman, No. 13-10176-01-EFM, 2014 WL 2968164, at

*1 (D. Kan. July 1, 2014). The court concluded that neither AOL nor NCMEC were

government actors. See id. at *5–8. It also concluded that—even if NCMEC was a

government actor—NCMEC’s search did not exceed the scope of AOL’s search in a

“constitutionally significant” way. See id. at *8–10. Following the denial, Ackerman

pleaded guilty but reserved his right to appeal the district court’s denial of his motion to

suppress.




                                              3
          Ackerman appealed. On appeal, we reversed and held that NCMEC is a

government actor,1 and NCMEC conducted a search. See United States v. Ackerman, 831

F.3d 1292, 1295–1308 (10th Cir. 2016) (“Ackerman I”). But we noted that “hard

questions” remained, including whether the third-party doctrine applied. See id. at 1308.

Additionally, we declined to consider the good-faith exception because the government

failed to provide sufficient briefing. Id.

          On remand, the district court again denied Ackerman’s motion to suppress.

Ackerman, 296 F. Supp. 3d at 1269. The district court agreed with Ackerman that he

possessed a subjective expectation of privacy but held that his subjective expectation was

not one society was prepared to recognize as objectively reasonable. See id. at 1271–73.

The district court also held that the good-faith exception applied. See id. at 1273–76.

According to the district court, NCMEC performed this search pursuant to a statutory

scheme. See id. Because NCMEC relied in good faith upon the statutory scheme, the

exclusionary rule’s purpose of deterring government misconduct would not be served

here. See id. We agree with the district court that the good-faith exception applies and

affirm.

                                             II.

          We assume, for the sake of argument, that Ackerman has shown a constitutional

violation. We nonetheless affirm because the district court correctly determined that



          1
       At the time of the search (April 2013), no court had yet held that NCMEC was a
government actor. See United States v. Ackerman, 296 F. Supp. 3d 1267, 1275–76 (D.
Kan. 2017).
                                              4
NCMEC searched Ackerman’s email in good faith.2 Accordingly, the Fourth

Amendment’s exclusionary rule is inapplicable.

         Before we discuss the good-faith exception, however, we must first address a

preliminary issue that Ackerman raises. Ackerman contends that because we previously

concluded that the government had waived the good-faith exception, the government

should not have been able to raise it below (or here). While we previously declined in

Ackerman I to consider the government’s good-faith-exception argument because it was

insufficiently briefed, this argument was not waived because we do not “ordinarily

require appellees to raise every possible ground for affirmance in their appellate briefs.”

Haynes Trane Serv. Agency, Inc. v. Am. Standard, Inc., 573 F.3d 947, 963 (10th Cir.

2009).

         Even if the government had waived its good-faith-exception argument in

Ackerman I, the district court still had the authority to consider the good-faith exception

on remand because “law of the case principles do not bar a district court from acting”

when an appellate court has not “issued [a decision] on the merits of the claim sought to

be precluded.” Wilmer v. Bd. of Cty. Com’rs of Leavenworth Cty., 69 F.3d 406, 409

(10th Cir. 1995) (quotations omitted) (refusing to apply law of the case because our

decision in the initial appeal denied the motion based on untimeliness and did not address

the merits); Van Dyke v. United States, 457 F. App'x 721, 725 (10th Cir. 2012)


         2
         We took a similar approach in United States v. Workman, 863 F.3d 1313, 1315
(10th Cir. 2017) (assuming “for the sake of argument” that the defendant had shown a
constitutional violation but refusing to suppress the evidence because law enforcement’s
actions were “objectively reasonable”).
                                             5
(unpublished) (holding that law of the case did not apply to the district court’s decision

on remand where we decided in the initial appeal that we could “not consider the

[government’s] argument given the insufficient record”). Here, the law of the case

doctrine does not apply because we did not render a decision on the merits of the good-

faith exception. See Ackerman I, 831 F.3d at 1308. Instead, in Ackerman I, we declined

to consider the government’s good-faith-exception argument because it was insufficiently

briefed. Id. (deciding that the government’s briefing was “insufficient to preserve [the]

point for appellate review” because the government’s brief only “incorporate[d] by

reference the good faith arguments it presented to the district court.”).3

       Turning to whether the good-faith exception to the exclusionary rule applies to

NCMEC’s search, we review this issue de novo. United States v. Danhauer, 229 F.3d

1002, 1005 (10th Cir. 2000) (“Determinations relating to . . . the good-faith exception are

conclusions of law . . . which this court reviews de novo.”). While the general remedy for

a Fourth Amendment violation is exclusion of the evidence, exclusion “has always been

our last resort.” Herring v. United States, 555 U.S. 135, 140 (2009). “The rule’s sole



       3
         In his letter of supplemental authority, Ackerman asserts that our decision in
Harte v. Bd. of Commissioners supports his argument that law of the case precluded the
district court from applying the good-faith exception on remand. 940 F.3d 498 (10th Cir.
2019). But Harte held only that, “in applying a fractured panel’s holding, the district
court need only look to and adopt the result the panel reached.” Id. at 504. Although one
judge in Harte reached the majority result by deciding that the plaintiff-appellants had
waived their argument, id. at 509, Harte did not address whether the law of the case
doctrine precludes a district court from considering an issue that was not resolved on the
merits. Consequently, Harte does not demonstrate that the district court could not
consider the government’s good-faith-exception argument after we concluded that it was
insufficiently briefed in Ackerman I.
                                              6
purpose . . . is to deter future Fourth Amendment violations.” Davis v. United States, 564

U.S. 229, 236–37 (2011). Accordingly, courts must engage in a “rigorous weighing of

[exclusion’s] costs and deterrence benefits” to determine whether exclusion is warranted.

Id. at 238. The good-faith exception to the exclusionary rule prohibits exclusion when

law enforcement acts in “objectively reasonable reliance upon a statute authorizing” the

search. Illinois v. Krull, 480 U.S. 340, 342, 355 (1987) (refusing to suppress evidence

obtained from warrantless search when law enforcement reasonably relied on a statute

authorizing the search, even though the statute was ultimately found to be

unconstitutional).

       Here, the exclusionary rule does not apply because NCMEC’s search fell within

the good-faith exception. Like the officers in Krull, NCMEC acted in objectively

reasonable reliance on a statutory scheme when it inspected the digital copy of

Ackerman’s April 22 email. See 18 U.S.C. § 2258A. As we previously articulated:

“NCMEC and NCMEC alone is statutorily obliged to maintain an electronic tipline for

ISPs to use to report possible Internet child sexual exploitation violations to the

government.” Ackerman I, 831 F.3d at 1296. “Under the statutory scheme, NCMEC is

obliged to forward every single report it receives to federal law enforcement agencies and

it may make its reports available to state and local law enforcement as well.” Id. (citing

18 U.S.C. § 2258A(c)). Additionally, “in aid of its tipline functions NCMEC is

statutorily authorized to receive contraband (child pornography) knowingly and to review

its contents intentionally.” Id. at 1297 (citing 18 U.S.C. § 2258A(a), (b)(4)). These

“actions . . . would normally subject private persons to criminal prosecution.” Id.

                                              7
       Ackerman argues that this case is distinguishable from Krull because in Krull the

statute specifically authorized the government’s search, but here it does not. See Aple.

Br. at 42–43. We agree with the district court that this “argument draws too fine of a

line.” Ackerman, 296 F. Supp. 3d at 1275. “[A]lthough the statutes do not require

NCMEC to open and view the email attachments, ‘everyone accepts that Congress

enabled NCMEC to review [Defendant’s] email by excepting the Center from the myriad

laws banning the knowing receipt, possession, and viewing of child pornography.’” Id.

(quoting Ackerman I, 831 F.3d at 1302).

       Given the breadth of the statutory scheme and Ackerman’s inability to distinguish

Krull, we conclude that NCMEC’s search of Ackerman’s email fell within the good-faith

exception to the exclusionary rule because NCMEC acted in “objectively reasonable

reliance” on the statutory scheme. This conclusion is “bolstered [by the fact that] at the

time of the events in question (April 2013), no court had even considered NCMEC a

governmental entity or agent of law enforcement.” Id. at 1275–76. NCMEC had no

reason to suspect that its actions could have violated the Fourth Amendment and thus

there would be no deterrent value in suppressing the fruits of this search.

                                            III.

       For the reasons stated above, NCMEC performed the search in good faith pursuant

to a statutory scheme. Consequently, the good-faith exception applies, the evidence




                                             8
should not be excluded, and we AFFIRM the district court’s judgment.



                                              Entered for the Court


                                              Allison H. Eid
                                              Circuit Judge




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