          United States Court of Appeals
                        For the First Circuit

No. 08-2455, 09-1018

                       UNITED STATES OF AMERICA,

                               Appellee,

                                  v.

               KENDRA D'ANDREA and WILLIE JORDAN,

                        Defendants, Appellants.


                             ERRATA SHEET

     The opinion of this court issued on May 10, 2011, is amended
as follows:

     On page 9, lines 1-4, replace the first sentence of this
paragraph with the following sentence: "For the purpose of
defending this appeal only, the government does not dispute that
defendants had a subjective expectation of privacy in their
password-protected online account and that this expectation of
privacy was, at least initially, reasonable."

     On page 15, lines 7-8, replace the words "that the government
expect its search to reveal" with the words "a virtual certainty
that the government's search will reveal".

     On page 15, at line 17, replace the sentence immediately
following the citation to Arizona v. Hicks, 480 U.S. 321, 328
(1987), with the following sentence: "To comply with this
limitation, the evidentiary hearing should explore whether, at the
time the DSS agents accessed the website, the Tipster's information
would have left a reasonable agent virtually certain that the
website was used to house child pornography, and not some other
significant data." At the conclusion of this sentence, insert a
footnote symbol "12". The footnote should read as follows:

     "To be clear, the question is not whether the particular
     agents involved expected, to a virtual certainty, to find
     nothing of significance except for contraband in the
     online account.     If Jacobsen's "virtual certainty"
     standard is to be reconciled with the Supreme Court's
     insistence that governmental action is "reasonable" under
     the Fourth Amendment, regardless of the individual
     officer's state of mind, so long as the objective
     circumstances justify the action, e.g., Brigham City v.
     Stuart, 547 U.S. 398, 403-04 (2006), the inquiry can only
     be whether, under the circumstances, a reasonable agent
     would have been virtually certain that the search would
     reveal nothing of significance other than contraband.
     Cf. Illinois v. Andreas, 463 U.S. 765, 782 (1983)
     (Stevens, J., concurring) (pointing to "the unique
     character" of the container and "other circumstantial
     evidence" as indicative of whether there was "'virtual
     certainty' that police would find contraband inside an
     unusual container that they had lawfully seized")."

The subsequent footnotes in the opinion should be renumbered
accordingly.

     On page 19, lines 7-9, replace the first sentence of this
paragraph with the following sentence: "Moreover, no other exigency
can support an affirmance on this appeal because we cannot say with
certainty, based on the record as it currently stands, that the
Tipster's uncorroborated call provided probable cause that a crime
was committed."

     On page 20, lines 4-9, delete the following citation: "United
States v. Martins, 413 F.3d 139, 147 (1st Cir. 2005) ("To rely upon
the [emergency aid] doctrine, the government must show a reasonable
basis, approximating probable cause, both for the officers' belief
that an emergency exists and for linking the perceived emergency
with the area or place into which they propose to intrude.")
(emphasis added)." Change the semicolon immediately preceding this
citation to a period.
