UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-10266

Plaintiff-Appellee, D.C. No. 2:21-cr-00192- v. SMB-1 AARON GORDON HOLMES, Jr., AKA Aaron Gordon Holmes, OPINION

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Susan M. Brnovich, District Judge, Presiding

Argued and Submitted December 5, 2023 San Francisco, California

Filed November 13, 2024 Before: Daniel P. Collins, Danielle J. Forrest, and Jennifer Sung, Circuit Judges.

Opinion by Judge Forrest; Dissent by Judge Collins 2 USA V. HOLMES

SUMMARY *

Criminal Law

Holding: The panel reversed the district court’s denial of Aaron Holmes’s motion to suppress statements he made to law enforcement and images found on his cellphone, and remanded for further proceedings, in a case concerning a child-pornography investigation of two CyberTipline Reports that the National Center for Missing and Exploited Children (NCMEC) forwarded to the Federal Bureau of Investigation. Investigating one of the tips, Special Agent Emily Steele viewed two images that NCMEC received from Facebook without a warrant. One of the images matched the digital identification of an image that was previously reported to NCMEC as depicting child exploitation. Viewing the images led Agent Steele to, among other things, obtain a search warrant for Holmes’s residence. Holmes was present during the search, he made incriminating statements to law enforcement, and numerous illicit images were found on his cellphone. In his suppression motion, Holmes argued that this evidence was obtained because Agent Steele unlawfully viewed the Facebook images. The Government did not dispute that Agent Steele unlawfully viewed these images, but argued that suppression is unwarranted because two exceptions to the Fourth Amendment’s warrant requirement apply: officer good faith and inevitable discovery.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. HOLMES 3

The Government argued that suppression was unwarranted because Agent Steele relied in good faith on then-existing precedent when she opened and viewed the image files in the Facebook tip without a warrant. The panel held that the good-faith exception does not apply because the binding appellate precedent that existed when Agent Steele conducted her investigation was contradictory and only plausibly supported her warrantless viewing of the images received from Facebook. The panel likewise rejected the Government’s argument that the inevitable-discovery exception applies. The Government forfeited its arguments (1) that Agent Steele would have sought a warrant for Holmes’s Facebook account even if she had not unlawfully viewed the Facebook images, and (2) that even if the reference to the unlawfully viewed Facebook images was excised from Agent Steele’s affidavit seeking a warrant to search Holmes’s Facebook account, the remaining information that she provided established probable cause to justify the warrant. As to the Government’s preserved argument that Special Agent Candace Rose would have separately and lawfully obtained the same evidence through her parallel investigation of one of the tips, the panel concluded (1) whether Agent Rose would have obtained a warrant to search Holmes’s residence requires impermissible speculation, and (2) even if Agent Rose inevitably would have obtained a search warrant for Holmes’s residence, the Government failed to show that the evidence obtained by