A ‘conservative’ Sotomayor opinion (from spinoff link above)

In United States v. Falso, 544 F.3d 110 (2008), Judge Sotomayor, joined by Judge Livingston, rejected a defendant’s plea to overturn his conviction based on a Fourth Amendment violation. The defendant was arrested for possession of child pornography after FBI agents searched his home with a warrant. The warrant application stated that an agent had purchased a subscription to a website advertising available child porn and that in light of a subsequent forensic examination of the site “it appeared” that the defendant “either gained access or attempted to gain access” to the website as well. In addition, the affidavit revealed that the defendant had previously been arrested in 1987 on charges of sexually abusing a seven-year-old girl and pled guilty to a misdemeanor charge of “acting in a manner injurious to a child less than sixteen” for which he received probation. Writing for the majority, Judge Sotomayor held that this failed to establish probable cause for the search warrant. However, she held that the constitutional violation did not warrant exclusion of the evidence because the officers acted in good faith reliance on the wrongly-issued warrant. She further rejected the defendant’s reliance on an exception to the exception: she concluded that there was insufficient evidence to show that the issuing magistrate was knowingly or recklessly mislead. And she rejected the claim that the warrant application was so facially lacking in indicia of probable cause as to make reliance upon it unreasonable. Judge Livingston concurred in part and in the judgment, but would have ruled that the police had probable cause.