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Federal Judge Excludes Evidence After FBI Lies on Search Warrant Affidavit, Geek Squad on FBI payroll

by Matt Clarke

The federal child pornography case against a California doctor was dismissed after the judge excluded all the evidence seized from his home because an FBI agent lied on the affidavit supporting the search warrant for his home, falsely claiming technicians working on the doctor’s computer had discovered child pornography.

Oncologist Dr. Mark Rettenmaier brought a computer to the Geek Squad at Best Buy for repair. It was sent to the company’s central repair facility in Kentucky. There, technicians discovered a photo of a naked girl in the unallocated space of the computer’s hard drive. The photo did not depict a sex act or show the approximately 9-year-old girl’s genitalia. The technicians had an agreement with the FBI office in Louisville in which they were paid each time they tipped the FBI to child pornography on computers they repaired, so they reported the photo.

FBI Special Agent Cynthia Kayle prepared an affidavit for a search warrant of Rettenmaier’s home falsely stating that the image found was child pornography, and not mentioning that it was found in the unallocated space or that the FBI paid the Geek Squad technicians who reported it. Unallocated space is where portions of deleted files remain until the computer overwrites them, and images within the area are often missing information such as when it was created, accessed, or deleted. Courts have ruled that such images alone are not proof of possession by the computer’s owner. Further, the image was “child erotica,” not child pornography. Possessing child erotica is not illegal.

The search warrant was issued and hundreds of child pornography images were discovered on Rettenmaier’s iPhone.

Rettenmaier’s attorney, James D. Riddet, discovered payments of about $500 to some technicians described as “confidential human sources” in FBI internal records. He raised the issue of whether the technicians were de facto employees of the FBI requiring a search warrant.

U.S. District Judge Cormac J. Carney rejected the idea that Rettenmaier had any expectation of privacy in a computer turned over to technicians to recover data. However, he ruled that the search was illegal because he would not have authorized the search warrant had the FBI told the truth—that there was a single image of child erotica found in the computer’s unallocated space.

“One image of child erotica is simply not sufficient to search Dr. Rittenmaier’s entire home, the place where the protective force of the Fourth Amendment is the most powerful,” said Judge Carney in ruling the seized evidence inadmissible.

Federal prosecutors filed a notice of appeal, but missed the filing deadline for their brief. With insufficient remaining evidence, they filed a motion to dismiss the case, which was granted.

The broader unresolved issue is whether Geek Squad technicians, against the wishes of Best Buy, are acting as de facto agents of the FBI in light of the bounty paid to them when they alert the bureau to questionable material discovered on a client’s computer. Privacy advocates warn that such an arrangement has the potential of encouraging Geek Squad technicians to snoop around in computers beyond what is necessary to repair them. If that’s in fact what some technicians are doing with the intent to find evidence of criminal activity, then the arrangement is inappropriately bypassing the Fourth Amendment. 



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