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Flipping the script for a minute, would an AUSA say it was “wild speculation” that a man was a drug dealer when phone records showed he regularly contacted a distributor, he was listed as a drug dealer in a special book of drug dealers, and he had received $500.00 for drugs? Brown, but once you start getting paid for something, it’s tough to argue you’re just doing it for the love of the game.[I]n Rettenmaier's case, the alleged "Jenny" image was found on unallocated "trash" space, meaning it could only be retrieved by "carving" with costly, highly sophisticated forensics tools.
In other words, it's arguable a computer's owner wouldn't know of its existence.
(For example, malware can secretly implant files.) Worse for the FBI, a federal appellate court unequivocally declared in February 2011 (USA v.
Andrew Flyer) that pictures found on unallocated space did not constitute knowing possession because it is impossible to determine when, why or who downloaded them.
That's not permissible and even the FBI's belief that going after the "worst of worst" isn't going to be enough to salvage these warrantless searches.