Opinion
CRIMINAL NO. 03-0107 (DRD)
January 15, 2004
REPORT AND RECOMMENDATION
Defendant in this case has filed for suppression of the evidence related to charges of child pornography on grounds that the search warrant issued by this Magistrate lacks probable cause since no actual reproduction or images of the alleged child pornography were examined. The Court has referred the matter for additional consideration pursuant to United States v. Brunette, 256 F.3d 14 (1st Cir. 2001), wherein a search warrant issued on the basis of a Customs Service Officer's bare legal assertion in a search warrant affidavit that he had observed child pornography and without the judicial officer making an independent review of the images was found lacking probable cause.
If nothing else would differentiate Brunette from the instant case is that in the former the warrant was vacated since "the district court excused the absence of descriptive evidence by relying on . . . [the] Agent . . . representation that the images were pornographic, finding that his training and experience qualified him to determine they met the statutory definition."
However, a perusal of the affidavit submitted in support of the search warrant herein indicates that Detective Nelson, who had accessed in an undercover capacity the sites from which defendant was identified as a subscriber, found "hard core child pornography (i.e. Oral, Anal, and Ejaculation scenes). These images were of pre-pubescent males and females either lascivious poses exhibiting the genitals or in sexual contact with other children and/or adults." Affidavit, item 20. Additionally, "each of these sites contained images and video movies of pre-pubescent and minor males and females engaged in sexually explicit conduct including lascivious exhibition of genitals and sexual contact." Id. at 22. The investigation also revealed, either through review of the sites accessed or through actual undercover membership purchased, "well over 100 postings containing blatant requests for child pornography, trading passwords to access child pornographic sites, and individuals seeking actual physical sexual contact with minors." Id. at 23. The relying undercover officer provided information that he had observed "an image of a young pre-pubescent female performing oral sex on a young pre-pubescent male." Affidavit, item 19.
Another internet service which provided for adult pornography described in the affidavit contained links to child pornography sites with "banners" that depicted "images of males and females, obviously under the age of eighteen, in sexual acts, such as Oral, Anal, Ejaculation, and Masturbation, and lascivious exhibition of the genitals." Id. at 27.
After having obtained a list of individuals in Puerto Rico, including their e-mail addresses, mailing addresses, credit card numbers, sites ordered, price and dates the sites were ordered on, along with the IP addresses, these were identified as having had access to the child porn. The verified information showed that an individual named Emmanuel Morales Aldahondo had accessed on seven different occasions and had bought time on the sites with his credit card of those sites previously identified by the undercover/investigative agent with the above described child porn images. After verifying his physical address and whereabouts, and having a physical description of the person being sought, a surveillance was conducted at the residence and the agents were able to ascertain that he was residing at the address that was later object of the search warrant.
Pursuant to the agent affiant's training and experience, a person who possesses child pornography may conceal images through videotapes that bear titles not indicative of the true content of the images or that have been mislabeled. As such, the content of the videotapes is necessary. Also, a person who actively uses a computer to purchase or receive child pornography is very likely to seek or trade child pornography by computer and to retain such images or related correspondence on his personal computer, disk, or some other form of computer data storage maintained nearby his computer.
On the basis of above, sworn information and the definitions in the corresponding statute dealing with minors, as any person under the age of eighteen years old; sexually explicit conduct as actual or simulated sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral anal, whether between persons of the same or opposite sex; masturbation and lascivious exhibition of the genitals or pubic area of any person, 18 U.S.C. § 2256(2), this Magistrate found, and reinstates that given all the circumstances in the affidavit there was probable cause to issue the warrant requested. Probable cause does not require proof beyond a reasonable doubt but a showing of probability of criminal activity.
Furthermore, the use of the internet at interstate, as well, as international level, with the ensuing ramifications of the world wide web and new technologies that were never imagined by our Founding Fathers under the Constitution nor the Fourth Amendment, and particularly as to child pornography, do not easily contemplate the grounds for a probable cause determination be constricted to an almost certainty of criminal activity as one depicted solely as a hardcopy of child pornography. See United States v. Upham, 168 F.3d 532, 535-36 (1st Cir. 1999) (warrant authorizing seizure of all computer software, hardware, disks, and disk drives from defendant suspected of child pornography offenses sufficiently particular, even though it did not restrict items to be seized to items related to suspected crimes because computer equipment instrumental); United States v. Dornhofer, 859 F.2d 1195, 1198 (4th Cir. 1988) (warrant authorizing search for child pornography materials sufficiently particular because warrant authorized seizure of materials depicting minors engaged in sexually explicit conduct as defined by statute). Search warrant was supported by probable cause upon evidence that internet address from which child pornography had been transmitted was registered to defendant, and of defendant's home address, provided sufficient nexus between defendant and transmission on grounds that the agent's affidavit that images depicted sexually explicit conduct involving children under the age of 16, even when there was no dispute that the magistrate did not view the images. U.S. v. Chrobak 289 F.3d 1043 (8th Cir. 2002).
Likewise, in United States v. Lacy, 119 F.3d 742, 746-47 (9th Cir. 1997) (warrant authorizing seizure of entire computer system sufficiently particular because more precise description of where child pornography images stored (hard drive or floppy disk) not possible), the Court upheld the validity of a search warrant even though it was supported by ten-month-old information, based on an "expert" agents' explanation that those who collect and distribute child pornography "rarely if ever" expunge sexually explicit material, securely storing it for a long time, usually in their own homes. See also United States v. Kimbrough, 69 F.3d 723, 727 (5th Cir. 1995) (warrants authorizing search for materials related to child pornography sufficiently particular because language in warrants properly limited executing officers' discretion by informing them of items to be seized); Guest v. Leis, 255 F.3d 325, 342 (6th Cir. 2001) (warrant authorizing seizure of computer sufficiently particular because of practical difficulty of distinguishing obscene from non-obscene material); United States v. Hall 142 F.3d 988, 996-97 (7th Cir. 1998) (warrant authorizing search of suspect's home and computer sufficiently particular because warrant emphasized that items sought were related to child pornography); United States v. Koelling, 992 F.2d 817, 821-22 (8th Cir. 1993) (warrant authorizing search for child pornography materials sufficiently particular because warrant authorized seizure of materials depicting minors engaging in sexually explicit conduct described in statute, and chances low that any materials depicting child pornography protected by 1st Amendment); United States v. Hay, 231 F.3d 630, 636-38 (9th Cir. 2000) (warrant for search of computer and related materials for child pornography sufficiently particular because "no more specific description of the computer equipment sought was possible"); United States v. Campos, 221 F.3d 1143, 1147 (10th Cir. 2000) (warrant authorizing search of residence for child pornography sufficiently particular even though only 2 known images of child pornography on computer).
For probable cause determination the standard of review is namely, whether there is a "fair probability" that evidence of a crime will be found in the particular place to be searched. New York v. P.J. Video. Inc., 475 U.S. 868, 106 S.Ct. 1610 (1986); Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317 (1983). It is this Magistrate's opinion that this threshold has been met since the affidavit in support was not merely a conclusory allegation but a graphic description with sufficient facts of the content of the images well within the statutory definition of child pornography.
In the alternative that the Court would find that probable cause was not warranted, the suppression of the evidence obtained is not the appropriate relief as governed by the good-faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984), absent evidence that the issuing judge did not remain neutral and detached when making his probable cause determination. 18 U.S.C.A. §§ 2251(a), 2252(a)(4). See United States v. Terry, 305 F.3d 818 (8th Cir. 2002) wherein the search of a defendant's trailer home which revealed evidence of child pornography was sustained on similar grounds.
Under the good faith exception of United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405 (1984), the Supreme Court held that evidence obtained pursuant to a subsequently invalidated search warrant need not be excluded from the prosecution's case in chief if the executing officers acted in objectively reasonable reliance on the issuing court's determination of probable cause and technical sufficiency. Id. at 922-23, 104 S.Ct. 3405. "[A]bsent allegations that the [issuing judge] was not neutral, `suppression is appropriate only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.'"United States v. Fulgham, 143 F.3d 399, 401 (8th Cir. 1998) (quotingLeón, 468 U.S. at 926, 104 S.Ct. 3405).
Defendant has submitted additional grounds for suppression in that the affidavit in support of the search warrant made reference only to defendant's brother, Emmanuel Morales Aldahondo, who was initially charged and dismissed on grounds of mental capacity. The nexus as to the home where the items related to computer use for child pornography were seized was duly established by the prior investigation and surveillance of the premises before execution of same, which happened to be the same residence where this defendant Joseph Morales Aldahondo resided. With regard to the "nexus" element, the task of a magistrate in determining whether probable cause exists is "to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317 (1983). In order to establish probable cause, the facts presented to the magistrate need only "warrant a man of reasonable caution" to believe that evidence of a crime will be found. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535 (1983) (plurality opinion). The probable cause standard "does not demand showing that such a belief be correct or more likely true than false." Id. See United States v. Feliz, 182 F.3d 82, 86 (1st Cir. 1999). The affidavit contains sufficient information as to how computers are used to transmit and collect child pornography, enhancing the probability that such pornography would be recovered by searching the defendant's residence and his computer equipment.
Defendant has not requested a hearing on his motion to suppress nor same is deemed necessary; there being no showing to warrant such a hearing. The government's reply was filed on December 18, 2003, and although the Court referred this matter on December 24, 2003, it was received by this Magistrate on January 8, 2004 (D.E. #37, 43, 44). Hence, compliance with the Speedy Trial Act provisions requires a prompt disposition as to those relevant claims raised. United States v. Scott, 270 F.3d 30, 55 (1st Cir. 2001) (Once the motion is under advisement, the court has up to 30 excludable days to decide it.)
Having entered the property with what is considered a valid search warrant, the agents properly seized the three computers therein with the media storage. Whether the charges against this defendant were filed after a month bears no relevance to the validity of the agents' search under the warrant as above discussed. Neither Fed.R.Crim.P. 41 nor the Fourth Amendment creates any specific time limits for the government's examination of forensic evidence.
Defendant has also claimed that the affiant had no knowledge as to the identification of the address with the name of the sites accessed as to child pornography and there were no grounds to take the computer at the time of the search that was thereafter found to belong to this defendant. Agents need not be clairvoyant in their knowledge of the precise forms of evidence or contraband that will exist in the location where a valid search is to be executed. The evidence of a particular internet and account address (IP) associated with then defendant Emmanuel Morales Aldahondo, together with other evidence, such as identification of said defendant with the premises, provides probable cause to search such residence. United States v. Grant, 218 F.3d 72, 76 (1st Cir. 2000). Furthermore, the affidavit also provided an adequate explanation of the search strategy that requires removal of the computer and media for proper examination and recovery of the evidence it contains. When a search is conducted in a residence, which holds a higher expectation of privacy, an off-site examination of the evidence fosters privacy concerns more efficiently since agents should not be reasonably expected to spend more than a few hours searching for materials on-site nor should risk damaging the evidence because of time constrictions.
As to defendant's claim that the affiant lacked particular knowledge, the details of the investigation made by the Dallas TX Police Nelson and U.S. Postal Inspector Adams, was provided to other participating law enforcement officials, including the affiant. Law enforcement agents may rely on information provided by others. Probable cause exists if, at the time of the arrest, the collective knowledge of the officers involved was "sufficient to warrant a prudent person in believing that the defendant had committed or was committing an offense." United States v. Cleveland, 106 F.3d 1056, 1060 (1st Cir. 1997); United States v. Link, 238 F.3d 106, 109 (1st Cir. 2001). The existence of probable cause must be determined in light of the information known to the police at the time of the arrest. Maryland v. Garrison, 480 U.S. 79, 85, 107 S.Ct. 1013, 1017 (1987). "`[T]he existence of probable cause is to be evaluated on the basis of the collective information of the law enforcement officers engaged in a particular investigation.'" United States v. Curry, 751 F.2d 442, 446 (1st Cir. 1984), cert. denied sub nom., Silvestri v. United States, 487 U.S. 1233, 108 S.Ct. 2897 (1988). See also United States v. Paradis, 802 F.2d 553, 557 (1st Cir. 1986).
Insofar as the claim by defendant that agents should not have seized the computers located at the residence object of the search warrant, these computers themselves are considered the instrumentality of the crime, not only a storage device for child pornography under Fed.R.Crim.P. 41(b)(3). Courts have been clear that, in the case of child pornography, a warrant allowing seizure of a computer and all its associated printing, storage, and viewing devices is constitutional. The computer, applications, and various storage devices not only may contain evidence of distribution of child pornography, but are also the instrumentalities of the crime. See Davis v. Gracey, 111 F.3d 1472, 1480 (10th Cir. 1997) (upholding seizure of computer and all files contained therein because probable cause supported seizure of computer as an instrumentality of the crime of distribution of obscene materials);United States v. Kimbrough, 69 F.3d 723, 727 (5th Cir. 1995) (upholding warrant allowing seizure of "hardware, computer disks, disk drives, monitors, computer printers, modems, tape drives, disk application programs, data disks, system disk operating systems, magnetic media-floppy disks, CD ROMs, tape systems and hard drive, other computer related operational equipment . . . used to visually depict a minor engaging in sexually explicit conduct"); United States v. Lacy, supra, 119 F.2d at 745 (allowing seizure of entire computer system, hardware, and software, because "the affidavit in this case established probable cause to believe Lacy's entire computer system was "likely to evidence criminal activity"). United States v. Sassani, 139 F.3d 895 (4th Cir. 1998). See also 40 Am. Crim. L. Rev. 285, Robert Ditzion, Elizabeth Geddes, Mary Rhodes Computer Crimes (Spring 2003); 30 Am. J. Crim. L. 107, Carla Rhoden, Note, Challenging Searches and Seizures of Computers at Home or in the Office: from a Reasonable Expectation of Privacy to Fruit of the Poisonous Tree and Beyond (Fall 2002).
Consonant with the above discussed, after an examination of the totality of the circumstances surrounding the affidavit and the investigation therein depicted, the motion to suppress SHOULD BE DENIED.
IT IS SO RECOMMENDED.
The parties have ten (10) days to file any objections to this report and recommendation. Failure to file same within the specified time waives the right to appeal this order. Henley Drilling Co. v. McGee, 36 F.3d 143, 150-151 (1st Cir. 1994); United States v. Valencia, 792 F.2d 4 (1st Cir. 1986). See Paterson-Leitch Co. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 991 (1st Cir. 1988) ("Systemic efficiencies would be frustrated and the magistrate's role reduced to that a mere dress rehearser if a party were allowed to feint and weave at the initial hearing, and save its knockout punch for the second round").