Opinion
No. 2:04CR00182TC.
November 8, 2004
ORDER
The Grand Jury indicted the Defendant, Mr. Garne O. Healey, for the knowing receipt of child pornography in violation of 18 U.S.C. § 2252Aa(a)(2)(A). Mr. Healey has moved to suppress images of child pornography found on his computer during a search conducted pursuant to a warrant. Mr. Healey contends that the police violated his Fourth Amendment rights against unreasonable search and seizure because the search warrant did not particularly describe the items to be seized.
For the reasons set forth below, Mr. Healey's motion is GRANTED.
Findings of Fact
I. The Initial Encounter.
On October 11, 2003, the Dallas, Texas Police Department notified the Utah Internet Crimes Against Children Task Force ("ICAC") that Mr. Healey's credit card was used to purchase access to an internet website that contained child pornography. On October 22, 2003, ICAC agents came to Mr. Healey's home and asked him about this information from the Dallas Police Department. Mr. Healey admitted that he had visited child pornography websites three years ago. He gave the agents permission to search his computer for child pornography.
The agents quickly searched Mr. Healey's computer and found several pictures or "banners" of pre-teen nude females and several child pornography movie files. Mr. Healey admitted to the agents that he downloaded a movie called "baby j helps" earlier that day. The agents then seized the computer for a full forensic examination to be performed at a later date.
II. The Warrant.
Two days later, on October 24, 2003, Agent Nicole Cook completed an affidavit in support of an application for a search warrant for Mr. Healey's computer. The affidavit recited the details of the agents' initial contact with the Dallas Police Department as well as their contact with Mr. Healey and his computer while at his residence two days earlier. (July 13, 2004 Evidentiary Hearing on the Motion to Suppress [hereinafter "Ev. Hrg."], Exhibit B, Cook Aff. at ¶¶ 3-6.) On October 24, 2003, a state court judge issued a warrant for the search of the computer, which was then in the custody of the ICAC agents. (Ev. Hrg., Exhibit A, Warrant at 1.) On the warrant, the items to be searched are described as "One Sony VAIO, Digital Studio computer, Model # PCV-E302DS." (Id.) The search apparently took place on February 18, 2004. (Def.'s Mot. to Suppress at 1 (search warrant "executed on February 18, 2004, by Detective Jason Snow and Agent Roger Call, Computer Analysis Response Team, F.B.I.").) Mr. Healey seeks to suppress all evidence found during this search of his computer.
Conclusions of Law
I. Consent
The government first argues that the initial consent given by Mr. Healey, at his home, authorized the search of his computer after the agents took it from his home. Mr. Healey responds that his consent to search the computer was limited in scope to the search conducted at his house, and that he did grant his consent to the agents to seize his computer, take it to police headquarters to conduct another later search.
Consent is an exception to the warrant requirement.Schneckloth v. Bustamonte, 412 U.S. 218, 248-49 (1973) (affirming warrantless search is valid under the Fourth Amendment if consent is given). Consent must be freely and voluntary given, however, and voluntariness is determined based on the totality of the circumstances. Schneckloth, 412 U.S. at 222; United States v. Gutierrez-Hermosillo, 142 F.3d 1225, 1230 (10th Cir. 1998). The government bears the burden of proving valid consent to a warrantless search by a preponderance of the evidence. United States v. Matlock, 415 U.S. 164, 177 n. 14 (1974); United States v. Pena, 143 F.3d 1363, 1366 (10th Cir. 1998). To meet is burden, the government must "present clear and positive testimony that consent was unequivocal and specific and freely and intelligently given." Pena, 143 F.3d at 1366 (internal quotations and citations omitted).
Here, the parties do not dispute that Mr. Healey's consent to the search of his computer on October 22, 2003, while the agents were at his house was freely and voluntarily given, and therefore valid. But the government offered no evidence that Mr. Healey consented to the seizure and second search of his computer, which apparently occurred several months later. In fact, the only evidence in the record on this issue weakens the government's claim. Agent Cook, who was at Mr. Healey's house and asked him for consent to search the computer at his home, did not immediately search the computer once it had been seized and taken to police headquarters. Instead, after Agent Cook brought the computer to ICAC office, she sought a warrant before searching the computer. This indicates that Agent Cook did not believe that Mr. Healey had consented to further search of his computer.
II. The Validity of the Warrant.
Mr. Healey argues that the warrant is invalid on its face because it does not describe the types of files sought under the warrant or the method used during the search. The government argues unconvincingly that the warrant did not authorize a generalized search of Mr. Healey's property. According to the government, the warrant and affidavit, when read together, provided the necessary specificity.
"The Fourth Amendment requires that a search warrant describe the things to be seized with sufficient particularity to prevent a general exploratory rummaging in a person's belongings."United States v. Carey, 172 F.3d 1268, 1272 (10th Cir. 1999). "As to what is to be taken, nothing is left to the discretion of the officer executing the warrant." Marron v. United States, 275 U.S. 192, 196 (1927).
In Carey, while executing a warrant directed at evidence of drug activity, the officers seized two computers on which they thought there would be evidence of drug transactions. The officers then obtained a warrant for the computers to search for "names, telephone numbers, ledger receipts, addresses and other documentary evidence pertaining to the sale and distribution of controlled substances." Carey, 172 F.3d at 1271. While the officers found no evidence of drug activity, they did find child pornography images. Instead of suspending their search, the officers opened many of the images, and copied many more. Id. The court held that after the initial inadvertent discovery of the first image, the officers' continued search transformed the constitutional search for drug activity into an unconstitutional general search. Id. at 1276. The court noted that when officers encounter intermingled documents, they should hold all the documents until the magistrate approves a search method. Id. at 1275. Further, when obtaining a search warrant, the court clarified that the officers must specify "which types of files are sought." Id.; see also United States v. Barbuto, 2001 WL 670930, *5 (D. Utah 2001) ("[T]he agents should have known that the warrant needed to specify what types of files were sought in the searching of the two computers so that personal files would not be searched.").
Here, the warrant provides no details regarding the information or files to be searched. The recent decision in Groh v. Ramirez, 124 S. Ct. 1284, 1289 (2004) is also instructive here. In Groh, the warrant did not describe the items to be seized, but only listed the item to be searched, a house. Groh, 124 S. Ct. at 1290. The Court described the situation in the following manner:
[I]n the space set aside for a description of the items to be seized, the warrant stated that the items consisted of a "single dwelling residence . . . blue in color." In other words, the warrant did not describe the items to be seized at all. In this respect the warrant was so obviously deficient that we must regard the search as "warrantless" within the meaning of our case law.Id. at 1290 (citations omitted). Identically, in the warrant at issue here, the agents merely listed "One Sony VAIO, Digital Studio computer, Model # PCV-E302DS," but "did not describe the items to be seized at all." As the Groh Court stated, "[i]n this respect the warrant was so obviously deficient" that it was invalid.
The government's argument that details given in the affidavit provide the necessary particularity is not persuasive. In Groh, the Supreme Court flatly rejected this same argument — that the supporting documents cannot "save" a facially invalid warrant. Groh, 124 S. Ct. at 1289. In so doing, the Court noted that: "The Fourth Amendment by its terms requires particularity in the warrant, not in the supporting documents." Id.; United States v. Stefonek, 179 F.3d 1030, 1033 (7th Cir. 1999) ("The Fourth Amendment requires that the warrant particularly describe the things to be seized, not the papers presented to the judicial officer . . . asked to issue the warrant."). Although police officers may satisfy the particularity requirement by specifically incorporating by reference the affidavit or warrant application,see United States v. Williamson, 1 F.3d 1134, 1136, n. 1 (10th Cir. 1993), this was not done here.
Mr. Healey also argued that the warrant is invalid because it did not specify the search method. Along with requiring that the items sought be listed with particularity, in the situation where intermingled documents must be searched, i.e. computer searching, the officers must also submit their search methods or criteria to the magistrate for review before the issuance of the warrant. Carey, 172 F.3d at 1275; Barbuto, 2001 WL 670930 at *5. Here, the government failed to present the magistrate with the methods or criteria it would use to isolate the files or file types sought. This failure also violates the particularity requirement of the Fourth Amendment.
ORDER
The court suppresses evidence found on Mr. Healey's computer when it was searched after October 24, 2003, pursuant to the warrant. Accordingly, Mr. Healey's motion to suppress is GRANTED.SO ORDERED.