Opinion
FBTCR150287868T
04-05-2017
State of Connecticut v. Kenneth Raftery
Filed April 6, 2017
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE DEFENDANT'S AMENDED MOTION TO SUPPRESS EVIDENCE
ROBERT J. DEVLIN, JR., JUDGE.
In the captioned case, the defendant, Kenneth Raftery, is charged with possession of child pornography in the first degree in violation of General Statutes § 53a-196d and voyeurism in violation of General Statutes § 53a-189a(a)(2). In the present motion, the defendant seeks suppression of evidence obtained from his home by the Monroe police department pursuant to the execution of a search warrant dated October 27, 2015. The defendant further moves for suppression of evidence seized pursuant to a second search warrant dated November 24, 2015 as derivative of the October 27, 2015 warrant. The defendant asserts that the October 27, 2015 warrant was not supported by probable cause because of the staleness of the facts in the supporting affidavit. The state objects to the motion asserting that there was probable cause to believe that evidence of child pornography would be found at the defendant's home on October 27, 2015. The state also asserts that exceptions to the exclusionary rule should apply to prevent suppression of the evidence.
A hearing on the motion was held on March 23, 2017. For the reasons set forth below, the amended motion to suppress is denied.
BACKGROUND
The affidavit in support of the October 27, 2015 search warrant can be divided into four areas, namely: (1) Monroe Police Department contact with the defendant on November 16, 2011, (2) email exchange with a person in Seattle, Washington who was a target in a child pornography investigation conducted by the United States Postal Inspection Services, (3) Monroe Police Department contact with the defendant on October 17, 2015 and (4) the affiants' training and experience regarding the retention habits of persons who possess and trade in child pornography.
Police Contact--November 16, 2011
On November 16, 2011 at 10:38 p.m., Officer Christopher Silkman responded to Stonecroft Way, Monroe, Connecticut on a report of a suspicious vehicle. He found a vehicle occupied by one male idling in front of the defendant's house. The male identified himself as David Estrada and told the officer that he and his friend were at 8 Stonecroft Way fixing a computer. Officer Silkman then knocked on the door of 8 Stonecroft Way and the defendant answered the door. The defendant was wearing a bathrobe and said that he had someone upstairs fixing his computer. When the officer asked if he could go upstairs to talk to this person, the defendant said no and stood in the doorway. When asked if there was someone else the officer could speak to, the defendant told the officer that his wife and kids were away. The defendant then called for the person in the bedroom to come downstairs and a young looking Hispanic male came downstairs. He identified himself as Elliot Velazques but had no identification. Based on the date of birth he gave to the police, he was twenty years old. No police action was taken.
Seattle Investigation
At some point after this November 16, 2011 incident, Monroe police Detective Michael Chaves was contacted by a postal inspector concerning a child pornography investigation in Seattle that had a connection to Monroe, Connecticut. Their investigation revealed contact between the Seattle target and the email address sethihere4u@hotmail.com. An initial email dated September 5, 2012 from sethihere4u@hotmail.com was sent to the Seattle target asking for a password to " . . . for the lost boardies user with gifs of the boys" on Imgsrc.ru. Imgsrc.ru is a Russian website well known to contain child pornography. Once the password was received, sethihere4u@hotmail.com said that he would " trade pics/videos if interested."
The Seattle target stated he did not have the password but sent pictures of little boys, well under the age of sixteen. The recipient, sethihere4u@hotmail.com responded: " I am only interested in the boys like the one in the last pic--the one with his clothes on lol! You have pics or preferably videos of boys like that? Thanks." After a few more pictures were sent by the Seattle target, sethihere4u@hotmail.com replied: " Lol--thx but I meant boys like the one with his clothes on as I said--but naked!! Sorry 1 wasn't clear!"
On September 10, 1012, sethihere4u@hotmail.com sent the following email to the Seattle target, " I was more interested in trading videos--high quality with sound--I have those to trade if you have any." Sixty-two files were sent from the Seattle target. Most were young naked boys categorized as child erotica. Four files were suspected child pornography. One of these depicted a young boy being sexually assaulted by having an adult penis inserted into his anus. The three others showed a spread-apart young boy's anus. All four photos were of boys under the age of sixteen.
On March 26, 2016, pursuant to a grand jury subpoena, Microsoft disclosed two Internet Protocol (IP) addresses for sethihere4u@hotmail.com. One IP address was linked to Charter communications and the other to Verizon. Further investigation determined that both addresses were issued to the defendant with an address of 8 Stonecroft Way, Monroe, Connecticut.
Police Contact--October 17, 2015
On October 17, 2015, Officer Silkman again responded to 8 Stonecroft Way on a credit card complaint made by the defendant. When the officer met the defendant, he immediately remembered the 2011 incident. The officer asked to see the defendant's AMEX statement. The defendant said that he did not have a paper copy but would look up the statement online. The defendant then turned on his Apple iPad and the screen lit up. Officer Silkman observed multiple prepubescent Hispanic boys. They were photos of young boys from the waist up with a small description under each photo. The officer did not remember if the boys were clothed or not. The defendant quickly pulled the iPad close to him and turned it off.
Affiants' Experience
The affiants for the October 27, 2015 search warrant reported that, based on their training and experience, persons involved in sending or receiving child pornography tend to retain visual depictions for a long time. This is because such images are prized and have economic value. The affiants stated that such images are rarely destroyed and that persons tend to maintain the material indefinitely.
DISCUSSION
The task of reviewing a magistrate's finding of probable cause requires the reviewing court to " view the information in the affidavit in the light most favorable to upholding the magistrate's determination of probable cause . . ." State v. Bova, 240 Conn. 210, 232, 690 A.2d 1370 (1997). " Probable cause to search exists if: (1) there is probable cause to believe that particular items sought to be seized are connected with criminal activity or will assist a particular apprehension or conviction . . . and (2) there is probable cause to believe that the items sought to be seized will be found in the place to be searched." State v. Shields, 308 Conn. 678, 689, 69 A.3d 293 (2013). Probable cause is measured by " the factual and practical considerations of everyday life." Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). Probable cause is determined based on the totality of circumstances viewed in a common sense and practical manner. State v. Montgomery, 254 Conn. 694, 704, 759 A.2d 995 (2000).
The defendant asserts that the October 27, 2015 search warrant lacked probable cause for essentially two reasons. First, that the observations of Officer Silkman on November 16, 2011 and October 17, 2015 are irrelevant to a determination of probable cause. Second, that the information that the defendant received child pornography on his computer in September 2012 had gone stale by the time of the issuance of the warrant on October 2015.
While " it is reasonable to infer that probable cause dwindles as time passes, no single rule can be applied to determine when information has become too old to be reliable . . . Consequently, whether a reasonable likelihood exists that evidence identified in a warrant affidavit will be found on the subject premises is a determination that must be made on a case-by-case basis." State v. Bova, supra, 240 Conn. 232-33.
In support of his motion to suppress, the defendant principally relies on the Second Circuit case of United States v. Raymonda, 780 F.3d 105 (2nd Cir. 2015). In Raymonda, the court drew a clear distinction between persons who are collectors of child pornography and those persons who might have simply stumbled upon a site. Id., 115. As to collectors, the court stated: " Because it is well known that images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes, evidence that such persons possessed child pornography in the past supports a reasonable inference that they retained those images--or have obtained new ones--in the present." Id., 114. Raymonda, however, involved a single instance of access to images of child pornography that were mostly thumbnail links. There was no evidence that the user clicked on the thumbnails to view the full-sized files and the entire observation lasted only seventeen seconds. The court observed: " Far from suggesting a knowing and intentional search for child pornography, in short, the information in [the] affidavit was at least equally consistent with an innocent user inadvertently stumbling upon a child pornography website, being horrified at what he saw, and promptly closing the window." Id., 117. The court concluded: " Under those circumstances, absent any indicia that the suspect was a collector of child pornography and likely to hoard pornographic files, we hold that a single incident of access does not create a fair probability that child pornography was still to be found on a suspect's computer months after all temporary traces of that incident have likely cleared." Id.
The state asserts that, unlike Raymonda, the affidavit in the present case provided ample facts upon which the magistrate could have found that the defendant was a " collector" of child pornography. The state cites to a series of cases rejecting staleness claims along with Professor LaFave who collects cases suggesting child pornography possesses such value to a defendant such that it is retained. See LaFave, 2 Search & Seizure § 3.7(a) n.44.
The facts in the affidavit that are central to the issue of probable cause are those concerning the 2012 email exchanges with the Seattle target who was known to trade child pornography. In the first exchange, the person using the email address later linked to the defendant is seeking a password to a Russian website well known to contain child pornography and stated that he would trade pictures and videos if interested. In the September 10, 2012 email exchange, the defendant writes " I was more interested in trading videos high quality with sound--I have those to trade if you have any." In response, the Seattle target sends sixty-two files to the defendant's email address. Most are child erotica but four are clearly graphic child pornography.
These facts strongly suggest that the defendant is a collector of child pornography likely to hoard files for indefinite time periods. As to the contacts between Officer Silkman and the defendant, this court agrees with the defense that the November 16, 2011 contact, while odd, does not support probable cause that child pornography would be found at the defendant's house. The contact on October 17, 2015 (ten days before the issuance of the search warrant), however, is relevant. While not criminal in and of itself, the fact that the defendant (who was forty-four years old at the time) had multiple photos of prepubescent boys on his iPad screen is relevant to the defendant's predilection for young boys.
In sum, the 2012 emails demonstrate the defendant to be an active collector and trader of child pornography. It is true that he was not linked to the email address involved with the Seattle target until June of 2015. That, however, does not diminish the likelihood that he was an ongoing continuous possessor of child pornography. Moreover, the encounter with the police ten days before the search warrant only reinforces the probability that child pornography would be on the defendant's computer.
The amended motion to suppress is denied.
So Ordered.