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concluding detective's "representations that the images were of young children, 'with genitalia exposed,' and 'posed in a sexually explicit manner' provided [the judge] with sufficient information to find that probable cause existed to believe that [defendant's] apartment and computer contained images of child pornography."
Summary of this case from United States v. BarkerOpinion
08 Cr. 361 (PAC).
October 16, 2008
OPINION ORDER
Defendant James Bonczek moves to suppress evidence seized by New York City police officers in relation to his arrest on October 18, 2007, and subsequent indictment for possession and receipt of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(a)(2)(A). Specifically, pursuant to Rule 12(b)(3)(C) of the Federal Rules of Criminal Procedure, Mr. Bonczek seeks to suppress: (1) all evidence seized from his apartment, located at 6 Stuyvesant Oval, Apartment 8H; (2) all evidence seized from the apartment of Sanford Friedman, located at 37 West 12th Street, Apartment 10F; and (3) the statement that Mr. Bonczek made to the police upon his arrest. For the reasons that follow, Mr. Bonczek's motion to suppress evidence seized in his apartment is DENIED. With respect to the statement Mr. Bonczek made when he was arrested in his apartment, the motion to suppress is GRANTED.
The Government states that police found no evidence of contraband at Sanford Friedman's apartment and, thus, the Government will not offer any evidence from this location at trial. The Court therefore bases none of its analysis or decision on the admissibility of the evidence taken from the Friedman apartment.
SUMMARY OF THE FACTS
The facts set forth in this section are taken from Defendant's Memorandum of Law in Support of Motion to Suppress ("Def.'s Mem."), the Declaration of Susan R. Necheles in Support of Defendant's Memorandum of Law ("Necheles Decl."), and the Government's Letter Brief of August 8, 2008 (Govt.'s Br."). For purposes of brevity, the Court will not cite references in this section unless referring to other sources of fact.
Defendant Bonczek lives in Apartment 8H at 6 Stuyvesant Oval in Manhattan. On the evening of October 17, 2007, while Mr. Bonczek was not at home, his downstairs neighbor reported to Stuyvesant Town Security that water was leaking from the ceiling. (See July 9, 2008, Suppression Hearing ("Hearing") Tr. 13:03.) Upon investigation, Security determined the leak was coming from Mr. Bonczek's apartment. Pursuant to normal operating procedures, a Security Supervisor, John Pena, went to Mr. Bonczek's apartment and determined that he was not at home. (Id. 13:12-14). A second Security Supervisor, Gregory Vega, then secured a master key for Mr. Bonczek's apartment and entered with Mr. Pena, a plumber, and a handyman. (Id. 13:23-14:21.)
Gregory Vega is a Sergeant in the public safety department of Peter Cooper Village/Stuyvesant Town Village, the complex where Mr. Bonczek lives, and Mr. Vega is also a Special Patrolman. Special Patrolmen are not members of the New York City Police Department ("NYPD"), but they possess the powers of and are subject to the rules and orders of the Police Department in the same manner as regular police members. While most of the papers in this case refer to Mr. Vega as "Sergeant Vega," the Court will refer to him as Mr. Vega to avoid any confusion with full members of the NYPD.
Once inside the apartment the workers discovered that the shower nozzle was on and that water was spilling out of the bathtub. (Id. 121:17-19.) The plumber turned off the nozzle and left. The handyman stayed behind to clean up the water on the floor of Mr. Bonczek's apartment. (Id. 121:25-122:01-04.) While in the apartment Mr. Vega saw a computer which was showing images on the screen that changed every few seconds, as if programmed on a computer's screen saver. (Id. 16:24; 17:06.) The images were of nude children standing, sitting, and laying in different poses, with the genitalia clearly exposed. Mr. Vega described these images at the suppression hearing both as containing images of multiple children and as multiple images of one child.
Mr. Vega testified that the computer was located in the living room of the apartment, and that to access the flooded bathroom he had to pass through the living room. (See Hearing Tr. 15:15-16:22.)
Mr. Vega described what he saw in the following manner: "It was like images of nude children" (Hearing Tr. 17:01); "[T]here was one image where it was just a young child just standing nude. As the images continued to change, there was images of the child just laying down in different positions" (Id. 17:07-10); "A few images was just of one child. In one of the other images there was more than one child." (Id. 28:16-18); "[T]hey were posed, yeah, in different poses [in a sexually explicit manner]" (Id. 42:10-11); "I can't recall exactly who was in what picture or how many kids. But I know it was different images with the nude child." (Id. 42:16-18.); after re-examination of the photos on cross examination, he described the images as "one child." (Id. 30:05-09.)
Mr. Vega carries a camera as part of his security work, in case he has to keep records of property damage. (Id. 17:15.) He took pictures of the images on the computer and reported what he saw to his supervisor. (Id. 20:08.) On the advice of his supervisor, Mr. Vega went to the local precinct to report what he had seen and show the police the pictures he had taken. (Id. 20:13-16.) The precinct called the NYPD's Field Operation Desk, who in turn called Sergeant Robert Minca of the NYPD's Vice Major Case Unit to handle the investigation (id. 48:22), which had been reported as "child pornography." (Id. 49:08-11.) Sergeant Minca immediately called Detective Sean Ryan (shortly after 10 p.m.) to assist him in the investigation of child pornography by obtaining a search warrant for the computer. (Id. 49:18-51:06.) After getting off the phone with Sergeant Minca, Detective Ryan called the Manhattan District Attorney's night complaint bureau, but he could not get anyone to help him because of the late hour. (Id. 81:03-16.) Detective Ryan says that he made this call in case they found Mr. Vega's story to be a credible complaint and they needed a search warrant. (Id.)
Before going to the apartment Sergeant Minca stopped at the precinct and spoke with Mr. Vega. (Id. 51:17.) Sergeant Minca claims that Mr. Vega showed him the photographs he had taken of Mr. Bonczek's computer and a copy of Mr. Bonczek's lease that purportedly had a provision allowing Stuyvesant Town officers to enter apartments in cases of emergency. (Id. 52:10-15; 53:21-54:03.) Sergeant Minca also claims that he saw a pamphlet that was an advertisement for Mr. Bonczek's services as a child behavior specialist, but he could not recall if Mr. Vega gave it to him at the precinct, at a later time, or even at all. (Id. 53:10-18; 73:03-21.) Mr. Vega, however, claims that he does not recall giving police such a pamphlet. (Id. 43:17-19.) After talking at the precinct, Sergeant Minca and Mr. Vega returned to Mr. Bonczek's apartment. When they arrived the door was open and several Special Patrolmen from Stuyvesant Town were inside. (Id. 54:10-23.) Sergeant Minca and several detectives stayed in the apartment for about an hour waiting for Detective Ryan to arrive. (Id. 56:16-17; 57:22-23.)
Detective Ryan arrived at Mr. Bonczek's apartment at approximately 11:30 p.m. and spoke with Mr. Vega. (Id. 82:08-22.) Detective Ryan testified that Mr. Vega showed him Mr. Bonczek's pamphlet at that time. (Id. 83:04-13.) Detective Ryan did not look at Mr. Vega's camera to see the photos of the computer screen. (Id. 96:21-23.) Sergeant Minca and Detective Ryan stayed at the apartment waiting for Mr. Bonczek to return. (Id. 84:11-15.) Meanwhile, the images on the computer screen continued to flash while Sergeant Minca and Detective Ryan were in the apartment, and both officers saw the pictures. (Id. 74:22-75:01; 92:22-23.)
The following morning Sergeant Minca instructed Detective Ryan to leave the apartment and meet with an Assistant District Attorney ("ADA") to obtain a search warrant. (Id. 58:06-08.) Detective Ryan met with ADA Lawrence Newman sometime after 8:30 a.m. (Id. 105:08-10.) Detective Ryan did not tell ADA Newman that he and other members of the NYPD had been inside Mr. Bonczek's apartment. (Id. 115:21-23.)
Mr. Bonczek returned and entered his apartment at approximately 9 a.m. Detective Minca, who was inside the apartment, asked Mr. Bonczek his name and if he lived there. (Id. 59:14-16.) When Mr. Bonczek answered he was arrested in his apartment and handcuffed. After Mr. Bonczek was arrested, he said to the police, "This won't stick, I can't be prosecuted for my sexual preferences." Following Mr. Bonczek's arrest, Sergeant Minca called Detective Ryan, who was at the ADA's office, to tell him that Mr. Bonczek was in custody. (Id. 61:03-06.)
Sometime that day, Detective Ryan obtained a search warrant from Judge William A. Wetzel. Judge Wetzel is a Court of Claims Judge sitting in a criminal Part of the New York Supreme Court. He is the state equivalent of a Federal District Court Judge.
Detective Ryan's affidavit in support of the search warrant stated that police had probable cause to request a warrant based on Mr. Vega's observations and on the similar observations of an unnamed maintenance worker. It stated that Mr. Vega and the maintenance worker had "observed lewd images of children displayed on Dr. Bonczek's computer. These children appeared to be between the ages of from 2-7 years old, with genitalia exposed, posed in a sexually explicit manner." (See Necheles Decl. Ex. B at 4.) The affidavit also noted that Mr. Vega told police that Mr. Bonczek was a child psychotherapist and that Mr. Vega had provided a brochure advertising Mr. Bonczek's offices at three different locations. The affidavit also stated that Detective Ryan viewed a website titled "Psychology Today" that listed Mr. Bonczek's office addresses and described him as a "Child and Adolescent Psychoanalytic Psychotherapist." Detective Ryan's affidavit did not mention that he had been inside Mr. Bonczek's apartment and had seen the images on the computer, nor did Detective Ryan mention this to Judge Wetzel. (Hearing Tr. 97:16-24.) The affidavit did state that police had arrested Mr. Bonczek that morning when he returned to his apartment and that "[t]he location has been guarded by New York City Police Detectives since [Mr. Vega's] initial report." (See Necheles Decl. Ex. B at 4.)
Based on the factual allegations in the affidavit, Judge Wetzel granted the search warrant authorizing the seizure of: Any images of children engaged in sexual acts or lewd positions; any entries or stored information referencing relations with children; any computer data related to the charges; any tangible or electronic media with images of children engaged in sexual acts or dealing with sexual subject matter; any evidence of ownership or use of the target properties; evidence showing Mr. Bonczek's travel history; and any tangible evidence related to the physical exploitation of children, such as condoms or sexual paraphernalia. The target locations were Mr. Bonczek's apartment and two separate office spaces which were listed on the pamphlet and the website. The NYPD seized Mr. Bonczek's computer hardware, plus tangible items such as condoms, address books, books containing cartoon drawings of sexual activity of children, and books with no images but that describe sexual activity between adults and children.
Following the search of Mr. Bonczek's apartment, NYPD Detective Christopher Callow applied to Judge Wetzel for a warrant to search Mr. Friedman's home. The affidavit in support of this warrant stated that reasonable cause for the search came from the numerous images of child pornography found in the search of Mr. Bonczek's home. Judge Wetzel granted the application and the NYPD seized additional computers from Mr. Friedman's home. Police later determined that those computers contained no child pornography or other contraband.
PROCEDURAL HISTORY
Mr. Bonczek was first indicted on December 12, 2007, by a grand jury in New York County on thirty counts of Possessing a Sexual Performance By a Child, in violation of New York Penal Law § 263.16. The state indictment was subsequently dismissed and Mr. Bonczek was indicted on April 22, 2008, by a federal grand jury for one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), and one count of receiving child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A). Mr. Bonczek moved to suppress on July 1, 2008. This Court held a hearing on the suppression motion on July 9, 2008. Post-hearing submissions were made by the Defendant on September 16, 2008, and by the Government on August 8 and September 23, 2008. The Court held oral argument on October 6, 2008.
DISCUSSION
Mr. Bonczek raises several constitutional claims in his motion for suppression. While he initially challenged the entry of the Stuyvesant Town/Peter Cooper Village security personnel, that argument has been dropped. Mr. Bonczek concedes that these personnel had the right to enter, and he also concedes that Mr. Vega's action in taking photos of the screen saver was not improper. (See October 6, 2008, Oral Argument Tr. ("Oct. 6 Tr.") 13:15-14:08.) Nor does Mr. Bonczek really refute that had the police relied only on what Mr. Vega said to them, and had those statements been supported by photos submitted to the Judge who signed the search warrant, the search warrant might have been valid. (Id. 14:16-21; 30:05-24.) Nonetheless, Mr. Bonczek argues that the NYPD's unauthorized entry into his apartment by Sergeant Minca and Detective Ryan provided the real basis for the search warrant. Thus, he claims that the NYPD violated his Fourth Amendment right to be free from unreasonable searches and seizures when they entered his home without a warrant. Mr. Bonczek also argues that Detective Ryan's affidavit was insufficient to establish probable cause to issue the warrant, and that the warrant was overbroad and permitted seizure of items unrelated to the alleged crime. He additionally urges the Court to suppress the evidence seized from Mr. Friedman's apartment and his own statement to police pursuant to the "fruit of the poisonous tree" doctrine. Finally, Mr. Bonczek argues that his 5th Amendment rights were violated when police failed to inform him of his right to remain silent. The Court addresses Mr. Bonczek's claims in turn.
I. The Pre-Warrant NYPD Entries
It is an axiom of Fourth Amendment law that warrantless searches and seizures are unreasonable unless they fall within one of the delineated exceptions to the warrant requirement. See Payton v. New York, 445 U.S. 573, 587-88 (1980); Kirk v. Louisiana, 536 U.S. 635, 638 (2002) ("As Payton makes plain, police officers need either a warrant or probable cause plus exigent circumstances in order to make a lawful entry into a home."). Payton and its progeny specifically note the importance of protecting the privacy of the home. Payton, 445 U.S. at 589 ("The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual's home.");Wilson v. Layne, 526 U.S. 603, 610 (1999) ("The Fourth Amendment embodies this centuries-old principle of respect for the privacy of the home.").
The warrant requirement is waived, however, where police can show that exigent circumstances existed. Loria v. Gorman, 306 F.3d 1271, 1284 (2d Cir. 2002). One example of an exigent circumstance is where police have a reasonable belief that suspects inside the residence might destroy evidence. See United States v. Schaper, 903 F.2d 891, 894 (2d Cir. 1990). The police's basis for suspecting that evidence is about to be destroyed must be objectively reasonable. See United States v. Miles, 889 F.2d 382, 383 (2d Cir. 1989) ("The existence of sufficiently exigent circumstances turns upon whether in light of all the facts of the particular case there was an urgent need that justif[ies] a warrantless entry into appellant's apartment.") (internal quotations and citations omitted).
The Government concedes that there was no justification for the warrantless entry into Mr. Bonczek's home. (See Govt.'s Br. 9.) Sergeant Minca stated that he wanted to "safeguard" the computer. (Hearing Tr. 55:25.) He stated that he was concerned that if Mr. Bonczek came home and knew that people had been in his apartment "he could easily have erased the pictures flashing on the screen or get rid of the evidence or get rid of the computer." (Id. 56:10-12.). But even if there was a need to prevent erasure, that purpose could have been accomplished without entry by stationing a guard outside the apartment.
When Sergeant Minca returned to Mr. Bonczek's apartment with Mr. Vega, the door to the apartment was open and Sergeant Minca stated that several security officers from Stuyvesant Town were inside. It should have been immediately apparent — before Sergeant Minca entered the apartment — that Mr. Bonczek was not home, or at least that there was no danger of anyone erasing images on the computer. Even if Sergeant Minca's basis for fearing destruction of evidence had been reasonable up to that point, it ceased being reasonable when he could tell that Mr. Bonczek was not at home. Thus, as the Government concedes, no exigent circumstances existed to justify the warrantless entry in Mr. Bonczek's apartment.
II. The Exclusionary Rule and Exceptions
Where police seize evidence pursuant to an unlawful search, the exclusionary rule prohibits the Government from introducing the evidence seized. See Murray v. United States, 487 U.S. 533, 537 (1988). Exclusion of evidence following an improper search is not automatic, however; there are exceptions. See, e.g., Nix v. Williams, 467 U.S. 431, 443 (1984) ("[T]he interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred."). The Government argues that despite the NYPD's unlawful entry, the evidence here should not be suppressed because of the independent source doctrine and the doctrine of inevitable discovery.
a. The Independent Source Doctrine
Under the independent source doctrine, evidence should not be suppressed where police obtain a valid warrant based on information which "came from sources wholly unconnected with the [illegal] entry and was known to the agents well before the initial entry." Segura v. United States, 468 U.S. 796, 814 (1984). The principle of this doctrine is that evidence should not be excluded if the connection between the discovery of the evidence and the illegal police conduct is so attenuated "as to dissipate the taint." Nardone v. United States, 308 U.S. 338, 341 (1939).
In United States v. Johnson, 994 F.2d 980 (2d Cir. 1993), the Second Circuit explained the two-part test that the Government must satisfy to show that the independent source doctrine applies: "(1) [T]he warrant must be supported by probable cause derived from sources independent of the illegal entry; and (2) the decision to seek the warrant may not be prompted by information gleaned from the illegal conduct." 994 F.2d at 987. Additionally, the Government bears the burden of establishing by a preponderance of the evidence that the independent source doctrine applies. Murray, 487 U.S. at 540.
Looking at the first element of the doctrine, the Government has sustained its burden of proof that the warrant was supported by probable cause derived from Mr. Vega's report — not from the NYPD's subsequent entry into Mr. Bonczek's apartment. Detective Ryan's affidavit in support of the warrant stated that information about the alleged pictures of children came from Mr. Vega and a maintenance worker, that Mr. Vega provided a brochure with the address of Mr. Bonczek's offices, and that Detective Ryan personally observed a website advertising Mr. Bonczek's occupation and office addresses. (Necheles Decl. Ex. B at 4-5). Based on this information Judge Wetzel found that there was probable cause to issue the warrant.
Mr. Bonczek urges that Detective Ryan's testimony be rejected as inconsistent and nonsensical. The Court does not accept Detective Ryan's testimony, as a veteran detective who has sworn out more than 100 search warrants in his career (see Hearing Tr. 79:24), that he believed he could legally enter Mr. Bonczek's home to search for evidence without a warrant because the building's security guard gave him permission. (Id. 91:09-16.) Nor does Detective Ryan's failure to tell either ADA Newman or Judge Wetzel that he had personally viewed the photos on the computer inspire confidence. Detective Ryan stated that he did not tell Judge Wetzel this information or put it in his warrant application because he "didn't think it was important." (Id. 99:01). Detective Ryan continued to withhold information concerning the NYPD's illegal entry into Mr. Bonczek's apartment in two different conversations with investigators or attorneys from the United States Attorney's office. (Id. 110:19-22; 112:01-04.)
Detective Ryan's deficiencies on these issues, however, is not outcome determinative. For the first step of the independent source analysis, the Court asks only if the warrant was supported by probable cause derived from sources independent of the illegal entry. Johnson, 994 F.2d at 987. Here, the most important element of the warrant was the assertion that Mr. Vega observed "lewd images" of children, "with genitalia exposed, posed in a sexually explicit manner," displayed on Mr. Bonczek's computer and that he reported this information to the police. (See Necheles Decl. Ex. B at 4.) This is sufficient to establish probable cause for a search warrant. Mr. Vega gave this information to the NYPD before the illegal entry into Mr. Bonczek's apartment. Thus, the key element of the warrant was supported by probable cause that was obtained before, and independent of, the illegal entry. It is irrelevant that Mr. Vega repeated this information to Detective Ryan while the detective was improperly inside Mr. Bonczek's apartment — by that time police already had probable cause obtained through legal means.
Police originally charged Mr. Bonczek with Possessing a Sexual Performance By a Child. A person is guilty of Possessing a Sexual Performance By a Child "when, knowing the character and content thereof, he knowingly has in his possession or control any performance which includes sexual conduct by a child less than sixteen years of age." N.Y. Penal Law § 263.13. "Sexual conduct" is defined as "actual or simulated sexual intercourse, oral sexual conduct, anal sexual conduct, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals. Id. § 263.00(3) (emphasis added).
Mr. Bonczek argues that Detective Ryan's information for the warrant affidavit must have come from his illegal entry and subsequent viewing of the computer images because he refers to images of "children" in the warrant affidavit, while Mr. Vega only claimed to have seen many images of one child. Mr. Vega's testimony at the Suppression Hearing referred to both child and children. See supra footnote 5. Mr. Bonczek does not attack Mr. Vega's credibility, and the Court finds that Detective Ryan was an accurate reporter when he swore that Mr. Vega told him that there were children. A review of the photos taken at the time by Mr. Vega supports the conclusion that there is more than one child — i.e. there are children.
The affidavit for the warrant also mentions the brochure and the "Psychology Today" website with Mr. Bonczek's office addresses. There is disagreement in the testimony of Mr. Vega, Sergeant Minca, and Detective Ryan over whether Mr. Vega gave police the brochure or whether the police saw the brochure only upon entry into Mr. Bonczek's apartment. This discrepancy is also irrelevant to the analysis here. Mr. Vega told the NYPD Mr. Bonczek's apartment address when he first went to the precinct, thus the NYPD knew Mr. Bonczek's home address and had probable cause to get a search warrant, before entering his apartment. Indeed, at the direction of Sergeant Minca, Detective Ryan had already taken preliminary steps to secure a warrant which he knew to be necessary, if he were to seize the computer in Mr. Bonczek's apartment. (Hearing Tr. 49:16-50:20; 81:14-16.) The brochure — and the website — were only relevant for establishing probable cause to search Mr. Bonczek's other offices. Since no evidence was seized from any other location, and the only search was of Apartment 8H at 6 Stuyvesant Oval, the information in the brochure and on the website is not relevant.
The second element of the independent source doctrine is that the decision to seek the warrant may not be prompted by information gleaned from the illegal conduct. The relevant question is whether "the warrant `would have been sought even if what actually happened had not occurred.'" Johnson, 994 F. 2d at 987 (quoting Murray, 487 U.S. at 542 n. 3).
Mr. Bonczek argues that after meeting with Mr. Vega at the precinct, Sergeant Minca did not believe that he had probable cause to obtain a search warrant and that the subsequent NYPD entry into the apartment was what convinced Sergeant Minca to seek a warrant. There is ample testimony that the NYPD went to the apartment to verify Mr. Vega's information. Sergeant Minca acknowledged that he and Detective Ryan went to the apartment so they would have enough information to get a warrant to search the computer. (See Hearing Tr. 67:04-11.) Sergeant Minca also said that the reason he and Detective Ryan went to Stuyvesant Town was "to investigate the child pornography" and to "verify" what Mr. Vega reported. (Id. 65:07-12.)
The exact language of question and answer is relevant:
Q: You instructed Sergeant Vega to go back. You wanted to do that, you wanted Detective Ryan to have the opportunity to do that as well before he went and asked for a search warrant. . . .
A: Correct.
Q: So that you would have enough information to give the judge on exactly what was on the computer, correct?
A: Correct.
(Hearing Tr. 67:04-11.)
The Government also presents evidence, however, that Sergeant Minca and Detective Ryan knew that they needed a warrant and planned to get one even before the illegal entry. For instance, Detective Ryan called the Manhattan District Attorney's night complaint room on the evening of October 17 to inquire about getting a warrant. (Id. 81:07-10.) In their first conversation about the case Sergeant Minca called Detective Ryan to place him on duty status so that Detective Ryan — an expert on warrants — could obtain the necessary warrant. (Id. 50:04-20.) Sergeant Minca also testified that "right off the bat I knew I needed a search warrant to go into the computer if I had to take the computer to get evidence." (Id. 50:18-20.) The issue, then, is whether Sergeant Minca and Detective Ryan intended to get a warrant before entering Mr. Bonczek's apartment, or whether they believed they did not have enough information to seek a warrant without more first-hand investigation.
The Government has met its burden to show that the NYPD would have obtained a warrant even without the information confirmed by the illegal entry. Sergeant Minca knew he had a viable complaint from Mr. Vega when he asked Detective Ryan to come into Manhattan from his home in Orange County, 55 miles away, in order to obtain a search warrant. Indeed, that was Sergeant Minca's sole purpose in calling Detective Ryan into work. He did not need Detective Ryan to look at the computer screen. Both Sergeant Minca and Detective Ryan recognized the need to obtain a warrant and took a step toward obtaining one by calling the Manhattan District Attorney's office before entering Mr. Bonczek's apartment. Accordingly, the Court finds that the Government has satisfied both elements of the independent source doctrine and that the evidence seized from Mr. Bonczek's apartment is not subject to the exclusionary rule.
b. Inevitable Discovery
Even if the Court found that the independent source doctrine did not apply, the evidence from Mr. Bonczek's apartment would still not be excluded because of the doctrine of inevitable discovery. Inevitable discovery applies when the Government "can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means." Nix, 467 U.S. at 444; see also United States v. Heath, 455 F.3d 52, 55 (2d Cir. 2006) ("In essence, the inevitable discovery doctrine's application turns on a central question: Would the disputed evidence inevitably have been found through legal means `but for' the constitutional violation? If the answer is `yes,' the evidence seized will not be excluded."). Courts use a four-factor test to determine whether to apply inevitable discovery:
(1) the extent to which the warrant process has been completed at the time those seeking the warrant learn of the search, (2) the strength of the showing of probable cause at the time the entry occurred, (3) whether a warrant ultimately was obtained, albeit after the illegal entry, and (4) evidence that law enforcement agents `jumped the gun' because they lacked confidence in their showing of probable cause and wanted to force the issue by creating a fait accompli.United States v. Lavan, 10 F. Supp. 2d 377, 388 (S.D.N.Y. 1998) (citing United States v. Cabassa, 62 F.3d 470, 473 n. 2 (2d Cir. 1995) (internal quotations omitted). Courts should not apply the doctrine of inevitable discovery unless there is "a high level of confidence that each of the contingencies required for the discovery of the disputed evidence would in fact have occurred." Heath, 455 F.3d at 55.
The Government argues that an application of the four factors from Cabassa shows that inevitable discovery applies to Mr. Bonczek's case. First, the Government argues that Detective Ryan's call to the District Attorney's night complaint bureau on October 17 shows that the NYPD began the process of obtaining a warrant before entering Mr. Bonczek's apartment. Second, there was ample probable cause for the warrant before entry, evidenced by Judge Wetzel signing a search warrant based only upon information obtained before the illegal search. Third, the NYPD ultimately obtained a warrant, and fourth, nothing in the record shows that the NYPD "jumped the gun" in order to force a fait accompli. The Government argues that Sergeant Minca and Detective Ryan had enough information to obtain a warrant based only on Mr. Vega's report, and that in fact they tried to obtain a warrant at that time, but could not do so because of the time of night. Even without the illegal entry, then, the Government argues that the NYPD would have eventually obtained a warrant and discovered the same evidence in Mr. Bonczek's home.
Mr. Bonczek makes several arguments against applying inevitable discovery. First, Mr. Bonczek argues that under the first factor of the Cabassa test, police had not started the process of obtaining a warrant before entering Mr. Bonczek's apartment. The argument continues: Detective Ryan's call to the District Attorney's night complaint bureau on October 17 occurred before Sergeant Minca spoke directly to Mr. Vega at the precinct, thus the two officers had no knowledge of the specifics of Mr. Vega's complaint and could not have obtained a warrant at that time. The facts do not support Mr. Bonczek's argument. When Sergeant Minca ordered Detective Ryan to report for duty and to get a warrant, Sergeant Minca knew what Mr. Vega had reported in detail to the 13th Precinct — that there was child pornography on a computer in an apartment in Stuyvesant Town. (See Hearing Tr. 48:16-49:11.) He also knew two actions that he had to take right away: (1) get a warrant; and (2) talk to Mr. Vega. The two steps were intimately related. This is sufficient support for the conclusion that the police had started the process of obtaining a warrant.
Second, Mr. Bonczek argues that inevitable discovery does not apply because it is likely that Mr. Bonczek would have destroyed the evidence upon his return to his apartment once he saw that maintenance workers had been inside. Thus, since the evidence would have been disposed of, if not for the illegal entry, discovery was not inevitable. (See Defendant's Memorandum of Law in Support of Motion to Suppress ("Def.'s Mem.") 8-9.) This is a strange argument for the Defendant to make, but destruction of the evidence could occur only if Mr. Bonczek had returned to the premises. Police could confirm he had not. They could then keep Mr. Bonczek from entering the apartment by the simple and expedient act of placing a guard outside. Additionally, if Mr. Bonczek had been inside the apartment and was poised to destroy evidence, then exigent circumstances would have existed and no warrant would be required.
Mr. Bonczek also argues that inevitable discovery should not apply because Detective Ryan's affidavit in support of the search warrant did not establish probable cause to issue the warrant. The Court addresses this argument in a later section.
The Government's argument is more convincing. Even if the NYPD had not entered Mr. Bonczek's apartment, it would have had probable cause, based on Mr. Vega's complaint alone, to obtain a search warrant. Judge Wetzel, in fact, issued a search warrant on exactly that information. It is also clear that the officers knew that they would have to eventually obtain a search warrant and attempted to initiate the process on the evening of October 17, before entering Mr. Bonczek's home. Finally, there is nothing to show that the NYPD was trying to "jump the gun" by entering Mr. Bonczek's apartment and creating probable cause. Mr. Vega had already provided sufficient information to establish probable cause. Thus, the four Cabassa factors weigh in favor of the Government. Additionally, the Court has a "high level of confidence," as required by Heath, 455 F.3d at 55, that police would have obtained a warrant based on what they knew prior to the illegal entry, and that they would have discovered the same evidence even if they had waited for the warrant before entering.
III. Problems with the Search Warrant
Mr. Bonczek argues next that Detective Ryan's warrant affidavit was insufficient to establish probable cause and that the search warrant was overbroad, allowing police to seize material that does not relate to the charged crimes. For the reasons that follow, the Court rejects both claims.
a. Sufficiency of the Warrant Affidavit
When examining a judge's decision to issue a search warrant, Courts take a deferential, rather than a de novo, review. See Illinois v. Gates, 462 U.S. 213, 236 (1983) ("[W]e have repeatedly said that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's `determination of probable cause should be paid great deference by reviewing courts.'") (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969); see also United States v. Leon, 468 U.S. 897, 914 (1984) ("[T]he preference for warrants is most appropriately effectuated by according great deference to a magistrate's determination.") (internal quotation and citations omitted). Courts must, however, ensure that the judge issuing the warrant has acted in a neutral and detached manner and not simply as a "rubber stamp for the police." Leon, 468 U.S. at 914. Finally, "reviewing courts will not defer to a warrant based on an affidavit that does not `provide the magistrate with a substantial basis for determining the existence of probable cause.'" Id. at 915 (quoting Gates, 462 U.S. at 239).
Mr. Bonczek argues that Detective Ryan's affidavit to support the search warrant was insufficient to create probable cause because he did not attach the pictures of the alleged child pornography or sufficiently describe the images, and, thus, it was not possible for Judge Wetzel to determine if they were in fact "lewd" or "sexually explicit," as the affidavit claimed. (See Necheles Decl. Ex. B at 4.) The issue turns on what police must show to obtain a search warrant when the alleged child pornography is only images of a naked child, rather than images of a child engaged in explicit sexual conduct.
Both the New York and the Federal laws on possession of child pornography define the crimes as possessing images which show either: (1) explicit sexual activity involving children; or (2) lewd or lascivious exhibition of the genitals of a child. For the first category of images, explicit sexual activity, an agent's description of the alleged sexual activity in the warrant is sufficient to establish probable cause without an independent judicial determination. See, e.g., United States v. Chrobak, 289 F.3d 1043, 1045 (8th Cir. 2002) ("There are very few pictures of actual children engaged in sexual acts that are not child pornography."). As for the second category of images, however, jurisdictions are divided on whether police can establish probable cause to search for these images without a particularized showing of the images. See United States v. Brunette, 256 F.3d 14, 18 (1st Cir. 2001) (noting that ajudge cannot ordinarily determine whether there is probable cause to believe that images showing lascivious exhibition of genitals meet the statutory standard of pornography "without either a look at the allegedly pornographic images, or at least an assessment based on a detailed, factual description of them"); but cf., United States v. Koelling, 992 F.2d 817, 821 (8th Cir. 1993) (finding that a warrant affidavit that tracked the language of the statute described with sufficient particularity the assertion that the alleged pornographic photos contained lascivious exhibition of genitals). The issue has not been decided in the Second Circuit.
Sexual conduct in the New York Penal Code is defined as:
actual or simulated sexual intercourse, oral sexual conduct, anal sexual conduct, sexual bestiality, masturbation, sado-masochistic abuse, or lewd exhibition of the genitals.
N.Y. Penal Code § 263.00(3). Sexually explicit conduct under the Federal statute is defined as:
(i) sexual intercourse, including genital-genital, oral-genital, anal-genital, or oral-anal, whether between persons of the same or opposite sex; (ii) bestiality; (iii) masturbation; (iv) sadistic or masochistic abuse; or (v) lascivious exhibition of the genitals or pubic area of any person.18 U.S.C. § 2256(2)(A).
Mr. Bonczek relies principally on United States v. Jasorka, No. 97 Crim. 300 (CPS) (E.D.N.Y. July 17, 1997), which adopts the First Circuit standard. On appeal, the Second Circuit declined to reach the issue and found for other reasons that exclusion of the evidence was not required. United States v. Jasorka, 153 F.3d 58, 58 (2d Cir. 1998).
The warrant in Mr. Bonczek's case was not signed by a magistrate but by a Court of Claims Judge, assigned to New York Supreme Court to sit on criminal cases. The New York Supreme Court is the court of general jurisdiction in New York and hears felony criminal cases and civil disputes in the first instance,see N.Y. Const. art. VI § 7, much like a Federal District Court Judge. Judge Wetzel was not a rubber stamp for the police; and clearly, he possessed both the expertise and the experience to know when to reject a warrant for insufficient probable cause.
Mr. Bonczek argues that Judge Wetzel was required to actually view or at least receive a detailed description of the alleged pictures because Detective Ryan's warrant affidavit described only materials depicting lascivious exhibition. Detective Ryan's affidavit did more than simply state that Mr. Vega observed "lewd images" of children — it also stated that the children appeared to be between 2 and 7 years old, "with genitalia exposed," and "posed in a sexually explicit manner." (See Necheles Decl. Ex. B at 4.) Judge Wetzel determined that this description was specific enough to find reasonable cause to issue the warrant (id. at 8), and this Court agrees. Detective Ryan's representations that the images were of young children, "with genitalia exposed," and "posed in a sexually explicit manner" provided Judge Wetzel with sufficient information to find that probable cause existed to believe that Mr. Bonczek's apartment and computer contained images of child pornography.
Mr. Bonczek argues that the pictures that Mr. Vega took of the images on the screen do not show children posed in a sexually explicit manner, and that the warrant affidavit contained an unfair representation of the photos. Mr. Vega presented six photos to the NYPD at the 13th Precinct. (See Hearing Tr. 20:23-21:05; Govt. Ex. 7.) One photo is too dark to adequately see the image. Two photos are the same image showing a naked child leaning backward over what appears to be a large ball. The focus of the photo is on the genitals. This image clearly shows a child posed in a sexually explicit manner, which Mr. Bonczek concedes. (See Oct. 6 Tr. 29:18-20.) The remaining three photos contain: (1) a naked child standing with his arms at his side; (2) a naked child reclining on a bed or couch, with the child's head cut off in the photo; and (3) a naked child sitting cross-legged smiling and waving at the camera. In all the photos the genitals are clearly exposed, and arguably the focus of the photos. The Court does not agree with Mr. Bonczek that the warrant affidavit contained an unfair representation of the photos, as described by Mr. Vega. (See Hearing Tr. 42:10-14 ("Q: Did you ever say that the children were posed in a sexually explicit manner? A: Basically, that they were posed, yeah, in different poses.").)
b. The Overbroad Warrant Claim
Mr. Bonczek argues that many of the items seized from his apartment should be suppressed because they were seized pursuant to an overbroad warrant. Specifically, Mr. Bonczek claims that the warrant impermissibly allowed police to remove Mr. Bonczek's address book, non-pornographic images of children, books which discuss sexual matters, comic books depicting sexual matters, and various items of paperwork, VHS tapes, receipts, handwritten notes, and more.
A search warrant must be "sufficiently specific to permit the rational exercise of judgment in selecting what items to seize."United States v. Vargas, 621 F.2d 54, 56 (2d Cir. 1980). A warrant that is so broad as to allow "a mere roving commission" violates the Fourth Amendment. United States v. Scharfman, 448 F.2d 1352, 1354 (2d Cir. 1971). However, warrants authorizing the seizure of "generic classes of items" have been upheld "where a more precise description was not possible in the circumstances" and "the warrants . . . identified a specific illegal activity to which the items related." United States v. George, 975 F.2d 72, 76 (2d Cir. 1992).
Mr. Bonczek points to several passages in the warrant that he claims are overbroad:
any and all . . . communications . . . making reference to contact or relationships with minor children, including, but not limited to, children engaged in sexual activity, use of a child in a sexual performance, and related crimes. . . .
tangible, or electronic, or digital media dealing with images of children . . . engaged in sexual acts or dealing with sexual subject matter. . . .
any tangible evidence related to the sexual exploitation of children, including but not limited to: condoms, prophylactics, sexual paraphernalia.
(See Necheles Decl. Ex. B, at 8-9.) (emphasis added) Mr. Bonczek argues that these passages in the warrant allowed police to seize items that were either legal to own, not evidence of a crime, or unrelated to the charged crime.
Where warrants contain ambiguous language, precise descriptions of some of the items to be seized along with specifications of the suspected crimes can cure the imprecision. United States v. Bianco, 998 F.2d 1112, 1115-1116 (2d Cir. 1983) (citing United States v. Young 745 F.2d 733, 758 (2d Cir. 1984)). In United States v. Riley, the Second Circuit held that a search warrant authorizing officers to seize, "evidence of . . . proceeds of drug trafficking, including but not limited to, bank records, brokerage house records . . . [and] other items that constitute evidence of the offenses of conspiracy" from a defendant's residence was sufficiently particularized because the warrant supplied adequate examples of the type of records. 906 F.2d 841, 844-45 (2d Cir. 1990) (emphasis added). The Court found that once a category of seizable items had been described, there was no Fourth Amendment violation because executing officers must exercise some judgment as to whether a particular document falls within the described category. Id.
Courts have found warrants to be overbroad in circumstances where the warrant carried almost no guidelines constraining the scope of the search. In United States v. George, for example, the Second Circuit held that a warrant authorizing the search of "any other evidence relating to the commission of a crime" was overbroad because the use of the term, "evidence," without more, was not tied to a specific illegal act relating to the items and provided no guideline for officers to determine what to seize. 975 F.2d at 75-76.
Here, Mr. Bonczek's attempt to characterize the warrant as overbroad is unavailing. The language in the warrant is similar to the warrant in Riley, which the Second Circuit held as sufficiently particularized. 906 F.2d at 845. Indeed, the use of "including but not limited to" in Mr. Bonczek's warrant is exactly the language found in Riley. Id. at 843. Warrants containing broadly worded categories of items available for seizure are sufficiently particularized because the language of a warrant should be construed in conjunction with an illustrative list of seizable items. See Young, 745 F.2d 733, 759-60 (2d Cir. 1984). Here, as in Riley, the warrant listed various examples of the items to be seized. Unlike the overbroad warrant in George, 975 F.2d at 74, the language in Mr. Bonczek's warrant identified a specific illegal activity tied to the items that the Court authorized for seizure. Thus, the officers in this case had a guideline for determining which items were relevant for seizure. The Court finds that the warrant was not overbroad.
IV. The Post-Arrest Statement
Mr. Bonczek argues that his post-arrest statement to police should be suppressed because: (1) he was not advised of his right to remain silent and his right to legal counsel; and (2) police arrested him illegally and therefore the statement was the fruit of this illegal arrest. The Court need not address the first point because suppression is warranted under the second argument.
Under the fruit of the poisonous tree doctrine, "[e]vidence obtained from an unlawful search or seizure is generally subject to exclusion." Mosby v. Senkowski, 470 F.3d 515, 520 (2d Cir. 2006). A warrantless arrest of a suspect in his home is presumptively unreasonable, absent exigent circumstances. Payton, 445 U.S. at 588-89. Here, nothing in the record overcomes the presumption of unreasonableness in the NYPD's warrantless arrest of Mr. Bonczek in his apartment. As discussed earlier, exigent circumstances did not exist; if the NYPD believed that Mr. Bonczek was going to destroy evidence upon his return to the apartment, the police could have stationed a guard outside of his door.
While there is some discrepancy in the record about where Mr. Bonczek's alleged statement occurred, the Government concedes that he made the statement inside his apartment. As such, the statement was obtained impermissibly, as the result of a warrantless arrest of Mr. Bonczek in his home, and must be suppressed. See, e.g., New York v. Harris, 495 U.S. 14, 16 (suppression of a suspect's statement made in his home after a warrantless arrest was appropriate).
Compare Necheles Decl. Ex. F at 1 (Government disclosure form stating that statement was made "in transport from 6 Stuyvesant Oval and 80 Centre St.") with Hearing Tr. 59:12-60:08 (Sergeant Minca's testimony that Mr. Bonczek made the statement in the apartment).
CONCLUSION
For the reasons discussed, Mr. Bonczek's motion to suppress the evidence seized at his home is DENIED. His motion to suppress his statement to police following his arrest is GRANTED.SO ORDERED.