Opinion
No. 00-40084-01-SAC.
January 12, 2001.
MEMORANDUM AND ORDER
The case comes before the court on the defendant's pretrial motions: Motion for Disclosure of Rule 404(b) Evidence (Dk. 28) and Motion to Suppress (Dk. 29). The government responds describing generally the 404(b) evidence it intends to offer and opposing the motion to suppress. (Dk. 31). On January 10, 2001, the court heard the parties' arguments and evidence. The defense counsel disputed the government's Rule 404(b) disclosure as inadequate and also highlighted certain issues addressed in her brief. The prosecuting attorney likewise briefly commented on the issues and then presented the testimony of two law enforcement officers regarding the consent obtained for the search of the defendant's metal shed. After reviewing all matters submitted and researching the relevant law, the court issues the following as its ruling on the suppression motion.
INDICTMENT
James Richard Downes is the only named defendant in a three-count indictment charging: possession of computer disks containing images of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B); possession of forged and counterfeited Federal Reserve Notes with the intent to defraud in violation of 18 U.S.C. § 472; and forfeiture of computer equipment seized from his home pursuant to 18 U.S.C. § 2253(a)(3).
FACTS
On August 18, 2000, the District Court of Dickinson County, Kansas, issued a search warrant for the residence of Jim Downes at 517 S. Factory in Enterprise, Dickinson County, Kansas. The warrant authorized a search for the following:
"Film, photographs, negatives, slides, books, magazines, photocopies, videotapes, video laser disks, computer hardware, software, floppy disk, or any other computer-related equipment, peripherals, files, or computer generated image including any data contained on the hard drive that contains or displays a child under the age of 16 years of age engaging in sexually explicit conduct.
(Govt. Ex. 3). The affidavit in support of the warrant was signed by Jerry Davis, an investigator with Dickinson County Sheriffs Department.
The affidavit discloses that Investigator Davis interviewed Marilyn Albertson on August 18, 2000. She told the Investigator that her twelve-year old daughter recently complained that Jim Downes, a neighbor in Enterprise, Kansas, had been touching her buttocks and that Mr. Downes had computer disks containing pictures of her fourteen-year old sister with her shirt off and wearing only a bra. Ms. Albertson also told Investigator Davis that she spoke with her son who said that he and his friend Jeremy Langdon had seen similar pictures on a compact disc at Jim Downes' home just the other day. Ms. Albertson said she had telephoned her fourteen-year-old daughter and learned that there were two computer disks in her own home which contained these pictures of her daughter taken at Jim Downes' home. Ms. Albertson turned these disks over to Investigator Davis.
Investigator Davis' affidavit further states that in reviewing the computer disks provided by Ms. Albertson he was unable to access the files of one disk and he found 48 photographs of a girl identified by Ms. Albertson as her daughter on the other disk. Ms. Albertson told the Investigator that the background in the photographs was of Mr. Downes' residence. Investigator Davis said several photographs of the fourteen-year-old showed her wearing only shorts and a bra and in one photograph she is "squeezing her breasts together with her hands" and another photograph she is squeezing with her upper arms and her bra straps are hanging down on her arms. The affiant wrote that none of the photographs showed the breasts fully exposed or showed the fourteen-year-old entirely nude.
The affidavit discloses that on August 18, 2000, Investigator Davis also interviewed Jeremy Langdon, a fifteen-year-old boy. Jeremy told Davis that he had been at Jim Downes' home two nights ago and had viewed some of Downes' compact disks on Downes' computers finding photographs of Ms. Albertson's fourteen-year-old daughter wearing a bra and "holding up her breasts." The affiant further wrote:
Jeremy told the Affiant that Jim had two computers in his computer room. He also indicated that both computers had Internet access. Jeremy also told the Affiant that he had observed pornographic pictures of Chinese girls ranging in age from 8, on up to adulthood on this same computer disk. Jeremy stated that the pictures had the age of the girl on them and that the girl who was shown to be 8 years old, did in fact appear to be around that age.
(Govt. Ex. 3).
The return on the first search warrant shows that it was executed on August 18, 2000, and that officers seized various computer equipment and disks, as well as a black binder containing photographs of juveniles in sexually explicit poses.
Later on August 18, 2000, Investigator Davis prepared a second affidavit seeking a second search warrant. The affidavit states that during the execution of the first search warrant at Jim Downes' home, officers found marijuana and several counterfeit $100 bills having the same serial number. The affidavit further states that a resident of the home, Keith Wyatt, told the Investigator that Downes had said "he could make almost perfect $20.00 on his printer." The affidavit also discloses that Downes had stopped by during the first search and had told Detective Gravatt that he had 1/2 ounce of marijuana in his home. A warrant issued from this affidavit and the counterfeit bills and marijuana were seized pursuant to it.
On August 20, 2000, a telephone call was made to the Dickinson County "Crime Stoppers" program indicating that there was a $100 bill in the shed behind Downes' residence that the officers had missed in their searches on August 18th. Investigator Davis testified that officers had found several counterfeit $100 bills with the same serial number on the 18th in Downes' residence, but they had neglected to search the shed on that date. When they executed the first warrant on August 18th, officers learned that Keith Wyatt and his wife had been living in Downes' home for a short time, approximately a couple of weeks and that this was a temporary living situation for the Wyatts.
On August 21, 2000, Investigator Davis spoke with Keith Wyatt at the Dickinson County Courthouse. Wyatt was there attending the first court appearance of Jim Downes. Davis told Wyatt about the Crimestoppers call and asked whether he had access to the shed. Wyatt said that he did and offered that if Downes was unable to post bond then he had planned to retrieve some pop canisters from the shed and sell them for cash. Investigator Davis arranged for Enterprise Police Chief James Bettles to travel with Wyatt to Downes' residence and obtain Wyatt's written consent to search the shed. Upon arriving at Downes' residence, Chief Bettles requested and received Wyatt's written permission to search the metal shed behind the residence. Wyatt told Chief Bettles that he had been in the shed and that he had permission to do so.
Investigator Davis arrived a short time later and was met in the front yard by Wyatt and Chief Bettles. Investigator Davis and Chief Bettles then went around back to search the shed. They found the small metal storage shed with its sliding doors fully opened to four or five feet and its contents plainly visible from ten to fifteen feet away. The counterfeit bill was visible from outside the shed. Chief Bettles testified the shed was filled with various stuff, including pop containers and paper cups, none of which was stacked or arranged neatly. There were no locks hanging on the shed's doors. Investigator Davis testified that from his observations it appeared the Wyatts had "free roam" of the house without any restrictions on their access. He observed that their computer was in a room separate from their bedroom and that they openly used other rooms, including the living room and kitchen.
MOTION TO SUPPRESS: LAW AND ANALYSIS
A. Sufficiency of Affidavit for First Search Warrant
Generally, a search must be made pursuant to a warrant based on probable cause. U.S. Const. amend. IV. On a motion to suppress challenging the sufficiency of an affidavit, the district court does not review the affidavit de novo but accords "great deference" to the magistrate's determination of probable cause for issuance of a warrant. Illinois v. Gates, 462 U.S. 213, 236 (1983); see United States v. Edmonson, 962 F.2d 1535, 1540 (10th Cir. 1992); United States v. Peveto, 881 F.2d 844, 850 (10th Cir.), cert. denied, 493 U.S. 943 (1989). The reviewing court need only determine whether the magistrate had a substantial basis for concluding that probable cause existed. Illinois v. Gates, 462 U.S. at 236. The magistrate must make a practical, common-sense determination from the totality of the circumstances presented whether there is a fair probability that contraband or evidence of a crime will be found in a particular place. Id. at 238; see United States v. Simpson, 152 F.3d 1241, 1246 (10th Cir. 1998). "In applying the test enunciated in Gates, this Court has stated that the `affidavit should be considered in a common sense, nontechnical manner . . ." Edmonson, 962 F.2d at 1540 (quoting United States v. Massey, 687 F.2d 1348, 1355 (10th Cir. 1982) (citation omitted)).
"[P]robable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S. at 232. The Supreme Court has found it sufficient to say that probable cause is more than a mere suspicion, but considerably less than what is necessary to convict someone. United States v. Ventresca, 380 U.S. 102 (1965); see United States v. Wicks, 995 F.2d 964, 972 (10th Cir.) ("The existence of probable cause is a `common-sense standard' requiring `facts sufficient'" to warrant a man of reasonable caution in belief that an offense has been committed'") (quoting United States v. Mes-Rincon, 911 F.2d 1433, 1439 (10th Cir. 1990) (quoting Brinegar v. United States, 338 U.S. 160, 174 (1949))), cert. denied, 510 U.S. 982 (1993). Hearsay, even multiple hearsay, may be used to establish probable cause for a search warrant. U.S. v. $149,442.43 in U.S. Currency, 965 F.2d 868, 874 n. 3 (10th Cir. 1992).
In Gates, the Supreme Court abandoned the requirement that an officer set forth an informant's reliability in the affidavit. 462 U.S. at 238. The courts are to determine an informant's credibility or reliability and basis of knowledge under a flexible totality of circumstances standard. United States v. Smith, 63 F.3d 956, 961 (10th Cir. 1995), judgment vacated on other grounds, 516 U.S. 1105 (1996). "Veracity and basis of knowledge are not, however, rigid and immovable requirements in the finding of probable cause. A deficiency in one element may be compensated for `by a strong showing as to the other, or by some other indicia of reliability.'" United States v. Corral, 970 F.2d 719, 727 (10th Cir. 1992). Consequently, the affiant need not declare the informant's reliability when the informant's statements are corroborated by extrinsic information. United States v. Sturmoski, 971 F.2d 452, 457 (10th Cir. 1992); see United States v. Smith, 63 F.3d at 961.
The defendant's principal argument is that the affidavit offered in support of the first search warrant does not present facts sufficient for the issuing magistrate to determine the credibility or reliability of the informants. Specifically, he contends the affidavit provides no information for evaluating the statements of Marilyn Albertson or Jeremy Langdon, which the defendant argues is necessary for even citizen-informants as they may be acting on personal grudges held against the suspect. The defendant discounts what Investigator Davis observed on the computer disks provided by Ms. Albertson, arguing the disks came from her residence and not the defendant's. The defendant contests Jeremy Langdon's observation of "pornographic" pictures as insufficient in detail to be self-verifying. Finally, the defendant argues that the photos of Ms. Albertson's daughter do not support probable cause for the offense of sexual exploitation of a child as defined by Kansas law, K.S.A. § 21-3516. The defendant maintains that the photographs of Ms. Albertson's daughter do not fit the definition of sexual exploitation found in that Kansas statute.
The court finds the affidavit here more than sufficient to sustain the probable cause needed to issue a search warrant. First, Jeremy Langdon is a citizen-informant who is identified by name and has first-hand knowledge of wrongdoing. A presumption of reliability attaches to Langdon's statements without independent corroboration. See United States v. Pasquarille, 20 F.3d 682, 689 (6th Cir.), cert. denied, 513 U.S. 986 (1994); cf. Illinois v. Gates: 462 U.S. at 234 (A detailed first-hand account of wrongdoing is entitled to "greater weight" than other tips). The court rejects the defendant's position that an affidavit must state the informant lacks an ulterior motive for falsifying information when such a motive is not reasonably apparent from the circumstances. The defendant does not argue that the circumstances suggest any ulterior motive. It is important to consider that Investigator Davis was able to interview Jeremy Langdon and Ms. Albertson and assess their credibility and that this circumstance gives greater weight to the Investigator's decision to rely on their information. United States v. Robertson, 39 F.3d 891, 893 (8th Cir. 1994), cert. denied, 514 U.S. 1090 (1995).
The Tenth Circuit has quoted approvingly from 1 W.R. LaFave, Search and Seizure, 586-87 (1987), the following:
"Courts are much more concerned with veracity when the source of the information is an informant from the criminal milieu rather than an average citizen who has found himself in the position of a crime victim or witness. As noted by Justice Harlan in United States v. Harris [ 403 U.S. 573, 579 (1971) (dissenting opinion)], "the ordinary citizen who has never before reported a crime to the police may, in fact, be more reliable than one who supplies information on a regular basis." Basis of knowledge is likewise less of a problem in the victim-witness cases, for by definition the victim or witness is reporting first-hand knowledge."Easton v. City of Boulder, Colo., 776 F.2d 1441, 1449-50 (10th Cir. 1985) ("This relaxed standard is consistent with the common sense approach taken by the Supreme Court in defining probable cause"), cert. denied, 479 U.S. 816 (1986); see United States v. Morgan, 936 F.2d 1561, 1569 (10th Cir. 1991), cert. denied, 502 U.S. 1102 (1992); United States v. Kennedy, 81 F. Supp.2d 1103, 1113 (D. Kan. 2000). The Tenth Circuit has "long subscribed to the rule that an affidavit need not set forth facts of a named person's prior history as a reliable informant when the informant is a citizen/neighbor eyewitness with no apparent ulterior motive for providing false information." United States v. Gagnon, 635 F.2d 766, 768 (10th Cir. 1980) (citations omitted), cert. denied, 451 U.S. 1018 (1981).
Second, Jeremy Langdon gave a detailed account of what he observed on the defendant's computer disks just two days before his statement was taken by Investigator Davis. He recalled file names, the nature of the pictures contained on the files, and the ages of the children stated on the pictures. "There is an inherent indicia of reliability in `the richness and detail of a first hand observation.'" United States v. Robertson, 39 F.3d at 893 (quoting United States v. Jackson, 898 F.2d 79, 81 (8th Cir. 1990)). Considering not only the common definition of "pornography" but the fact that "pornographic" was used in the affidavit only to describe certain photographs of Chinese girls, one would reasonably understand that these photographs must have shown girls engaging in sexually explicit conduct, as encompassed by Kansas statute.
Third, the pictures of Ms. Albertson's daughter while not contraband do demonstrate that Jim Downes was apparently interested in photographing minor females in sexually provocative poses and keeping the photographs. Fourth, the computer disks provided by Ms. Albertson contained pictures that had Jim Downes' home in the background and that either were the same or similar to the ones which her son and Jeremy Langdon saw on Downes' computer. Fifth, from his viewing of Ms. Albertson's disks, Investigator Davis was able to corroborate Jeremy Langdon's description of the photos he had seen of Ms. Albertson's daughter on Jim Downes' computer. "`[T]he corroboration of minor, innocent details can suffice to establish probable cause.'" United States v. Robertson, 39 F.3d at 894 (quoting United States v. Reiner Ramos, 818 F.2d 1392, 1397 n. 7 (8th Cir. 1987)); see United States v. Kennedy, 81 F. Supp.2d 1103, 1114 (Kan. 2000). Based on the totality of the circumstances presented in the affidavit and the reasonable inferences to be drawn therefrom, the issuing judge had a substantial basis for concluding there was a fair probability that evidence of the Kansas crime of sexual exploitation of a child would be found in Jim Downes' home.
Even if the affidavit had been found insufficient, the court would uphold the search as the officers executing the search warrant acted with objective good-faith belief that the warrant was properly issued by a neutral magistrate. See United States v. Leon, 468 U.S. 897 (1984). In making this determination, the court "must examine the underlying documents to determine whether they are `devoid of factual support.'" United States v. Danhauer, 229 F.3d 1002, 1006 (10th Cir. 2000) (quoting United States v. McKneely, 6 F.3d 1447, 1454 (10th Cir. 1993)). The affidavit here is not so lacking in indicia of probable cause that the executing officers should have known the search was illegal despite the issuing judge's authorization. See Leon, 468 U.S. at 922 n. 23. The affidavit contained a first-hand account by a citizen informant of what he saw on the suspect's computer just two days before the warrant was sought. A reasonably well-trained officer would have believed this affidavit was sufficient for a lawful search warrant. The "good-faith" exception plainly applies here.
B. Second Search
The affidavit in support of the second warrant is based largely on what officers observed during their execution of the first search warrant. Renewing his arguments that the first search warrant was unlawful, the defendant concludes the second warrant is also invalid when these tainted observations are deleted from its supporting affidavit. The defendant makes no other challenges to the second search warrant or the sufficiency of the supporting affidavit. Because the court has upheld the first search warrant and rejected the defendant's challenges to it, the court summarily denies the defendant's challenges to the second warrant.
C. Third Search
The third search was conducted on August 21, 2000, when Investigator Davis and Chief Bettles searched the metal shed on Downes' property without a warrant. When they executed the first warrant on August 18th, officers learned that Keith Wyatt and his wife had been living in Jim Downes' home for a couple of weeks. Following up on a Crime Stoppers call, Investigator Davis spoke with Keith Wyatt learning that Wyatt had access to the shed and that he had planned to retrieve some pop canisters from the shed and sell them for cash if needed to make the defendant's bail. Chief Bettles later went to Downes' property on August 21, 2000, and received written consent to search the shed from Wyatt who told Chief Bettles that he had been in the shed and that he had permission to do so.
The defendant argues Keith Wyatt had no authority to consent to a search of Downes' shed, as it was not an area to which he had common access. The defendant argues the Wyatts were living with him only temporarily and the officers knew about this arrangement. The defendant disputes that the government could reasonably rely on Keith Wyatt's apparent authority to give consent.
The Fourth Amendment protects a citizen from unreasonable searches. "The consent of a third party to a search of common premises is effectual if the third party has either the actual authority or the apparent authority to consent to a search." United States v. Gutierrez-Hermosillo, 142 F.3d 1225, 1230 (10th Cir.) (citing Illinois v. Rodriguez, 497 U.S. 177, 188 (1990)), cert. denied, 525 U.S. 900 (1998). The test for actual authority is "whether the third party has `mutual use of the property, . . . generally has joint access or control for most purposes, . . . and whether the others have assumed the risk that one of their number might permit the common area to be searched.'" Id. (quoting United States v. Matlock, 415 U.S. 164, 171 n. 7 (1974)). The test for apparent authority is whether officers reasonably believed the person giving consent had authority to do so. Id. "The determination of the reasonableness of the officers' belief is an objective one: `Would the facts available to the officer at the moment . . . warrant a man of reasonable caution [to believe] that the consenting party had authority over the premises?'" Id. (quoting Rodriguez, 497 U.S. at 188). If Investigator Davis and Chief Bettles here reasonably believed that they were given consent to search the shed by a third party, namely Keith Wyatt, who had the legal authority to do so, then the search is not unreasonable. See Rodriguez, 497 U.S. at 186-88.
The facts available to the officers on August 21, 2000, as outlined earlier in the order, would warrant a man of reasonable caution to believe that Keith Wyatt had authority over the premises such that he could authorize a lawful search of the shed. In sum, the officers knew the Wyatts resided at Downes' home, had resided there for at least two weeks, were still living there when consent was requested, and appeared to have unrestricted access to all parts of Downes' home. Keith Wyatt told officers that he had access to the shed, that he had been in the shed, that he had permission to enter the shed, and that he had planned to take property from the shed and sell it if Downes was unable to make bail. When officers saw the metal shed, it was unlocked and its doors were standing open. Wyatt's statements, as corroborated by his presence and actions in Downes' home and by the condition of the shed, would warrant a man of reasonable caution to believe that Keith Wyatt had not only joint access to the shed but he had the authority to give consent to search it. Thus, Investigator Davis and Chief Bettles reasonably relied on Keith Wyatt's written consent.
D. Computer Search
The defendant challenges the federal search warrant arguing it is tainted by the first search warrant issued by the state court. Having found the first search warrant to be lawful, the court rejects this challenge as well.
MOTION FOR RULE 404(B) EVIDENCE
The government discloses that it will offer Rule 404(b) evidence of "prior incidents involving inappropriate conduct with minors and prior use of counterfeit currency." The government says this description sufficiently reveals the general nature of the 404(b) evidence. See United States v. Russell, 109 F.3d 1503, 1507 (10th Cir.), cert. denied, 521 U.S. 1126 (1997). This court has required the notice to "be sufficiently clear so as `to permit pretrial resolution of the issue of its admissibility.'" United States v. Singleton, 922 F. Supp. 1522, 1533 (Kan. 1996) (quoting United States v. Barnes, 49 F.3d 1144, 1149 (6th Cir. 1995); see also United States v. Lampley, 68 F.3d 1296, 1299 n. 4 (11th Cir. 1995).
At the hearing, the prosecutor said that all of the potential Rule 404(b) evidence was supplied to the defendant through discovery, in particular the defendant's criminal history and other reports, and that defense counsel need only to look through this discovery with the government's Rule 404(b) disclosure to find that evidence. In view of the government's representation that it has provided the Rule 404(b) information to the defendant, the court finds the government's general description sufficient disclosure under Rule 404(b). The court denies the defendant's request for more specific disclosure from the government.
IT IS THEREFORE ORDERED that the defendant's Motion to Suppress (Dk. 29) is denied;
IT IS FURTHER ORDERED that the defendant's Motion for Disclosure of Rule 404(b) Evidence (Dk. 28) is denied as moot in light of the government's disclosure and representation.