Opinion
3:06 CR 86 (CFD).
November 9, 2006
RULING
Eric Gaynor has been charged by a four count indictment with transporting, distributing, promoting and receiving child pornography in violation of 18 U.S.C. § 2252A. By motion dated June 30, 2006, Gaynor moved to suppress evidence obtained as a result of the June 24, 2003 search of his home and requested an evidentiary hearing on his motion. Gaynor argues that the search warrant was invalid because the supporting affidavit was deceptive, did not establish probable cause to believe that evidence of a crime would be found at his home, and contained stale information. On August 16, 2006, the Court held a hearing on this and other pretrial motions made by Gaynor. For the reasons described below, Gaynor's request for an evidentiary hearing and his motion to suppress evidence obtained during the search of his home are denied.
The motion itself only asks the Court to suppress statements made by Gaynor at the time of the search, but the memorandum in support of the motion elaborates that Gaynor is also seeking to suppress evidence obtained as a result of the execution of the search. An evidentiary hearing on the portion of the motion seeking to suppress statements made by Gaynor at the time of the search will be held on November 20, 2006.
I. Background
On June 20, 2003, Special Agent Thomas F. Veivia of the Federal Bureau of Investigation ("FBI") applied for a warrant to search Gaynor's residence at 271 Currier Drive in Orange, Connecticut. The application for a search warrant was supported by an affidavit describing Veivia's reasons for believing that evidence of child pornography would be found at Gaynor's home. In particular, the affidavit described a website denominated coyotee.com and Gaynor's connection to that website. According to the affidavit, coyoteee.com included, among other things, a "premium content" page with sample images, and offered to sell videos of nudist camps. In addition, twenty-two images of naked or partially clothed young males downloaded from the website on March 20, 2003 were attached to the affidavit. The affidavit also recounted that twelve of the sample images were shown to a pediatrician, Dr. Marita Lind. The affidavit states that Dr. Lind determined that four of these images depicted children that were age fourteen and two depicted children that were age thirteen.
The affidavit also recounts that a number of videos were purchased through the website. Two of those videos were described in the affidavit by Special Agent Veivia, but were not attached to the affidavit.
United States Magistrate Judge Holly B. Fitzsimmons signed the search warrant and the search was executed on June 24, 2003. Gaynor argues that there was no probable cause to support the search warrant because (1) the videos of nudist camps were not "lascivious," as required by the statute charged in the indictment, and (2) the description of the premium content portion of the site and its sample images was misleading.
II. Legal standard
The Fourth Amendment prohibits "unreasonable searches and seizures," and its "Warrants Clause" mandates that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. "There is . . . a presumption of validity with respect to the affidavit supporting [a] search warrant." Franks v. Delaware, 438 U.S. 154, 171 (1978). "In certain circumstances, however, a defendant may challenge the truthfulness of factual statements made in the affidavit, and thereby undermine the validity of the warrant and the resulting search or seizure."United States v. Awadallah, 349 F.3d 42, 64 (2d Cir. 2003). "However, every statement in a warrant affidavit does not have to be true." United States v. Canfield, 212 F.3d 713, 718 (2d Cir. 2000) (internal quotation marks omitted).
In Franks v. Delaware, the Supreme Court held that a defendant may challenge the validity of a search warrant on the basis that the supporting affidavit contains deliberately or recklessly false or misleading information. 438 U.S. at 164-72. To void the warrant and suppress the resulting evidence, a defendant must demonstrate, by a preponderance of the evidence, that (1) "a false statement knowingly and intentionally, or with reckless disregard for the truth" was included in the affidavit, and (2) "the allegedly false statement is necessary to the finding of probable cause." Id. at 156. See also Canfield, 212 F.3d at 717-18; United States v. Martin, 426 F.3d 68, 73 (2d Cir. 2005). In order to obtain an evidentiary hearing "[t]here must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. . . . if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is insufficient, the defendant is entitled, under the Fourth and Fourteenth Amendments, to his hearing." Franks, 438 U.S. at 171-72.
A false statement "is material when `the alleged falsehoods or omissions were necessary to the [issuing] judge's probable cause finding.'" Awadallah, 349 F.3d at 64-65 (quoting Canfield, 212 F.3d at 718). "To determine if the false information was necessary to the issuing judge's probable cause determination, i.e., material, a court should disregard the allegedly false statements and determine whether the remaining portions of the affidavit would support probable cause to issue the warrant. If the corrected affidavit supports probable cause, the inaccuracies were not material to the probable cause determination and suppression is inappropriate." Martin, 426 F.3d 68, 73-74 (2d Cir. 2005) (excising incorrect information about automatic e-mails sent to members of "girls 12-16 e-group from affidavit and finding that corrected affidavit established probable cause that evidence of a crime would be found at member's home `because membership in the e-group reasonably implied use of the website'"). See also Canfield, 212 F.3d at 718. Thus, "[t]he ultimate inquiry is whether, after putting aside erroneous information and material omissions, `there remains a residue of independent and lawful information sufficient to support probable cause.'" Id. (quoting United States v. Ferguson, 758 F.2d 843, 848 (2d Cir. 1985)); accord Awadallah, 349 F.3d at 65.
Here the Court must determine whether, setting aside the allegedly misleading portions of the affidavit, there was still probable cause to believe that evidence of a crime would be found at Gaynor's home. Images depicting "minor[s] engag[ed] in sexually explicit conduct" are prohibited. 18 U.S.C. § 2256(8)(A). "[S]exually explicit conduct," in turn, is defined to include "graphic or simulated lascivious exhibition of the genitals or pubic area of any person." 18 U.S.C. § 2256(2)(A)(v). In United States v. Dost, the Southern District of California set forth a widely-cited standard for determining whether an image is lascivious:
the trier of fact should look to the following factors, among any others that may be relevant in the particular case:
1) whether the focal point of the visual depiction is on the child's genitalia or pubic area;
2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity;
3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child;
4) whether the child is fully or partially clothed, or nude;
5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity;
6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer.
Of course, a visual depiction need not involve all of these factors to be a "lascivious exhibition of the genitals or pubic area." The determination will have to be made based on the overall content of the visual depiction, taking into account the age of the minor.636 F. Supp. 828, 832 (S.D. Cal. 1986), aff'd sub nom United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987), cert. denied, 484 U.S. 856, 108 S.Ct. 164, 98 L.Ed.2d 118 (1987).
While the United States Court of Appeals for the Second Circuit has not yet had the opportunity to comment on the Dost factors, in United States v. Hill the United States Court of Appeals for the Ninth Circuit applied the Dost test and found that an affidavit describing two photographs of partially nude minor girls created a substantial basis for concluding that probable cause existed where the descriptions did not raise doubts that the images served a purpose other than satisfying "the sexual cravings of a voyeur." 459 F.3d 966, 971 (9th Cir. 2006) (quoting United States v. Wiegand, 812 F.2d at 1244 (9th Cir. 1987)).
However, a number of other courts have endorsed them. See, e.g., United States v. Amirault, 173 F.3d 28, 31-32 (1st Cir. 1999) (using Dost factors as "guidepost" to determine that photograph of nude minor girl playing at beach was not lascivious); United States v. Knox, 32 F.3d 733, 745 (3d Cir. 1994) (reiterating formal adoption of Dost test); United States v. Wolf, 890 F.2d 241, 247 (10d Cir. 1989) ("trial court did not err in applying the Dost factors"). Those courts that have expressed concern about Dost have principally noted "that theDost factors may be too favorable to the defendant." United States v. Rivera, 3:05cr261 (MRK), 2006 WL 2666088, at *5 (D. Conn. Sept. 15, 2006) (rejecting defendant's argument that it was inappropriate to include Dost factors in jury charge).
III. Special Agent Veivia's Affidavit
Gaynor argues that the Veivia affidavit contained intentionally or recklessly misleading information which was integral to the finding of probable cause. First Gaynor argues that the description of the "premium content" portion of the website is misleading because the affidavit does not disclose that the "premium content" portion of the website was removed in April of 2003, months before the issuance of the warrant, that it was only available for a short period of time, and that the "premium content" service was never operational. Second, Gaynor objects to the affidavit's description of images on the website, both as to the attached downloaded photographs from the website and as to the videos sold through it. As to the photographs, the affidavit states that:
Some of these images appear to be of males who are 18 years old or older. Many however appear to be minors. The images include provocative poses, as well as sexually explicit acts to include masturbation and mouth/penis contact.
According to Gaynor this is misleading because "[t]o the extent there are minors in images contained on the website, they are not performing sex acts or posing provocatively. They are in natural pictures doing every day things."
The Court denies Gaynor's request for an evidentiary hearing because he has not made a substantial preliminary showing that the affidavit was misleading, much less that it was written with reckless disregard for the truth. The description of the "premium content" section of the site does not state that this section of the site was in existence at the time of the application (June 20, 2003), it does not indicate when this section of the site became operational, and it does not claim that anyone was actually subscribing to the premium content service. Rather, the affidavit specifically indicates that the description of the website is "as captured" on March 20, 2003. In addition, the images attached to the affidavit are also specifically dated March 20, 2003.
While these images were downloaded three months before the search warrant was issued they were not stale. According to the Second Circuit:
When making the probable cause determination, a magistrate judge must make a common sense account of all the circumstances, and in doing so determine whether the information in the application is current or has become stale. The age of the supporting facts and the nature of the unlawful conduct is helpful in determining whether the information is stale, as is whether the supporting affidavit depicts continuing conduct or isolated and random instances of illegal conduct. When a defendant is suspected of possessing child pornography, the staleness determination is unique 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.United States v. Irving. 452 F.3d 110, 125 (2d Cir. 2006) (internal citations and quotations omitted) (finding that there was probable cause for a search warrant based on information over two years old).
Similarly, not only is the description of the sample images adequate, but the photographs which were attached to the warrant application confirm the description and demonstrate likely violations of the statute. While a few of the most sexually explicit sample images appear to be of males over the age of eighteen, the sample images also are of males who clearly appear to be under the age of eighteen in provocative or sexually explicit poses that meet the Dost test. These images include the three photographs identified in the indictment. The grand jury indictment alleges that "NFmix_27.jpg" was "an image of a naked male under eighteen years of age, posing in a standing position in a bathroom or shower"; that "NFmix_29.jpg was "an image of a naked male under eighteen years of age, posing in a standing position next to a locker"; and that "lorisC33_edit.jpg" was "an image of a naked male under eighteen years of age, seated and holding his genitals, with a whitish fluid that appears to be semen on his abdomen." The affidavit also states that Dr. Lind found that six of the photographs showed children fourteen and under. The Veivia affidavit was not written to mislead Magistrate Judge Fitzsimmons about the coyoteee.com website or its contents.
The affidavit also recites that two videocassettes were purchased from Gaynor through the website. Special Agent Veivia described the contents of those videos, recited the Dost factors and also stated that Dr. Lind concluded the children depicted most predominately were under the age of sixteen. However, the actual videos were not attached to the affidavit, unlike the photographs from the website.
The Defendant claims that Special Agent Veivia's description of the videocassettes misrepresents their contents and that they do not satisfy the Dost factors. However, even if the portions of the affidavit concerning the videocassettes were excised, the remaining portion concerning the downloaded images are more than sufficient to establish probable cause for the issuance of the search warrant. Thus, a Franks hearing is not warranted.
IV. Conclusion
Gaynor's motion [#27] for an evidentiary hearing and to suppress evidence obtained during the June 24, 2003 search of his home is denied. Pursuant to the Court's ruling during the August 16, 2006 hearing, an evidentiary hearing on Gaynor's motions [#27 and #22] to suppress statements he made during the search will be held on November 20, 2006.
SO ORDERED at Hartford, Connecticut.