Opinion
MO-00-CR-107.
November 27, 2000.
ORDER DENYING DEFENDANT LONNIE JEARL PAYNE'S MOTION AND SUPPLEMENTAL MOTIONS TO SUPPRESS EVIDENCE
Before the Court is Defendant Lonnie Jearl Payne's Motion to Suppress Evidence, filed with the Court on August 16, 2000. The Defendant twice supplemented the Motion to Suppress, once on August 29, 2000 and again on September 25, 2000. In addition, a hearing was held on the matter on September 25, 2000. After due consideration of the arguments and submissions of the parties, the Court is of the opinion that the Motion to Suppress, as fully supplemented, should be DENIED.
FACTUAL BACKGROUND
On July 14, 2000, three warrants were issued by United States Magistrate Judge Stuart Platt (1) for the search of the Defendant's home, located at 6800 F.M. 307, Greenwood, Texas, (2) for the search of his office, located at 705 West Indiana Street, No. 3, Midland, Texas, and (3) for the search of his vehicle, a Toyota "4Runner." The warrants were executed simultaneously that same day. The Defendant was arrested on July 17, 2000, after an inspection of the items seized on July 14, 2000 revealed various materials involving child pornography. The warrant was returned by FBI Special Agent David M. Sutherland on July 19, 2000 with an inventory of items taken from the Defendant's house. In particular, a large number of miscellaneous video tapes, a Packard Bell personal computer, and various diskettes, documents, computer printouts, and film were all seized from the residence.
The Defendant's Motion to Suppress relates only to the issuance, execution, and return of the search warrant for the Defendant's home, not to the warrants for his business and vehicle. The investigation leading to the three search warrants began when Agent Sutherland, along with Lieutenant Roy McKinney and Investigator Reba Beam of the Criminal Investigation Division of the Midland Sheriff's Department, spoke with Starla Kay Nickels during the first or second week of July, 2000. Because Ms. Nickels felt uncomfortable speaking to all three of the law enforcement officers (presumably since two were male), Investigator Beam performed an in-depth interview by herself. Ms. Nickels told Investigator Beam that, to get out of jail on a state credit card fraud charge in April, 2000, she secured a bond through Midland Bail Bond Company, the Defendant's business, on May 5, 2000. In exchange for the bond, Ms. Nickels stated that on that day she was asked to pose nude for photographs, was fondled by the Defendant, and had sexual intercourse with him. Nickels was seventeen years of age at the time these events occurred.
Based on this interview with Starla Nickels, Agent Sutherland, Lieutenant McKinney, and Investigator Beam performed further investigation. Specifically, they spoke with another female who stated that she had used the Defendant's business in order to post bond and that the Defendant had made similar requests as in Nickels's case in exchange for posting the bond. In addition, on July 12, 2000 the officers conducted a "trash cover" on the garbage located outside of the Defendant's office, which led to the discovery of computer images of various unidentified women and of the Defendant's office. Finally, Agent Sutherland and the others talked to Detective Sheldon Johnson, the primary child pornography investigator in Midland.
Relying on Johnson's expertise, Agent Sutherland decided to draft an Application and Affidavit for Search Warrant with respect to the Defendant's home as well as his office and vehicle. The affidavit of Agent Sutherland that was attached to each search warrant application was used in support of all three warrants. The Defendant's home and office were searched by two different teams at approximately the same time on July 14, 2000. Agent Sutherland was involved in one of these simultaneous searches. Nothing was found at the Defendant's office; however, the search of the Defendant's home revealed various pieces of child pornography, and the Defendant was subsequently arrested in connection with these materials on July 17, 2000.
During the search of the Defendant's home, the team that was responsible for that search observed-but did not seize-various firearms. Consequently, a second search warrant for the Defendant's home was executed, and a superseding indictment was filed on August 16, 2000 that added a "felon in possession of firearm" count. Co-defendants Nancy Payne and Mark Anthony Lange were also arrested in connection with this count (as accessories after the fact) on August 16, 2000 and August 17, 2000, respectively. The firearm counts were later severed from the child pornography counts on September 27, 2000, by order of this Court.
DISCUSSION
The Defendant argues that the items of child pornography taken from his home should be suppressed for four reasons. First, the Defendant argues that there was no probable cause to search the home, because all of the information in Agent Sutherland's affidavit supplied probable cause as to the Defendant's office only. Second, the Defendant asserts that the good faith exception to the exclusionary rule does not apply under the facts of this case. Third, the Defendant contends that the search warrant was overbroad. Fourth, the Defendant posits that the information in Agent Sutherland's affidavit upon which the three initial search warrants were based was stale. In addition, the Defendant argues that the firearms taken pursuant to the second search warrant for the house should be suppressed because they were "fruits of the poisonous tree" resulting from the lack of probable cause for the issuance of the first search warrant.
A. Probable Cause
The Defendant first urges that all of the information in Agent Sutherland's affidavit provided probable cause to search the Defendant's office but not his home. While it is a close question whether the warrant, based on the affidavit, is supported by probable cause, the Court finds that under all the circumstances set forth in the affidavit, there was probable cause for the issuance of the warrant.
A search warrant, other than one based on oral testimony, "shall issue only on an affidavit or affidavits sworn to before the federal magistrate judge or state judge and establishing the grounds for issuing the warrant." FED. R. CRIM. P. 41(c)(1) (emphasis added). In determining whether probable cause exists to order a search, "a magistrate is simply to make a practical common-sense decision whether, given all the circumstances set forth in the affidavit before him . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Peden, 891 F.2d 514, 518 (5th Cir. 1989) (citation omitted). Moreover, "any information relied upon by a federal magistrate in determining whether probable cause exists must be made a part of the affidavit or affidavits supporting the warrant." United States v. Acosta, 510 F.2d 1330, 1334 (5th Cir. 1974); see also United States v. Anderson, 453 F.2d 174, 175 (9th Cir. 1971) (holding that "all data necessary to show probable cause for the issuance of a search warrant must be contained within the four corners of a written affidavit given under oath"). Finally, judicial review of a magistrate's determination "must be strictly confined to the information which was brought to his attention." United States v. Hill, 500 F.2d 315, 318 (5th Cir. 1974). A magistrate's determination of probable cause should be paid "great deference" by reviewing courts. Id. at 319 (citing Jones v. United States, 362 U.S. 257, 270-71 (1960)); see also Illinois v. Gates, 462 U.S. 213, 238-39 (1983).
In this case, Agent Sutherland submitted a fairly detailed affidavit describing the results of an investigation into the Defendant's actions. In particular, the affidavit detailed the Defendant's practice of bonding out female prisoners and then engaging in various activities of a sexual nature with them in exchange for his posting the bond. According to the affidavit, the Defendant told one such victim, Starla Nickels, that he had posted photographs of her on the Internet. The affidavit also stated that Ms. Nickels learned from the Defendant that he had a computer with Internet access at his home. The affidavit further stated that on one occasion the Defendant showed Ms. Nickels a series of sexually explicit photographs using a diskette and his office computer. Although the affidavit lacked direct testimony that the Defendant kept materials involving the sexual exploitation of children at his home, from the circumstances listed in the affidavit the magistrate could make a practical, common-sense decision that there was a fair probability that evidence of crimes involving the sexual exploitation of children would be found in the Defendant's home.
With hindsight, Agent Sutherland would no doubt have handled some aspects of this matter differently. For example, the Defendant's home address in the affidavit was incorrect when submitted to the magistrate judge, who then himself had to correct the address and initial next to the change. The correction should have been made before going to the magistrate. Similarly, Agent Sutherland should have been more explicit in his affidavit about his discussions with Detective Johnson and Investigator Beam-who appear to be more experienced than Agent Sutherland in child pornography cases-which discussions led to his belief that "persons engaged in sexual exploitation of children often keep evidence relating to this exploitation in their homes, offices, and vehicles." While neither of these defects is fatal to the existence of probable cause for the search warrant pertaining to the Defendant's home in this case, greater accuracy and detail in preparation of affidavits would clearly help facilitate the magistrate judge's duty to make common-sense decisions regarding the probability of evidence being found in certain places.
B. The Good Faith Exception to the Exclusionary Rule
In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court enunciated the parameters of the good faith exception to the exclusionary rule. After discussing the development of the exclusionary rule, as recognized in Mapp v. Ohio, 367 U.S. 643 (1961), the Court found in Leon that, "our evaluation of the costs and benefits of suppressing reliable physical evidence seized by officers reasonably relying on a warrant issued by a neutral and detached magistrate leads to the conclusion that such evidence should be admissible in the prosecution's case in chief." 468 U.S. at 913. The purpose of the exclusionary rule has long been to deter improper law enforcement behavior and to provide protection for Fourth Amendment guarantees. See id. at 916. But, as the Supreme Court recognized in Leon, the Fourth Amendment violation occurs when the improper search or seizure is effected, and admission of the improperly obtained evidence at trial "work[s] no new Fourth Amendment wrong." Id. at 906 (quoting United States v. Calandra, 414 U.S. 338, 354 (1974)). The exclusionary rule, then, is "a judicially-created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved." Calandra, 414 U.S. at 348.
With this in mind, the Supreme Court recognized the "good faith" exception to the exclusionary rule in Leon. The Court reasoned that, ordinarily, where a magistrate issues an invalid warrant, there is no police illegality and, therefore, nothing to deter. Leon, 468 U.S. at 920-21. The Court rationalized that the exclusionary rule does not have a deterrent effect on the issuing magistrate, as he or she has nothing to gain from issuing an invalid warrant and will most likely be unaware of the later consequences. Id. at 916-17. The exclusionary rule thus should not be used to punish or reprimand a magistrate for the ill-advised issuance of a warrant. Id. at 916.
The deterrent effect of the exclusionary rule is directed toward law enforcement officers who effectuate the searches and seizures. Id. The rule is not intended to place an additional burden on law enforcement. See id. at 918-19. With the numerous demands already placed on law enforcement personnel, they should not be called on to shoulder the additional burden of second- guessing the magistrate to determine whether probable cause for the warrant exists before executing the warrant. See id. at 921. Therefore, the Leon Court found that a law enforcement officer should ordinarily be able to reasonably rely on the magistrate's determination concerning probable cause.
In this instance, the Court finds that there was reasonable reliance. Agent Sutherland testified that his training in child pornography cases told him that this type of criminal activity typically takes place through the use of computers, whether they are located at work or at home. In addition, Agent Sutherland testified that after discussing the case with Detective Johnson and Investigator Beam, he had reason to believe that there was probable cause to search the Defendant's home. He had a good faith belief that he had enough information to validate a search and the magistrate judge agreed. Therefore, the Court concludes that Agent Sutherland and the law enforcement officers involved in the search of the Defendant's house had an objective, good faith belief in the validity of the warrant that supported the search.
The analysis does not stop here, however. The good faith exception is not applicable in all instances in which an officer searches a location or arrests an individual based on a warrant. Four instances in which the good faith exception has been deemed inappropriate and suppression of evidence remains an appropriate remedy are:
1) the magistrate issued the warrant in reliance on a deliberately false affidavit;
2) the magistrate abandoned his judicial role and failed to perform his neutral and detached function;
3) the warrant was based on an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; or
4) the warrant was so facially deficient that it failed to particularize the place to be searched or the things to be seized.
United States v. Breckenridge, 782 F.2d 1317, 1320-21 (5th Cir. 1986) (citations omitted).
The Defendant argues that the first, third, and fourth instances of the inappropriateness of the good faith exception apply to this case. Although Agent Sutherland probably should have been more explicit in his affidavit with respect to all of the grounds for the search of the Defendant's house, his conduct could not be described as rising to the level of deliberate falsification of the affidavit. The Court does not infer malice in Agent Sutherland's actions; indeed, nothing in the record supports such an inference.
Nor can Agent Sutherland's affidavit be characterized as a "bare bones" affidavit. "Bare bones" affidavits contain wholly conclusory statements that lack the facts and circumstances from which a magistrate can independently determine probable cause. United States v. Satterwhite, 980 F.2d 317, 321 (5th Cir. 1992). The test in this situation is whether the warrant is based on an affidavit "so lacking in indicia of probable cause as to render official belief in its existence unreasonable." Leon, 468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610-11 (1975)). The Court finds that the affidavit survives this hurdle. The affidavit stated that Starla Nickels, while working for the Defendant, learned that he had a computer with Internet access at his home. The affidavit also stated that "persons engaged in sexual exploitation of children often keep evidence relating to this exploitation in their homes, offices, and vehicles." While the latter is indeed a conclusory statement, as a whole the affidavit was not so lacking in indicia of probable cause as to render official belief in the validity of the warrant unreasonable.
Finally, the Court does not find that the warrant so deficient that it "failed to particularize the place to be searched or the things to be seized." The warrant was sufficiently particular as to the location of the Defendant's house and it extensively detailed the types of items to be taken during the search of the house. Therefore, in light of all of the facts and legal authorities, the Court is of the opinion that the good faith exception does apply to the search of the Defendant's house.
C. Overbreadth of the Search Warrant
The Defendant also contends that the search warrant for the Defendant's house was overbroad. However, the Court finds that the attachment to the Application and Affidavit for Search Warrant was sufficiently detailed as to the types of items to be seized during the search. It only authorized the seizure of materials, documents, and devices that embodied:
visual depictions of child pornography, child erotica, Information pertaining to the sexual interest in child pornography, sexual activity with children or the distribution, possession, transmission or receipt of child pornography, child erotica or information to the sexual interest in child pornography, sexual activity with children or the distribution, possession, transmissions of [sic] receipt of child pornography, child erotica or information to the sexual interest in child pornography.
In addition, the attachment to the search warrant application incorporated Agent Sutherland's affidavit and thereby lent further particularity to the items to be seized from the Defendant's home. The Court therefore concludes that the search warrant for the Defendant's house provided the searching officers with a sufficiently objective standard to follow in conducting the search.
D. Staleness
The Defendant argues that "the information given to law enforcement, based on the date such information was relayed to law enforcement compared to the warrant [sic] of the Defendant's warrant was executed, is too long a period of time, so that the information was stale." Staleness is determined by the facts of each case, rather than by a mechanical counting of the time between the events alleged in an affidavit and the issuance of a warrant. See United States v. Webster, 734 F.2d 1048, 1056 (5th Cir. 1984). Moreover, staleness can depend upon the nature of the illegal activity, and "when the information of the affidavit clearly shows a long-standing, ongoing pattern of criminal activity, even if fairly long periods of time have lapsed between the information and the issuance of the warrant, the information need not be regarded as stale." Id.
The events alleged in Agent Sutherland's affidavit transpired between approximately April 19, 2000, when Starla Kay Nickels spoke with a Tracy Lynn Massingill in the Midland County Detention Center about bonding out through the Defendant's bond business, and approximately July 13, 2000, when Midland County deputies apparently served papers on the Defendant's office. The search warrant was issued on July 14, 2000. In addition, the affidavit states that Ms. Massingill used the Defendant's bond service in October, 1997, and that at the time of her release, the Defendant brought Ms. Massingill to his offices and engaged in sexual intercourse with her. While the affidavit does not establish that Ms. Massingill was a minor at time of these events, the Court is satisfied that it does sufficiently demonstrate a long-standing, ongoing pattern of criminal activity. Moreover, the last event in the affidavit's time line occurred on either July 12, 2000 or July 13, 2000. That was at most two days before the search warrant was issued. Accordingly, the Court concludes that the information in the affidavit was not stale at the time the search warrant for the Defendant's house was issued.
There is some question about this date since Agent Sutherland's affidavit states that the papers were served on May 13, 2000. Although it is highly likely that this is a typographical error, in any case the affidavit states that law enforcement officers conducted a "trash cover" at the Defendant's office on July 12, 2000. The results of this trash cover were presumably what gave rise to the service of papers that is described in the subsequent paragraph of the affidavit.
E. Fruits of the Poisonous Tree
The Defendant argues that the firearms taken pursuant to the second search warrant for the house should be suppressed because they were "fruits of the poisonous tree" resulting from the lack of probable cause for the issuance of the first search warrant. See Wong Sun v. United States, 371 U.S. 471, 484 (1963). Under the fruit of the poisonous tree doctrine, "all evidence derived from the exploitation of an illegal search or seizure must be suppressed, unless the Government shows that there was a break in the chain of events sufficient to refute the inference that the evidence was a product of the Fourth Amendment violation." United States v. Rivas, 157 F.3d 364, 368 (5th Cir. 1998) (citing Brown v. Illinois, 422 U.S. 590, 602-03 (1975)). The Supreme Court in Wong Sun explained:
We need not hold that all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.371 U.S. at 487-88 (internal quotations omitted). Thus, "an otherwise legal search or arrest cannot stand if probable cause for it was established only by a prior illegal search." See United States v. McKim, 509 F.2d 769, 775 (5th Cir. 1975) (quoting 3 CHARLES ALAN WRIGHT, FEDERAL PRACTICE AND PROCEDURE § 677 (2d ed. 1982)) (emphasis added).
In this case, the Court has found that there was probable cause for the first search warrant pertaining to the Defendant's house, and, in the alternative, that the good faith exception to the exclusionary rule applied to the first search warrant for the Defendant's house. Probable cause for the second search warrant for the Defendant's house was established in the course of this prior valid search. The law enforcement officers who conducted the first search of the Defendant's house observed, but did not seize, various firearms. This observation in the course of executing a valid search warrant supplied probable cause for the second search warrant for the Defendant's house.
As such, the Defendant's characterization of the seized firearms as "fruits of the poisonous tree" must be rejected.
CONCLUSION
The Court, having addressed all of the Defendant's arguments, finds that the evidence taken from the Defendant's house should not be excluded. Accordingly, for the reasons stated above, it is ORDERED that the Defendant's Motion to Suppress Evidence, as fully supplemented, is
DENIED.