Case No. 04-40005-01-RDR.
August 10, 2004
MEMORANDUM AND ORDER
This matter is presently before the court upon several pretrial motions filed by the defendant. The court has conducted a hearing on the motions and heard oral argument. The court is now prepared to rule.
The defendant is charged in a three-count indictment. He is charged with sexual exploitation of a child in violation of 18 U.S.C. § 2251(a) (Count One) and (2) possession of child pornography in violation of 18 U.S.C. § 2252A(5)(B) (Count Two).
In Count Three, the government seeks forfeiture of certain items allegedly used to commit and promote the aforementioned offenses.
The defendant was charged with aggravated criminal sodomy in state court based upon the background of the instant case. He entered a no contest plea and was sentenced to ten years probation. Following the sentence, the defendant was indicted by a federal grand jury.
The defendant filed the following pretrial motions: (1) motion to dismiss Count One; (2) motion to suppress videotapes and other seized property, except computer storage devices and related equipment; and (3) motion to suppress evidence from computer hard drive disk and other computer storage devices. Having heard evidence on these motions, the court shall now proceed to consider them.
On September 25, 2002, Detective Scott Askew of the Shawnee County Sheriff's Department prepared an affidavit in support of a search warrant for the residence located at 920 S.E. 33rd Street in Topeka, Kansas. The defendant lived at that location. In the affidavit, Detective Askew stated in the introduction: "This affidavit is made in support of an application for a warrant to search the entire premises located at 920 SE 33rd Street, Topeka, Shawnee County, Kansas. Additionally, this application is to search any computer media found therein." The affidavit was based upon information received from a woman who had visited the residence. This woman had previously worked as a confidential informant for the Shawnee County Sheriff's Department. While at the defendant's residence, she observed the defendant view what she believed was child pornography on his computer. The woman described a movie on the computer that involved a young white female girl performing oral sex on an older male. The woman also recounted a conversation with the defendant in which he requested that she provide him with young girls and he would "pay hundreds of dollars." Finally, the affidavit contained a summary of Detective Askew's training and experience with computers and their use in the production and distribution of child pornography.
Detective Askew submitted the affidavit to Judge Thomas Conklin of the District Court of Shawnee County on September 25, 2002. Judge Conklin issued a warrant authorizing law enforcement officers to search the house at 920 S.E. 33rd and to seize 17 categories of materials, including "[a]ny and all computer hardware," and "[a]ny and all computer software." The warrant further directed law enforcement officers to seize motion picture films, videocassettes, books, magazines and photographs of "minors engaged in sexually explicit conduct." The warrant stated: "You are therefore commanded forthwith to search the person, place, thing or means of conveyance herein specified within ninety-six (96) hours of the date and time hereof, for such items, seize and hold them to be dealt with according to law and make due return of this warrant."
Detective Askew and other officers from the Shawnee County Sheriff's Department began searching the defendant's home at 2:04 p.m. on September 25, 2002. Detective Askew located a computer and removed the hard disk drive from that computer. Detective Askew inserted the hard disk drive in a computer device and connected it to a laptop computer he had brought with him to the defendant's home. Detective Askew viewed various files to determine if the hard disk drive contained child pornography. He also used his laptop computer to view a computer floppy disk found in the residence. He believed that it also contained child pornography. Detective Askew returned the search warrant to Judge Conklin on September 26, 2002.
On September 26, 2002, Detective Askew requested the help of Special Agent Jim Kanatzar of the Bureau of Immigration and Customs Enforcement. He sought assistance in the search of the hard disk drive taken from the computer in the defendant's home.
Agent Kanatzar has investigated over 100 child pornography cases. He has received considerable training in this area, particularly in searching computers for child pornography. He has searched over 100 computers for child pornography.
Agent Kanatzar received the hard disk drive from defendant's home on October 1, 2002. Agent Kanatzar used a software program known as "EnCase" to examine the contents of the hard disk drive. He first looked at the directories displayed on the disk drive. He opened each of the directories to view the files in them. He opened a number of files to consider the contents. Primarily, he was interested in a given file based upon the name given it or the extension at end of the name. Suggestive names are usually indicators of child pornography. Computer extensions also provide clues about what is in the file. For example, extensions such as ".jpg," ".bmp," or ".gif" commonly contain child pornography. In addition, files with extensions such as ".imp," and ".rm" refer to movies and may also contain child pornography. Agent Kanatzar discovered a number of files with the aforementioned extensions that contained child pornography on the seized hard disk drive. He did not open every file. In fact, he specifically excluded all files with extensions of ".exe" and ".dll." Agent Kanatzar almost immediately found the file that started this investigation. He copied four movies from the hard disk drive to a CD-ROM and sent them to Detective Askew during the first week of October 2002. Detective Askew received the CD-ROM disk from Kanatzar on October 9, 2004.
Agent Kanatzar later completed his examination of the hard disk drive. During his subsequent examination, he was looking for evidence of production and distribution. He found no evidence of distribution. Agent Kanatzar did three text searches using the words "grimmett," "hotmail," and "msn." He bookmarked various files. He bookmarked only 73 files, although he believed that the hard disk drive contained over 1500 files with child pornography.
MOTION TO SUPPRESS VIDEOTAPES AND OTHER SEIZED PROPERTY, EXCEPT COMPUTER STORAGE DEVICES AND RELATED EQUIPMENT
The defendant seeks to suppress the following items that were seized pursuant to a search warrant on September 25, 2002: (1) all videotape recordings; (2) certain other non-computer related property; and (3) all evidence derived from illegally seized evidence, including the identity and testimony of the minor boy depicted in the videotapes. The defendant contends that this property was seized in violation of the Fourth Amendment because (1) the search warrant application did not demonstrate probable cause to believe that printed photographs or videotapes of child pornography were located at defendant's residence; and (2) the search warrant application was so deficient in its proof of probable cause that a reasonable law enforcement officer would have known that it was constitutionally inadequate to authorize the seizure of anything except storage devices and related equipment.
The defendant suggests that the state court judge lacked probable cause to issue a warrant for more than the child pornography contained on the defendant's computer. The defendant contends that the search should have been restricted to the image described by the confidential informant and like images. The defendant argues that no probable cause existed for the seizure of any videotapes or photographs. The defendant points to United States v. Weber, 923 F.2d 1338 (9th Cir. 1990) for support. The defendant also contends that the good faith exception adopted in United States v. Leon, 468 U.S. 897 (1984) cannot save this search.
Under the Fourth Amendment, no search warrant may issue except "upon  probable cause, supported by Oath or affirmation, and  particularly describing the place to be searched, and the person or things to be seized." U.S. Const. amend. IV. This language imposes a common sense standard on the judicial officer authorizing the issuance of a warrant. Brinegar v. United States, 338 U.S. 160, 175 (1949). "The particularity requirement ensures that a search is confined in scope to particularly described evidence relating to a specific crime for which there is demonstrated probable cause." Voss v. Bergsgaard, 774 F.2d 402, 404 (10th Cir. 1985).
In United States v. Campos, 221 F.3d 1143 (10th Cir. 2000), the Tenth Circuit rejected a challenge similar to the one made by the defendant. There, a complainant notified the Federal Bureau of Investigation that the defendant had sent him two images of child pornography via computer electronic mail. Based upon this information, the FBI obtained a search warrant to search the defendant's residence and computer. The search warrant authorized the FBI to seize computer equipment which may be used to visually depict child pornography and books, magazines, films and videos containing images of minors engaged in sexually explicit conduct. The defendant sought to suppress the evidence obtained from his residence. He argued that the search warrant was overly broad and therefore violated the Fourth Amendment. He asserted that the search warrant of his residence should have been limited to the search of his computer for the two images he sent to the complainant. The Tenth Circuit disagreed. The Tenth Circuit determined that the search of the defendant's computer files in another location after the seizure of the computer was appropriate and reasonable. 221 F.3d at 1147. The Court further noted the absence of any case law supporting the defendant's contention that the search of the residence should have been limited to the documents provided by the complainant. Id. The Court, citing United States v. Hall, 142 F.3d 988, 996-97 (7th Cir. 1998) and United States v. Lacy, 119 F.3d 742, 746 (9th Cir. 1997), cert. denied, 523 U.S. 1101 (1998), noted that a number of courts had upheld warrants similar to the one challenged by the defendant. Id. at 1147-48.
With the application of the common sense standard, the court finds that the search warrant was sufficiently particular and supported by probable cause. The affidavit here provided information that defendant possessed child pornography, had an interest in having sex with young children, and was willing to pay to have young children brought to him for sex. The affidavit further noted that child pornographers use computers to compile child pornography from books and videotapes. These circumstances provide an adequate basis for the state court judge to determine there was probable cause that child pornography, in various media, would be found in the defendant's residence.
The court is not persuaded that the Ninth Circuit's decision in Weber, the case relied upon by the defendant, requires a different result. Even if it did, we believe that Campos is controlling here. In Campos, the Tenth Circuit considered virtually the same argument as the one raised by the defendant here and rejected it. We shall reject it also. Accordingly, the court shall deny defendant's motion to suppress. With this decision, the court need not consider if the good faith exception adopted in Leon applies to this case.
MOTION TO SUPPRESS EVIDENCE FROM COMPUTER HARD DRIVE DISK AND OTHER COMPUTER STORAGE DEVICES
The defendant seeks to suppress all computer files found on the hard disk drive or other computer storage devices seized from his residence pursuant to the search warrant. The defendant contends that suppression is required because (1) the warrant did not authorize a search of the computer storage devices seized; (2) the search of the computer hard drive and the storage devices occurred several days after the execution of the search warrant; and (3) the scope of the search was unreasonable since no effort was made to limit the search and no second search warrant was sought after the computer examiner noticed files with names suggesting child pornography.
The court finds no merit to the defendant's initial argument. He has suggested that, although the search warrant allows for seizure of the computers and computer storage devices, the warrant did not authorize a separate search of the computer storage devices for child pornography. The defendant has overlooked the language of the search warrant. The warrant clearly authorizes law enforcement officers to "search . . . the thing . . . herein specified." Included among the things to be seized and searched are the hardware and software of the defendant's computer. Moreover, the law is well-settled that the authority to seize a computer includes the authority to search a computer. See United States v. Upham, 168 F.3d 532, 535 (1st Cir.) (second warrant for search of computer not required), cert. denied, 527 U.S. 1011 (1999); United States v. Simpson, 152 F.3d 1241, 1248 (10th Cir. 1998) (second warrant not required to search computer disks and hard drive because they are not second containers separate from computers themselves).
The defendant next argues, relying upon Kansas law, that the search of the hard drive and other storage devices did not occur in a timely fashion. The defendant points out that Kansas law requires that search warrants be executed within 96 hours after a warrant is signed. He contends that the search of the hard drive and storage devices did not occur until long after the expiration of the 96 hours.
The facts before the court clearly show that the search of the hard drive and the computer disks did not occur within the 96-hour period, even though the warrant was executed and returned within the 96-hour time limit. The court, however, does not find the failure to search the computer's hard drive and computer disks within the 96-hour period violative of the Fourth Amendment.
In addressing the issue raised by the defendant, the court need only consider if the defendant's Fourth Amendment rights were violated, not whether state law was violated. As explained in United States v. Green, 178 F.3d 1099, 1105 (10th Cir. 1999):
"It is, however, well established in this circuit that `in federal prosecutions the test of reasonableness in relation to the Fourth Amendment protected rights must be determined by Federal law even though the police actions are those of state police officers.'" United States v. Le, 173 F.3d 1258, 1264 (10th Cir. 1999) (quoting United States v. Miller, 452 F.2d 731, 733 (10th Cir. 1971)). This is because "`the exclusionary rule is only concerned with deterring [federal] Constitutional violations.'" Id. (quoting United States v. Wright, 16 F.3d 1429, 1437 (6th Cir. 1994)). Thus, "the fact that the arrest, search, or seizure may have violated state law is irrelevant as long as the standards developed under the Federal Constitution were not offended." Id. (citation omitted).
The conduct of law enforcement officers in executing a search warrant is governed by the Fourth Amendment's mandate of reasonableness . United States v. Hargus, 128 F.3d 1358, 1363 (10th Cir. 1997), cert. denied, 523 U.S. 1079 (1998). The Fourth Amendment does not provide a specific time in which a computer may be subjected to a government forensic examination after it has been seized pursuant to a search warrant. United States v. Hernandez, 183 F.Supp.2d 468, 480 (D.P.R. 2002). The court finds that the Fourth Amendment requires only that the subsequent search of the computer be made within a reasonable time. See Berger v. New York, 388 U.S. 41, 58-60 (1967). The court finds that the subsequent search was conducted within a reasonable time since it was concluded within a few weeks of the execution of the warrant. The court believes that it is reasonable to conduct a search of a computer off-site, after the return of the warrant. See Hernandez, 183 F.Supp.2d at 480-81;United States v. Habershaw, 2001 WL 1867803 at *8 (D.Mass. 2001);Commonwealth v. Willis, 10 Mass.L.Rptr. 429, 1999 WL 815818 at *8-9 (Mass.Super. 1999); see also Hargus, 128 F.3d at 1363-64 (10th Cir. 1997) (records from wholesale seizure of file cabinets can be searched off-site, after return of the warrant). Accordingly, the court finds that this argument does not require suppression of the evidence seized from the defendant's computer.
Finally, the defendant contends that the government performed an impermissible general search of the computer. The defendant suggests that law enforcement officers failed to minimize during the search of his computer. The defendant further suggests that law enforcement officers illegally searched his computer by failing to follow the rules adopted in the Tenth Circuit concerning the scope of the search of computers.
The court finds no factual or legal support for these arguments. The evidence presented to the court through the testimony of Agent Kanatzar shows that considerable efforts were made to minimize the search of the files on the defendant's computer. Agent Kanatzar did not view all of the files on the defendant's computer. Rather, he attempted to limit his search to those files that dealt with child pornography.
The court also finds that Tenth Circuit case law provides no support for the defendant's contention. The defendant contends, relying uponUnited States v. Carey, 172 F.3d 1268 (10th Cir. 1999) and Campos, that law enforcement officers in this case failed to use the "special approach" mandated by the Tenth Circuit for searching computer files.Carey and Campos demand only that law enforcement officers take a "special approach" when they discover files in a computer search that contain information that is both relevant and irrelevant to the scope of the search. See United States v. Fiscus, 64 Fed.Appx. 157, 164 (10th Cir. 2003). Here, as in Fiscus, there is no evidence that Agent Kanatzar discovered images of child pornography in files intermingled with other information not relevant to the scope of their search. Accordingly, the defendant's reliance upon Carey and Campos is futile.
MOTION TO DISMISS COUNT ONE OF THE INDICTMENT
The defendant seeks to dismiss Count One of the indictment. He contends that the statute under which he is charged, 18 U.S.C. § 2251(a), is unconstitutional both on its face and as applied because there is an insufficient contact with interstate commerce. He notes that the conduct here was strictly intrastate in character and there is no allegation of any intent to transmit the pornography beyond Kansas. He relies upon three cases: United States v. Matthews, 300 F.Supp.2d 1220 (N.D.Ala. 2004); United States v. McCoy, 323 F.3d 1114 (9th Cir. 2003); United States v. Corp, 236 F.3d 325 (6th Cir. 2001).
In Count One, the defendant is charged with enticing and coercing a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of such conduct, knowing and having reason to know that such visual depiction was produced using materials that had been mailed, shipped, and transported in interstate and foreign commerce in violation of 18 U.S.C. § 2251(a). The allegations underlying this count are as follows: The defendant lured a six-year-old boy to his house. The defendant undressed, laid down on a bed, then instructed the child how to masturbate him and to perform fellatio on him. The defendant taped the sodomy with an 8mm video camera, copied the 8mm tape onto a VHS tape, and then loaded eight still pictures of the videotape onto his computer. The tapes were found as a result of a search of the defendant's residence. There was no evidence that the defendant had distributed, or intended to distribute, the tapes or the pictures to anyone else.
The government notes that a number of cases have determined that the statute and its sister statutes are constitutional, both on their face and as applied. See United States v. Holston, 343 F.3d 83 (2nd Cir. 2003); United States v. Buculei, 262 F.3d 322 (4th Cir. 2001), cert. denied, 535 U.S. 963 (2002); United States v. Rodia, 194 F.3d 465 (3rd Cir. 1999), cert. denied, 529 U.S. 1131 (2000); United States v. Kallestad, 236 F.3d 225 (5th Cir. 2000); United States v. Angle, 234 F.3d 326 (7th Cir. 2000), cert. denied, 533 U.S. 932 (2001).
The statute in question here, 18 U.S.C. § 2251(a), provides as follows:
(a) Any person who employs, uses, persuades, induces, entices, or coerces any minor to engage in, or who has a minor assist any other person to engage in, or who transports any minor in interstate or foreign commerce, . . . with the intent that such minor engage in, any sexually explicit conduct for the purpose of producing any visual depiction of such conduct, shall be punished as provided under subsection (d),  if such person knows or has reason to know that such visual depiction will be transported in interstate or foreign commerce or mailed,  if that visual depiction was produced using materials that have been mailed, shipped, or transported in interstate or foreign commerce by any means, including by computer, or  if such visual depiction has actually been transported in interstate or foreign commerce or mailed.18 U.S.C. § 2251(a) (2000).
Section 2251(a) is part of a broad regulatory scheme designed to prohibit the production, receipt, transmission and possession of child pornography. See 18 U.S.C. §§ 2251, 2252, 2252A. The statute was originally enacted as part of the Protection of Children Against Sexual Exploitation Act of 1977, Pub.L. No. 95-225, § 2(a) (1978). It targeted production of child pornography only if the pornographic depiction itself was transported in interstate commerce, or if the defendant knew, or should have known, that the depiction would be transported in interstate commerce. In 1998, Congress amended the Act by adding the jurisdictional element we have before us today: only the materials used to produce the pornographic depictions must "have been mailed, shipped, or transported in interstate or foreign commerce by any means. . . ." to subject a potential defendant to liability. 18 U.S.C. § 2251(a).
Recently, in United States v. Morales-De Jesus, 372 F.3d 6 (1st Cir. 2004), the First Circuit considered the same arguments raised by the defendant here in a case involving remarkably similar factual circumstances. There, the defendant was convicted of using materials mailed, shipped and transported in interstate or foreign commerce to produce a video recording of a sexually explicit encounter with a minor in violation of 18 U.S.C. § 2251(a). The defendant had induced a thirteen-year-old girl to have sex with him. During the encounters, he used materials and equipment that had moved in interstate commerce to videotape the pair's sex acts. The video was apparently created for his own personal use and was not intended for commercial purposes. The defendant asserted facial and as-applied constitutional challenges to the constitutionality of § 2251(a). Relying on United States v. Lopez, 514 U.S. 549 (1995) and United States v. Morrison, 529 U.S. 598 (2000), the defendant argued that § 2251(a) is unconstitutional because it attempts to regulate intrastate child pornography created exclusively for personal use which does not affect interstate commerce. The defendant also asserted that the statute was unconstitutional as applied to him because his activities were not commercial in nature and did not implicate interstate commerce. The First Circuit rejected both arguments. This court has thoroughly examined the analysis used and the rulings made by the First Circuit. We concur with the holdings in Morales-De Jesus and believe that they are equally applicable here. Based upon those rulings, we must reject the defendant's facial and as-applied challenges to the constitutionality of § 2251(a). Accordingly, the defendant's motion to dismiss Count One shall be denied.
IT IS THEREFORE ORDERED that defendant's motion to dismiss Count One (Doc. # 22) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion to suppress videotapes and other seized property, except computer storage devices and related equipment (Doc. # 27) be hereby denied.
IT IS FURTHER ORDERED that defendant's motion to suppress evidence from computer hard drive disk and other computer storage devices (Doc. # 26) be hereby denied.
IT IS SO ORDERED.