stating that "[f]urther forensic analysis of the seized hard drive image does not constitute a second execution of a warrant or a failure to `depart the premises' as defendant claims, any more than would a review of a file cabinet's worth of seized documents"Summary of this case from U.S. v. Cameron
Criminal No. 01-10195-PBS
May 13, 2002
MEMORANDUM AND ORDER
Defendant Kevin Habershaw, charged with possession of child pornography, moves to suppress the fruits of an initial warrantless search conducted at 17A Bicknell Street, Attleboro, Massachusetts on March 31, 2001, and of a later search of his computer pursuant to a warrant. Habershaw claims that the police did not obtain valid consent to search; that the search warrant was not supported by probable cause and did not particularize what was to be searched and seized in violation of Fed.R.Crim.P. 41; and, that the investigating officer's allegedly false statements warrant a Franks hearing. Defendant seeks return of his personal computer and disks, pursuant to Fed.R.Crim.P. 41(e).
This Court held a hearing on December 4 and December 21, 2001, and February 8, 2002, and heard testimony from Detectives James Keane and Arthur Brillon of the Attleboro Police Department, the government's computer expert Detective David Papargiris of the Norwood Police Department, the defendant's computer expert Thomas Workman, psychiatrist Dr. Jonathan Schwartz, and the defendant's father Lawrence Habershaw. After reviewing the evidence, including the supplemental forensic computer evidence, and assessing the credibility of the witnesses, the Court DENIES the motion to suppress.
FINDINGS OF FACT
On the morning of Saturday, March 31, 2001, Detective Keane and Officer Noble of the Attleboro Police Department arrived at 17 Bicknell Street, Attleboro to investigate reports of a man yelling obscenities at a group of small children through a loudspeaker placed in the window. The officers arrived at the apartment building between 10:45 and 10:50 A.M. After Officer Noble observed a speaker on the inner windowsill of 17A Bicknell, Keane and Noble proceeded to knock on the door of that apartment. Keane was dressed in plain clothes without his gun showing; Noble was clad in uniform with his gun and badge showing. The officers did not have a search or arrest warrant.
After Keane knocked on the door, a white male answered and identified himself as Kevin Habershaw. Keane told the defendant that the officers were investigating the loudspeaker incident and asked if they could come in and speak with him regarding the incident. The defendant verbally invited them in and escorted them into the kitchen. The officers did not cross the threshold until then. Defendant told the police that the children outside were bothering him, that he wanted to cooperate with the police and he had nothing to hide. (Tr. 1-25). Keane asked if he could look around. Habershaw agreed. Also, he agreed to Keane's request to see the loudspeaker. Throughout, Habershaw's demeanor was friendly and cooperative.
In the kitchen, Keane and Noble observed trash, spoiled food, toys, baby bottle nipples, two toy guns, adult magazines, and child and adult subject videotapes. Keane noticed that the windows were covered with black cardboard and there were several holes in the walls. The officers spotted three adult pornographic DVDs on the kitchen table, entitled "Perverse Addictions," "Bringing Up Brat," and "Cherry Poppers, The College Years." In response to Keane's questioning, Habershaw stated that he lived alone and that no children stayed at the apartment. He also stated that the children outside his apartment were very loud.
After approximately five to ten minutes in the kitchen, the officers entered the living room with Habershaw between 10:55 and 11:00. Keane observed what appeared to be a handgun across the room. Keane moved across the living room to secure the weapon, and found that it was a repeating pellet gun. Keane also observed several pairs of young girls' flowered underwear, as well as several more adult pornographic and children's videotapes (such as Disney movies) strewn about the floor.
The presence of children's toys, videotapes, and underwear led Keane to ask Habershaw about the underwear. Habershaw stated that the underwear was his and that he liked to dress up and pretend. Habershaw then escorted Keane and Noble to a closet off the living room, and displayed a large collection of girls' and women's undergarments, as well as a large supply of feminine hygiene products and a vibrator.
Keane then asked Habershaw if there was anything else in the apartment he should be concerned about. Habershaw stated there was not. Keane asked if he and Noble could look around the rest of the apartment. Habershaw agreed to show the officers around the apartment.
Habershaw and Keane entered the washroom/utility closet where Keane observed a bucket of used condoms, a "pocket vagina," and a girl's bathing suit bottom. Habershaw explained to Keane that he used the condoms when he masturbated. The two men then entered Habershaw's bathroom where Keane observed several pornographic magazines, such as "Barely Legal," "Just Eighteen," "Co-ed Virgins," and "Teens." None of the magazines or videotapes the police had encountered to this point contained child pornography, and neither Keane nor Officer Noble had yet seen evidence of anything illegal. Keane also observed feminine hygiene products, some of which were soiled.
B. The Computer
Continuing the tour, Habershaw next escorted Keane to the computer room. Keane spotted a hand grenade, which he determined to be fake, and a toy police badge. Two speakers sat on the sofa facing the window.
Keane then took an interest in Habershaw's computer. On the screen, Keane observed what he thought was an e-mail inbox, with addresses he later remembered as "lolita.com," "pre-teensex.com," and "alt-sex.com," as well as several others. Keane recognized these addresses from his training in computer crimes and juvenile crimes as sites that may contain child pornography.
Defendant disputes that Keane actually saw an e-mail inbox open on his computer. In his affidavit, Habershaw states: "The computer was on and displayed newsgroups which were part of ATT Broadband internet service and did not show any e-mails." (¶ 10). The government now concedes that Keane did not see an e-mail inbox, but instead saw a Microsoft Outlook Express newsgroup reader. Specifically, Keane saw the "alt.sex.incest" newsgroup open on Habershaw's computer. A person inexperienced with newsgroups and newsgroup readers could confuse an e-mail inbox with a newsgroup reader. Both display a "From" field showing a sender's address or name, a "Subject" field detailing the subject of the posting, and a "Sent" field showing the time and date of the posting. Some of the addresses display an "@" symbol characteristic of a computer e-mail address. Both the newsgroup reader and the e-mail inbox characterize their entries as "messages," tracking which are "unread." (GX 16F). Computer forensic testimony corroborates that an Outlook Express newsgroup reader was open on the screen for Keane to see. An analysis of files accessed on Habershaw's computer on March 31, 2001, shows that the 45 newsgroups, including "alt.sex.pre-teens" and "alt.sex.incest" were accessed at approximately 10:33, prior to the officers' arrival. (GX 16G). At 11:01, one newsgroup was accessed indicating that the newsgroup reader was still open.
Papargiris describes "newsgroups" as follows:
USENET newsgroups consist of some 15,000+ topical entities which constitute an immense worldwide forum for discussion and discourse. These newsgroups actually pre-date the existence of the World Wide Web and are now an integral part of the "Internet experience." These forums for discussion range in subject from Ancient Art to Zen Buddhism, and within the "threaded" structure of each group emerges the true spirit of debate and a poignant example of freedom of speech. Though a few newsgroups are moderated (having a designated member of the group with oversight powers to keep the discussion on track), most newsgroups are free forums, and may seem at times like free-for-alls, but taken as a whole, they provide a noble service in giving each and every user and equal voice.
Newsgroups can be compared to a bulletin board that you might see at a grocery store or on the wall at any college campus, except that imagine if after pinning a postcard to the bulletin board a duplicate postcard appeared on every bulletin board in every grocery store or college campus in the world within one hour.
File access times are reported as approximate because of the much ballyhooed "seven-minute difference" between the Habershaw computer's internal clock and the internal clock used by the government's forensic computer expert, Officer Papargiris, to analyze Habershaw's hard drive. Defendant's computer expert's attempts to make this discrepancy between clocks (which is actually an approximately nine-minute difference (GX 11)) into something sinister are unpersuasive. By anyone's clock or watch, Habershaw's computer accessed the newsgroup prior to the officers' arrival.
Defendant also disputes that his computer screen was displaying the lolita.com, pre-teensex.com, and alt-sex.com addresses that Keane claims he saw that morning. The government's computer expert reports that several of the newsgroups accessed at 10:33 contained the text "lolita," "alt.sex," and "P=R=E=T=E=E=N." While Defendant's computer expert, John Workman, concedes that the text "lolita.com" appears five times in the alt.sex.incest newsgroup file on Habershaw's computer, he states that the odds of this text actually appearing on the screen that morning were extremely low because the "alt.sex.incest" newsgroup file on Habershaw's computer was so large. I find that Keane is credible in his testimony that he saw pornographic addresses on the screen which piqued his curiosity enough to ask Habershaw to consent to an official police peek. Habershaw acceded to his request.
Between 11:02 and 11:06, Habershaw's computer showed pronounced computer activity. Keane asked Habershaw if the computer had any nude photographs of adults or children. Habershaw responded that he collected photos of nude adult celebrities, and proceeded to sit down at the computer, point to his desktop and open up a file with his mouse. He showed Keane a doctored computer image of a nude Britney Spears. Habershaw explained to Keane how many of these pictures consisted of celebrity heads spliced, or "morphed," onto a picture of a nude model's body. Keane then asked Habershaw if he had any nude pictures of children. Habershaw stated that he didn't think so, but that if he did, they would be in a computer "folder" he pointed out to Keane entitled "ErosPics." In his testimony, Keane identified this folder as "EuroPics."
The record is unclear as to whether the computer was updating newsgroups between 11:02 and 11:06 a.m., or whether the pronounced activity reflects the actions of Habershaw and Keane. In any event, whether the picture of the nude child was viewed at 11:02, 11:21 or 11:27, see infra p. 10, the access was prior to the signing of the consent form.
Keane at this point asked to use the computer mouse and keyboard himself to open up the folder. Habershaw agreed, and pointed a folder for Keane to open. Keane clicked on the folder entitled "Pics," prompting the computer to display icons for four images. Habershaw directed Keane to view one of the images by opening the file with the mouse; Keane complied. The computer image depicted an approximately eleven-year-old nude pre-pubescent girl lying with her legs spread apart on a lawn chair (Tr. 51; Ex. 63). Keane then informed Habershaw that the police would seize the computer, because such images were illegal. Habershaw responded that, "It's better to look than to touch." I find that Keane did not plant evidence on the computer.
C. Consent to Search Form
At approximately 11:15 AM, Keane called Detective Brillon and requested that he bring a camera and a consent-to-search form to the Bicknell Street apartment. Brillon arrived approximately five to ten minutes later with both items. Upon arrival, Brillon began photographing the rooms Habershaw had shown Keane. At 11:40, after the computer search, Habershaw signed an Attleboro Police Department Consent-To-Search form. (GX 10). Prior to signing, Keane read the entire form to the defendant, and the defendant was given several minutes to read the form to himself. Habershaw, Keane, and Noble all signed the consent form, which stated that the form was signed at 11:40. The Consent-To-Search form stated that (1) the defendant had been informed by the officers of his constitutional right not to have a search made of his premises and property; (2) that the defendant willingly gave the officers permission to conduct a complete search of his premises and property; (3) that the defendant granted permission to the officers to take from the premises any property which they desired as evidence for criminal prosecution; and, (4) that signing the document granted the officers permission to search without a warrant. Following defendant's signing of the consent form, Keane advised him of his Miranda rights.
The sequencing of the computer search and the signing of the consent form was the major factual dispute between the government and the defendant. Throughout his testimony, and after repeated questions on this topic, Keane maintained that Habershaw signed the consent form prior to Keane and Habershaw's use of the computer and viewing of the nude images. Defendant marshals persuasive forensic evidence to the contrary, including (1) the considerable amount of computer activity between 11:02 and 11:06 when Keane and Noble were already in Habershaw's apartment; (2) the apparent shutting down of the computer between 11:46 and 11:48; and (3) the accessing of the image of the nude minor at 11:21 and 11:27, and at no subsequent time. The government now concedes that Keane was mistaken as to when the consent form was signed, and that Keane and Habershaw's use of the computer took place prior to the signing of the consent form. The government thus relies on what it considers to be Habershaw's oral consent to the use of the computer.
All three times refer to the time shown by the Habershaw computer clock, which showed a nine minute disparity with Detective Papargiris' computer clock. Adjusting the times by nine minutes would not change the conclusion that the consent form was signed after Keane and Habershaw's computer use.
At 11:55, defendant's father, Lawrence Habershaw, arrived at the Bicknell Street apartment and spoke with the officers. After approximately ten minutes, Lawrence Habershaw left the apartment, and headed to his place of work across the street. Brillon departed shortly thereafter, at 12:15 PM. Habershaw's apartment was occupied by the Attleboro Police Department until 1:33 PM.
On April 3, 2001, Keane applied for and received a search warrant from the Attleboro District Court to search the computer and floppy disks seized from the defendant. According to the return, the search was conducted from April 3 to April 5. The Attleboro detectives enlisted the aid of David Papargiris, a detective with the Town of Norwood Police Department experienced in computer forensic analysis, to aid them in analyzing the seized computer and disks.
A. Search of Apartment and Computer
The defendant first contends that the search of his apartment and computer and the seizure of that computer violated his rights under the Fourth Amendment to the United States Constitution.
1. Defendant's Apartment
Generally, a warrantless search or seizure of a person's home is presumptively unreasonable and prohibited by the Fourth Amendment. Horton v. California, 496 U.S. 128, 133, 110 S.Ct. 2301, 2306 (1990); Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 2797 (1990); United States v. Jones, 187 F.3d 210, 219 (1st Cir. 1999). There are, however, "a few specifically established and well-delineated exceptions" to the warrant requirement. Id. (citing Horton, 496 U.S. at 133 n. 4, 110 S.Ct. at 2306 n. 4).
Police need not obtain a warrant to enter a person's home when that person voluntarily consents to the entry. Rodriguez, 497 U.S. at 181, 110 S.Ct. at 2797 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041 (1973)). Consent must be voluntary, without duress or coercion. Schneckloth, 412 U.S. at 227, 93 S.Ct. at 2047-2048.
Here, the defendant repeatedly consented to the officers' presence in the apartment. The officers knocked on the door, identified themselves, and informed defendant that they were investigating a noise complaint. They then asked if they could come in and speak with the defendant regarding the noise complaint. The defendant consented and verbally invited them in, leading the officers into the kitchen area.
The officers' further investigation of the apartment also took place with the defendant's consent. Habershaw escorted the officers to a closet and opened it to show the officers its contents. While in the living room, Keane again asked if he and Noble could look around the apartment, and the defendant again agreed to show them around.
Defendant argues that the scope of the search exceeded the purpose the officers announced to Habershaw when they arrived at the apartment, namely, the investigation of a noise complaint. Defendant is correct that "a consensual search may not exceed the scope of the consent given." United States v. Turner, 169 F.3d 84, 87 (1st Cir. 1999) (citation and quotation omitted). "The scope of a consensual search is generally defined by its expressed object." Id. (quoting Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1804 (1991)). Such consent, however, may be expanded during the search by the person whose possessions are being searched. The scope of consent is measured by what the typical reasonable person would have understood by the exchange between the officer and the suspect. Id. Here, the scope of the search reasonably included the computer room because that is where the loudspeakers that triggered the police inquiry were located. Once in the computer room, Keane saw the suspicious sites on the screen and asked to expand the search. Where, as here, the suspect accedes to the officer's requests to see the entire apartment, a reasonable person would believe that the scope of the consent had broadened. The officers' initial stated purpose does not, under these facts, render their search of the apartment illegal.
The search of the apartment did not violate defendant's Fourth Amendment rights.
2. Defendant's Computer
Habershaw also verbally consented to the initial search of his computer. He began by operating the computer himself, showing Keane computer files at Keane's request. Keane then asked to use the computer, and Habershaw consented and showed Keane which files to open. See United States v. Laine, 270 F.3d 71, 76 (1st Cir. 2001) (upholding search in which officer asked defendant to open computer files showing on screen, and defendant consented); see also United States v. Lemmons, 282 F.3d 920, 926 (7th Cir. 2002) (upholding search of computer, where defendant assented to officer's request to let the officer operate the computer).
Here, Keane lawfully entered the apartment, watched Habershaw use the computer, and used the computer himself, under the consent exception to the Warrant Clause. When the defendant showed Keane what files to open on the computer, Keane observed contraband images. He therefore had probable cause to seize the contraband in the computer under the plain view doctrine. See Horton, 496 U.S. at 135, 110 S.Ct. at 2307 ("`Where the initial intrusion that brings the police within plain view of such an article is supported, not by a warrant, but by one of the recognized exceptions to the warrant requirement, the seizure is also legitimate.'") (quoting Coolidge v. New Hampshire, 403 U.S. 443, 465, 91 S.Ct. 2022, 2037 (1971) (plurality)); Texas v. Brown, 460 U.S. 730, 738-739 n. 4, 103 S.Ct. 1535, 1541-1542 n. 4 (1983) (noting that the police have legal access to property and contraband they come across while acting pursuant to an exception to the Warrant Clause).
Moreover, following the consensual search of the computer and the discovery of contraband images, and following a review of the Consent-To-Search form, defendant consented to the seizure of the computer. Despite Keane's mistaken testimony regarding when the form was signed, the government proved that defendant voluntarily consented to signing the form and letting the officers seize the computer and disks.
In short, the totality of the circumstances indicates that the Habershaw granted the officers consent to enter the apartment and to seize and search the computer.
3. Voluntariness of Consent
Defendant further contends that if verbal consent was given, such consent was not voluntary. Voluntariness "turns on an assessment of the totality of the circumstances." United States v. Barnett, 989 F.2d 546, 554-555 (1st Cir. 1993). This includes "individualized factors bearing on the vulnerability of the consenting party," whether the person was informed of his or her constitutional rights, and whether permission was obtained by coercive means or under coercive circumstances. Id. at 555.
Defendant contends that he lacked the mental capacity to give voluntary consent. To this end, he offers the testimony of Dr. Jonathan Schwartz, a board-certified adult and child psychologist who treated the defendant from 1992 until 1997, for approximately four hours each year. Dr. Schwartz evaluated the Habershaw dangerousness after his arrest. He also referred Habershaw to Dr. Brett Leimkuhler, a clinical neuropsychologist, for evaluation. Dr. Schwartz testified that, based on his own evaluation and Dr. Leimkuhler's report, defendant could not give "informed consent." Schwartz based this opinion on his determination that Habershaw has "great difficulty in anticipating or understanding the consequences of his actions." (Tr. 1-116).
On questioning by the Court regarding the Leimkuhler report, Dr. Schwartz admitted that defendant could read, and that his verbal comprehension was average, his learning and memory were above average, and his basic language skills were average. Leimkuhler's report indicated that defendant "clearly has significant learning disabilities in the areas of spelling and math, while his reading skills are quite strong." (DX 3). Dr. Schwartz also questioned Leimkuhler's diagnosis of Habershaw as a person with Attention Deficit Hyperactivity Disorder. Although he agrees that defendant is impulsive, he testified that the defendant exhibited no delusional thinking, paranoid deviation, hallucinations, or inability to distinguish reality from fantasy. (Tr. 1-128).
Dr. Schwartz diagnosed Habershaw with impulse control disorder and gender identity disorder. Again, on questioning from the Court, Schwartz admitted that neither of these diagnoses was directly relevant to whether Habershaw could give consent to the search. Neither Dr. Schwartz nor Dr. Leimkuhler (through his report) offers persuasive evidence that defendant was unable to voluntarily consent to the police officers' search of his apartment and his computer.
Based on the totality of the circumstances, the government has proven that defendant's mental state did not preclude him from voluntarily giving consent to the search of his apartment or the search and seizure of his computer. According to the government, Habershaw had four prior arrests. He also has a high school education in special education classes. While defendant may not have fully recognized what might happen if he allowed the police to search his computer, this fact alone does not render his consent involuntary.
Nor did the police coerce or intimidate Habershaw into allowing the search. The evidence indicates a noncoercive interaction between the officers and the defendant. Habershaw escorted the police around the apartment, carrying on a conversation the whole time. Habershaw himself showed Keane which image files to open on his computer. There is no indication that the officers used intimidating tactics to persuade the defendant to allow them into the apartment, to look around the apartment, or to look at the computer. Although the officers did not, prior to entry, inform the defendant of his right to refuse them entry and to withhold consent, they were not required to give that information. See United States v. Esquilin, 208 F.3d 315, 318 (1st Cir. 2000) ("[I]t is not essential that the officers first inform the consenting party of the right to withhold consent.") (quoting Barnett, 989 F.2d at 554-555).
I find that defendant's choices to allow the officers to enter, to lead Keane around the apartment, to show Keane certain computer files, and to allow Keane to operate the computer were each "the products[s] of an essentially free and unconstrained choice." United States v. Chhien, 266 F.3d 1, 7 (1st Cir. 2001) (quotation omitted).
B. Rule 41
Defendant claims that the warrant issued by the Attleboro District Court was overbroad and failed to particularize what was to be searched and seized from the hard drive of defendant's computer, in violation of Fed.R.Crim.P. 41. Because a hard drive may be searched using "key word" searches and other technology, Habershaw claims that Detective Papargiris's essentially sector-by-sector search of the hard drive exceeded the scope of the warrant.
The warrant issued by the Attleboro District Court authorized a search of:
any and all computer hardware, software, files, data, photographs, to include but not limited to; all floppy disks, hard drives, photo imaging drives, for any and all computer directories, subdirectories, files, information, records, data contained on all floppy disks, hard drives, data banks and all other magnetic, or optical computer media, all which related to the crime of possession of child pornography, store[d] in the memory banks of the "Prog Warehouse" personal computer bearing serial number H7DGA01195.
The Fourth Amendment requires that a warrant describe "particularly" the place to be searched and the "persons or things to be seized." U.S. Const. amend. IV. Rule 41 (which is not plainly applicable to state warrants requested by local police officers) operationalizes this mandate. The First Circuit has explicitly held, in a case involving a search for child pornography images on a computer, that a warrant authorizing the seizure and search of the computer and all available disks "was about the narrowest definable search and seizure reasonably likely to obtain the images." United States v. Upham, 168 F.3d 532, 535 (1st Cir. 1999) (stating that a search of a computer and co-located disks was "not inherently more intrusive than the physical search of an entire house for a weapon or drugs.").
Nor does Papargiris's search method violate the warrant clause. The Upham court explicitly upheld a scanning of a entire computer hard drive for images, including deleted images, where the seizure of unlawful images was within the plain language of the warrant. Id. at 537 (stating that such a search was "no different than decoding a coded message lawfully seized or pasting together scraps of a torn-up ransom note."). Therefore, with regard to both the seizure of the computer and disks and the method of searching those items, the Attleboro District Court warrant complied with the strictures of the warrant clause.
Defendant also claims that the search was not conducted within ten days of the issuance of the warrant, as required by Rule 41(c)(1), because the FBI Special Agent assigned to the case conducted a further search of the computer fourteen days after the issuance of the warrant. Defendant offered no evidence on this point, however. Under Rule 41(c)(1), the warrant "shall command the officer to search, within a specified period of time not to exceed 10 days, the person or place named for the property or person specified." Fed.R.Crim.P. 41(c)(1). Detective Papargiris completed his analysis of defendant's hard drive on April 3, 2001, and Detective Keane completed the return of the warrant within ten days. This execution of the warrant, namely the seizure of the electronic information on the hard drive, took place well within the ten days allowed. Further forensic analysis of the seized hard drive image does not constitute a second execution of the warrant or a failure to "depart the premises" as defendant claims, any more than would a review of a file cabinet's worth of seized documents.
Defendant argued in his first memorandum that FBI Special Agents did not search the hard drive until 14 days after issuance of the warrant. However, defendant has never pressed this point, and there is no evidence in the record to support it.
C. Probable Cause
In his initial Memorandum of Law in support of his Motion to Suppress, Habershaw argued that the warrant to search the computer was not supported by probable cause, because the pornographic image of the child was not presented to the Magistrate. This argument was not pressed in defendant's further submissions, or during the three days of hearings held on this matter. The government contends that a copy of the image was, in fact, attached to the search warrant affidavit. Neither party, however, has submitted evidence as to whether the image was or was not attached, and I make no finding on the point.
Under current First Circuit law, "a magistrate judge must [ordinarily] view an image in order to determine whether it depicts the lascivious exhibition of a child's genitals." United States v. Brunette, 256 F.3d 14, 19 (1st Cir. 2001). Yet the First Circuit issued Brunette more than two months after Keane submitted the warrant application. The Brunette court held that because the state of the law regarding the attachment of the contraband images to the search warrant affidavit "remained unclear at the time of the . . . warrant application," the warrant would be acceptable under the good faith exception. Id., at 20-21; see United States v. Leon, 468 U.S. 897, 920-21 (1984) (allowing reliance on objectively reasonable warrant). Here, the search warrant affidavit included ample evidence to support probable cause apart from the terse description of the picture. The agent described a photograph depicting "a completely nude child standing with her legs spread apart"; a statement by Mr. Habershaw that "It is better to look and not to touch, I have never touch [sic] any young girls"; the addresses on the computer screen from "sites as depicting naked young children in photographs, stores and cartoons in sexual situations"; and Habershaw's apartment cluttered with little girls' clothes and panties. Consequently, even if the picture was not attached to the warrant application, the search of the computer would still be supported by probable cause or valid under the good faith exception.
D. Franks Violation
Defendant also demands a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), based on the misstatements of fact Keane allegedly made in the search warrant application affidavit. Paragraph Nine of the search warrant application affidavit states:
I observed that Mr. Habershaw's personal computer was on and that the monitor was displaying Mr. Habershaw's E-mail mailbox. I observed that Mr. Habershaw was receiving E-mails from many locations including addresses titled "lolita.com, pre-teensex.com, alt.sex.com and younglove.com". As a result of several other investigations that I have conducted involving the sexual exploitation of children, I recognized these sites as depicting naked young children in photographs, stories and cartoons in sexual situations.
To be entitled to a Franks hearing, a defendant must show not only that the statement was "knowingly and intentionally false, or made with reckless disregard for the truth," but also that the statement is material to a finding of probable cause to support the issuance of the warrant underlying the search. United States v. Charles, 213 F.3d 10, 24 (1st Cir. 2000) (citing Franks v. Delaware, 438 U.S. 154, 171-172, 98 S.Ct. 2674 (1978)); United States v. Vargas, 931 F.2d 112, 114 (1st Cir. 1991).
As a practical matter, this Court has already held a three-day evidentiary hearing covering the issues that would likely be a focus of a Franks hearing. Defendant has not shown that an intentionally false material statement regarding e-mail was made, because this Court has found that Detective Keane did see the addresses listed in the affidavit displayed on Habershaw's computer screen, albeit in newsgroups rather than e-mails.
Defendant's Motion to Suppress Evidence and for Return of Property (Docket Nos. 31, 65) and his Amended Motion to Suppress Evidence including a demand for a Franks hearing (Docket No. 65) are therefore DENIED.