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U.S. v. Stabile

United States District Court, D. New Jersey
Jan 21, 2009
Criminal No. 08-145 (SRC) (D.N.J. Jan. 21, 2009)

Summary

finding that consent was voluntary and drawing a distinction between a representation that a warrant will issue, in which case consent is valid, and a representation that an officer will seek a warrant if consent is not given, citing United States v. Sebetich, 776 F.2d 412, 424-25 (3rd Cir. 1985)

Summary of this case from United States v. Sharp

Opinion

Criminal No. 08-145 (SRC).

January 21, 2009


OPINION


This matter comes before the Court upon the motion by Defendant Salvatore Stabile ("Defendant" or "Stabile") to suppress evidence found on some of the six computer hard drives seized during a search of Stabile's home on July 24, 2006 and later searched by detectives. At issue are 196 videos and 86 thumbnail pictures containing images of child pornography. Defendant challenges the legality of the evidence on two grounds: (1) that the warrantless search of the home itself was invalid because Stabile's wife had involuntarily consented to the search and/or Stabile revoked consent to the search; and (2) the searches of the computer hard drives for evidence of child pornography were not authorized by a warrant. Plaintiff the United States of America (the "Government") has opposed the motion. The Court held an evidentiary hearing, including witness testimony, on September 3 and 16, 2008, and heard argument from counsel on the motion on August 12, 2008 and again on December 4, 2008. It has considered the exhaustive briefs, oral arguments, and evidence presented by the parties. Indeed, the Court commends the attorneys for both parties for their fine work advocating their respective positions on a complex issue presented in a unique factual scenario. For the reasons discussed below, the Court denies Defendant's motion to suppress.

I. FACTS

In the early afternoon of July 24, 2006, three law enforcement officers — Agents Christopher Albanese and John Croes of the United States Secret Service and Detective Joseph Nieciecki of the Bergen County Sheriff's Department — came to the Mahwah, New Jersey home shared by Defendant Stabile and his then-wife Debbie Deetz. Stabile was not home at the time the officers arrived. When Deetz answered the door, the officers identified themselves and asked to speak to Deetz about their ongoing criminal investigation of Stabile. Deetz agreed to do so, and upon their request, she allowed the three officers to enter the house. She testified that she asked them to sit at a table near the living room and offered them something to drink. The officers spoke with Deetz about why they had come to the home and explained that they had evidence indicating he had been passing fraudulent checks and engaging in financial crimes. They stated that they wished to search the house for evidence of financial crimes and that they needed to obtain her written consent before commencing the search. Agent Albanese, the lead agent in the investigation, informed Deetz of her right to refuse consent and that, if she did not consent, the officers would have to petition the court to issue a search warrant. Deetz reviewed the consent form the officers presented and thought for at least half an hour about whether to consent. The consent to search form authorized a complete search of the premises of the Mahwah home Deetz shared with Stabile. Deetz testified that she voluntarily signed the consent form because for some time she had her own suspicions about Stabile's behavior, including with regard to finances, and felt that the search was the only way she would get answers to the questions she had. She recalls that she signed the consent form at some time between three and four that afternoon.

Stabile and Deetz, now divorced, were married during the time period relevant to the motion before the Court, and thus the Court will refer to Ms. Deetz as Stabile's wife in this Opinion.

According to the Government's brief, the investigation began when an attorney for the bank holding the mortgage to the Mahwah home reported to law enforcement that Stabile had delivered to the attorney's Parsippany, New Jersey office three counterfeit checks drawn against Union Federal Bank, in an effort by Stabile to forestall foreclosure of the Mahwah home. In the investigation, law enforcement also learned that Stabile had filed for bankruptcy and that his bankruptcy trustee had received from him a $9,000 check drawn against a Union Federal Bank account, which turned out to be fraudulent.

The search commenced promptly afterward. The officers asked Deetz where the computers were, and Deetz showed them two computers and various hard drives, located on the main floor and in the basement. Within about an hour and a half of the start of the search, two members of a Bergen County forensic unit arrived. She also showed them where the computers and hard drives were located. They removed six hard drives from the home. Deetz testified that to do this, they dismantled the computers, and Deetz assisted them by offering a screwdriver from Stabile's toolbox. The forensic unit left the home with the hard drives. Stabile was not present during the forensic team's search and its removal of the hard drives. Various other material was also seized during the search, including financial documents and various DVDs believed at the time to contain child pornography. Agent Albanese testified that in the area of the first-floor computer, the officers found a copy of a $9,000 check suspected to be one of the counterfeit checks Stabile negotiated, blank check stock and a check writing program. Blank check forms and other items the officers believed could be used in the creation of counterfeit checks were also found in the area around the basement computer and hard drives.

Deetz then sat down to talk further with Albanese and the other two officers while they waited for Stabile to arrive. Stabile arrived at about 7:15 or 7:30 p.m., at least one hour after the forensic team left. The officers said they needed to speak to Stabile privately, and Deetz left the room and went out on the back deck. Stabile testified that at that point the officers began to try to ask him questions about presenting counterfeit checks, but he refused to talk with them, informing them he would not do so without an attorney present. He also asked them to leave, and when the officers told him that his wife had already given them consent to search the premises, Stabile expressly told them that he withdrew consent. He testified that he said "I take it back." According to Stabile's testimony, the officers did not immediately leave the Stabile residence; rather, he recalls that they left at approximately 8:45 p.m. Before the officers left the home that evening, Stabile did not request that the hard drives, which had been removed from the premises prior to his arrival, be returned to him. In fact, it is undisputed that he did not request the return of his seized property until after his arrest.

Stabile was arrested on or about October 10, 2007 in connection with the charges filed in this action.

On or about October 19, 2006, Agent Albanese swore out a search warrant affidavit before Judge Salem Vincent Ahto of the Superior Court of the State of New Jersey. Agent Albanese explained that in the time that lapsed between the search of the Mahwah home and his application for a search warrant, he had been fulfilling various protective assignments, including the protection of the President, Vice-President, British Prime Minister and others, which took him out of the New Jersey district for weeks at a time. Judge Ahto issued a search warrant on October 19, 2006. (The search warrant issued by Judge Ahto on October 19, 2006 will hereinafter be referred to as the "state search warrant.") It states that law enforcement was authorized to search the computer hard drives for "evidence of both financial crimes and the possession of child pornography." (Hutchinson Aff., Ex. E.) The Morris County Inventory Receipt identifies the six hard drives as follows:

Judge Ahto sits in Morris County, New Jersey. Although the Stabile home, where the seized evidence was located, was in Bergen County, the investigation at the time was centered in Morris County, where Stabile allegedly delivered three counterfeit checks to an attorney.

(1) Western Digital 40 GB 3.5 inch HDD, Ser # WMAAT1253959
(1) Western Digital 120 GB 3.5 inch HDD, Ser # WMAAT2323593
(1) Western Digital 2559.8 MB 3.5 inch HDD, Ser # WM3491805359
(1) Seagate 3.5 inch HDD, Ser # LAA62086
(1) Quantum 3.5 inch HDD, Ser # 824909331341
(1) Samsung6.8 GB 3.5 inch HDD, Ser # 0149J1FKB07213

(Def. Ex. 2, at 3.)

Probable cause to search the hard drives for child pornography was based on Agent Albanese's belief that some of the DVDs contained child pornography. The affidavit he swore in support of the state search warrant stated that "This Affiant believes these DVDs contain labels with language that refers to mature women and young boys and contains images of minors." (Hutchinson Aff., Ex. A, ¶ 9.) Agent Albanese also requested, in the affidavit, permission to view the DVDs. However, state law enforcement officers had, at some time before October 19, 2006, already reviewed the DVDs and determined that they did not contain child pornography. Agent Albanese, a federal law enforcement officer and the lead case agent on the investigation of Stabile, testified that he was not aware of this at the time he applied for the state search warrant.

Pursuant to the state search warrant, Detective Christopher Vanadia of the Morris County, New Jersey Prosecutor's Office began his forensic review of the hard drives in approximately mid-November 2006. He began his search with the 120 gigabyte Western Digital Drive, Ser # WMAAT2323593 (the "120 GB hard drive"). Because the Morris County Prosecutor's Office was concerned only with the financial crimes of which Stabile was suspected (at least three of the counterfeit checks were passed in Morris County), Detective Vanadia had been instructed to search for evidence of check fraud and other financial crimes. He had further been instructed that should his search reveal evidence of child pornography, he should stop the search so that the federal authorities could be notified. When Detective Vanadia looked at the 120 GB hard drive's file structure, he noticed extra files and folders not normally found in the Windows operating system, that is, not created by the operating system but by the computer user. One of these folders was labeled "Kazvid." From his experience in computer forensics, the detective believed the folder to be related to "Kazaa," a peer-to-peer file sharing program that allows users to search and share files, including music files, movie files, pictures and programs. He also testified that he has found that Kazaa is used by people engaging in the distribution or sharing of child pornography.

Detective Vanadia "highlighted" the folder, a procedure which allowed him to view a list of file names of the files contained within that folder. He explained that he opened the folder because its unusual location on the hard drive led him to suspect that it could contain items an individual would wish to conceal, such as, in Stabile's case, evidence of check fraud. In his experience, people would give folders or files names unrelated to their contents in an effort to hide the material the folders or files stored.

Upon opening the Kazvid folder, various file names of the files contained within that folder appeared on screen. He saw that various video files contained acronyms that he knew to be associated with child pornography: "PTHC" meaning pre-teen hardcore sex, "PEDO" meaning pedophile-related files, and "6YO" or a similar variant, meaning "six-year-old." Some file names identified a sex act, and whether a boy or girl was involved, following the "YO" age designation.

Though he associated these file names with child pornography, and admitted he did not suspect that those files would contain evidence of financial crimes hidden behind misleading file names, Detective Vanadia opened some of those files. He said he did so to confirm that they contained images of child pornography, as opposed to something else, such as pornography not involving children. After opening at least 12 files and determining that they depicted child pornography videos, Detective Vanadia contacted the assistant prosecutor and was advised to stop his search. Detective Vanadia did not continue his review of the 120 GB hard drive or any of the other five hard drives. The Secret Service was notified of the discovery made by Detective Vanadia.

Based on the information Detective Vanadia provided about his review of the 120 GB hard drive, Agent Albanese applied for a federal search warrant. The April 24, 2007 affidavit Agent Albanese submitted in support of that application provided as probable cause for the search the following:

26. While running a search for the counterfeit check numbers, Detective Vanadia began reviewing the file folders on the DRIVE to locate a commercially available check processing program which, based on his training and expertise, he knew was commonly used in the production of counterfeit checks. While conducting this review, Detective Vanadia observed a file folder labeled "Kazaa Vid" that contained approximately 410 saved files. Detective Vanadia further observed that several of these files contained titles with the abbreviation "PTHC" as well as file names including "6yopedo" and "9yofuck."

(Hutchinson Aff., Ex. B, ¶ 26.)

The affidavit did not state that in the initial forensic review, Detective Vanadia opened up some of those files and confirmed that 12 of them depicted images of child pornography. The proffered probable cause was based on the file names, not on the file contents, i.e., the videos. The affidavit, however, identified a 40 gigabyte Western Digital Drive, Ser # WMAAT1253959 (the "40 GB hard drive") as the "DRIVE" which is the subject of the search warrant application, not the 120 GB hard drive on which Detective Venadia actually found those file names. Based on Agent Albanese's affidavit, a federal search warrant authorizing the search of the 40 GB hard drive issued on April 24, 2007. (This warrant will hereinafter be referred to as the "first federal search warrant.")

The 40 GB hard drive was in fact searched pursuant to the first federal search warrant on or about April 25, 2007 by Agent Joseph Tokash. Agent Tokash found two videos containing child pornography and 86 thumbnails containing child pornography. Based on this evidence, law enforcement applied for a second federal search warrant to search the other five hard drives, including the 120 GB drive initially searched by Detective Vanadia in November 2006 pursuant to the state search warrant. A federal search warrant covering the five hard drives other than the 40 GB hard drive issued on September 20, 2007. (Hereinafter, the search warrant issued on September 20, 2007 will be referred to as the "second federal search warrant.")

In all, the searches of the six hard drives led to the discovery of 196 videos and 86 thumbnails depicting child pornography. Defendant has brought this motion to suppress the evidence as having been obtained in violation of the Fourth Amendment.

II. DISCUSSION

A. Consent To Search Stabile Home — July 24, 2006

Stabile argues that the July 24, 2006 search, during which the challenged evidence was seized, violated the Fourth Amendment because it was not authorized by a warrant or by valid consent. He maintains that his wife's consent to search the home was given involuntarily and, alternatively, even if the consent had been voluntary, Stabile invalidated it when he revoked it upon his arrival at the Mahwah home that evening. Thus, he concludes that the subject evidence, obtained from computer hard drives seized during an invalid consent search of his home, must be suppressed as fruit of the poisonous tree.

The Court rejects Stabile's arguments. First, it finds that the record amply supports the Government's position that the search was legally conducted pursuant to valid consent. "The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained." Georgia v. Randolph, 547 U.S. 103, 106 (2006). The totality of the circumstances surrounding the officers' request to search and Deetz's assent demonstrate that she voluntarily gave consent. Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973) (holding that determination of whether consent to search was voluntary must be made based on totality of circumstances). Citing Schneckloth, the Third Circuit found that the following factors supported a determination of voluntariness: cordial interaction between the officers and the defendant; lack of physical or verbal threats; absence of force or psychological intimidation; the officers' statement that consent need not be given; the defendant's signing of a written consent form; the defendant's age, intelligence and experience with the criminal justice system; a lack of misrepresentation by the officers; and the absence of any insistence that obtaining a warrant was a foregone conclusion. United States v. Griesbaum, 185 F. App'x 186, 192 (3d Cir. 2006).

Deetz, an educated adult, invited the officers into her home, where they sat at a table and talked for a while before the officers asked to search. They explained her rights to her, and Deetz testified that she understood that if she did not give her consent, the officers would apply to the Court for a warrant. She offered them something to drink. The evidence does not indicate that Deetz felt that she had "no choice but to consent," or that the officers expressed that "acquiring the warrant would be a foregone conclusion." United States v. Sebetich, 776 F.2d 412, 425 (3d Cir. 1985) (discussing contrast between situation in which officer represents that a warrant will issue, in which case consent is invalid, to one in which officer states that he will seek a warrant if consent not given). Nothing about Deetz's description of her interaction with the officers on the date of the search suggests that she felt intimidated or coerced. The consent form she signed, after considering the officers request for approximately half an hour, authorized a search of the entire premises. Based on her conversation with the officers, Deetz understood that they were searching for evidence of financial crimes, which would logically include material that may be stored on computer hard drives. Deetz, in fact, showed the officers where the computers and hard drives were located and provided the forensic team with a screwdriver to assist the team in dismantling the equipment. Deetz's consent to search the home for evidence of financial crimes was valid, and the hard drives found and seized during the search fell within the scope of that consent.

Stabile's alternative argument, regarding his revocation of consent, is also unavailing. Relying on Georgia v. Randolph's holding that "a physically present inhabitant's express refusal of consent to a police search is dispositive as to him," 547 U.S. at 122, Stabile argues that the Government's retention of the computer hard drives for months and search of those drives after Stabile expressly revoked Deetz's consent to search the home violates the Fourth Amendment. Georgia provides no support for Stabile's argument. Stabile revoked consent as to the search of the home he shared with Deetz when he arrived sometime after 7:00 p.m. The record clearly shows that by that time the officers had discovered the hard drives during the consent search and the hard drives had been removed from the home. Georgia v. Randolph does not stand for the proposition that Stabile's revocation of consent would apply retroactively to invalidate the search that had been conducted prior to the revocation, nor does it stand for the proposition that his revocation of consent must be understood to constitute a demand for return of property seized earlier. Stabile testified, indeed, that he did not request the return of his property on July 24, 2006 or at any time in the three months that elapsed between the search of the home and the issuance of the state search warrant on October 19, 2006 authorizing a search of the hard drives. Moreover, Detective Vanadia's November 2006 search of the 120 GB hard drive, and the later searches of the other five hard drives seized, were not conducted based on Deetz's consent, and thus Stabile's revocation of her consent to search the home has no bearing on the search of the hard drives, which yielded the evidence that Stabile now seeks to suppress.

Finally, as for Stabile's argument that the Government's continued seizure of the hard drives without promptly securing a warrant to do so violates the Fourth Amendment, the Court finds that, under the totality of the circumstances of this case, the Government's retention of the hard drives for almost three months without obtaining a search warrant does not transform the initially valid seizure into an unreasonable one under the Fourth Amendment. Cf. United States v. Martin, 157 F.3d 46, 53-54 (2d Cir. 1998) (recognizing that a warrantless seizure based on probable cause may be permitted but violates Fourth Amendment if law enforcement delays unreasonably in securing a warrant). Unlike the cases cited by Defendant, in this case, the seizure of the hard drives was not executed based on probable cause alone.See, e.g., United States v. Dass, 849 F.2d 414 (9th Cir. 1988) (warrantless detention of mailed packages at post office for dog sniff inspection based on suspicion that they contained marijuana); United States v. Mitchell, No. CR407-126, 2007 WL 2915889 (S.D. Ga. Oct. 3, 2007) (owner of computer refused to give consent to search it but computer seized based on probable cause that hard drive contained child pornography). The hard drives were seized pursuant to the consent given by Deetz, a person with authority over the premises searched and the items seized. Although Stabile revoked consent, by the time he did so, the hard drives had been seized and removed from the premises. B. Search of Computer Hard Drives

Defendant moves to suppress the evidence of child pornography on the alternative ground that searches of the hard drives for such evidence were conducted without a valid warrant. Stabile challenges the first and second federal search warrants because they originate with Detective Vanadia's opening of the 120 GB hard drive's Kazvid folder and at least 12 of its files, which he argues went beyond the scope of the state search warrant. According to Defendant, the portion of the state search warrant authorizing a search for child pornography was based on a violation of Franks v. Delaware, 438 U.S. 154 (1978), and was therefore invalid. He argues that the subsequent searches of first, the 40 GB hard drive, and then the other five hard drives, were tainted. Defendant maintains that the first federal search warrant lacked probable cause because one, the evidence supplying probable cause was illegally obtained in Detective Vanadia's forensic review and two, the probable cause corresponds to the 120 GB hard drive not to the 40 GB hard drive identified in the warrant. The second federal search warrant was also invalid, according to Defendant, as it was based on probable cause derived from evidence obtained in the illegal search of the 40 GB hard drive.

As an initial matter, the Court will address the Franks violation in the state search warrant. Following the two-day hearing, the Government has conceded that, insofar as it stated a belief that the hard drives may contain evidence of child pornography, the October 19, 2006 Albanese affidavit in support of the state search warrant violated Franks. Franks holds that when an affidavit contains intentionally or recklessly false statements upon which a search warrant's probable cause is based, the warrant must be voided as if probable cause had been lacking on the face of the affidavit. Franks, 438 U.S. at 155-56. UnderFranks, however, the Court need not invalidate the entire state search warrant and may instead excise the portion of the affidavit found — or in this case conceded — to be in violation of the Franks rule and then determine whether the reconstituted affidavit would provide probable cause in support of the search warrant. Id. at 171-72;United States v. Burton, 288 F.3d 91, 103 (3d Cir. 2002). Excising the Albanese affidavit's statements about the affiant's belief that the computer hard drives contained child pornography based on the visual labels and titles of the DVDs renders the state search warrant without probable cause to support the search for child pornography. This limited excision, however, does not invalidate the state search warrant's authorization to search for evidence of financial crimes, which is based on good probable cause independent of the excised statements. Thus, the Court evaluates the legality of the search of the 120 GB hard drive conducted in November 2006 by Detective Vanadia as if the state search warrant authorized a search of financial crimes only.

Proceeding with an analysis beginning with the reconstituted state search warrant, the Court concludes that the inevitable discovery exception to the exclusionary rule applies here. Defendant's motion to suppress the subject evidence of child pornography will accordingly be denied.

The Supreme Court adopted the inevitable discovery exception to the exclusionary rule in the case of Nix v. Williams, 467 U.S. 431, 444 (1984). The Court reasoned:

If the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means-here the volunteers' search-then the deterrence rationale [of the exclusionary rule] has so little basis that the evidence should be received. Anything less would reject logic, experience, and common sense.
Id. (internal quotation and citation omitted). The inevitable discovery exception "requires the district court to determine, viewing affairs as they existed at the instant before the unlawful search, what would have happened had the unlawful search never occurred." United States v. Vasquez De Reyes, 149 F.3d 192, 195 (3d Cir. 1998) (quoting United States v. Kennedy, 61 F.3d 494, 498 (6th Cir. 1995)). It is the Government's burden to "prove the existence of a chain of events that would have led to a warrant . . . independent of the [unlawful] search." United States v. Brown, 328 F.3d 352, 257 (7th Cir. 2003) (quotingUnited States v. Brown, 64 F.3d 1083, 1085 (7th Cir. 1995)). In determining whether the Government has met its burden, the Court must focus on "historical facts capable of ready verification, and not speculation." Vasquez De Reyes, 149 F.2d at 195.

The Court finds that the Government has demonstrated, by a preponderance of the evidence, that the child pornography evidence would have been inevitably discovered by lawful means. Information obtained legally during Detective Vanadia's November 2006 forensic search would have provided sufficient probable cause to support a warrant to search the 120 GB hard drive, and the evidence of child pornography discovered in that search would have adequately supplied probable cause for a warrant to search the other five hard drives. Reaching this conclusion requires the Court to resolve certain disputes between the parties relating to this motion to suppress.

First, the Court addresses the question of whether Detective Vanadia's opening of the Kazvid folder (which revealed file names such as "6yopedo") and the files located therein (which revealed child pornography videos) constituted searches within the meaning of the Fourth Amendment. The answer is clearly yes. See Arizona v. Hicks, 480 U.S. 321, 325 (1987); United States v. Carey, 172 F.3d 1268, 1273-74 (10th 1999) (holding that opening computer files constitutes a search); United States v. Stierhoff, 477 F.Supp.2d 423, 443-44 (D.R.I. 2007) (holding that opening computer folder constitutes a search). The Court states, for the sake of clarity, that each operation in which a folder or file was opened — that is, was highlighted, clicked or otherwise manipulated so that its contents went from being unseen to exposed — constituted a separate search. Exposing to view concealed portions of a space in which one may be authorized to search constitutes an independent search from the initial invasion and must be validly supported by a warrant or, alternatively, by an exception to the warrant requirement.Hicks, 480 U.S. at 325. "Under the traditional approach, the term `search' is said to imply some exploratory investigation, or and invasion and quest, a looking for or seeking out." Stierhoff, 477 F.Supp.2d at 444 (quoting Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment, § 2.1(a) (4th ed. 2004)). When Detective Vanadia began his forensic review of the 120 GB hard drive, and viewed the structure of the operating system in his effort to uncover evidence of financial crimes, the Kazvid folder was closed; its contents were concealed from view. In "highlighting" the Kazvid folder, Detective Vanadia intended to seek the out what the folder contained. That exploration constituted a search. Highlighting or opening the folder revealed a list of various file names. At that point, the files were closed, and their contents were hidden from view. To reveal their contents, Detective Vanadia needed to delve further. He opened at least 12 of the files. Opening the files stored in the Kazvid folder required invasions apart from the opening of the Kazvid folder, and thus the opening of each file constituted a search independent from the search of the Kazvid folder.

Second, the Court must resolve the question of whether those searches by Detective Vanadia were reasonable under the Fourth Amendment. Detective Vanadia conducted his forensic review of the 120 GB hard drive pursuant to the state search warrant. As discussed above, the state search warrant as reconstituted under Franks limited the scope of the search to evidence of financial crimes. The Court holds that Detective Vanadia legally opened the Kazvid folder, that is, legally observed the list of file names, such as "6yopedo" and "9yofuck" that appeared when he highlighted the folder labeled "Kazvid." It credits his testimony that he reasonably believed that the Kazvid folder might conceal evidence of financial crimes deliberately hidden behind a misleading folder name. Indeed, he testified that in his experience in the forensic review of computer evidence, he found that it was not uncommon for criminal evidence to be stored behind a label that did not match the contents of the file or folder. Though Detective Vanadia also testified that he associated the file name "Kazvid" with the file sharing program Kazaa, and that Kazaa is often used to share or distribute child pornography, there is no testimony or evidence that Kazaa is synonymous with child pornography. In other words, the Court finds that he opened the Kazvid folder searching for evidence of financial crimes, as authorized by the state search warrant. The separate and independent searches conducted each time Detective Vanadia opened one the folder's files, that is, viewed the videos contained in the files, however, went beyond the scope of the state search warrant. The record clearly demonstrates that he opened the files suspecting, based on their suggestive file names, that they contained child pornography. Detective Vanadia testified he viewed the video files to confirm that they contained child pornography, so that the federal authorities could be notified that the hard drive in fact contained such material. He admits that even taking into account his knowledge that files evidencing criminal activity are often hidden behind misleading labels, he did not suspect that these files contained evidence of financial crimes. The facts thus belie the Government's contention that searching the Kazvid files was reasonable in light of the known practice of mislabeling computer files to conceal criminal evidence. Indeed, it would be illogical to conceal evidence of one crime behind a label concerning another, arguably more repugnant crime.

Third, the Court holds that, having determined that the opening, or search, of the Kazvid folder was legal, the file names that were revealed when Detective Vanadia opened the Kazvid folder were in plain view. Evidence is considered to be in "plain view" when law enforcement inadvertently comes across or observes apparently incriminating evidence while lawfully searching an area, i.e., pursuant to a warrant or one of the exceptions to the warrant requirement, for specified objects unrelated to the that incriminating evidence discovered without a warrant. Coolidge v. New Hampshire, 403 U.S. 443, 465 (1971). The file names meet the elements of the plain view doctrine: Detective Vanadia's intrusion into the Kazvid folder was lawful, there is no indication that he knew in advance that such files would be located in that folder, and the nature of the file names made it immediately apparent that the files they labeled may contain evidence of criminal activity. Texas v. Brown, 460 U.S. 730, 737 (1983).

Applying these holdings in its inevitable discovery analysis, the Court concludes that had the unlawful searches of the Kazvid files during Detective Vanadia's forensic review not occurred (or put another way, had Detective Vanadia not viewed the videos that those files contained), law enforcement would have inevitably obtained the subject child pornography evidence legally. Analyzing the case from the point just before the illegal search, the Court finds that the facts support a conclusion that a warrant for the search of the 120 GB hard drive for evidence of child pornography would have issued based on probable cause supplied by the plain-view Kazvid file names (e.g., "6yopedo" and "9yofuck"). Indeed, this conclusion involves no speculation. Law enforcement in fact sought a federal search warrant, based the probable cause in support of that application on the file names observed in the 120 GB hard drive, and obtained a warrant. The April 24, 2007 Albanese affidavit in support of the application did not utilize as the stated probable cause the child pornography videos viewed by Detective Vanadia or even include any information about Detective Vanadia's viewing the files to confirm that they did depict child pornography. In light of these facts, it is clear that the file names would have sufficed to establish probable cause in support of a search warrant. The Court, of course, knows that the April 24, 2007 Albanese affidavit and the first federal search warrant that issued based on that affidavit identified the hard drive to be searched as the 40 GB hard drive — the wrong drive, to put it bluntly. Clearly, because the probable cause supplied pertained to the 120 GB hard drive, the first federal search warrant was invalid for lack of probable cause. The error in identifying the wrong hard drive in the application and the invalidity of the warrant that in fact issued do not, however, diminish the applicability of the inevitable discovery rule. It remains that the facts support the Court's conclusion that a valid search warrant for the 120 GB hard drive for evidence of child pornography would have issued. A search of the 120 GB hard drive pursuant to such a warrant would have inevitably yielded videos of child pornography. These, in turn, would have supplied probable cause in support of a warrant to search the other five hard drives. Again, by "historical facts capable of ready verification and not speculation" the Government has demonstrated that law enforcement would have applied for a warrant before searching the other five hard drives, that the officers would have based that application on the information obtained from the search of one hard drive, and that such a warrant would have issued. This chain of events actually occurred, as Agent Albanese's application for the second federal search warrant based on Agent Tokash's search of the 40 GB hard drive and the second federal search warrant issued based on probable cause supplied by the evidence discovered in Agent Tokash's search.

The Court finds, in sum, that applying the inevitable discovery doctrine in this case would be just and fair. The doctrine "permits the court to balance the public interest in providing a jury with all relevant and probative evidence in a criminal proceeding against society's interest in deterring unlawful police conduct." Vasquez De Reyes, 149 F.3d at 195. The balance here weighs in favor of permitting the evidence.

Following the reasoning of Supreme Court in the recently-decided Herring v. United States, ___ S.Ct. ___ (2009), No. 07-513, 2009 WL 77886 (Jan. 14, 2009), this Court believes that the exclusionary rule is not justified in this action. For the rule to apply, the deterrence benefits must outweigh its social costs, which include impeding the search for truth and, sometimes, setting the guilty free. Id. at * 5; Hudson v. Michigan, 547 U.S. 586, 591 (2006). In this case, given law enforcement's consistent efforts to conduct the various searches legally — by obtaining Deetz's consent before searching the Mahwah home and applying for three separate search warrants to search the hard drives — the Court believes that the deterrent purpose of the exclusionary rule would not be furthered. Moreover, the errors committed by law enforcement in obtaining and executing the search warrants are more in line with negligence than with a reckless disregard of the Fourth Amendment. A violation of one's Fourth Amendment rights does not suffice to trigger the exclusionary rule. Herring, 2009 WL 77886 at * 4; see also Hudson, 547 U.S. at 591 (noting suppression of evidence is a sanction of "last resort"). Rather, the sanction of suppressing evidence is justified only when the conduct of law enforcement has been "deliberate, reckless, or grossly negligent." Herring, 2009 WL 77886 at * 7. The state search warrant as issued authorized a search for child pornography, and the Franks violation invalidating that portion of the warrant was due to a mis-communication between state law enforcement — which had viewed the DVDs believed to contain child pornography — and Agent Albanese. Detective Vanadia was instructed to stop his forensic review if he encountered child pornography, and he did in fact stop searching, albeit after opening 12 files pursuant to the invalidated portion of the state search warrant. Of the six hard drives seized, Agent Albanese incorrectly identified the 40 GB hard drive as the subject "drive" instead of the 120 GB hard drive; both, incidentally, were "Western Digital" hard drives. It appears that many of the missteps involved in this case resulted from a lack of effective coordination among multiple law enforcement agencies at different levels of government. This conduct, while hardly qualifying as a model of efficient, careful and cooperative law enforcement, does not rise to the level of culpability that the Supreme Court held in Herring must be apparent for the exclusionary rule to serve its deterrent purpose and outweigh the cost of suppressing evidence.

In short, there is no indication of intentional wrongdoing, venality, or even recklessness. Instead, at virtually every step, there was an effort, albeit sometimes botched, to obtain judicial input and approval for the proposed investigative procedures. The record generally reflects a good faith effort to comply with legal and constitutional limits and requirements. Under these circumstances, the policies underlying the exclusionary rule — deterring intentional government misconduct — would not be served.

III. CONCLUSION

For the foregoing reasons, the Court denies Defendant's motion to suppress. An appropriate form of Order will be filed together with this Opinion.


Summaries of

U.S. v. Stabile

United States District Court, D. New Jersey
Jan 21, 2009
Criminal No. 08-145 (SRC) (D.N.J. Jan. 21, 2009)

finding that consent was voluntary and drawing a distinction between a representation that a warrant will issue, in which case consent is valid, and a representation that an officer will seek a warrant if consent is not given, citing United States v. Sebetich, 776 F.2d 412, 424-25 (3rd Cir. 1985)

Summary of this case from United States v. Sharp
Case details for

U.S. v. Stabile

Case Details

Full title:UNITED STATES OF AMERICA, Plaintiff, v. SALVATORE STABILE, Defendant

Court:United States District Court, D. New Jersey

Date published: Jan 21, 2009

Citations

Criminal No. 08-145 (SRC) (D.N.J. Jan. 21, 2009)

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