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United States v. Prine

United States District Court, W.D. Kentucky, Paducah

June 4, 2018

UNITED STATES OF AMERICA, PLAINTIFF
v.
JOHN E. PRINE, DEFENDANT

          MEMORANDUM OPINION AND ORDER

          THOMAS B. RUSSELL SR. JUDGE

         This matter is before the Court on Defendant John E. Prine's Motion to Suppress, [R. 34]. The United States of America responded, [R. 35]. The deadline for Prine to reply has passed. [See R. 33.] Thus, this matter is now ripe for adjudication. For the reasons stated herein, Prine's Motion to Suppress, [R. 34], is DENIED.

         BACKGROUND

         On October 6, 2016, Magistrate Judge Lindsay authorized a search and seizure warrant to be executed on or before October 16, 2016 at the residence of John E. Prine. [See R. 27 at 2, 15 (Search and Seizure Warrant).] According to the affidavit of Special Agent Theodore R. Curtis III of the United States Department of Homeland Security, Immigration and Customs Enforcement, Homeland Security Investigations (HSI), (“Affidavit”), on or about July 11, 2016, Canadian law enforcement informed HSI Attaché Ottawa, Ontario that Kik Messenger[1] user “mike.wowie” uploaded a single image of child pornography from a specific Internet Protocol (“IP”) address. [Id. at 14; R. 34 at 1 (Prine Motion to Suppress).] HSI Attaché Ottawa then issued a subpoena to Road Runner/Time Warner Cable for that subscriber's information, connected to that specific IP address, on or about July 15, 2016. [Id.] On or about July 18, 2016, Time Warner responded with the subscriber name, address, active date, and deactivate date. [Id. at 14-15.] The subscriber was John Prine, who activated the service on January 13, 2013, and Prine's account was “still active.” [Id.] Then, on or about September 8, 2016, HSI Attaché Ottawa forwarded this information to HSI Bowling Green, Kentucky. [Id. at 15.] Special Agent Curtis (“Affiant”) reviewed the image uploaded into Kik Messenger and described it as follows:

The image depicts sexually explicit conduct and child pornography in that it constitutes the lascivious exhibition of the vagina of a prepubescent female. More particularly, the image depicts an approximately 8-12 year old female, completely nude, with outstretched arms. The image shows from approximately the child's elbows down to the mid-thigh region (the remainder of her arms and legs being out of frame) and exhibits the child's breasts and vagina.

[Id.] On or about September 21, 2016, Affiant requested Prine's driver's license information from Kentucky State Police (KSP), who responded with Prine's address on or about September 22, 2016. [Id.]

         The Affiant states that “Paragraphs 1 through 17 of this Affidavit, including a redacted copy of the image detailed in paragraph 15, were reviewed by United States Magistrate Judge Lanny King during the week of September 26-September 30, 2016. Magistrate Judge King declined to sign the search warrant at that time.” [Id. at 16.] According to the Affiant, Magistrate Judge King was not in the Western District of Kentucky upon the date of submission of the revised affidavit and search warrant, so the documents were submitted to Magistrate Judge Lindsay “by procedure agreed upon by Magistrate Judge King and the reviewing Magistrate.” [Id. at 16 n.3.] The parties dispute whether the draft of the affidavit presented to Magistrate Judge Lindsay was significantly different from the draft previously submitted to Magistrate Judge King. [See R. 34 at 9; R. 35 at 3 (United States Response).]

         On October 12, 2016, the search warrant was executed at the residence of John Prine, where a No. of items listed in the search warrant were seized and later examined. [R. 34 at 2; R. 35 at 3.] Thereafter, Prine was indicted in this court for one count of knowingly receiving child pornography in violation of 18 U.S.C. §§ 2252A(a)(2)(B) and 2252A(b)(1) and one count of knowingly accessing, with intent to view, child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). [R. 1 at 1-2 (Indictment).] Prine now moves to suppress “the search warrant and corresponding search of the Defendant's real and personal property.” [R. 34 at 1.]

         STANDARD

         The Fourth Amendment to the United States Constitution protects individuals against unreasonable searches and seizures. U.S. Const. amend IV. To protect that interest, the Fourth Amendment requires that a search warrant issue only upon a showing of probable cause. Illinois v. Gates, 462 U.S. 213, 238 (1983).

         Probable cause for a search warrant exists where, based on the totality of the circumstances, the affidavit in support of the warrant provides the issuing magistrate a “substantial basis . . . to believe ‘there is a fair probability that contraband or evidence of a crime will be found ‘in a particular place.''” United States v. McNally, 327 Fed.Appx. 554, 556 (6th Cir. 2009) (quoting Gates, 462 U.S. at 238); United States v. King, 227 F.3d 732, 742 (6th Cir. 2000)). “To justify a search, the circumstances must indicate why evidence of illegal activity will be found in a particular place.” United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc). That is, there must be a “nexus between the place to be searched and the evidence sought.” Id. (quoting United States v. Van Shutters, 163 F.3d 331, 336-37 (6th Cir. 1998)). Thus, in order for a magistrate to determine probable cause, “the affidavit must contain adequate supporting facts about the underlying circumstances to show that probable cause exists for the issuance of the warrant.” United States v. Smith, 182 F.3d 473, 477 (6th Cir. 1999) (citing Whiteley v. Warden, 401 U.S. 560, 564 (1971)).

         The Magistrate Judge's determination that probable cause exists is entitled to “‘great deference.'” Gates, 462 U.S. at 236; accord United States v. Allen, 211 F.3d 970, 973 (6th Cir.2000). “[A] hypertechnical critique of warrants would only, in the end, encourage warrantless searches, undermining the very Fourth Amendment right such an approach would seek to protect.” Id. “The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238. The “duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” Id. at 238-39. “In making this determination, the Court considers only the information that was before the issuing judge-in other words, only what is contained within the four corners of the supporting affidavit.” United States v. Downsbrough, No. 3:13-CR-61, 2013 WL 5781570, at *8 (E.D. Tenn. Oct. 24, 2013) (citing United States v. Hatcher, 473 F.2d 321, 323 (6th Cir. 1973)).

         To deter future violations of the Fourth Amendment, the usual remedy for searches made with a defective warrant is suppression. E.g., United States v. Woodbury, 511 F.3d 93, 99 (1st Cir. 2007). “Courts should not, however, suppress ‘evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant.'” United States v. Carpenter, 360 F.3d 591, 595 (6th Cir. 2004) (quoting United States v. Leon, 468 U.S. 897, 922 (1984)). In other words, “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” Leon, 468 U.S. at 922; accord United States v. Richards, 659 F.3d 527, 542 (6th Cir. 2011). Still, there are four exclusions to Leon's good-faith exception: (1) “when the magistrate . . . was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth”; (2) “where the issuing magistrate wholly abandoned his [detached and neutral] judicial role”; (3) where the affidavit is “so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable”; and (4) where a warrant is “so facially deficient-i.e., in failing to particularize the place to be searched or the thing to be seized-that the executing officers cannot reasonable presume it to be valid.” Leon, 468 U.S. at 923.

         DISCUSSION

         In his Motion to Suppress, Prine asks the Court “to suppress the search warrant and corresponding search of the Defendant's real and personal property.” [R. 34 at 1.] In support of this motion, Prine argues that the search warrant did not establish probable cause for two reasons: (1) it did not illustrate a nexus between the place to be searched and the evidence to be sought and (2) the uploaded image is not child pornography. [Id. at 2-5.] Also, Prine contends that the information in the affidavit was stale, [Id. at 5-8], and the second search warrant application is barred by res judicata, [Id. at 8-11]. The Court shall address each of Prine's arguments in turn.

         A. Whether a Nexus was Established by the Affidavit As previously explained, in order for probable cause for a search warrant to exist, the affidavit in support of the search warrant must establish a “nexus between the place to be searched and the evidence sought.” Van Shutters, 163 F.3d at 336-37. Without providing case law with which to compare the affidavit at issue, Prine argues that the “very general facts” listed in the affidavit did not establish a nexus and “the only minimal nexus that the affidavit presented was the IP address that was connected to the Kik account was registered to the Defendant.” [R. 34 at 3.] Furthermore, he contends that the Kik account was registered under a different name, and the email address used to register the Kik account “does not establish a nexus with the Defendant or his address.” ...


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