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United States v. Turner

United States District Court, E.D. Kentucky, Southern Division, London

December 21, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
JORDAN RYAN TURNER, Defendant.

          ORDER ADOPTING RECOMMENDED DISPOSITION

         This matter is before the Court on Defendant Jordan Ryan Turner's Sealed Motion to Suppress [R. 26] and a Recommended Disposition prepared by Magistrate Judge Hanly A. Ingram [R. 40]. In the Recommended Disposition, Judge Ingram recommends that defendant's Motion to Suppress be denied. Id. The defendant having filed an Objection to the Recommended Disposition [R. 44], and the United States having responded to the defendant's Objection [R. 46], the Motion to Suppress [R. 26] is ripe for the Court's review. For the reasons stated herein, the defendant's Objections are overruled, the Recommended Disposition is adopted as the Opinion of this Court, and the defendant's Motion to Suppress [R. 26] is denied in part and granted in part.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On March 31, 2018, the Kentucky State Police (“KSP”) received a phone call from a woman who complained that her juvenile son had received inappropriate Facebook messages from the Facebook account belonging to “Jordan Turner.” [R. 26, at p. 2] That same day, KSP Detective Jacob Wilson (“Det. Wilson”) spoke with the alleged victim's mother and obtained permission to review the messages in question. Following Detective Wilson's review of the Facebook message history between the alleged victim and “Jordan Turner, ” he concluded that “Jordan Turner” asked the alleged victim several times to send nude pictures of himself and "repeatedly made references to the juvenile's small penis." See [R. 26-3, Sealed Ex. C, Phone Aff.] According to Det. Wilson, in this Facebook message conversation, “Jordan Turner” asked the alleged victim for pictures of his penis and stated he would compare them. Id.

         Based on this investigation and the affidavits of the investigating officers, Bell County District Court Judge Robert T. Yoakum authorized a series of search warrants for Defendant Jordan Turner's cell phone, residence, and Facebook account.[1] The search warrant for Defendant Turner's cell phone (the “Phone Warrant”) was issued on April 9, 2018 and was accompanied by an affidavit that Det. Wilson had prepared. In his affidavit, Det. Wilson stated that there was probable cause to believe that “[a]ny and all electronic devices” of Jordan Turner constitute “property or things used as the means of committing a crime”; “property or things in the possession of a person who intends to use it as a means of committing a crime”; “property or things in the possession of a person to whom it was delivered for the purpose of concealing it or preventing its discovery and which is intended to be used as a means of committing a crime”; and “property [or] things consisting of evidence which tends to show that a crime has been committed or that a particular person has committed a crime.” [R. 26-3, Sealed Ex. C, Phone Aff., at pp. 1-2]

         The affidavit further stated that, on March 31, 2018:

Replace this text with your investigation. I responded to Wildcat Market in Flat Lick, KY to meet with Trooper Taylor Mills in reference to a complaint of Jordan Turner sending inappropriate messages/requests through facebook to a 14 year old male juvenile student. I also spoke with the juvenile's mother (Cindy [redacted]).[2] She allowed me to look at the messages on her son's facebook account. I read the conversation between the juvenile and Jordan Turner's facebook name. Jordan Turner asked the juvenile several times to send him pictures of his penis and repeatedly made references to the juvenile's small penis. Jordan Turner asked the juvenile for pictures of his penis and stated he would compare them.

Id.

         On April 9, 2018, after obtaining the Phone Warrant[3], “the Kentucky State Police approached [Defendant Turner] and questioned him. He stated that his conversation with this juvenile was a long-standing joke.” [R. 26, at p. 4] Following the interview, the police seized the defendant's cell phone, which was a gray iPhone 6S.

         On June 20, 2018, formal federal charges were brought against the defendant through a criminal complaint. [R. 1]. On June 28, 2018, an indictment was returned, charging Defendant Turner with four counts. [R. 8] The counts relate to the production, receipt, distribution, and possession of a visual depiction of a minor engaged in sexually explicit conduct.[4] Id. The indictment also includes a forfeiture allegation. Id. at p. 3. A jury trial is scheduled to begin on January 8, 2019. [R. 35]

         Defendant Turner filed a Motion to Suppress evidence seized during the warrant-backed searches of his cell phone on April 9, 2018, his residence on April 16, 2018, and his Facebook account on April 17, 2018. [R. 26, at p. 1] Defendant's motion states that “[h]e was arrested on state charges for an alleged violation of KRS § 510.155, the unlawful use of electronic means originating or received within the Commonwealth to induce a minor to engage in sexual or other prohibited activities.” [R. 26, at p. 5] Defendant's motion also asks for the Court to suppress “all of the other evidence obtained as ‘fruit of the poisonous tree' on the grounds that the search warrants were issued without probable cause.” Id.

         In its response, the United States represented that it does not intend to introduce any evidence obtained from the searches of the defendant's residence or Facebook account. [R. 31, at p. 1] Defendant Turner's reply therefore focused only on issues concerning the search of his phone. [R. 37] The defendant argued that the Phone Warrant was invalid for numerous reasons, including that: the affidavit failed to sufficiently allege a specific crime, or any crime at all, had occurred; the warrant failed to meet the particularity requirement of the Fourth Amendment; the affidavit did not establish a nexus between the phone and the evidence sought; and the affidavit had staleness concerns. The defendant also briefly argued an identity issue, submitting that the affidavit contained no information “that he was the subscribed user of the Facebook account.” [R. 26, at p. 12, R. 37 at p. 7] Finally, Defendant Turner renewed his request that the Court suppress “all other evidence obtained as ‘fruit of the poisonous tree.'” [R. 37 at p. 1]

         This matter was referred to Magistrate Judge Ingram for findings of fact, conclusions of law, and recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed. R. Crim. P. 59(b)(1). [R. 29] In a thorough opinion (“Recommended Disposition”), Judge Ingram made the following findings:

1. The affidavit provided probable cause to believe that the Facebook user "Jordan Turner" was having communications involving the unlawful request for a juvenile student to send pictures of his genitals to him. [R. 40, at p. 5];
2. The affidavit did provide probable cause that a crime had been committed, even though it did not have to name a particular statute alleged to have been violated. id.;
3. The description of the authorized items to be searched in the Phone Warrant was overbroad, but the remedy is not suppression. Rather, severance of the infirm portions from the remainder is proper remedy. Id. at pp 6-7;
4. The affidavit did not fail to establish a nexus between the property to be searched, i.e. Defendant Turner's phone, and the evidence to be seized, i.e. that relating to ...

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