United States District Court, E.D. Kentucky, Central Division, Frankfort
MEMORANDUM OPINION & ORDER
GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE
matter is before the Court upon Magistrate Judge Matthew A.
Stinnett's Report and Recommended Disposition. [R. 54.]
Defendant Daniel J. Zulawski filed a Motion to Suppress [R.
31] and the United States responded to the Motion. [R. 41.]
The Court held an evidentiary hearing where the parties
presented their arguments and witnesses. [R. 51.] The
Magistrate Judge recommends that this Court deny Mr.
Zulawski's Motion to Suppress. [R.31.] For the reasons
that follow, this recommendation will be adopted and
Defendant's objections will be denied.
Judge Stinnett thoroughly outlined the facts in his
recommendation. [R. 54.] Mr. Zulawski has been charged with
use of a facility and means of interstate or foreign commerce
to knowingly attempt to persuade, induce, entice, and coerce
an individual who had not attained the age of 18 years, to
engage in sexual activity for which any person can be charged
with a criminal offense, all in violation of 18.U.S.C. §
2422(b). [R. 1.]
January 18, 2018, the day following Defendant's arrest,
U.S. Army Criminal Investigations Division
(“CID”) agents contacted Defendant's spouse
and were given consent by her to search the marital home and
seize electronic equipment found there. [R. 31-1 at 282-83.]
CID agents discovered several electronic devices after
searching the home, including a phone in a locked cage that
was kept in the garage (“Cage Phone”). [R. 31 at
257.] However, due to the locked cage, CID obtained a search
warrant from a military judicial officer (“CID Search
Warrant”). [R. 54 at 496.] All of the seized items
pursuant to the CID Search Warrant were then turned over to
the Kentucky Attorney General Office for further
receiving such items of evidence, Officer D'Hondt pursued
an additional search warrant from Franklin District Court
(“Franklin Search Warrant”) for the electronic
items seized, including the cage phone. Id. On
January 25, 2018, Officer D'Hondt presented an affidavit
in support of a search warrant to Judge Kathy Mangeot, a
state district court judge for Franklin County, Kentucky. [R.
31-1 at 281-84.] Judge Mangeot approved the warrant
authorizing a search of the electronic items, including the
contents of the cage phone. Id. at 285-86.
Zulawski's Motion to Suppress, he presents several
reasons as to why the search of the cage phone and its
resulting evidence should be suppressed. [R. 31.] First, Mr.
Zulawski argues that the CID Search Warrant only permitted
law enforcement to seize the phone, and not search it.
Id. Second, Mr. Zulawski argues that he is entitled
to a Franks hearing based on discrepancies of
certain facts. Id. If the CID Search Warrant is
considered invalid, Mr. Zulawski argues that the Franklin
Search Warrant lacks probable cause to search the cage phone,
as well. Id. Finally, Mr. Zulawski points out that
the Leon good faith exception does not apply to
either of the warrants issued. Id. Judge Stinnett
thoughtfully considered each of these issues and determined
that Mr. Zulawski's Motion should be denied.
Magistrate Judge Stinnett addressed Mr. Zulawski's
argument that the CID Search Warrant authorized only seizure,
and not a search of the cage phone, which he concludes is
inaccurate. [R. 54 at 497.] Judge Stinnett concluded that the
CID Search Warrant authorized both seizure and search of the
Cage Phone. The Sixth Circuit has already addressed this
issue in United States v. Evers. 669 F.3d 645
(6th Cir. 2012). The Court ruled that “the
seizure of a defendant's home computer equipment and
digital media for a subsequent off-site electronic search is
not unreasonable or overbroad, as long as the probable-cause
showing in the warrant application and affidavit demonstrate
a sufficient chance of finding some needles in the computer
haystack." Id. at 652. Similarly to Mr.
Zulawski's case, the Court ruled that the warrant was
“specifically designed not simply to permit the
officers to seize the computer and digital camera, but to
view the computer and digital camera, to have access to
them.” Id. at 653.
Zulawski did file a timely objection to this portion of the
Recommended Disposition, specifically arguing that the
warrant did not explicitly authorize the search of the
digital contents of the Cage Phone that was seized. [R. 60 at
562.] As indicated by the magistrate judge, the affidavit,
which specifically requested “authorization to conduct
a full digital forensic examination of [the Cage
Phone]” was properly incorporated by reference into the
CID Search Warrant. [R. 54 at 497; R. 31-1 at 275.] The CID
Search Warrant specifically authorized the search of a
“locked cage in the garage for the property described
as phone and other digital media belonging to SGT Daniel
Zulawski within the cage in the garage.” [R. 31-1 at
274.] In other words, based on this record, the law
enforcement officers were where they had a right to be under
the CID Search Warrant and the search of digital content
within Mr. Zulawski's Cage Phone did not exceed the scope
of the warrant.
Zulawski points out, the warrant states “the affiant
requests authorization to conduct a full digital forensic
examination of SGT Zulawski's cellular phone.” [R.
60 at 562; R. 31-1 at 273.] Mr. Zulawski argues that the
remainder of the paragraphs in the warrant only authorize
seizure of the Cage Phone. [R. 60 at 563.] However, the
search warrant does not deny affiant's request to search
the digital contents of the Cage Phone, but rather
incorporates the affidavit into the warrant, authorizing such
authorization to search digital contents of the Cage Phone.
[R. 31-1 at 273-74.] Therefore, this Court rejects Mr.
Zulawski's argument that the search of the Cage Phone
exceeded the scope of the CID Search Warrant and adopts Judge
Stinnett then turned to whether Mr. Zulawski is entitled to a
Franks hearing. [R. 54.] Mr. Zulawski requests a
Franks hearing and suppression of the evidence from
the CID Search Warrant, claiming the statements in the
affidavit were made with intentional or reckless ...