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United States v. Zulawski

United States District Court, E.D. Kentucky, Central Division, Frankfort

October 15, 2019

UNITED STATES OF AMERICA Plaintiff,
v.
DANIEL J. ZULAWSKI, Defendant.

          MEMORANDUM OPINION & ORDER

          GREGORY F. VAN TATENHOVE UNITED STATES DISTRICT JUDGE

         This 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.

         I

         Magistrate 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.]

         On 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 investigation. Id.

         Upon 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.

         II

         In Mr. 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.

         A

         First, 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.

         Mr. 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.

         As Mr. 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's recommendation.

         B

         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 ...


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