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2013年12月10日 (火)

U.S. v. Mann

U.S. v. Mann
Slip Copy, 2013 WL 3832682
W.D.Mo.,2013.
July 23, 2013 (Approx. 2 pages)

Slip Copy, 2013 WL 3832682 (W.D.Mo.)

Only the Westlaw citation is currently available.

United States District Court,
W.D. Missouri,
Southern Division.

UNITED STATES of America, Plaintiff,
v.
Rusty MANN, Defendant.

No. 6:12–CR–03002–1–BCW.

July 23, 2013.

James Joseph Kelleher, U.S. Attorney's Office, Springfield, MO, for Plaintiff.

ORDER

BRIAN C. WIMES, District Judge.

*1 Before the Court is Magistrate Judge James C. England's Report and Recommendation (Doc. # 23) denying Defendant's Motion to Suppress Evidence (Doc. # 17). Defendant filed objections to the Report and Recommendation (Doc. # 27). After an independent review of the record, the applicable law, and the parties' arguments, the Court adopts Magistrate Judge England's findings of fact and conclusions of law. Accordingly, it is hereby

ORDERED Magistrate Judge England's Report and Recommendation (Doc. # 27) be attached to and made part of this Order, and Defendant's Motion to Suppress Evidence (Doc. # 17) is DENIED.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

JAMES C. ENGLAND, United States Magistrate Judge.

Pursuant to 28 U.S.C. § 636(b), the above-styled criminal action was referred to the undersigned for preliminary review. Pending before the Court is defendant's Motion to Suppress [Doc. # 17], to which the government has responded. [Doc. # 20]. Defendant seeks suppression of all evidence/statements arising from an October 21, 2011 search, conducted by members of the Springfield, Missouri Police Department, incident to his arrest on that date. He specifically, but not exclusively, seeks suppression of any and all evidence/statements derived from the search and seizure of a cell phone, which police found in a backpack located near him at the time of his arrest.

Defendant contends that the warrantless search of the cell phone was unreasonable as a matter of law unless the government can establish that the search and seizure was authorized by one of the exceptions to the warrant requirement. He suggests that the government will argue that the search was a legitimate search incident to arrest, and that the pornography allegedly found on the cell phone would have been inevitably discovered via lawful means. Regarding the search incident to arrest argument, he contends that the government cannot show that the warrantless search of the phone was reasonably necessary to maintain the integrity of potential evidence. Because the phone was not in defendant's possession nor within his immediate control, the search cannot be deemed to have been a valid search incident to arrest. In terms of the inevitable discovery exception, he maintains that the exception is not available because law enforcement was not actively pursuing an alternative line of investigation at the time of the constitutional violation. He states that the search warrant was not sought until three and one-half days after the cell phone was seized. It is also his position that, the “affidavit contains no other information tending to establish probable cause that the seized cell phone was likely to contain images of child pornography.” [Motion to Suppress, at 4].

In the government's response, it is argued that the cell phone in question was briefly searched on the scene after defendant, a convicted child molester, was arrested in front of a daycare facility for violations of state law, and after he claimed that he did not own a telephone. It is the government's position that this on-the-scene search was supported by reasonable suspicion that the phone, which defendant had denied owning, might contain evidence of a crime. It is posited that any evidence could have been subsequently destroyed by defendant, had the cell phone not been seized. The government contends that the need to preserve evidence justifies the retrieval of cell records and text messages from a cell phone during a search incident to arrest. It is also argued that, even if the search was not legally justified, the evidence recovered from the cell phone at the time of defendant's arrest would have been inevitably discovered during the search conducted later pursuant to the state search warrant. The government contends that the investigators conducted the second search pursuant to a valid and unchallenged search warrant, and secondly, that defendant disclosed to Detective McDowell, during her interview with him post-arrest at the Greene County Jail, that he had a photo of a young girl sitting on a toilet on his cell phone.

*2 A review of the record indicates that defendant, a convicted child molester, was apprehended by a church daycare facility, Joyland Learning Center, and across the street from Pipkin Middle School, in Springfield, MO. His arrest occurred after reports from the security director at the daycare center that someone had repeatedly placed cut-up children's clothing and soiled diapers in the fenced-in playground area. These acts occurred on October 1, 2011, and again on the 9th, 17th, 19th, 20th and 21st. The events were captured by the daycare center's surveillance equipment. On the night of the 21st, Detective Todd King of the Springfield Police Department conducted surveillance at the center. He made contact with defendant outside the playground, and the security director positively identified him as the person who had been coming to the center. Defendant was wearing a black mini skirt, women's boots, and was concealing a diaper under his skirt. Detective King was advised by dispatch that defendant was a registered sex offender and was therefore not permitted within 500 feet of school property under state law. He was placed under arrest at that time. During the course of the booking process at the scene, another officer arrived. Officer Jason Marcum asked defendant his phone number, and he replied that he did not have a phone. The officers confiscated defendant's back pack and fanny pack, which were lying nearby, and discovered a cell phone in the back pack. According to his report, Officer Marcum conducted a brief search of the cell phone, and observed numerous photographs, some of which appeared to depict child pornography.

Initially, the Court believes that given all the facts known to the officers at the time, there was reasonable suspicion to support the brief search and seizure of the cell phone at the scene of defendant's arrest for evidence of the crime for which he was arrested. Defendant was a convicted sex offender, and was in violation of state law for being within 500 feet of school property. He had been repeatedly seen committing bizarre acts in the proximity of a daycare center and across the street from a middle school. He denied having a phone, and could not reasonably explain his reasons for being at the daycare center at 11:55 p.m. Therefore, the Court believes that the officers had reasonable suspicion of criminal activity to seize and briefly search the cell phone they found in his backpack, which he denied having, without a warrant, incident to his arrest, to ensure the preservation of evidence related to the arrest, including digital images, that could be inadvertently or intentionally destroyed. See generally Arizona v.. Gant, 556 U.S. 332, 342 (2009).

Even if this were not the case, however, and if it were to be ruled that the search and seizure were not subject to one of the warrant requirements, and therefore illegal, the Court finds that the search warrant was supported by probable cause without any of the information contained in the affidavit that related to the brief cell phone search at the scene. It should be noted that defendant only challenges the warrantless search of the cell phone, and that the search warrant was unchallenged.

*3 Corporal McDowell, the affiant for the affidavit in support of the search warrant to search the Kyocera phone, first provided background information in the affidavit, which has been delineated herein regarding defendant's arrest at the site of the daycare center. She then made several statements from officers on the scene regarding information derived from the search of the cell phone. She stated that: “Mann was also found to have a cell phone which contained a large number of photos many [sic] of which were sexual in nature.” [Affidavit, at 3]. Further in the affidavit, it is stated that Officer Marcum searched the cell phone, incident to arrest, “at which time he located several items of interest.” [ Id.]. In addition to noting that there were 612 pictures in the photograph folder, including a picture of a person wearing a diaper, which appeared to match the one that fell from defendant's dress, the officer stated that the “majority of the pictures were of animated pornography. Several of the pictures appeared to [sic] be pornography involving children.” [ Id.]. These are the only references in the affidavit regarding the information acquired from the cell phone at the scene.

The Court is willing to set aside the information in the affidavit that delineates what was found on the cell phone at the scene of defendant's arrest at the daycare center: That the Kyocera cell phone contained a large number of photos (612), many of which were sexual in nature; that the first picture, dated 10/21 /11, was of a person wearing a diaper, which appeared to match the one defendant had under his dress; that the majority of the pictures were of animated pornography; and that several of the pictures appeared to be child pornography.

Without that information, the Court finds that the affidavit contains ample evidence to support probable cause for the issuance of the search warrant for the cell phone. The affidavit has information provided by the investigating officer, Detective King. This includes the fact that defendant had been under surveillance and had been seen, through surveillance photos, trespassing at the church where he entered the fenced play area of the church's daycare. There were also surveillance photos of him walking to the far corner of the play area and leaving cutup girls' clothing and urine-soiled diapers on the playground. The dates of these events were provided in the affidavit. The affidavit includes the report from Detective King that he apprehended defendant at approximately 11:55 p.m., on a bicycle approaching the play area. Defendant was just outside the playground area, and right across the street from a middle school. He reported to the officer that he was there because he was fixing his bicycle chain, although the officer observed that the chain did not look broken. Dispatch provided information that defendant was a registered sex offender with violent tendencies. Defendant admitted to Detective King that he was homeless and that he kept his belongings at his mother's house, but was not allowed to stay there because children were present. He stated to Officer Marcum that he lived in the woods. During the search of defendant's person incident to his arrest, a diaper fell out of the bottom of the dress he was wearing. Defendant denied having a phone, when asked for his phone number.

*4 The affidavit also indicates that when defendant was interviewed at the Greene County Jail, post- Miranda, he stated he was convicted of first degree child molestation and sexual misconduct on a nine-year old female in 2000; that he was released from prison on October 12, 2010; that he was homeless; that he lived in a tent, and walked by the daycare center on his way home; that he admitted to wearing diapers and urinating on them; and admitted to downloading pornographic material on his cell phone. The affidavit states that defendant admitted that he downloaded a website, Babygirls.com, where adult women wear diapers, that he had Japanese cartoon pornography on his phone, and that the girls looked young. “He said he also has a photograph of a young girl sitting on a toilet but you cannot see her face.” [Affidavit at 7]. Defendant stated that his problems might involve sexual frustration, and that he might be a male nymphomaniac. He admitted to wearing diapers by the daycare center, and that he probably did urinate in them.

In the affidavit, Corporal McDowell provides information regarding her search of defendant's tent, pursuant to an unchallenged search warrant. She indicated that she went to the location of defendant's tent, where she found defendant's sex offender registry paperwork. During the execution of that search warrant, the list of items seized included: 52 pairs of young girls' underpants; a package of diapers that matched the ones found at the daycare center; soiled diapers; young girls' clothing, including a skirt that had slits cut through-out and was marked with red marker; four baby dolls, and a Samsung cell phone. The area surrounding the tent including children's toys and books, and a young girl's bicycle. The tent was located in a high density apartment complex area.

The Court finds that, even with the information about the cell phone search at the arrest being redacted from the affidavit, the affidavit's remaining content is nevertheless sufficient to establish probable cause for the issuance of the search warrant. This includes the fact that defendant, a registered sex offender, was arrested for breaking state law by being within 500 feet of the daycare center and the middle school; that he admitted that he had problems that were sexual in nature; that he admitted that he had a picture of a young girl on the toilet on his cell phone, along with other pictures of women in diapers; that he was found wearing a skirt at the daycare center and having a diaper fall out from underneath his skirt; that he was photographed, on at least six occasions, throwing soiled diapers and cut up children's clothing into the fenced playground area of the daycare center; that he admitted that he had thrown urine-soaked diapers on the playground; and that children's toys, and girls clothes, including a cut-up dress and 52 pairs of girl's underwear, along with four baby dolls, were found in and around his tent during the execution of a lawful search warrant. The Court finds that there was clearly probable cause for the issuance of a search warrant to search the Kyocera cell phone. Defendant initially denied having a cell phone, and then later admitted, Post- Miranda, that he had downloaded pornographic images, including at least one that was arguably child pornography, on his cell phone. Given all the information contained in the affidavit regarding defendant's sex offender history, his illegal actions in repeatedly being in the proximity of the daycare center, and his bizarre behavior, it cannot seriously be argued that there was not probable cause for issuance of the search warrant for the cell phone, even with any and all the information gathered from the brief search at the scene being completely redacted from the affidavit.

*5 Additionally, even if it were assumed that the redaction of those statements would result in a finding that the warrant was not based on probable cause and was therefore defective, the Court finds that the good faith exception enunciated in United States v. Leon, 468 U.S. 897, 922–23 (1984), would still apply. It is clear that Corporal McDowell relied in good faith on what she believed to be a valid search warrant. There is nothing to suggest that the affidavit was so lacking in indicia of probable cause that the Leon good faith exception should not apply. It was objectively reasonable for the officer to have believed that probable cause existed in this case. “Under the Leon good-faith exception, disputed evidence will be admitted if it was objectively reasonable for the officer executing a search warrant to have relied in good faith on the judge's determination that there was probable cause to issue the warrant.” United States v. Grant, 490 F.3d 627, 632 (8th Cir.2007). Based on a full review of the record, the Court finds that Officer McDowell reasonably relied in good faith on the validity of the search warrant.

Based on the foregoing, the Court finds that it must be recommended that Defendant's Motion to Suppress be denied.

Therefore, it is, pursuant to the governing law and in accordance with Local Rule 72.1 of the United States District Court for the Western District of Missouri,

RECOMMENDED that Defendant's Motion to Suppress be denied.

W.D.Mo.,2013.
U.S. v. Mann
Slip Copy, 2013 WL 3832682 (W.D.Mo.)

END OF DOCUMENT

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