After being charged with “knowing possession of child
pornography in violation of 18 U.S. Code § 2252(a)(4)(B)”, Derek Thomas
filed a motion to suppress “all evidence seized during a search of his
residence on March 2, 2012”. U.S. v. Thomas, 2012 WL 4892850 (U.S.District Court for the District of Vermont 2012).
In moving to suppress, Thomas argued that “the search
warrant was invalid because of material omissions from the supporting affidavit”. U.S. v.
Thomas, supra. As I have noted in
earlier posts, when a police officer or federal agents wants to obtain a
warrant to search a place or thing, he/she fills out an application for the
warrant and submits an affidavit, the purpose of which is to establish that
there is probable cause to issue the warrant.
Federal Rule of Criminal Procedure 41(d), which you can find here,
outlines the process. And you can find
an application for a federal search warrant and affidavit in support here.
To understand the basis of Thomas’ motion to suppress, it is
necessary to understand what led to the issuance of the search warrant in
question. The opinion explains that on
December 21, 2011, officers with the
South Burlington Police Department discovered an Internet Protocol (`IP’)
address that had previously offered to share files containing child pornography
on the Internet through peer-to-peer file sharing (the `IP Address’). The IP
Address was assigned to Comcast.
A Special Agent with Homeland Security
Investigations (`HIS’) served a subpoena on Comcast requesting identification
of the subscriber to the IP Address. Comcast responded that the IP Address was
registered to Diane Jarvis, who lived at 73 Granite Creek Road, Colchester,
Vermont, 05446 (the `Residence’).
U.S. v. Thomas, supra.
The opinion then explains that after he received this
information, HSI Special Agent
Seth Fiore verified that Jarvis lived at the
Residence by running checks with a service identified as `Clear’ and with the
Vermont State Police's database. Fiore also engaged in surveillance of the
Residence on several different dates. During his surveillance, Fiore ran the
license plate of a vehicle at the Residence, and found it was registered to Jarvis.
According to Fiore, the purpose of his surveillance was to confirm that Jarvis
lived at the Residence, to verify for officer safely whether any other
individuals lived there, and to ascertain whether there were children living at
the Residence.
During the surveillance, Fiore used two
different electronic devices for identifying wireless networks (each a
`Portable Wireless Detector’). The Portable Wireless Detectors purport to
identify wireless networks in a particular area and indicate whether the
wireless networks are password protected.
Although Fiore had not received
formal training in the use of the Portable Wireless Detectors, HSI Special
Agent McCullough, who works in computer forensics, advised Fiore regarding
their proper use and how to decode the information they displayed.
U.S. v. Thomas, supra.
On February 1, 2012, Fiore
used one of the Portable Wireless Detectors in the street
outside the condominium complex in which the Residence is located.
. . . [T]he Portable Wireless Detector identified fifteen active wireless
networks. Five . . . were unsecure. None of the wireless networks . . . were
clearly connected with the Residence. On February 7, Fiore utilized the second
Portable Wireless Detector in the driveway of the Residence. [It] identified
seven wireless networks, one of which was unsecure.
During this second surveillance, Fiore observed a wireless network
labeled `Jarvis,’ which the Portable Wireless Detector identified as password
protected. Fiore did not
seek to verify with the users of the wireless networks in the condominium
complex whether the networks they were using were secure because he was
concerned about maintaining the secrecy of his investigation.
U.S. v. Thomas, supra. (The opinion notes that Fiore “is aware of instances where police have searched a house, based on activity from an IP address associated with the house, and have found no evidence because the wireless network in the house was unsecure.” U.S. v. Thomas, supra.)
Other “law enforcement officers” carried out surveillance of
the Residence on February 8, “and observed wireless networks in the area using
a device in their vehicle.” U.S. v.
Thomas, supra. It “indicated there were twenty-nine wireless networks,
eight of which were unsecure.” U.S. v. Thomas, supra. Fiore then drafted the search warrant
application
and supporting Affidavit to search the Residence for electronic and other
communications pertaining to child pornography. The Affidavit does not include
information regarding the existence of secure or unsecure wireless networks.
However, it states that it `does not contain every fact known to [Fiore] with
respect to this investigation. Rather it contains those facts that [Fiore]
believe[d] to be necessary to establish probable cause for issuance of a search
warrant for the [Residence].’ . . .
[At the hearing on the motion to
suppress,] Fiore testified that he did not believe it was necessary to include
in the Affidavit information regarding the presence of unsecure wireless
networks in the area surrounding the Residence or that the `Jarvis’ network was
secure to establish probable cause.
He noted that the U.S. Attorney's office
reviewed and approved the Affidavit for probable cause prior to its submission
to the Magistrate Judge. On February 23, 2012, United States Magistrate Judge
John Conroy issued a search warrant for the Residence.
U.S. v. Thomas, supra.
In his motion, Thomas argued that the evidence should be
suppressed because Fiore
deliberately or with reckless disregard
for the truth omitted from the Affidavit information regarding the existence of
secure and unsecure wireless networks in the area surrounding the Residence.
He
[claims] the omitted information was material because, had it been included in
the Affidavit, Magistrate Judge Conroy would not have found probable cause to
search the Residence. The Government contends that probable cause existed with
or without the omitted information and there is no evidence of any deliberate
or reckless omission.
U.S. v. Thomas, supra.
(As I have explained in earlier posts, in Franks v. Delaware, 438 U.S. 154 (1978),
the Supreme Court held that if a defendant shows the government deliberately or
recklessly includes false information in a search warrant affidavit, the court
must void the warrant and the results of the search if the information was
necessary to finding probable cause. And
as I have noted in other posts, lower courts have applied this same standard
when a defendant claims the government omitted information that would have a
similar effect, which seems to be what Thomas is doing.)
The court first considered whether the omitted information
was “material,” i.e., was necessary to the magistrate’s finding probable
cause. U.S. v. Thomas, supra. The
prosecution argued that it was immaterial for two reasons, the first of which
was that
probable cause to search the Residence
would have existed even if the IP Address was associated with an unsecure
wireless network. As it points out, courts have consistently concluded that
there is probable cause to search a residence when an IP address associated
with child pornography can be traced to the residence. . . . Here,
the Affidavit clearly establishes that nexus.
Moreover, courts have generally
concluded that the mere possibility that an IP address may be associated with
an unsecure wireless network does not affect the probable cause determination.
Although the presence of unsecure wireless networks gives rise
to the possibility that a person outside of the Residence may have accessed the
network to transmit messages regarding child pornography, it remains probable
that the transmission originated from within the Residence and that evidence of
child pornography would be found there. . .
U.S. v. Thomas, supra.
The government’s other argument was that including the omitted
information in the
Affidavit would have
strengthened, not weakened, the argument for probable cause. Although [Thomas]
argues that the known presence of unsecure wireless networks means that someone
other than an occupant of the Residence could have used the IP Address, he does
not contend that this could occur if the IP Address was associated with a
secure wireless network.
The information omitted from the Affidavit
included evidence that the `Jarvis’ wireless network was a secure wireless
network. Accordingly, some of the information [Thomas] argues was deliberately
or recklessly omitted from the Affidavit made it more likely that
child pornography would be found at the Residence.
U.S. v. Thomas, supra
(emphasis in the original).
The court therefore held that “[b]ecause the omitted
information would not have materially affected the probable cause determination
and because probable cause existed even in its absence, [Thomas’] challenge to
the validity of the search warrant for lack of probable cause must fail.” U.S. v.
Thomas, supra.
The judge then took up the issue – the Franks issue noted above – as to whether the information was
omitted either deliberately or recklessly.
U.S. v. Thomas, supra. She explained that
[h]aving concluded that the omitted
evidence was not material to the probable cause determination, the court need
not consider whether it was omitted deliberately or with reckless disregard for
the truth. The court nonetheless observes that there is no evidence before the
court that Fiore concealed any evidence from the magistrate judge.
Indeed, as noted, a key part of the
information omitted -- that the `Jarvis’ wireless network was secure -- would
have strengthened the nexus between the IP Address and the Residence,
making it more likely that child pornography would be found in
Ms. Jarvis's home. The presence of other unsecure wireless networks in the area
in no way alters this conclusion.
U.S. v. Thomas, supra
(emphasis in the original).
The judge therefore denied Thomas’ motion to suppress. U.S. v.
Thomas, supra.
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