After Benjamin Joseph Hager was charged with “receiving and
possessing materials involving the sexual exploitation of minors in violation
of 18 U.S. Code § 2252(a)(2) and (a)(4)(B)” he filed a motion to
suppress “the evidence derived from the search at his residence.” U.S. v.
Hager, __ F.3d __, 2013 WL 1274564 (U.S. Court of Appeals for the 8th Circuit 2013).
When the district court judge
who had the case denied the motion, Hager “entered into a conditional guilty plea that reserved
his right to appeal the denial of the motion”, the judge accepted the
plea and “sentenced Hager to 120 months' imprisonment.” U.S. v.
Hager, supra. In this opinion, the Court of Appeals is ruling on the denial
of Hager’s motion to suppress. U.S. v. Hager, supra.
The case began in September of 2010, when Special Agents
from the Department of Homeland security found child pornography on a computer
belonging to Robert J. Mueller, a Michigan resident. U.S. v.
Hager, supra. When they searched
Mueller’s hard drive, “they found emails from the email address
`Cujoben@webtv.net’” that indicated “this person had a sexual interest in
children, . . . referred to himself as `Ace,’ and that the account was
registered to Ben Hager at Wahpeton, North Dakota address from which a package
had been sent to Mueller. U.S. v. Hager,
supra.
The Michigan agents subsequently sent Agent Timothy
Litzinger a CD that contained “explicit emails in which `Cujoben’ admitted having
a sexual interest in young girls”. U.S.
v. Hager, supra. Some of the emails
“contained non-pornographic sexually suggestive photographs of Mueller's
daughters” and some of the images. U.S.
v. Hager, supra. “Some, but not all, of the emailed images
contained exchangeable image file or `EXIF’ metadata.” U.S. v.
Hager, supra. After Litzinger
received this information, North Dakota Homeland Security agents investigated
Hager and found that he had `at least' two prior
law enforcement contacts resulting from his interest
in young girls and lived . . . at the same Wahpeton address provided as the
package's return address. Litzinger told the Michigan HSI agents he intended to
seek a search warrant for Hager's residence and to search for copies of the
images of Mueller's daughters in Hager's possession and for metadata to aid
their case against Mueller. The Michigan HSI agents thanked Litzinger, saying
that they would find the information helpful.
U.S. v. Hager, supra.
On November 23, 2010, Litzinger applied for a warrant to
search Hager's residence. U.S. v. Hager,
supra. The application said the
“basis for the search was `contraband, fruits of crime, or other items illegally
possessed’” and it was supported by an affidavit in which “Litzinger averred”
that there was “probable cause to believe that currently located within [Hager's]
residence are sexually suggestive images depicting known children which were
produced by Robert John Mueller in Detroit, Michigan.” U.S. v. Hager, supra.
The affidavit provided more detail about the contacts between Hager and
Mueller and generally described “procedures for seizing computers and
characteristics of individuals who have a sexual interest in children”. U.S. v. Hager, supra. It also described
the investigation of Hager “in great detail” and concluded as follows:
`Based upon these prior investigations involving a
pattern of conduct involving children as well as the information contained in
previous paragraphs 15–56, it is believed that Ben Hager is the individual who
received the sexually suggestive images of [Mueller's minor daughters] via the
email account CujoBen@webtv.net.’
`As set forth in paragraph 56, the exif metadata
associated with the sexually suggestive images depicting Mueller's minor
daughters (which is believed to be stored on a computer within Hager's
residence), when compared with the exif metadata associated with the child
pornographic images depicting Mueller's minor daughters that were recovered
from Mueller's residence in Detroit, Michigan, will reveal whether the two sets
of images were produced with the same two cameras. . . ‘
U.S. v. Hager, supra.
The U.S. Magistrate Judge issued a warrant that authorized a search of
Hager’s residence and the seizure of “`sexually suggestive images depicting
[Mueller's minor daughters] wherever they may be stored or found’”. U.S. v. Hager, supra. In an addencum [sic], the warrant listed “`requirements
[applicable] to any . . . tapes . . . seized pursuant to [the] warrant’”, which
included the requirement that:
`Electronic Devices, Storage Media, and
Electronically Stored Information seized pursuant to this warrant are subject
to search only for the Electronically Stored Information that is specifically
described in and that is the subject of this warrant.’
U.S. v. Hager, supra.
The next day, Litzinger and other agents executed the warrant. U.S. v.
Hager, supra. During the search,
Hager told them he knew Miller and admitted that he knew
Mueller was molesting his daughters and admitted he had received non-pornographic pictures of Mueller's daughters. . . . Hager said also he used a WebTV connection to copy information from the Internet to VHS tapes.
During the search . . . agents found
747 VHS tapes capable of holding more than 4,400 hours of information when
viewed on a television. Litzinger called a computer forensic expert in North
Dakota to ask whether [they] constituted `electronic media.’ The expert said
that they did. Litzinger then called the First Assistant United States Attorney
for North Dakota, who said that the VHS tapes were within the scope of the
warrant. Agents then seized the tapes.
Litzinger was unfamiliar with WebTV or how VHS
recording devices worked, thinking WebTV was similar to a modem. [He] believed
he would find the Mueller images on the VHS tapes and that the VHS tapes would
contain metadata useful to the Mueller case. Litzinger did not know tVHS tapes
are analog, not digital, and . . . cannot contain metadata; Litzinger saw a USB port on the WebTV box and assumed that the information on the VHS
tapes would be the same as if it was saved on a computer.
Litzinger and a non-expert support
staff member . . . reviewed the VHS tapes at the . . . office. Neither
Litzinger nor the support staff member knew the VHS tapes could not contain
metadata, although a reasonably competent forensic computer examiner would know
this. Upon viewing the tapes, Litzinger and the support staff member found
child pornography, whereupon they stopped viewing the tapes and sought and
obtained an additional warrant.
U.S. v. Hager, supra.
In appealing the denial of his motion to suppress, Hager
argued that the first
search warrant authorized only a search
for the metadata of the sexually suggestive images of Mueller's daughters. . .
. Hager argues that the agents were not authorized to search for the images on
the VHS tapes in his residence because the VHS tapes could not contain
metadata.
U.S. v. Hager, supra.
The Court of Appeals rejected Hager’s scope of the warrant
argument, finding that in
his affidavit in support of the search
warrant, Litzinger made clear that he sought to recover `sexually suggestive
images depicting known children which were produced by Robert John Mueller in
Detroit, Michigan[.]’ . . .Similarly, the warrant authorized a search for and
the seizure of `sexually suggestive images depicting [Mueller's minor
daughters] wherever they may be stored or found[.]’ . . .
Although Litzinger
undoubtedly sought to examine any metadata from the Mueller images, a fair
reading of his affidavit reveals that Litzinger sought to recover the metadata
in addition to, and not to the exclusion of, the images themselves. . .
.
Hager
argues also that the warrant's addendum limited the scope of the search to
metadata. The addendum limited the search of tapes to `Electronically Stored
Information that is specifically described in and that is the subject of this
warrant.’ . . . The warrant, however, authorized a search for `sexually
suggestive images depicting [Mueller's minor daughters] wherever they may be
stored or found[.]. . . .
When read in conjunction with the warrant's
authorization, the addendum limited the search of tapes to the Mueller images
and accompanying metadata. . . .
U.S. v. Hager, supra.
Hager also argued that “Litzinger's affidavit did not
establish probable cause to search for the Mueller images or the metadata
because the affidavit did not establish how recovery of the Mueller images or
the metadata would aid in the prosecution of Mueller.” U.S. v. Hager, supra. The Court of Appeals noted that probable
exists when
`“there is a fair probability that
contraband or evidence of a crime will be found in a particular place.”’ U.S.
v. Palega, 556 F.3d 709 (U.S. Court of Appeals for the 8th Circuit 2009) (quoting Illinoisv. Gates, 462 U.S. 213 (1983)). `A totality of the circumstances test
is used to determine whether probable cause exists.’ U.S. v. Gleich, 397
F.3d 608 (U.S. Court of Appeals for the 8th Circuit 2005). `Courts should apply
a common sense approach and, considering all relevant circumstances, determine
whether probable cause exists.’ Id.
U.S. v. Hager, supra.
The Court of Appeals then found that Litzinger’s affidavit
stated that the
`recovery of [the Mueller] images
[would] establish that Robert John Mueller is responsible for producing other
images depicting his minor daughters engaged in sexually explicit conduct [.]’
. . . Litzinger averred that the metadata from the Mueller images thought to be
at Hager's residence, `when compared with the exif metadata associated with the
child pornographic images depicting Mueller's minor daughters that were
recovered from Mueller's residence in Detroit, MI, [would] reveal whether the .
. . images were produced with the same two cameras. . . .
To the extent the affidavit lacked a thorough
explanation as to how this evidence would aid in the prosecution of Mueller,
this omission is not fatal to the validity of the search warrant, for `[j]udges
“may draw reasonable inferences from the totality of the circumstances in
determining whether probable cause exists to issue a warrant[.]”’ U.S. v.
Summage, 481 F.3d 1075 (U.S. Court of Appeals for the 8th Circuit 2007)
(quoting U.S. v. Thompson, 210 F.3d 855 (U.S. Court of Appeals for
the 8th Circuit 2000)).
Upon considering Litzinger's affidavit
in its entirety, the magistrate judge could have reasonably inferred that
recovery of the Mueller images at Hager's residence would establish that
Mueller produced sexually suggestive, albeit legal, images of his minor
daughters and that Mueller distributed those images over the Internet.
Similarly, the magistrate judge could have reasonably inferred that recovery of
the metadata, in turn, would establish that the same camera used to take the
sexually suggestive photographs of Mueller's daughters was used to take the
illegal pornographic photographs of Mueller's daughters.
From all of this, the
magistrate judge could have reasonably inferred that recovery of the Mueller
images and the metadata would aid in the Mueller prosecution.
U.S. v. Hager, supra. So the court rejected Hager’s argument.. U.S. v. Hager, supra.
The Court of Appeals also noted that “even if” it were to
agree with Hager that
Litzinger's affidavit somehow failed to
establish probable cause to search for the Mueller images and the metadata, the
evidence would . . . be admissible under the Leon good-faith
exception to the exclusionary rule. See U.S. v. Leon, 468 U.S.897 (1984). `Under the Leon . . . exception, disputed evidence
will be admitted if it was objectively reasonable for the officer executing a
warrant to have relied in good faith on the judge's determination that there
was probable cause to issue the warrant.’ U.S. v. Patten, 664
F.3d 247 (U.S. Court of Appeals for the 8th Circuit 2011). . . .
U.S. v. Hager, supra.
Hager claimed “it was not objectively reasonable for
Litzinger to rely on the warrant because a reasonable computer forensic
examiner, such as the one Litzinger consulted before searching the VHS tapes,
would have known [they] could not contain metadata.” U.S. v.
Hager, supra. The Court of Appeals,
however, found that this argument failed
because as discussed above, . .
. the warrant authorized the search for the Mueller images themselves in
addition to the metadata. Accordingly, even if Litzinger had personally known
that the tapes could not contain metadata, they would nonetheless have come
within the scope of the warrant.
U.S. v. Hager, supra.
The court then found that the Leon exception would apply here because given the
facts. . . it was objectively
reasonable for Litzinger to rely on the magistrate judge's determination that
there was probable cause to issue the search warrant. Authorities recovered
emails and other evidence from Mueller's computer indicating that Hager
possessed sexually suggestive images taken by Mueller of Mueller's daughters
and that these images might contain metadata. . . .
[R]ecovery of the images
and the metadata would have aided the prosecution against Mueller. . .
. In short, `[n]othing . . . indicates the warrant was facially invalid or
the issuing judge abandoned h[er] role as a neutral and detached magistrate. U.S.
v. Keele,589 F.3d 940 (U.S. Court of Appeals for the 8th Circuit 2009).
Moreover, Litzinger exhibited
good-faith reliance on the warrant during his execution thereof. Prior to
seizing and searching the VHS tapes, Litzinger contacted a computer forensic
expert and the First Assistant United States Attorney . . . to ensure
compliance with the warrant. . . . When [he] discovered child
pornography on the tapes, he stopped searching the tapes and sought a second
search warrant.
Accordingly, . . . the evidence . . . was admissible pursuant
to the Leon good-faith exception.
U.S. v. Hager, supra.
For these and other reasons, the court affirmed the district
court judge’s denial of Hager’s motion to suppress and therefore affirmed his
conviction. U.S. v. Hager, supra.
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