This post examines a recent opinion from the U.S. District Court for the Eastern District of Virginia: U.S.
v. Church, 2017 WL 282639 (2017).
The U.S. District Court Judge who has the case begins the opinion by
explaining that
[t]his matter is before the Court on
Defendant Charles E. Church's MOTION TO SUPPRESS EVIDENCE (`Def. Mot.’) (ECF
No. 17) and the United States' MOTION TO RECONSIDER (ECF No. 37).
U.S. v. Church, supra.
The opinion then goes on to explain, in two different
sections, what had happened to this point in the litigation (the “procedural
history”) and the facts that led to the litigation. U.S. v.
Church, supra. This post examines both issues in that same order.
The Judge began the procedural history section of the
opinion by explaining that
[i]n January of 2016, Church was
indicted on two counts of Forcible Sodomy and one count of Rape in the Circuit
Court of the City of Richmond. While the state case was pending, a criminal
complaint (ECF No. 1) was filed in this Court and a federal warrant (ECF No. 5)
was issued for Church's arrest. Thereafter, the state charges against Church
were nolle prossed, he was taken into federal custody, and he made
his initial appearance (ECF No. 7). Church was indicted (ECF No. 13) on six
counts of Receipt of Child Pornography in violation of 18 U.S.C. §2252A(a)(2)(A), and two counts of Possession of Child Pornography in violation
of 18 U.S.C. § 2252A(a)(5)(B)).
On August 12, 2016, Church filed this
MOTION TO SUPPRESS EVIDENCE (`Def. Mot.’), seeking to suppress all evidence
gathered from the seizure of his tablet and laptop computers, as well as all
evidence from his Google e-mail account collected pursuant to the second
warrant (Def. Mot. 1). The United States filed a response (`U.S. Resp.’), and
Church filed a reply (`Def. Reply’) (ECF No. 19). An evidentiary hearing was
held and, at the request of the Defendant, the Court ordered supplemental
briefing, keyed to the transcript of that hearing, addressing specific issues
surrounding the nature of the consent given by Peesha Church, the Defendant's
spouse. Church then filed a supplemental brief (`Def. Supp.’) (ECF No. 30), the
United States filed a response (`U.S. Supp. Resp.’) (ECF No. 31), and Church
filed a reply (`Def. Supp. Reply’) (ECF No. 34).
U.S. v. Church, supra.
The opinion goes on to explain that,
[o]n October 17, 2016, the Court issued
a Memorandum Opinion (ECF No. 32) holding that the search warrant obtained and
executed against Church on November 4, 2015 was invalid under Fourth Circuit
precedent, and that the good faith exception to the warrant requirement, first
articulated by the Supreme Court in UnitedStates v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), did
not apply. See United
States v. Church, 2016 WL 6123235 (E.D. Va. Oct. 18, 2016). Pursuant to
that opinion and the Court's prior orders, further evidence and argument was
heard on the consent issue at a second hearing (`Hrg. II’), after which a final
supplemental round of briefing was ordered. The United States filed its brief
(`U.S. Supp. II.’) (ECF No. 37) and included within it a MOTION TO RECONSIDER,
asking the Court to revisit certain aspects of its prior Memorandum Opinion
(ECF No. 32). Church filed a response (`Def. Supp. Resp.’) (ECF No. 38), and the
United States filed a reply (`U.S. Supp. Reply’) (ECF No. 39). The motion is
now ripe for decision.
U.S. v. Church, supra.
The opinion then begins outlining the facts that are
relevant to the charges and to the issues in the two motions before the court:
On November 3, 2015, a minor female
(`MV1’) reported to her family guardian that Church, a Police Officer for the
City of Richmond, had sexually assaulted her at his Richmond home sometime
after 7:00 p.m. on the previous evening (Def. Mot. 1). Following this report,
the family guardian contacted Richmond police, voluntarily turned over MV1's
cellular telephone to them, and transported MV1 to the Pediatric Emergency Room
at Virginia Commonwealth University Medical Center, where she was examined and
interviewed by a Forensic Nurse. (Hiner Aff. Attach. B ¶ 6). Following this
examination, a physical evidence recovery kit (PERK) was delivered to Detective
Steve Kendell of the Richmond Police Department (RPD). Id.
The following morning, November 4,
2015, MV1 was taken to the Child Advocacy Center and interviewed a second time
by Ms. Brianna Valentino. (Hiner Aff. Attach. B ¶ 2) During that interview, MV1
told Valentino that she and her younger sibling (MV2) were in an upstairs
bedroom preparing to go to sleep when Church exchanged several SMS (short
message service) text messages with her. Id. at ¶ 2. In one
message, Church queried MV1 whether MV2 was asleep. MV1 stated that, after she
informed Church by text message that MV2 had fallen asleep, Church responded
that he was coming upstairs, Id. MV1 told Valentino that she
was led by Church into his bedroom, where upon Church undressed them both,
digitally penetrated her vagina and anus, attempted to penetrate her vagina and
anus with his penis, and forced her to perform oral sexual intercourse on
him. Id. at ¶ 5. MV1 was also asked whether Church had ever
sent or showed her pornographic images or videos, and MV1 stated that he had
not. (Def. Mot. 2). Based on MV1's statements to Valentino and the PERK from
VCU Hospital, Richmond Police arrested Church at 1:30 p.m. for Forcible Sodomy
of a Minor. (Hiner Aff. Attach. B ¶ 2, ¶ 8). As part of the arrest, Church's
cellular telephone was seized by the RPD and his apartment was secured.
While MV1 was being interviewed at the
Child Advocacy Center, Richmond Police Detective Lieutenant Don Davenport
contacted Kevin Hiner, a detective in the Computer Crimes Unit and a Task Force
Officer assigned to the FBI's Richmond Division Innocent Images Taskforce and
Southern Virginia Internet Crimes Against Children Task Force. (Hiner Aff.
Attach. B ¶ 2). Davenport informed Hiner of the burgeoning investigation into Church's
activities. Id. Hiner contacted Valentino and, after reviewing notes
from her interview with MV1, requested and was given permission to examine
MV1's cellular telephone. The text messages described by MV1 were not
discovered, but Hiner's search revealed that text messages between MV1 and
Church had been deleted. Id. at ¶ 7. Based on all the evidence
that had then been acquired, Hiner prepared an affidavit for a warrant to
search Church's residence.
U.S. v. Church, supra.
The opinion continues, explaining that in
the application for the warrant, Hiner
summarized the aforementioned facts and asserted that, together, they `indicate[d]
that on November 2, 2015 Charles Church utilized a cellular telephone to
exchange SMS text messages with MV1 prior to the sexual assault.’ (Hiner Aff.
Attach. B 512). Based on the this evidence, Hiner concluded `that probable
cause exists that evidence pertaining [sic] the forcible sodomy of MV1 is being
stored on a cellular telephone or other device capable of storing digital
data.’ Id. Consistent with this conclusion, Hiner's warrant
application identified Forcible Sodomy (Va. Code Ann. § 18.2–67.1) as the
offense in relation to which a search was requested. Id. at ¶
1. Additionally, however, Hiner requested permission to search for evidence of
the Possession, Reproduction, Distribution, and Facilitation of Child
Pornography (Va. Code Ann. § 18.2–374.1) (`Child Pornography’). Id.
In his attachment outlining the `things
or persons to be searched,’ Hiner did not list sheets, towels, bed linens, or
any other form of physical evidence that might be associated with the crime of
Forcible Sodomy. Instead, he requested authorization to search and seize, inter alia, `any electronic devices that are capable of capturing, collecting,
analyzing, creating, displaying, converting, storing, concealing, or
transmitting electronic, magnetic, optical, or similar computer impulses or
data.’ (Hiner Aff. Attach. A ¶ 2). Under the subheading `Materials Relating to
Child Erotica and Depictions of Minors,’ Hiner specified in four sub-paragraphs
the specific evidence of Child Pornography for which he was seeking permission
to search. Id. ¶ 13–16. There was no mention of any specific
evidence relating to the alleged Forcible Sodomy. The search warrant was
issued by the Circuit Court for the City of Richmond on November 4, 2015 at
3:55 p.m.
Also on November 4, 2015, Detective
Sandy Ledbetter–Clarkson (`Ledbetter’), then-assigned to the United States
Marshals' fugitive task force, reached out to the Defendant's wife, Peesha
Church (`Ms. Church’), and asked her to come to the police station for `something
to do with her husband.’ (Tr. Evid. Hr. 44:20–45:24). Ms. Church agreed, and
drove herself to the Richmond Police headquarters approximately one hour
later. Id.
Shortly thereafter, Hiner contacted
Davenport, who was interviewing Ms. Church at that time, and requested that he
obtain a permission to search form from her. Davenport testified that the
request for consent was necessary because the warrant `did not cover the acts
of forcible sodomy or the physical sexual assault of the victim.’ (Tr. Evid.
Hrg. 15:15–18). This testimony was corroborated by Detective Stephen Jones, one
of the officers who executed the warrant, who testified that at the time of the
search he `was aware that the other items other than the electronics had been
omitted from the scope of the search warrant,’ id. at
39:16–18, and that `[t]here was nothing in the search warrant that allowed me
to collect anything other than the electronic items.’ Id. at
39:4–5.
There was conflicting testimony
regarding the circumstances and content of Ms. Church's interview with
Ledbetter and Davenport; however, the testimony is in agreement as it relates
to the scope of consent. Both Ms. Church and Davenport testified that the
only crime that they discussed during the interview was the charge of Forcible
Sodomy, and that the topic of child pornography was never mentioned. Id.,
at 28:9–20, 60:4–25. No indication was given to Ms. Church that her husband was
being investigated for any crime other than Forcible Sodomy, and at no point
did the police suggest that they had any interest in any tablet or laptop
computers. Id.
U.S. v. Church, supra.
The court then explains that,
[a]lthough the detectives' `sole focus’
was on the crime of forcible sodomy, id. 28:18–20, the Consent
Form signed by Ms. Church was not limited to any particular crime. See ECF
No. 19–1 (`Consent Form’). In relevant part, the Consent Form reads as follows
(italics indicate hand-written portions):
I, Peesha Barot–Church,
hereby authorize Richmond Police Department [sic] duly
appointed Police Officers of the City of Richmond, Virginia, to conduct a
complete search of residence: Richmond, Va.
These officers are authorized by me to
seize from my residence any letters, papers, paraphernalia,
material or other items they have reason to believe are connected with a crime.
This written permission is being given
by me to the above named, duly appointed Police Officers voluntarily and
without any threats or promises of any kind.
Id. As
confirmed by the testimony at the evidentiary hearing, the only express
limitation on this consent is contained in the form itself, which limited the
items or materials to be seized to those which the officers `have reason to
believe are connected with a crime.’ Id. Ms. Church confirmed
that, although her conversation with Davenport and Ledbetter focused on the
crime of Forcible Sodomy, neither Detective verbally limited the scope of
consent to any specific items. (Tr. Evid. Hr. 70:5–10.)
The search warrant was executed on
November 4, 2015, at 4:40 p.m., when officers entered the Church residence and
began the process of photographing the premises. At that time, `the consent to
search [form] hadn't actually made it to the scene.’ Id. at
41:18–20. Consequently (according to Jones), the tablet and computer in
question were seized `pursuant to the warrant, although Jones later indicated
that he believed he also could have seized them pursuant to the consent. Id. at
38:22–39:20, 41:8. Jones also testified that the Consent Form arrived at the
scene before any objects were actually seized. Id. at
41:25–42:6.
As reported in the search warrant
inventory, officers seized two cellular telephones, one LG tablet computer (`tablet’),
and one HP laptop computer (`laptop’) from the defendant's residence. (Warrant,
ECF No. 18–1). Hiner conducted a forensic examination of the tablet and
computer, and discovered evidence of child pornography within the `cache
associated with the tablet's web browser, as well as in the tablet's thumbnail
cache.’
(U.S. Resp. 6). Hiner
also uncovered links to Church's Google e-mail account relating to this
material. Id.
Based on the results of the search of
Church's home, Hiner applied for and obtained a second search warrant for
Church's Google e-mail account. Id. In response to this second
warrant, Google provided records related to Church's account, including his
search history, which yielded further evidence of both visited websites and
searches indicative of child pornography. Id. Church also
seeks suppression of this evidence, arguing that it stems from the
unconstitutional search and seizure of his tablet and laptop computers. (Def.
Mot. 1, n.1). The United States maintains that the seizure was constitutional
because of the consent given by Ms. Church (Gov. Supp. Resp. 7–10), requests
that the Court reconsider its earlier ruling that the warrant was defective and
that the Leon exception did
not apply, and otherwise argues that suppression is unwarranted under the
circumstances. See Gov. Supp. II. at 3, 13–17.
U.S. v. Church, supra.
The District Court Judge then took up the consent exception
to the Fourth Amendment’s default requirement that searches and seizures be
conducted pursuant to a warrant. Ge began by explaining that the
facts and testimony in this case
demonstrate that the seizure of the tablet and laptop computers exceeded the
scope of Ms. Church's consent. The `sole focus’ of the interview of Ms. Church
by Davenport and Ledbetter was the crime of Forcible Sodomy, i.e. the
alleged sexual assault of MV1. (Tr. Evid. Hrg. 28:18–20.) Moreover, the
uncontroverted testimony of both Jones and Davenport clearly demonstrates that
Ms. Church's consent was obtained specifically because the warrant `did not
cover the acts of forcible sodomy or the physical sexual assault of the
victim.’ Id. at 15:15–18. Given that testimony, and especially
considering the undisputed fact that the roughly two-hour interview with Ms.
Church did not include even the slightest indication that police were
interested in any crime other than the sexual assault, it is likely that the `typical
reasonable person’ would have understood Ms. Church's consent to have been
limited to evidence associated with that crime. Jimeno, 500 U.S. at 251, 111 S.Ct. 1801. Contrary to the United
States' arguments, that limitation places Church's tablet and laptop computers
outside the scope of consent.
The United States argues that,
notwithstanding the focus of the investigation at the time, the broad language
of the Consent Form should control, given that neither Ms. Church nor the
officers questioning her ever expressly placed any verbal limitations on what
they were seeking. (U.S. Supp. Resp. 7–8). Secondly, the United States suggests
that, even if the scope of consent was limited to evidence of the assault, Ms.
Church `knew the RPD was interested in searching electronic devices in its
investigation' into that crime because she had been told that a cellphone had
been used by her husband to communicate with the victim. Id. at
8. Neither of these arguments is persuasive.
The language of the Consent Form is
unquestionably broad—it expressly limits what the officers may seize only to
items that `they have reason to believe are connected with a crime.’
Notwithstanding the breadth of the form, an unquestionably important factor in
determining consent, see Coleman, 588 F.3d at 820–821, the
test remains one of `objective reasonableness,’ defined by what the `the
typical reasonable person [would] have understood by the exchange between the
officer and [Ms. Church].' Jimeno, 500 U.S. at 251, 111 S.Ct. 1801. And,
`the typical reasonable person’ would expect that even a broadly worded consent
form, if signed after approximately two hours of questioning in which the `sole
focus’ was an allegation of sexual assault, would be directed at and limited to
evidence of that crime. In other words, given the context, it is clear that evidence
of the assault was the `expressed object’ of the search for which Davenport
acquired Ms. Church's permission Id. Therefore,
the scope of the consent was limited to the type of evidence associated with that
offense. Church's laptop and tablet computers do not fall within that scope.
The United States disputes this
conclusion in its second argument, which relies on the interconnected nature of
many modern electronic devices, cloud computing, and the fact that Church used
a cellphone to send SMS text messages to MV1 prior to the alleged assault.
(U.S. Supp. Resp. 9–10) (U.S. Supp. II 1–10). Essentially, the United States
argues that police could reasonably have believed that the text messages
between Church and MV1 would be found on his tablet or laptop computers, and
that, therefore, the seizure and search of those items were covered by the
consent given by Ms. Church. Id. This argument is but a slight
variant of the same argument that was rejected in the decision invalidating the
warrant in this case. Recognizing this, the United States has styled its
position as both an argument for upholding the search by way of consent, as
well as a motion to reconsider the Court's earlier treatment of the warrant.
(U.S. Supp. II. 1, 3, 13–16).
Id.
The Judge goes on to explain that,
[f]or the same reasons provided in the
Court's earlier Memorandum Opinion (ECF No. 32), the United States' argument is
unpersuasive. First, the Court declines to revisit its interpretation of United
States v. Doyle, 650 F.3d 460 (4th Cir. 2011). Although United States disputes
that the case `should be read for the proposition that a search warrant for
evidence of child pornography cannot be based solely on evidence of child
molestation,’ (Gov. Supp. II. 3), the fact remains that the Doyle Court
specifically embraced that proposition, nearly word for word, before proceeding
to quote approvingly several other Courts of Appeals that had reached the same
conclusion. See Doyle, 650 F.3d at 472 (`The bulk
of the information supplied in the affidavit concerned allegations of sexual
assault. But evidence of child molestation alone does not support
probable cause to search for child pornography.’)
The United States also requests
reconsideration of the Court's prior observation that `no evidence of any kind
was presented to the magistrate suggesting that the deleted SMS text messages
could or would be discovered on any electronic device other than Church's
cellphone.’ (U.S. Supp. II. 3) But, the United States offers no evidence from
the affidavit contradicting that conclusion. Instead, it continues to point to
the missing SMS text messages, this time as evidence that it was `objectively
reasonable’ for the officers to seize the computer and tablet in their
investigation into the Forcible Sodomy. Id. The argument
appears to be that, when a suspect sends a text message during the commission
of an alleged offense, police automatically have probable cause to seize any
and all electronics that the suspect owns, to search those electronics
indiscriminately, and to do so without first presenting evidence that the
additional electronics are relevant to the crime allegedly committed. All of
this is permissible, the United States argues, because of the `integrated
nature of the modern computer network.’ (U.S. Supp. 14). This post-hoc argument
was unpersuasive when it was first asserted to defend the warrant, and it
remains unpersuasive as an attempt to justify the seizure under the guise of
consent.
Id. at *7
(emphasis in the original).
The opinion continues, explaining that the
United States may be correct in its
general observation that `digital data can often be ‘backed up’ automatically
among various electronic devices.’ (U.S. Supp. II. 2). Even so, this
observation was never particularized to the facts in this case, or even to the
type of data (SMS text messages) at issue here. Instead, this general assertion
(mirrored by a single conclusory assertion in the Hiner Affidavit) is both the
beginning and end of the argument. To this day, the United States has pointed
to no evidence in the record (much less the warrant affidavit) indicating
that this data (the SMS text messages sent by Church to MV1)
might be found on these electronics (Church's tablet or laptop
computer), or even that the actual devices in question were capable of such
data-sharing. Indeed, the record even lacks evidence that the text messages
were truly `missing,’ given that police had seized, but had not searched,
Church's cellphone prior to the execution of the warrant. Thus, the Court reaffirms its conclusion that
`[n]o evidence of any kind was presented to the magistrate suggesting that the
deleted SMS text messages could or would be discovered on any electronic device
other than Church's cellphone.’ Church, WL 6123235 at *6 (ECF No.
32).
For the same reasons, the United
States's `modern electronics’ theory cannot extend the scope of consent.
Neither Davenport nor any other officer told Ms. Church they had interest in
any tablet or laptop computer, and no one requested or obtained specific
permission to search those devices, despite obtaining a separate, specific
consent form for Ms. Church's cellular telephone. (Tr. Evid. Hrg. 11:12–13:16).
At no point in the roughly two-hour interview did the `’integrated nature of
the modern computer network’ enter the discussion, (U.S. Supp. 14), and the
officers did not otherwise demonstrate any interest in Church's non-cellular
electronics. In other words, the record is completely devoid of any indication
that the officers had ‘reason to believe” that Church's tablet and laptop
computers were “connected with a crime,’ much less that they were connected to
the alleged Forcible Sodomy. Thus, even accepting arguendo the United
States' form-only interpretation of the scope of consent, those electronic
devices remain outside of it.
Moreover, even assuming
(counter-factually) that the record had such evidence, it remains further
unexplained why police would be justified in searching for text messages in the
“cache associated with the tablet's web browser,” (U.S. Resp. 6), an area
within the Defendant's tablet incapable of `backing up”'an SMS text message.
Therefore, even if the Court were to ignore the lack of evidence in the record
and embrace the United States's post-hoc justifications based on modern
electronics, the search would remain illegal.
Id.
at 7.
For the reasons set forth above, the
Court affirms the earlier determination that the warrant issued on November 4,
2015 was invalid, and further holds that the seizure and search of Church's
tablet and laptop computers exceeded the scope of consent given by Ms. Church.
Therefore, the seizure and search of those devices was illegal, and the only
remaining question is the appropriate remedy for the constitutional violation.
For the reasons set out below, the Court finds that the exclusionary rule must
be applied.
Id.
In a subsequent, shorter section of the opinion, the District
Court Judge goes on to address the issue of suppression, explaining, initially,
that the
exclusionary rule is not an appropriate
remedy for every Fourth Amendment violation, violation, see United States v. Calandra, 414 U.S. 338 (1974), but it is the
appropriate remedy in this case. The police conduct in this case was, at best,
contrary to the binding precedent of this Circuit, because it relied on the
impermissible premise that evidence of child molestation alone establishes
probable cause to search for child pornography. See Doyle, 650 F.3d at 472. As the Court has already held, a `reasonably
well trained police officer’ would have known that the search was illegal in
such circumstances. See Church, WL 6123235 at *6 (ECF No. 32); see also United States v. Bynum,
293 F.3d 192, 195 (4th Cir. 2002). Thus, the good-faith exception from Leon does
not apply. Because no other exception to the exclusionary rule applies on these
facts, suppression of the illegally recovered evidence is required.
Most plausibly viewed, the evidence in
this case shows that Church's tablet and laptop computers were seized and
searched `pursuant to the warrant,’ which in turn was issued contrary to the
binding precedent of the Fourth Circuit. That warrant authorized a search for
evidence of child pornography, despite the fact that no evidence of child
pornography had been uncovered and the fact that MV1 had affirmatively denied
being shown any pictures by the Defendant before or during the alleged assault.
(Def. Mot. 2). Instead, the warrant clearly rested on the impermissible (and
unstated) premise that evidence of child molestation establishes probable cause
to search for child pornography, notwithstanding that the Fourth Circuit has
held precisely the opposite. Doyle, 650 F.3d at 472. The issuance and
execution of a warrant under such circumstances is at best grossly
negligent. See Davis, 564 U.S. at 238, 131 S.Ct. 2419.
Id. at *8.
The court then began the final section of the opinion,
explaining that,
[m]oreover, contrary to the United
States' argument in its supplemental briefing, Doyle is not ambiguous in its reasoning. (U.S. Supp. II. 3).
It directly condemned the exact logic used by the police and magistrate in this
case, and quoted approvingly cases from other Courts of Appeals that had held
the same. 650 F.3d at 472. And, even if some ambiguity existed, it was
certainly no more ambiguity that the Fourth Circuit recently ignored in United
States v. Hill, 776 F.3d 243, 250 (4th Cir. 2015), where it declined to adopt a
good-faith exception where the precedent governing the officer's conduct was
conflicting. Thus, and for the additional reasons already set forth in the
Court's earlier opinion on the matter, the Court denies the United States'
request for reconsideration of its earlier decision in this case. (U.S. Sec.
Suppl. 13–17). The Leon exception
does not apply.
Id.
The District Court Judge concludes the opinion with the
following comments:
Because the conduct here was deliberate
and contrary to binding precedent, the deterrent value of suppression is
sufficiently high to warrant its heavy toll. The fact that the search also
exceeded the scope of consent does not change the analysis, both because the
underlying test for consent overlaps with any good-faith inquiry and because
the officers did not rely on consent for the seizure and search in question.
The test for consent is one of
`objective reasonableness.’ Jimeno,
500 U.S. at 251, 111 S.Ct. 1801. Thus, in determining that the seizure and
search of Church's tablet and laptop computers exceeded the scope of consent,
the Court necessarily determines that the officers' actions, to the extent they
actually relied on consent, were `objectively unreasonable.’ As Church points
out, there is little, if any, room between this determination and the
good-faith assessment under Herring and Davis, and the Court is aware of no
precedent indicating otherwise. (Def. Supp. Resp. 3–4). Thus, even if the
officers in this case acted under the auspices of consent, no exception to the
exclusionary rule extends to their conduct.
Moreover, the record here indicates
that, as a matter of fact, the officers did not act on consent; instead, the
electronics in question were seized `pursuant to the warrant.’ (Tr. Evid. Hrg.
38:22–39:20). The testimony of Jones was unequivocal on this point. Id. Although
the subjective intent of officers is typically irrelevant in Fourth Amendment
analysis, that admission at the very least plays a role in the inquiry
respecting whether suppression is appropriate. In particular, it makes the
suggestion that the officers relied on consent `in good faith’
incomprehensible, because the testimony indicated that they did not rely upon
it at all.
Because no exception to the
exclusionary rule applies, and because the officers' conduct was sufficiently
deliberate and negligent to justify the cost of suppression, the Court holds
that the exclusionary rule must be applied. All evidence obtained from the
illegal seizure and search of Church's tablet and laptop computers will
therefore be suppressed.
Moreover, under binding Supreme Court
precedent, the exclusionary rule extends beyond the evidence actually
discovered in the illegal search, and includes all evidence later discovered
that is derivative of the illegality, i.e. that is `fruit of the poisonous
tree.’ Nardone v. United States,308 U.S. 338, 341 (1939). In this case, the derivative evidence in question is
the evidence discovered pursuant to the second warrant, which authorized the
search of Church's Google account. (Def. Mot. 1, n.1).
Although there are several exceptions
to the `fruit of the poisonous tree’ doctrine, the United States has not argued
that any exception applies. Consequently, the evidence obtained under the
second warrant must also be suppressed, because that warrant was issued soley
based on evidence uncovered in the initial, illegal search. The Court will
therefore order suppression of all evidence obtained in the illegal seizure and
search of the Defendant's tablet and laptop computers, as well as all evidence
recovered under the authority of the second warrant.
For the reasons set forth above,
Church's MOTION TO SUPPRESS EVIDENCE (ECF No. 17) will be granted, and the
United States' MOTION TO RECONSIDER (ECF No. 37) will be denied.
Id. at *9.
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