543 F.3d 286 (6th Cir. 2008), 07-5504, United States v. Hodson

Docket Nº:07-5504.
Citation:543 F.3d 286
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Michael HODSON, Jr., Defendant-Appellant.
Case Date:September 19, 2008
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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543 F.3d 286 (6th Cir. 2008)

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael HODSON, Jr., Defendant-Appellant.

No. 07-5504.

United States Court of Appeals, Sixth Circuit.

September 19, 2008

         Submitted: June 13, 2008.

         ON BRIEF:

         James E. Hibbard, Law Offices, London, Kentucky, for Appellant.

         Charles P. Wisdom, Jr., Erin J. May, Assistant United States Attorneys, Lexington, Kentucky, for Appellee.

         Before: NORRIS, BATCHELDER, and GIBBONS, Circuit Judges.

         OPINION

         ALICE M. BATCHELDER, Circuit Judge.

         In this appeal, which arises from the district court's denial of a criminal defendant's motion to suppress evidence seized pursuant to a warrant, we must decide whether a suspect's ostensibly admitting to having engaged in child molestation is sufficient, without more, to establish probable cause to search that suspect's home for child pornography. Because we conclude that it is not, we REVERSE the district court's denial of the suppression motion, VACATE the conviction, and REMAND this case for further proceedings consistent with this opinion.

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         I.

         On October 7, 2005, Detective Juan Passano of the Passaic County, New Jersey Sheriff's Department Internet Crimes Section, in his search for on-line sexual predators, logged onto AOL as “ kidlatino12" and represented himself as a twelve-year-old boy. Once on line, Detective Passano encountered “ WhopperDaddy" and conversed with him for almost an hour via AOL Instant Messenger (“ IM" ). During this conversation, WhopperDaddy shared certain personal information-e.g., that he was a 41-year-old, married man with two sons, who lived in Kentucky. More pertinent to this case, however, is that WhopperDaddy also confided that he was a homosexual who favored young boys, liked looking at his nine- and eleven-year-old sons naked, and had even had sex with his seven-year-old nephew.1 WhopperDaddy also expressed his desire to perform oral sex on the presumptive twelve-year-old boy (i.e., Detective Passano) and his willingness to travel to New Jersey to do so. After this seemingly anonymous conversation had ended, Detective Passano subpoenaed AOL for information concerning WhopperDaddy; the response to this subpoena revealed that Michael Hodson of Middlesboro, Kentucky, had registered that screen name, among others, including “ TN_Cyclops" and “ lubemyrod." On October 27, 2005, approximately three weeks after the initial (and apparently only) contact between kidlatino12 and WhopperDaddy, Detective Passano contacted Detective Jacqualine Pickrell of the Kentucky State Police Internet Crimes Against Children Task Force, to inquire about Hodson.

         Detective Pickrell attempted to verify the information she received from Detective Passano, including the content of the IM conversation and the information obtained from AOL. Detective Pickrell verified Hodson's age and address, but discovered that he had only one son and no known nephews. Presumably, Detective Passano did not communicate with WhopperDaddy again, as no further information was relayed to Detective Pickrell. Nonetheless, on January 19, 2006, almost three months after receiving the information from Detective Passano,2 Detective Pickrell prepared an affidavit-based entirely on the AOL information, the internet conversation, and her partial substantiation thereof-and petitioned a magistrate judge for a warrant to search Hodson's residence. In the affidavit, Detective Pickrell described the content of Detective Passano's conversation with Hodson (i.e., WhopperDaddy), established Hodson's residence, and requested a warrant to search specific personal property for evidence, specifically:

Any and all computers, hard drives, zip drives, data bases, software, diskettes,

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floppy disks, CDs, printers and/or any other electronic devices and/or their components of any kind capable of printing, recording, storing, transferring and/or disseminating documents, notes, calculations, schedules, spread sheets and/or any other information and/or data of any kind including any and all books or manuals that may contain sexually explicit reproductions of a child's image, voice, or handwriting. Including sexually explicit photographs, negatives, slides, magazines, movies, videotapes, audiotapes, and picture or computer generated image or picture, whether made or produced by electronic, mechanical or other means of sexually explicit conduct or visual depiction of a child including undeveloped film or videotape and data stored on computer disk of by electronic means which is capable of conversion into a visual image or material relating to children that serves a sexual purpose for a given individual. Including toys, games, drawings, fantasy writings, diaries, souvenirs, sexual aids, manuals, letters, books about children, psychological books on pedophilia and ordinary photographs of children.

Visually explicit images, whether on paper or its equivalent stored in electronic, magnetic or other computer formats including such images as stored within computer storage devices and other computer media depicting any child known or reasonably believed to be under the age of 18 years of age, in which the child is actually or by simulation engaged in any act of sexual intercourse with any person or animal; Actually or by simulation engaged in any act of sexual contact involving the sex organs of the child and the mouth, anus and sex organs of the child and the sex organs of another person or animal; Actually or by simulation engaged in any act of masturbation; Actually or by simulation portrayed as being the object of, or otherwise engaged in, any act of lewd fondling, touching, caressing involving another person or animal; Actually or by simulation engaged in any act of excretion or urination within a sexual context; Actually or by simulation portrayed or depicted as bound, fettered, or subject to sadistic, masochistic, or sadomasochistic abuse in any sexual context; or Depicted or portrayed in any pose, posture or setting involving a lewd exhibition of the unclothed genitals, pubic area, buttocks or, if such person female, a fully or partially developed breast of a child.

Computer Systems, including, but not limited to system components, input devices, output devices, data storage devices, data transmission devices and network devices; and Computer media; and Other material relating to computer systems and the internet including, but not limited to, documentation, operating system software, application or access program disks, manuals, books, brochures, or notes; and Computer access codes, usernames, log files, configuration files, and passwords; and Any and all evidence related to ownership, control or use of the safe deposit box, files, logs, and accounts.

I am further requesting authorization to remove the computer system(s), and related computer peripherals, storage devices, software and media to an off-site controlled environment to perform the search for the items described above.

This passage constitutes Detective Pickrell's entire depiction in the affidavit-not merely an excerpt-of the places to be searched and the things to be seized. It is significant that this depiction of the “ places to be searched and things to be seized" describes and directs a search for

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evidence of child pornography, with nary a hint of child...

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