United States v. Loera

• Citation: 59 F.Supp.3d 1089
• Decision Date: 20 October 2014
• Docket Number: No. CR 13–1876 JB.,CR 13–1876 JB.
• Parties: UNITED STATES of America, Plaintiff, v. Jason LOERA, Defendant.
• Court: U.S. District Court — District of New Mexico

59 F.Supp.3d 1089

UNITED STATES of America, Plaintiff

v.Jason LOERA, Defendant.

No. CR 13–1876 JB.

United States District Court, D. New Mexico.

Filed Oct. 20, 2014.

Damon P. Martinez, United States Attorney, Dean S. Tuckman, Cynthia Weisman, Kristopher N. Houghton, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, NM, for Plaintiff.

Thomas M. Blog, Santa Fe, NM, David C. Serna, David C. Serna Attorney at Law, Albuquerque, NM, for Defendant.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the Defendant's Motion to Suppress Evidence, filed March 7, 2014 (Doc. 35) (“Motion”). The Court held an evidentiary hearing on May 20, 2014, and May 21, 2014. The Court heard the parties' arguments on the Motion on August 19, 2014. The primary issues are: (i) whether Defendant Jason Loera may seek suppression of the child pornography found on Loera's laptop computer and compact discs (“CDs”); (ii) whether the Search and Seizure Warrant, issued November 19, 2012, submitted to the Court at the May 20, 2014, evidentiary hearing as Government's Hearing Exhibit 9 (“First Warrant”), satisfies the particularity requirement in the Fourth Amendment to the Constitution of the United States of America; (iii) whether Federal Bureau of Investigation (“FBI”) Special Agent Aaron Cravens' and Special Agent Brian Nishida's on-site preview of Loera's CDs during the execution of the First Warrant on November 20, 2012, was within the First Warrant's scope; (iv) whether the agents conducted an unlawful search when they continued searching Loera's CDs for evidence of computer fraud and electronic mail hijacking after they discovered child pornography; (v) whether the agents acted in good faith when they continued to search for evidence of computer fraud and electronic mail hijacking after discovering child pornography; (vi) whether Cravens was permitted to open files on Loera's CDs on November 27, 2012, for the limited purpose of providing a United States Magistrate Judge a description of four images depicting the sexual abuse of a child; (vii) whether, even if Cravens was not permitted to open the files on November 27, 2012, and even if those descriptions are excised from the affidavit in support of the Second Warrant, probable cause to issue the Search and Seizure Warrant (issued November 29, 2012), submitted to the Court at the May 20, 2014, evidentiary hearing as Government's Hearing Exhibit 10 (“Second Warrant”) still exists; (viii) whether, even if the Second Warrant suffered from an incurable defect, Nishida relied on that warrant in good faith when he searched Loera's CDs and laptop for child pornography; and (ix) whether, even if the Second Warrant contained an incurable defect and Nishida did not execute the Second Warrant in good faith, the agents inevitably would have discovered child pornography.

The Court will deny the Motion. The Court concludes that Loera may seek suppression of the child pornography evidence, because he admitted that the CDs and laptop on which the agents discovered child pornography were within his control and possession when the agents seized them. The Court holds that the First Warrant satisfies the particularity requirement in the Fourth Amendment, because it limited the agents' search to evidence of computer fraud and electronic mail hijacking. The Court concludes that the agents' on-site preview of Loera's CDs during the execution of the First Warrant on November 20, 2012, was within the warrant's scope, because the warrant authorized the agents to open image and video files, and files with last modified and created dates before July 29, 2011. The Court further holds that, while the Court is concerned with the soundness of the United States Court of Appeals for the Tenth Circuit's law related to computer searches, under that law, which the Court, as a district court, must faithfully apply, the agents conducted an unlawful search when they continued searching for evidence of electronic mail hijacking and computer fraud on Loera's CDs after they discovered child pornography. The Court concludes, however, that the agents acted in good faith when they did so. The Court holds that Cravens was not permitted to open files on Loera's CDs on November 27, 2012, for the limited purpose of providing a United States Magistrate Judge a description of four images depicting the sexual abuse of a child. The Court concludes, however, that, even if Cravens was not permitted to open the files on November 27, 2012, and even if those descriptions are excised from the Affidavit in Support of an Application Under Rule 41 for a Warrant to Search and Seize (issued November 29, 2014), submitted to the Court at the May 20, 2014, evidentiary hearing as Government's Hearing Exhibit 9 (“Second Affidavit”), probable cause to issue the Second Warrant still existed. The Court holds that, even if the Second Warrant suffered from an incurable defect, Nishida relied on that warrant in good faith when he searched Loera's CDs and laptop for child pornography. Finally, the Court holds that, even if the Second Warrant contained an incurable defect and Nishida did not execute the second warrant in good faith, the agents inevitably would have discovered child pornography on Loera's CDs and laptop. Accordingly, the Court will deny the Motion, and not exclude the child pornography evidence from the trial.

FACTUAL BACKGROUND

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed.R.Crim.P. 12(d) (“When factual issues are involved in deciding a motion, the court must state its essential findings on the record.”). This Memorandum Opinion and Order's findings of fact shall serve as the Court's essential findings for rule 12(d) purposes. The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure, and the voluntariness of an individual's confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269–70 (10th Cir.1982) (“[U]nder Rule[ ] 104(a) ..., the district court ‘is not bound by the Rules of Evidence except those with respect to privilege.’ ”) (quoting United States v. Matlock, 415 U.S. 164, 174, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a) (“The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.”). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Merritt, 695 F.2d at 1269 (“The purpose of the suppression hearing was, of course, to determine preliminarily the admissibility of certain evidence allegedly obtained in violation of defendant's rights under the Fourth and Fifth Amendments. In this type of hearing the judge had latitude to receive it, notwithstanding the hearsay rule.”); United States v. Garcia, 324 Fed.Appx. 705, 708 (10th Cir.2009) (unpublished) (“We need not resolve whether Crawford [v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) ]'s¹ protection of an accused's Sixth Amendment confrontation right applies to suppression hearings, because even if we were to assume this protection does apply, we would conclude that the district court's error cannot be adjudged ‘plain.’ ”);² United States v. Ramirez, 388 Fed.Appx. 807, 810 (10th Cir.2010) (unpublished) (“It is beyond reasonable debate that Ramirez's counsel were not ineffective in failing to make a Confrontation Clause challenge to the use of the confidential informant. The Supreme Court has not yet indicated whether the Confrontation Clause applies to hearsay statements made in suppression hearings.”). Cf. United States v. Hernandez, 778 F.Supp.2d 1211, 1226 (D.N.M.2011) (Browning, J.) (concluding “that Crawford v. Washington does not apply to detention hearings”).³

1. The November 20, 2012 Searches.

1. On November 19, 2012, United States agents applied for a search warrant for Loera's residence, seeking evidence that Loera committed computer fraud and hijacked electronic mail transmissions. See Application for Search Warrant at 1 (issued November 19, 2012), submitted to the Court at the May 20, 2014, evidentiary hearing as Government's Hearing Exhibit 9 (“First Application”).

2. The United States filed an affidavit in support of the First Application. See Affidavit in Support of an Application Under Rule 41 for a Warrant to Search and Seize (issued November 19, 2014), submitted to the Court at the May 20, 2014, evidentiary hearing as Government's Hearing Exhibit 9 (“First Affidavit”).

3. The First Affidavit alleges that Loera possessed electronic mail transmissions intended for New Mexico Governor Susana Martinez and her staff that had been sent through Martinez' gubernatorial campaign website, www.susana 2010.com (“the Domain”). See First Affidavit ¶ 28 at 10.

4. The First Affidavit states that one of Martinez' supporters created the Domain on July 18, 2009, and registered the website for two years with the website hosting company GoDaddy.com (“GoDaddy”). See First Affidavit ¶ 5, at 2.

5. According to the First Affidavit, during the 2010 gubernatorial campaign, Martinez and her staff used the Domain to, among other purposes, communicate with each other and individuals outside of the campaign through electronic mail transmissions. See First Affidavit ¶ 6, at 2–3.

6. The First Affidavit alleges that only the individual or individuals who had the Domain's username and password could renew the Domain when it expired in July, 2011.See...