United States v. Hager
| Decision Date | 29 March 2013 |
| Docket Number | No. 12–2074.,12–2074. |
| Citation | 710 F.3d 830 |
| Parties | UNITED STATES of America, Plaintiff–Appellee v. Benjamin Joseph HAGER, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
OPINION TEXT STARTS HERE
Richard J. Henderson, AFPD, argued, Fargo, ND, Mark S. Falk, AFPD, on the brief, Rapid City, SD, for appellant.
Timothy Q. Purdon, AUSA, argued, Bismarck, ND, for appellee.
Before WOLLMAN, BYE, and BENTON, Circuit Judges.
Benjamin Joseph Hager appeals the denial of his motion to suppress evidence discovered during a search at his residence pursuant to a warrant. Because the district court 1 correctly denied the motion, we affirm.
In September 2010, Special Agent Timothy Litzinger of the Department of Homeland Security, Homeland Security Investigations directorate (HSI) learned from Michigan HSI agents that they were engaging in a child pornography investigation of Robert J. Mueller, a Michigan resident. During a search of Mueller's residence, Michigan HSI agents discovered images of more than one adult male sexually assaulting Mueller's four minor daughters. The Michigan HSI agents discovered also a pair of soiled young girl's underwear and a note from an individual named “Ace.” Mueller admitted that he produced child pornography depicting his daughters and that he traded child pornography with others on the Internet. A search of Mueller's computer hard drive uncovered a photograph of a package marked “Handle with Care” and bearing the return address of “Ben Hager, 716 6th Street South, Apartment # 7, Wahpeton, ND 58075.” The Michigan HSI agents also found emails from the email address “Cujoben@ webtv. net” and learned that this person had a sexual interest in children, that this person referred to himself as “Ace,” and that the account was registered to Ben Hager at the same Wahpeton address.
On September 20, 2010, Litzinger received a CD from Michigan HSI that contained explicit emails in which “Cujoben” admitted to having a sexual interest in young girls and their feet. At some point, Michigan HSI agents informed Litzinger that Mueller had been charged with multiple counts related to child pornography and that a search of Mueller's email account uncovered a series of sexually suggestive emails between Mueller and Hager, some of which contained non-pornographic sexually suggestive photographs of Mueller's daughters. Some, but not all, of the emailed images contained exchangeable image file or “EXIF” metadata.2 When Michigan HSI agents informedLitzinger of Mueller's and Hager's actions, they disclosed only that Hager was a person of interest and did not ask Litzinger or other North Dakota HSI agents to aid in their investigation.
After receiving this information, North Dakota HSI agents investigated Hager and learned that he had at least two prior law enforcement contacts resulting from his interest in young girls and that he lived with his young daughter at the same Wahpeton address provided as the package's return address. Litzinger told the Michigan HSI agents that he intended to seek a search warrant for Hager's residence and that he intended 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.
On November 23, 2010, Litzinger applied for a warrant to search Hager's residence. The warrant application stated that the basis for the search was “contraband, fruits of crime, or other items illegally possessed [.]” Appellant's App. 2. Attached to the application was an affidavit in which Litzinger averred:
[T]here is 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. Specifically, it is believed that Robert John Mueller produced sexually suggestive images depicting his four minor daughters and subsequently emailed such images to Ben Hager in Wahpeton, ND. As further set forth below, it is believed that the recovery of these images will establish that Robert John Mueller is responsible for producing other images depicting his minor daughters engaged in sexually explicit conduct which were discovered at his residence....
Appellant's App. 3–4, Litzinger Aff. ¶ 3. The affidavit then described, generally, procedures for seizing computers and characteristics of individuals who have a sexual interest in children, including that “[t]hose who may be collecting sexually suggestive material involving children, including child erotica[,] often possess and maintain any hard copies of such material in the privacy and security of their homes.” Appellant's App. 8, Litzinger Aff. ¶ 12. The affidavit described also, in great detail, the investigation of Hager, including the discoveries at Mueller's residence and online conversations between Hager and Mueller and between Hager and young girls. The affidavit concluded:
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 Cujo Ben@ 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....
Appellant's App. 35–36, Litzinger Aff. ¶¶ 99–100.
The magistrate judge issued a warrant authorizing a search of Hager's residence for and the seizure of “sexually suggestive images depicting [Mueller's minor daughters] wherever they may be stored or found [.]” Appellant's App. 42. In an addendum, the warrant listed “requirements [applicable] to any ... tapes ... seized pursuant to [the] warrant [,]” including 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.
Appellant's App. 43 (emphasis omitted).
The next day, Litzinger and seven other law enforcement agents executed the search warrant. During the search, Hager told the agents that he knew Mueller, that they had met in an online chat forum for men who liked young girls, and that he and Mueller shared an interest in young girls. Hager said that he knew that Mueller was molesting his daughters and admitted that he had received non-pornographic pictures of Mueller's daughters. Hager said that the pictures were legal and that he did not have any child pornography. Hager said also that he used a WebTV connection to copy information from the Internet to VHS tapes.
During the search of Hager's residence, 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 the tapes 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 that WebTV was similar to a modem. Litzinger believed that 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 that VHS tapes are analog, not digital, and as such cannot contain metadata; Litzinger saw a USB 3 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 of the North Dakota HSI reviewed the VHS tapes at the North Dakota HSI office. Neither Litzinger nor the support staff member knew that 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.
Hager was charged with receiving and possessing materials involving the sexual exploitation of minors, in violation of 18 U.S.C. § 2252(a)(2) and (a)(4)(B). He moved to suppress the evidence derived from the search at his residence. Following the denial of his motion, Hager entered into a conditional guilty plea that reserved his right to appeal the denial of the motion.The district court accepted the plea and sentenced Hager to 120 months' imprisonment.
“We review the denial of a motion to suppress de novo but review underlying factual determinations for clear error, giving due weight to the inferences of the district court and law enforcement officials.” United States v. Nichols, 574 F.3d 633, 636 (8th Cir.2009) (quoting United States v. Hinkle, 456 F.3d 836, 840 (8th Cir.2006)). “We affirm a denial of a motion to suppress unless the district court's decision ‘is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made.’ ” United States v. Hastings, 685 F.3d 724, 727 (8th Cir.2012) (quoting United States v. Bay, 662 F.3d 1033, 1035 (8th Cir.2011)).
Hager argues that the first search warrant authorized only a search for the metadata of the sexually suggestive...
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