Jose Doe v. Olson
| Decision Date | 08 March 2016 |
| Docket Number | Case No. 4:14-cv-119 |
| Parties | Jose Doe, Plaintiff, v. Jason T. Olson, et. al., Defendants. |
| Court | U.S. District Court — District of North Dakota |
REPORT AND RECOMMENDATION
This action arises out of an investigation into the transfer of illicit images of children from an Internet Protocol ("IP") address assigned to a Minot, North Dakota, residence in which plaintiff was subletting a basement bedroom. During the course of the investigation law enforcement officers obtained a search warrant for the entire residence and conducted a search which included the basement bedroom that plaintiff was subletting. After conducting the search, law enforcement officers went to plaintiff's place of business where they spotted a bag in plaintiff's vehicle containing a laptop. After plaintiff denied a request to search the laptop, officers secured the vehicle until a search warrant could be obtained. The later search of the laptop pursuant to a state-court warrant revealed no illicit images of children.
Plaintiff initiated this action in September 2014 under the pseudonym "Jose Doe." He alleges in his complaint that the searches of his rented bedroom and vehicle were unlawful, that his rights under the Privacy Act were violated, and that he was ostensibly defamed by law enforcement. Plaintiff claims he lost both his job and his room on account of what took place and that personal property was damaged during the searches. (Doc. No. 9).
At the time of submitting his complaint for filing, plaintiff sought approval to proceed in forma pauperis. (Doc. No. 1). The court granted the request (Doc. No. 8) and conducted a screening of the complaint pursuant to 28 U.S.C. § 1915(e)(2). As a result of the screening, the court did not permit plaintiff to proceed against Minot Police Chief Jason Olson because there were no allegations of his personal involvement or grounds for imposition of supervisory liability under 42 U.S.C. § 1983. The court also did not permit the suit to proceed against the North Dakota Bureau of Criminal Investigation ("BCI") and Special Agent Jesse Smith in his official capacity as an officer of the BCI because of Eleventh Amendment immunity. The court did permit plaintiff to proceed against City of Minot police officers Sgt. Dave Goodman and Det. Krista Thompson, in both their individual and official capacities, and SA Smith in his individual capacity. (Doc. Nos. 10 & 53).
Plaintiff took an interlocutory appeal to the Eighth Circuit Court of Appeals seeking review of the court's screening decision as well the court's denial of plaintiff's motion to appoint counsel. The Eighth Circuit summarily affirmed the court's order denying the motion for appointment of counsel and dismissed the remainder of the appeal for lack of jurisdiction. (Doc. No. 68).
Now pending before the court are:
Judge Hovland has referred the motions to the undersigned for preliminary consideration.
The following account of the underlying investigation is taken from the affidavits and investigative reports filed by defendants in support of their respective motions. Plaintiff has "concede[ed] he 'cannot express facts or issues that might or will contradict the facts alleged by the Defendants' or the record or from the complaint.'" (Doc. No. 63).
SA Smith was assigned to the BCI's Internet Crimes Against Children Task Force as a computer forensics examiner. He was tasked with investigating the transfer of child pornography over the Internet via Peer to Peer ("P2P") networking technology and software. On May 2, 2014, he notified defendant Sgt. Goodman of the Minot PD that, on March 30, 2014, he had downloaded illicit images of minor females from a computer with IP address assigned to a single family residence located at 212 18th Ave NW, Minot, North Dakota. He also prepared and signed an application for a search warrant, which Sgt. Goodman presented to a state district court judge for consideration. (Doc. Nos. 33-1 through 33-4, 33-7, 64).
Attached to the search warrant application was a supporting affidavit (singled-spaced and thirteen pages in length) in which SA Smith explained how P2P file sharing works - specifically theoperation of a BitTorrent network, how files that are transmitted through such a network can be tracked, why he had initiated his investigation of the subject IP address, when he was connected with and what he had downloaded from the computer with the subject IP address, and how he had located the residence to which the subject IP address was assigned. According to SA Smith's affidavit, he identified a computer with the subject IP address as a potential source of at least one file of investigative interest. From this computer he downloaded a total of 160 files, many of which contained images in which females estimated to be between the ages of 8 and 14 years of age were posing in various states of undress and exposing their breasts, vaginas, and anuses. Searching the American Registry of Internet Numbers, he learned that the computer's IP address belonged to Midcontinent Communications ("Midco"), a regional cable and internet service provider headquartered in Sioux Falls, South Dakota. He passed this information on to Homeland Security Investigations SA Darick Trudell, who was able to ascertain from basic subscriber information subpoenaed from Midco that the subject IP address had been assigned to Jose Garcia1 at 212 18th St. NW, Minot, North Dakota (hereinafter referred to as "the residence"). (Doc. Nos. 33-2, 64).
On May 5, 2014, a state district court judge approved SA Smith's search warrant application and issued a warrant authorizing law enforcement to search the residence and seize: computers and related peripherals, CD-ROMS, DVDs, digital media devices, and other storage mediums for inspection and forensic analysis; pornographic images and/or videos of children as well as files containing any such material in any form wherever they may be stored; information, documentation, and correspondence pertaining to the electronic receipt and/or transmission of child pornography; records regarding the ownership of digital media devices and removable storage; and evidence ofany P2P networking software that would allow another to remotely control the computer on which it was installed. (Doc. No. 33-3).
SA Smith, Border Patrol Agent Shawn Keller, Sgt. Goodman, Det. Thompson, three other Minot Police Department Detectives (Greg Johnson, Jessica Mosman, and Jay Laudenshlager), and two Minot patrol officers (Jay Haaland and Aaron Moss) arrived at the residence on May 6, 2014, at 9:30 a.m. to execute the search warrant. They knocked and announced their presence. When no one responded, they entered the residence through an unlocked door. Inside, they encountered two adult females, Amanda and Dominique Garcia, with an infant on the main floor and three adult males in the basement. Two additional adults, one male and one female, Marybelle Garcia, arrived at the residence shortly thereafter. (Doc. Nos. 33-1, 33-7, 33-8, 33-9, 34, 35, 64 through 66).
Once the residence was secured, Sgt. Goodman and Det. Thompson began interviewing the persons present while the other Minot detectives began the search with assistance from SA Smith. On the main floor they found two laptop computers that presumably belonged to Amanda and Dominique Garcia.2 In the garage, they found a broken hard drive. In one of the rooms in the basement, they found an iPad mini along with a locked suitcase and a locked duffle bag. To gain access to the contents of the suitcase and duffle bag, SA Smith broke their respective zippers. Inside the suitcase Smith found a computer hard drive, two zip drives, and assorted CDs and DVDs. Inside the duffle bag Smith found a locked safe, which he proceeded to open with a screw driver. Inside the safe Smith found additional electronic media storage devices. All of these items were forensically previewed on-site by Smith. None of them contained any child pornography. (Doc.Nos. 33-1, 33-8, 33-9, 66).3
Meanwhile, as Smith and company were conducting their search of the residence, Goodman and Thompson interviewed the seven adults encountered at the residence. During these interviews they were told that First Minot Management leased the residence to Jose and Marybelle Garcia, who in turn sublet their two basement bedrooms and garage (which had apparently been converted into two additional bedrooms); that the residence had as many as eleven occupants (the Garcia family and their subtenants) at any given time, and that Midco provided Internet service to the residence that all of its occupants could access wirelessly.4 They were also told that the Garcias had received a letter from Midco warning of an illegal download of inappropriate material by one of their former subtenants.5 With respect to plaintiff, they were told that he (1) had been subletting a room in the basement of the...
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