U.S. v. Bailey, 4:02CR3040.

• Decision Date: 23 July 2003
• Docket Number: No. 4:02CR3040.,4:02CR3040.
• Citation: 272 F.Supp.2d 822
• Parties: UNITED STATES of America, Plaintiff, v. Thomas Edward BAILEY, Defendant.
• Court: U.S. District Court — District of Nebraska

272 F.Supp.2d 822

UNITED STATES of America, Plaintiff, v. Thomas Edward BAILEY, Defendant.

No. 4:02CR3040.

United States District Court, D. Nebraska.

July 23, 2003.

COPYRIGHT MATERIAL OMITTED

Steven A. Russell, Assistant United States Attorney, Lincoln, Plaintiff's Counsel.

John C. Vanderslice, Assistant Federal Public Defender, Lincoln, Defense Counsel.

MEMORANDUM AND ORDER

KOPF, District Judge.

This matter is before the court on a report and recommendation by Magistrate Judge Piester (filing 60) regarding Defendant's motion to suppress (filing 26), and on Defendant's statements of objections to the report and recommendation (filing 65).

Pursuant to 28 U.S.C. § 636(b)(1) and NELR 72.4, I have reviewed de novo the report and recommendation, together with the transcript of the evidentiary hearing that was conducted on February 6, 2003 (filing 47). I find that inasmuch as Judge Piester has fully, carefully, and correctly found the facts and applied the law, Defendant's objections should be denied, the report and recommendation should be adopted, and Defendant's motion to suppress should be denied in all respects.

Although I fully adopt Judge Piester's very thorough and extremely well reasoned report and recommendation, I add four clarifying comments regarding the search of the work computer used by Bailey at his place of employment. They are:

* Bailey, a reasonably well educated person, had no expectation of privacy in the work computer owned by someone else because every time he accessed the work computer he physically acknowledged that he was giving consent to search the computer. Such repeated warnings about consent to search, followed by such repeated acknowledgments, categorically and without more defeat Bailey's claim of privacy.

* The irresponsible behavior of Yahoo! would make it impossible for me to find that any of the FBI agents intentionally, knowingly, or recklessly included false and incomplete information in the affidavit for a warrant to search the defendant's work computer.

* The warrant affidavit, corrected to excise the allegedly false material, stated probable cause because the affidavit also truthfully reported that (1) the government knew that the work computer used by Bailey was privately searched by the computer systems' operator and pornography was found on the computer, and (2) the government knew that someone using Bailey's e-mail address, which address was assigned to the same work computer used by Bailey, belonged to an internet site that distributed child pornography. Any other conclusion would amount to use of a far too restrictive definition of "probable cause."

* Although distinguishable from the facts of this case and therefore not applicable, I would not follow United States v. Perez, 247 F.Supp.2d 459, 480-86 (S.D.N.Y.2003) (without allegedly false information, "Candyman" search warrant affidavit failed to establish probable cause) or United States v. Strauser, 247 F.Supp.2d 1135, 1143-44 (E.D.Mo.2003)(same), even if they were factually analogous. Respectfully, Perez and Strauser fail to apply the common sense test for probable cause. Moreover, those cases improperly disregard the knowledge and experience of law enforcement officers who specialize in cyber-crime investigation. In my opinion, knowingly becoming a computer subscriber to a specialized internet site that frequently, obviously, unquestionably and sometimes automatically distributes electronic images of child pornography to other computer subscribers alone establishes probable cause for a search of the target subscriber's computer even though it is conceivable that the person subscribing to the child pornography site did so for innocent purposes and even though there is no direct evidence that the target subscriber actually received child pornography on his or her computer.

Accordingly,

IT IS ORDERED that:

1) the Magistrate Judge's report and recommendation (filing 60) is adopted;

2) Defendant's objections to the report and recommendation (filing 65) are denied; and

3) Defendant's motion to suppress (filing 26) is denied in all respects.

REPORT, RECOMMENDATION AND ORDER

PIESTER, United States Magistrate Judge.

Defendant has moved, pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), to suppress evidence of child pornography arising from a warrant issued to search defendant's work computer located in the American Family Insurance office at 716 North 108th Street, Omaha, Nebraska. Filing 26. An evidentiary hearing was scheduled and several continuances of that hearing were granted at the parties' joint request or agreement. The evidentiary hearing was held on February 6, 2003. The parties were granted leave to file post-hearing briefs to summarize extensive documentary evidence received at the hearing. The defendant's brief was filed on March 20, 2003, and the government responded on April 29, 2003. Additional evidence was offered by joint stipulation on May 2, 2003, and additional legal authority was provided to the court on May 27, 2003.¹ This matter is now fully submitted. Upon review of the evidence, I conclude defendant's motion should be denied.

I. Summary of Arguments

The warrant to search defendant's work computer was based on an application presented to Magistrate Judge Thomas D. Thalken on December 21, 2001. The warrant application stated:

1. FBI Agent Geoffrey Binney, as part of his undercover investigation of internet crimes against children, discovered the Candyman E-group and joined it by sending an e-mail to its moderator. He remained a member from January 2, 2001 through February 6, 2001;

2. During his undercover membership in the Candyman E-group, he automatically received all 498 e-mails posted to that E-group during that time period;

3. Of those e-mails, 105 included images of child pornography;

4. "Every e-mail sent to the [Candyman E-group] was distributed to every member automatically;"

5. Based on Agent Binney's own membership, he knew the Candyman E-group posted twenty-three images on February 6, 2001 and two of those e-mails contained images of child pornography;

6. The person identified by e-mail address tbaile2@amfam.com was a member of the Candyman E-Group on February 6, 2001;

7. That address was later identified as an e-mail account within the American Family Insurance Company network;

8. American Family Insurance stated the e-mail address was assigned to defendant Bailey;

9. Pursuant to a subpoena, American Family accessed the contents of defendant's e-mail account through the American family network and reported locating images of pornography, though no distinction was made between adult or child pornography;

10. Use of the internet is known to provide a degree of anonymity to those interested in sexually abusing and exploiting children as well as trafficking, trading, and collecting child pornography. Such people rarely dispose of their collections of sexually explicit materials depicting children, including when these images are stored on a computer;

11. Based on this information, there was probable cause to believe that defendant's office space and work area, including defendant's work computer, located at the American Family agency at 716 North 108th Street in Omaha, Nebraska contained images of child pornography.

Exhibit 101, Application and Affidavit for Search Warrant. The warrant application was signed by FBI Agent Scott McMillion.

Defendant claims this warrant application contained false and incomplete statements which were knowingly, intentionally, or recklessly made by FBI Agents McMillion and Binney and that, had truthful and complete information been provided to the court, no warrant would have been issued. Filing 26 at ¶ 4; T,6-8. The focus of defendant's challenge is the later-determined false representation by Agent Binney (incorporated into the warrant application signed by Agent McMillion) that every member of the Candyman E-group, including the defendant, received every posting in the E-group, including pornographic images of children. Defendant alleges that without this statement in the warrant application, there was no probable cause to believe the defendant had received child pornography by e-mail sent to his work computer, and therefore no basis existed for issuing a warrant to search that computer. Defendant further alleges that Agent Binney knew, or was reckless if he failed to know or recall, that all members did not receive all postings by e-mail because: 1) contrary to Agent Binney's assertions, he joined the Candyman E-group via the web and therefore was informed that members could choose to receive no e-mail from the Candyman E-group; and 2) Agent Binney knew that even if a member initially chose or was assigned by default to receive all e-group postings by e-mail, the member could later use the "modify" delivery button and select a "no e-mail" delivery option.

The government's argument is that, as to defendant Bailey, it did not need a warrant to search his work computer because defendant Bailey had no legitimate expectation of privacy in the e-mail files located on his work computer. The government further claims that even assuming the warrant application contained false or incomplete information, after excluding the information challenged and including the information allegedly omitted, the warrant application supports a finding of probable cause.

II. Statement of Facts

In 1998 the FBI launched the "Innocent Images Crimes Against Children Initiative" to investigate internet criminal behavior directed against children, including the distribution, transmission, and possession of child pornography. FBI Agent Geoffrey Binney, who was trained by the FBI on how to access internet chat rooms and how to save the information located during online chats, was a specialty agent assigned to that task force from December 1998 through May 2001. Exhibit 103, Perez transcript, 4:5-6:8.

During the...