U.S. v. Barth
| Decision Date | 21 September 1998 |
| Docket Number | No. MO-98-CR-33.,MO-98-CR-33. |
| Citation | 26 F.Supp.2d 929 |
| Parties | UNITED STATES of America, v. Michael J. BARTH, Defendant. |
| Court | U.S. District Court — Western District of Texas |
G. Glenn Roque-Jackson, Assistant U.S. Attorney, Midland, TX, for the government.
H. Thomas Hirsch, E. Jason Leach, Hirsch, Stroder & Hobbs, Odessa, TX, for defendant.
ORDER GRANTING MOTION TO SUPPRESS EVIDENCE
On this day the Court considered the Motion to Suppress Evidence, filed by Defendant on May 18, 1998. An evidentiary hearing was conducted in connection with this matter on May 22, 1998. After due consideration of the evidence adduced at the hearing and the submissions of the parties, the Court is of the opinion that the Motion should be GRANTED.
Defendant is a certified public accountant who owns his own accounting firm in Odessa, Texas. Prior to his self-employment as an accountant, Defendant served in the military and was an Agent for the U.S. Treasury Department.
On Wednesday, February 18, 1998, Defendant began experiencing problems with his office computer. The computer was working slower than usual and he believed there may have been a virus on it. To fix the problem, Defendant called Ken Kellar, a self-employed computer technician who had done computer work for Defendant in the past. Kellar arrived at Defendant's offices that evening and picked up the hard drive portion of the computer. The hard drive is the large, non-removable mass storage component of a computer or computer network. See Midwest Micro Glossary of Terms,
Defendant wanted the hard drive back by the morning so that he could continue his business. Kellar took it home with him and hooked it up to his machinery. Kellar began opening individual files in search of potential viruses. After viewing several files, Kellar came across a "JPEG picture file." He opened the file and observed an image of what appeared to be child pornography. Kellar immediately shut down the hard drive, unhooked it, and began attempts to contact Special Agent Jane Kelly of the Federal Bureau of Investigation (FBI), because at this time he was also a confidential informant for the FBI and SA Kelly was his supervising agent.
Kellar first attempted to contact SA Kelly that evening through her pager. While he waited for her to return his page, Kellar also tried to contact Officer Roy Vic of the Odessa Police Department (OPD). Kellar and Officer Vic were acquainted, as Kellar had provided information to Vic and the OPD in the past. Kellar reached the night desk officer at OPD, who forwarded the message. Officer Vic phoned Kellar and asked him to bring the hard drive into the OPD the following morning.
SA Kelly eventually returned Kellar's page that evening as well. SA Kelly told Kellar to copy all of the files on the hard drive onto disks and that she would have someone pick up the disks in the morning. Kellar told SA Kelly that he was going to take the unit to the OPD and make the copies there, and she "concurred with [his] decision." Following his conversation with SA Kelly, Kellar opened more files and discovered more images of child pornography.
The next morning SA Kelly spoke with SA Dan Leyman. She informed him that she had a source who had come across some child pornography. SA Kelly relayed that she had asked the source to copy the hard drive. She did not inform SA Leyman that the source was a confidential informant; at this time she was simply asking for his opinion on whether this course of action might pose legal problems.
Kellar, meanwhile, went to the OPD with the hard drive. Officer Vic was out on sick leave, so Kellar asked for Kevin Begley. Captain Begley and Detective Dean McCann took Kellar and the hard drive to an upstairs office in the OPD. The hard drive was hooked up and the officers reviewed the child pornography files that were on it. Kellar presumably informed them that he had spoken with the FBI, because during this time the officers made a copy of the hard drive "pursuant to Agent Kelly's instructions," according to SA Leyman. The officers did not know that Kellar was an FBI confidential informant, though they suspected he might be.
The OPD officers obtained a sworn statement from Kellar in order to obtain an evidentiary search warrant for the hard drive. The basis for the state evidentiary warrant was solely the information provided by Kellar, not what the officers had seen. Although the application for the evidentiary search warrant to state District Judge Lewis, Ector County, Texas, did not include the fact that the officers had viewed files on the hard drive, Kellar's sworn statement did include this information, as well as the fact that it was the officers who actually copied the files pursuant to SA Kelly's request.
While in the process of obtaining an evidentiary search warrant, the OPD officers also tried to contact SA Kelly. SA Leyman talked to the officers when they called the FBI in search of SA Kelly. The officers informed him that they had a hard drive with child pornography on it. SA Leyman was communicating with the officers during this time only because he was trying to assist them in locating SA Kelly.
Kellar's sworn statement for the state warrant does not mention either that Kellar is a FBI confidential informant or that Kellar had given information to the OPD on prior occasions. At the time he made his affidavit, the officers did not know Kellar was a FBI confidential informant and did not regard him as a OPD confidential informant even though he had given information in the past.
Later that day Detective McCann obtained the state evidentiary warrant for the hard drive. Detective McCann contacted Texas Department of Public Safety Special Investigator Richard Dixon to assist in the warrant search. Dixon is a forensic computer analyst; OPD was concerned that they might lose data if they did not conduct the search properly. The officers told Dixon what they knew about the computer, and they also had Kellar speak to Dixon because Kellar had built the system.
SA Kelly came to be informed that the OPD intended to execute a search warrant on the computer on the next day, February 20. A briefing was also scheduled at OPD on February 20. Because she was busy, SA Kelly asked SA Leyman to attend the briefing and to assist the search on behalf of the FBI. SA Leyman still had not been told that Kellar was a confidential informant, though he suspected Kellar might be; SA Kelly continued to refer to him as a "source."
Several detectives were present at the morning briefing. The hard drive was in an interview room. About forty-five minutes after SA Leyman arrived, the officers turned on the hard drive and began looking at and copying files. DPS Investigator Dixon ran a program which allowed SA Leyman to view files as they were being copied. SA Leyman saw firsthand several of the images of child pornography on Defendant's hard drive.
Later in the day, SA Leyman consulted Assistant United States Attorney Glen Jackson regarding the case. AUSA Jackson expressed concern about the investigation to this point, but stated that if Kellar was not a "government actor," then his search was likely to be lawful. Despite this legal opinion, SA Leyman again did not inform AUSA Jackson of his suspicions that Kellar was a confidential informant and therefore arguably could have been a government actor.
Throughout the day, SA Leyman sought guidance from AUSA Jackson on how to continue the investigation, but he never expressed his concern that Kellar might be a confidential informant. The Court notes that SA Leyman is a highly professional and dedicated law enforcement official, and his failure to mention this concern was not an attempt to deceive AUSA Jackson. To the contrary, SA Leyman testified that he did not express his concern because (1) he felt that Kellar had acted in his own interest; and (2) he was aware that FBI policy, discussed in further detail below, prohibits the disclosure of the names of confidential informants to third parties, including other members of the Justice Department.
AUSA Jackson and SA Leyman worked together to design a plan to search Defendant's home and office. First, SA Leyman drafted applications for two federal search warrants (one for Defendant's home and one for his office), and SA Monica Cardenas signed them for presentation to United States Magistrate Judge Stuart Platt. Both SA Cardenas and SA Leyman suspected that Kellar might be an informant but did not include this information in the application. Again, SA Leyman did not mention this fact because (1) FBI policy prohibited him from disclosing such information, and (2) his belief that Kellar was acting as a private citizen and not as a confidential informant.
The application states:
Kellar needed to review each file to attempt to locate the virus. While reviewing these files, Kellar observed what appeared to be child pornography. Kellar contacted the FBI, who referred him to the OPD. Then Kellar met with Captain Kevin Begley, OPD, regarding these images. Captain Begley assigned Detective (Det.) Dean McCann, OPD to investigate this matter. Kellar brought the computer to OPD, and provided a statement to Det. Troy Joiner, OPD. Kellar also copied the files with child pornography to computer disks and turned the disks and computer over to Det. McCann.
The application does not mention SA Kelly and, in so failing, contains what appears to the Court to be an important omission. Kellar's sworn statement to Detective Joiner, as well as SA Leyman's testimony at the suppression hearing, indicates that Kellar did not copy the files on the hard drive at all; it was done by Detective McCann at the request of the FBI. Yet the application to Magistrate Judge Platt...
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