U.S. v. Cray

Decision Date20 November 2009
Docket NumberNo. CR 109-074.,CR 109-074.
Citation673 F.Supp.2d 1368
PartiesUNITED STATES of America v. Reginald Lonnel CRAY.
CourtU.S. District Court — Southern District of Georgia

John Todd Garcia, Attorney at Law, Evans, GA, for Reginald Lonnel Cray.

ORDER

J. RANDAL HALL, District Judge.

After a careful, de novo review of the file, the Court concurs with the Magistrate Judge's Report and Recommendation, to which objections have been filed. The Magistrate Judge recommended denying Defendant's motion to suppress evidence obtained from the search of his residence at 4686 Red Leaf Way, Martinez, Georgia, concluding that the search warrant issued, authorizing the search of Defendant's residence was supported by probable cause. (Doc. no. 59). The Magistrate Judge also recommended denying Defendant's motion to suppress statements made during the execution of the search warrant. (Doc. no. 59). Alternatively, the Magistrate Judge found that even if probable cause to support the issuance of the warrant had not been established, the evidence discovered as a result of the search would be admissible under the good-faith exception set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). (Id.).

The crux of Defendant's motion to suppress the evidence discovered as a result of the search of his residence is that government agents improperly used Customs Summonses to obtain the information that was ultimately used to secure the search warrant at issue. That is, Defendant argues that without the purportedly improperly obtained information, there would not have been sufficient probable cause to support a search warrant application. As the Magistrate Judge stated in the Report and Recommendation, Defendant must establish that he has a valid privacy interest in the information obtained through the Customs Summonses such that he should be able to challenge the search of his residence. (Doc. no. 59, pp. 8-10). However, the Magistrate Judge found that Defendant had not shown any valid privacy interest that invokes the Fourth Amendment protection. (Id.).

The Magistrate Judge also assumed for the sake of argument that Defendant did have a valid privacy interest and addressed the arguments raised by Defendant in the motions to suppress. (Id. at 11-21). Notably, although Defendant's objections to the Report and Recommendation address the Magistrate Judge's findings on the arguments raised by Defendant in his motion to suppress, they fail to address Defendant's privacy interest. (Doc. no. 61). The Court is aware that Defendant, relying on Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), argues that "[a]s to `expectation of privacy,' . . . Congress has set forth these expectations by statute. . . ." (Id. at 8). Defendant appears to be furthering the same argument he attempted at the suppression hearing, that the Right to Financial Privacy Act and the Electronic Communications Privacy Act of 1986 provide a privacy right protected by the Fourth Amendment. However, as noted by the Magistrate Judge, to benefit from the protection provided by the Fourth Amendment, Defendant must show that he suffered a violation of a constitutional right. (Doc. no. 59, p. 10). At best, Defendant alleges that he suffered a violation of a statutory right. Therefore, Defendant has not established a valid privacy interest.

Accordingly, the Report and Recommendation of the Magistrate Judge is ADOPTED as the opinion of the Court. Therefore, the motions to suppress filed by Defendant are DENIED. (Doc. nos. 22, 45, 46-2).

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

W. LEON BARFIELD, United States Magistrate Judge.

In the above-captioned criminal case, the government has accused Defendant Reginald Lonnel Cray ("Cray") of one count of Receipt of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(2), and one count of Possession of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). The matter is now before the Court because Cray filed a motion to suppress evidence obtained from the search of his residence1 as well as requested a Jackson v. Denno hearing to determine whether any statements he made during the execution of the search warrant should be suppressed. (Doc. nos. 22, 45, 46-1, 46-2). An evidentiary hearing was held,2 at which time the Court heard testimony from Special Agent Richard McManaway ("SA McManaway"), an officer with Immigrations and Customs Enforcement ("ICE"). Now, for the reasons developed more fully herein, the Court REPORTS and RECOMMENDS that the motions to suppress be DENIED.

I. FACTS

ICE agents, pursuant to an ongoing investigation of unlawful importation of prohibited items, including child pornography, determined that on March 25, 2008, Cray subscribed to a Child Pornography Website ("the Website"). (Doc. no. 54, pp. 2-5). They also determined that Cray was using a certain email address and credit card, and that he was accessing the Website through an identified IP address and email account. (Id.). The ICE agents were able to further identify that Cray's IP address was controlled by AT & T Internet Services Southeast ("AT & T"). (Id.).

During the investigation, ICE agents issued various Customs Summonses, pursuant to 19 U.S.C. § 1509, to obtain information concerning their investigation. (See generally doc. no. 54). 19 U.S.C. § 1509 provides in pertinent part:

(a) Authority

In any investigation or inquiry conducted for the purpose of . . . insuring compliance with the laws of the United States administered by the United States Customs Service, the Secretary (but no delegate of the Secretary below the rank of district director or special agent in charge) may—

. . . .

(2) summon, upon reasonable notice—

(A) the person who—

(i) imported, or knowingly caused to be imported, merchandise into the customs territory of the United States, . . .

(B) any officer, employee, or agent of any person described in subparagraph (A);

(C) any person having possession, custody or care of records relating to the importation or other activity described in subparagraph (A); or

(D) any other person he may deem proper;

to appear before the appropriate customs officer at the time and place within the customs territory of the United States specified in the summons (except that no witness may be required to appear at any place more than one hundred miles distant from the place where he was served with the summons), to produce records, as defined in subsection (d)(1)(A) of this section, and to give such testimony, under oath, as may be relevant to such investigation or inquiry; and

. . . .

(d) Special procedures for third-party summonses

(1) For purposes of this subsection—

(A) The term "records" includes those—

. . . .

(ii) regarding which there is probable cause to believe that they pertain to merchandise the importation of which into the United States is prohibited.

. . . .

(B) The term "summons" means any summons issued under subsection (a) of this section which requires the production of records or the giving of testimony relating to records. Such term does not mean any summons issued to aid in the collection of the liability of any person against whom an assessment has been made or judgment rendered.

(C) The term "third-party recordkeeper" means—

(i) any customhouse broker, unless such customhouse broker is the importer of record on an entry;

(ii) any attorney; and

(iii) any accountant.

The government asserts that ICE agents issued the following Customs Summonses:3

(1) A Customs Summons to AT & T dated March 27, 2008. In response to the Customs Summons, AT & T disclosed that the geographical address for the subject IP address was 4686 Red Leaf Way, Martinez, Georgia. (Id. at 3).

(2) A Customs Summons to Georgia Power on February 6, 2009, requesting the subscriber information associated with Cray at the subject address. In response, Georgia Power disclosed that Olivia Cray (Cray's wife) had a Georgia Power account at the subject address. (Id. at 4).

(3) A Customs Summons on February 12, 2009, to AT & T requesting subscriber and associated information relating to the address, name, account number, email address, phone number, service status and log-in times from January 15 to the date of the summons, for Cray and Olivia Cray, at the Red Leaf address. (Id.).

(4) A Customs Summons on March 3, 2009, to First National Bank ("FNB") requesting Cray's bank statements for March and April 2008 concerning a payment transaction of $79.99 to a particular merchant account from Cray. The Customs Summons also stated the specific credit account number at issue. In response, FNB confirmed that Cray had the subject credit card issued to him at a Fort Gordon P.O. Box,4 and that a $79.99 charge was made to that account from the merchant account associated with the Website. (Id. at 5).

Having collected the information, SA McManaway prepared an application for a search warrant, and on April 23, 2009, the Court issued a Search Warrant for 4686 Red Leaf Way, Martinez, Georgia. (Id.). The Warrant was executed by federal and state agents on April 28, 2009. (Id.).

At the evidentiary hearing, SA McManaway testified that at approximately 7:00 a.m. on April 28, 2009, surveillance was setup at Cray's residence in order to determine whether anyone was home. (FTR 2:49:20-2:49:33).5 At that time, agents determined that nobody was in the residence and that all doors and windows were locked. (FTR 2:49:34-2:49:49). As the agents needed to enter the house, they contacted the Special Assistant United States Attorney ("SAUSA"), who had been operating as a liaison between the army and the investigators, to determine Cray's whereabouts.6 (FTR 2:49:50-2:50:05).

From information provided by the SASA and from contact with Cray's commanding supervisor, the agents...

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    • California Court of Appeals Court of Appeals
    • October 25, 2021
    ...against children.[39] (See United States v. Merrell (D. Minn. 2015) 88 F.Supp.3d 1017, 1033; United States v. Cray (S.D. Ga. 2009) 673 F.Supp.2d 1368, 1376-1377.) Summons like this are appropriate under 19 U.S.C. section 1509 because the DHS now holds the authority that was previously held ......
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