U.S. v. Diaz
| Decision Date | 20 December 2007 |
| Docket Number | Criminal No. B-07-608. |
| Parties | UNITED STATES of America v. Samuel Jason DIAZ. |
| Court | U.S. District Court — Southern District of Texas |
Edward K. Cyganiewicz, Brownsville, TX, Jack Allen Wolfe, McAllen, .TX, Robert A. Swofford, Cogdell Law Firm, Houston, TX, for Plaintiff.
Terra L. Bay, U.S. Attorney's Office, Brownsville, TX, for defendant.
Defendant Samuel Jason Diaz ("Diaz") seeks to suppress all evidence obtained in the search of his home. (Docket No. 31). Diaz alleges the affidavit supporting the search warrant lacked probable cause and was "bare bones." (Id.) The government responded, stating the affidavit sets out probable cause and that the federal agent reasonably relied on the warrant in good faith. (Docket No. 33).
This Court employs a two-step process when reviewing the validity of a search warrant. United States v. Froman, 355 F.3d 882, 888 (5th Cir.2004). The Court typically first determines whether the good-faith exception to the exclusionary rule applies, and if not, the Court then turns to whether the magistrate had a substantial basis for finding probable cause. Id. A court should address the probable cause issue if the case involves a "novel question of law whose resolution is necessary to guide future action by law enforcement and magistrates." See United States v. Satterwhite, 980 F.2d 317, 320 (5th Cir.1992). This Court finds that the factual situation set out by the search warrant in this case involves a novel question of law, therefore the Court will address whether the warrant and support affidavit establish probable cause and then turn to the issue of whether the federal agent relied on the warrant in good faith.
II. PROBABLE CAUSE
The Fourth Amendment bars officials from undertaking search and seizures absent individualized suspicion. Chandler v. Miller, 520 U.S. 305, 308, 117 S.Ct. 1295, 137 L.Ed.2d 513 (1997). A search "must be supported by probable cause particularized with respect to that person." Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979).
A magistrate judge issuing a search warrant must answer the "commonsense, practical question whether there is `probable cause' to believe that contraband or evidence is located in a particular place." Illinois v. Gates, 462 U.S. 213, 230, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Probable cause is based on factual and practical considerations and probabilities, rather than technical requirements or hard certainties. Gates, 462 U.S. at 231, 103 S.Ct. 2317 (citing Brinegar v. United States, 338 U.S. 160, 176, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)). Probable cause is therefore "a fluid concept-turning on the assessment of probabilities in particular factual contexts, not readily, or even usefully, reduced to a neat set of legal rules." Gates, 462 U.S. at 232, 103 S.Ct. 2317. The Gates court reaffirmed the use of the totality-of-the circumstances approach to determine whether probable cause exists rather than the use of specific tests. Id. at 230-31, 103 S.Ct. 2317.
Neither certainty nor a preponderance of the evidence is required to establish probable cause. United States v. Gourde, 440 F.3d 1065, 1069 (9th Cir.2006) (citing Gates, 462 U.S. at 246, 103 S.Ct. 2317, 76 L.Ed.2d 527); United States v. Froman, 355 F.3d 882, 889 (5th Cir.2004). Probable cause, however, means more than "mere suspicion." See United States v. Gordon, 580 F.2d 827, 832-33 (5th Cir. 1978).
Judicial review of the sufficiency of an affidavit should not take the form of de novo review. Gates, 462 U.S. at 236, 103 S.Ct. 2317. A magistrate judge's determination of probable cause should be "paid great deference by reviewing courts." Id. (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)). So long as the magistrate had a substantial basis for concluding "that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more." Id. at 236, 103 S.Ct. 2317 (quoting Jones v. United States, 362 U.S. 257, 261, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)). "Although in a particular case it may not be easy to determine when an affidavit demonstrates the existence of probable cause, the resolution of doubtful or marginal cases in this area should be largely determined by the preference to be accorded to warrants." Id. at 237, n. 10, 103 S.Ct. 2317 (quoting United States v. Ventresca, 380 U.S. 102, 109, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965)).
This Court "must simply decide whether there is a 'fair probability' that, based upon the facts set forth and the inferences from them, [the defendant's] computer would house child pornography ...." United States v. Kelley, 482 F.3d 1047, 1055 (9th Cir.2007); see Gourde, 440 F.3d at 1071; Froman, 355 F.3d at 889-90. While there is no specific test for when probable cause exists in child pornography cases, see Gates, 462 U.S. at 230-31, 103 S.Ct. 2317, this Court finds it instructive to review the factors used by other courts in cases involving subscriptions to child pornography websites and search warrants for defendants' homes.
In United States v. Gourde, the Ninth Circuit held that an affidavit accompanying a search warrant showing that a defendant took intentional steps to join a membersonly website whose primary purpose is the illegal trade of child pornography establishes probable cause to search the defendant's home. 440 F.3d at 1070. This reasoning has been followed or mirrored by a number of courts. See United States v. Wagers, 452 F.3d 534, 540 (6th Cir.2006); United States v. Meek, 177 Fed.Appx. 576, 577-78 (9th Cir.2006); United States v. Payne, 519 F.Supp.2d 466, 468-69 (D.N.J. 2007); United States v. Standefer, No. 3:06-CR-02674, 2007 WL 2301760, *6 (S.D.Cal. Aug.8, 2007); State v. Gralinski, 2007 WL 2481032 (Wis.Ct.App. Sept.5, 2007); see also United States v. Kelley, 482 F.3d 1047, 1049 (9th Cir.2007); United States v. Martin, 426 F.3d 68, 74-77 (2d Cir.2005).
The affidavit in Gourde stated the defendant subscribed to a website called Lolitagurls.com. Gourde, 440 F.3d at 1070. The primary content of Lolitagurls.com was images of child pornography. Id Subscribers to the website therefore had access to hundreds of illegal images. Id.
The court then turned to the defendant's subscription to the website, holding that the defendant's "status as a member manifested his intention and desire to obtain illegal images." Gourde, 440 F.3d at 1070. Joining the website required a single submission of personal data and credit card information, however, this "only could have been intentional and [was] not insignificant." Id. "[M]embership [was] both a small step and a giant leap." Id. To the court, this evidence "left little doubt, that [the defendant] had paid to obtain unlimited access to images of child pornography knowingly and willingly." Id.
The court rested its holding on a solid "triad of facts" from the warrant supporting a finding of probable cause: (i) the website had illegal images; (ii) the defendant intended to have and wanted access to these images; and (iii) these images were almost certainly retrievable from his computer if he ever received or downloaded them. Gourde, 440 F.3d at 1071. The court concluded it was common sense, based on the totality of the circumstances, that someone who paid for access to a website that purveyed child pornography probably had viewed or downloaded such images onto his computer. Id. (citing Gates, 462 U.S. at 246, 103 S.Ct. 2317, 76 L.Ed.2d 527). Based on the facts above, the magistrate judge could make a reasonable inference that the defendant received or downloaded images and would have them at his home. Id.
The Fifth Circuit has not addressed the situation in Gourde: whether a paid subscription to a website whose primary purpose was the distribution of child pornography would establish probable cause. In United States v. Froman, however, the Fifth Circuit addressed an affidavit based on a person's unpaid subscription to the Candyman e-group, and held that the affidavit supported reasonable cause. 355 F.3d 882, 890-91 (5th Cir.2004).
The affidavit in Froman established that: (i) the defendant subscribed to and was a member of the Candyman e-group; (ii) the sole purpose of the Candyman e-group was to receive and distribute child pornography; and (iii) Froman had several screen names registered to his name that reflected an interest in child pornography. Froman, 355 F.3d at 890. The Fifth Circuit held it was "common sense that a person who voluntarily joins a group such as Candyman, remains a member of the group for approximately a month without canceling his subscription, and uses screen names that reflect his interest in child pornography, would download such pornography and have it in his possession." Id. at 890-91. The Fifth Circuit held that those facts and inferences sufficiently established probable cause to search the defendant's home for further evidence of child pornography. Id. at 891.
The Froman decision has been criticized by three district courts, who have held that merely subscribing to the Candyman e-group was insufficient to support a search warrant for a subscriber's home. United States v. Kunen, 323 F.Supp.2d 390, 400 (E.D.N.Y.2004); United States v. Strauser, 247 F.Supp.2d 1135, 1144-45 (E.D.Mo. 2003); United States v. Perez, 247 F.Supp.2d 459, 482 (S.D.N.Y.2003).
A person looking to subscribe to the Candyman e-group only saw the message, "[t]his group is for People [sic] who love kids" when arriving at the opening webpage. See Perez, 247 F.Supp.2d at 482. This opening page did not have any images, nor the words "child pornography." Id. at 482. A person could have...
To continue reading
Request your trial
-
United States v. Morrow
...with a physical address where evidence and instrumentalities of that criminal activity could reasonably be expected to be found. Diaz, 529 F. Supp. at 794 (quoting Illinois v. Gates, 462 U.S. 213, 236 (1983)). Moreover, there are ample grounds to find probable cause for a search of the resi......