U.S. v. Jasorka
| Decision Date | 17 August 1998 |
| Docket Number | Docket No. 97-1549 |
| Parties | UNITED STATES of America, Appellant-cross-Appellee, v. Thomas JASORKA, Defendant-Appellee-cross-Appellant. |
| Court | U.S. Court of Appeals — Second Circuit |
Barbara D. Underwood, Chief Assistant United States Attorney, Brooklyn, NY (Zachary W. Carter, United States Attorney for the Eastern District of New York, Brooklyn, NY, Emily Berger and Dolan Garrett, Assistant United States Attorneys, of counsel) for Appellant-Cross-Appellee.
Paul B. Bergman, New York City, for Defendant-Appellee-Cross-Appellant.
Before: MINER, McLAUGHLIN, and LEVAL, Circuit Judges.
The government appeals from an order of the United States District Court for the Eastern District of New York (Sifton, Chief Judge) suppressing evidence seized during a search of Thomas Jasorka's apartment pursuant to a search warrant. The warrant was based on a probable violation of 18 U.S.C. § 2252(a)(4)(B), which makes criminal the possession of materials depicting minors engaged in sexually explicit conduct, including "lascivious exhibition of the genitals." The district court found the procedure leading to the issuance of the warrant defective on the ground that the issuing magistrate judge did not view the photographs herself but relied on a customs agent's affidavit that parcels mailed to Jasorka from abroad contained photographs depicting "lascivious" display of the genitals. The court further found that the search could not be validated by the "good faith" exception to the Fourth Amendment exclusionary rule announced in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). We do not reach the first question whether the magistrate judge was obligated to make her own assessment of the lascivious nature of the photographs, because we hold that the searching officers were entitled under Leon to rely in good faith on the magistrate judge's order.
On May 14, 1996, an inspector of the United States Customs Service intercepted a parcel mailed from the Netherlands, addressed to defendant Thomas Jasorka in Queens County, New York. The parcel contained photographs of male children exhibiting their genitals. Another parcel with like contents was intercepted three days later. After examining the photos, two customs agents and two Assistant United States Attorneys whom they had consulted concluded that the photographs The application was supported by the affidavit of Customs Agent Peter Quaglia stating that the parcels contained "pornographic photographs of male children displaying a lewd and lascivious exhibition of the genitals and pubic areas." United States Magistrate Judge Roanne L. Mann issued the warrants. After a controlled delivery of the parcels to the defendant, customs agents arrested him, searched his apartment, and seized fifty-two boxes. Based on materials found in the boxes, Jasorka was charged with violating § 2252.
depicted "minor[s] engaging in sexually explicit conduct" within the meaning of 18 U.S.C. § 2252(a)(2)(A). 1 Section 2252 makes it a crime to receive through the mails materials that depict minors "engaging in sexually explicit conduct," which is defined to include "lascivious exhibition of the genitals or pubic area of any person." See 18 U.S.C. § 2256(2)(E). The government thereupon sought warrants to authorize Jasorka's arrest and the search of his apartment following a controlled delivery of the pornographic parcels to him
Jasorka moved to suppress the items seized during the search. The motion was based in part on the theory that the magistrate judge had failed to make her own determination that the photographs involved "lascivious" conduct but had relied impermissibly on the customs agent's cursory conclusion that the materials violated the legal standard. The Assistant United States Attorney who handled the warrant application asserted that he had brought the photographs to the proceeding before the magistrate judge. However, neither the AUSA nor the magistrate judge (who submitted an affidavit at the request of Chief Judge Sifton) was able to recall whether she had actually viewed them. Chief Judge Sifton found that the photographs were not exhibited to the magistrate judge, and that she was not given a sufficiently detailed description of them to permit a finding that they involved "lascivious" conduct. He concluded that the magistrate judge therefore lacked sufficient basis to conclude that the intercepted materials violated § 2252. The district court further found that the warrant application was so lacking in indicia of probable cause that the customs officers could not have reasonably relied in good faith on the issuance of the warrant to justify the search under Leon. The court accordingly granted the motion to suppress the materials seized in the search.
With this Court's leave, the government took interlocutory appeal from the order of suppression, and the defendant cross-appealed from the district court's failure to suppress on the basis of additional arguments offered by the defendant in support of the motion.
The district court concluded that in issuing a warrant premised on violation of the "lascivious exhibition of genitals" provision of the act relating to sexual exploitation of children, 18 U.S.C. § 2252 a judicial officer's assessment whether there was a sufficient showing of violation must be made in the same manner as required in assessing whether material is obscene. In Marcus v. Search Warrants, 367 U.S. 717, 81 S.Ct. 1708, 6 L.Ed.2d 1127 (1961), the Supreme Court considered the proper proceeding for the issuance of warrants for the seizure of allegedly obscene material. Because of the danger that constitutionally protected materials may be suppressed and because of the subtlety of the inquiry required to distinguish obscenity from protected matters, the Court ruled that "warrants issued on the strength of the conclusory assertions of a single police officer, without any scrutiny by the judge of [the] materials considered ... to be obscene" did not comply with the requirements of the First Amendment. Id. at 731-32, 81 S.Ct.
1708; see also Lee Art Theatre, Inc. v. Virginia, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313 (1968)(per curiam). The Court clarified in New York v. P.J. Video, Inc., 475 U.S. 868, 106 S.Ct. 1610, 89 L.Ed.2d 871 (1986), that while the issuing magistrate is not required to "personally view allegedly obscene [materials] prior to issuing a warrant [for] their seizure," id. at 874 n. 5, 106 S.Ct. 1610, there must be an application "supported by affidavits setting forth specific facts in order that the issuing magistrate may focus searchingly on the question of obscenity." Id. at 873-74, 106 S.Ct. 1610 (internal quotation marks and citation omitted).
The district court believed that these same requirements apply to a warrant for seizure of material whose violation of § 2252 is premised on "lascivious exhibition of the genitals." The district court took the view that the magistrate judge's reliance on the conclusory assertion of the attesting...
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