U.S. v. McCarty

• Decision Date: 17 November 2009
• Docket Number: No. CRIM 08-00513 JMS.,CRIM 08-00513 JMS.
• Citation: 672 F.Supp.2d 1085
• Parties: UNITED STATES of America, Plaintiff, v. Simon Jasper McCARTY, Defendant.
• Court: U.S. District Court — District of Hawaii

672 F.Supp.2d 1085

UNITED STATES of America, Plaintiff, v. Simon Jasper McCARTY, Defendant.

No. CRIM 08-00513 JMS.

United States District Court, D. Hawai`i.

November 17, 2009.

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Amy K. Olson, Office of the United States Attorney Special Assistant U.S. Attorney, Honolulu, HI, for Plaintiff.

William A. Harrison, Harrison & Matsuoka, Honolulu, HI, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO SUPPRESS

J. MICHAEL SEABRIGHT, District Judge.

I. INTRODUCTION

On August 5, 2008, Defendant Simon Jasper McCarty ("Defendant"), a United Kingdom national, was traveling from Hilo to Honolulu when the Transportation Security Administration ("TSA") found photographs of naked prepubescent children in his luggage. As a result of this discovery and a subsequent investigation, the Second Superceding Indictment ("SSI") charges Defendant with 10 counts of child pornography, including: two counts of knowingly transporting child pornography in interstate commerce on July 28, 2008 in violation of 18 U.S.C. §§ 2252A(a)(1) and (b)(1) (counts 1 and 2), two counts of knowingly possessing child pornography on August 5, 2008 in violation of 18 U.S.C. §§ 2252(a)(4)(B) and (b)(2) (counts 3 and 4); and five counts of coercing a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct in violation of 18 U.S.C. §§ 2251(c)(2)(B) and 2251(e) (counts 5-10).

Currently before the court is Defendant's Motion to Suppress, in which he seeks to suppress all evidence obtained as a result of the August 5, 2008 search of his luggage at the Hilo International Airport. Defendant argues, among other things, that the TSA performed an overbroad search of his luggage and there was no probable cause supporting the arrest. Based on the following, the court GRANTS Defendant's Motion to Suppress.

II. BACKGROUND

A. Procedural Background

On April 13, 2009, Defendant filed his Motion to Suppress. On May 15, 2009, the government filed its Opposition. At a June 3, 2009 hearing before Judge Helen Gillmor, the court continued the hearing until September 15, 2009 after the government disclosed that it had recently learned additional facts regarding the TSA search of Defendant's luggage. On June 23, 2009, Defendant filed a Supplemental Memorandum in support of his Motion to Suppress and the government filed a Supplemental Opposition on July 7, 2009. On August 25, 2009, this action was assigned to the undersigned.

On September 10, 2009, the court received oral testimony from TSA screener guard Dorina Andrade ("Andrade"), TSA screener guard Jenny Moniz ("Moniz"), TSA lead Tracy Kitamura ("Kitamura"), TSA supervisor Stephanie Kamohai ("Kamohai"), Hilo Airport law enforcement officer Rodney Aurello ("Aurello"), and TSA Deputy Assistant Federal Security Director Patrick Collins ("Collins"). On October 20, 2009, the court received oral testimony from Hawaii County Police Department ("HCPD") Officer Norbert Serrao, HCPD Detective John Ancheta ("Ancheta"), Immigration and Customs Enforcement agent Bruce Law, and Defendant. On November 3, 2009, the parties filed additional supplemental briefing.

B. Factual Background

Based on the testimony and evidence presented,¹ the court provides the following recitation of the relevant events.

1. TSA Search Procedure

The TSA screens all pieces of luggage that go onto a plane to ensure that they do not contain any explosive devices or other items that would threaten the safety of the plane. See Pl.'s Ex. 85 (listing items that are prohibited in carryon and/or checked luggage).

One method of screening luggage is through an x-ray machine, which can identify potential safety risks and/or dense items in luggage that require further inspection. Collins testified that when an x-ray machine alarms on an item in a piece of luggage, the TSA employee must find and examine that item to ensure that it is not an explosive device. If, for example, the alarm is due to a laptop computer in a piece of luggage, the employee must physically remove the laptop computer from the luggage and examine it. Doc. No. 57, at 146.² As another example, if the dense item alarm is due to what turns out to be a stack of photographs, the employee must "thumb through" or "leaf through" the photographs to ensure that they are not hiding any sheet explosives. Id. at 148.

Sometimes, a TSA search reveals contraband that is not a threat to airplane safety, such as illegal drugs, drug paraphernalia, or large amounts of cash. TSA Operations Directive OD-400-54-2 provides that "[w]hen TSA discovers contraband during the screening process that is not a TSA Prohibited Item, the matter should be referred to the local Law Enforcement Officers as appropriate." Pl.'s Ex. 84. TSA screeners are not, however, trained to perform investigations; their job is simply to clear the bag for safety concerns. Doc. No. 57, at 160-61. Accordingly, if a TSA employee finds an item that is either contraband or what they feel might be contraband, the employee must call a law enforcement officer. Id.

2. The Search of Defendant's Luggage

On July 28, 2008, Defendant arrived in Hawaii from the United Kingdom. On August 5, 2008, Defendant traveled to the Hilo International Airport to board a flight to Honolulu and checked two pieces of luggage: (1) a "Travel Pro" brand bag, see Pl.'s Ex. 87; and (2) a "Travel Zone" brand bag. See Pl.'s Ex. 88. These bags went to the TSA screening area where Andrade and Moniz were screening luggage using a CTX 5500 DS security x-ray machine. Doc. No. 57, at 16-17. The Travel Zone bag passed the security check, but when the Travel Pro bag was scanned at approximately 10:13 a.m., Andrade received an alarm for a dense item.

Andrade testified that from the image on the x-ray machine, the dense item in the Travel Pro bag appeared to be a laptop computer with a dense mass around it. Id. at 18-21. Andrade pulled the Travel Pro bag from the x-ray machine and took it to a search table. Id. at 21. After opening the main compartment and feeling that the computer was in the front pocket, Andrade opened the front pocket and pulled out the laptop computer. Id. at 51-53. Andrade testified that as she pulled out the laptop computer, a photograph envelope, Pl.'s Ex. 83, and some of its contents fell out of the bag and onto the table. Id. at 53-54.

The envelope had included, among other things, photographs of nude and partially clothed children, Pl.'s Exs. 1-56, newspaper and magazine clippings describing sexual acts including sex between minors and trial testimony of sexual encounters between a minor boy and woman, id. at Exs. 72-75, magazine clippings of children's pajama, underwear, and swimwear advertisements, id. at Exs. 59-71, and handwritten notes drafted in the first person describing a man molesting boys and a girl.³ Id. at 80-81. Of the 58 photographs from the envelope, 57 are of minor children in various states of undress—for example, young boys with no shirts on, boys in their underwear only, one shirtless boy laying down while a hand reaches toward his pants, and one boy lying face up on top of Defendant while Defendant lifts up the boy's shirt.

Eleven photographs, however, include child nudity, which are marked as Plaintiff's Exhibits 1-10, and 58. These photographs include:

1. Color photograph of two prepubescent boys, appearing to be between the ages of 4 and 6, standing. One boy, clothed, is helping the other boy pull down his underwear, displaying the boy's penis. The face of the clothed boy is cut off from the nose up, and the face of the other boy is not visible.

2-3. Color photographs of two prepubescent boys—perhaps the same boys in the first photograph— standing naked, with both boys' penises clearly visible. The photographs are taken from above the boys, such that the angle of the photographs cut off the boys' full faces.

4-5. Color photographs of a nude prepubescent boy appearing to be between the age of 7 to 10, standing beside a stream and covering his genitals with one hand. A portion of the boy's pubic area is visible in both photographs.

6. Color photograph of the same boy in the same location as Plaintiffs Exhibits 4-5, but reaching for clothing. The boy's penis is fully visible.

7. Color photograph of a nude boy, appearing to be between the ages of 2 to 3. The boy is smiling at the camera, with one hand on his hip, and the other hand leaning against a door frame.

8-9. Black and white images (either a copy of a photograph or a clipping from a magazine) of a fully nude girl, appearing to be between the ages of 3-5, which clearly show her genitals. In Exhibit 8, the girl is standing in a bathroom. In Exhibit 9, the girl is smiling and leaning against something.

10. Color image (possibly a magazine clipping) of a fully nude girl, appearing to be between the ages of 2 to 4, holding a beach toy. An adult hand is holding the girl's torso from behind.

58. A black and white image of a fully nude girl, appearing to be between the ages of 3 to 6, who is making a funny face in a mirror.

Andrade was unable to identify what contents of the envelope had fallen out and were initially visible on the table. When asked by the government what images she recalled seeing on August 5, 2008, Andrade testified that she generally recalled seeing Plaintiff's Exhibits 1, 4, 11, 15-18, 21, 22, 52, 53, 55, 59-61, 72, 73, 80, and 81. Doc. No. 57, at 26-28. When specifically asked by Defendant's counsel and the court what images were initially visible—as opposed to what images she recalled seeing that day—Andrade identified Plaintiff's Exhibits 2, 3, 15, 21, and 22. Doc. No. 57, at 58-59. Upon additional questioning, however, Andrade admitted that she could not identify what images were initially visible and that she simply recalls seeing photographs of nude children. Id. at 60, 63.

Andrade's testimony regarding...