U.S. v. Potts
| Decision Date | 13 May 2008 |
| Docket Number | No. 07-40071-JAR.,07-40071-JAR. |
| Citation | 559 F.Supp.2d 1162 |
| Parties | UNITED STATES of America, Plaintiff, v. Coen C. POTTS, Defendant. |
| Court | U.S. District Court — District of Kansas |
Christine E. Kenney, Office of United States Attorney, Topeka, KS, for Plaintiff.
MEMORANDUM AND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS
This matter is before the Court on defendant's Motion to Suppress (Doc. 19) as evidence the property, other materials, and any statements made by the defendant during the search of his apartment on October 25, 2006. Defendant also moves to suppress all evidence discovered during the subsequent search of his computer hard drive and other electronic storage devices. An evidentiary hearing was held on January 7, 2008, after which the Court requested the parties to submit written closing arguments. The Court has reviewed the evidence and the parties' submissions and is prepared to rule. For the reasons set forth in detail below, defendant's motion is denied.
On October 19, 2006, FBI Special Agent Stacie Lane presented Magistrate Judge Sebelius with a search warrant affidavit, which' sets forth the following facts. Agent Lane is a child exploitation investigator, with experience in the investigation of cases involving the use of computers and the internet to commit violations of Federal law, including child pornography and child exploitation laws. On September 8, 2006, Agent Lane was contacted by an unidentified witness regarding defendant. The informant said she met defendant in October 2005 through a telephone dating service. The informant and defendant spoke online and by telephone a few times before meeting in person in Norman, Oklahoma. Defendant told the informant that he was an art teacher in Topeka. His dating profile said he liked younger girls. The informant was age 22 at the time and thought defendant, who was in his mid-30's, considered her a young girl.
During the meeting in October 2005, defendant reminded the informant that he said he liked younger girls, then showed the informant a large binder that contained two school photographs of female students (approximately age five and six), numerous pictures defendant said that he had drawn, and three photographs that the informant quickly realized were child pornography. The informant described two of the photos, but could not recall the third, because she stopped looking once she realized the pictures were child pornography.
Defendant asked the informant if she was interested in the photos. The informant expressed her shock and said she could not understand why defendant was showing her the pictures and why he was into "that." Defendant indicated that he had downloaded the pictures from the internet, and gave the informant the impression that he frequently looked at child pornography on the internet. The informant told defendant that what he was doing was wrong, and that he needed to get help if he was attracted to children.
After the meeting, the informant and defendant spoke by telephone three times. Each time, the informant raised the subject of defendant's interest in child pornography to find out if he was still viewing the images. The informant and defendant talked about the subject in an indirect way, such as "are you still into that," or "you know...." Defendant said that he was too old to stop and/or that he had been doing it too long to stop.
During one of the calls, probably the last call on November 17, 2005, the informant was talking to defendant about her young niece. Defendant said something to the effect of "that's my type" and "wouldn't you like to play with her ... do her?" Defendant also shared his fantasy that he and the informant were married with children that defendant could "deflower," and talked in detail about how he would sexually abuse their children and "no one would know."
In approximately September 2006, the informant told her boyfriend about defendant and the child pornography, and he urged her to call law enforcement. The informant called the FBI on September 8, 2006. During her telephone conversation with Agent Lane, the informant could not explain why she did not contact law enforcement sooner, other than being reluctant to deal with the issue since it made her uncomfortable. The informant became upset each time she discussed the meeting with defendant and his comments concerning child exploitation.
On September 8, 2006, the Kansas Department of Education website was queried and revealed that defendant is a qualified teacher of art for grades K-12. On September 11, 2006, a query of the Employment Security Commission revealed that defendant had been employed by the Auburn-Washburn, Kansas school district since 2002. Contact with the school superintendent confirmed that defendant was employed as an art teacher. A query of public records revealed defendant's address at an apartment in Topeka, Kansas, as well as a local telephone number.
On October 2, 2006, the informant made a recorded telephone call to defendant at his home telephone number. During this telephone conversation, defendant confirmed that he still worked as an art teacher and that he owns his own computer. Three significant exchanges occurred during this recorded conversation. First, the informant raised the issue of child pornography in a discreet way. Without specifically referencing children or child pornography, the informant said that "you sound like you're still into that ... the whole ..." and "like when we talked before— that's what you kinda' wanted, so I don't know, I was just hoping you didn't." Defendant responded that "it's not like it's 24 hours a day or anything and in fact I really, uh, don't hit any of those sites, uh, anymore than, I mean I know where they are, but I don't revisit them very often" and "it costs money to get on the Net, that often ... when you're downloading things that take hours to download."
Second, defendant said that "it's not something a girl has to like" and "it would surely be a fun beneficial thing, but I realize ... I'm probably not going to find anyone who's into that" and "even if it was ... fantasy kind of thing, that would .... be fine with me."
Third, defendant raised the fact that the informant wanted him to get help. The informant responded that "there's help out there for people that have addictions ... or like things that are not normal" and "I'm not saying you're not normal, but you know what I mean." Defendant said that "I have admittedly ... I've had a porn addiction in a way." When the informant asked "[d]o you think that's what led to that?", defendant responded "well no" and "it's just because I've been really by myself and really sort of unsuccessful with women virtually my whole life...."
On October 4, 2006, Agent Lane met with the manager of defendant's apartment building. The manager confirmed that defendant currently leased an apartment and that he believed defendant lived alone. Agent Lane conducted a surveillance of defendant's apartment building and observed that his building was easily identified by white numbers and that his apartment number was prominently marked in black on the front door.
Based upon the information provided by the informant and the recorded telephone call, Agent Lane prepared an affidavit in support of a search warrant. On October 19, 2006, the magistrate judge signed a search warrant authorizing the seizure of items described in Attachment B, which lists evidence pertaining to images of child pornography as well as evidence of child erotica, information pertaining to the sexual interest in child pornography, and sexual activity with children. The search warrant authorized a search of defendant's residence, including any computers and electronic storage devices found in defendant's residence. An Addendum to the warrant sets forth the search procedure of the electronic data contained in computer equipment subject to the warrant.
On October 25, 2006, Agent Lane and other law enforcement officers executed the search warrant. After officers entered the residence, defendant told Agent Lane that he had child pornography on his computer, but he did not know the number of images. Defendant said that he has been teaching for twelve years, he has never been in trouble at school, and he keeps his viewing of child pornography separate from his job.
During the execution of the search warrant, officers seized numerous items from defendant's apartment. Officers located 52 printed images of what appeared to be child pornography in a box in defendant's bedroom. These images appeared to be printed from the internet using a home printer. Some of the images were stored inside page protectors. Officers also located three ring binders on defendant's bed, which contained a total of 253 images of child pornography inside page protectors. In addition to images, officers seized miscellaneous papers from the bedroom, kitchen, and living room. Numerous pages contained handwritten notations of user names or passwords and internet cites, many containing names suggesting child pornography. Officers also seized a Dell computer with Western Digital Caviar Hard Drive, three USB thumb drives, and 17 Lexar JumpDrives.
Sergeant Jeffrey Owen, Forensic Computer Examiner, Team Leader and Operations Manager at the Heart of America Regional Computer Forensic Laboratory ("RCFL"), conducted the examination of defendant's computer and other electronic storage devices. Sergeant Owen has been assigned to the RCFL since 2003, and during that time has conducted over 30 computer examinations per year. During this same time period, Sergeant Owen has received continuous training in the area of computers and forensic examinations.
Agent Lane conducted the initial review of the defendant's computer and storage devices and book marked files...
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