U.S. v. Strauser, 4:02CR82CDP.

• Decision Date: 06 March 2003
• Docket Number: No. 4:02CR82CDP.,4:02CR82CDP.
• Court: U.S. District Court — Eastern District of Missouri
• Parties: UNITED STATES of America, Plaintiff, v. Gregory STRAUSER, Defendant.

247 F.Supp.2d 1135

UNITED STATES of America, Plaintiff, v. Gregory STRAUSER, Defendant.

No. 4:02CR82CDP.

United States District Court, E.D. Missouri, Eastern Division.

March 6, 2003.

Carrie Costantin, Office of U.S. Atty., St. Louis, MO, for U.S.

Daniel A. Juengel, Matthew A. Radefeld, Frank and Juengel, Clayton, MO, for defendant.

MEMORANDUM AND ORDER

PERRY, District Judge.

This child pornography case is one of a number of cases arising from the government's investigation of the "Candyman" web site. The evidence against defendant Gregory Strauser was seized pursuant to a search warrant. The government concedes that the warrant affidavit falsely indicated that Strauser had received emails containing over one hundred images of child pornography, when in fact, there was no evidence that he had ever received any child pornography.

I previously held that Strauser had failed to show that the false information was knowingly or recklessly included, and so I denied his suppression motions. After additional evidence was discovered, I agreed to reconsider that decision. I now hold that the false information was recklessly included in the search warrant application, and that without the false information the warrant lacks probable cause, so I will grant Strauser's motion to suppress.

Procedural Background

Defendant Gregory Strauser is charged with six counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and one count of using an interactive computer service for interstate transmittal of prohibited materials in violation of 18 U.S.C. § 1462. These charges all arose out of evidence obtained when law enforcement officers conducted a search of Strauser's home and computer pursuant to a search warrant on January 17, 2002.

All pretrial motions were referred to United States Magistrate Judge Audrey G. Fleissig pursuant to 28 U.S.C. § 636(b). Judge Fleissig held an evidentiary hearing on July 16 and 17, 2002, and entered extensive findings based on the evidence presented to her. She recommended that all of defendant's motions be denied. By order dated September 3,2003 I adopted her factual findings in their entirety, and also followed her recommendation that the motions to suppress be denied. I agreed that the false information contained in the warrant application was included inadvertently and not intentionally or recklessly. Under Franks the inclusion of false information in a warrant application does not lead to suppression where the law enforcement agents obtaining the warrant did not know of, and were not reckless in not knowing of, the falsity of the information provided. My only disagreement with Judge Fleissig's Report and Recommendation was that I concluded that probable cause would be lacking to support the issuance of the warrant if the false information were excluded. Under Franks, however, this makes no difference, since I agreed that the false information was not knowingly or recklessly provided.

After I denied the suppression motions, Strauser entered a conditional plea of guilty, reserving his right to appeal the suppression issues. Before he was sentenced, however, the government discovered and revealed additional evidence relating to whether the false information in the search warrant was provided knowingly or recklessly. At Strauser's request, I allowed him to withdraw his conditional guilty plea and I agreed to reconsider the motion to suppress, in light of the newlydiscovered evidence. I held a hearing on the issue on February 14, 2003.

Factual Background

Houston FBI agent Geoff Binney, as part of his ongoing duties to investigate child sexual exploitation, was engaged in searching the internet for child pornography. On January 2, 2001, Binney discovered The Candyman eGroup, and subscribed to the site. Candyman was a free site, and only required provision of an email address to join. After he subscribed, Binney received back a confirming email and thereafter he automatically received all emails from the group. Binney remained a subscriber to the group until it was shut down by Yahoo on February 6, 2001. During that approximately one month period, Binney received 105 images of child pornography.

After he joined the Candyman eGroup, Binney contacted Yahoo to ask for additional information.¹ He spoke with a paralegal, Lauren Guarnieri, who was unhelpful, and, since he was unable to learn much from her, served a grand jury subpoena. In response, he received a letter and a multi-page list of email addresses. He contacted Guarnieri again, who confirmed that the list showed those email addresses that had subscriptions to Candyman at the time it was shut down. Binney was later reassigned, and the investigation was taken over by FBI Agent Kristen Sheldon. Sheldon attempted some additional investigation, and obtained a large number of logs from Yahoo, which indicated the dates the members had joined the group. She also served additional subpoenas and orders on Yahoo, although she did not actually obtain any additional documents until after the Strauser search warrant had been issued and executed.

Based on the investigation by Binney and Sheldon, the FBI sought a search warrant for Strauser's residence. The warrant application was actually signed by St. Louis FBI Agent Ann Pancoast. It indicated that an email account registered to Strauser subscribed to the Candyman group on December 26, 2000 and was still a member on February 6, 2001 when the service was shut down, and that the same email account had one active and one previously deleted screen name that could be viewed as sexually suggestive, specifically "EZ2bhrdnla" and "EZ2bhrdnSTL." The warrant application contains information confirming that Strauser lived at the address to be searched and that the screen names were registered to him. The application also contains generic information about how collectors and distributors of child pornography use computers. Other than the fact that Strauser had subscribed to Candyman on December 26, 2000, and had not "unsubscribed" as of February 6, 2001, however, there was nothing to indicate that he was a "collector or distributor of child pornography."

The search warrant application described the Candyman eGroup and described Agent Binney's experience with it, including that he had received emails containing 105 images of child pornography during the time he was a member of the group. The warrant application also stated that to subscribe to the Candyman eGroup one had to send an email to the site, and that all subscribers automatically received via email all postings made by other members of the group, as well as email notifications whenever another subscriber uploaded a file to the site. The government now concedes that this information is false, and we now know that members did not necessarily receive all the emails. In fact, the vast majority of Candyman subscribers, including defendant Strauser, had exercised the "no mail" option, where they did not receive emails, although, as members, they could go to the web site and view files and previously-posted emails containing child pornography. There was no evidence in the affidavit that Strauser had actually done so. Thus, the application falsely implied that Strauser necessarily had received, during January and the first few days of February 2001, over one hundred images of child pornography, when in fact, there was no evidence that he had ever received any child pornography.

The Franks Standard

Under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), a search warrant will be held invalid only where two conditions are met: (1) the application contains a false statement that was knowingly and intentionally made, or was made with reckless disregard for the truth, and (2) the false information is necessary to establish probable cause. To determine recklessness the Eighth Circuit has adopted the standard of "reckless disregard for the truth" used in First Amendment libel cases. United States v. Clapp, 46 F.3d 795, 800-01 (8th Cir.1995). This is a tougher test than the objective "knew or should have known" standard used in tort and other cases: [W]e have declined to adopt a definition of "reckless disregard" that incorporates the "subjective" versus "objective" terminology and have instead explained that

the test for determining whether an affiant's statements were made with reckless disregard for the truth is not simply whether the affiant acknowledged that what he [or she] reported was true, but whether, viewing all of the evidence, the affiant must have entertained serious doubts as to the truth of his [or her] statements or had obvious reasons to doubt the accuracy of the information he [or she] reported.

United States v. Clapp, 46 F.3d at 795, 801, n. 6. (8th Cir.1995), quoted in United States v. Johnson, 78 F.3d 1258, 1262 (8th Cir.1996). United States v. Schmitz, 181 F.3d 981, 986-87 (8th Cir.1999).

Facts Relating to Whether the Falsehood was Knowingly or Recklessly Made

The Candyman site was hosted as an "eGroup," and the initial page that Binney found for the Candyman site appears on the form template for other eGroups. Agent Binney testified that he saw a reference to the Candyman site in a pornography newsletter, and he simply typed in the web address shown in that newsletter to find the site. He identified Government's Exhibit 7 as a print out of the initial page he found. The page has the name "The Candyman" and states "Founded December 6, 2000." Under "description" it states:

This group is for People who love kids.

You can post any type of messages you like too or any type of pics and vids you like too.

P.S. IF WE ALL WORK TOGETHER WE WILL HAVE THE BEST GROUP ON THE NET.

The page showed 1164 members, the "Category" was described as "Top: Adult: Image Galleries: Transgender: Members." As with other eGroup pages, there were various buttons, including one labeled "Subscribe." The page also...