U.S. v. Wagers

• Decision Date: 12 October 2004
• Docket Number: No. CRIM.A. 04-66-S.,CRIM.A. 04-66-S.
• Citation: 339 F.Supp.2d 934
• Parties: UNITED STATES of America, Plaintiff, v. Lyman WAGERS, Jr., Defendant.
• Court: U.S. District Court — Eastern District of Kentucky

Page 934

339 F.Supp.2d 934

UNITED STATES of America, Plaintiff, v. Lyman WAGERS, Jr., Defendant.

No. CRIM.A. 04-66-S.

United States District Court, E.D. Kentucky, At Lexington.

October 12, 2004.

Mark A. Wohlander, U.S. Attorney's Office, EDKY, Lexington, KY, for USA, Plaintiff.

Larry Roberts, Roberts & Smith, Patrick F. Nash, Lexington, KY, for Lyman E. Wagers, Jr. (1), Defendants.

MEMORANDUM OPINION AND ORDER

FORESTER, Chief Judge.

This matter is before the Court for consideration of the Defendant Lyman Wagers, Jr.'s (hereafter, the "Defendant" or "Wagers") Motion to Suppress certain evidence discovered pursuant to the execution of three (3) search warrants at his residence, his business and America On-Line's corporate headquarters regarding his account [DE # 30]. The United States has filed a Response to the Motion to Suppress [DE # 34], the Defendant replied [DE # 36], and the government submitted a Sur-Reply. [DE # 37] Concurrent with his reply, Wagers also filed a Motion for leave to place evidence in the record absent a stipulation [DE # 36], to which the United States responded. [DE # 37] Accordingly, the motions are now ripe for adjudication.

I. BACKGROUND

Previously, the United States submitted three (3) Applications and Affidavits for Search Warrants regarding an investigation into Mr. Wagers' alleged criminal wrongdoings involving child pornography. Specifically, the United States sought to search the residential and business premises of Mr. Wagers at 3818 Mimosa Lane, Lexington, Kentucky and 1608 Harrodsburg Road, Lexington, Kentucky on April 5 and 8, 2004, respectively. [See April 5, 2004, Application and Affidavit For Search Warrant, hereafter the "April 5th Affidavit", and April 8, 2004 Application and Affidavit For Search Warrant, hereafter the "April 8th Affidavit".] The United States also filed an application for search warrant for searching records involving Mr. Wagers at America On-Line's (AOL) headquarters in Dulles, Virginia, on April 8th. [See the April 8, 2004, Application and Affidavit For Search Warrant of AOL Headquarters, hereafter the "AOL Affidavit".] Based on these applications and affidavits, and after finding probable cause had been established, Magistrate Judge James B. Todd signed each application and issued search warrants on the corresponding dates the warrants were submitted.

Wagers now challenges the sufficiency of those affidavits in the instant Motion to Suppress. Through his motion, Wagers argues that the evidence seized pursuant to three (3) search warrants should be suppressed because: (1) they do not create probable cause to believe that Mr. Wagers committed any crime; and (2) they do not create probable cause to believe that instrumentalities or evidence of a crime would have been found at the premises to be searched. For the reasons stated herein, Wagers' Motion to Suppress will be DENIED.

II. LEGAL STANDARD

The Fourth Amendment to the United States Constitution provides:

No Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the places to be searched, and the person or things to be seized.

U.S. Const., Amend. IV. Wagers does not challenge the "particularity" of the affidavits; rather, he contests the sufficiency of the "probable cause" for the issuance of said search warrants.

To be sufficient, the affidavits must establish probable cause to believe that evidence of the alleged crimes would be present at the three premises searched. United States v. Davidson, 936 F.2d 856, 859 (6th Cir.1991). Probable cause is defined as "reasonable grounds for belief, supported by less than prima facie proof but more than mere suspicion," United States v. Bennett, 905 F.2d 931, 934 (6th Cir.1990), and is said to exist "when there is a `fair probability,' given the totality of the circumstances, that contraband or evidence of a crime will be found in a particular place." Davidson, 936 F.2d at 859; see also, e.g., United States v. Johnson, 351 F.3d 254, 258 (6th Cir.2003). In reviewing the sufficiency of a search warrant affidavit, the "magistrate's determination of probable cause is afforded great deference," and should only be reversed if arbitrarily made. United States v. Greene, 250 F.3d 471, 478 (6th Cir.2001) (emphasis added); United States v. Finch, 998 F.2d 349, 352 (6th Cir.1993). To this end, "review of an affidavit and search warrant should rely on a `totality of the circumstances' determination, rather than a line-by-line scrutiny." Greene, 250 F.3d at 479. In other words, the magistrate judge's responsibility in examining the challenged search warrant is "simply to make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (emphasis added).

"It is well settled that in seeking suppression of evidence the burden of proof is upon the defendant to display a violation of some constitutional or statutory right justifying suppression." United States v. Feldman, 606 F.2d 673, 679 n. 11 (6th Cir.1979). "When reviewing the denial of a motion to suppress evidence, we must consider the evidence in the light most favorable to the government." United States v. Garza, 10 F.3d 1241, 1245 (6th Cir.1993). The standard of review for determining the sufficiency of the affidavit "is whether the magistrate had a substantial basis for finding that the affidavit established probable cause to believe that the evidence would be found at the place cited." United States v. Davidson, 936 F.2d 856, 859 (6th Cir.1991). See U.S. v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir.2003).

III. ANALYSIS

A. The Affidavits In General

Prior to the initiation of the instant criminal action, as ascertained from the averments contained in the supporting affidavits, a number of police and investigatory agencies, including the United States Attorney's Office for the District of New Jersey, the United States Department of Justice's Child Exploitation and Obscenity Section, the New Jersey offices of the ICE, Internal Revenue Service, Criminal Investigations Division, the United States Postal Inspection Service, and the Federal Bureau of Investigations, conducted a joint investigation into the business known as Regpay, a third party billing and credit card aggregating company. [See April 5th Affidavit, ¶¶ 10-23; April 8th Affidavit, ¶¶ 10-23; AOL Affidavit, pp. 1-2.] Through this independent investigation, the foregoing agencies discovered that Regpay was conspiring with other website operators to commercially distribute child pornography by providing those other site operators with billing and credit card aggregating services. Id. The investigation also revealed that Regpay received a percentage of the website operator's revenues and also operated its own website(s) that sold child pornography. [See April 5th Affidavit, ¶¶ 10-12; April 8th Affidavit, ¶¶ 10-12.]

The agencies' undercover agents purchased a membership and visited several sites serviced by Regpay. Id. Between February and September 2003, the agents verified that at least 21 websites that were serviced by Regpay were still accessible, active and contained child pornography. Critically, the instant affiant admitted that the agents had no way of ascertaining the actual contents of each website on the various dates customers actually visited the websites in March, July and August 2003. [See April 5th Affidavit, ¶ 14; April 8th Affidavit, ¶ 14.] Yet, the agents were able to verify that, on the dates they visited the various sites, the sites contained child pornography, as defined by federal law. Id. The affidavits contain detailed explanations of the process used by federal agents to secure the computers and databases used by Regpay and Iserve, as well as how the agents retrieved member data from those databases subsequent to the seizure of the various suspect computer equipment. [See April 5th Affidavit, ¶¶ 10-23; April 8th Affidavit, ¶¶ 10-23.] Wagers does not contest the factual accuracy of the underlying investigation.

Importantly, as will be demonstrated herein, the affidavits clearly attest that "there is probable cause to believe that evidence, fruits, and instrumentalities of violations of federal law, as set forth [in the affidavit] will be located at the SUBJECT PREMISES." [See April 5th Affidavit ¶ 7; April 8th Affidavit, ¶ 7. See also AOL Affidavit, p. 6 (stating probable cause to believe that Wagers used his AOL account to receive child pornography.)] The financial records from both Regpay, or one of its associated companies like Iserve, and Mr. Wagers' credit/bank card companies, American Express and Visa/Bank One, obtained by subpoena, confirm purchases of subscriptions by Wagers to three (3) different websites that contain(ed) child pornography. [See April 5th Affidavit, ¶¶ 30-31, 36-41; April 8th Affidavit, ¶¶ 30-31, 36-41.] Records from Insight Communications, Wagers' internet broadband provider, also obtained by subpoena, confirm that three (3) websites containing child pornography were accessed from the IP address assigned by Insight to Mr. Wagers. [See April 5th Affidavit, ¶¶ 32-35; April 8th Affidavit, ¶¶ 32-35; AOL Affidavit, p. 4-6.] Further, the AOL user name purchased and used by Wagers, Spike20004u@aol.com, was paid for with the same Visa/Bank One check card used to pay for access to websites containing child pornography. [See April 5th Affidavit, ¶¶ 28-31; April 8th Affidavit, ¶¶ 28-31; AOL Affidavit, pp. 3-4.] That card is registered to Mr. Wagers.

Mr. Wagers' subscriptions to the three sites at issue apparently expired prior to the undercover agents accessing and viewing each subject website. [See DE # 30, pp, 2-3, 5-6.] Specifically, the agents viewed the "Red Lagoon" website 8 months after Mr. Wagers'...