United States v. Christy

• Court: U.S. District Court — District of New Mexico
• Decision Date: 14 March 2012
• Docket Number: No. CR 10-1534 JB,CR 10-1534 JB
• Citation: United States v. Christy, No. CR 10-1534 JB (D. N.M. Mar 14, 2012)
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. EDWARD CHRISTY, Defendant.

UNITED STATES OF AMERICA, Plaintiff, v. EDWARD CHRISTY, Defendant.

No. CR 10-1534 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

Date: March 14, 2012

AMENDED MEMORANDUM OPINION AND ORDER¹

THIS MATTER comes before the Court on (i) the Defendant's Motion to Suppress Evidence and Statements, filed February 14, 2011 (Doc. 41); and (ii) the United States' Motion to Strike Defendant Edward Christy's Motion to Suppress Evidence and Statements (Doc. 41), filed February 14, 2011 (Doc. 45). The Court held a hearing on April 21, 2011 and on April 22, 2011. The primary issues are: (i) whether the Court should strike Defendant Edward Christy's motion to suppress because it is untimely; and (ii) whether the Court should suppress all evidence seized in Christy's home as well as statements that Christy allegedly made, because the police entered Christy's home without a warrant and not pursuant to the exigent-circumstances exception to the warrant requirement. The Court will not strike Christy's motion to suppress, because it finds that the motion was timely. The Court finds that the deputies' actions of walking around the corner of Christy's house, peering through a crack in the window shades, and entering Christy's house werenot justified by exigent circumstances. Plaintiff United States of America has not met its burden of proving that the exigency exception applies, because the deputies did not have an objectively reasonable basis to believe that there was an immediate need to protect the safety of the sixteen year-old girl who was in Christy's residence. The Court will suppress Christy's statements to Detective Weylin Proctor as fruit of the illegal searches. The Court will also suppress the evidence that the deputies found when they executed their search warrants for Christy's residence, vehicle, person, and the warrant for Christy's and the sixteen year-old girl's cellular telephones, because, excluding the illegally obtained information, the remaining information in the warrants is not sufficient to establish probable cause.

FACTUAL BACKGROUND

Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed. R. Crim. P. 12(d)("When factual issues are involved in deciding a [pretrial] motion, the court must state its essential findings on the record."). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for purposes of rule 12(d). The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure and the voluntariness of an individual's confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982), cert. denied, 461 U.S. 916 (1983). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed. R. Evid. 104(a). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Garcia, 324 F. App'x 705 (10th Cir.)("Weneed not resolve whether Crawford's² protection of an accused's Sixth Amendment confrontation right applies to suppression hearings, because even if we were to assume this protection does apply, we would conclude that the district court's error cannot be adjudged 'plain.'"), cert. denied, 130 S. Ct. 223 (2009); United States v. Merritt, 695 F.2d at 1269.

1. On November 8, 2009, a man made a report regarding a missing juvenile (hereinafter "K.Y.") -- his daughter to the Westminster Police Department in Westminster, California. See Transcript of Hearing at 64:8-17 (taken April 21, 2011)(Rees, Carvo)("Apr. 21, 2011 Tr.").³

2. The report stated that K.Y's parents saw her the night before, on November 7, 2009, and that when they woke up on November 8, 2009, they found a note from her saying that she had run away and that she would contact them later. See Apr. 21, 2011 Tr. at 64:18-24 (Rees, Carvo).

3. The report stated that K.Y. had previously run away, had previously attempted suicide, and that K.Y.'s father believed that she was going to see or was running away with a boyfriend, who lived in Orange County, California. See Apr. 21, 2011 Tr. at 64:25-65:5 (Rees, Carvo).

4. The report also stated that K.Y.'s father had returned to the Westminster Police Department on the afternoon of November 8, 2009, after he spoke with one of K.Y.'s friends, and found out that K.Y. had been in contact with an adult male on the internet. See Apr. 21, 2011 Tr. at 65:24-66:3 (Rees, Carvo).

5. K.Y.'s father had gained access to K.Y.'s Yahoo! internet electronic mail account and found an exchange of electronic mail transmissions between K.Y. and an unknown person,which contained sexually explicit conversations and photographs. See Apr. 21, 2011 Tr. at 66:5-16 (Rees, Carvo).

6. K.Y. was sixteen-years old at the time. See id. at 65:6-7 (Rees, Carvo).

7. Task Force Officers Paul Carvo and Claudia Fletes -- who are both members of the Federal Bureau of Investigation ("FBI") Sexual Assault Felony Enforcement Team -- conducted the investigation of K.Y.'s disappearance. See Apr. 21, 2011 Tr. at 67:3-9 (Rees, Carvo).

8. Carvo obtained K.Y.'s cellular telephone number and electronic mail address, and used both exigent-circumstance documents⁴ and administrative subpoenas to get records for her cellular telephone and electronic mail address. See Apr. 21, 2011 Tr. at 68:15-20 (Carvo).

9. The investigators obtained K.Y.'s telephone records and learned that three telephone calls, which were made close in time to when K.Y. was last seen, were received from a telephone number with a 505 area code. See Apr. 21, 2011 Tr. at 69:4-10, 72:3-18 (Rees, Carvo); Verizon Wireless Emergency Information Request at 1 (Government's Exhibit E).

10. Carvo used database searches on the area code and prefix of the telephone number to determine to what geographic area the 505 telephone number belonged and determined that the telephone number traced to Albuquerque, New Mexico. See Apr. 21, 2011 Tr. at 72:24-73:7 (Rees, Carvo).

11. The 505 telephone number's subscriber was T-Mobile, and Carvo sent a Request for Immediate Disclosure of Subscriber Information to T-Mobile. See Apr. 21, 2011 Tr. at 75:10-22 (Rees, Carvo).

12. T-Mobile sent the name, birth date, social security number, address, and telephone number of the account's owner. See Apr. 21, 2011 Tr. at 77:8-9 (Carvo).

13. The account owner's address was 2265 Kelly Road SW in Albuquerque and the account owner's name was Edward S. Christy. See id. at 77:8-14 (Rees, Carvo); Facsimile Transmission from Ron Witt to Investigator Wade Walsvick at 1 (dated November 9, 2009)(Government's Exhibit G)("T-Mobile Fax").

14. The investigators also received cellular telephone tower information -- information regarding which cellular telephone towers Christy's cellular telephone accessed when it made or received calls. See Apr. 21, 2011 Tr. at 77:15-22 (Rees, Carvo).

15. On November 7, 2009, at 9:25 p.m., Pacific time, Christy's cellular telephone made a telephone call to K.Y.'s cellular telephone number and accessed a cellular telephone tower in Needles, California. See Apr. 21, 2011 Tr. at 77:23-78:1 (Rees, Carvo); T-Mobile Fax at 3.

16. On November 8, 2009, at 1:45 a.m., Pacific time, Christy's cellular telephone made a telephone call to K.Y.'s cellular telephone number and accessed a cellular telephone tower called North Coast California, which includes the city of Westminster -- an area close to K.Y.'s residence. See Apr. 21, 2011 Tr. at 78:1-12 (Carvo); T-Mobile Fax at 3.

17. On November 8, 2009, Christy's cellular telephone received a call at 4:03 p.m. and accessed a cellular tower in Holbrook, Arizona. See Apr. 21, 2011 Tr. at 78:13-16 (Rees, Carvo); T-Mobile Fax at 3.

18. On November 9, 2009, at 7:51 a.m., Christy's cellular telephone called a 505 number and accessed a cellular telephone tower in Albuquerque, New Mexico. See Apr. 21, 2011 Tr. at 78:17-19 (Carvo); T-Mobile Fax at 3.

19. Based on this information, the investigators believed that Christy likely picked upK.Y. and took her to Albuquerque. See Apr. 21, 2011 Tr. at 79:2-4 (Rees, Carvo).

20. The investigators also sought information regarding K.Y.'s electronic mail account -- madamepineapple@yahoo.com -- and the electronic mail account of the person with whom she had been communicating -- b553n2@yahoo.com. See Apr. 21, 2011 Tr. at 79:5-7 (Rees, Carvo).

21. Carvo served an administrative subpoena and a Yahoo! Emergency Disclosure Request Form on Yahoo! seeking information regarding registration information, and current Internet Protocol ("IP")⁵ history and payment information for b553n2@ayahoo.com and for madamepineapple@yahoo.com. See Apr. 21, 2011 Tr. at 79:5-80:13 (Rees, Carvo); U.S. Department of Justice/Federal Bureau of Investigation Subpoena (dated November 9, 2009)(Government's Exhibit A); Yahoo! Emergency Disclosure Request Form (dated November 9, 2009)(Government's Exhibit A).

22. Yahoo! provided the user names that madamepineapple@yahoo.com and b553n2@ayahoo.com gave when they set up their Yahoo! electronic mail accounts and the recent IP addresses associated with the computers from which the users accessed their electronic mail accounts. See Apr. 21, 2011 Tr. at 81:24-82:2 (Carvo); Facsimile Message from Julia Albert to Investigator Paul Carvo (dated November 9, 2009)(Government's Exhibit B).

23. Carvo ran the IP address that b553n2@ayahoo.com used through the American registry of internet numbers to see which internet service provider owned that IP address. See Apr. 21, 2011 Tr. at 84:12-19 (Rees, Carvo).

24. The IP address came back to Comcast. See Apr. 21, 2011 Tr. at 84:12-19 (Rees, Carvo).

25. The investigators submitted an emergency disclosure...