United States v. Christy, No. CR 10–1534 JB.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtJAMES O. BROWNING
Citation810 F.Supp.2d 1219
PartiesUNITED STATES of America, Plaintiff, v. Edward CHRISTY, Defendant.
Docket NumberNo. CR 10–1534 JB.
Decision Date02 September 2011

810 F.Supp.2d 1219

UNITED STATES of America, Plaintiff,
v.
Edward CHRISTY, Defendant.

No. CR 10–1534 JB.

United States District Court, D. New Mexico.

Sept. 2, 2011.


[810 F.Supp.2d 1222]

Kenneth J. Gonzales, United States Attorney, Charlyn E. Rees, Holland S. Kastrin, Assistant United States Attorneys, Albuquerque, NM, for Plaintiff.

Lee P. McMillian, Law Offices of Lee McMillian, P.C., South Houston, Texas, for Defendant.

MEMORANDUM OPINION AND ORDER
JAMES O. BROWNING, District Judge.

THIS MATTER comes before the Court on the United States' Motion to Reconsider Suppression Order (Doc. 127) and Reopen the Suppression Hearing, filed June 9, 2011 (Doc. 133)(“Motion to Reconsider”). The Court held a hearing on July 8, 2011, an evidentiary hearing on August 3, 2011, and a hearing on August 4, 2011. The primary issues are: (i) whether the Court should reopen the suppression hearing; (ii) whether the Court should reconsider its Amended Memorandum Opinion and Order, filed May 25, 2011 (Doc. 127), because, at the suppression hearing, the United States mistakenly conceded that, when Deputy David Littlefield looked through a crack in the blinds covering Christy's residential window, it was clearly a search that required an exception to the warrant requirement; (iii) whether the Court should reconsider its Amended Memorandum Opinion and Order in light of the collective-knowledge

[810 F.Supp.2d 1223]

doctrine; (iv) whether the Court should reconsider its Amended Memorandum Opinion and Order, because the Bernalillo County Sheriff's Office (“BCSO”) deputies would have inevitably discovered the same evidence through lawful means, because they would have entered Christy's residence pursuant to exigent circumstances upon learning that the minor girl—K.Y.—was suicidal, depressed, and off her medication; and (v) whether the Court should reconsider its Amended Memorandum Opinion and Order, because law enforcement officers would have obtained search warrants and discovered the evidence. The Court will grant in part and deny in part the United States' motion. The Court reopened the suppression hearing and took more evidence from the parties. The Court finds that the United States did not mistakenly concede that, when Littlefield looked through a crack in the blinds, it was a search, and finds that Littlefield conducted an unconstitutional search by looking in the crack in the blinds. That there has been an unconstitutional search does not end the inquiry; there is a distinction between the Fourth Amendment of the United States Constitution analysis of search and seizure and the suppression rule. They are distinct concepts. The Court will apply the collective-knowledge doctrine to its analysis of exigent circumstances and probable cause. The Court finds that exigent circumstances would not have justified the deputies' entry into Christy's residence. The Court thus continues to conclude that the warrantless entry into and search of Christy's residence was unconstitutional. Nevertheless, the Court will apply the inevitable discovery doctrine, an exception to the suppression rule, and even though the entry and search were unconstitutional, not suppress the evidence, because, after a consideration of the relevant factors, the Court finds that Orange County Investigator Paul Carvo would inevitably have obtained search warrants and discovered the evidence the Court suppressed, despite the unconstitutional entry and search.

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, 103 S.Ct. 1898, 77 L.Ed.2d 286 (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 Fed.Appx. 705 (10th Cir.2009)(“We need not resolve whether Crawford's1 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,

[810 F.Supp.2d 1224]

––– U.S. ––––, 130 S.Ct. 223, 175 L.Ed.2d 154 (2009); United States v. Merritt, 695 F.2d at 1269. The Court incorporates its factual findings set forth in the Court's Amended Memorandum Opinion and Order, filed May 25, 2011 (Doc. 127).

1. Claudia McCarthy.

1. McCarthy, formerly Claudia Fletes, is a police officer for the City of Westminster. See Transcript of Hearing at 42:14–24 (taken August 3, 2011) (Kastrin, McCarthy)(“Aug. 3, 2011 Tr.”).

2. McCarthy is assigned to a detective bureau that works crimes against children and domestic violence. See Aug. 3, 2011 Tr. at 43:2–5 (Kastrin, McCarthy).

3. McCarthy is a member of the safe team task force, in which local agencies work with the Federal Bureau of Investigation (“FBI”) on cases where children are victims of crimes that are sexual in nature. See Aug. 3, 2011 Tr. at 43:9–12 (Kastrin, McCarthy).

4. On November 8, 2009, the father of a missing juvenile (hereinafter “K.Y.”) reported K.Y. missing to a Westminster Police desk officer. See Aug. 3, 2011 Tr. at 45:5–9 (McCarthy).

5. Initially, the investigators had no information suggesting that K.Y. traveled with an adult male to another state. See Aug. 3, 2011 Tr. at 45:10–13 (Kastrin, McCarthy).

6. On November 9, 2009, however, K.Y.'s father went to the Westminster police station and provided the desk officer with two photographs of an adult male, which he had found in K.Y.'s Yahoo! account. See Aug. 3, 2011 Tr. at 45:21–24 (McCarthy).

7. The adult male was completely nude in both photographs. See Aug. 3, 2011 Tr. at 45:25–46:5 (Kastrin, McCarthy).

8. K.Y.'s mother emailed the Westminster desk officer a user name for the website agematch.com,2 which she believed was associated with the person who sent the photographs to K.Y. See Aug. 3, 2011 Tr. at 46:7–11 (McCarthy).

9. McCarthy ran a Google search on the user name and came across another profile associated with consensual.com. See Aug. 3, 2011 Tr. at 46:17–19 (McCarthy).

10. To view the profile on consensual.com, McCarthy had to create a fictitious account; once McCarthy created a fictitious account and logged on, she was able to view a few photographs of the person's profile. See Aug. 3, 2011 Tr. at 46:20–25 (Kastrin, McCarthy).

11. The photographs were of an adult male whose appearance matched the male in the nude photographs K.Y.'s father brought to the police station. See Aug. 3, 2011 Tr. at 46:25–47:3 (McCarthy).

12. The photographs of the adult male did not show any simulated sexual activity. See Aug. 3, 2011 Tr. at 58:21–25 (McMillian, McCarthy).

13. Based on McCarthy's experience and training, McCarthy thought that the adult male was looking for a sexual relationship with K.Y., because K.Y. was missing and had nude photographs of an adult male man who used agematch.com and consensual.com. See Aug. 3, 2011 Tr. at 47:13–48:2 (Kastrin, McCarthy).

14. K.Y.'s father informed the investigators that he noticed two incoming calls from an unknown number on his daughter's

[810 F.Supp.2d 1225]

cellular telephone records. See Aug. 3, 2011 Tr. at 47:18–21 (McCarthy).

15. K.Y.'s father also showed the investigators photographs that K.Y. had sent to the person with whom she was communicating, one of which depicted K.Y. from her chest up with her breasts exposed. See Aug. 3, 2011 Tr. at 48:6–10 (McCarthy).

16. K.Y. was not simulating sexual activity in the photographs. See Aug. 3, 2011 Tr. at 58:12–19 (McMillian, McCarthy).

17. McCarthy does not know whether the electronic mail transmission exchange between K.Y. and Christy predated the photographs, or whether Christy solicited the photographs. See Aug. 3, 2011 Tr. at 58:18–19 (McMillian, McCarthy).

18. Based on McCarthy's experience and training in crimes against children, she believed that the adult male “was seeking for [K.Y.] to send those photos for his sexual pleasure and to continue a sexual romantic relationship.” Aug. 3, 2011 Tr. at 63:22–64:7 (Kastrin, McCarthy).

19. McCarthy contacted Carvo, an investigator for the Orange County District Attorney's Office, to let him know that she was investigating a missing juvenile whom she believed left the state with an adult male; McCarthy gave—to Carvo—K.Y.'s electronic mail address, her telephone number, and the electronic mail address that was used to send nude photographs of the adult male and to create an account on agematch.com. See Aug. 3, 2011 Tr. at 48:18–49:10 (Kastrin, McCarthy).

20. McCarthy gave Carvo this information because, at the time, he was working at the FBI office, and could obtain information regarding the internet protocol (“IP”) addresses associated with the electronic mail transmissions and regarding K.Y.'s cellular telephone records. See Aug. 3, 2011 Tr. at 49:11–15 (Kastrin, McCarthy).

21. On November 9, 2009, McCarthy and Detective McCormick conducted an interview with K.Y.'s parents; during the interview, K.Y.'s mother told the detectives that K.Y. was diagnosed with depression; that K.Y. had attempted suicide on several occasions, the...

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41 practice notes
  • United States v. Harmon, No. CR 10–1760 JB.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 10, 2012
    ...TO RECONSIDER “The Federal Rules of Criminal Procedure do not expressly recognize a motion to reconsider.” United States v. Christy, 810 F.Supp.2d 1219, 1249 (D.N.M.2011) (Browning, J.). Accord United States v. Rollins, 607 F.3d 500, 502 (7th Cir.2010) (“None of the Rules of Criminal Proced......
  • Reid v. Pautler, No. CIV 13-0337 JB/KBM
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 31, 2014
    ...steps taken by the resident to protect the area from observation by people passing by.480 U.S. at 301. See United States v. Christy, 810 F. Supp. 2d 1219, 1252-57 (D.N.M. 2011)(Browning, J.)(analyzing the United States v. Dunn factors to determine if a driveway, where an officer was standin......
  • United States v. Ramos, No. CR 15-3940 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 11, 2016
    ...1103 (D.N.M.2015) (Browning, J.)("Thus, the Court may consider hearsay in ruling on a motion to suppress."); United States v. Christy, 810 F.Supp.2d 1219, 1224 (D.N.M.2011) (Browning, J.)(concluding the that the Court "may consider hearsay in ruling on a motion to suppress"). The Court has ......
  • United States v. Lara-Mejia, Criminal No. 3:18-CR-18
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • August 28, 2020
    ...the gap in the curtains constituted a search for Fourth Amendment purposes. (See Doc. 96 at 15 (citing United States v. Christy , 810 F. Supp. 2d 1219 (D.N.M. 2011) ).) An argument made for the first time in a reply brief is waived. See, e.g., Loving v. FedEx Freight, Inc. , Civ. A. No. 3:1......
  • Request a trial to view additional results
41 cases
  • United States v. Harmon, No. CR 10–1760 JB.
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • May 10, 2012
    ...TO RECONSIDER “The Federal Rules of Criminal Procedure do not expressly recognize a motion to reconsider.” United States v. Christy, 810 F.Supp.2d 1219, 1249 (D.N.M.2011) (Browning, J.). Accord United States v. Rollins, 607 F.3d 500, 502 (7th Cir.2010) (“None of the Rules of Criminal Proced......
  • Reid v. Pautler, No. CIV 13-0337 JB/KBM
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 31, 2014
    ...steps taken by the resident to protect the area from observation by people passing by.480 U.S. at 301. See United States v. Christy, 810 F. Supp. 2d 1219, 1252-57 (D.N.M. 2011)(Browning, J.)(analyzing the United States v. Dunn factors to determine if a driveway, where an officer was standin......
  • United States v. Ramos, No. CR 15-3940 JB
    • United States
    • United States District Courts. 10th Circuit. District of New Mexico
    • July 11, 2016
    ...1103 (D.N.M.2015) (Browning, J.)("Thus, the Court may consider hearsay in ruling on a motion to suppress."); United States v. Christy, 810 F.Supp.2d 1219, 1224 (D.N.M.2011) (Browning, J.)(concluding the that the Court "may consider hearsay in ruling on a motion to suppress"). The Court has ......
  • United States v. Lara-Mejia, Criminal No. 3:18-CR-18
    • United States
    • U.S. District Court — Middle District of Pennsylvania
    • August 28, 2020
    ...the gap in the curtains constituted a search for Fourth Amendment purposes. (See Doc. 96 at 15 (citing United States v. Christy , 810 F. Supp. 2d 1219 (D.N.M. 2011) ).) An argument made for the first time in a reply brief is waived. See, e.g., Loving v. FedEx Freight, Inc. , Civ. A. No. 3:1......
  • Request a trial to view additional results

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