United States v. Deppish
| Decision Date | 31 January 2014 |
| Docket Number | Case No. 13–40070–01–JAR. |
| Citation | 994 F.Supp.2d 1211 |
| Parties | UNITED STATES of America, Plaintiff, v. Scott C. DEPPISH, Defendant. |
| Court | U.S. District Court — District of Kansas |
OPINION TEXT STARTS HERE
Christine E. Kenney, Richard L. Hathaway, Office of United States Attorney, Topeka, KS, for Plaintiff.
Kirk C. Redmond, Office of Federal Public Defender Kansas City, KS, Melody J. Evans, Office of Federal Public Defender, Topeka, KS, for Defendant.
This matter is before the Court on Defendant's Motion to Suppress Yahoo Email Search Warrant (Doc. 19) and Motion to Suppress Residential Search Warrant (Doc. 20). After an evidentiary hearing on December 11, 2013, The Court took these motions under advisement, giving the parties until December 20, 2013 to file supplemental briefs. Having reviewed the briefs, evidence, and arguments presented by the parties, the Court is now prepared to rule. As described more fully below, the Court denies Defendant's motions.
I. FactsA. YAHOO Search Warrant
Russian law enforcement officers found two photo albums on a Russian image board site, www. imgsrc. ru (“IMGSRC”) that is popular for trading child pornography. The website allows users to upload photos and post comments to their own and other users' photo albums. The two albums were under the username “dirtyoldman 71,” which was registered to Defendant's email address, pigbreeder 1971@ yahoo. com. One of the albums, titled “stepdaughter nude closeup some preg,” contained photographs of a nude pregnant woman who was later identified as Defendant's stepdaughter. This album did not contain child pornography, but the second album, titled “9 yo granddaughter sleeping,” contained four images of a girl sleeping in a bed. Although “dirtyoldman71” had uploaded some password-protected albums to the site, the second album, which was listed in the “kids” section, was not password-protected.
On July 25, 2012, Homeland Security Investigations Cyber Crime Center received a child exploitation referral from Russian officials regarding the images posted in the albums of “dirtyoldman71.” 1 Agent James Kanatzar of the Department of Homeland Security conducted the investigation into those images. Agent Kanatzar testified that he has specialized training in child pornography investigations and has investigated over 100 child pornography cases. According to Kanatzar, the comments posted by other IMGSRC users to the images in the second album of “dirtyoldman71” were indicative of these users sexual interest in the images. For example, the posted comments included, and “gently pull her hair away from her face, climb in her bed and slovly [ sic ] jer*k my coc*k until I cu*m over her face while she sleeps.” 3 Several users also posted comments asking “dirtyoldman71” to trade pictures and passwords via email.4 Although the YAHOO email account linked to “dirtyoldman71” was not published on the IMGSRC site, IMGSRC users could click on a hyperlink that linked the YAHOO account to messages sent to the IMGSRC account.
Agent Kanatzar reviewed the images in the second album, which was titled, “9 y/o granddaughter sleeping.” 5 The images depict a young girl of about nine or ten years of age. The girl's face is not visible. The girl is wearing a t-shirt and panties. The bed sheets cover the girl's legs up to her knees and one of her hands is between her legs. The image angle is from the foot of the bed and the focus of the camera is on the girl's genital area. The other two images depict the same girl asleep in a bed. Her face is not visible because her back is turned to the camera. A sheet covers about midway up the girl's bare back.
Kanatzar requested subscriber information from the communication provider for the “dirtyoldman1971” account.6 The communication provider, using specific access dates and times, identified Defendant as the subscriber to the IP address that was used to upload the photos to the “dirtyoldman71” account.7
Kanatzar testified that he believed that these images met the definition of child pornography under federal law because: (1) the photos focused on the girl's genitals; (2) the images were not appropriate for display in a picture frame; (3) the images were posted to a website commonly used to trade child pornography; (4) comments by other users asked for passwords to his locked albums and asked to trade pornographic photos; and (5) the album title signaled that the child was underage, which was a common way to title images by child pornographers.
Agent Kanatzar prepared an affidavit and application in support of a search warrant on the “pigbreeder1971” YAHOO email account.8 Kanatzar testified that at the time he prepared the affidavit, he believed that crimes of child pornography had occurred and that evidence of those crimes would be found in the content of the YAHOO email account. He also testified that he believed the search warrant was valid upon receiving the judge's approval.
In the affidavits, Kanatzar did not include a statutory definition of child pornography but he cited the statutory provision that defines child pornography under federal law.9 Attachment B to the affidavit described the information to be disclosed, all contents of the “pigbreeder1971” YAHOO account.10 And, Attachment B also described the information to be seized,11 information concerning activities and identification of any individuals related to crimes of sexual exploitation of minors pursuant to 18 U.S.C. § 2252.12 Kanatzar explained that the application for search warrant did not temporally limit disclosure of the contents of the YAHOO email account to particular dates or a date range, because YAHOO cannot control what a user deletes from his email account, and YAHOO is one of several email providers that does not keep deleted emails in its server. Kanatzar further testified that while the magistrate judge who signed the warrants did not see the images at issue, Kanatzar would have provided the images to the judge upon request.
In response to the search warrant, YAHOO disclosed 1028 emails from the “pigbreeder1971” account.13 These emails were dated January 19 to December 5, 2012. Agent Kanatzar did not open all 1028 emails; he performed a filtered, keyword search which revealed that only 84 of the email messages pertained to IMGSRC. Kanatzar limited the search to those 84 emails. The majority of the 84 emails were from users requesting the password to the first album that did not contain the images of the child. Six of the 84 emails were from users supplying “dirtyoldman71” with passwords to other users' albums. Kanatzar did not locate any child pornography in these email messages.
B. Interview of Defendant
Once Agent Kanatzar failed to locate any child pornography in the YAHOO email account of “dirtyoldman71,” he visited Defendant's home to interview him. At Kanatzar's request, Detective Corey Odell of the Junction City Police Department assisted him with the interview. Det. Odell also specialized in investigations of online crimes of sexual exploitation of children. Agent Kanatzar and Det. Odell had not met prior to this investigation. And, Agent Kanatzar did not inform Det. Odell that Kanatzar had executed a search warrant on Defendant's YAHOO email account that did not yield any child pornography.
On February 5, 2013, Agent Kanatzar and Det. Odell interviewed Defendant. Det. Odell testified that Defendant appeared very nervous. Defendant denied downloading any child pornography, denied taking photographs of his granddaughter sleeping, denied posting on the internet any images of his grandchildren, and denied any knowledge of or control over the “pigbreeder1971” YAHOO email account or the “dirtyoldman71” IMGSRC account. Defendant admitted that he used the internet to look for pornography, and admitted that he had viewed photos of a nudist colony, which included young children and admitted that he had accessed the IMGSRC site. But when Kanatzar and Odell asked if he had ever viewed child pornography, Defendant asked them questions about the definition of child pornography. When shown one of the images from the “9 y/o granddaughter sleeping” album, Defendant admitted that the child depicted in the photograph looked like his granddaughter. Defendant declined to allow agents to search his computer.
After the interview concluded, Det. Odell told Agent Kanatzar that he intended to conduct additional interviews in connection with this investigation, but Odell never told Kanatzar that he intended to apply for a warrant to search Defendant's residence.
C. Residential Search Warrant
Later, Det. Odell interviewed Defendant's stepdaughter, who identified her daughter as the child depicted in the photographs posted by “dirtyoldman71.” The stepdaughter also stated that she believed the photos were taken in Defendant's attic.
Det. Odell then completed an affidavit in support of an application for a search warrant on Defendant's residence.14 Odell testified that when he applied for the residential search warrant, he believed crimes involving sexual exploitation of a child had occurred and evidence of those crimes would be found on Defendant's computer. Odell provided the judge copies of the images from IMGSRC album, “9 y/o granddaughter sleeping.” The judge authorized Det. Odell's search warrant, leading Odell to believe that the search warrant was valid. Officers executed the residential search warrant 15 and seized Defendant's desktop computer, two hard drives, two USB external drives and numerous disks.16
II. Discussion
Defendant moves to suppress both the YAHOO search warrant and the residential search warrant for lack of probable cause, inapplicability of the good faith exception, and with respect to the YAHOO search warrant, lack of particularity. Defendantalso argues that he is entitled to a Franks v. Delaware17 hearing.
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