United States v. Fisher
| Decision Date | 15 November 2017 |
| Docket Number | Case No. 2:17-cr-00073-APG-GWF |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JUSTIN ANTHONY FISHER, Defendant. |
| Court | U.S. District Court — District of Nevada |
This matter is before the Court on Defendant Justin Anthony Fisher's Motion to Suppress Evidence (ECF No. 41), filed on August 10, 2017. The Government filed a Response (ECF No. 47) on September 1, 2017. Defendant did not file a reply. On October 4, 2017, the Court conducted a hearing during which it heard oral argument by the parties' counsel. At the conclusion of the hearing, the Court stated that it was inclined to recommend that Defendant's motion be denied because the alleged misrepresentations or omissions in the search warrant affidavit were not material. Having considered this matter further, however, the Court has determined that Defendant has met the threshold showing for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674 (1978).
Defendant is charged in a six count criminal indictment filed on February 28, 2017 with sexual exploitation of children in violation of 18 U.S.C. § 2251(a) and (e); distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b); receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b); possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B); and coercion and enticement in violation of 18 U.S.C. § 2422(b). Indictment (ECF No. 15). These charges arise, in part, from the execution of a search warrant at Defendant's residence at 10432 Burkehaven Avenue, Las Vegas, Nevada on November 21, 2016. The search warrant was issued on November 16, 2016 and authorized the police to seize "[a]ny data evidence of visual depictions/representations (images and videos) that depict minors (real or animated) in an erotic, sensual or sexual manner." It further authorized the seizure of visual depictions that constitute child pornography as defined in 18 U.S.C. § 2256(8). Government's Response (ECF No. 47), Exhibit D, at pg. 117.1 Defendant challenges the validity of the search warrant on the grounds that the affidavit in support of its issuance contained intentional and/or reckless misrepresentations or omissions of material fact. Defendant argues that but for these misrepresentations or omissions, probable cause would not have existed to support issuance of the warrant. He therefore requests an evidentiary hearing to determine if the misrepresentations or omissions were intentionally or recklessly made. The Government argues that the affidavit does not contain misrepresentations or omissions of material fact, but to the extent the affidavit did omit relevant facts, the omissions are not material to a finding of probable cause. The Government therefore argues that Defendant is not entitled to an evidentiary hearing and his motion to suppress should be denied.
The affidavit in support of the November 16, 2016 search warrant was submitted by Detective Scott Miller of the Las Vegas Metropolitan Police Department. Detective Miller is/was a member of the Internet Crimes Against Children Task Force. Under the heading Synopsis, Detective Miller stated as follows:
Exhibit D, at pg. 107.
Under the heading Probable Cause Offering, Detective Miller further stated:
Detective Miller further stated that on May 28, 2016, an administrative subpoena was served on Cox Communications "for subscriber information for this IP address, 24.253.48.163 accessed on April 19, 2016, 09:36 hours EDT." Id. at pg. 108. On June 14, 2016, Cox Communication responded to the subpoena, stating that "IP address 24.253.48.163 resolves to Justin Fisher, Account #: 11011176-03, address of 10432 Burkehaven Avenue, Las Vegas, NV 89166 and telephone number of 702-569-xxxx." Id. at pg. 109. Detective Miller further stated that on July 1, 2016 a search warrant was served on Google, Inc. for all account information regarding email account: mcwarson@gmail.com, but that no return of further evidence of child exploitation was discovered. Id. at pg. 109. He further stated:
Detective Miller stated that in response to an administrative subpoena served on October 26, 2016, NV Energy stated that 10432 Burkehaven Avenue "resolved" to Justin Fisher. Id. at pg. 110. Based on the foregoing information, a Clark County, Nevada justice-of-the-peace issued the search warrant.
The following documents and items obtained by Detective Miller prior to his November 16, 2016 affidavit contain information relevant to the affidavit and to Defendant's argument that it contained misrepresentations or omissions of material fact:
On April 27, 2016, the National Center for Missing and Exploited Children ("NCMEC") received Cybertip Report #10001179 from Tumblr referencing a possible upload of 8 images/videos that contained apparent child pornography. Government's Response (ECF No. 47), Exhibit A. The Cybertip stated that the incident occurred on April 19, 2016 at 14:14:00 UTC. Id. at pg. 30. It identified the "User or Person Being Reported" as:
Under "Additional Information Submitted by Reporting ESP," the Cybertip Report stated:
A "Geo-Lookup" was automatically generated by the NCMEC system which found that IP address 50.118.198.24 resolved to San Francisco-Oakland-San Jose. Id. at pg. 33. Under Section C: "Additional Information Provided by NCMEC," the report discussed IP address 24.253.48.163, which was related to an additional Cybpertip #10033465 and which was owned by Cox Communications in Las Vegas, NV. Id. at pgs 34-36. Based on the information pertaining to IP address 24.253.48.163, NCMEC determined that the information in Cybertip #10001179 should be sent to "NV ICAC." (Nevada Internet Crimes Against Children Task Force).
NCMEC sent the Cybertip Report to the Las Vegas Metropolitan Police Department on May 26, 2016. On July 1, 2016, Detective Miller applied for and obtained a search warrant directed to the Custodian of Records for Tumblr. Government's Response (ECF No. 47), Exhibit B. The application/affidavit requested the following digital data:
The application/affidavit sought a variety of information related to the above account, including logs of Internet Protocol ("IP") address connections with dates, times, and time zones, and all content of electronic or wire communications held in the accounts, including all image files stored, received or distributed. Id. at pg. 60.
Tumblr responded to the search warrant by letter on September 16, 2016 and attached, as Exhibit A, the records responsive to the search warrant. Id. at pg. 74. The information provided in Exhibit A was for the blog account- "http://mcw.tumblr.com/" which was created on January 1, 2016; email address-"mcwarson@gmail.com;" and a secondary blog...
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