On February 23, 2012, an Indictment was returned against defendant Dana Gleaves charging him with sexual exploitation of a child, in violation of 18 U.S.C. §§ 2251(a) and 2251(e). On April 9, 2012, Gleaves filed a Motion to Suppress in which he seeks to suppress evidence seized during searches of his residence and business conducted pursuant to a search warrant. Gleaves argues that the search warrant application was not supported by probable cause. Specifically, he asserts that there was "insufficient evidence presented to the issuing state judge to establish the requisite nexus between Defendant's residence and any crime involving child pornography." Defendant's Br. at 3. Thus, Gleaves argues the evidence was obtained in violation of the Fourth Amendment of the United States Constitution and must be suppressed. Gleaves also argues that suppression of the evidence is appropriate because the Leon good-faith exception is inapplicable. See United States v. Leon, 468 U.S. 897, 922-23 (1984). Specifically, he contends that the affidavit in support of the search warrant is so lacking in indicia of probable cause "as to render official belief in its existence entirely unreasonable." Id. at 923.
Gleaves's Motion to Suppress was referred to United States Magistrate Judge Jon Stuart Scoles, pursuant to 28 U.S.C. § 636(b). On April 24, 2012, Judge Scoles conducted an evidentiary hearing at which the prosecution presented the testimony of Sioux City Police Officer Troy Hansen. On April 27, 2012, Judge Scoles filed a Report and Recommendation in which he recommends that Gleaves's Motion to Suppress be denied.
In his Report and Recommendation, Judge Scoles found that Gleaves's Motion to Suppress was not timely filed. Judge Scoles does not recommend denying the motion on that ground because to do so could invite a later claim for ineffective assistance of counsel.Judge Scoles also concluded that the search warrant was supported by probable cause and not overbroad. Judge Scoles further concluded that, even if probable cause did not support the search warrant, suppression of the evidence seized is not appropriate because the Leon good-faith exception applies. Therefore, Judge Scoles recommends that Gleaves's Motion to Suppress be denied.
Gleaves has filed objections to Judge Scoles's Report and Recommendation. The prosecution has not filed a response to Gleaves's objections. I, therefore, undertake the necessary review of Judge Scoles's recommended disposition of Gleaves's Motion to Suppress.
In his Report and Recommendation, Judge Scoles made the following factual findings concerning the initial investigation:
Detective Troy Hansen of the Sioux City Police Department testified that on June 24, 2011, the Iowa Department of Human Services ("DHS") received a report of possible sexual abuse of a juvenile male with the initials J. P. According to Hansen, Heidi Roberts of the DHS told Officer Karl Bonowski that she had received an anonymous phone call stating that J .P. was sending nude photos of himself to Dana Gleaves, at Gleaves' request, using J.P.'s cell phone. The anonymous caller said J.P. was "possibly an eighth grader"and Gleaves was a baseball coach. Pursuant to DHS policy, the caller was not identified, but her phone number was provided to Bonowski. In his report, Bonowski noted Defendant's date of birth and J.P.'s date of birth.
Detective Hansen was assigned to the case on June 28. After reading Officer Bonowski's report, Hansen called the phone number provided by the DHS and spoke with anunidentified female. The anonymous informant provided the same information which was previously given to the DHS. The person told Hansen that she got the information from her daughter, who got it from a friend in the neighborhood, and that "at some point it came from J.P." Hansen then went to J.P.'s residence. No one was home and Hansen left his card. Hansen also called and left a message. In a phone conversation with one of J.P.'s parents later that day, it was agreed that J.P. and his parents would meet with Hansen at the police station on the following morning.
At approximately 8:00a.m. on June 29, J.P.'s parents brought J.P. to the Sioux City Police Department, where he was interviewed by Detective Hansen. In addition to the information included by Hansen in an application for a search warrant prepared later that day (discussed below), J.P. told Hansen that Defendant had coached him in baseball and football. J.P. stated that Defendant had touched J.P.'s penis and photographed it approximately 20 times, but that Defendant had never asked J.P. to touch Defendant's "private parts." The last nude photo which J.P. sent to Defendant was on June 28 at approximately 5:15 p.m. J.P. told Hansen during the interview that he was 15 years old.
Report and Recommendation at 2-3 (footnotes omitted).
Judge Scoles also made the following findings concerning the search warrant in question:
Following the interview with J.P. on June 29, 2011, Detective Hansen prepared an application for a search warrant. The application sought court authority to search "the person of Dana Gleaves" and his residence on Alice Street in Sioux City for a computer, cell phone, and other electronic storage devices. The "officer's attachment" to the application included the following allegations:
1. On June 24, 2011, an unknown individual called the Department of Human Services to report possible Sexual Abuse of a juvenile male named J.P.
2. The caller stated that J.P.'s baseball coach, Dana Gleaves, has been asking for and receiving nude photographs of J.P.
3. On June 28, Detective Hansen (the affiant) was assigned to the case.
4. On June 28, Hansen contacted J.P.'s mother and it was decided that J.P.'s parents would bring J .P. to the Sioux City Police Department on the following day to be interviewed regarding the information.
5. On June 29 at approximately 8:00a.m., Hansen met with J.P. and his parents in an interview room.
6. During the interview, J.P. stated that he has known Defendant for approximately three years, and that Defendant coaches J.P.'s baseball team. According to J.P., Defendant coaches baseball, football, and basketball.
7. J.P. stated that approximately one year earlier Defendant approached J.P. and asked for a nude photograph of J.P.
8. J.P. stated that during the last year, Defendant has asked J.P. for nude photographs on at least 60 occasions.
9. J.P. stated that during the first incident, Defendant offered J.P. a remote controlled car in exchange for the nude photograph.
10. J.P. stated that he had received several gifts from Defendant in exchange for nude photographs, including a remote controlled car, a remote controlled helicopter, and several plastic model cars.
11. J.P. stated that he had used his own cellular phone to take nude pictures of himself for Defendant and send them to Defendant's cell phone (identifying Defendant's cell phone number).
12. J.P. stated that Defendant had used Defendant's cell phone to take nude pictures of J.P. while at Defendant's residence on Alice Street in Sioux City.
13. J.P. stated that Defendant had also video recorded J.P. masturbating.
14. J.P. stated that Defendant told J.P. that Defendant needed the photographs so that he could send them to Defendant's girlfriend.
15. J.P. stated that Defendant said that his girlfriend gave him money for the photographs, which Defendant used to buy J .P. gifts.
16. J.P. stated that on a couple of occasions, J.P. refused to provide Defendant with photographs and Defendant got "pissed off." On those occasions, Defendant told J.P. that Defendant could not get any money, so he could not buy J.P. gifts.
17. J.P. stated that Defendant had touched J.P.'s penis on numerous occasions. Defendant would tell J .P. that Defendant's girlfriend wanted specific pictures, which is why Defendant would photograph J.P.'s penis while Defendant was holding it.
18. J.P. stated that Defendant has a laptop computer at his residence.
19. J.P. stated that Defendant used the computer to show J.P. pornography in the past. According to J .P., Defendant was viewing "regular pornography" and showed it to J.P.
Also attached to the search warrant application was an "Informant's Attachment." J.P. is identified by name in the informant's attachment. He is described as "a student in good standing," and "a person of truthful reputation," with "no motive to falsify the information." The informant's attachment asserts that J .P. "has not given false information in the past," and that the information supplied by J.P. was corroborated by law enforcement as follows: "[J.P.] described Gleaves as having a Droid cell phone and living on South Alice St, Gleaves was stopped on June 29, 2011 leaving the residence on South Alice and was found in possession of a Droid cell phone."
At the time of hearing, Detective Hansen explained that while he was preparing the search warrant application, he sent two "plain clothes" detectives to watch Defendant's house. After seeing Defendant leave his residence, they conducted a traffic stop. Defendant then agreed to accompany the officers to the
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