United States v. Hernandez
| Decision Date | 16 June 2020 |
| Docket Number | 19 CR 0097 (VM) |
| Parties | UNITED STATES OF AMERICA, v. ABRAHAM HERNANDEZ, Defendant. |
| Court | U.S. District Court — Southern District of New York |
DECISION AND ORDER
Defendant Abraham Hernandez ("Hernandez") is charged with one count of possession of child pornography, in violation of 18 U.S.C. Sections 2252A(a)(5)(B) and (b)(2). Hernandez now moves, pursuant to the Fourth Amendment and Rule 12 of the Federal Rules of Criminal Procedure, for an order suppressing certain evidence (the "Motion," Dkt. No. 14). Specifically, Hernandez challenges: (1) police officers' initial warrantless entry into his apartment on November 7, 2018, the ensuing search and securing of his apartment, and all evidence that is the fruit of those actions; (2) the warrantless search of Hernandez's Kik1 account information, and (3) a later federal search warrant (the "Warrant") and all evidence stemming from the Warrant. (See "Memorandum," Dkt. No. 15.)
After receiving the Government's memorandum in opposition to the Motion on June 10, 2019 ("Opposition,"Dkt. No. 17), the Court held oral argument on the Motion on September 6, 2019. At the Court's instruction, oral argument focused on Hernandez's challenges to the New York City Police Department's ("NYPD's") initial entry into his apartment, the ensuing search, evidence that is the fruit of that entry and search, and the later Warrant.
Based on the motion papers and oral argument, the Court concluded that the Motion turned on disputed issues of fact -- in particular: whether Hernandez's mother voluntarily consented to the police officers' initial entry and search of the apartment; whether exigent circumstances justified the officers' initial entry and search of the apartment; whether the affidavit submitted to the magistrate judge by federal agents in support of the search warrant application contained material deliberately or recklessly false statements or omissions; and whether probable cause existed for Hernandez's arrest. Accordingly, the Court held an evidentiary hearing to address these issues.
For the reasons set forth below, the Court DENIES the Motion.
The case against Hernandez originated when an NYPD-registered confidential informant provided a tip to the NYPD. In text messages sent on November 4 and 5, 2018, the informant told her NYPD handler, Officer Jennings ("Jennings"), that she knew an adult male who was engaging in sexual activities with his underage sister and his sister's 13-year-old friend. She informed Jennings that the man sent her videos of him engaging in sexual activities with the 13-year-old. The informant provided the man's building address but said that she had forgotten his apartment number. She stated that she did not know his legal name.
Around 6:00 p.m. on November 6, 2018, Jennings conveyed this information to NYPD Detective Anthony Lofaro ("Lofaro"). In a text message to Lofaro, Jennings explained that the informant insisted she did not want to be paid forproviding information but that Jennings would nonetheless pay her. He asked Lofaro to keep him apprised of how the informant assisted the investigation so that Jennings could compensate her.
Lofaro felt an urgent need to locate the 13-year-old the informant had referred to. At around 8:15 p.m. on November 6, Lofaro met with the informant in Queens. The informant showed Lofaro the Kik messages, videos, and photos she received from the man she had described to Jennings and who used the Kik username Armanixprincex and the Kik display name Armani Prince. Lofaro recalled that the room in some of the videos featured floral bedding. According to Lofaro, the informant claimed that she recognized the background of one video as the Kik user's apartment and recognized the penis in the videos as the Kik user's penis.3 After showing Lofaro the content on her phone, the informant sent the videos, photos, and screenshots of the Kik messages to Lofaro's work phone. In Lofaro's view, the informant "seemed disgusted" and reported the conduct because she "thought that it was wrong" and not because she wanted payment for the information. Nov. 26 Tr. at 164:24-165:9; 166:11-19. WhenLofaro reviewed the messages on the informant's phone, he viewed them as evidence of ongoing criminal activity. As he testified, his first impression of the messages was that they were "concerning because we had a 13-year-old female that was being raped." Nov. 26 Tr. 167:12-15. However, Lofaro did not explain why he believed the potentially criminal activity the informant had reported was ongoing.
The Government produced the screenshots the informant sent to Lofaro, who was not aware of anyone from the NYPD extracting the messages or other data from the informant's phone. It is not clear when the messages depicted in the screenshots were sent. One of the screenshots depicts timestamps generated by the Kik application: "Yesterday 12:14 PM . . . Yesterday 1:42 PM . . . Yesterday 10:39 PM . . . [Today] 3:39 AM[.]" Gov.'s Ex. 4, at 125. These timestamps indicate only that some of the messages were sent the day before and the day on which the informant took the screenshots. Because the Government did not offer evidence of when the screenshots were taken, the Court cannot infer the date of the messages from the timestamps.4 When asked if the informant sent Lofaro the screenshotswhile he was still meeting with her, Lofaro responded, "I don't know exactly." Nov. 26 Tr. 210:17-19.5
Lofaro considered the messages to be consistent with what the informant told him. In the messages, the Kik user repeatedly represented that the photos and videos depicted him engaging in sexual activities with a 13-year-old friend of his 12-year-old sister. The Kik user represented that he began having sex with the 13-year-old in the summer of 2018 and that they engaged in sexual activities a "couple times" when she was spending the night with his sister. Gov.'s Ex. 4, at 128, 132. In addition, the Kik user told the informant that he had a video of his sister with the 13-year old and sent the informant a video depicting two underage girls engaging in sexual activities.
Although the messages make clear that the 13-year-old was not always at the Kik user's residence, the Kik user indicated that she would return for sleepovers in the future. On one occasion when she was not at the Kik user's residence, the Kik user stated that he could "see if she[ would] come" over. See id. at 114. The Kik user also represented that, if the informant wanted to engage in sexual activities with the 13-year-old, he could arrangeit. The Kik user suggested that he, the informant, and the 13-year-old have a "threesome." See, e.g., id. at 118, 132.
The messages were consistent with the informant's claims that she had seen the Kik user in person and had seen his apartment. At one point the informant said that, if the Kik user wanted her to come over, she could "get a ride," and the Kik user replied "Yeah come." Id. at 116. The Kik user repeatedly invited the informant to his residence and referred to the possibility of having sexual relations with the informant. The Kik user and informant also used terms of endearment when speaking to one another. The Kik user referred to the informant as "sweetie," "love," "boo," and "bby." See id. at 118, 123, 125, 130. The informant similarly called the Kik user "baby." See id. at 124.
At one point during the Kik exchange, the informant sent the message "U," followed by a screenshot of an account on the dating site MeetMe with the display name ArmaniPrince. See Gov.'s Ex. 4, at 129. The MeetMe profile featured a profile picture and described the user as a 27-year-old male residing in the Bronx. At the time the screenshot was taken, the ArmaniPrince MeetMe profile indicated that the user's current geolocation was Mott Haven, New York, the neighborhood where the apartmentbuilding that the informant identified is located. When the informant asked, "That u on MeetMe[?]," the Kik user replied, "Yeah sweetie." Id. at 130. Consistent with the Kik user and informant having interacted before, the Kik user then wrote, "Now u remember lol," to which the informant responded, "Yes." Id.
The messages however, do raise some ambiguity about the claim that the informant believed the Kik user to be the person shown in the videos who was engaging in sexual activities with minors. For example, the informant messaged the Kik user, "That not u [with] her." Id. at 116.
Nor are the messages entirely consistent with the claim that the informant was concerned about the Kik user's behavior. In fact, in other parts of the Kik conversation, the informant requested videos of the Kik user engaging in particular sexual activities with the 13-year-old. The informant also indicated that she wanted to be present at the Kik user's apartment while he engaged in sexual activities with the 13-year-old, stating, "Yo when she comes back to your crib to sleep lol I want to see this / We can smoke and have some drinks." Id. at 117.
Around 8:30 p.m. on November 6, 2018, NYPD Officer Wonjin Noh ("Noh") conducted Google searches based on theusername, display name, and profile picture associated with the Kik account at issue here. From the searches he conducted, Noh identified social media accounts, including:
Def.'s Ex. 3508-01, 3508-02. Public photographs associated with...
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