United States v. Luke
| Decision Date | 31 May 2016 |
| Docket Number | No. 6:15-CR-10-GFVT-HAI-1,6:15-CR-10-GFVT-HAI-1 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. JERRY LUKE, Defendant. |
| Court | U.S. District Court — Eastern District of Kentucky |
With a warrant in hand and consent, law enforcement searched Defendant's residence and seized, among other items, some computer equipment. Then law enforcement relied upon observations made during the search to obtain a second warrant authorizing a search of the computer equipment for evidence of child pornography. They found such evidence.
But neither the first warrant, consent, nor the plain view doctrine validly authorized the seizure of the computer equipment. The observations made during the search were appropriate, however, because of Defendant's consent to the search. To further complicate the matter, the second warrant did not establish probable cause to search the computer equipment. Because the parties have not fully analyzed Leon or the flagrancy-deterrence calculus in these unique circumstances, further briefing is required. To inform that briefing, the Court sets forth its reasoning as to the validity (or invalidity) of the seizure and searches below. After allowing sufficient time to review, the Court will hold a status conference to discuss a schedule for further briefing.
The closest questions before the Court concern the validity of the two search warrants relied upon by the United States to validate the searches and seizures at issue. In answering these questions, the Court is limited to reviewing the four corners of the supporting affidavits. United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005). To memorialize all the circumstances, however, the Court recites the chronology of events established at the evidentiary hearing, which are uncontested.
On January 15, 2013, Knox County Sheriff's Deputy Claude Hudson Jr. received a call about a missing juvenile female. D.E. 62 at 12-13. Hudson learned from the juvenile's mother that the juvenile had run away from home the previous night following a verbal argument regarding the juvenile's relationship with Defendant. Id. at 12-15. The mother indicated to Hudson that she believed the juvenile was with Defendant due to the argument. Id. at 13. Moreover, Hudson was informed that the juvenile's father had been to Defendant's residence, but had been unable to make contact with him there. Id. at 15-16. The parents were, however, able to reach Defendant by phone, and he indicated that he was not with the juvenile. Id. at 16-17. Hudson testified that he also attempted to call Defendant's cell phone but it appeared to be turned off. Id. at 16.
Hudson went to Knox Central High School to further investigate. Id. at 18. Upon talking to the juvenile's friends, Hudson learned that the juvenile "had bragged about dating an older 40 year-old-man," but the friends did not know the man's name. Id. at 18-19. Hudson then interviewed one of the juvenile's friends who had stayed home sick from school that day. Id. at 19. The friend was able to provide him with Defendant's cell phone number because the missing juvenile had used the friend's phone to speak to Defendant on a prior occasion. Id. at 19-21.Furthermore, the friend confirmed to Hudson that the juvenile was dating an older male. Id. at 21.
Hudson went by Defendant's residence and found that Defendant was not home, but he spoke to Defendant's neighbors. Id. at 22. The neighbors informed Hudson that, if Defendant returned to the residence, they would call contact the police. Id. After leaving Defendant's residence, Hudson "pinged [Defendant's] cell phone" through AT&T. Id. This allowed him to obtain the GPS coordinates of Defendant's phone. Id. at 22-24. However, this procedure revealed that, at the time, Defendant's phone was shut off and, therefore, Hudson was unable to gather any GPS information. Id. at 23-24. After this, an "attempt to locate" was called out on Defendant and officers were driving by Defendant's residence, but the case had gone "cold." Id. at 24-25. Hudson testified that, from the time he got the ping information until his shift began at 6 a.m. the following day, he did not receive any GPS location information for Defendant's phone. Id. at 25.
At the beginning of his shift on January 16, 2013, Hudson contacted the juvenile's mother to see if she had returned home. Id. at 25-26. According to Hudson, the mother informed him that she had not heard from the juvenile, but had learned Defendant had a commercial driver's license and she was fearful that Defendant and the juvenile might leave the state. Id. at 26.
Hudson testified that his next step in the investigation was to obtain a search warrant (the January 16, 2013 warrant) for Defendant's residence, and did so "about 8" that morning from Judge Durenda Lundy, a Knox County family court judge.1 Id. at 27, 110. Hudson's affidavit for the first warrant requests that he be able to search for a variety of personal property, includingevidence of controlled substance offenses, United States currency, weapons used to facilitate drug transactions, stolen property, and finally, "any pictures, zip drives, external hard drives, computers, cell phones, C.D.'s or any property indicating child pornography or unlawful transactions with minors." Government's Exhibit 1 at 1. Hudson acknowledged that the affidavit was not completely "accurate," explaining that, when he applies for a warrant, he uses "a template" and that he had a "bad habit" of using form language that is "a little broad." Id. at 29-30, 114.
Hudson admitted that he had no reason to believe that Defendant was engaged in drug trafficking, possessed any weapons used to facilitate drug transactions, or possessed any stolen property. Id. at 114. However, he testified that, at the time he obtained the warrant, he was "leaning" towards believing that Defendant was engaged in child pornography because Defendant "is a 44 year-old man with a 16 year-old child that looks like a ten-year old." Id. at 114-115. That observation, as to her appearance, was made based upon a picture of the juvenile that he had seen. Id. Thus, he testified that actually he was seeking evidence related to child pornography and unlawful transactions with minors. Id. at 32. However, Hudson admitted that, at the time of the application for the warrant, he had no knowledge of any computers, hard drives, cameras, or zip drives that Defendant may have possessed or owned. Id. at 116-17. He further admitted that, at the time of the application, he had no reason to tie the juvenile to Defendant's residence except the fact that it was the Defendant's home and she might be with him. Id. at 122-23.
Hudson stated that law enforcement knew Defendant had Id. at 30-31. He further testified that he was concerned with "improper text messages" between Defendant and the juvenile, and believed that he could find evidence of that in "anything from a note pad to the computer, to even cameras, pictures he may have took, and the destination they may have been to[.]" Id. at 31. He stated that he believed he would find records of communications between the two "mostly on the computer." Id. at 32.
Hudson testified that, almost immediately after obtaining the warrant, he received ping information that indicated Defendant's cell phone had been turned on and provided GPS coordinates of the phone. Id. at 35-36. He and another Sheriff's Deputy, Keith Liford, began to drive towards to the phone's location in Whitley County. Id. at 36. About the same time, Hudson was contacted by the juvenile's mother who stated that the juvenile had contacted the juvenile's sister and indicated that the juvenile had stated she was okay and not to "worry about me." Id. at 37. Officer Hudson stated that the juvenile had made contact with her sister using Defendant's cell phone, but he could not recall if that contact was made via text message, Facebook, or otherwise. Id. at 38.
Hudson then contacted the Corbin Police Department to assist in the search for Defendant's vehicle. Id. at 39. Law enforcement located the truck in the parking lot of the Corbin Post Office, where it was parked near the back of the lot. Id. at 40. Defendant and the juvenile were found in the truck, and when Hudson arrived on the scene, Defendant was already in handcuffs in the back of a patrol car. Id. at 41-42. Hudson read Defendant his Miranda rights and Defendant signed a Miranda waiver at 10:36 a.m. Id. at 43-46; see Government's Exhibit 5. Hudson testified that the only statement Defendant made was that "the juvenile was better off with him than he [sic] was the parents." Id. at 46.
Law enforcement searched the vehicle at the scene and found four cell phones, a blanket, and two pornographic magazines. Id. at 46-48. The blanket was in the backseat, and Hudson speculated that the Defendant and juvenile used it to stay warm because she had indicated they spent the night in the truck. Id. at 48-49. He further stated that the magazines were found directly behind the driver's seat, and that they appeared to be "legal magazines." Id. at 48, 134. Hudson also noted that the girls depicted on the magazine covers did not "look like nine- or ten-year-olds." Id. at 171. Notably, these magazines were not seized, but their covers were photographed. Government's Exhibit 3.
Defendant was arrested and charged with custodial interference in violation of KRS § 509.070 and third-degree unlawful transaction with a minor in violation of 530.070. Id. at 51-52. After securing Defendant, Hudson took the juvenile to be reunited with her parents at a local business. Id. at 53-54. Hudson stated that he and Liford conducted an interview of...
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