United States v. McCarty

• Decision Date: 13 December 2011
• Docket Number: CR. No. 08–00513 JMS.
• Citation: 835 F.Supp.2d 938
• Parties: UNITED STATES of America, Plaintiff, v. Simon Jasper McCARTY, Defendant.
• Court: U.S. District Court — District of Hawaii

835 F.Supp.2d 938

UNITED STATES of America, Plaintiff,

v.Simon Jasper McCARTY, Defendant.

CR. No. 08–00513 JMS.

United States District Court,

D. Hawai‘ii.

Dec. 13, 2011.

Amy K. Olson, Lawrence L. Tong, Office of the United States Attorney, Special Assistant U.S. Attorney, Honolulu, HI, Anitha S. Ibrahim, U.S. Department of Justice, Washington, DC, for Plaintiff.

William A. Harrison, Harrison & Matsuoka, Honolulu, HI, for Defendant.

POST–REMAND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS

J. MICHAEL SEABRIGHT, District Judge.

I. INTRODUCTION

On August 5, 2008, Defendant Simon Jasper McCarty (“Defendant”), a United Kingdom national, was traveling from Hilo to Honolulu when the Transportation Security Administration (“TSA”) found photographs of naked prepubescent children in his luggage. As a result of this discovery and a subsequent investigation, the Second Superseding Indictment (“SSI”) charges Defendant with ten counts of child pornography, including: two counts of knowingly transporting child pornography in interstate commerce on July 28, 2008 in violation of 18 U.S.C. §§ 2252A(a)(1) and (b)(1) (counts 1 and 2), two counts of knowingly possessing child pornography on August 5, 2008 in violation of 18 U.S.C. §§ 2252(a)(5)(B) and (b)(2) (counts 3 and 4); and five counts of coercing a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct in violation of 18 U.S.C. §§ 2251(c)(1)(B) and 2251(e) (counts 5–10).

On April 13, 2009, Defendant filed a Motion to Suppress all evidence obtained as a result of the August 5, 2008 search of his luggage at the Hilo International Airport. Defendant argued that (1) the TSA performed an overbroad search of his luggage such that there was no probable cause supporting the arrest, (2) he did not give informed consent for the Hawaii County Police Department (“HCPD”) to search his luggage, and (3) he did not knowingly and voluntarily waive his Miranda rights. On December 24, 2009, the court granted Defendant's Motion, finding that the TSA screeners had performed an overbroad search and the court could not determine what materials TSA screeners had seen as part of their permissible search such that the government had not carried its burden of establishing probable cause to arrest Defendant. See United States v. McCarty, 672 F.Supp.2d 1085 (D.Haw.2009). As a result, the court suppressed all evidence obtained during the subsequent consent and warrant-based searches as fruit of the poisonous tree.

On appeal, the Ninth Circuit vacated the suppression order and remanded for further proceedings. See United States v. McCarty, 648 F.3d 820 (9th Cir.2011). The Ninth Circuit held, among other things, that although the TSA screeners performed an overbroad search by reading papers in Defendant's luggage, the screeners viewed the photographs as part of their administrative search and they could be considered in making the probable cause determination.

After receiving post-remand briefing from the parties and hearing additional oral argument, the court finds that the photographs the TSA screeners viewed as part of their administrative search supported a probable cause finding to arrest McCarty for violation of Hawaii Revised Statutes (“HRS”) § 707–752, promotion of child abuse in the third degree. The court also rejects Defendant's additional arguments seeking suppression and therefore DENIES Defendant's Motion to Suppress.

II. ANALYSIS

A. Probable Cause for Arrest

As explained in earlier orders,¹ Defendant checked two bags while traveling from Hilo to Honolulu—a Travel Pro bag and a Travel Zone bag. During screening at Hilo International Airport, Defendant's Travel Pro bag was flagged as a possible safety concern due to what appeared to be a laptop with a dark mass around it. TSA screener Dorina Andrade (“Andrade”) subsequently pulled out the laptop, at which point an envelope slid out, spilling some of its contents.

As previously described, see McCarty, 672 F.Supp.2d at 1092, the contents of the envelope included photographs of nude and partially clothed children, Gov't Exs. 1–56, newspaper and magazine clippings describing sexual acts including sex between minors and trial testimony of sexual encounters between a minor boy and a woman, id. at 72–75, magazine clippings of children's pajama, underwear, and swimwear advertisements, id. at 59–71, and handwritten notes drafted in the first person describing a man molesting boys and a girl. Id. at 80–81. Of the 58 photographs from the envelope, 57 are of minor children in various states of undress—for example, young boys with no shirts on, boys in their underwear only, one shirtless boy laying down while a hand reaches toward his pants, and one boy lying face up on top of Defendant while Defendant lifts up the boy's shirt. Eleven photographs include child nudity, some of which are not child pornography and might appear almost innocent if viewed in isolation, see id. at Exs. 7, 10, 58, McCarty, 672 F.Supp.2d at 1101, while three (in particular Exs. 1–3) focus on the child's genitalia and are clearly meant “to arouse or satisfy the sexual cravings of a voyeur.” See United States v. Overton, 573 F.3d 679, 686 (9th Cir.2009) (quoting United States v. Hill, 459 F.3d 966, 972 (9th Cir.2006)); see also McCarty, 672 F.Supp.2d at 1092 (describing the eleven photographs).

Andrade, assisted by TSA screener Jenny Moniz (“Moniz”), viewed the photographs that had fallen out of the envelope, viewed some of the photographs that remained in the envelope, and read portions of the written materials during their search. In light of what they saw, Andrade called her supervisor; TSA lead Tracy Kitamura (“Kitamura”) and TSA supervisor Stephanie Kamohai (“Kamohai”) subsequently reviewed the materials before calling Hilo Airport law enforcement officer Rodney Aurello (“Aurello”).² Based on Aurello's review of some of the photographs, he called HCPD. HCPD officer Norbert Serrao (“Serrao”) reviewed the materials and arrested Defendant for violation of HRS § 707–752, promotion of child abuse in the third degree.

This court found and the Ninth Circuit agreed that Andrade and Moniz went beyond the scope of a lawful administrative search and violated Defendant's Fourth Amendment rights by reading the written materials from the envelope that had fallen out of Defendant's Travel Pro bag. See McCarty, 648 F.3d at 836 (holding that Andrade's actions of reading the content of letters and looking at the newspaper articles and advertisements fell outside the scope of an administrative search). Both this court and the Ninth Circuit further agreed that the probable cause determination could not be based solely on what Serrao reviewed—he reviewed photographs that Andrade did not review, and read the textual materials which went beyond what an administrative search should have included.³

The Ninth Circuit clearly differed with this court, however, in whether Andrade viewed at least some photographs for administrativepurposes or solely to investigate her suspicions that the photographs were child pornography. This court found that it could not determine which photographs Andrade and Moniz saw during the course of the lawful administrative search, as opposed to purely a search for child pornography. McCarty, 672 F.Supp.2d at 1101–02. This court concluded that “the government has failed to carry its burden that the TSA properly uncovered photographs that would support probable cause to arrest Defendant.” Id. at 1102.

The Ninth Circuit disagreed with this court's factual findings, determining that Andrade consistently testified that she reviewed the photographs for safety reasons such that “all of the photographs viewed by the screeners as part of the lawful search for explosives must be considered in reaching a probable cause determination.” ⁴McCarty, 648 F.3d at 839. The Ninth Circuit further outlined the steps this court must take to determine whether probable cause existed to arrest Defendant—requiring the court to determine (1) what photographs Andrade and Moniz viewed as part of their administrative search; and (2) whether those photographs support probable cause to arrest Defendant for violation of HRS § 707–752.⁵ The court now addresses these steps.

1. Photographs Viewed by Screeners

The Ninth Circuit instructed this court to determine what photographs the screeners viewed during their administrative search of Defendant's Travel Pro bag:

On remand, the district court's probable cause determination should proceed in two steps. First, the court should decide what materials may be considered in determining whether probable cause existed to arrest McCarty. As [United States v. Jensen, 425 F.3d 698 (9th Cir.2005),] illustrates, courts generally consider the information known to the arresting officers at the time of the arrest. Here, Serrao testified that he had viewed all of the photographs in McCarty's envelope and perhaps also some of the textual materials before making the arrest.

The general rule must, however, be narrowed here, because the fruits of an unlawful search cannot provide probable cause for an arrest, see Johnson v. United States, 333 U.S. 10, 16–17, 68 S.Ct. 367, 92 L.Ed. 436 (1948), and it is clear some portion of this search was unlawful. Although—consistent with our enumeration of the search's lawful scope—all of the photographs viewed by the screeners as part of the lawful search for explosives must be considered in reaching a probable cause determination, the textual materials seen by the screeners may only be considered if the government demonstrates that suppression is an inappropriate remedy. Similarly, the photographs not viewed by the screeners may be considered only if they do not constitute fruit of the poisonous tree.

McCarty, 648 F.3d at 839.

This task is easier said than done—this court and the Ninth Circuit have recognized that Andrade did not consistently testify regarding “exactly which...