United States v. Neuhard

• Decision Date: 25 February 2016
• Docket Number: Case No. 2:15–cr–20425
• Citation: 149 F.Supp.3d 817
• Parties: United States of America, Plaintiff, v. Jonathon William–Durand Neuhard, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

149 F.Supp.3d 817

United States of America, Plaintiff,

v.Jonathon William–Durand Neuhard, Defendant.

Case No. 2:15–cr–20425

United States District Court, E.D. Michigan, Southern Division.

Signed February 25, 2016

Kevin Mulcahy, U.S. Attorney's Office, Detroit, MI, for Plaintiff.

Suzan Gabbara, Frank Eaman PLLC, Frank D. Eaman, Detroit, MI, for Defendant.

Opinion and Order Denying Defendant's Motion To Suppress Evidence [28]

HON. GERSHWIN A. DRAIN, United States District Court Judge

I. Introduction

Defendant Jonathon Neuhard was charged in a July 9, 2015 indictment with Production of Child Pornography, in violation of 18 U.S.C. § 2251(a)

; Receipt of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(2) ; and Possession of Child Pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B). Dkt. No. 12, pp. 1– 3 (Pg. ID No. 21–23). Through the present motion filed on November 30, 2015, Defendant seeks to suppress all evidence seized pursuant to a search warrant executed April 1, 2015, as well as evidence derived from that initial search. Dkt. No. 28, p. 1 (Pg. ID No. 59).

A hearing was held on this motion on February 23, 2016. Having considered the parties' briefs in support of and in opposition to Defendant's motion, their accompanying exhibits, and the remainder of the record, the Court now is prepared to rule on Defendant's motion. For the reasons stated below, the Court denies this motion.

II. Background

On March 10, 2015, an individual (“Reporting Person,” or “RP”) reported to the Madison Heights Police Department that Defendant had sexually assaulted her minor daughters. Dkt. No. 28–1, pp. 4–5, ¶¶ D–1–D–7 (Pg. ID No. 80–88). Her daughters were ages nine (hereinafter, “Minor Victim One,” or “MV–1”) and seven (hereinafter “Minor Victim Two,” or “MV–2”). Id. at ¶¶ E–1–E–2.

Detective Sergeant Marc Zupic interviewed RP on March 11, 2015. Id. at ¶ E. During the interview with Zupic, RP stated that she had left her daughters in the care of Defendant and his wife on February 20, 2015. Id. at ¶ E–3. MV–1 later told RP that Defendant took her to the basement, showed her pornographic movies, asked her if she was ready to have sex, and tried to put his hand down her pants. Id. at ¶ E–4. Defendant had resided at a residence on Brettonwoods Street in Madison Heights at the time of the abuse, but he was asked to move out after MV–1 and MV–2 disclosed their abuse. Id. at ¶¶ D–5, E–6. He relocated to a residence on Christine Terrace. Id. at ¶ E–6.

A week later, on March 17, 2015, MV–1 was interviewed by a child forensic interviewer while Zupic observed from another room. Id. at ¶ F. MV–1 stated that on a day when she was nine years old, Defendant had taken her down to the basement to watch a “sex video,” involving a naked “boy” and “girl,” where the “a girl suck[ed] a boy's part” and then “the boy shoved his part into the girl.” Id. at ¶¶ F–4, F–8. Defendant allegedly told MV–1 that “this is what you have to do to me” and then tried to put his hand down her pants. Id. at ¶ F–5. MV–1 states that Defendant then took off his pants and underwear, attempted to take off her pants, and said “let me lick it,” in reference to MV–1's genitals. Id. at ¶ F–6. MV–1 further stated that she saw Defendant's penis and that Defendant began to masturbate in front of her. Id. at ¶ F–7.

MV–1 also stated that Defendant had abused her when she was younger. Id. at ¶¶ F–9, F–11. When she was eight years old, MV–1 stated that Defendant tried to put his tongue in her mouth, touched her inside her clothes, and rubbed her genitals. Id. at ¶ F–9. MV–1 stated that Defendant tried to put his penis in her vagina and that Defendant's actions “really hurt” her. Id. at ¶ F–10. Additionally, MV–1 stated that Defendant took pictures of her bare chest and genitals with his cell phone when she was seven or eight years old. Id. at ¶ F–11. MV–1 also stated that Defendant pushed her head down so that his penis was in her mouth, and then “white stuff came out.” Id. at ¶ F–12. MV–1 did not tell anyone because she said that Defendant raised a knife and threatened to kill her. Id. at ¶ F–14. The alleged abuse occurred at the residence on Brettonwoods, according to MV–1. Id. at ¶¶ F–3, F–8, F–9.

MV–2's forensic interview commenced shortly after MV–1's was completed. Id. at ¶ F–15. MV–2 stated that when she was six years old, Defendant reached inside her underwear and put his hand inside of her genitals, causing her pain. Id. at ¶¶ F–21–F–23. MV–2 stated that this incident accorded in the backyard of the residence on Brettonwoods. Id. at ¶ F–20. Defendant allegedly held a blade and threatened to “beat the hell out of” MV–2 if she told anyone. Id. at ¶ F–25.

Zupic was contacted by the caseworker with Child Protective Services who performed a home visit to Defendant's residence on March 18, 2015. Id. at ¶¶ G–H. From speaking with the caseworker and the community manager of Defendant's housing development, Zupic confirmed Defendant's current address and the car he drove, which matched the description given by RP. Id. at ¶¶ E–7, G–J. Zupic also personally observed Defendant's residence and car. Id. at ¶ J.

On March 26, 2015, a state court magistrate judge signed a warrant that authorized the search of Defendant's current residence and car. Id. at 2–3 (Pg. ID No. 78–79). The search listed the property to be seized and searched as:

Any and all records or evidence of the crime of child sexual assault/abuse, including but not limited to: proofs of residence, cell phones, smart phones, tablets, or any other handheld/portable electronic devices, computers, including laptops and notebooks, video game consoles, keyboards, monitors, scanners, printers, printed material, including copies of websites, emails and printed material, handwritten material, photographs related to child pornography of the victims ... terminals, towers, computer hardware and software, external hard drives, modems, cables, digital cameras, handwritten notes and printed materials describing their operation, any password list(s) to enter secured files therein/thereafter, any and all information and/or data stored in the form of magnetic or electronic coding on computer media or media capable of being read by drives, CD's or DVD's, secure digital (SD) cards, removable hard disk cartridges, and any other device designed to store computer data, with the intent that all the aforementioned electronic and electronic storage devices that are seized will be analyzed by a forensic examiner.

Id. at 2. The warrant was executed on April 1, 2015, id., and seven electronic items, including computers, tablets, and a phone, were seized. Dkt. No. 28, p. 4 (Pg.ID. No. 62).

Forensic examination uncovered four images of child pornography on a memory card seized in the search. Id. at 5; Dkt. No. 34, p. 6 (Pg. ID No. 101). The photos' metadata indicated that the photos were taken with a cell phone matching the one seized from Defendant's residence. Dkt. No. 34, p. 7 (Pg. ID No. 102). One image depicted a prepubescent female's vagina; two images depicted a prepubescent female's vagina with the hand of an adult spreading the labia; and one image depicted an adult male's penis penetrating a prepubescent female's vagina. Dkt. No. 34, pp. 6–7 (Pg. ID No. 101–02). In the photo, the child is sitting on what appeared to be a black and white zebra-striped sheet or blanket. Id. A blanket matching this description was visible in a dresser drawer of Defendant's home, as shown in photographs taken during the execution of the warrant. Id. at 6.

Additionally, examination of one of Defendant's computers resulted in the discovery of one image and two videos containing suspected child pornography. Dkt. No. 28, p. 5 (Pg. ID No. 63).

On July 9, 2015, Defendant was charged in a three-count indictment with (1) Production of Child Pornography; (2) Receipt of Child Pornography; and (3) Possession of Child Pornography. Id. at 5–6. Defendant now seeks to suppress the images and video extracted from the computer and memory card. Id. at 3.

III. Legal Standard

The Fourth Amendment requires that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV

. The Fourth Amendment specifies the two matters that must be “particularly describe[ed]” in the warrant: “the place to be searched” and “the persons or things to be seized.” United States v. Grubbs, 547 U.S. 90, 97, 126 S.Ct. 1494, 164 L.Ed.2d 195 (2006). With this provision, the Fourth Amendment sought to “curb the abuses of general warrants, devices which provided British officers with broad discretion to search the homes of citizens of the Colonies for evidence of vaguely specified crimes.” United States v. Richards, 659 F.3d 527, 537 (6th Cir.2011).

The particularity requirement prevents general searches by requiring a neutral judicial officer confine the scope of the search to areas and items for which there exists probable cause that a crime had been committed. Baranski v. Fifteen Unknown Agents of Bureau of Alcohol, Tobacco & Firearms, 452 F.3d 433, 441 (6th Cir.2006)

. The Sixth Circuit has determined that the particularity requirement encompasses two main issues. Richards, 659 F.3d at 537 (quoting United States v. Upham, 168 F.3d 532, 535 (1st Cir.1999) ). The first issue is “whether the warrant supplies enough information to guide and control the agent's judgment in selecting what to take.” Id. The second issue is “whether the category as specified is too broad in the sense that it includes items that should not be seized.” Id. “However, the degree of specificity required is flexible and will vary depending on the crime involved and the types of items sought.” United States v. Ables, 167 F.3d 1021, 1033 (6th Cir.1999)

(quoting United States v. Henson, 848 F.2d 1374, 1383 (6th Cir.1988) ).

Even if a warrant is found to be overbroad, the finding does not require suppression of all...