United States v. Pavulak

• Decision Date: 21 November 2012
• Docket Number: No. 11–3863.,11–3863.
• Citation: 700 F.3d 651
• Parties: UNITED STATES of America v. Paul E. PAVULAK, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

700 F.3d 651

UNITED STATES of America

v.Paul E. PAVULAK, Appellant.

No. 11–3863.

United States Court of Appeals,Third Circuit.

Argued Sept. 13, 2012.

Filed: Nov. 21, 2012.

Jack A. Meyerson, Matthew L. Miller [Argued], Meyerson & O'Neill, Philadelphia, PA, for Appellant.

Bonnie L. Kane, Andrew M. McCormick, United States Department of Justice, Criminal Division, Public Integrity Section, Washington, DC, Edward J. McAndrew [Argued], Office of United States Attorney, Wilmington, DE, for Appellee.

Before: SMITH, and CHAGARES, Circuit Judges and ROSENTHAL, District Judge.^*

OPINION

SMITH, Circuit Judge.

The Delaware State Police obtained search warrants for Paul Pavulak's email account and workplace after receiving information that he was viewing child pornography on his workplace computers. The evidence that was seized confirmed Pavulak's involvement in child pornography, and a jury subsequently convicted him of possessing and attempting to produce child pornography, attempting to entice a minor, and committing crimes related to his status as a sex offender. The District Court sentenced him to life imprisonment on the attempted-production conviction and to 120 months' imprisonment on the remaining counts.

Pavulak now contends that the District Court should have suppressed the evidence obtained pursuant to the warrants. He argues that the magistrate lacked probable cause to issue the search warrants. Those search warrants were supported by an affidavit that pointed to Pavulak's prior child-molestation convictions and labeled the images, which had been reported by informants, simply as “child pornography.” No further details concerning the images' content appeared in the affidavit. We conclude that the affidavit was insufficient to establish probable cause for child pornography. However, because the officers reasonably relied on the warrants in good faith, we agree that the District Court properly denied suppression. Pavulak's remaining challenges to his convictions and life sentence are meritless. We will therefore affirm his convictions and sentence.

I.

A. Factual Background

This is not Paul Pavulak's first encounter with the criminal law. He has twice pled guilty to unlawful sexual contact in the second degree under Delaware law—once in June 1998 and again in April 2005. The first conviction was for molesting the eleven-year-old daughter of his live-in girlfriend from September 1997 through January 1998. As a result, the Delaware Superior Court sentenced Pavulak to four years' probation. While on probation for that conviction during the summer of 1999, Pavulak repeated similar conduct with the nine-year-old daughter of his new girlfriend, resulting in a second conviction in 2005 and two years in prison.¹

These state convictions required Pavulak to register as a sex offender and to keep his residential, work, and email addresses up to date with the Delaware State Police. After being released from prison on July 1, 2008, Pavulak purported to do exactly that. He informed the Delaware State Police that he was unemployed and staying at the Fairview Inn in Wilmington, Delaware. Throughout the remainder of the year, Pavulak maintained this account of unemployment and hotel living.

But the Delaware State Police soon discovered that Pavulak was not telling the whole story. In October 2008, Delaware State Police Detective Robert Jones received a hotline call from Erica Ballard. Ballard informed the police that her husband Curtis Mack, an employee at Concrete Technologies, Inc. (“CTI”), had observed Pavulak working and living part-time at the CTI office since his release, information that his sex-offender registration did not include. Ballard also told the police that Pavulak was planning a trip to the Philippines where he intended to meet women. Detective Jones followed up with Mack, who not only confirmed his wife's tip but also provided additional details. According to Mack, Pavulak was using an unregistered Yahoo! email address (Pavy 224@ yahoo. com), was accessing sexually suggestive images of children on computers at the CTI office, and had scheduled a month-long trip to the Philippines between December 2008 and mid-January 2009. Detective Jones also contacted another CTI employee, Jahdel Riggs, who confirmed all of Mack's information except Pavulak's email address.

Through investigation, the Delaware State Police successfully corroborated some of the information provided by Mack and Riggs. As confirmed by federal agents and Pavulak's updated Delaware Sex Offender Registry address, Pavulak was in the Philippines from early December 2008 to January 2009. By subpoenaing Yahoo!, the police also discovered that the Pavy 224@ yahoo. com email account was created by a “Mr. Paul Pavy,” was accessed from the CTI office on December 8, 2008, and was accessed from the Philippines from December 10, 2008, through January 6, 2009. The police further verified the existence and location of the CTI office, its ownership by Pavulak's adult children, and his Delaware state convictions—leading the police to obtain an arrest warrant for Pavulak's failure to register his employment at CTI.

Armed with the informants' information and the results of their investigation, Detective Nancy Skubik of the Delaware State Police Child Predator Task Force applied to the Delaware Superior Court for New Castle County for warrants to search the CTI office and the Pavy 224@ yahoo. com account for child pornography. In her probable-cause affidavit ² for both warrant applications, Detective Skubik described the two tips, Pavulak's prior Delaware convictions from 1998 and 2005, and the information corroborated by her investigation. The affidavit relayed that Riggs had seen Pavulak “viewing child pornography” of females “between 16 and 18 years old” and Mack had seen “images of females between the ages of 12 to 15 years on Pavulak's computer” that had been sent to Pavulak via email. But the affidavit neither defined what was meant by the label “child pornography” nor provided any further details about the images' content.

Based on that affidavit, the Delaware Superior Court issued search warrants on January 13, 2009, for the CTI office and Yahoo! account. Early in the morning of January 19, Delaware State Police officers, including Detectives Jones and Skubik, executed the search warrant at CTI's office. The police arrested Pavulak, the only person present in the CTI office, based on outstanding warrants for failure to register his employment at CTI and his Yahoo! email address. After receiving his Miranda rights,³ Pavulak admitted that he worked for CTI and used the Pavy 224@ yahoo. com email address while in the Philippines.

During the search, officers seized two computers. The first, a Hewlett–Packard laptop, was found in a rear office where Pavulak appeared to be living; a bed, his clothing, and toiletries were in the room. The laptop was locked by a single password-protected Windows user account. The second computer, a Hewlett–Packard desktop, was recovered from the receptionist area. Each computer contained thousands of images of child pornography.

Yet the search uncovered more than just the sought-after images of child pornography. Evidence recovered from the computers revealed that, in August 2008, Pavulak used his Yahoo! username “Pavy224” to create a profile on www. cherryblossoms. com, a website allegedly used by sex tourists for soliciting prostitutes in the Philippines. This website led him to Ara Duran, a twenty-two-year-old Philippine woman and mother of two-year-old Jane Doe.⁴ Emails that Pavulak sent Duran showed his immediate interest in the age and sex of Duran's child. Pavulak told Duran (via email) that he was looking for a wife with an “aggressive” and “very active open sex desire” ⁵ similar to his own and who was willing to “experiment with different possibilities about sex.” On October 1, Duran responded, believing them to be a “good match” and indicating that she “bought more panties” for herself and her daughter. Pavulak looked forward to “dressing” Duran and her daughter. The two made plans to meet around Christmas during Pavulak's trip to the Philippines. He reserved a hotel room for their meeting, preferring the “matrimonial room” as his first choice because it had a “king size bed” in which the three of them would “fit fine.” While awaiting their rendezvous, Pavulak “reall[y] want[ed] to see pictures” of Duran and Jane Doe—a request that Duran obliged.

While Pavulak was in the Philippines, he visited several women he met online and spent time with Duran and Jane Doe. He took photographs of Duran and Jane Doe, some of which depicted Duran or Pavulak nude or engaging in sexual activity. He also recorded videos of his sexual activity with Duran, one of which portrays Duran performing oral sex on Pavulak. That video, as Pavulak tells her, “will be [Jane Doe's] training video” so Duran can “show her how to [perform oral sex].”

During Pavulak's return to the United States, he sent Duran several text messages about including Jane Doe in their sexual activities. He “hope[d]” that Jane Doe would “like it too”; asked Duran to “teach her everything”; indicated he would perform oral sex on Jane Doe and instructed Duran to do so in the interim “so she likes it”; ⁶ and wondered if Duran's “really good” instruction of Jane Doe would allow Jane Doe to perform oral sex on Pavulak “next December.” Pavulak believed that Duran could “make it all work out for the three of [them]” to have a “happy sex life.” Eager to see them again soon, Pavulak scheduled an online webcam chat with Duran for the morning of January 18.

That morning, Pavulak chatted with Duran using the laptop from the CTI office. They discussed Jane Doe's involvement in their sexual activities. We regret the need to recite in detail several of these “chats,” but the content is necessary to some of the conclusions we reach in our discussion below.

Duran: I showed [Jane...