United States v. Seerden

• Decision Date: 14 August 2017
• Docket Number: Crim. No. 2:17cr67
• Citation: 264 F.Supp.3d 703
• Court: U.S. District Court — Eastern District of Virginia
• Parties: UNITED STATES of America, v. Gregory Kyle SEERDEN, Defendant.

264 F.Supp.3d 703

UNITED STATES of America,

v.Gregory Kyle SEERDEN, Defendant.

Crim. No. 2:17cr67

United States District Court, E.D. Virginia, Norfolk Division.

Signed August 14, 2017

Elizabeth M. Yusi, David A. Layne, United States Attorney's Office, Norfolk, VA, for United States of America.

MEMORANDUM OPINION AND ORDER

Raymond A. Jackson, United States District Judge

Before the Court is Gregory Kyle Seerden's ("Defendant") Motion to Suppress all evidence obtained from the Naval Criminal Investigative Service's ("NCIS") search of his cellular telephone. ECF No. 21. Defendant moves for suppression pursuant to Federal Rule of Criminal Procedure 12(b)(3)(C) and the Fourth Amendment to the United States Constitution ("Fourth Amendment"). Id. The Government filed a Response on June 20, 2017, ECF No. 24, and Defendant filed a Reply on June 26, 2017, ECF No. 27. The Court held a hearing for this matter on July 11, 2017. ECF No. 35. For the foregoing reasons, Defendant's Motion to Suppress is DENIED .

I. FACTS AND PROCEDURAL HISTORY

Defendant, a First Class Petty Officer in the United States Navy, was temporarily stationed at Joint Expeditionary Base Little Creek Fort Story ("JEBLCFS") from January 21, 2017 through January 28, 2017. Defendant, based in San Diego, California, was sent to JEBLCFS for a one week training. On the evening of January 26, 2017, F1—an adult female—met Defendant while she was out with friends. F1 reported she spent the evening of January 26, 2017, into the morning of January 27, 2017, with Defendant at various bars and restaurants in Virginia Beach. Although F1 noted she lost consciousness during her evening with Defendant, due to alcohol consumption, she recalled returning to JEBLCFS with Defendant and producing her driver's license as identification before moving onto the base.

Thereafter, F1 accompanied Defendant to Defendant's room at the Navy Gateway Inns and Suites. During that evening, F1 recalled Defendant being on top of her in his bed, and telling him to stop. Upon F1 waking up around 4:00 a.m., on January 27, 2017, Defendant informed her that they had engaged in sexual intercourse. F1 asked to leave, and Defendant drove her to JEBLCFS's gate to hail a taxi. While F1 was just outside the gate, a sentry noticed F1 crying. F1 told the sentry about her evening with Defendant and the alleged sexual assault. Shortly after Defendant dropped F1 off at JEBLCFS's gate, Defendant attempted to call F1.

Later that morning, NCIS initiated a "pretext communication" between F1 and Defendant via text-message. During that communication, Defendant admitted he had sex with F1, without a condom, and knew F1 was inebriated during intercourse.

As a result of the pretext communication, NCIS elected to bring Defendant in for further questioning that same day. When NCIS retrieved Defendant, he was in classroom training at JEBLCFS, which required Defendant to leave his cellular telephone outside the classroom. Pursuant to NCIS protocol, NCIS agents handcuffed Defendant for transportation to the location where NCIS subsequently conducted the investigation. Because Defendant was unable to retrieve his belongings from the classroom, prior to the investigation, NCIS agents asked Defendant if he had any items he wanted to bring with him. Defendant requested that NCIS bring his cellular telephone.

Once NCIS agents secured Defendant's cellular telephone, they sought a Command Authorization for Search and Seizure (CASS) for permission to search Defendant's cellular telephone for evidence regarding the alleged sexual assault ("the first search"). To secure authorization, NCIS received guidance from Judge Advocates at JEBLCFS, as well as Judge Advocates in Defendant's chain of command. All of the consulted parties concluded that Defendant's commanding officer in California was the appropriate person to issue the CASS to physically examine Defendant and to physically examine Defendant's cellular telephone. Defendant's commanding officer, located in California, provided the requested authorization.

Once NCIS received the CASS, they brought Defendant's cellular telephone to the NCIS digital forensics lab where the digital forensics examiner created an extraction of Defendant's cellular telephone and analyzed its data. The forensic examiner specifically extracted stored photographs from Defendant's cellular telephone, which included thumbnail size icons of images. During the search, the forensic examiner, based upon his experience and training in child exploitation investigations, suspected some of the extracted photos included images of child pornography.

Because the initial CASS only provided authorization to search Defendant's cellular telephone for images related to the adult sexual assault, the forensic examiner discontinued the extraction, and consulted with the lead case agent on how to proceed. On March 20, 2017, NCIS obtained a federal search warrant from a United States Magistrate Judge, who issued a search warrant to examine Defendant's cellular telephone for evidence related to child pornography ("the second search"). Upon receipt of the search warrant, the forensic examiner resumed his analysis of the cellular telephone and identified approximately 78 images and four videos of suspected child pornography.

On March 31, 2017, the United States obtained a criminal complaint charging Defendant with one count of possession of child pornography in violation of 18 U.S.C. § 2252A(5)(A), and one count of production of child pornography in violation of 18 U.S.C. § 2251. ECF No. 3. On April 20, 2017, a Grand Jury in the Eastern District of Virginia indicted Defendant on four counts. Count One charged Defendant with Production of Child Pornography in violation of 18 U.S.C. § 2251(a). Counts Two and Three charged Defendant with Transportation of Child Pornography in violation of 18 U.S.C. § 2252A(a)(l). Count Four charged Defendant with Possession of Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). The Indictment also contained a criminal forfeiture count. ECF No. 10.

On June 6, 2017, Defendant moved to suppress all evidence obtained from the search of Defendant's cellular telephone on the aforementioned dates. ECF No. 21. On June 20, 2017, the Government filed a response. ECF No. 24. On June 26, 2017, the Defendant filed a Reply. ECF No. 27. On July 11, 2017, the Court held a hearing in this matter.

II. LEGAL STANDARD

A district court, in analyzing a motion to suppress, may make findings of fact, as well as rulings of law. United States v. Stevenson , 396 F.3d 538, 541 (4th Cir. 2005) (citations omitted). "At a hearing on a motion to suppress, the credibility of the witness and the weight to be given the evidence, together with the inferences, deductions and conclusions to be drawn from the evidence, are all matters to be determined by the trial judge." United States v. McKneely , 6 F.3d 1447, 1452–53 (10th Cir. 1993). See also Columbus–Am. Discovery Group v. Atl. Mut. Ins. Co. , 56 F.3d 556, 567 (4th Cir. 1995) ("In the usual case, the fact finder is in a better position to make judgments about the reliability of some forms of evidence than a reviewing body acting solely on the basis of a written record of that evidence. Evaluation of the credibility of a live witness is the most obvious example.").

As a general rule, the burden of proof is on the defendant who seeks to suppress the evidence. United States v. Dickerson , 655 F.2d 559, 561 (4th Cir. 1981). Once the defendant establishes a basis for his motion to suppress, the burden shifts to the government to prove, by a preponderance of the evidence, that the challenged evidence is admissible. Colorado v. Connelly , 479 U.S. 157, 168, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) ; United States v. Matlock , 415 U.S. 164, 178, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974).

III. DISCUSSION

Defendant moves to suppress all evidence seized from a search of his cellular telephone, authorized by Defendant's commanding officer and a civilian magistrate judge, on five grounds. First, Defendant asserts he has standing to challenge the search and seizure of his personal cellular telephone. Second, Defendant argues the Fourth Amendment's protections extend to him. Third, Defendant argues the search of his cellular telephone violated his Fourth Amendment rights because the wrong authority authorized the CASS. Fourth, Defendant asserts that there was no probable cause to search Defendant's Telephone. Fifth, Defendant asserts that as the result of the foregoing, suppression is the appropriate remedy. Because the Government does not challenge Defendant's standing in this matter, the Court will not discuss this issue. The remaining issues are discussed, in turn, below.

A. Fourth Amendment Protections & Servicemen

Defendant argues that neither his status as a member of the United States armed services, nor his presence on the JEBLCFS, "left him unprotected by the Constitution." ECF No. 21 at 4.

The Fourth Amendment protects, "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and provides that "no warrants shall issue, but upon probable cause." U.S. Const, amend. IV. Accordingly, "[t]he Fourth Amendment protects members of the armed services from unreasonable searches and seizures, see Henson v. United States , 27 Fed.Cl. 581, 583 (1993), albeit with different standards than those that apply in the civilian context." United States v. Rendon , 607 F.3d 982, 990 (4th Cir. 2010) (quoting Parker v. Levy , 417 U.S. 733, 743, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) ).

The United States Supreme Court ("Supreme Court") has held that because the military is a specialized society "governed by a separate discipline from that of the civilian," the reasonable expectation of privacy enjoyed by a civilian is necessarily reduced in the service member. Parker v. Levy , 417 U.S. 733, 744, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) ; see also Rendon , ...