United States v. Stein
| Decision Date | 23 October 2018 |
| Docket Number | Case No. 17-10045-EFM |
| Parties | UNITED STATES of America, Plaintiff, v. Patrick STEIN, Defendant. |
| Court | U.S. District Court — District of Kansas |
Jason W. Hart, Office of United States Attorney, Wichita, KS, for Plaintiff.
A grand jury indicted Defendant Patrick Stein with one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). This matter comes before the Court on Stein's Motion to Suppress Evidence and Request for Franks hearing (Doc. 30). For the following reasons, the Court grants Stein's request for a Franks hearing and—after reviewing and considering the parties' briefs, the relevant evidence, and the oral arguments made by counsel to the Court—denies Stein's Motion to Suppress.
The present charge against Patrick Stein for possession of child pornography arises from a Federal Bureau of Investigation ("FBI") probe into an unrelated criminal matter. In February 2016, a confidential informant alerted the FBI that a militia group called the Crusaders was discussing a violent attack against Muslims in southwestern Kansas. Based on this tip, the FBI launched what turned into a months-long investigation into three Crusaders members: Stein, Curtis Allen, and Gavin Wright. Over the next several months, with the informant's help, the FBI recorded Stein, Allen, and Wright making plans to detonate multiple bombs at an apartment complex largely occupied by Somalian refugees. The investigation reached its conclusion on October 14, 2016, when Stein delivered approximately 300 pounds of fertilizer to an undercover FBI employee for the purpose of constructing a bomb. The FBI immediately arrested Stein1 and then obtained and executed a warrant to search Stein's home and vehicle.2
The search warrant affidavit listed 16 paragraphs of materials to be searched and seized, including: an extensive list of tools and materials that could be used to manufacture improvised explosive devices ("IEDs"), and any documents, computers, cell phones, or electronic storage devices that could hold information related to the conspiracy.
To support a finding of probable cause, the search warrant affidavit outlined Stein's involvement in the bomb conspiracy, beginning in February 2016 and ending with Stein's arrest in October 2016. Over that time, Stein and his co-conspirators frequently used violent rhetoric against Somali-Muslims, referring to them as "cockroaches." In February 2016, Stein and the FBI's informant conducted surveillance of local Somalian refugees, and Stein made several comments about needing to "eliminate" them; the informant also reported that Stein stated that he was looking for explosives to "blow things up."
In June 2016, Stein called for a meeting with the Crusaders; there, he proposed carrying out an attack against local Muslims as retribution for the night club shooting in Orlando, Florida. Later that same month, Stein, Allen, and the FBI's informant were part of a group call3 where Stein and Allen discussed surveilling the local Mosques, African Community Center, and several apartments occupied by Somali-Muslims. During this call, Stein stated he wanted to know where the Somalians are so they can "kill all of the motherf*cking cockroaches."
In July 2016, Stein, Allen, Wright, and the informant met in person at G & G Mobile Home Center ("G & G")—a business owned by Wright. During this meeting the group discussed a variety of potential places and people they could target; they also discussed different methods of attack. After this brainstorming session, they decided to pick a specific target and plan of action at their next meeting.
The group reconvened at G & G the following month. Stein and the others agreed to detonate four explosives at an apartment complex where a number of Somali-Muslims lived and where one of the apartments was used as a mosque. The plan was to fill four vehicles with explosives, park the vehicles at the four corners of the complex, and detonate the explosives remotely. Allen volunteered to make the explosives, indicating that he already possessed many of the raw materials needed. Stein was instructed to obtain a rock tumbler to assist in manufacturing the explosives. The affidavit also pointed out that Stein regularly took notes during these meetings and usually returned home with the notes afterwards.
During the investigation, the FBI informant introduced Stein to an FBI Undercover Covert Employee ("UCE") who was posing as a person who could supply the group with automatic weapons and parts for explosive devices. On October 12, 2016, Stein and the UCE met to discuss such a transaction. They agreed that Stein would provide cash and fertilizer to the UCE and, in exchange, the UCE would construct an explosive device for Stein. Although he did not specify where, Stein mentioned that he had the fertilizer about sixty miles away, which was roughly the distance of both Stein's residence and G & G.4 The next day, the UCE contacted Stein to set up delivery of the fertilizer. Stein agreed to deliver at least 300 pounds of fertilizer to the UCE the following morning. When Stein delivered the fertilizer, the FBI arrested him and applied for the warrant to search Stein's home and vehicle.
During the search of Stein's home, the FBI seized a laptop computer and upon further inspection discovered that the computer contained child pornography. On October 19, 2016, a grand jury indicted all three men with conspiring to use a weapon of mass destruction in violation of 18 U.S.C. §§ 2, 2332a.5 On March 16, 2017, in a separate criminal case, a grand jury indicted Stein with one count of possessing child pornography.
Before the trial in the first case, Stein filed a motion to suppress all evidence collected during the search of his home and vehicle, arguing the warrant was overbroad and lacked probable cause that evidence of the crime would be found in his home or vehicle. Stein also requested a Franks hearing to determine whether the search warrant affiant—Task Force Officer ("TFO") Chad Moore—omitted material facts that would taint the Magistrate Judge's determination that probable cause existed to search Stein's home.
The Court granted Stein's request and held a Franks hearing on March 19, 2018, where TFO Moore provided additional testimony. Stein's counsel elicited testimony from TFO Moore that the FBI possessed evidence indicating Stein did not own a computer. Stein attached four exhibits containing information that, he claims, vitiates probable cause to search Stein's residence for a computer. First, in April 2016, Stein instructed the FBI informant to avoid making plans on a computer because he did not want there to be a record. Second, in August 2016, Stein asked the informant if he knew anyone with a "decent laptop they [want to] get rid of ...?" When the informant replied that he did not, Stein responded: "You hear of anybody let me know." Third, three days later, Stein told the informant he had been "in desperate need [of a laptop] for some time ..." and that he does all his online activity on his phone because "it's all [he's] got." Fourth, on September 27, 2016, during a recorded conversation between the FBI informant and an unidentified person, the informant stated that Stein does everything on his phone and that Stein does not have internet or a computer. TFO Moore testified that the FBI never provided Stein with a computer.
Immediately following the March 19 Franks hearing, the Court orally denied Stein's motion to suppress. The case ultimately proceeded to trial, where a jury convicted Stein, Allen, and Wright on all counts.
On July 20, 2018, Stein filed the motion presently before the Court, requesting a Franks hearing and a suppression order. Stein raised substantially the same arguments in this motion that he raised in his other criminal suit. In his brief, Stein argues the FBI intentionally or recklessly omitted information in the affidavit that would have changed the Magistrate Judge's probable cause determination. He accordingly requested a hearing to determine if the affidavit contained any Franks violations. Stein also raised three arguments for suppressing all evidence obtained during the search of his home. First, Stein argued there was no nexus between his suspected crime and his residence. Second, Stein argued the search warrant was overbroad because it failed to list the items to be seized with particularity. Third, Stein argued the search warrant was overbroad because it authorized the seizure of a computer.
On September 11, 2018, the Court held a hearing on Stein's motion. Instead of asking for the Court to conduct a second Franks hearing to introduce new evidence, Stein requested the Court grant his motion for a Franks hearing and take judicial notice of the transcript and exhibits from the Franks hearing held on March 19, 2018, in his other criminal case. The Court agreed to follow that procedure. And the Court is now prepared to rule on Stein's motion to suppress.
Stein argues the affidavit supporting the warrant to search his home contained material omissions in violation of Franks v. Delaware .6 Under Franks , "a Fourth Amendment violation occurs if (1) an officer's affidavit supporting a search warrant application contains a reckless misstatement or omission that (2) is material because, but for it, the warrant could not have lawfully issued."7 If the Court finds the affidavit intentionally or recklessly omitted material information, suppression is the proper remedy.8 If, however, the Court concludes that the omitted information is not material, meaning it "would not have altered the [M]agistrate [J]udge's decision to authorize the search, then the fruits of the challenged search need not be suppressed."9 Thus, to determine materiality, the Court "must add in the omitted facts and assess the affidavit ...
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