US v. Villard
| Decision Date | 11 February 1988 |
| Docket Number | Crim. No. 87-326. |
| Parties | UNITED STATES of America, Plaintiff, v. Robert David VILLARD, Defendant. |
| Court | U.S. District Court — District of New Jersey |
Samuel A. Alito, Jr., U.S. Atty. by Howard Wiener, Asst. U.S. Atty., Office of U.S. Attorney, Camden, N.J., for plaintiff.
Roger Jon Diamond, Hecht, Diamond & Greenfield, Pacific Palisades, Cal., for defendant.
This matter comes before the court on the motion of defendant Robert Villard for an order suppressing certain evidence seized from defendant's residence in Van Nuys, California, on September 9, 1987 pursuant to a search warrant issued by a municipal court judge in California. The facts regarding the search of defendant's apartment were ascertained in a preliminary hearing held before this court on November 20, 1987. At that hearing, William H. Dworin, a detective and United States Deputy Marshal assigned to a multi-agency sex crimes task force in Los Angeles, California, testified. Detective Dworin was one of the officers who arrested the defendant in California for the federal charges pending here. Subsequent to that arrest, the detective prepared a state warrant for the search of the defendant's apartment. Detective Dworin was also the principal officer involved in executing the warrant. The detective also testified as an expert on child pornography and the behavior of pedophiles. (Tr. at 3-5).
On September 9, 1987, Detective Dworin accompanied Special Agents Michael Randolph and Alan Rogers of the F.B.I. to the defendant's apartment in Van Nuys. They were armed with an arrest warrant based on federal indictments issued in New Jersey. The indictments allege that the defendant transported child pornography across state lines.
The officers knocked on Mr. Villard's apartment door at approximately 7:20 a.m. Villard appeared at the door in a bathrobe and was told that the officers had a warrant for his arrest. The three officers followed Villard into his apartment so that the defendant could dress. Detective Dworin proceeded into the two back rooms of the apartment, a bedroom and a den, in order to ensure that they were empty of persons who might present a threat to the officers. This included a look into closets to insure that no one was concealed there. The detective observed a young male asleep on the floor of the defendant's bedroom. Detective Dworin had previously investigated the defendant regarding the possible exploitation of children and had entered the defendant's apartment on at least two previous occasions since 1980. On both of those occasions there had been juveniles engaged in legitimate photo sessions in Villard's apartment and further investigation had determined that no illegal activity had taken place with respect to those juveniles. (Tr. at 6, 80).
Having ascertained no threat to the officers, the detective awakened the young male, who was fully dressed. The boy indicated that he was a fifteen year old model and that he had obtained his mother's permission to remain overnight at the defendant's apartment following a late photography session. The detective knew that the defendant is self-employed as a child agent and photographer. The boy further indicated, under questioning, that he had not been molested in any way. Based on his experience in the field, the detective believed the boy's statements. (Tr. at 11-12). The detective directed the boy to call home on a telephone located on a night-stand by the bed. While the boy spoke to his mother, the detective stood by, waiting to speak to her when the boy was finished.
Detective Dworin stood between the bedroom doorway and the bedroom closet doorway, which are in close proximity to one another on the same wall, opposite the bed. The sliding closet door was ajar, possibly as a result of the cursory inspection of the premises which the detective had conducted. Detective Dworin testified that while he was standing there waiting to speak to the boy's mother, he was just "looking around." (Tr. at 17). Within the closet, on a shelf recessed approximately one and a half feet from the closet door, he observed a black "notebook" type ring binder. (Exhibit G-4). The binder was open on the shelf, which is approximately five-feet nine inches from the floor. The binder was stacked on top of some other items which were a few inches high. The binder was apparently located in a position on the right side of the shelf so that the right portion of the binder was at least partially behind the wall of the closet and the left cover of the binder was within the closet doorway. (Exhibit G-1). The sliding closet door emerges from the right door jam. (Exhibit D-1). The door was "ajar," but there was no testimony regarding how far it was open, or to what extent it obscured the binder. (Tr. at 18).
The detective is approximately six feet in height and the binder was at approximate eye level to him. He observed there were pages of photographic slides stacked on the right cover of the binder. Some of the pages were attached to the binder rings. A few were lying on top, unattached. The detective could not ascertain the content of these slides whatsoever from his vantage point. (Tr. at 18-21; Exhibit G-4).
The detective lifted the top-most loose page of slides, removed it from the closet, held it up to the light and viewed it "casually." (Tr. at 26). One slide, the third from the top left, caught his eye. He observed it to be a slide of two juveniles, nude, and apparently engaged in sexual activity. (Tr. at 29). On direct exam, the detective described his viewing of the page of slides as follows:
(Tr. at 30).
On cross examination the detective elaborated:
After returning to his office, the detective prepared a search warrant and executed an accompanying affidavit. Therein, he testified as to his years of experience and expertise in the investigation of pedophiles and child exploiters. This included his awareness that such persons frequently use photographic materials to entice children and to lower their inhibitions. The detective also related his episode with the slides in defendant's apartment:
To continue reading
Request your trial
-
People v. Machupa
...a presumptively valid warrant."]; cf. United States v. Milian-Rodriguez (11th Cir.1985) 759 F.2d 1558, 1563, fn. 2; United States v. Villard (D.N.J.1988) 678 F.Supp. 483.) In declining to validate warrantless searches on the basis of the post hoc issuance of a warrant, these Court of Appeal......
- Delaware Valley Transplant Program v. Coye, Civ. A. No. 88-0548(SSB).
-
U.S. v. McClain
...probable cause is illegally obtained"), aff'd sub nom. United States v. Mallory, 8 F.3d 23 (5th Cir.1993) (table); United States v. Villard, 678 F.Supp. 483, 490 (D.N.J.1988) (holding that "Leon did not address the admissibility of evidence seized under a warrant that was based on informati......
-
Fitzgerald v. State
...v. Carter, 69 Ohio St.3d 57, 630 N.E.2d 355, 362-64 (1994); State v. Scull, 639 So.2d 1239, 1245 (La.App.1994); United States v. Villard, 678 F.Supp. 483, 490 (D.N.J.1988). 2. The Threshold Requirement Of Fourth Amendment The preceding discussion as to the more favorable standard of review ......