United States v. Getzel CR-01-102-JD 04/19/02 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 01-102-JD Opinion No.

Paul Getzel

O R D E R

A grand jury returned an indictment against Paul Getzel,

charging him with possession and transportation of child

pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and §

2252(a)(1). He brings a renewed motion to suppress evidence

obtained as a result of a search of his home executed pursuant to

a warrant issued by this court on October 19, 2001. Getzel

argues that the search was unlawful because the affidavit that

formed the basis for the warrant was insufficient, and therefore

the warrant was issued without probable cause, in violation of

the Fourth Amendment of the Constitution.

Background1

In August of 2001, the German National Police

("Bundeskriminalamt," hereinafter "BKA") notified the United

1 For additional facts, see this court's order of January 24, 2002, denying Getzel's motion to suppress based on another ground. States Customs Service that the user of a certain America On Line

("AOL") screen name had posted news group messages that contained

images of child pornography. Pursuant to the information

provided by the BKA, the Customs Service investigated the screen

name and subsequently learned that the account subscriber was

Paul Getzel. The BKA provided the Customs Service with a CD-Rom

containing over forty-five images that were posted to the news

group from Getzel's account.

Subsequent investigation revealed that Paul Getzel was

employed by the Cardigan Mountain School, a day and boarding

school for boys in grades six through nine located in Canaan, New

Hampshire. The headmaster of the Cardigan Mountain School

informed U.S. Customs Special Agent James Lundt that Getzel lived

on the campus of the school.

On October 19, 2001, Agent Lundt swore out an affidavit in

support of an application for a warrant to search Getzel's

residence. In his affidavit he sets out facts to establish

probable cause that Getzel's residence contained evidence of the

crimes of possession and transport of child pornography in

violation of §§ 2252 or 2252A. In the affidavit. Agent Lundt

states that he has viewed the CD-Rom provided by the BKA, and

affirms that it shows images of minor children engaged in

sexually explicit conduct in violation of § 2252. Agent Lundt

2 describes the following images: (1) "file named Subject

pi51(l).jpg. This jpg image depicts a naked prepubescent child

male child [sic], kneeling in profile to the camera with an erect

penis."; and (2) "file named Jared39.jpg. This image depicts a

naked minor male reclined on a bed with his legs spread and

fondling his penis." (Lundt Aff. at 517.) Agent Lundt states

that four other images found on the CD-Rom depict the same minor

male in Jared39.jpg interacting with a naked adult male. In his

affidavit Agent Lundt describes these four images as follows:

a. Jared 06.jpg depicts the adult male performing oral sex on the same minor child as depicted in Jared39.jpg. b. Jared07.jpg depicts the same minor child depicted in Jared39.jpg with his face on the genitals of the adult male. c. Jared25.jpg depicts the same minor child depicted in Jared39.jpg performing oral sex on the adult male. d. Jared38.jpg depicts the same minor child depicted in Jared39.jpg in genital to genital contact with the nude male adult.

(Lundt Aff. at 518.) Agent Lundt did not attach the above

described images to his affidavit.

However, Agent Lundt did attach an image of Getzel from his

New Hampshire driver's license, together with image 17.JPG [sic],

which Agent Lundt affirms depicts the same minor male and adult

depicted in the CD-Rom images described above.2 The image 17.JPG

2In his affidavit Agent Lundt does not state where or how he acquired 17.JPG. He does not expressly state that 17.JPG was found on the CD-Rom.

3 depicts a naked pre-pubescent male lying down next to a naked

adult male on what appears to be a bed against a wall. Both are

on their backs. The genitalia of both the boy and the adult are

fully visible. The adult's head and left shoulder appear to be

propped against the wall. The adult has his right arm around the

boy's shoulders, and the boy's head appears cradled in the right

arm of the adult. The adult's head and the boy's head are

leaning in towards each other and are touching. The adult's body

is angled towards the boy, and his right leg is bent somewhat,

covering a portion of the boy's left leg.

Agent Lundt states that he compared the image from Getzel's

driver's license to 17.JPG, and found that the adult male in

17.JPG shares substantially similar facial features as those seen

in Getzel's license photo, although the adult male in 17.JPG

appears not to be as bald as the male in Getzel's driver's

license picture. Agent Lundt also affirms that the adult male

seen in 17.JPG fits the physical description of Getzel indicated

on his driver's license, including height, weight, and hair

color.

Based on the information presented in Agent Lundt's

affidavit and attachments, the magistrate judge issued a warrant

to search Getzel's residence, the premises known as "efficiency

apartment, Hinman Dormitory, Firts [sic] Floor South, 10 Back Bay

4 Road, Canaan, N.H." (Government Ex. 3). At approximately 6:30

p.m. on October 19, 2001, Agent Lundt and two other U.S. Customs

Special Agents executed the warrant. During the search, the

agents seized Getzel's computer and two computer storage

diskettes. Getzel returned to the premises during the search and

engaged in discussion with the agents.

Discussion

Getzel moves to suppress all evidence resulting from the

search of his residence on October 19, 2001, including two

computers and computer storage diskettes, which contained the

images for which he is now being prosecuted, and statements he

made to agents during the course of the search. Getzel asserts

that the search was unlawful, arguing that Agent Lundt failed to

provide the magistrate with sufficient information to find there

was probable cause to believe that images in Getzel's computer

constituted "child pornography" under § 2256(8) in that they

depicted "sexually explicit conduct" under § 2256(2). The

government objects, and in the alternative asserts that if the

information set forth in the affidavit did not support a finding

of probable cause, the exclusionary rule should not apply here

because the agents who conducted the search relied in good faith

on the warrant.

5 A. Probable Cause

The Fourth Amendment provides that "no [w]arrants shall

issue, but upon probable cause, supported by [o]ath or

affirmation . . . The magistrate who issues a warrant must

make a "practical, common-sense decision whether, given all the

circumstances set forth in the affidavit before him, . . . there

is a fair probability that contraband or evidence of a crime will

be found in a particular place." Illinois v. Gates,

(1983). "'The magistrate is entitled to go beyond the

averred facts and draw upon common sense in making reasonable

inferences from those facts.'" United States v. Hernandez,

(D.P.R. 2002), quoting United States v.

Falon,

(1st Cir. 1992) (quotation omitted).

In child pornography cases, where the existence of criminal

conduct often depends solely on the nature of pictures, the

judicial determination of probable cause is especially important.

See United States v. Brunette,

(1st Cir. 2001);

Hernandez,

. A search warrant may issue

only where there is probable cause to believe that a given image

falls within the statutory definition of child pornography. See

Brunette,

; Hernandez,

.

A bare legal assertion, absent any descriptive support and

6 without an independent review of the images, is insufficient to

sustain a finding of probable cause. Brunette,

(holding that warrant was issued without probable cause where

affiant did not give detailed factual description of images and

magistrate did not independently review the images).

In determining probable cause, the magistrate considers the

totality of circumstances, including the level of experience of

the affiant and the extent of the surrounding investigation.

Brunette,

(finding that affiant investigator's

lack of experience with child pornography cases operated to

reduce the weight of his description of images) ; .cf. United

States v. Smith,

(9th Cir. 1986) (affirming

reliance on affidavit of experienced postal inspector to support

issuance of search warrant in child pornography case).

Agent Lundt applied for a search warrant seeking evidence of

violations of §§ 2252 and 2252A, prohibiting the possession and

transport of child pornography, which is defined in § 2256(8) as

"sexually explicit conduct." Section 2256(2) defines "sexually

explicit conduct" as:

actual or simulated: (A) sexual intercourse, including genital-genital, oral- genital, anal-genital, or oral-genital, whether between persons of the same or opposite sex; (B) bestiality; (C) masturbation; (D) sadistic or masochistic abuse; or (E) lascivious exhibition of the genitals or pubic area of

7 any person;

§ 2256(2)(A-E). Getzel asserts that neither 17.JPG nor the

descriptions of six other images provided by Agent Lundt in his

affidavit met the definition for sexually explicit conduct under

§ 2256(2), therefore the warrant was issued without probable

cause.

The court begins by examining 17.JPG, the image attached to

Agent Lundt's affidavit and viewed by the magistrate. Since it

does not fall into the other categories of sexually explicit

conduct listed in § 2256(2)(A)- (D), the court will evaluate the

image to determine if it is a lascivious exhibition of the

genitals or pubic area pursuant to § 2256(2) (E) .

Because the identification of images as lascivious is a

subjective determination, that assessment should be made by a

judge, not an agent. See Brunette.

. "A judge

cannot ordinarily make this determination without either a look

at the allegedly pornographic images, or at least an assessment

based on a detailed, factual description of them." Brunette,

. The First Circuit applies a six-part test to

determine if an image depicts a lascivious exhibition of genitals

or pubic area, as prescribed in § 2256(2) (E) . The factors in the

test, known as the Dost factors, are:

(1) whether the genitals or pubic area are the focal point

8 of the image; (2) whether the setting of the image is sexually suggestive (i.e. a location generally associated with sexual activity); (3) whether the child is depicted in an unnatural pose, or inappropriate attire considering his/her age; (4) whether the child is fully or partially clothed, or nude ; (5) whether the image suggests sexual coyness or willingness to engage in sexual activity; and (6) whether the image is intended or designed to elicit a sexual response in the viewer.

United States v. Dost,

(S.D.Cal. 1986) aff'd sub

nom., United States v. Weiqand,

(9th Cir.

1987), Quoted in United States v. Amirault,

(1st

Cir. 1999). Factor six, whether the image was intended or

designed to elicit a sexual response, takes into consideration

the image's design and whether any of the other factors have been

met. See Amirault.

. "[TJhese factors,

although ''generally relevant, ' are not comprehensive and each

determination of whether an image contains a lascivious display

is necessarily case specific." See United States v. Hilton,

(1st Cir. 2001), quoting Amirault,

.

In 17.JPG, the image is taken from a horizontal vantage

point near the subjects' feet and presents their genitalia at the

forefront of the image. The boy is depicted in an unnatural

pose, considering his age. The way the adult has his arm around

the boy, while both lie naked with their genitalia exposed, is

not a natural pose for a minor male, and the boy in the image

9 looks stiff and uncomfortable. The overall positioning of the

boy and the adult, naked, with their genitalia prominently

displayed, on what appears to be a bed, engaged in an intimate

embrace, suggests a sexual atmosphere. Taking into account the

Dost factors, the court concludes that the image is intended to

elicit a sexual response from the viewer. The court finds that

image 17.JPG constitutes a lascivious exhibition of the genitals

under § 2256(2)(E).

Agent Lundt described the remaining images, but did not

attach copies of them for the magistrate's review. Since the

magistrate did not view the images, the court will determine

whether they meet the statutory definition by applying the Dost

factors to Agent Lundt's description of each image. According to

Agent Lundt's affidavit, SubjectPiSl (1) .jpg depicts a "naked

prepubescent male child, kneeling in profile to the camera with

an erect penis." Given the boy's position in profile before the

camera, it is probable that the child's erect penis is the focal

point of the image. Although kneeling in profile is not per se

an unnatural pose, the court is hard-pressed to imagine an

instance where it would be natural for a naked boy to pose in

profile with an erection. Cf. Hernandez,

-

76 (finding that where description of image of girl putting on

ballerina outfit did not address her pose, court could not

10 determine if pose was unnatural). While there is nothing in

Agent Lundt's description of the image to suggest willingness on

the boy's part to engage in sexual activity, the erection is

highly suggestive of sexuality. Taking all the factors together,

the image SubjectPiSl(1).jpg, as described, is intended or

designed to elicit a sexual response in the viewer. Like 17.JPG,

Subject 51(1).jpg constitutes a lascivious exhibition of genitals

under § 2256(2) (E) .

Agent Lundt's descriptions of the five other CD-Rom images

were sufficiently detailed and factual for the court to assess

their nature. Cf. Brunette,

(holding that agent's

conclusory statement that image met the statutory definition was

not sufficiently detailed and factual). Based on Lundt's

descriptions, the images in Jared06.jpg, Jared07.jpg,

Jared25.jpg, Jared38.jpg, and Jared39.jpg depict forms of sexual

intercourse, oral sex, genital-genital contact, oral-genital

contact, and also masturbation. These are all sexually explicit

conduct as defined in § 2256(2)(A) and (C).

Getzel contends that Agent Lundt's descriptions of the CD-

Rom images are insufficient to constitute the statutory

definitions of "sexual intercourse," because the description of

the younger male in the images as a minor is Agent Lundt's

conclusion, and was not determined by the court's independent

11 review of the images in question. Agent Lundt, a Customs Service

agent for over twenty-seven years, states that he has been

personally involved with twelve child pornography investigations.

Agent Lundt affirms that the boy depicted in 17.JPG is the same

boy depicted in the CD-Rom images, and upon reviewing 17.JPG the

court finds that the boy is clearly a minor. Furthermore, Getzel

argues out that Agent Lundt did not allege that the boy in the

images was naked during the acts depicted in the CD-Rom images.

However, § 2256(2) does not require that a minor depicted in

sexually explicit conduct be naked.

Given the totality of circumstances presented in Agent

Lundt's affidavit, including his previous experience with child

pornography investigations, the court finds that the magistrate

had a very substantial basis for finding probable cause to issue

the search warrant for evidence of child pornography.

B. Good Faith Exception

The government also argues that even if the warrant lacked

probable cause, the evidence from the search would still be

admissible pursuant to the "good faith" exception. Since the

court has found that the magistrate had probable cause to issue

the warrant, there is no need to consider this exception.

12 Conclusion

Getzel's renewed motion to suppress (document no. 24) is

denied.

SO ORDERED.

Joseph A. DiClerico, Jr. District Judge

April 19, 2002

cc: Bjorn Lange, Esquire U.S. Attorney U.S. Probation U.S. Marshal

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