United States v. Lipscomb
United States v. Lipscomb
Opinion of the Court
This matter comes before the court on the Defendant's Motion to Suppress, filed on May 24, 2019. ECF No. 15. The Defendant argues that all evidence of child pornography obtained pursuant to a search of his residence and electronic devices should be suppressed, because the facts alleged in support of the search warrant were not sufficient to show probable cause that child pornography would be found on these electronic devices. Id. The United States filed a Response on June 5, 2019, arguing that the search warrant executed for the Defendant's electronic devices was supported by probable cause. ECF No. 23. The Defendant filed a Reply on June 10, 2019. ECF No. 27. On June 11, 2019, the court held a hearing on the Motion to Suppress, at which evidence and argument were presented by counsel for the parties.
I.
On November 14, 2018, S.D. Lacy, an investigator with the Isle of Wight County Sheriff's Office, applied for a warrant to search all the electronic devices at a home in Newport News. ECF Nos. 15-1, 28-1 ("search warrant application" or "application"). Lacy intended to search for evidence of a possible violation of Va. Code § 18.2-374.3, which prohibits using "communications systems," such as the Internet, *683to facilitate either the procurement of child pornography or the taking of indecent liberties with a minor. Appl. at 1. Lacy specifically intended to search "[t]he content of [computers, phones, and other electronic devices] for information about the user/identity and any information relating to the solicitation, possession, reproduction, or distribution of Child Pornography including images and videos classified as Child Pornography." Id.
In support of his application, Lacy submitted a sworn affidavit, in which he stated that he maintains an "undercover account" on a website called "Skout.com," in which he poses as a sixteen year-old girl. Id. at 4. On October 19, 2018, Lacy was contacted on his undercover account by a user claiming to be another sixteen year-old girl, using the pseudonym "Misstiff." Id. "Misstiff" requested that the conversation be transferred to the online messaging service "Kik," although on Kik the unknown user went by the pseudonym "tiffany4ualways." Id.
Lacy stated that "tiffany4ualways" tried to solicit nude photos from his undercover account. Id. Specifically, "tiffany4ualways" requested "full naked body pics face all in pic." Id. Following this one message exchange, Lacy subpoenaed Kik, which provided him with the Cox and T-Mobile IP addresses that had sent these "tiffany4ualways" messages. Id. He then subpoenaed Cox, which provided a home address for the Cox account holder with the "tiffany4ualways" IP address. Id. The only information provided by Cox regarding the possible residents of the home is that the Cox account holder was a person named "Tonya Shears." Id.
Lacy then applied for a warrant to search the home for all electronic devices at the location, and the content thereof. Id. In support of the warrant application, Lacy recounted the facts of the October 19, 2018 message exchange, and his subsequent subpoenas to Kik and Cox. Id.
The requested search warrant was issued by the state magistrate. Id. at 1. Investigators executed a search of the home on November 16, 2018. Mot. Suppress at 3. During the search, the investigators recovered several electronic devices, and also interviewed the Defendant. Id. at 4.
II.
The Fourth Amendment of the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. "In order to effectuate the Fourth Amendment's guarantee of freedom from unreasonable searches and seizures," defendants have the right, "upon motion and proof, to have excluded from trial evidence which ha[s] been secured by means of an unlawful search and seizure." Simmons v. United States,
When police undertake a search in order to discover evidence of a crime, the Fourth Amendment's reasonableness standard generally requires them to obtain a search warrant. Riley v. California,
A reviewing court "will not defer to a warrant based on an affidavit that does not 'provide the magistrate with a substantial basis for determining the existence of probable cause.' " Leon,
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.
*685Probable cause "exist[s] where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found" in the place to be searched. Ornelas v. United States,
Even where the reviewing court finds that a search was not supported by probable cause, however, the "good faith" exception may apply. The "good faith" exception to the warrant requirement provides that evidence need not be suppressed when the police obtain such evidence through a good faith reliance on a facially valid warrant, even if such warrant is later found to lack probable cause. Leon,
There are four (4) specific situations where the executing officers have "no reasonable grounds for believing that the warrant was properly issued," and where evidence must therefore be suppressed, even though it was obtained pursuant to a search warrant: (1) the warrant application contains false or misleading information; (2) the magistrate "wholly abandoned his judicial role" by failing to act as a neutral decisionmaker; (3) the warrant application is "so lacking in indicia of probable cause" that the executing officers cannot reasonably believe there is probable cause for the search; (4) the search warrant is so vague-by failing to state with particularity the place to be searched or the things to be seized-that the executing officers cannot reasonably believe it is a valid warrant.
III.
In his Motion to Suppress, the Defendant argues that police lacked probable cause to search the electronic devices in his residence because the warrant application did not contain sufficient information to reasonably support a conclusion that evidence of a crime would be found on the electronic devices. Mot. Suppress at 5. The Defendant points to the fact that, in the message exchange that preceded the search of the Defendant's residence, "tiffany4ualways" only solicited "full naked body pics face all in pic" from the undercover *686account, which the Defendant argues is not a solicitation of "child pornography" as that term is defined by law.
The Defendant's argument relies heavily on United States v. Doyle,
The warrant application submitted to the state magistrate did not provide a "substantial basis" from which to conclude that evidence of child pornography would be found on "any and all" of the electronic devices in the home associated with the Cox and Kik accounts. See Gates,
"Child pornography," as that term is defined in Virginia law, requires more than mere nudity of an underaged person. Doyle,
Therefore, the question becomes whether the one message exchange, soliciting naked photos, by itself creates probable cause that child pornography would be recovered on electronic devices in the home identified in response to the Cox subpoena. See Ornelas,
Although the warrant application describes the behaviors typical of child pornography collectors, which information is based on Lacy's experience investigating this type of crime,
IV.
Although the warrant application did not demonstrate probable cause to search the electronics devices in the Defendant's residence, this does not end the court's inquiry on the Defendant's Motion to Suppress. Rather, the court must consider whether the "good faith" exception applies to the November 16, 2018 search.
There are no facts before the court that the warrant application contained false or misleading information, or that the state magistrate failed to act as a neutral decisionmaker. The Defendant has also not argued the search warrant failed to state with particularity the place to be searched or the things to be seized. See Mot. Suppress. Accordingly, the good faith exception will apply in this case, unless the warrant application is "so lacking in indicia of probable cause" that the executing officers could not have reasonably believed there was probable cause for the search. Leon,
*688At the June 11, 2019 hearing, the court received limited evidence and argument on the good faith exception, with the focus of counsel primarily fixed on the issue of probable cause.
V.
Having concluded that the warrant application did not demonstrate probable cause to search the electronic devices in the Defendant's residence, the court DIRECTS the parties to contact the Calendar Clerk to schedule a second hearing to address the good faith exception. The court further DIRECTS the parties to submit additional briefing on the good faith exception, outlining their positions in advance of the hearing.
IT IS SO ORDERED.
The application does not state that Lacy sought information from T-Mobile about the T-Mobile IP address. See Appl.
The record is silent as to any additional facts about Tonya Shears. Neither party has made known to the court whether she is, or was, an owner or resident of the home that the investigators searched, or if she has any other connection to this case.
There is no record evidence of Lacy's training and experience in these types of investigations, or otherwise, other than this summary assertion in the search warrant application.
The record is silent as to how investigators determined that the home they were searching was the Defendant's residence, see supra note 2 and accompanying text, or why it was determined that the Defendant should be interviewed. The legal propriety of the Defendant's interview was not raised in either the Motion to Suppress or at the hearing on June 11, 2019, except to the extent that the Defendant seeks to suppress "any and all evidence derived from the search" of his residence. Mot. Suppress at 7. Counsel may need to clarify whether this suppression includes statements made during the Defendant's interview on November 16, 2018. See infra note 9 and accompanying text.
In Doyle, the Fourth Circuit was analyzing the Virginia state law definition of "child pornography."
This conclusion is not to imply or hold that a single message exchange cannot establish probable cause for a search warrant for child pornography, but under this fact-specific scenario, it does not so establish.
See supra note 3 and accompanying text.
The only evidence introduced to support the good faith exception was a transcript of the message exchange between "tiffany4ualways" and Lacy's undercover internet account. ECF No. 28-2 (exhibit from the hearing of June 11, 2019).
In this briefing, the parties shall also advise the court whether there are any suppression issues regarding the Defendant's interview or any other evidence, other than those related to the electronic devices seized from the residence on November 16, 2018. See supra note 4. If there are further such matters, the parties shall also provide briefing of their positions in this regard.
Reference
- Full Case Name
- United States v. Shawn LIPSCOMB
- Status
- Published