United States District Court, W.D. Michigan, Southern Division
OPINION AND ORDER DENYING MOTION TO SUPPRESS
L. Maloney United States District Judge
matter is before the Court on Defendant Justin Walling's
motion to suppress evidence from the search warrant and
statements during the search and for application of the
exclusionary rule. (ECF No. 16.) A hearing was held on March
28, 2017 (ECF No. 23), and the Court directed the parties to
file supplemental briefs, which have now been considered.
(See ECF Nos. 25, 26.)
17, 2016, a search warrant was authorized by Magistrate Judge
Ray Kent for the residence of Justin Walling, 822 Grindle
Drive, Lowell, MI. The warrant authorized the search and
seizure of all “property, evidence, fruits, and
instrumentalities of 18 U.S.C. § 2422(b) (coercion and
enticement of a minor) and 1470 (transfer of obscene material
to minors, ” (ECF No. 21-1 at PageID.159), along with
evidence of the receipt or distribution of child pornography
(18 U.S.C. § 2252A). (Id. at Page ID.119-20,
warrant was sought by Deputy Sheriff Phillip Hesche,
(id. at PageID.117), who's assertions in his
affidavit regarding child pornography are most relevant to
affidavit, Deputy Hesche, an officer with ten years of
experience asserted: “There is probable cause to
believe that a person using the Internet at 822 Grindle
Drive, Lowell MI is a collector of child pornography based on
the number of requests made to a presumably 14 year old minor
child for photograph, as well as having graphically sexual
conversation with an investigator working under the cover of
the aforementioned 14 year old child.” (Id. at
PageID.146.) Deputy Hesche further concluded that
“[t]here is probable cause to believe that an
individual using the Internet service registered to address
822 Grindle Drive, Lowell, MI is a child pornography
collector using Facebook Messenger, KiK Messneger, and other
similar chat services to trade or solicit child pornography.
Such activity is indicative that a user of the Internet
service registered to address 822 Grindle Drive, Lowell, MI,
fits the characteristics of a collector of child
pornography.” (Id. at PageID.148.)
based his conclusions on a series of very troubling, sexually
graphic conversations where Justin Walling, who advertised
himself as “Justin Blade, ” solicited pictures
and conversation with an undercover detective who he assumed
was fourteen-year-old girl; in one conversation, Walling
admitted to having sexual contact with ten girls under the
age of 18. (ECF No. 21-1 at PageID.142.) In addition,
Walling, a convicted sex offender, had been convicted of
multiple counts of criminal sexual conduct and possession of
child sexually abusive materials. (Id. at
part, Walling essentially argues that Hesche bootstrapped
those conversations-perhaps otherwise probable cause for
coercion or enticement-to justify a fishing expedition for
child pornography. As the Sixth Circuit once described a
similar case: the warrant “established probable cause
for one crime (child molestation) but designed and requested
a search for evidence of an entirely different crime (child
pornography), ” and thus, “the warrant did not
authorize the search.” United States v.
Hodson, 543 F.3d 286, 292 (6th Cir. 2008). The United
States avers that Hodson is distinguishable because
here there was independent probable cause for at least child
coercion and enticement. The parties then disagree about
whether severance saves the warrant.
General Legal Framework
Fourth Amendment requires search warrants be issued only upon
probable cause. U.S. Const. amend IV; Dalia v. United
States, 441 U.S. 238, 255 (1979); United States v.
Laughton, 409 F.3d 744, 747 (6th Cir. 2005). Probable
cause is a “fluid concept - turning on the assessment
of probabilities in particular factual contexts - not
readily, or even usefully, reduced to a neat set of legal
rules.” Illinois v. Gates, 462 U.S. 213, 223
(1983). Probable cause exists when, under the totality of
circumstances, there is a fair probability evidence of a
crime will be found in a particular place. Gates,
462 U.S. at 238; United States v. Greene, 250 F.3d
471, 479 (6th Cir. 2001) (quoting United States v.
Davidson, 936 F.2d 856, 859 (6th Cir. 1991); see
also Laughton, 409 F.3d at 747 (explaining there must be
a nexus between the place to be searched and the evidence
sought) (quoting United States v. Carpenter, 360
F.3d 591, 594 (6th Cir. 2004) (en banc)).
magistrate's determination of probable cause should be
afforded great deference by a reviewing court. United
States v. Leon, 468 U.S. 897, 914 (1984);
Gates, 462 U.S. at 236; Greene, 250 F.3d at
478. The proper standard of review for the sufficiency of an
affidavit is whether the magistrate had a “substantial
basis” for finding the affidavit established probable
cause “to believe that the evidence would be found at
the place cited.” Leon, 468 U.S. at 915
(quoting Gates, 462 U.S. at 239); Greene,
250 F.3d at 478 (quoting Davidson, 936 F.2d at 859).
Because magistrates issue warrants under a
totality-of-the-circumstances approach, reviewing courts
should avoid scrutinizing the supporting affidavit
line-by-line. Gates, 462 U.S. at 246 n. 14;
Greene, 250 F.3d at 479. The decision should only be
overturned if the magistrate exercised his or her discretion
arbitrarily. United States v. Allen, 211 F.3d 970,
973 (6th Cir. 2000).
reviewing the sufficiency of the evidence supporting a
finding of probable cause is limited to the information
presented in the four corners of the affidavit. United
States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005)
(citing Whiteley v. Warden, Wyoming State
Penitentiary, 401 U.S. 560, 565 n. 8 (1971)). Reviewing
courts should examine the affidavit supporting the
application for a search warrant in a common sense, rather
than a “hypertechnical, ” manner. Gates,
462 U.S. at 236 (quoting United States v. Ventresca,
380 U.S. 102, 109 (1965)); Greene, 250 F.3d at 479.
even if a search warrant lacked probable cause, the
exclusionary rule will not be used to exclude all evidence
found in that search if the officers relied in “good
faith” on the magistrate's issuance of the warrant.
Leon, 468 U.S. at 913, 920.
defendant who seeks to suppress evidence secured with a
search warrant bears the burden of proof to show that such
evidence should be excluded. United States v.
Feldman, 606 F.2d 673 (6th Cir. 1979).
Sufficient probable cause existed to support the search
warrant as to coercion and enticement of a minor (18 U.S.C.
§ 2422(b)) and transfer of obscene material to minors
(18 U.S.C. § 1470).
evidence in the warrant supported probable cause to search at
least some items as to alleged coercion and enticement and
transfer of obscene material to minors. Defendant had
sexually graphic conversations with a presumably
fourteen-year-old girl, talked about having sexual contact
with her (and other minor girls), and sought to coerce or
entice her for sex. Moreover, Defendant indisputably sent a
picture of his penis to the presumably fourteen-year-old
girl. The affidavit established the necessary nexus between
the conversation and image and Justin Walling, and the
affidavit established Walling's devices at his residence
as the origin of those conversations.
search warrant affidavit states that the items listed
“will be searched and seized to locate property,
evidence, fruits, and instrumentalities of 18 U.S.C.
§§ 2422(b) (coercion and enticement of a minor) and
1470 (transfer of obscene materials to minors).” (ECF
No. 21-1 at PageID.159.) This distinguishes this case from
United States v. Hodson, 543 F.3d 286 (6th Cir.
2008), because in that case, the affidavit “established
probable cause to search for evidence of one crime
(child molestation) but designed and requested a search for
evidence of an entirely different crime (child
pornography).” Id. at 289 (emphasis added). By
contrast, the affidavit in this case established probable
cause to search for evidence of two crimes but designed and
requested a search for evidence of three crimes, as the Court
will discuss in more detail below.
the Court finds, contrary to Defendant's arguments on
this point, ample probable cause existed to search the
residence for evidence of “coercion and enticement of a
minor” and “transfer of obscene materials to
Sufficient probable cause did not exist to support the search
warrant as to receipt or distribution of child pornography
(18 U.S.C. § 2252A).
balance, the information contained in the “four corners
of the affidavit” does not support that the magistrate
judge had a substantial basis to conclude probable cause
existed to search for evidence of child pornography
under the totality of the circumstances.
factual circumstances that gave rise to the search warrant
for child pornography here closely resemble those in
Hodson, even though Hodson is ultimately
similar to Hodson, the defendant engaged in
inappropriate and sexually graphic conversations with who he
assumed to be a minor, shared information that suggested he
had sexual contact with other minors, and solicited the minor
for sex. Based on that sort of behavior, the officer felt
probable cause existed to support a search for evidence of
child pornography. As in Hodson, no
independent factual evidence contained in the four
corners of this affidavit supported probable cause that
evidence of a “collection of child pornography”
was likely to be found in Walling's residence.
(See ECF No. 19 at PageID.93.) While two factual
dissimilarities with Hodson ...