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United States v. Walling

United States District Court, W.D. Michigan, Southern Division

April 10, 2017

United States of America, Plaintiff,
v.
Justin Michael Walling, Defendant.

          OPINION AND ORDER DENYING MOTION TO SUPPRESS

          Paul L. Maloney United States District Judge

         This 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.)

         I. Background

         On May 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, 156-59.)

         The 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 this motion.

         In his 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.)

         Hesche 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 PageID.143-44.)

         For his 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.

         II. General Legal Framework

         The 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)).

         A 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).

         A court 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.

         Further, 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.

         A 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).

         III. Analysis

         A. Probable Cause

         a. 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).

         Ample 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.

         The 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.)[1] 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.

         Thus, 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 minors.”

         b. Sufficient probable cause did not exist to support the search warrant as to receipt or distribution of child pornography (18 U.S.C. § 2252A).

         On balance, the information contained in the “four corners of the affidavit” does not support that the magistrate judge had a substantial basis to conclude[2] probable cause existed to search for evidence of child pornography under the totality of the circumstances.

         The factual circumstances that gave rise to the search warrant for child pornography here closely resemble those in Hodson, even though Hodson is ultimately distinguishable.

         Here, 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 ...


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