United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR
RECONSIDERATION (Dkt. 77)
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE
criminal prosecution for production and possession of child
pornography under 18 U.S.C §§ 2251(a), 2252A(a)(2),
2252A(a)(5)(B), Defendant has moved for rehearing (Dkt. 77)
on this Court's previous denial of his second Motion to
Suppress (Dkt. 75). For the reasons outlined below,
Defendant's Motion for Rehearing is DENIED.
Court adopts the background and facts set out in the Order of
October 21, 2016 denying Defendant's first Motion to
Suppress, Dkt. 42, and presents the following additional
April 14, 2016, Defendant's home and personal computer
were searched for child pornography pursuant to a warrant
that was issued after Defendant's home IP address was
discovered on a subpoenaed list of IP addresses that
connected to a URL containing child pornography. Dkt. 42 at
Pg ID 248. The agents performing the search found several
child porn videos on Defendant's computer and asked if he
wanted to explain why he possessed the material. Id.
Defendant was read his Miranda rights and signed a
waiver of those rights. Id.; see also Dkt.
41-3 at Pg ID 246. During that interview Defendant admitted
to photographing and recording his step-daughter-with whom he
shared a home-in the shower, and to viewing other child
pornography on the Internet. Dkt. 41-2 at Pg ID 242-43.
was indicted on April 21, 2016. Dkt. 12. On September 16,
2016 he filed a Motion to Suppress arguing that the evidence
seized from his home and the statements he made were obtained
pursuant to a stale search warrant. Dkt. 33. On October 20,
2016 a hearing was held on that motion before the Honorable
John Corbett O'Meara. On October 21, 2016, Judge
O'Meara denied Defendant's Motion to Suppress. Dkt.
Defendant's first suppression motion was denied, his
counsel withdrew. Dkt. 46. On August 8, 2017, Defendant's
newly-appointed counsel filed a second Motion to Suppress,
this time arguing the warrant application and affidavit were
not supported by probable cause. Dkt. 52. The motion advanced
the following claims concerning the sufficiency of the
1) Paragraphs 9-11 alleged that Bulletin Board A-where the
link to the URL that Defendant's IP address connected to
was posted-was used by its members for posting and viewing
child pornography, but the rest of the affidavit contained no
information indicating Defendant was a member of Bulletin
2) Paragraph 16 of the Affidavit, which stated
Defendant's IP address was used to “access,
download, and/or attempted to download file content
associated with [the] URL, ” made this statement based
only on one visit to a URL hosted by a File Sharing Service
by Defendant's IP address, and thus provided no evidence
regarding whether that visit was even intentional or whether
it resulted in the actual download/possession of child
3) The Affidavit's other allegations of conduct were just
“generalized opinions by the Affiant” that drew a
conclusion about who Defendant was (i.e., possibly a
pedophile who collected child pornography) based on a single
visit to a URL;
4) Paragraph 16 of the Affidavit which stated the video at
the URL was forty-nine minutes long, is inconsistent
with Paragraphs 10-11, which state the video was forty-nine
seconds long; and
5) The allegations in the Affidavit do not support a
Leon good faith exception.
Dkt. 52 at Pg ID 311-12.
November 2, 2017 Magistrate Judge Anthony P. Patti held a
hearing on Defendant's second Motion to Suppress. On
November 20, 2017, he issued a Report & Recommendation
(R&R) recommending denial. Dkt. 69. On December 4, 2017,
Defendant submitted his objections. Dkt. 71. On December 20,
2017, Judge O'Meara accepted the R&R, overruled
Defendant's objections, and denied Defendant's second
Motion to Suppress Dkt. 75.
January 3, 2018 Defendant filed this Motion for Rehearing.
Dkt. 77. After the Motion for Rehearing was filed this case
was reassigned to District Court Judge Terrence G. Berg who
held a hearing on the motion on March 12, 2018.