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United States v. Evans

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

April 12, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
SCOTT EVANS, Defendant.

          OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR RECONSIDERATION (Dkt. 77)

          TERRENCE G. BERG UNITED STATES DISTRICT JUDGE

         I. Introduction

         In this 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.

         II. Background

         The 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 summary.

         On 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.

         Defendant 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. 42.

         After 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 affidavit:

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 Board A;
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 pornography;
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.

         On 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.

         On 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.

         III. ...


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