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United States v. Church

United States District Court, E.D. Virginia, Richmond Division

October 17, 2016



          Robert E. Payne Senior United States District Judge.

         This matter is before the Court on Defendant Charles E. Church's MOTION TO SUPPRESS EVIDENCE ("Def. Mot."), ECF No. 17. For the reasons set forth below, the Court finds that that the warrant obtained on November 4, 2016 was invalid, and that the good-faith exception to the warrant requirement does not apply.


         A. Facts

         On November 3, 2015, a minor female ("MV1") reported to her family guardian that the defendant, Charles Church, a Richmond City Police Officer, had sexually assaulted her at his Richmond home sometime after 7:00 p.m. on the previous evening (Def. Mot. 1). Following this report, the family guardian contacted Richmond police, voluntarily turned over MV1's cellular telephone to them, and transported MV1 to the Pediatric Emergency Room at Virginia Commonwealth University Medical Center, where she was examined and interviewed by a Forensic Nurse. (Hiner Aff. Attach. B ¶6) . Following this examination, a physical evidence recovery kit (PERK) was delivered to Detective Steve Kendell of the Richmond Police Department. Id.

         The following morning, November 4, 2015, MV1 was taken to the Child Advocacy Center (CAC) and interviewed a second time by Ms. Brianna Valentino. (Hiner Aff. Attach. B ¶ 2) During the CAC, MV1 told Valentino that she and her younger sibling (MV2) were in an upstairs bedroom preparing to go to sleep when Church exchanged several SMS (short message service) text messages with her. Id. at ¶ 2. In one message, Church queried MV1 whether MV2 was asleep. MV1 stated that, after she informed Church by text message that MV2 had fallen asleep, Church responded that he was coming upstairs. Id. MV1 told Valentino that she was led by Church into his bedroom, where upon Church undressed them both, digitally penetrated her vagina and anus, attempted to penetrate her vagina and anus with his penis, and forced her to perform oral sexual intercourse on him. .Id. at ¶ 5. MV1 was also asked whether Church had ever sent or showed her pornographic images or videos, and MV1 stated that he had not. (Def. Mot. 2) Based on MV1's statements to Valentino and the PERK from VCU Hospital, Richmond Police arrested Church at 1:30 PM for Forcible Sodomy of a Minor. (Hiner Aff. Attach. B ¶ 2, ¶ 8) . As part of the arrest, Church's cellular telephone was seized by the RPD and his apartment was secured.

         While MV1 was being interviewed at the Child Advocacy Center, Richmond Police Detective Lieutenant Don Davenport contacted Kevin Hiner, a detective in the Computer Crimes Unit and a Task Force Officer assigned to the FBI, Richmond Division Innocent Images Taskforce, and to the Southern Virginia Internet Crimes Against Children Task Force, and informed Hiner of the burgeoning investigation into Church's activities. (Hiner Aff. Attach. B ¶ 2). Hiner contacted Valentino and, after reviewing notes from her interview with MV1, requested and was given permission to examine MV1's cellular telephone. The text messages described by MV1 were not discovered, but Hiner's search revealed that text messages between MV1 and Church had been deleted, Id. at ¶ 7. Based on all the evidence that had then been acquired, Hiner prepared an affidavit for a warrant to search Church's residence.

         In his application for the warrant, Hiner summarized the aforementioned facts and asserted that, together, they "indicate[d] that on November 2, 2015 Charles Church utilized a cellular telephone to exchange SMS text messages with MV1 prior to the sexual assault." (Hiner Aff. Attach. B ¶12). Based on the this evidence, Hiner concluded "that probable cause exists that evidence pertaining [sic] the forcible sodomy of MV1 is being stored on a cellular telephone or other device capable of storing digital data." Id. Consistent with this conclusion, Hiner's warrant application identified Forcible Sodomy (Va. Code Ann. § 18.2-67.1) as the offense in relation to which a search was requested. Id. At ¶ 1. Additionally, however, Hiner requested permission to search for evidence of the Possession, Reproduction, Distribution, and Facilitation of Child Pornography (Va. Code Ann. § 18.2-374.1) ("Child Pornography"). Id.

         In his attachment outlining the "things or persons to be searched, " Hiner did not list sheets, towels, bed linens, or any other form of physical evidence that might be associated with the crime of Forcible Sodomy. Instead, he requested authorization to search and seize, inter alia, "any electronic devices that are capable of capturing, collecting, analyzing, creating, displaying, converting, storing, concealing, or transmitting electronic, magnetic, optical, or similar computer impulses or data." (Hiner Aff. Attach. A ¶ 2). Under the subheading "Materials Relating to Child Erotica and Depictions of Minors, " Hiner specified in four sub-paragraphs the specific evidence of Child Pornography for which he was seeking permission to search, Id. ¶ 13-16. There was no mention of any specific evidence relating to the alleged Forcible Sodomy.

         In addition to "the material facts constituting probable cause" found in Attachment B and the "things or persons to be searched" found in Attachment A, Hiner further provided, in Attachment C, a 21-page document summarizing his police experience and containing detailed explanations of modern electronics and the characteristics of child pornographers. See Hiner Aff. Attach C. The document did not specifically connect any of this information or experience to Church or to the specifics of his case. Id. It also did not establish any connection between child molestation and child pornography generally. Id.

         The search warrant was issued by the Circuit Court for the City of Richmond on November 4, 2015 at 3:55 p.m. Shortly thereafter, Hiner contacted Detective Davenport, who was interviewing Church's wife at that time, and requested that he obtain a permission to search form from her. Davenport heeded Hiner's request, and a written "Permission to Search" form was signed by Mrs. Church at 4:28 p.m.[1] Davenport testified that the request for consent was necessary because the warrant "did not cover the acts of forcible sodomy or the physical sexual assault of the victim." (Tr. Evid. Hrg. 15:15-18, ECF No. 29). This testimony was corroborated by that of Detective Jones, one of the officers who executed the warrant, who testified that at the time of the search he "was aware that the other items other than the electronics had been omitted from the scope of the search warrant." Id. at 39:16-18.

         The Richmond Police executed the warrant the same day at 4:40 p.m., seizing two cellular telephones, one LG tablet computer ("tablet"), and one HP laptop computer ("laptop") from the defendant's residence. (SEARCH INVENTORY AND RETURN, ECF No. 18-1). Hiner conducted a forensic examination of the tablet and computer, and discovered evidence of child pornography within the "cache associated with the tablet's web browser, as well as in the tablet's thumbnail cache." (GOVERNMENT'S RESPONSE IN OPPOSITION 6). Hiner also uncovered links to Church's Google email account relating to this material. Based on the results of the search of Church's home, Hiner applied for and obtained a second search warrant for Church's Google email account. Id. In response to this second warrant, Google provided records related to Church's email account and search history which yielded further evidence of both visited websites and searches indicative of child pornography.

         B. Procedural History

         In January 2016, Church was indicted on two counts of Forcible Sodomy and one count of Rape in the Circuit Court of Richmond. On June 20, 2016, while the state court case remained pending, a criminal complaint was filed in this Court and a federal warrant was issued for his arrest. (ECF No. 1) (ECF No. 5). On June 21, 2016, the state charges against Church were nolle prossed, he was taken into federal custody, and he made his initial appearance in this Court. (ECF No. 7). On July 19, 2016, Church was indicted on six counts of Receipt of Child Pornography (18 U.S.C. § 2252A(a)(2)(A)) and two counts of Possession of Child Pornography (18 U.S.C. § 2252A(a)(5)(B)). (ECF No. 13).

         On August 12, 2016, Church filed the pending MOTION TO SUPRESS EVIDENCE ("Def. Mot."), ECF No. 17, seeking to suppress all evidence gathered from the seizure of his tablet and laptop computer, as well as the evidence from his Google account collected pursuant to the second warrant. The GOVERNMENT'S RESPONSE IN OPPOSITION TO DEFENDANT'S MOTION TO SUPPRESS ("Gov. Resp."), ECF No. 19, was filed on August 19, and DEFENDANT'S REPLY TO GOVERNMENT'S RESPONSE TO HIS MOTION TO SUPPRESS EVIDENCE ("Def. Reply"), ECF No. 20 was filed on August 26. An evidentiary hearing was held on September 14, 2016 and, as a result of the evidence presented, the Court ed the parties to submit supplemental briefing addressing specific issues surrounding the nature of the consent given by Mrs. Church. (Order, ECF No. 28). A second hearing on Church's suppression motion has been scheduled for October 31, 2016, at 10:00 a.m., where the parties will argue the question of consent. No additional briefing or oral argument is required for the Court to resolve the legal questions surrounding the validity of the warrant.


         A. ...

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