United States District Court, E.D. Virginia, Richmond Division
E. Payne Senior United States District Judge.
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.
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.
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.
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.
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.
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.
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.
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. 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.
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.
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).
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.