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United States v. Thomas

United States District Court, W.D. Virginia, Harrisonburg Division

December 15, 2016

UNITED STATES,
v.
LAMARCUS THOMAS, Defendant.

          MEMORANDUM OPINION

          Michael F. Urbanski, United States District Judge

         Defendant Lamarcus Thomas ("Thomas") moves to suppress evidence obtained from the search of an LG cell phone found on his person at the time of his arrest. ECF No. 28. The court held an evidentiary hearing on August 17, 2016, during which the court heard the testimony of Detective Charles Coleman ("Detective Coleman"), an officer with the Winchester, Virginia Police Department (the "WPD"), who swore and submitted an Affidavit for Search Warrant ("affidavit"), ECF No. 39-1, in support of the search warrant at issue.

         As a result of the images and videos found on Thomas' LG cell phone and interviews conducted thereafter, the United States charged Thomas as the sole defendant in an indictment alleging six counts of using a minor to engage in sexually explicit conduct for the purpose of creating child pornography. ECF No. 1. Thomas argues that the affidavit submitted by Detective Coleman to the state magistrate to obtain a search warrant for Thomas' LG cell phone contained insufficient facts, rendering the warrant invalid. The government counters that the LG cell phone warrant is facially valid as to each of the offenses listed in the warrant-aggravated sexual battery, production of child pornography, and possession of child pornography-and that Detective Coleman possessed a good faith belief as to the warrant's validity, satisfying the good faith exception articulated in United States v. Leon. 468 U.S. 897, 923 (1984). Alternatively, the government argues that even if Detective Coleman's affidavit was too thin to support probable cause as to the crimes of possession and production of child pornography, it was plainly sufficient as to the aggravated sexual battery charge, rendering suppression inappropriate under Leon. Finally, the government argues that the evidence of child pornography was in plain view during the search for evidence of aggravated sexual battery.

         The court finds that the warrant at issue is facially invalid as the supporting affidavit is deficient in two respects. First, while the affidavit contains facts supporting a finding of probable cause as to the aggravated sexual battery charge, no such facts exist as to the possession or production of child pornography charges. Under controlling Fourth Circuit precedent, evidence of sexual assault, standing alone, is insufficient to justify a search warrant for child pornography. United States v. Doyle, 650 F.3d 460, 472 (4th Cir. 2011).

         Second, even as to the adequately supported charge of aggravated sexual battery, the affidavit contains insufficient facts linking it to Thomas' LG cell phone. The only reference to the LG cell phone in Detective Coleman's affidavit is the fact that it was found on Thomas' person at the time of his arrest on January 5, 2015. Because the affidavit provides no nexus whatsoever between Thomas' LG cell phone and the aggravated sexual battery offense listed in the warrant, the magistrate had no facts sufficient to establish probable cause to search the LG cell phone.

         Nevertheless, the court concludes that the Leon good faith exception applies in this case. At the time he submitted the affidavit, Detective Coleman knew that the LG cell phone played a role in the aggravated sexual battery offense listed in his affidavit. During his investigation, Detective Coleman learned from the victims' mother that Thomas had called her several times in an attempt to set up another rendezvous with her children and left her multiple voicemail messages. Although Detective Coleman's affidavit itself provides no link between the use of the LG cell phone and the crime, it is uncontroverted that Detective Coleman knew that Thomas used a phone in furtherance of his criminal conduct. Detective Coleman reasonably could infer that the LG cell phone seized at Thomas' arrest was the phone that Thomas used to call the victims' mother just a few months earlier. Thus, it is clear that Detective Coleman '"harbored an objectively reasonable belief in the existence' of this factual predicate, " United States v. McKenzie-Gude. 671 F.3d 452, 458-59 (4th Cir. 2011) (quoting Leon, 468 U.S. at 926), linking Thomas' phone to the aggravated sexual battery. It cannot be said here that Detective Coleman relied on "an affidavit so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." Leon, 468 U.S. at 923. As was the case in McKenzie-Gude, "Leon presents no barrier to holding that the experienced officer[] in this case, who swore out the affidavit and executed the search, acted with the requisite objective reasonableness when relying on uncontroverted facts known to [him] but inadvertently not presented to the magistrate." McKenzie-Gude, 671 F.3d at 460.

         Accordingly, the court will DENY Thomas' motion to suppress, ECF No. 28.

         1.[1]

         A.

         On January 13, 2015, Detective Coleman submitted an affidavit for a search warrant of an LG cell phone sei2ed during Thomas' arrest.[2] The warrant indicated the search related to the following offenses: (1) possession of child pornography, (2) production of child pornography, and (3) aggravated sexual battery. In describing the "place, person, or thing to be searched, " the warrant application stated, "A cell phone black/silver in color, with 'LG' printed in silver on the front, 'LG' printed in dark gray on the back, in a purple and black case belonging to LaMarcus Thomas. Phone is in possession of the Winchester Police Department." In the portion of the affidavit describing the "things or persons to be searched, " the warrant application stated:

Any and all incoming and outgoing calls, gps locations, photos, text messages, voicemails, media, websites, instant messages, address books, media card, Sim card, contacts, contact numbers, social media websites to include but not limited to Facebook, Twitter, MySpace, Snap Chat, Vine, etc., media cloud, any stored electronic data that may be stored inside a smart phone that would be related to this crime and/or crime scene.

         In the narrative portion of the affidavit, Detective Coleman submitted the following:

01-05-15 Det. Coleman obtained two arrest warrants on LaMarcus Thomas for aggravated sexual battery. Det. Coleman located and arrested Thomas in the 500 block.of North Loudon Street on the same date. During the arrest Det. Coleman removed a LG cell phone that Thomas advised was his personal cell phone; Det. Coleman is investigating a case were two children were allegedly molested by LaMarcus Thomas. During an interview with Det. Coleman LaMarcus Thomas corroborated both juvenile's statements against him. Det. Coleman has received many hours of training to investigate child sexual abuse cases and has learned through training and experience that it is common for offenders to keep contact items from victims such as follows; pictures of victims, text messages, phone calls, Voice mails and/or child pornography on their cell phone/storing devices. Det. Coleman had reason to believe Thomas may also have these types of items on his cell phone/media cloud. Det. Coleman is requesting a search warrant for the cell phone taken from Thomas's person at the time of arrest. Det. Coleman and the Winchester Police Department have maintained possession of this cell in the evidence room per WPD general orders since the time of arrest. Det. Coleman.

         On January 13, 2015, the state magistrate issued the search warrant for the LG phone seized from Thomas during his arrest (hereinafter the "LG warrant"). Detective Coleman did not examine the LG cell phone himself, but turned it over to the Virginia State Police crime lab for forensic analysis. The Virginia State Police provided a report indicating that images and videos of child pornography were found on the S.D. memory card taken from the LG cell phone. Detective Coleman was unable to specify the procedure employed by the Virginia State Police to search the LG cell phone other than to state that while the investigators were unable to access the password protected phone itself, they were able to remove and search the LG cell phone's S.D. card. After the forensic report issued, agents of the Federal Bureau of Investigation ("FBI") interviewed Thomas on April 10, 2015, and the federal indictment issued on January 13, 2016.

         B.

         Detective Coleman has had a long career as a police officer and significant experience investigating cases of child battery and sex crimes with the WPD. Detective Coleman has taken multiple classes discussing child neglect, child abuse, and child sexual assault. Detective Coleman testified that he understands that persons who engage in sexual crimes related to children often engage in crimes involving child pornography. Detective Coleman explained that child molesters frequently keep images containing child pornography on electronic devices such as computers, cell phones, and other forms of media storage.

         Detective Coleman has received substantial training in drafting search warrants, both at the police academy and through the WPD. Detective Coleman testified that it is WPD policy to provide no more probable cause information than necessary to obtain a warrant because of media access to warrants.

         Detective Coleman explained that he became involved in the investigation of Thomas in November 2014 after the WPD received an anonymous tip that Thomas had abused a child (hereinafter referred to as "MV4"). After learning of the alleged abuse, Detective Coleman contacted MV4's mother. The mother advised Detective Coleman that MV4 and a sibling (hereinafter referred to as "MV3") had spent the night with Thomas. Thereafter, Thomas repeatedly called her to arrange additional sleepovers.

         Detective Coleman arranged for the Child Advocacy Center to interview MV3 and MV4 regarding their interactions with Thomas. Detective Coleman observed the interviews from another room. Detective Coleman testified that the victims stated that they had been sexually assaulted by Thomas during an overnight visit at a hotel. The interviews also revealed that Thomas communicated with the victims' mother by phone calls, often leaving voicemail messages.

         Upon contacting the hotel, Detective Coleman learned that Thomas stayed there on September 16, 2014 and October 11, 2014. The government introduced hotel receipts for those nights bearing Thomas' signature. ECF No. 39-6, at 2-3. In particular, the hotel records confirmed that the October 11, 2014 receipt indicated "1 2, " meaning one adult and two children. Id. at 3.

         After he confirmed that Thomas rented rooms at the hotel, Detective Coleman contacted Thomas via the phone number given to him by the victims' mother and arranged to interview Thomas at the WPD. ECF No. 35, at 2. On December 18, 2014, Detective Coleman interviewed Thomas. During that interview, Thomas admitted sexually assaulting both victims. Id. at 2-3.

         On January 5, 2015, at the instruction of state prosecutors, Detective Coleman obtained two arrest warrants against Thomas for aggravated sexual battery. ECF No. 35, at 3; ECF No. 39-2. Though the arrest warrant application reflects an offense date of October 11, 2014-the date the hotel receipt indicated Thomas rented a hotel room accompanied by two children-Detective Coleman testified that he later learned that different children had accompanied Thomas to the hotel on October 11, 2014. Detective Coleman later discovered that MV3 and MV4 accompanied Thomas to the hotel on September 16, 2014, the date on which the hotel records indicated Thomas rented a room, but made no mention of the fact that he was accompanied by children.

         On January 5, 2015, Detective Coleman arrested Thomas. While arresting Thomas, Detective Coleman found the LG cell phone located in Thomas' pocket. On January 6, 2015, Detective Coleman obtained and executed search warrants for two of Thomas' recent residences. Detective Coleman testified that he seized a laptop, a tablet, and an additional cell phone at one residence. Detective Coleman testified that this phone was an older model, found in a bag with miscellaneous items. After executing the residential search warrants, Detective Coleman consulted with an Assistant Commonwealth's Attorney about obtaining a search warrant for the LG cell phone seized during Thomas' arrest. On January 13, 2015, Detective Coleman submitted the affidavit to search the LG cell phone.

         During his testimony at the suppression hearing, Detective Coleman acknowledged that the affidavit in support of the LG warrant did not contain the date of the alleged offense or the ages of the victims, but stated that this information was contained in the earlier arrest warrants which he referenced in the LG cell phone warrant affidavit. Likewise, Detective Coleman confirmed that the only information in the affidavit about the LG cell phone was that the phone was recovered from Thomas' person at the time of his arrest.

         Detective Coleman also acknowledged that at the time he submitted the affidavit, he had no information that Thomas had used his LG cell phone to take pictures or videos of the minor victims. The reference in his affidavit to having "reason to believe Thomas may have these types of items on his cell phone/media cloud" resulted from his training and experience in investigating child sex crimes, rather than anything specific about Thomas.

         After receiving authorization to search the LG cell phone, Detective Coleman sent it to the Virginia State Police for examination. As noted above, Detective Coleman testified that the Virginia State Police's forensic examination of the S.D. card contained in the LG cell phone revealed pornographic images of children other than MV3 and MV4. Detective ...


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