United States District Court, W.D. Virginia, Harrisonburg Division
Michael F. Urbanski, United States District Judge
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.
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
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).
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.
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.
the court will DENY Thomas' motion to suppress, ECF No.
January 13, 2015, Detective Coleman submitted an affidavit
for a search warrant of an LG cell phone sei2ed during
Thomas' arrest. 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
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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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.