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) and the United States' MOTION TO
RECONSIDER (ECF No. 37). For the reasons set forth below, the
Defendant's Motion will be GRANTED, and the United
States' Motion will be DENIED.
January of 2016, Church was indicted on two counts of
Forcible Sodomy and one count of Rape in the Circuit Court of
the City of Richmond. While the state case was pending, a
criminal complaint (ECF No. 1) was filed in this Court and a
federal warrant (ECF No. 5) was issued for Church's
arrest. Thereafter, the state charges against Church were
nolle prossed, he was taken into federal custody,
and he made his initial appearance (ECF No. 7). Church was
indicted (ECF No. 13) on six counts of Receipt of Child
Pornography in violation of 18 U.S.C. § 2252A(a)(2)(A),
and two counts of Possession of Child Pornography in
violation of 18 U.S.C. § 2252A(a)(5)(B)).
August 12, 2016, Church filed this MOTION TO SUPPRESS
EVIDENCE ("Def. Mot."), seeking to suppress all
evidence gathered from the seizure of his tablet and laptop
computers, as well as all evidence from his Google e-mail
account collected pursuant to the second warrant (Def. Mot.
1). The United States filed a response ("U.S.
Resp."), and Church filed a reply ("Def.
Reply") (ECF No. 19) . An evidentiary hearing was held
and, at the request of the Defendant, the Court ordered
supplemental briefing, keyed to the transcript of that
hearing, addressing specific issues surrounding the nature of
the consent given by Peesha Church, the Defendant's
spouse. Church then filed a supplemental brief ("Def.
Supp.") (ECF No. 30), the United States filed a response
("U.S. Supp. Resp.") (ECF No. 31), and Church filed
a reply ("Def. Supp. Reply") (ECF No. 34).
October 17, 2016, the Court issued a Memorandum Opinion (ECF
No. 32) holding that the search warrant obtained and executed
against Church on November 4, 2015 was invalid under Fourth
Circuit precedent, and that the good faith exception to the
warrant requirement, first articulated by the Supreme Court
in United States v. Leon, 468 U.S. 897 (1984), did
not apply. See United States v. Church, 2016 WL
6123235 (E.D. Va. Oct. 18, 2016). Pursuant to that opinion
and the Court's prior orders, further evidence and
argument was heard on the consent issue at a second hearing
("Hrg. II''), after which a final supplemental
round of briefing was ordered. The United States filed its
brief ("U.S. Supp. II.") (ECF No. 37) and included
within it a MOTION TO RECONSIDER, asking the Court to revisit
certain aspects of its prior Memorandum Opinion (ECF No. 32).
Church filed a response ("Def. Supp. Resp.") (ECF
No. 38), and the United States filed a reply ("U.S.
Supp. Reply") (ECF No. 39). The motion is now ripe for
November 3, 2015, a minor female ("MV1") reported
to her family guardian that Church, a Police Officer for the
City of Richmond, 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 (RPD). Id.
following morning, November 4, 2015, MV1 was taken to the
Child Advocacy Center and interviewed a second time by Ms.
Brianna Valentino. (Hiner Aff. Attach. B ¶2) During that
interview, 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 p.m. 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's Richmond
Division Innocent Images Taskforce and Southern Virginia
Internet Crimes Against Children Task Force. (Hiner Aff.
Attach. B ¶2) . Davenport informed Hiner of the
burgeoning investigation into Church's activities.
Id. 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
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 ¶l. 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. The search warrant
was issued by the Circuit Court for the City of Richmond on
November 4, 2015 at 3:55 p.m.
November 4, 2015, Detective Sandy Ledbetter-Clarkson
("Ledbetter"), then-assigned to the United States
Marshals' fugitive task force, reached out to the
Defendant's wife, Peesha Church ("Ms. Church"),
and asked her to come to the police station for
"something to do with her husband." (Tr. Evid. Hr.
44:20-45:24). Ms. Church agreed, and drove herself to the
Richmond Police headquarters approximately one hour later.
thereafter, Hiner contacted Davenport, who was interviewing
Ms. Church at that time, and requested that he obtain a
permission to search form from her. 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). This testimony was corroborated by Detective
Stephen 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, and that "[t]here was nothing
in the search warrant that allowed me to collect anything
other than the electronic items." Id. at
was conflicting testimony regarding the circumstances and
content of Ms. Church's interview with Ledbetter and
Davenport; however, the testimony is in agreement as it
relates to the scope of consent. Both Ms. Church and
Davenport testified that the only crime that they discussed
during the interview was the charge of Forcible Sodomy, and
that the topic of child pornography was never mentioned.
Id., at 28:9-20, 60:4-25. No indication was given to
Ms. Church that her husband was being investigated for any
crime other than Forcible Sodomy, and at no point did the
police suggest that they had any interest in any tablet or
laptop computers. Id.
the detectives' "sole focus" was on the crime
of forcible sodomy, Id. 28:18-20, the Consent Form
signed by Ms. Church was not limited to any particular crime.
See ECF No. 19-1 ("Consent Form"). In
relevant part, the Consent Form reads as follows (italics
indicate hand-written portions):
I, Peesha Barot-Church, hereby authorize
Richmond Police Department [sic] duly appointed
Police Officers of the City of Richmond, Virginia, to conduct
a complete search of residence: Richmond, Va.
These officers are authorized by me to seize from my
residence any letters, papers, paraphernalia,
material or other items they have reason to ...