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United States v. Church

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

January 20, 2017

UNITED STATES OF AMERICA
v.
CHARLES E. CHURCH, Defendant.

          MEMORANDUM OPINION

          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) 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.

         BACKGROUND

         A. Procedural History

         In 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)).

         On 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).

         On 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 decision.

         B. Facts

         On 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.

         The 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.

         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'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 residence.

         In the 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.

         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. The search warrant was issued by the Circuit Court for the City of Richmond on November 4, 2015 at 3:55 p.m.

         Also on 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. Id.

         Shortly 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 39:4-5.

         There 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.[1] 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.

         Although 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 ...

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