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United States v. Haas

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

May 2, 2017



          Robert E. Payne Senior United States District Judge.

         This matter is before the Court on DEFENDANT'S MOTION TO SUPPRESS EVIDENCE (ECF No. 14) ("Def's Mtn. to Suppress"). Also included in the Defendant's Motion to Suppress is a request for a Franks hearing. (ECF No. 14, #7, FN. 2) . For the reasons set forth below, the DEFENDANT'S MOTION TO SUPPRESS EVIDENCE (ECF No. 14) and the request for a Franks hearing will be denied.


         On September 1, 2016, Magistrate Judge Young granted the Government's APPLICATION FOR A SEARCH WARRANT. (ECF No. 14-1, #53) . The SEARCH AND SEIZURE WARRANT for the 1995 Ford tractor trailer truck, license plate 26-392, VIN: 1FTYY90V6SVA73472, and a Samsung Galaxy S5, model SM-G900V, 90004 913336164, related to a violation of 18 U.S.C. § 2252A(2)(a), Possession, Receipt and Distribution of Child Pornography and 18 U.S.C. § 2251, Production of child pornography. (ECP No. 14-1, #41). In support of its application, the Government, through Special Agent Melvin Gonzales, presented an AFFIDAVIT IN SUPPORT OF AN APPLICATION UNDER RULE 41 FOR A WARRANT TO SEARCH AND SEIZE. (ECF No. 14-1, #54-82)(the "affidavit"). The affidavit's contents are described below:

         Agent Gonzales, a member of the Child Exploitation Task Force, conducts investigations involving child sex trafficking, child pornography, and child abductions. Aff. at ¶ 1. Gonzales stated that he had probable cause to believe that a 1995 Ford Tractor Trailer, license plate 26-392, and a Samsung Galaxy S5 telephone, model SM-G900V, contained contraband and evidence of a crime in violation of 18 U.S.C. § 2551 (production of child pornography); 18 U.S.C. § 2251A (selling or buying of children); 18 U.S.C. § 2252 (possession of, knowing access or attempted access with intent to view, child pornography); 18 U.S.C. § 2422 (enticement or coercion of a minor to engage in illegal sexual activity); and 18 U.S.C § 1591 (sex tracking of children). Id. at ¶ 2. The affidavit is based on information provided by FBI Special Agents, FBI Task Force Agents, other law enforcement agents, electronic surveillance conducted by law enforcement agents, and independent investigation conducted by FBI agents as well as computer forensic professionals. Id. at ¶ 4. Gonzales explained, "I have not included each and every fact known to me concerning that investigation. Instead, I have set forth only the facts that I believe are necessary to establish the necessary foundation for the requested warrant." Id.

         A. Contents of the Affidavit Respecting Haas and Child Pornography

         The affidavit avers that, "[o]n June 16, 2016, members of the FBI Richmond Child Exploitation Task Force, received information [ that] . . . Haas . . . was both interested in and actively producing child pornography." Aff. at ¶ 7. The information was provided by a confidential witness ("CW"), who was an escort to Haas for a period of four years.[1]

         CW told the FBI that "Haas advised CW that he had a neighbor who was approximately 12 years old that would come over and perform oral sex on him." Aff. at ¶ 7, CW reported that she and Haas stopped seeing each other shortly after that conversation.

         CW relayed that, in May 2016, she and Haas resumed their relationship and met at a residence in Chesterfield County, Virginia. Aff. at ¶ 8.

During this visit, Haas again brought up his interest in juvenile females. Haas displayed his laptop to CW, which contained images of juvenile females. CW described the images as depicting juvenile females between the ages of 5 and 12 in various stages of undress and engaged in sexually-explicit acts. CW advised that she was shown between 50 and 100 images of these girls. Haas advised CW that he knew the victims because they lived in the neighborhood. While Haas displayed the images to CW, he masturbated to the photos.

Id. Haas then told CW that he would like her to be "involved in the production of images and videos of child pornography with juvenile females and inquired as to whether CW would be able to help provide these females for such production." Id.

         CW identified Haas in a photograph provided by FBI agents and she also provided the agents with Haas's phone number. "FBI agents cross searched [the number provided by CW] with law-enforcement databases and were able to determine that it has been used as a contact number for Haas in law-enforcement investigations." Aff. at ¶ 9.[2] CW told the agents that Haas drove a light-colored Jetta and was able to identify a photo of Haas's residence.

         In a meeting on July 21, 2016, CW told FBI agents that she had numerous telephone conversations with Haas. CW also told the agents that Haas "constantly discussed the production of child pornography with CW and requested CW to find an underage female in order to produce child pornography." Aff. at ¶ 10.

         On August 12, 2016 and August 13, 2016, acting under the authority of the FBI agents, CW recorded two telephone conversations with Haas. Aff. at ¶ ll.[3] CW relayed that, "Haas requested CW to coordinate a meeting between him and an underage female not older than 12 years old." Id. "Haas also requested nude photos of underage females in exchange for money." Id.

         B. Contents of the Affidavit Respecting Child Molestation by Haas

         "On August, 18, 2016, FBI agents received a complaint from the Richmond Police Department, indicating that Haas had sexually molested an 11-year old female ("CV1") on multiple occasions." Aff. at ¶ 14. CV1 was forensically interviewed and provided the following information: CV1 and her father would go to the Richmond Inn to beg for money. Haas approached CVl's father and gave him $5. He then returned a short time later, gave CVl's father $60, and asked if CV1 could go to his home to babysit. At first, CVl's father refused; however, when Haas asked if CV1 could provide cleaning services, CVl's father agreed. Aff. at ¶ 15.

         The affidavit provides that, "[d]uring the initial visit to [Haas's] house . . . [a] t some point, [Haas] asked CV1 to come to the living room where he was sitting on the floor in front of the couch. [Haas] asked CV1 to lie down on the couch . . . CV1 said that [Haas] pulled her pants down and pushed her shirt up. CV1 sat up and pulled her pants up and attempted to exit the room. [Haas] stopped her and told her to lie back down on the couch." Aff. at ¶ 16.[4] According to CVI, this occurred on at least five separation occasions.

         On August 26, 2016, when CVl's guardian was interviewed by the FBI, she told agents that CV1 reported that Haas had given her between $200-$600 every time she had an encounter with him.[5]The guardian reported that the last time CVI saw Haas, sometime in late June 2016, "he picked her up at her brother's residence and sexually abused CVI in his vehicle." Aff. ¶ 17.

         CVI was unable to identify Haas from a photograph shown to her by law enforcement. Aff. ¶ 19. CVl's guardian obtained Haas's cell phone number from CVl's mother. FBI agents confirmed that the number reported by the guardian was registered to Haas. Aff. ¶ 20. FBI agents confirmed that this number had called the Richmond Inn on numerous occasions. Additionally, the number was used for 60 test messages and 100 telephone calls to CVl's mother from May 2016 to July 2016. Aff. ¶ 22.

         After receiving the foregoing information about CV1, FBI conducted surveillance on Haas's residence, in North Chesterfield, Virginia and observed Haas depart the residence in his Jetta.[6]

C. Execution of Search Warrant and Haas's Arrest

         The FBI obtained a search warrant for Haas's residence on August, 31, 2016 (ECF No. 18-1) (Gov. Exhibit A) . When the FBI tried to execute the warrant on September 1, 2016, Haas had already left for work. Aff. ¶ 25. FBI agents then proceeded to Haas's work location and arrested Haas in his work vehicle, a 1995 Ford tractor trailer truck. Haas was arrested pursuant to a Virginia arrest warrant, charging him with aggravated sexual battery of a minor. Id. During the search incident to the arrest, the FBI agents recovered a Samsung Galaxy S5 telephone. During a protective sweep of the tractor trailer vehicle, an FBI agent noticed a laptop bag. "After seeing the laptop bag, the agent ceased his protective sweep and exited the vehicle." Id. A new affidavit, identical to the first, [7] was submitted to the Magistrate Judge in support of a request for a warrant to search Haas's 1995 Ford tractor trailer. Based on the affidavit, the Magistrate Judge issued a search warrant to allow the search of Haas's 1995 tractor trailer and Haas's cell phone. The laptop was seized from the tractor trailer. A forensic examination of the laptop seized from the tractor trailer revealed that Haas had saved approximately 17, 000 images of children, including prepubescent children, engaged in sexually explicit conduct.

         D. Motion to Suppress Hearing

         FBI Agent Gonzales ("Gonzales"), the agent responsible for drafting the affidavit at issue, testified at an evidentiary hearing on the Motion to Suppress. He provided testimony about several topics.

         1. History of CW

         Agent Gonzales testified that before the case, he did not personally know CW, but he knew that she had served as a confidential witness for the FBI in the Norfolk Division. (ECF No. 26, #230) . After CW reported to the FBI that she had seen Haas viewing child pornography on his computer in May 2016, Gonzales corroborated Haas's identity, his address, and his date of birth. Gonzales also obtained Haas's telephone records which "indicated hundreds of calls between them [Haas and CW] and text messages." Id. at #238. When Gonzales swore out the affidavit, he was aware that CW was on felony probation supervision in the Virginia court system. During the course of the investigation, sometime in July 2016, Gonzales learned from CW that she was on probation. CW told Gonzales that she previously had been arrested for prostitution. Gonzales assumed that CW was on probation for the prostitution offense. Gonzales also testified that, on July 14, 2016, CW told him that she had an encounter with the Henrico County Police one week earlier, and that CW disclosed that she had made a false statement to a Henrico police officer about her identify during that traffic stop.

         CW voluntarily provided the information to him and explained that she wanted to set the matter straight. Gonzales then contacted the Henrico Police Department, and the Henrico Commonwealth Attorney's Office agreed to set up a meeting with CW. Gonzales escorted CW to the Henrico Court on July 25, 2016, where she was charged and held in jail without bond. Gonzales again explained that none of the information regarding CW's criminal history, other than the information that she was an escort, ...

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