United States District Court, E.D. Virginia, Newport News Division
Rebecca Beach Smith United States District Judge.
matter comes before the court on the Defendant's Motion
to Suppress, filed on May 24, 2019. ECF No. 15. The Defendant
argues that all evidence of child pornography obtained
pursuant to a search of his residence and electronic devices
should be suppressed, because the facts alleged in support of
the search warrant were not sufficient to show probable cause
that child pornography would be found on these electronic
devices. Id. The United States filed a Response on
June 5, 2019, arguing that the search warrant executed for
the Defendant's electronic devices was supported by
probable cause. ECF No. 23. The Defendant filed a Reply on
June 10, 2019. ECF No. 27. On June 11, 2019, the court held a
hearing on the Motion to Suppress, at which evidence and
argument were presented by counsel for the parties.
November 14, 2018, S.D. Lacy, an investigator with the Isle
of Wight County Sheriff's Office, applied for a warrant
to search all the electronic devices at a home in Newport
News. ECF Nos. 15-1, 28-1 ("search warrant
application" or "application"). Lacy intended
to search for evidence of a possible violation of Va. Code
§ 18.2-374.3, which prohibits using "communications
systems," such as the Internet, to facilitate either the
procurement of child pornography or the taking of indecent
liberties with a minor. Appl. at 1. Lacy specifically
intended to search "[t]he content of [computers, phones,
and other electronic devices] for information about the
user/identity and any information relating to the
solicitation, possession, reproduction, or distribution of
Child Pornography including images and videos classified as
Child Pornography." Id.
support of his application, Lacy submitted a sworn affidavit,
in which he stated that he maintains an "undercover
account" on a website called "Skout.com," in
which he poses as a sixteen year-old girl. Id. at 4.
On October 19, 2018, Lacy was contacted on his undercover
account by a user claiming to be another sixteen year-old
girl, using the pseudonym "Misstiff." Id.
"Misstiff" requested that the conversation be
transferred to the online messaging service "Kik,"
although on Kik the unknown user went by the pseudonym
stated that "tiffany4ualways" tried to solicit nude
photos from his undercover account. Id.
Specifically, "tiffany4ualways" requested
"full naked body pics face all in pic."
Id. Following this one message exchange, Lacy
subpoenaed Kik, which provided him with the Cox and T-Mobile
IP addresses that had sent these "tiffany4ualways"
messages. Id. He then subpoenaed Cox, which provided
a home address for the Cox account holder with the
"tiffany4ualways" IP address. Id. The only
information provided by Cox regarding the possible residents
of the home is that the Cox account holder was a person named
"Tonya Shears." Id.
then applied for a warrant to search the home for all
electronic devices at the location, and the content thereof.
Id. In support of the warrant application, Lacy
recounted the facts of the October 19, 2018 message exchange,
and his subsequent subpoenas to Kik and Cox.
Id. No. information was provided about the
identity of any residents of the home, other than the
information that the Cox account holder was named "Tonya
Shears." Id. Lacy stated that it was necessary to
search all of the electronic devices in this home because, in
his training and experience investigating child exploitation
crimes, perpetrators often use multiple electronic devices to
solicit and store child pornography.
requested search warrant was issued by the state magistrate.
Id. at 1. Investigators executed a search of the
home on November 16, 2018. Mot. Suppress at 3. During the
search, the investigators recovered several electronic
devices, and also interviewed the Defendant. Id. at
Based on the results of the search, the Defendant is now
indicted on five counts of Receipt of Child Pornography, in
violation of 18 U.S.C. § 2252A(a)(2). Id. at 1.
Fourth Amendment of the United States Constitution provides
that "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized." U.S.
Const, amend. IV. "In order to effectuate the Fourth
Amendment's guarantee of freedom from unreasonable
searches and seizures," defendants have the right,
"upon motion and proof, to have excluded from trial
evidence which ha[s] been secured by means of an unlawful
search and seizure." Simmons v. United States,
390 U.S. 377, 389 (1968) (citing Weeks v. United
States, 232 U.S. 383 (1914)).
police undertake a search in order to discover evidence of a
crime, the Fourth Amendment's reasonableness standard
generally requires them to obtain a search warrant. Riley
v. California, 573 U.S. 373, 382 (2014)(citation
omitted). A successful application for a search warrant must
be sufficient to support a finding of probable cause by a
neutral, detached magistrate. United States v. Leon,
468 U.S. 897, 915 (1984). The Fourth Amendment requires that
the facts in a warrant application supporting probable cause
must be set forth "by Oath or affirmation."
United States v. Doyle, 650 F.3d 460, 471 (4th Cir.
2011) (quoting U.S. Const, amend. IV). To satisfy this
standard, the officer applying for a search warrant before
the state magistrate must set forth the facts supporting
probable cause in a sworn affidavit. Va. Code § 19.2-54;
see Fed. R. Crim. P. 42(d)(2) (setting forth the
same standard for federal search warrants).
reviewing court "will not defer to a warrant based on an
affidavit that does not provide the magistrate with a
substantial basis for determining the existence of probable
cause.'" Leon, 468 U.S. at 915 (quoting
Illinois v. Gates, 462 U.S. 213, 239 (1983)).
"Sufficient information must be presented to the
magistrate to allow that official to determine probable
cause; his action cannot be a mere ratification of the bare
conclusions of others." Id. (citation omitted).
As the Court stated in Gates:
The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the
circumstances set forth in the affidavit before him,
including the "veracity" and "basis of
knowledge" of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a
crime will be found in a particular place. And the duty of a
reviewing court is simply to ensure that the magistrate had a
"substantial basis for . . . conclud[ing]" that
probable cause existed.
462 U.S. at 238 (emphasis added) (citation omitted).
Consequently, when presented with a search warrant
application, the state magistrate, and a reviewing court,
will restrict their inquiries on probable cause to the facts
set forth ...