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United States v. Lipscomb

United States District Court, E.D. Virginia, Newport News Division

July 16, 2019



          Rebecca Beach Smith United States District Judge.

         This 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.


         On 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.

         In support of his application, Lacy submitted a sworn affidavit, in which he stated that he maintains an "undercover account" on a website called "," 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 "tiffany4ualways." Id.

         Lacy 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.

         Lacy 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.[1] 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.[2] 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. Id.[3]

         The 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 4.[4] 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.


         The 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)).

         When 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).

         A 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 ...

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