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United States v. Lipscomb

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

August 28, 2019

UNITED STATES OF AMERICA,
v.
SHAWN LIPSCOMB, Defendant.

          MEMORANDUM OPINION

          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. On June 11, 2019, the court held a hearing on the Motion to Suppress, and on July 16, 2019, the court entered a Memorandum Opinion finding that the warrant application to search the electronic devices in the Defendant's residence did not demonstrate probable cause for the search. ECF No. 29. However, the court took the Defendant's Motion to Suppress under advisement to consider whether the "good faith exception" to the warrant requirement applies in this case. Id. at 15. The parties submitted additional briefing on the good faith exception, ECF Nos. 31-34, and on August 13, 2019, a hearing was held on the good faith exception, at which evidence and argument was presented by counsel for the parties. For the reasons set forth below, the court finds that the good faith exception applies to the search of the Defendant's residence, and the Defendant's Motion to Suppress is therefore DENIED.

         I.

         In its July 16, 2019 Memorandum Opinion, the court found that investigating officer Sean Lacy's search warrant affidavit was not sufficient to establish probable cause. ECF No. 29. The search warrant affidavit describes a single message in which "tiffany4ualways," an online kik account purportedly operated by a sixteen year-old girl, solicited nude photos from an online kik account operated by Lacy, who was posing as a sixteen year-old girl. Id. at 10. The search warrant affidavit establishes that the "tiffany4ualways" kik account was associated with a Cox Communications IP address, with the Cox subscriber being at the residence to be searched. See id. at 3. However, the search warrant affidavit does not establish that any crime was committed during the message exchange, because the photos "tiffany4ualways" solicited do not meet the legal definition of "child pornography." Id. at 10-11 (citing United States v. Doyle, 650 F.3d 460, 473 (4th Cir. 2011)) .

         Moreover, the search warrant affidavit fails to establish probable cause to believe that any other evidence of child pornography would be found at the Defendant's residence. Importantly, the search warrant affidavit does not contain any facts tending to suggest that "tiffany4ualways" was not, in fact, a sixteen year-old girl. Id. at 11-12. There are also no facts in the search warrant affidavit suggesting that "tiffany4ualways" had solicited photos from any persons other than from Lacy's undercover account, or that "tiffany4ualways ever contacted Lacy again in the intervening weeks between the date of the one contact and message exchange, October 19, 2018, and the date that Lacy submitted his search warrant application, November 14, 2018. Id. at 12. Simply put, the search warrant affidavit leaves open a substantial probability that "tiffany4ualways" was a sixteen year-old child who had not committed any criminal offense, and it therefore does not establish probable cause to search the electronic devices in the residence from which the "tiffany4ualways" messages were sent. Id. at 12-13.

         II.

         The good faith exception to the warrant requirement provides that evidence need not be suppressed when the police obtain such evidence through a good faith reliance on a facially valid warrant, even if such warrant is later found to lack probable cause. United States v. Leon, 468 U.S. 897, 920 (1984). If evidence was obtained pursuant to a facially valid warrant, suppression is only appropriate if the officer executing the warrant has "no reasonable grounds for believing that the warrant was properly issued." Id. at 923. The "good-faith inquiry is confined to the objectively ascertainable question whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate's authorization." Id. at 922 n. 23. Applying the good faith exception does not require an inquiry "into the subjective beliefs of law enforcement officers who seize evidence pursuant to a subsequently invalidated warrant." Id.

         There are four (4) specific situations where the executing officers have "no reasonable grounds for believing that the warrant was properly issued," and where evidence must therefore be suppressed, even though it was obtained pursuant to a search warrant: (1) the warrant application contains false or misleading information; (2) the magistrate "wholly abandoned his judicial role" by failing to act as a neutral decisionmaker; (3) the search warrant affidavit is "so lacking in indicia of probable cause" that the officer relying on the warrant cannot reasonably believe there is probable cause for the search; (4) the search warrant is so vague-by failing to state with particularity the place to be searched or the things to be seized-that the executing officers cannot reasonably believe it is a valid warrant. Id. at 923.

         In its July 16, 2019 Memorandum Opinion, the court concluded that there are no facts before the court that the warrant application contained false or misleading information, or that the state magistrate failed to act as a neutral decisionmaker. ECF No. 29 at 13. The Defendant has also not argued the search warrant failed to state with particularity the place to be searched or the things to be seized. Id. Thus, the court concluded there is only one good faith exception category at issue in this Motion to Suppress, namely, whether the search warrant affidavit was "so lacking in indicia of probable cause" that the officer relying on the warrant could not have reasonably believed there was probable cause for the search. Id. at 13-14 (citing Leon, 468 U.S. at 923).

         In his supplemental briefing, the Defendant argues that the court should also consider another category of the good faith exception-specifically, the Defendant argues that the magistrate "wholly abandoned his judicial role" by failing to act as a neutral decisionmaker. ECF No. 31 at 7. The Defendant cites United States v. Wilhelm, 80 F.3d 116, 121 (4th Cir. 1996), in which the Fourth Circuit held that, when a magistrate "rubber-stamps" a "bare-bones" search warrant affidavit, the good faith exception will not apply because the magistrate is failing to act as a neutral decisionmaker. However, the case law the Defendant cites is inapplicable. In United States v. Doyle, 650 F.3d 460, 470 (4th Cir. 2011), the Fourth Circuit clarified its holding in Wilhelm to explain that a search warrant affidavit is only "bare-bones," if it exclusively contains conclusory statements, and does not set forth the actual facts and circumstances that the officer believes support probable cause. Doyle, 650 F.3d at 470. If the search warrant affidavit contains facts and circumstances, and the court's inquiry is confined to the sufficiency of the facts and circumstances alleged, then the court should analyze whether the warrant application is "so lacking in indicia of probable cause" that the executing officers cannot reasonably believe there is probable cause for the search. Id.

         In the instant case, Lacy's search warrant affidavit sets forth numerous facts and circumstances about his investigation of "tiffany4ualways"; it is not a "bare-bones" affidavit. Rather, the issue here is whether such facts and circumstances are sufficient to establish probable cause, and the court concluded that the warrant application itself did not so suffice. ECF No. 29 at 13. Accordingly, the court correctly concluded in its July 16, 2019 Memorandum Opinion that the standard to consider the applicability of the good faith exception in this case is whether the warrant application is "so lacking in indicia of probable cause" that the executing officers cannot reasonably believe there is probable cause for the search Id. at 13-14.[1]

         III.

         Although the court considers only the information set forth in the sworn affidavit when reviewing a magistrate's probable cause determination, in determining whether an officer could reasonably believe there is probable cause for the search, the court may "look beyond the four corners of the affidavit," and consider "facts well known [to the investigating officer] but omitted from the affidavit presented to the magistrate." United States v. Thomas, 908 F.3d 68, 73 (4th Cir. 2018). The court may consider facts the investigating officer omitted from his affidavit, if it determines that "any error appears to have resulted from a simple miscalculation by [the investigating officer] as to how much of what he knew he needed to include in his affidavit to show probable cause." Id. at 75. The court may consider such evidence because the investigating officer's simple miscalculation "is not the kind of deliberate misconduct that the exclusionary rule was intended to deter." Id. (citing Herring v. United States, 555 U.S. 135, 144 (2009)).

         In its July 16, 2019 Memorandum Opinion, the court concluded that it did not have enough information to determine whether the officer relying on the search warrant in this case could have reasonably believed there was probable cause for the search. Specifically, Sean Lacy, the undercover investigator who applied for the search warrant at issue, did not testify at the court's first hearing on the Motion to Suppress. There was not sufficient evidence before the court of whether Lacy knew any facts which were relevant to his probable cause determination, but were omitted from his search warrant affidavit, or of what his training and experience in child pornography cases actually was at the time he applied for the search warrant. The only evidence introduced to support the ...


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