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U.S. v. KNOX

October 11, 1991

UNITED STATES OF AMERICA
v.
STEPHEN A. KNOX.



The opinion of the court was delivered by: McCLURE, District Judge.

MEMORANDUM

BACKGROUND

Defendant Stephen Knox has been charged in a two-count indictment with violations of 18 U.S.C. § 2252(a)(2) and (4). The indictment alleges that Knox "knowingly received through the mail visual depictions of . . . minor females lasciviously displaying their genitals and pubic area" and that he "knowingly possessed three or more [of the above-mentioned] matter that had been mailed . . . in interstate or foreign commerce."

On June 5, 1991, Knox filed a bevy of pre-trial motions, with supporting brief. The government filed a timely opposing brief, requesting that all of Knox's motions be denied without a hearing, except for his motion to suppress evidence allegedly tainted by the seizure of Knox's mail. Subsequently, by telephone conference call, counsel for the defendant and the government advised the court that they had stipulated to a pretrial hearing by the court for the purpose of determining whether any of the visual depictions contained in three videotapes "involves a minor engaged in sexually explicit conduct" within the meaning of 18 U.S.C. § 2252(a)(2) and (4). The United States has agreed to base its prosecution upon these three videotapes which were seized from Knox's apartment. By Order dated July 22, 1991, the court approved the stipulation and scheduled a hearing for both Knox's motion to suppress and to determine the legal consequences of the visual depictions contained on the three videotapes. In the same order, the court noted that it would rule on Knox's other pretrial motions subsequent to the conclusion of the evidentiary hearing, but before the commencement of any non-jury trial.

DISCUSSION

A. Motion to Suppress.

Knox has moved to suppress evidence 1) seized during the search of his residence and 2) allegedly tainted by the illegal seizure of his mail. However, since the investigators were acting pursuant to a search warrant, Knox cannot argue that the evidence seized at his residence should be excluded from trial because the investigators lacked probable cause. See United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) (fourth amendment exclusionary rule does not bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be unsupported by probable cause).

1. The Search Warrant.

At his hearing, Knox presented, for the first time, the argument that the warrant was obtained through prejudicial and misleading information contained in the affidavit of Solon Chamberlain. Specifically, he claims that three pages of general information in the affidavit regarding "preferential child molesters" were gratuitous and prejudicial, and prevented the magistrate from making an independent and dispassionate determination as to the existence of probable cause.*fn2 In the affidavit, Chamberlain asserts that the information concerning preferential child molesters is based on his training and experience. Since Knox had previously been convicted for possession of child pornography and was known to be a pedophile, this information was properly submitted to the magistrate as background information pertaining to the modus operandi of pedophiles. See United States v. Fannin, 817 F.2d 1379, 1381-1382 (9th Cir. 1987) (in weighing the evidence supporting a request for a search warrant, a magistrate may rely on the conclusions of experienced law enforcement officials regarding where evidence of a crime is likely to be found) (citations omitted). The information was also helpful to the magistrate in determining the scope of the warrant as well as the existence of probable cause.

Chamberlain's affidavit also stated that United States Customs previously intercepted an air mail envelope addressed to Knox from Ophelia Editions, located in the Netherlands, containing "listings of publications for sale and photographic depictions of minor females, nude, clothed, and semi-clothed on posters and postcards set # 1, set # 2, set # 3, and set # 4." Knox contends that the affidavit was misleading because it omits Ophelia's disclaimer which states, "[n]one of the materials sold by Ophelia Editions violates any laws . . ." However, this disclaimer goes on to state that Ophelia Editions will not ship certain items "to countries in which such items may be prosecutable under repressive or dangerously vague laws (e.g. U.S., Canada, U.K.)."

"Insignificant and immaterial misrepresentations or omissions will not invalidate a warrant." United States v. Ofshe, 817 F.2d 1508, 1513 (11th Cir. 1987) (citing Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). The disclaimer taken in its entirety is insignificant and its omission did not create a misleading impression regarding the nature of the material believed to be in Knox's apartment. On the contrary, the inclusion of the disclaimer in its entirety would more likely have affirmed the attested nature of the materials believed to be in Knox's apartment.

Finally, Knox's argument that there was insufficient information to support the magistrate's conclusion that there was evidence of a crime or contraband in his apartment is belied by the record. Knox had been previously convicted for receiving child pornography through the mail. An international mailing involving suspected child pornography was addressed to Knox. Another international mailing involving suspected child pornography contained a check made out by Knox with instructions concerning concealment of the ...


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