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