United States District Court, M.D. Pennsylvania
August 5, 2005.
UNITED STATES OF AMERICA
The opinion of the court was delivered by: CHRISTOPHER CONNER, District Judge
Presently before the court are pre-trial motions in which the
defendant, Arthur Garcia, challenges the constitutionality of the
criminal statute under which he is charged, prohibiting the use
of "any . . . means of interstate . . . commerce . . . [to]
persuade? . . . any individual who has not attained the age of
18 years? to engage in . . . any sexual activity," and seeks to
suppress evidence obtained by state police during an
investigation into the alleged statutory sexual assault
underlying the charge. The motions will be denied.
I. Findings of Fact*fn1
The criminal investigation started as a missing child report.
The parents of the victim called the Pennsylvania State Police on
Saturday, January 31, 2004, at 2:26 a.m., to report that their
fourteen-year-old daughter had not returned home. School
officials had reported to the parents that an unknown male
individual, posing as the victim's father, had notified them that
the victim was sick and would be absent from classes on Friday.
One of the girl's friends had said that the victim was communicating regularly over the internet with a male
individual from California, known only as "Joel." This
individual, described as older approximately fifty years of age
with dark gray hair and a moustache, had given the victim a
cellular phone and had recently traveled to Pennsylvania to meet
her. The only apparent clue to the victim's current whereabouts
was a slip of paper, found near her computer, on which "Jose
Hernandez," "Room 213" and a phone number were written. (Doc. 53
Investigating officers quickly traced the phone number to a
local hotel, and obtained the number for the cellular phone given
to the victim by "Joel." Police learned that the phone was
activated by and registered to one Arthur Garcia, a resident of
California. Call records indicated that the phone had been used
to contact the victim's home, the school that the victim
attended, and another phone registered to Mr. Garcia. Officers
obtained from California motor vehicle authorities a photograph
of Mr. Garcia, who was revealed to be a fifty-five-year-old male
with dark gray hair and a mustache. (Doc. 53 at 13-18).
Soon after 2:00 p.m. on Saturday, as the investigation was
continuing, police were notified that the victim had recently
been dropped off at her friend's home. Trooper Thomas Grothey
proceeded to the home and spoke to the victim. She said that
"Joel," an older male in his forties or fifties whom she had met
over the internet, had recently flown into the area from
California and picked her up at her school bus stop on the
previous day. They had gone to a local hotel, where they had
engaged in sexual intercourse. She confirmed that the person in
the California motor vehicle photograph whom Trooper Grothey knew to be Mr.
Garcia was "Joel." She also indicated that "Joel" would flying
back to California on that day. (Doc. 53 at 19-23).
Trooper Grothey immediately contacted the police barracks and
requested that Mr. Garcia be arrested on suspicion of statutory
sexual assault. He informed officials that Mr. Garcia would
likely be returning a rental car at the airport and would be
flying out of state. Mr. Garcia was arrested by state troopers
soon thereafter and charged with statutory sexual
assault.*fn2 (Doc. 53 at 23-26).
After the arrest was made, Trooper Grothey sought a number of
warrants to search the contents of computers and telephones found
on Mr. Garcia's person. He presented warrant applications to a
local district justice, who had been advised of the nature of the
investigation. The applications noted that Mr. Garcia was being
charged with statutory sexual assault and, referring to him as
"the defendant," described the incident as follows:
The victim met the defendant through instant messages
and emails. They spoke for approx. 3-4 months on the
computer. The defendant advised the victim he will be
flying into the area to visit with her during instant
messaging and emails. The defendant expressed
interest in having sexual intercourse with the
On 01/30/04 at 0800 hrs. [t]he defendant picked the
victim up at the bus stop. He transported her to [a
local hotel]. The victim stayed there with the
defendant until he dropped her off at a
girlfriend[']s house on 01/31/04 at 1400 hrs. The defendant had sexual intercourse with the victim
at the [local hotel]. . . .
The defendant was advised of the victim's age of 14
yoa. The victim advised she told him she was only 14
(Doc. 55, Exs. 1-1k). None of the applications expressly state
Mr. Garcia's age, and several of them include the incorrect date
in the "date of violation" block. However, all of the
applications include the same description of the incident and
indicate that Mr. Garcia is being charged with statutory sexual
assault. The warrants were approved and executed soon thereafter.
(Doc. 53 at 27-31).
The case sub judice was commenced in September 2004 by
indictment charging Mr. Garcia with violating
18 U.S.C. § 2422(b), which prohibits the use of "any . . . means of
interstate . . . commerce . . . [to] persuade? . . . any
individual who has not attained the age of 18 years? to engage
in . . . any sexual activity," and 18 U.S.C. § 2423(b), which
prohibits "travel[ing] in interstate commerce . . . for the
purpose of engaging in any illicit sexual conduct with another
person." (Doc. 1). Defense counsel filed pre-trial motions in
November 2004 and, with leave of court, in March 2005. (Docs. 28,
51; see also Doc. 53 at 4-7). A hearing on the motions was held
on March 10, 2005.*fn3 (Doc. 53). II. Discussion
The pre-trial motions present three distinct challenges to the
instant prosecution. One motion seeks dismissal of the first
count of the indictment on the ground that 18 U.S.C. § 2422(b) is
an unconstitutional exercise of the congressional power to
regulate commerce.*fn4 (Doc. 28 at 1-2). Another demands
suppression of evidence obtained after Mr. Garcia's arrest on the
ground that the arrest was effected without probable cause. (Doc.
28 at 2-3). The third seeks suppression of the same evidence on
the ground that the search warrants were issued without probable
cause. (Doc. 51). As these motions implicate discrete legal and
factual issues, they will be addressed separately.
A. Motion To Dismiss: Constitutionality of
18 U.S.C. § 2422(b)
The Commerce Clause of Article I of the Constitution confers on
Congress the authority "[t]o regulate Commerce . . . among the
several States." U.S. CONST. art. I, § 8, cl. 3. Encompassed
within this grant is the power to regulate "three broad
categories of activities": (1) "the use of the channels" of
interstate commerce, (2) "the instrumentalities of," or "persons
or things in," interstate commerce, and (3) "activities that
substantially affect" interstate commerce. United States v.
Lopez, 514 U.S. 549, 558-59 (1995). "Interstate commerce," for
these purposes, includes not only traditional "economic" transactions but also
encompasses the "transportation of persons and property" across
state boundaries for "non-economic" purposes. See Hoke v.
United States, 227 U.S. 308, 320 (1913), quoted in Heart of
Atlanta Motel, Inc. v. United States, 379 U.S. 241, 255-56
The statute at issue, 18 U.S.C. § 2422(b), is plainly a
constitutional exercise of the commerce power. Section 2422(b)
provides, in pertinent part, as follows:
Whoever, using the mail or any facility or means of
interstate or foreign commerce . . . knowingly
persuades, induces, entices, or coerces any
individual who has not attained the age of 18 years,
to engage in prostitution or any sexual activity for
which any person can be charged with a criminal
offense, or attempts to do so, [is guilty of a
Id. The statute targets conduct involving the "the use of the
channels" of interstate commerce: interstate phone and internet
communications. See United States v. Hornaday, 392 F.3d 1306
1310-11 (11th Cir. 2004); see also Weiss v. United States,
308 U.S. 321
, 325-28 (1939); Cooney v. Mountain States Tel. &
Tel. Co., 294 U.S. 384
, 391 (1935). That Congress may regulate
activities within this field is clear, and the constitutionality
of § 2422(b) cannot reasonably be doubted. See, e.g.,
Hornaday, 392 F.3d at 1310-11.
In arguing that the criminal offense targeted by the statute
(i.e., sexual exploitation of minors) has no "substantial effect"
on interstate commerce, defendant misapprehends the
constitutional basis for the statute. The statute is premised not
on congressional authority to regulate "activities that
substantially affect" interstate commerce, but on its power to
regulate "the use of the channels" of interstate commerce. See id. While the former category
generally requires some proof of interstate economic impact,
see, e.g., Gonzales v. Raich, 125 S. Ct. 2195, 2206-07 (2005)
(citing Lopez, 514 U.S. 549; Wickard v. Filburn, 317 U.S. 111
(1942)), the latter does not, see, e.g., Heart of Atlanta
Motel, Inc. v. United States, 379 U.S. 241, 255-56 (1964).
Congress enjoys plenary authority under the Commerce Clause to
determine the permissible means by which, and the purposes for
which, the channels of interstate commerce may be
utilized.*fn5 Id. Section 2422(b) is a valid exercise of
the commerce power.
B. Motion To Suppress: Warrantless Seizure Without Probable
A warrantless seizure is valid if police have "probable cause"
to believe that the suspect has committed a crime. E.g.,
Atwater v. City of Lago Vista, 532 U.S. 318, 340-45 (2001). The
existence of probable cause must be judged from the perspective
of an objective observer in the officer's position at the time of
the seizure. See Devenpeck v. Alford, 125 S. Ct. 588, 593-94
(2004); see also Wright v. City of Philadelphia,
409 F.3d 595, 602-03 (3d Cir. 2005). "The dispositive question is whether
the investigating officer, with his or her experience and based
on the facts then known, could have reasonably concluded that the
[person to be seized] more likely than not [had committed] a
crime." United States v. Wogan, 356 F. Supp. 2d 462, 467 (M.D.
Pa. 2005) (citing Franks v. Delaware, 438 U.S. 154, 171
(1978)). Probable cause supported the seizure in this case. Section
3122.1 of Title 18 of the Pennsylvania Consolidated Statutes
provides that a person commits statutory sexual assault "when [he
or she] engages in sexual intercourse with a complainant under
the age of 16 years and that person is four or more years older
than the complainant and the complainant and the person are not
married to each other." 18 PA. CONS. STAT. § 3122.1.*fn6 At
the time of the seizure, police had been informed by the victim,
a fourteen-year-old girl, that she had engaged in sexual
relations with a fifty-five-year-old male to whom she was not
married. This information, corroborated by other sources,
undoubtably provided adequate grounds to suspect that defendant
was guilty of a criminal offense.*fn7 See id.; see
also Commonwealth v. Duffy, 832 A.2d 1132, 1138-41 (Pa.Super.
Ct. 2003). The seizure was constitutional.
C. Motion To Suppress: Search Warrant Issued Without
A search warrant may issue only upon "probable cause" to
believe that evidence of a crime will be found in the areas to be
searched. U.S. CONST. amend. IV. A warrant issued on less than
probable cause is invalid and a search of an individual's effects
conducted pursuant thereto violates his or her rights under the Fourth Amendment to the Constitution. See, e.g., United States
v. Leon, 468 U.S. 897, 915-16 (1984).
Despite the omission of defendant's age, the warrant
applications in this case provided sufficient information to
permit the district justice to conclude that, more likely than
not, the crime of statutory sexual assault had been committed.
Initially, it cannot reasonably be argued that a warrant
application based on suspicion of statutory sexual assault must
include the defendant's precise age. An application asserting
that a man with gray hair (as defendant has) engaged in sexual
relations with a fourteen-year-old girl (as the victim was) would
undoubtably suffice to establish probable cause to believe that
the man had committed statutory sexual assault. See 18 PA.
CONS. STAT. § 3122.1. The affidavit need provide only enough
information to permit a "reasonable inference" that the defendant
was four years older than the victim. See, e.g., Ornelas v.
United States, 517 U.S. 690, 695-98 (1996).
The applications sub judice satisfy this burden. The
applications state that the defendant communicated with the
victim, a fourteen-year-old female, through the internet over the
course of several months to induce her to engage in sexual
relations. They assert that he made plans to "fly" to the area in
December 2003. He did so, and "picked the victim up" at
approximately 8:00 a.m. from a bus stop. He transported her to a
hotel and, in a rented room, engaged in sexual relations with
All of these facts imply that the defendant was at least
eighteen years of age. Minors do not often schedule air flights
to rendevous with out-of-state girlfriends. Minors are not usually allowed to book hotel rooms on their own.
Minors are not often permitted to rent cars. The district justice
could reasonably infer from the facts in the applications that
the defendant was over eighteen years of age. With the
allegations of sexual contact with the fourteen-year-old victim,
the applications establish probable cause to believe that he had
committed statutory sexual assault.*fn8 See 18 PA. CONS.
STAT. § 3122.1.
Moreover, even if these facts were deemed insufficient to
establish probable cause, suppression of the evidence obtained on
the basis of the warrants would not be justified in this case.
Evidence obtained in violation of the Fourth Amendment is
properly excluded only when necessary to deter police from
committing future constitutional violations. See Leon,
468 U.S. at 905-06; see also Arizona v. Evans, 514 U.S. 1, 10-16
(1995). However, issuance of a warrant without adequate cause
generally represents a mistake of the judicial officer, not the
police, and suppression of evidence obtained in reliance on the
warrant is normally inappropriate. See id. Only if the error
is somehow attributable to police either because they
misrepresented facts to the judicial officer or because the
warrant is "so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable" should the exclusionary rule be invoked. See
id.; United States v. Williams, 3 F.3d 69, 73-74 (3d Cir.
It cannot be said that the officers in this case intentionally
misrepresented facts to the judicial officer or that the warrants
were "so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable." See
id. The applications present a factually accurate description
of the preceding investigation. The sole material omission, of
the defendant's age, was a product of inadvertence and, as
discussed above, does not preclude a finding of probable cause.
Officers were entitled in this circumstance to rely on the
judicial determination of probable cause in executing the
warrant. Any mistake in issuing the warrant is attributable to
the district justice not to police and the exclusionary rule
should not be applied in this case.*fn9 See id.
The issues raised in the pre-trial motions lack merit. The
statute under which the defendant is charged is a valid exercise
of the commerce power. The warrantless arrest of the defendant
was supported by probable cause. The warrants to search his
effects contained sufficient indicia of probable cause. The
motions will be denied. An appropriate order will issue. ORDER
AND NOW, this 5th day of August, 2005, upon consideration of
defendant's pre-trial motions (Doc. 28, 51), and for the reasons
set forth in the accompanying memorandum, it is hereby ORDERED
that the motions (Doc. 28, 51) are DENIED.