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United States v. Tracey

June 30, 2008


The opinion of the court was delivered by: William W. Caldwell United States District Judge


I. Introduction

Defendant, Ralph Douglas Tracey, has been indicted for a violation of 18 U.S.C. § 2255A(a)(2)(A), receiving and distributing child pornography, and for a violation of 18 U.S.C. § 2252A(a)(5)(B), possession of child pornography.

We are considering his motion to suppress evidence seized under the authority of a search warrant. On its face, the warrant authorized the seizure of items or images "representing the possible exploitation of children." It also authorized the seizure of computer input and output devices and other devices normally used with a computer. Defendant argues that the warrant violated the Fourth Amendment because it lacked particularity and hence was a general warrant. Defendant also seeks to suppress a statement he made to the police officers executing the warrant because the statement is a product of the illegal search conducted pursuant to the warrant.

In opposing the motion, the government first argues that it is sufficient that the application for the warrant, rather than the warrant, contained specific language, here by incorporating the language of the affidavit of probable cause. It also argues the good faith exception to the exclusionary rule applies and allows the use of all the seized evidence in Defendant's criminal proceedings, even if the warrant was defective. Finally, it argues that the warrant can be redacted, based on the same incorporated language from the affidavit.

We will grant Defendant's motion. The warrant is a general warrant, and the incorporation rule does not assist the government because the limiting language was not incorporated into the warrant; it is not enough that it was incorporated into the application. Additionally, because a reasonably objective police officer would have recognized that the warrant was facially defective, the good faith exception does not apply. Further, redaction does not apply here because that principle cannot be used to save a general warrant.

II. Background

On January 30, 2006, James A. Holler, the Chief of Police of Liberty Township, Adams County, Pennsylvania, submitted the application for the search warrant to a Pennsylvania magisterial district judge. Chief Holler had also prepared the application. The application's first page was a standard, one-page form. The top portion of the first page was the application, containing boxes to identify the items to be seized and the premises to be searched. The lower portion was the warrant, if the judge signed it to authorize the search. The next seven pages of the application consisted of the affidavit of probable cause, which Chief Holler had also drafted.

The box for the description of the "items to be searched for and seized" instructed that the description "be as specific as possible." The Chief wrote the following description:

Any items, images or visual depictions representing the possible exploitation of children including videotapes or photographs.

COMPUTERS: Computer input and output devices to include but not limited to keyboards, mice, scanners, printers, monitors, network communication devices, modems and external or connected devices used for accessing computer storage media. (Doc. 23, Govt.'s Opp'n Br., Attach. 1).*fn1 In addition, the application indicated that it had been approved by the district attorney and that the probable cause affidavit was attached. Finally, the application indicated in a separate box that the crimes involved were violations of 18 Pa. C.S. § 6312(c) and (d).*fn2

In the affidavit of probable cause, Chief Holler stated the following concerning the items he wanted to search for and seize:

Your affiant, based on his experience and expertise, expects to find within the [Defendant's] residence . . . items which are/were used to commit the crime of Sexual Abuse of Children, to wit, 18 PA. C.S.A. section 6312(c), (d). Your affiant has delineated the items your affiant expects to find within said location which is captioned under "Items to be searched for and seized", and your affiant incorporates that list herein. Possession of these items are either in and of themselves a crime or they are/were utilized to commit a crime, to wit, Sexual abuse of children, 18 PA. C.S.A. section 6312(c), (d). (Doc. 23, Govt.'s Opp'n Br., Attach. 1, p. 2 of the probable-cause affidavit).

In pertinent part, the probable-cause affidavit explains how the police had come to suspect Defendant had been involved in these crimes. A police officer experienced in computers and how they were used by criminals, including those interested in "child pornography," traced a movie he had found on a file-sharing site to a computer at Defendant's residence. The ...

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