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United States of America v. Ronny Getgen

November 18, 2011

UNITED STATES OF AMERICA
v.
RONNY GETGEN, DEFENDANT



The opinion of the court was delivered by: Judge Conner

MEMORANDUM

Presently before the court is a motion (Doc. 28) to suppress evidence filed by defendant Ronny Getgen ("Getgen"). Getgen contends that his Fourth Amendment rights were violated by the improper issuance and execution of two search warrants. Getgen requests that the court suppress all physical evidence recovered pursuant to the search warrants and a statement allegedly made by Getgen during the execution of the first warrant. For the following reasons, the court will deny the motion.

I. Findings of Fact*fn1

On August 7, 2009, Williamsport Bureau of Police Agent Ronald Bachman ("Agent Bachman") and Lycoming County Detective William Weber ("Detective Weber") met with Jason Debloois ("Debloois"), an employee of Publishers Service Associates, Inc. ("Publishers Service"). (Hr'g Tr. at 7-8). Debloois told Agent Bachman and Detective Weber that a Publishers Service email had been intercepted and forwarded to an employee not privy to the email.*fn2 (Id. at 8). Debloois gave Agent Bachman and Detective Weber a copy of the email and the captured Internet Protocol ("IP") address of the cyber-intruder. (Id. at 8-9). These materials demonstrated that a computer using IP address 68.63.97.95 intercepted and forwarded a Publishers Service email on August 3, 2009. (Id. at 8-9; Gov't Ex. A). After further investigation, Agent Bachman determined that IP address 68.63.97.95 belonged to Comcast Corporation ("Comcast"). (Hr'g Tr. at 10; Gov't Ex. A). The header of the forwarded email also indicated that the cyber-intruder used a virus scan program known as AVAST!. (Hr'g Tr. at 13-14; Gov't Ex. A).

On August 11, 2009, an individual using the same IP address unsuccessfully attempted on two separate occasions to access Publishers Service's computer system through the internet portal logmein.com. (Hr'g Tr. at 10-11; Gov't Ex. A). Debloois told Agent Bachman that Ronny Getgen was one of four individuals who knew that this portal could be used to access Publishers Service's computer system and that Getgen had recently been terminated. (Hr'g Tr. at 11-12; Gov't Ex. A).Debloois explained that Publishers Service severed Getgen's computer privileges at the time of his termination and that the logins had been changed to prevent intrusion. (Id.) Debloois also told Agent Bachman that Getgen used Comcast as his email server and AVAST! as his virus scan program. (Hr'g Tr. at 13-14; Gov't Ex. A).On August 12, 2009, Agent Bachman served a search warrant on Comcast to obtain subscriber information on IP address 68.63.97.95. (Hr'g Tr. at 14; Gov't Ex. A). On August 25, 2009, Comcast responded to the warrant and stated that Getgen's residence at 226 Westland Avenue, South Williamsport, Pennsylvania, used IP address 68.63.97.95 on the dates of the intrusions. (Id.)

Based on the above information, Agent Bachman prepared an Application for Search Warrant and Authorization with an affidavit of probable of cause. (Hr'g Tr. at 14-15; Gov't Ex. A). First Assistant District Attorney Kenneth Osokow ("Osokow") approved the application. (Hr'g Tr. at 15). Agent Bachman then presented the application to Magistrate Judge Allen Page ("Judge Page"). (Hr'g Tr. at 17). On September 3, 2009, Judge Page issued a search warrant ("SW-61-09") authorizing the search and seizure of "EVIDENCE OF UNAUTHORIZED ACCESS TO THE COMPANY NETWORK OF PUBLISHERS SERVICE ASSOCIATES." (See Gov't Ex. A). In the section of the warrant designated for the specific description of the premises and/or person to be searched, the warrant stated "ALL COMPUTERS AND ELECTRONIC MEDIA LOCATED AT 226 WESTLAND AVENUE IN SOUTH WILLIAMSPORT, PA. TO BE FORENSICALLY EXAMINED OFF-SITE AT A LATER TIME." (Id.)

Later that day, Agent Bachman executed the warrant with Detective Weber and several other police officers. (Hr'g Tr. at 19). Agent Bachman testified that he searched the residence for computers and electronic media and seized five computers, one external hard drive, 59 CDs/DVDs, and five thumb drives. (Id.) During the execution of the warrant, Getgen, without questioning or prompting by the officers, noted that there would be software on one of his computers from Publishers Service. (Id. at 20). Agent Bachman responded that Getgen was not being accused of stealing software and that he was not interested in pirated music, but that he could not overlook or ignore any potential criminal issues arising from the discovery of child pornography. (Id.) Getgen told Agent Bachman that there would be some "borderline" images on the computers. (Id. at 24).

On September 21, 2009, Agent Bachman conducted a forensic examination on the seized items. (Id. at 21, Gov't Ex. B). Agent Bachman sought only to look for evidence of computer trespass. (Hr'g Tr. at 20-21). However, during the course of his forensic examination, Agent Bachman discovered an image that appeared to be child pornography and immediately stopped his examination. (Hr'g Tr. at 22-23, Gov't Ex. B). Two other law enforcement officials reviewed the image and concurred in his assessment that the image constituted child pornography. Consequently, Agent Bachman prepared a second Application for Search Warrant and Authorization with an affidavit of probable of cause. (Id.) The District Attorney approved the application and then Agent Bachman presented the application to Judge Page. (Hr'g Tr. at 23-24). On October 21, 2009, Judge Page issued a second search warrant ("SW-71-09") authorizing the search and seizure of "ANY AND ALL IMAGES OF CHILD PORNOGRAPHY INCLUDING DIGITAL IMAGES AND VIDEOS." (Gov't Ex. B). In the section designated for the specific description of the premises and/or person to be searched the warrant stated "HP DESKTOP COMPUTER BEARING SERIAL NUMBER USU4160992, A WHITE HOME MADE COMPUTER TOWER WITH NO BRANDING, A NET VISTA DESKTOP BEARING SERIAL NUMBER 8303HUEK114630, AN HP LAPTOP BEARING SERIAL NUMBER TW15103038, A COMPAQ LAPTOP BEARING SERIAL NUMBER CNF3500KJL, AN ADDONICS HARD DRIVE ENCLOSURE WITH 80 GB HARD DRIVE, 59 CD/DVDS, AS WELL AS 5 THUMB DRIVES CONFISCATED ON SEPTEMBER 3, 2009 FROM RON GETGEN." The execution of SW-71-09 led to the discovery of additional evidence ultimately resulting in Getgen's federal indictment.*fn3

II. Procedural History

On April 14, 2011, a federal grand jury returned a two-count Indictment charging Getgen with violations of 18 U.S.C. §§ 2252A (a)(2)(B) and (a)(5)(B) concerning the receipt and possession of material containing child pornography. (Doc. 1). Getgen pled not guilty at his initial appearance on April 15, 2011. (Doc. 7). Getgen filed the instant motion (Doc. 28) to suppress on September 9, 2011. The court conducted an evidentiary hearing on October 14, 2011.The motion has been fully briefed and is now ripe for disposition. (See Docs. 28, 32).

III. Discussion

The Fourth Amendment of the United States Constitution provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. CONST. amend. IV. Getgen asserts seven distinct Fourth Amendment violations stemming from the issuance and execution of the two search warrants. With respect to SW-61-09, Getgen claims that: (1) the executing officers exceeded the scope of the warrant by seizing his computers and electronic media; (2) no probable cause existed to issue the warrant; (3) Agent Bachman intentionally misled Judge Page as to the reliability of the information contained in his affidavit of probable cause; (4) the warrant failed to describe with particularity the property to be searched and seized; (5) the search and seizure authorized by the warrant was overbroad; and (6) Agent Bachman executed the warrant in flagrant disregard of the terms of the warrant itself and in bad faith. (See Doc. 28, at 5-16). With respect to SW-71-09, Getgen contends that, without reference to the evidence illegally obtained pursuant to SW-61-09, the affidavit of probable cause for the warrant fails to establish probable cause. (See id. at 17-21). The court holds that the issuance and execution of SW-61-09 and SW-71-09 did not violate the Fourth Amendment of the United States Constitution and that Agent Bachman acted in good-faith in executing the warrants. Accordingly, the physical evidence recovered pursuant to the warrants and the statement allegedly made by Getgen will not be suppressed.

A. Alleged Fourth Amendment Violations

1. Unauthorized Seizure: SW-61-09

Getgen contends that the executing officers exceeded the scope of the warrant by seizing Getgen's computers and electronic media. (Doc. 28, at 6-8). Getgen argues that although the executing agents could search "[a]ll computers and electronic media located at 226 Westland Avenue in South Williamsport, Pa[,]" the warrant only allowed the executing officers to search and seize "evidence of unauthorized access to the company network of Publishers Service Associates." (Doc. 28, at 7, 8 (quotations omitted)).

The court finds that Agent Bachman did not exceed the authority of SW-61-09 by seizing Getgen's computers and electronic media. Getgen's position is premised on how Agent Bachman drafted SW-61-09. Agent Bachman identified the items to be searched and seized as "EVIDENCE OF UNAUTHORIZED ACCESS TO THE COMPANY COMPUTER OF PUBLISHERS SERVICE ASSOCIATES." (Gov't Ex. A). For the specific description of the premises to be searched Agent Bachman stated "ALL COMPUTER AND ELECTRONIC MEDIA LOCATED AT 226 WESTLAND AVENUE IN SOUTH WILLIAMSPORT, PA. TO BE FORENSICALLY EXAMINED OFF-SITE AT A LATER TIME." (Id.) The Third Circuit has stated that "phrases in a search warrant must be read in context and not in isolation." United States v. Johnson, 690 F.2d 60, 64 (3d Cir. 1982). It is plainly evident from the context of the entire warrant that SW-61-09 provides the executing officers with the authority to seize the computers and electronic media for a period of time to allow them to conduct forensic examination "off-site at a later time."

Courts often distinguish "a mere technical mistake" from "defects of constitutional magnitude." United States v. Hattrick, 182 Fed. Appx. 649, 651 (9th Cir. 2006) (holding that the omission of the words "and to seize the same" at the end of a list of property to be searched was a mere technical mistake"); see also Groh v. Ramirez, 540 U.S. 551, 558 (2004) (distinguishing "a mere technical mistake or typographical error" from the failure to describe the items to be seized at all). Furthermore, courts may reference an affidavit for clarification when the warrant contains an ambiguity or clerical error, even if the affidavit is not formally incorporated by reference in the warrant. Doe v. Groody, 361 F.3d 232, 240 (3d Cir. 2004); see also United States v. Wallace, Criminal No. 1:09-CR-0179, 2009 WL 3182903, at *2 (M.D. Pa. Sept. 30, 2009). The affidavit removes all ambiguity from SW-61-09, explicitly stating that "[a] search warrant is hereby requested to seize all computers and electronic media from ...


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