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United States of America v. Brandon Carter

February 24, 2012

UNITED STATES OF AMERICA,
v.
BRANDON CARTER, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Pending before the court is a motion to suppress evidence (ECF No. 52) filed by Defendant Brandon Carter ("Defendant" or "Carter") in the above-captioned case. On May 12, 2009, a federal grand jury in the Western District of Pennsylvania returned a two-count indictment charging Defendant with receipt and possession of child pornography in violation of 18 U.S.C. §§ 2252(a)(2) & 2252(a)(4)(B). (ECF No. 1.)

On May 23, 2011, Defendant filed a motion to suppress evidence (ECF No. 52), arguing that the government seizures of his computers and hard drive were conducted in violation of the Fourth Amendment to the United States Constitution. Defendant argues: (a) the seizures were warrantless and none of the exceptions to the warrant requirement apply; (b) the government kept the seized computers for an unconstitutionally unreasonable amount of time before obtaining a warrant; (c) the seizures were conducted without probable cause; and (d) the later-obtained search warrants were lacking in probable cause. (ECF No. 52.)

Defendant also filed a motion to produce evidence under Federal Rules of Evidence 404(b) and 609 (ECF No. 51), and a motion for discovery (ECF No. 50). The court held a hearing on the pretrial motions on September 16, 2011. During the hearing, the court granted in part and denied in part Defendant's motion for discovery. (Hr'g Tr. Sept. 16, 2011 ("Transcript") (ECF No. 70) at 12.) The court denied as moot Defendant's motion to produce evidence under Rules 404(b) and 609. (Id. at 16.)

The court heard testimony from three government witnesses: Agent Brian Morris ("Morris") of the United States Secret Service ("Secret Service"); Special Agent Mark Kernan ("Kernan") of the Secret Service; and former*fn1 Secret Service Special Agent Michael Radens ("Radens"). Defendant called his father, Laverne Carter ("Defendant's father" or "Carter's father"), to testify at the hearing.

The parties filed proposed findings of fact and conclusions of law on December 28, 2011 with respect to Carter's motion to suppress. (ECF Nos. 73 & 74.) On February 3, 2012, the court granted Carter leave to file a supplemental, post-hearing brief to address the applicability of a recent Supreme Court decision*fn2 to this case. (ECF no. 76) Carter filed the supplemental brief on February 13, 2012 (ECF No. 77), and the government responded on February 19, 2012 (ECF No. 78). Upon consideration of the parties' submissions and the evidence and testimony presented at the suppression hearing, the court makes the following findings of fact and conclusions of law:

I. Findings of Fact

1. Officers from the Scott Township police department arrested Carter on May 13, 2008, in the Pittsburgh, Pennsylvania, area for counterfeiting and fraud-related activities. (Transcript (ECF No. 70) at 82.) Following his arrest, Carter was incarcerated from May 13, 2008 until at least July 2008. (Id. at 84.)

2. Officers found counterfeit gift certificates and counterfeit currency in the back seat of Carter's car. (Id.) The gift certificates were made from VersaCheck paper stock. (Id. at 82-83.) VersaCheck is a computer program often used by businesses; the licit purpose of VersaCheck is to allow a person to print his or her own checks. (Id. at 83.)

3. In early May 2008, the Scott Township police department sought assistance from the Secret Service to investigate Carter's alleged counterfeiting of Federal Reserve Notes. (Id. at 82.)

4. Radens was the Secret Service case agent assigned to the investigation. (Id. at 81.)

5. Radens was immediately interested in finding any computer belonging to Carter because (a) Carter was in possession of counterfeit currency and gift certificates when he was arrested, (b) the gift certificates were created using the VersaCheck computer program, (c) counterfeiters often use computers either to create or to research bills or gift certificates, and (d) gift certificate counterfeiters often use computers to obtain images of store logos and to conduct research of return policies at retail stores. (Id. at 82-84.)

6. At the time of his arrest, Carter shared a townhouse in Carnegie, Pennsylvania, with Stephanie Kennedy ("Kennedy"), his former girlfriend.*fn3 (Id. at 84-85.) At all times relevant to this opinion, Kennedy was a member of the United States Air Force Reserve. (Id. at 85.)

7. Carter had two computers at the townhouse. One computer was a Gateway. (Id. at 95.) The other was an HP. (Id.) The computers were in a common area, in an extra bedroom of the townhouse. (Id. at 87.) The bedroom was arranged to function as an office. (Id.)

Kennedy used the computers. (Id.) The office was filled with a "a lot of [other] computer equipment" beyond the two computers. (Id.) Kennedy saw gift certificates in the office near the printer. (Id. at 115.)

8. On the night that Carter was arrested, May 13, 2008, his stepbrother, Jack Brown ("Brown"), removed some of Carter's belongings (the identity of which are unknown) from the townhouse. (Id. at 111.)

9. On May 28, 2008, Carter's probation officer told Radens that on the night of Carter's arrest Brown removed many belongings from the townhouse. (Id. at 107-08.)

10. On June 1, 2008, while Carter was still incarcerated, Kennedy was evicted from the townhouse. (Id. at 87, 138.) Kennedy removed all items from the residence, including Carter's computers and other belongings. (Id. at 113, 138.) Kennedy took Carter's belongings (including the Gateway and HP computers) to Carter's parents' house (the "Carter house") in the Pittsburgh, Pennsylvania, area, and left them on the deck at the back of the house. (Id. at 114, 145.) The next day, Carter's father moved the computers to the basement. (Id. at 145.) Kennedy believed that she had returned all of Carter's belongings to his parents. (Id. at 114.)

11. On June 6, 2008, Carter's landlord told Radens that Kennedy had moved out of the apartment with all of Carter's remaining belongings. (Id. at 113.) The landlord told Radens that she believed Kennedy had given the computer to Carter's parents. (Id.)

12. On the morning of June 11, 2008, Radens and Kernan interviewed Kennedy at the 911th Air Force Reserve base in Moon, Pennsylvania. (Id. at 85, 113, 118.) Kennedy confirmed she had given the computers to Carter's parents, along with the rest of his property. (Id. at 113.) Kennedy also told Radens and Kernan that "she had knowledge of the gift certificates and had seen them in the office [of the townhouse] . . . near the printer." (Id. at 115.)

13. The night before his conversation with Kennedy, Radens took notes about the information obtained during the investigation, in preparation for completing an affidavit for a search warrant the next day. (Id. at 117.) The same night, June 10, 2008, Radens told Morris not to report to their office in the morning, but to head straight for the Carter house to surveil it. (Id.) Radens wanted Morris to prevent anyone from removing the computers from the Carter house. (Id.) Although Kennedy was very cooperative with investigators, Radens did not interact with her prior to June 11, 2008, and he was concerned she might inform Carter's parents that Secret Service agents were asking about the computers. (Id. at 88-89, 117.)

14. The June 11, 2008 interview with Kennedy ended at approximately 10:00 a.m., following which Radens and Kernan headed directly to the Carter house in the same car. (Id. at 118.) They arrived and met Morris about fifteen minutes later. (Id.)

15. Morris was surveilling the Carter house in a car parked on the road approximately 200 or 300 away from the driveway to the Carter house. (Id. at 35, 89.) Radens parked in the driveway of the Carter house. (Id. at 89.) Morris moved his car to the driveway when Radens and Kernan arrived. (Id. at 36.)

16. Radens planned to attempt to obtain possession of the computers by the consent of one of Carter's parents, before going through the process of applying for a warrant. (Id. at 115.)

17. After Radens and Kernan arrived at the Carter house, the three agents attempted to initiate contact with Carter's parents. (Id. at 88-89.) Radens and Morris approached the front door and Radens knocked on it. (Id. at 90.) Kernan went to the rear of the house, knocked on a rear window, and looked through the window to see if anyone was home. (Id. at 56.) Morris moved to the side of the house to watch for anyone attempting to leave. (Id. at 23.) No one answered the front ...


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