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United States of America v. Robert Franz

October 18, 2012

UNITED STATES OF AMERICA
v.
ROBERT FRANZ



The opinion of the court was delivered by: Schiller, J.

MEMORANDUM

In a two-count indictment, the Government charged Robert Franz with receipt and possession of child pornography. Federal law enforcement agents recovered evidence of these crimes at Franz's home while executing a search warrant in an unrelated investigation, and then obtained a second warrant to search the computer and electronic storage devices they had seized during the first search. Franz now moves to suppress the evidence obtained pursuant to both warrants. The Court held a suppression hearing on June 21, 2012. For the following reasons, the Court denies the motion.

I. BACKGROUND

In 2009, the Alaska division of the Bureau of Land Management ("BLM") was investigating allegations that Karen Jettmar, the owner of Equinox Wilderness Expeditions, was illegally bringing customers into protected territory, and that her customers were illegally removing artifacts from protected lands. In June 2009, undercover agent Jeanne Proctor posed as a customer and participated in one of Jettmar's trips. Franz also participated in the trip. During the trip, Franz boasted about having taken mammoth tusks from protected lands on previous trips. On Jettmar's website, a picture of Franz with the file name "river_kokolik_02.jpg" showed him holding one of the tusks. The Kokolik River is protected territory.

BLM subsequently obtained a search warrant for Franz's home in Pennsylvania, including any computers in the house, for evidence of crimes related to the removal of paleontological resources from protected territory (the "Nardinger Warrant"). The face sheet of the Nardinger Warrant described Franz's house as the location to be searched. However, in the space on the warrant face sheet where one describes the person or property to be seized, the Nardinger Warrant stated "see attached sheet." The "sheet" referred to was Attachment B, which contained a list of items to be searched for and seized. In addition to issuing the warrant, Magistrate Judge Thomas J. Rueter also approved an order sealing the warrant, affidavit, and accompanying docket papers. BLM agents executed the Nardinger Warrant on August 3, 2009. Upon entering Franz's home, the agents observed framed photographs of nude minor females on the walls. While searching a filing cabinet next to Franz's bed, the agents came across magazines containing photographs of nude minors engaged in sexually explicit conduct. At that point, the agents stopped the search to call the U.S. Attorney's Office in the Eastern District of Pennsylvania for guidance. The U.S. Attorney's Office advised the agents to seize any contraband found in plain view. In addition to the magazines, agents also seized playing cards and a book containing pornographic depictions of minors.

While preparing Franz's computer for removal and imaging, a BLM agent trained in the forensic analysis of digital evidence reviewed a limited number of JPEG files to determine if they were encrypted. One of the files he reviewed depicted a partially nude minor female. The agent also saw file names indicative of child pornography, such as "vid070_skinny_teen_strip.flv." Believing the computer contained contraband, the agents again stopped their search and called the Federal Bureau of Investigation ("FBI") for further guidance. Due to the volume of files stored on Franz's computer and electronic storage devices, the agents did not image the computer and devices during the search of Franz's home. Instead, the agents seized these items for imaging off-site.

On August 12, 2009, the FBI obtained a second search warrant to search the computer and electronic storage devices that had been seized from Franz's home (the "Herrick Warrant"). In August 2010, Franz was charged with theft of government property and conspiracy to defraud the United States. He did not challenge the Nardinger Warrant in connection with those charges and pled guilty to both offenses. On January 5, 2012, Franz was charged in this case with receipt and possession of child pornography under 18 U.S.C. § 2252.

II. STANDARD OF REVIEW FOR MOTION TO SUPPRESS

On a motion to suppress, the movant bears the burden of establishing a violation of his constitutional rights by a preponderance of the evidence. See Rakas v. Illinois, 439 U.S. 128, 132 n.1 (1978); United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995); United States v. Acosta, 965 F.2d 1248, 1257 n.9 (3d Cir. 1992).

III. DISCUSSION

Although Franz's motion is not entirely clear, he appears to argue that: (1) the Nardinger and Herrick Warrants were issued without probable cause; (2) the affidavits supporting both warrants contained false statements and omissions; and (3) the search and seizure of his computer, electronic storage devices, and other items from his home exceeded the scope of the Nardinger Warrant. In his supplemental brief, Franz also argues that the Nardinger Warrant fails to satisfy the Fourth Amendment's particularity requirement.

With the exception of Franz's argument that the Nardinger Warrant lacks particularity, the Court rejects all of Franz's arguments. However, the Court finds that the exclusionary rule does not apply to suppress any of the evidence collected pursuant to the Nardinger or Herrick Warrants.

A. The Nardinger Warrant Was Proper When Issued

A reviewing court must uphold a warrant provided that there is a "substantial basis" for the magistrate's finding of probable cause-that is, "a fair probability that contraband or evidence of a crime will be found in a particular place." United States v. Hodge, 246 F.3d 301, 305 (3d Cir. 2001) (internal quotation marks omitted). "In making this determination, the Court confines itself to the facts that were before the magistrate judge, i.e., the affidavit, and [does] not consider information from other portions of the record." Id. (internal quotation marks omitted). The "affidavit must be read in its entirety and in a common sense and non-technical manner." United States v. Conley, 4 F.3d 1200, 1206 (3d Cir. 1993). Furthermore, "great deference" should be afforded to the magistrate's decision. Hodge, 246 F.3d at 305.

Franz objects to a number of individual paragraphs in the affidavit supporting the Nardinger Warrant ("Nardinger Affidavit"). He argues that certain paragraphs pertained solely to Jettmar's behavior, and he offers alternative interpretations of his statements and actions on the June 2009 trip. However, "statements in an affidavit may not be read in isolation-the affidavit must be read as a whole." Conley, 4 F.3d at 1208. As set forth in the Nardinger Affidavit, Agent Proctor heard Franz brag about taking mammoth tusks during previous trips through protected territory with Jettmar. (Nardinger Aff. ¶ 16.) Franz's statements were confirmed by a photograph on Jettmar's website and by Jettmar herself. (Id. ¶¶ 4, 9, 12.) Franz told Agent Proctor the tusks were located in his house and also mentioned he had another "special artifact" in his house. (Id. ¶¶ 10, 16.) Additionally, Franz and Jettmar made various comments suggesting that Franz knew they were engaged in illegal conduct.

(Id. ¶ 14.) Reading the affidavit in its entirety and in a non-technical manner, the Court concludes that the Magistrate had a substantial basis to find probable cause that Franz removed, or conspired with Jettmar to remove, paleontological resources from protected territory, and that evidence of those crimes was located in his home.

Franz also argues that the Nardinger Warrant was overbroad because there was "no legal basis to search his computer, zip drives, or any other external electronic storage device for any photographs." (Def.'s Mot. to Suppress at 6.) He claims that his camera broke on the first day of the trip and that the Nardinger Affidavit made "no mention of Franz being a trip historian on prior excursions." (Id.) In fact, the Nardinger Affidavit specifically stated that Franz told Agent Proctor "he had produced similar documentaries on other trips" and that he sought photographs from other participants during the June 2009 trip. (Nardinger Aff. ΒΆ 21.) These facts were sufficient to create ...


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