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United States of America v. Patrick Joseph Kofalt

November 2, 2012

UNITED STATES OF AMERICA
v.
PATRICK JOSEPH KOFALT, DEFENDANT.



The opinion of the court was delivered by: Judge Nora Barry Fischer

MEMORANDUM OPINION

I. INTRODUCTION

Presently before the Court is a motion to suppress evidence filed by Defendant Patrick Joseph Kofalt ("Defendant") on July 3, 2012. (Docket No. 37). Defendant seeks to suppress child pornography found on his computers that were seized by Pennsylvania State Police upon execution of a search warrant at his residence in Enon Valley of Lawrence County, Pennsylvania on December 2, 2009. (Id.). Defendant claims that the search warrant obtained by the police was not supported by probable cause and, alternatively, that the Affidavit, upon which the warrant was granted, omitted material facts in violation of Defendant's Fourth Amendment rights. (Docket Nos. 37, 44, 46). The Government opposes Defendant's motion. (Docket No. 38, 45, 46).

Pre-hearing briefs were submitted by both parties and a suppression hearing was held on August 8, 2012. (Docket Nos. 37, 38, 46). The transcript of the hearing has been produced and fully considered by the Court. (Docket No. 46). The Court also ordered the parties to submit proposed findings of fact and conclusions of law. (Docket No. 41). Defendant filed his proposed findings of fact and conclusions of law on September 20, 2012, (Docket No. 43), and the Government filed its proposed findings of fact and conclusions of law on October 4, 2012. (Docket No. 45).

Upon consideration of the parties' submissions, the evidence presented during the motion hearing and for the following reasons, Defendant's motion to suppress [37] is denied.

II. BACKGROUND

A.Charges and Potential Penalties

Defendant was charged by Indictment with two counts: one count of Receipt of Material Depicting the Sexual Exploitation of a Minor, on or before December 2, 2009, in violation of 18 U.S.C. § 2252(a)(2); and one count of Possession/Access with Intent to View of Material Depicting the Sexual Exploitation of a Minor, on or about December 2, 2009, in violation of 18 U.S.C. § 2252(a)(4)(B).*fn1 (Docket No. 1). The Indictment alleges that Defendant used the following computer equipment to commit or to promote the commission of said violations and the Government seeks forfeiture of same pursuant to 18 U.S.C. § 2253(a)(3): an 80 gigabyte Maxtor hard drive; a 160 gigabyte Western Digital USB drive; a 120 gigabyte Hitachi laptop hard drive; an 80 gigabyte Seagate laptop hard drive; a 250 gigabyte Hitachi laptop hard drive; a blue Navigon SD memory card; a 4 gigabyte PNY SD memory card; a 2 gigabyte black SanDisk Cruzer thumb drive; a Norcent DCC-725 digital camera, and assorted storage media. (Id. at 3).

A conviction at Count One carries with it a potential term of imprisonment of not less than five years and no greater than twenty years, and a conviction at Count Two may result in a potential term of imprisonment of ten years. (Docket No. 2 at 4-5). However, if defendant has a prior conviction under 18 U.S.C §§ 71, 109A, 110, 117 or 10 U.S.C. § 920 or under any state law relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward, or the production, possession, receipt, mailing, sale, distribution, shipment or transportation of child pornography, then the sentence of imprisonment for Count One is no less than fifteen years nor more than forty years and Count Two is no less than ten years nor more than 20 years. (Id.)

B.Findings of Fact

The uncontroverted evidence offered at the August 8, 2012 suppression hearing established the following facts.*fn2 The Government introduced its Exhibit 1 and 2 into evidence without objection from the defense and said exhibits were admitted. (Docket No. 40 at 7-8). Exhibit 1 consists of an Application for Search Warrant and Authorization and a supporting Affidavit of Probable Cause. (Govt. Ex. 1, Docket No. 40-2). Exhibit 2 consists of the Forensic Interview Report taken by Janice Wilson at the Children's Advocacy Center on December 2, 2009. (Govt. Ex. 2, Docket No. 40-3).

Pennsylvania State Police Trooper Harry S. Gustafson Jr. ("Gustafson") presented an Application for Search Warrant and Authorization with supporting Affidavit to the Hon. Jerry G. Cartwright, Jr., Magisterial District Judge, on December 2, 2009, requesting that a warrant be issued to search a residence at 1157 Moravia Rd. Enon Valley, PA 16120. (Govt. Ex. 1 at 1). The warrant was issued upon a finding of probable cause by Magistrate Judge Cartwright. (Id.). Specifically, the warrant identified the items to be searched and seized as:

All computer hardware, including but not limited to, any equipment which can collect, analyze, create, display, convert, store, conceal, or transmit electronic, magnetic, optical similar computer impulses or data. Any computer processing units, internal and peripheral storage devices, (such as fixed disks, external hard disks, floppy disk drives, and diskettes, tape drives, tapes, and optical storage devices), peripheral input/output devices (such as keyboards, printers, scanners, plotters, video display monitors, and optical readers), and related communication devices such as modems, cables, and connections, recording equipment, as well as any devices, mechanisms, or parts that can be used to restrict access to computer hardware.

Any computer software, software documentation, operating logs and/or hardware documentation.

Any documents that shows [sic] ownership or who resides at the place to be searched.

Any data, images, electronic communications, and/or any other electronic information contained on, or within, the computer system/s, computer/s computer components, storage media, peripherals and/or computer software relating in any way to any images, photographs or depictions of Child Pornography (as defined herein and in section 6312 of the Crimes Code).

Any materials, including but not limited to; manuals, materials, pamphlets, books, scrapbooks, notebooks, papers, or data which contain information regarding logins, passwords, URL names, Internet site names, Internet account or e-mail account information. Any and all image and/or video files (conventionally or digitally produced), photographic and video camera equipment (conventional or digital), negatives, slides, video tapes, motion picture films, magazines, books, or drawings of children or adults engaged in sexual activity or sexually suggestive poses or of children nude, semi-nude, or wearing underwear with no outer garment covering the underwear; Any photographs, printed copies, pictures, images, visual representations, or figures depicting Child Pornography (as defined herein and in section 6312 of the Crimes Code). (Id. at 1-2). The premises to be searched were described as:

1157 Moravia Rd. North Beaver Twp., Enon Valley, PA 16120

Two story blue/grey house (Id. at 1). The warrant also identified "Patrick J. KOFALT" as the "name of owner, occupant or possessor of the premises to be searched" on the application. (Id.). Finally, the warrant incorporates by reference an attached sworn Affidavit by Trooper Gustafson. (Id. at 3).

The entirety of the Affidavit of probable cause states that "probable cause belief is based upon the following facts and circumstances":

Your affiant [State Trooper Harry Gustafson] has been a member of the Pennsylvania State Police for just over 18 years and is currently assigned to the criminal investigation unit at the New Castle Barracks.

On 12/02/09 I was assigned to attend a forensic interview of a 6 yr old male at the Children's Advocacy Center at Jameson South. This interview was being conducted by Jan WILSON and Lawrence County Children and Youth Services following the juvenile disclosing to school officials at Brighter Visions on 11.30.09 that while he was at Patrick KOFALT's house, the subject would tickle his private areas and take nude pictures of him.

During the interview, the juvenile confirmed that KOFALT took pictures of him in his underwear and without his underwear. He also stated that KOFALT showed him pictures of nude people on his computer.

Based on your affiant's knowledge, training in various sex crimes, and experience, your affiant knows that child pornographers generally prefer to store images of child pornography in electronic form as computer files. The computer's ability to store images in digital form makes a computer an ideal repository for pornography. A small portable disk can contain hundreds or thousands of images of child pornography, and a computer hard drive can contain tens of thousands of such images at very high resolution. The images can be easily sent to or received from other computer users over the Internet. Further, both individual files of child pornography and the disks that contain the files can be mislabeled or hidden to evade detection.

Based upon your affiant's knowledge, training and experience, your affiant knows that searching and seizing information from computers often requires officers to seize most or all electronic storage devices (along with related peripherals) to be searched later by a qualified computer expert in a laboratory or other controlled environment. This is true because of the following:

Your affiant believes that images of Child Pornography will be found on the computer/s and/or other storage media of the residence of Patrick J KOFALT 1157 Moravia Rd. Enon Valley PA, which will lead to the identity of the individual/s who possesses child pornography. Your affiant believes that there is probable cause to believe that these items constitute evidence and instrumentalities of violation [sic] for the crime of Title 18, Section 6312, Sexual Abuse of Children. Your affiant learned through training and experience, those persons engaged in the distribution and possession of pornographic/child pornographic materials often maintain collections of such material and that such material is used as a resource for furtherance of the exploitation of juveniles. The collections are kept by these persons for long periods of times, years at times.

Your affiant asserts the named items are evidence of criminal activity and as such are subject to search and seizure." (Id.). The warrant was executed at 6:50 p.m. on December 2, 2009. (Id. at 4).

Exhibit 2 is composed of Jan Wilson's notes from the forensic interview of a six-year-old boy ("Minor") on December 2, 2009 which was attended by Gustafson and a Children and Youth Services caseworker. The interview was held as a result of Minor disclosing to school officials that Defendant tickled his private areas and took nude pictures of him. (Govt. Ex. 2). Wilson's notes reveal the following facts from the interview. Minor, who has "rather severe behavioral problems," attends Brighter Visions, a school for children with special needs. (Id. at 1). The interview took place at the Children's Advocacy Center at Jameson South. (Id.). In the waiting room, Wilson briefly spoke with Minor, who continued chatting while he willingly walked into the interview room. (Id.). However, once in the room, Minor began acting up by continuously walking around, bouncing around on the furniture, spilling a container of Play-Doh on the desk and attempting to dump crayons everywhere. (Id.). He had difficulty ...


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