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United States of America v. Van N. Epps

December 10, 2012

UNITED STATES OF AMERICA
v.
VAN N. EPPS



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

MEMORANDUM

I.INTRODUCTION

Defendant Van N. Epps is charged with four counts of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2), one count of distribution of child pornography in violation of 18 U.S.C. § 2252(a)(2), and one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Presently before the Court is Defendant's Motion to Suppress Physical Evidence and Statements and Request for a Franks Hearing. The Court conducted an evidentiary hearing and heard oral argument on the motion on December 3, 2012. For the reasons set forth below, the Court denies the motion.

II.BACKGROUND

Epps's home -- 2131 Sears Street, Philadelphia, Pennsylvania -- was searched pursuant to a warrant on May 5, 2011. Various forms of child pornography were found there. The warrant was accompanied by an affidavit sworn by Immigration and Customs Enforcement Special Agent Daniel Roman and was issued on May 3, 2011 by Magistrate Judge Linda Caracappa. (Mot. Ex. A.)

The warrant was based on information provided to Agent Roman through the following route: Certain websites and internet service providers discovered uploads of child pornography through their services. (See Mot. Ex. C; Tr. at 17-18.) They notified the Cyber Tipline of the National Center for Missing and Exploited Children ("the Center"). (Mot. Ex. C; Tr. at 16-17.) The Center received 20 reports concerning a total of 234 uploads. (Mot. Ex. C.) The Center then reported this information to the Pennsylvania Internet Crimes Against Children Task Force (the "Task Force"). (Mot. Ex. B at 2, 8; Tr. at 16-17.) The Task Force conducted an investigation based on the Cyber Tipline reports. (Mot. Ex. B; Tr. at 19-20.) A summary of their investigation and the reports themselves were passed on to Agent Roman. (Mot. Ex. B; Tr. at 19; 26-27.)

A. Dates of Uploads and Reports

Between May 4, 2009 and May 12, 2010, the Task Force received information from the Center that someone had been uploading child pornography: approximately 24 to 12 months before the warrant was issued. (Mot. Ex. B at 2, 8.) However, the uploads themselves took place between February 19, 2009 and August 31, 2009: approximately 26 to 20 months before the warrant was issued. (Mot. Ex. C.)

The affidavit generally states the dates that the Task Force received information from the Center, but it does not include the dates of the actual uploads. (See Ex. A, Affidavit at 4-6.) Additionally, the affidavit uses the header, "Activity in 2010." (Id. at 5.) That part of the affidavit does not, in fact, refer to uploading activity. Rather, it refers to the dates that the Task Force received the reports from the Center. Finally, in paragraph four, the affidavit states that uploads occurred until May 12, 2010. (Id.at 1.) While this is the last date the Task Force received a report from the Center, no actual uploads occurred after August 31, 2009. (Mot. Ex. B at 8; Mot. Ex. C. at 2.)

When preparing the affidavit, Agent Roman relied primarily on the Task Force's summary of the Cyber Tipline Reports. (Tr. at 25-26.) Though he had the Cyber Tipline Reports themselves, he never looked at them. (Id. at 27-28.) The Task Force's summary generally refers to the date it received the Cyber Tipline Reports, not the date the actual uploading occurred. (Mot. Ex. B at 2, 8.) However, for one set of uploads, the summary also includes a list of the names of the files that were uploaded, accompanied by the file's upload date. (Id. at 5-6.) Agent Roman did not see these dates in the summary. (Tr. at 29.)

B. Epps's Change of Address

According to the affidavit, by tracing an IP address and through other forms of investigation, Agent Roman was able to link the uploads to Van Epps, who lived at 202 Marshall Avenue, Collingdale, Pennsylvania. (See Ex. A, Affidavit at 4-8.) Later, Epps posted on his Twitter account that he "got married." (Id. at 5.) After further investigation, Agent Roman learned that Epps moved to 2131 Sears Street, Philadelphia, Pennsylvania. (Id. at 7.) That address was searched pursuant to the warrant. At the time of the search there was no direct evidence that any uploads occurred at the Sears Street address.

C. Tendencies of Child Pornography Collectors and the Nature of Computer Files In the affidavit, Agent Roman stated that based on his knowledge, experience, and training, those who receive child pornography tend to keep their collections close by. (Id. at 8-9.) Such individuals, he explained, maintain their materials, "even if they move physical, geographic locations." (Id. at 9.)

Additionally, agent Roman stated in the affidavit that files or the remnants of files can be recovered years after they have been downloaded. (Id. at 11.) When a user "deletes" a file, that file typically is not actually removed from the computer. (Id.) Rather, it remains on the computer until it is overwritten. (Id.)

III.LEGAL STANDARD

Probable cause exists when, under the totality of the circumstances, "there is a fair probability that contraband or evidence of a crime will be found in a particular place." Illinois v. Gates, 462 U.S. 213, 238 (1983).

[P]robable cause can be, and often is, inferred by considering the type of crime, the nature of the items sought, the suspect's opportunity for concealment and normal inferences about where a criminal might hide the fruits of his crime. . . .

A court is entitled to draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense.

United States v. Hodge, 246 F.3d 301, 305-06 (3d Cir. 2001) (internal citations and quotations omitted).

A district court exercises only a deferential review of the initial probable cause determination made by the magistrate judge. Gates, 462 U.S. at 236; Hodge, 246 F.3d at 305. "[T]he duty of a reviewing court is simply to ensure that the magistrate had a 'substantial basis for . . . conclud[ing]' that probable cause existed." Gates, 462 U.S. at 238-39 (citation omitted); see also Hodge, 246 F.3d at 305. "In making this determination, the Court confines itself to the facts that were before the magistrate judge, i.e., the ...


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