United States District Court, W.D. Pennsylvania
DAVID STEWART CERCONE, District Judge.
On September 13, 2011, a grand jury returned a three count indictment charging Larry Edwards Hawkins ("defendant") at Count One with receipt of material depicting the sexual exploitation of a minor, from in and around August 2010 to in and around January 2011, in violation of Tile 18, United States Code, Sections 2252(a)(2) and 2252(b)(1), at Count Two with distribution of material depicting the sexual exploitation of a minor, from in and around August 2010 to in and around January 2011, in violation of Tile 18, United States Code, Sections 2252(a)(2) and 2252(b)(1), and at Count Three with possession of material depicting the sexual exploitation of a minor, from in and around August 2010 to in and around January 2011, in violation of Tile 18, United States Code, Sections 2252(a)(4)(B) and 2252(b)(2). Presently before the court is defendant's motion to suppress evidence and statements. For the reasons set forth below, the motion will be denied.
On August 16, 2010, Investigator Jason Howell of the Ohio Internet Crimes Against Children Task Force was investigating on-line activity in an effort uncover individuals possessing and distributing child pornography. Investigator Howell was focusing on individuals who were using the Gnutella peer-to-peer computer network. Use of the Gnutella Network permitted Investigator Howell to check files being shared on the network for their secure hash algorithm, which is a mathematical algorithm that in effect provides a "fingerprint" for digital files. Investigator Howell was utilizing the Federal Information Processing and Digital Signature Algorithm, which produces a "SHA1" value that is unique to each file.
At approximately 10:14 a.m. Investigator Howell identified a computer with an IP address of 18.104.22.168 that was sharing 2 files on the Gnutella Network. He initiated a request to browse the shared files folder being made available and upon response was permitted to obtain a list of at least 1571 shared files. He then captured their names, types, sizes and SHA1 values. At least 6 of these files had SHA1 values of files that were known or suspected to be pictures or video containing child pornography. At approximately 10:32 a.m. Investigator Howell downloaded 13 of these files and captured their names and SHA1 values. He also was able to take screen shots to verify the files were being downloaded from the above-referenced IP address.
On August 23, 2010, at 6:13 p.m. Investigator Howell directed a second browse request to the same IP address and was permitted to connect directly to that host computer. This time the operator was making available at least 1572 files for sharing. Investigator Howell captured the names, types, sizes and SHA1 values of these files. At least 8 had SHA1 values of files that were known or suspected to be pictures or video containing child pornography. He downloaded 3 of the files, capturing their names and SHA1 values. He took screen shots during the download to verify that the files came from the same IP address.
Investigator Howell previewed the 16 files before they were downloaded. Based on his training for and experience in investigating crimes against children Investigator Howell determined that some of these files were child pornography in contravention of Ohio, Pennsylvania and federal law.
On August 27, 2010, a grand jury subpoena was served on Time Warner Cable seeking subscriber information for the IP address. On September 23, 2010, Time Warner identified defendant as the subscriber of the account and indicated the account had been active since March 13, 2008.
On January 18, 2011, Pennsylvania State Police Trooper Dana Stewart presented an application for a search warrant to Pennsylvania Magisterial District Judge Paul Manzi. Trooper Stewart incorporated the above information into an affidavit along with additional information pertaining to common characteristics and behaviors of individuals who collect child pornography. These characteristics were based on Trooper Stewart's knowledge, experience and training in child exploitation and child pornography. They included: collectors may receive sexual gratification, stimulation and satisfaction from contact with children and/or from fantasies about the same generated from viewing various forms of child pornography; this pornography is collected in multiple and different media forms, such as photographs, magazines, motion pictures, videotapes, books, and slides; hard copies of the pornography often are stored at secured locations, such as a collector's home or private office; collectors typically retain their collection for many years; and collectors prefer to avoid being without their collection for any prolonged period of time.
Based on the above, Trooper Stewart's affidavit submitted to the magisterial judge asserted there was probable cause to believe the user of a computer located at defendant's address was a collector of child pornography. It further asserted that based on the common tendencies of collectors, namely that they tend to maintain their collections at secure locations for long periods of time, and that the user had made numerous files available on the peer-to-peer network, there was probable cause to believe that evidence of the offenses of distributing, receiving and possessing child pornography would be found at defendant's address. The affidavit included additional legal support for the propositions that collectors of child pornography keep their collection for long periods of time and even when certain computer files have been deleted they can nevertheless be recovered through forensic examination, thus minimizing the impact of the passage of 5 months between Investigator Howell's discoveries and the application for the warrant.
Magisterial Judge Manzi issued the search warrant on January 18, 2011. It authorized the seizure of: all computer hardware, including all equipment used to process and store digital data and related communication devices such as modems, cables, connections, and recording equipment; and any device used to restrict access to the same. It also authorized the seizure of: any software contained within the hardware; all computer documentation that accompanied the purchase of the above and may have been used to configure the computer system(s) discovered and seized; passwords and data security devices; and documents of any nature that may relate to passwords, accomplices or co-conspirators as well as ownership of the residence and the individuals living there.
Trooper Stewart and three other state police officers executed the warrant that same day. They arrived at defendant's residence. Trooper Stewart and Corporeal Pearson were in plain clothes but had their service pistols in concealed holsters. The other two officers were in uniform with standard service firearms on their waists. Every officer wore a raid vest.
No one was at defendant's home, which was located in a condominium complex. Trooper Stewart telephoned defendant at work, informed him that they were at his home with a warrant and asked in a calm voice with normal tone if defendant would come to the residence and let them in. Defendant agreed to do so and arrived approximately 20 minutes later. Trooper Stewart did not discuss the nature of the warrant with defendant during their telephone conversation.
Defendant was patted down for weapons when he arrived. Defendant opened the door and permitted the officers to gain access. The officers cleared the home. Trooper Stewart gave the warrant to defendant and told him that he would answer any questions about the warrant once defendant had read it. Defendant sat down in the living room and began to read the warrant. Corporeal Pearson and the two troopers in uniform went about the home searching for items to be seized while Trooper Stewart and defendant remained on the main floor and generally in the living room area.
Trooper Stewart then explained to defendant that he was not under arrest and was free to leave. He advised that he would answer any questions defendant had about the warrant. He was the only officer interacting with defendant. Defendant did not express any lack of understanding or confusion about what was transpiring or being communicated. He did not appear to be under the influence of any drug or alcohol.
Trooper Stewart began to ask defendant general questions about his personal identification. These included his full name, age, date of birth, social security number, current address, height, weight, place of birth, hair color, eye color, marital status, employer and so forth. The conversation spanned about 30 to 35 minutes of the hour it took to execute the warrant. The conversation remained calm and cordial during the entire time. Defendant never expressed a desire to end the conversation, speak to a lawyer or leave the premises. Defendant was not restrained in any way.
The conversation between Trooper Stewart and defendant eventually included questions relating to the reason the police were executing the warrant. Just prior to the officers leaving, defendant admitted that he was a collector of adult pornography and he had amassed a large collection of it. He further advised that if there was any child pornography in his collection, it would be a small percentage of his overall collection and he asked Trooper Stewart to take that into consideration in deciding whether to file charges.
Defendant was presented with an inventory receipt when Corporeal Pearson and the uniformed offices were finished. Defendant signed it and received a copy of it. Defendant was not placed under arrest or restrained in any way. ...