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United States v. Totoro

United States District Court, E.D. Pennsylvania

January 10, 2017

UNITED STATES OF AMERICA,
v.
JOSEPH P. TOTORO, II, Defendant.

          MEMORANDUM

          GERALD J. PAPPERT, J.

         On April 7, 2015 the United States of America filed a criminal complaint against Joseph Totoro, II stemming from an alleged relationship he maintained with a minor in which the two used their cellular phones to exchange, among other things, inappropriate images of themselves. (ECF No. 1.) The Government charged Totoro with: (1) transfer of obscene materials in violation of 18 U.S.C. § 1470; (2) receipt of child pornography in violation of 18 U.S.C. § 2252(a); (3) possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B); and (4) use of an interstate commerce facility to entice a minor to engage in sexual conduct in violation of 18 U.S.C. § 2422(b). (Id.) On June 25, 2015 a grand jury indicted Totoro on these counts in addition to charges of production of child pornography in violation of 18 U.S.C. §§ 2251(a) and 2251(e) and blackmail in violation of 18 U.S.C. § 873. (ECF No. 15.)

         Totoro moves to suppress all evidence gathered from his cell phone pursuant to two separate search warrants issued by United States Magistrate Judges Marilyn Heffley and Carol Sandra Moore Wells. Totoro also consented to the search of his phone. Totoro contends that neither warrant was supported by probable cause and now claims that his consent was invalid.

         The Court held an evidentiary hearing and oral argument on Totoro's motion on January 5, 2017. For the reasons set forth below, the motion is denied.

         I.

         The search warrants, their attached affidavits of probable cause and Totoro's signed consent form comprise the only exhibits admitted into evidence at the hearing. (Tr. of Hr'g, at 50:15.) According to both affidavits, on January 11, 2015 the father (“P-1”) and mother (“P-2”) of a minor (“P-3”) met with the FBI to provide details of an alleged extortion plot by Totoro of which they were the puported victims. (Gov's Ex. 1, hereafter “Affidavit 1, ” at 3.) P-1 and P-2 had employed Totoro as P-3's private tennis coach since April 2012. (Id.) At various points over time, disagreements arose between P-1 and P-2 and Totoro over his compensation. (Id. at 3-4.) P-1 and P-2 ultimately fired Totoro in the fall of 2014. (Gov.'s Ex. 3, hereafter “Affidavit 2” ¶ 35.)

         In December 2014, after a payment of severance and continued communication between the parties, Totoro demanded that P-1 pay him an additional $60, 000. (Affidavit 1, at 5.) Totoro, who possessed sensitive documents related to P-1's job with a multinational corporation, emailed P-1 on December 30. (Id. at 3.) In the email, Totoro threatened to release the sensitive documents, notify the Internal Revenue Service about tax crimes allegedly committed by P-1 and also notify the Department of Homeland Security of suspected money laundering and immigration violations committed by P-1. (Id. at 5.) Totoro made similar threats in a text message sent from his cell phone to P-2. (Id.)

         Totoro continued to threaten P-1 and P-2 through text messages and a series of emails. (Id. at 6.) On January 13, 2015, working with the FBI, P-2 participated in a consensual, recorded telephone call with Totoro, during which Totoro repeated his threats and agreed to meet P-2 at the King of Prussia Mall the following day. (Id.) Totoro explained that P-1's sensitive documents were on his cell phone and he promised to delete them in P-2's presence in exchange for the $60, 000.

         On January 14, 2015 members of the FBI's Delaware Valley Violent Crime Task Force, including Officer Timothy Garron of the City of Chester Police Department, arrested Totoro pursuant to a warrant after he arrived for the scheduled meeting with P-2. Task force members saw Totoro sitting in his car using his cell phone. (Tr. of Hr'g, at 13:22-23; 14:9-13.) Officer Garron pulled Totoro from the car and placed him on his stomach. (Id. at 14:15-15:7.) While he was being arrested, Totoro threw his cell phone under his car.[1] (Id. at 15:5-7.) The task force members turned the phone over to the FBI; they did not examine it. (Id. at 16:11-13.)

         After his arrest, Totoro told investigators that P-1's sensitive documents were contained within his email on the phone. (Affidavit 1, at 7; Tr. of Hr'g, at 44:17-23.) On January 16, 2015 FBI Special Agent James Fitzgerald[2] applied for a search warrant of Totoro's cell phone. Agent Fitzgerald attached a detailed affidavit to the application justifying probable cause to search the phone. See (Affidavit 1). Magistrate Judge Heffley approved the search warrant application on the same day for the purpose of seizing evidence in violation of 18 U.S.C. § 875(d) (prohibiting communication of threats in interstate commerce).

         On January 21, 2015, while in custody, Totoro and his attorney Catherine Henry, Esquire of the Federal Community Defender Office met with investigators for a proffer session.[3](Affidavit 2 ¶ 22.) At this session, Totoro and his lawyer each gave their written consent for investigators to search his cell phone. See (Gov. Ex. 2, hereafter “Consent Form”). The consent to search was unlimited-the signed consent form permits a “complete search” of Totoro's cell phone. (Id.) Additionally, by signing the form, Totoro agreed to allow the FBI to delete all files related to P-1, P-2 and P-3.[4] (Id.)

         During the course of their search of Totoro's phone, FBI investigators discovered a large number of images of P-3 indicative of child pornography. (Affidavit 2 ¶ 23.) Upon discovering these images, the FBI stopped their search and promptly sought a new search warrant which would appropriately expand the scope of the original warrant. (Id.) Agent Fitzgerald attached a detailed, thirty-page affidavit to his search warrant application in which he explained the facts of the investigation that supported a finding of probable cause. See (Affidavit 2). On February 13, 2016 Magistrate Judge Wells approved the search warrant for the purpose of seizing evidence in violation of various child pornography statues including 18 U.S.C. §§ 2251, 2252, 2252(A), 2242 and 2243.

         II.

         The Fourth Amendment to the United States Constitution prohibits “unreasonable searches and seizures.” U.S. Const. amend. IV. A search pursuant to a warrant must be supported by probable cause. See United States v. Burton, 288 F.3d 91, 102 (3d Cir. 2002) (citing Payton v. New York, 445 U.S. 573, 586 (1980)). An issuing judge may find probable cause when “viewing the totality of the circumstances, ‘there 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) (citing Illinois v. Gates, 462 U.S. 213, 238 (1983)). The judge “is to make a practical, commonsense decision, ” United States v. Whitner, 219 F.3d 289, 296 (3d Cir. 2000) (quotation omitted), and “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.” Hodge, 246 F.3d at 305-06 (3d ...


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