Posts Tagged ‘Probable Cause’

Arrest was supported by probable cause, therefore irrelevant for Fourth Amendment purposes.

Monday, July 27th, 2009

U.S. v. Goings, 2009 WL 1927455 (11th Cir. July 7, 2009)

The defendant pleaded guilty to possession with intent to distribute crack cocaine. He then appealed, challenging denial of his motion to suppress and argued that the District Court erred by denying his suppression motion only on the ground that the arrest leading to the discovery of the evidence violated Florida law. However, the Court of Appeals ruled that the district court correctly found that, under the Supreme Court’s Moore decision, it was irrelevant for purposes of the Fourth Amendment whether a defendant’s arrest violated state law, so long as it was supported by probable cause.

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Posted in Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search and Seizure | No Comments »

Extraterritorial application of 18 USC Section 2251 warranted as part of a comprehensive scheme to eradicate sexual exploitation of children.

Wednesday, June 10th, 2009

United States v. Kapordelis, No. 07-14499 (11th Cir 2009)

Defendant was convicted for producing, receiving, and possessing child pornography in violation of 18 U.S.C. §2251(a), 2252A(2)(A), and 2252A(a)(5)(B). Defendant appealed his 420 month sentence and argued that the district court erred by: (1) denying his motion to dismiss Counts 1 and 3 of the Fourth Superseding Indictment; (2) denying his request for a Franks hearing and his motion to suppress evidence obtained under certain search warrants; (3) admitting testimony concerning his solicitation of sex from boys, under the age of eighteen, while in the Czech Republic under Federal Rule of Evidence 404(b); (4) applying the 2003 US Sentencing Guidelines instead of the 2002 Guidelines in imposing a sentence; (5) finding that one of his victims was vulnerable, pursuant to U.S.S.G. Section 3A1.1; (6) double counting the number of images of child pornography and imposing a 2-level enhancement pursuant to U.S.S.G. Section 2G2.4(b)(2), and a 5-level enhancement under Section 2G2.4(b)(5)(D); (7) accepting a written victim impact statement during sentencing; and (8) imposing an unreasonable sentence.

Defendant was initially indicted on two counts of engaging in sex tourism. Then additional evidence was gathered and several superseding indictments were issued. The Fourth Superseding Indictment charged him with producing child pornography photographs and video on four separate occasions in violation of 18 U.S.C. Section 2251(a), receiving child pornography on a desktop computer and then a laptop computer, Section 2252A(2)(A), and possessing child pornography, Section 2252A(a)(5)(B). The PSR assigned an offense level of 41 and recommended a Guidlelines range of 324-405 months.

The court found that the extraterritorial application of 18 USC Section 2251 was warranted as the statute is a part of a comprehensive statutory scheme to eradicate sexual exploitation of children, and that “punishing the creation of child pornography outside the United States that is actually, is intended to be, or may reasonably expected to be transported in interstate or foreign commerce is an important enforcement tool.” (referencing United States v. Thomas, 893 F.2d 1066, 1069 (9th Cir. 1990). The court then considered the violation of Section 2251(a) alleged in Counts 1 and 3 to be a continuing offense, affirming the district court.

As to the Franks hearing, the court found that the magistrate judge undertook the evaluation prescribed by Franks and considered the affidavit in support of the search warrant with the omissions and additions proposed by Defendant and therefore did not err in declining to hold a hearing. Regarding the probable cause issue of the search warrant, the court found that the necessary nexus existed between the facts surrounding Defendant’s overseas travels and the facts that suggested he met and engaged in sexual activity with young boys, thus establishing the likelihood that evidence would be found in his home.

As to Defendant’s argument that evidence of trysts with young boys was precluded under FRE 404(b), the court ruled that “whether unlawful in the jurisdiction where they take place or not,” evidence “is admissible under Rule 404(b) if there is sufficient proof to support a jury’s finding that the defendant committed the similar act and the other act is probative of a material issue other that the defendant’s character.” The probative value of this evidence was found to outweigh its prejudicial nature.

The district court varied upward to the statutory maximum, giving the Defendant the longest sentence possible, based on his long history of abuse, parity, and the need for incapacitation. The Eleventh Circuit ruled that while the use of the 2002 Guidelines would have resulted in fewer enhancements, the overall record indicates that the district court would have imposed the same 420 month sentence had it applied the 2002 Guidelines.

Next, the court found the application of the vulnerable victim enhancement under U.S.S.G. Section 3A1.1 was not error as the boys qualified as “vulnerable victims” because they were asleep or otherwise nonresponsive and thus unable to object or respond in any way when Defendant took pornographic pictures of them.

Defendant’s arguments regarding double counting and the victim impact statement were rejected and the court then addressed the upward variance and reasonableness of the sentence by showing that the district court did not abuse its discretion and did take into consideration the Section 3553(a) factors, finding that “the 420 month sentence (1) promoted respect for the law, (2) illustrated the seriousness of the offense, and (3) will serve as a deterrent. Based on the totality of the circumstances, including the Defendant’s history of abuse, number of images in his possession, and the need to protect society, the Eleventh Circuit court found compelling justification to support the upward variance and reasonableness of the Defendant’s sentence.

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Posted in Computer Sex Crimes, Fourth Amendment, Internet Crime, Motion to Suppress Evidence, Pre-Sentence Investigation Report, Probable Cause, Procedure, Search Warrant, Search and Seizure, Sentencing Guidelines, kiddie porn, sentence enhancement, upward variance | No Comments »

Reasonable suspicion and not probable cause enough for warrantless search of probationer’s home.

Tuesday, May 5th, 2009

U.S. v. Carter, (case no. 08-00031) (N.D. Fla. April 27, 2009)

The defendant was on probation for felony battery and possession of cocaine when his probation officer suspected he was again involved in criminal conduct. The probation officer planned a warrantless search of the defendant’s townhome during which evidence of crack cocaine and a firearm were discovered, leading to his prosecution. The defendant moved to suppress the evidence, arguing that the search was not supported by probable cause. The district court denied the motion; and the defendant pled guilty to the two charges but reserved his right to appeal the denial of his motion to suppress.

The defendant argued that his fourth amendment right was violated because the search was not predicated on probable cause. Specifically, he argued that being a probationer does not subject him to searches based on reasonable suspicion alone. Rather, there must be some condition of probation that reduces a probationer’s expectation of privacy in the object of the search.

The Eleventh Circuit applied a balancing test set forth in United States v. Knights, 534 U.S. 112, 122 S. Ct. 587 (2001) which determines the reasonableness of a search “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 199 S. Ct. 1297, 1300 (1999)). The court balanced the defendant’s privacy interest against the government’s interest and held that the defendant’s privacy interest was reduced by the condition of his probation which required him to submit to home visits by a probation officer. The court stated that, on the other hand, the government has a high interest in preventing drug and violence-related crimes-especially since this defendant has a history of drug and violence-related felonies. Therefore, the court concluded that search of the defendant’s home was permissible.

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Posted in Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search Warrant, Search and Seizure | No Comments »

Speedy trial delay warranted a dismissal without prejudice and not with prejudice.

Friday, April 24th, 2009

U.S. v. KNIGHT, 562 F.3d 1314 (11th Cir. March 31, 2009)

After the car Mr. Knight was riding in as a passenger was pulled over, a police officer saw him place a gun on the floor boards. He was arrested on state charges. While still state custody he was indicted by a federal grand jury on September 29, 2005, for possession of the firearm by a convicted felon. A federal detainer was lodged against him to hold him in the event he made bond. He was visited by ATF officers in the county jail who advised him of the pending investigation. Knight made some incriminating statements and did not ask for an attorney. He was transferred to federal custody where he pled not guilty. The district court granted a speedy trial claim but dismissed without prejudice. As to the appeal from the district court’s order dismissing “without prejudice” the Court applied the factors and found the district court did not abuse its discretions.

The seizure of evidence was found reasonable based on initial stop of the driver which led to the resulting seizure from the defendant.

The Court upheld the denial of the motion to suppress evidence seized in the stop. It found the initial stop of the car was valid because the driver was seen without a seat belt on. The officer had probable cause to stop the car, and the officer was entitled to ask the driver to step out the car. He had reasonable suspicion to pat down the driver and the officer smelled marijuana and alcohol.

The denial of the motion to suppress statements.

The Court found that the prior invocation of rights in the state case did not apply to the federal case. Statements made to the ATF were admissible.
The district court committed clear error for failing to reduce Knight’s sentence for time spent in state custody for obstruction of justice.

Where a defendant has a prior offense that is relevant to the instant offense and resulted in an increase in the offense level of the instant offense, the sentencing guidelines provide that the sentence include a credit for a period served in state custody for the obstruction case. The government conceded the error because the conduct that was used to enhance his federal sentence was related to the state conviction and the BOP would not give credit for that time.

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Posted in Fourth Amendment, Motion to Suppress Evidence, Probable Cause, Search Warrant, Search and Seizure, Search incident to arrest, Sentencing Guidelines, Uncategorized, sentence enhancement | No Comments »

Detention of computer hard drive for twenty-one days before warrant sought constituted significant interference with defendant’s possessory interest.

Friday, April 24th, 2009

U.S. v. Peter J. Mitchell, (SDGA April 22, 2009) 

This case involves an appeal from a judgment entered after a guilty plea convicting Peter Mitchell of one count of receipt of electronic images of child pornography, in violation of 18 U.S.C. §2252A(a)(2)(2006). The guilty plea preserved Mitchell’s right to appeal from the denial of his motion to suppress the evidence obtained from the hard drive of his computer after it was seized from his home. The principle issue raised on appeal turns on the reasonableness of a delay of twenty-one days in obtaining a search warrant after the seizure of the hard drive.

On February 22, 2007, ICE Special Agent Thomas West and FBI Special Agent Josh Hayes entered Peter Mitchell’s residence with permission to speak with him about an ongoing investigation involving child pornography. In response to the agent’s questioning, Mitchell told the agents that there were two personal computers in his residence-a laptop upstairs and a desktop downstairs-and that “yes probably” the computers contained “illegal contraband” and child pornography. Mitchell then consented to the search of both computers, identifying the desktop computer as the one containing child pornography. ICE Special Agent West promptly retrieved the computer’s hard drive and both agents left Mitchell’s residence with only the desktop hard drive at approximately 12:00 pm that same day.

However, no search warrant was obtained until almost three weeks later. On Sunday, February 25, 2007, ICE Special Agent West traveled to Virginia for a two-week training course and did not make application for a search warrant for the hard drive until March 15, 2007, three days after his return, and twenty-one days after the initial seizure. Only then did West access Mitchell’s hard drive and discover images of child pornography.

Mitchell, consenting probable cause, argues that even if the seizure was proper, the twenty-one-day delay in obtaining a search warrant was unreasonable. The Eleventh Circuit examined the twenty-one-day delay by relying upon cases from the Second and Seventh Circuits which state that, “even a seizure based on probable cause is unconstitutional if the police act with unreasonable delay in securing a warrant,” and that “[T] he reasonableness of the delay is determined ‘in light of all the facts and circumstances,’ and ‘on a case-by-case basis.” See United States v. Martin, 157 F.3d 46, 54 (2d Cir. 1998) and Mayomi v. United States,873 F.2d 1049,1054 n.6(7th Cir. 1989). Finding that the detention of the hard drive for over three weeks before a warrant was sought constituted a significant interference with Mitchell’s possessory interest (since computers are relied upon heavily for personal and business use) the Eleventh Circuit determined that other personnell or other methods could have been employed to secure the search warrant in a timely manner since the case involved the seizure of only one hard drive. Therefore, the delay was deemed unjustifiable and unreasonable when balanced against Mitchell’s possessory rights. Concluding that the motion to suppress should have been granted, the Court reversed the judgment of conviction and remanded the case back to the District Court.

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Posted in Computer Sex Crimes, Internet Crime, Probable Cause, Search Warrant, Search and Seizure, Staleness, kiddie porn | No Comments »