United States District Court, D. Colorado
LEWIS T. BABCOCK, District Judge.
This matter is before me on motion filed by Defendant Gregory Lynn Hopson, entitled "Motion to Clarify The Court's May 29, 2014 Ruling" [Doc #96], in which he seeks an extension of my prior ruling denying his Motion to Suppress [Doc #78, dated 5/29/14] - related to a search warrant executed on a residence located at 9115 Lander Street, Westminster, CO - to two other searches conducted by the Government in this case. After consideration of the applicable legal authority and the parties' briefs, I GRANT the motion as follows.
On October 24, 2012, the Grand Jury indicted Mr. Hopson on: (1) eight counts of Production of Child Pornography in violation of 18 U.S.C. §§ 2251(a), (e) & 3559(e); (2) two counts of Transportation of Child Pornography in violation of 18 U.S.C. § 2252A(a)(1), (b)(1); (3) four counts of Receipt of Child Pornography in violation of 18 U.S.C. § 2252A(a)(2), (b)(1); and (4) two counts of Possession of Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2). A Superseding Indictment was subsequently filed on September 25, 2013, in which the Grand Jury charged Mr. Hopson with an additional count of Possession of Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), (b)(2).
On March 18, 2014, Mr. Hopson filed a pretrial Motion to Suppress Unlawful Search and Seizure, in which he argued that the search warrant executed at a residence at 9115 Lander Street was not supported by probable cause in that the supporting affidavit included intentional or reckless false statements and material omissions, and that the issuing Magistrate Judge improperly considered his past criminal history. As a result, he asked that I rule that the evidence seized as a result of the unlawful search of 9115 Lander Street be suppressed. [Doc #58]
After considering the parties' briefs and oral arguments made by counsel in open court on April 29, 2014, I concluded that Mr. Hopson's prior criminal history was properly considered and the misstatements and the omitted information in the affidavit were not material to the probable cause determination. Because the Magistrate Judge had a substantial basis for determining that probable cause existed in support of the search warrant, based on the affidavit with the misstatements excluded and the omitted information included and under the totality of the circumstances, I denied Mr. Hopson's motion to suppress. [Doc #78]
In this motion, Mr. Hopson now requests that I clarify that the order denying his motion to suppress related to the search warrant executed on March 5, 2011 at 9115 Lander Street also applies to a search warrant executed on the same day at 1000 West 1st Avenue, Broomfield, CO, and to a search warrant subsequently executed on a briefcase on May 20, 2013. Mr. Hopson asserts that these other two search warrants were issued based on a supporting affidavit that contained substantially the same information as the affidavit used for the 9115 Lander Street warrant. As such, he seeks "clarification" that my denial of his motion to suppress related to the search at 9115 Lander Street, also applies to the search warrants executed at 1000 West 1st Avenue and on the briefcase. Or, in the alternative, Mr. Hopson asks that I reconsider and grant his motion to suppress the evidence obtained as a result of all three searches (at 9115 Lander Street, 1000 West 1st Avenue, and of the briefcase).
Probable cause exists when the supporting affidavit sets forth facts that would lead a prudent person to believe there is a fair probability that particular evidence of a crime or contraband will be found in a particular place. United States v. Basham, 268 F.3d 1199, 1203 (10th Cir. 2001); United States v. Rowland, 145 F.3d 1194, 1203 (10th Cir. 1998)(noting that probable cause requires a nexus between the contraband to be seized or suspected criminal activity and the place to be searched). I review whether, under the totality of the circumstances presented in the affidavit, the magistrate judge had a substantial basis for determining that probable cause existed. United States v. Artez, 389 F.3d 1106, 1111 (10th Cir. 2004)( citing Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 76 L.Ed. 527 (1983)).
If a defendant can prove, by a preponderance of the evidence, that the warrant affidavit contains a statement that was intentionally false/made with reckless disregard for the truth and that statement is material to the finding of probable cause, and/or that the investigating officer knowingly or recklessly omitted information which, if included, would have vitiated probable cause, the search warrant must be voided and the fruits of the search excluded. See Franks v. Delaware, 438 U.S. 154, 155-6, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978); United States v. Tisdale, 248 F.3d 964, 973 (10th Cir. 2001); Stewart v. Donges, 915 F.2d 572, 582-83 (10th Cir. 1990).
"The defendant bears the burden to demonstrate the affidavit's falsity or reckless disregard for the truth by a preponderance of the evidence." U.S. v. Tisdale, supra, 248 F.3d at 973. It is likewise the defendant's burden to show that the erroneous statements included and the information excluded from the affidavit were material to the magistrate's finding of probable cause. Franks v. Delaware, supra, 438 U.S. at 155; U.S. v. Tisdale, supra, 248 F.3d at 973. In order to assess materiality, the court examines the affidavit as if the lies are stricken and omitted information had been included to determine whether the affidavit would still establish probable cause. United States v. Avery, 295 F.3d 1158, 1166-67 (10th Cir. 2002)(if the court concludes that the omitted information would not have altered the issuing magistrate's decision to authorize the search, the fruits of the challenged search need not be suppressed).
III. 1000 W. 1st AVENUE SEARCH
Following an investigation, Special Agent Melissa Coffey applied for search warrants for residences located at 9115 Lander Street and at 1000 West 1st Avenue, seeking evidence and/or contraband related to possession and transportation of child pornography. The applications for the warrants were both supported by an identical affidavit signed by Agent Coffey. After finding probable cause, the United States Magistrate Judge issued the warrants and they were executed on March 5, 2011. The evidence seized from both warrants resulted in a Grand Jury Indictment against Mr. Hopson on October 24, 2012, for production, transportation, receipt and possession of child pornography.
The affidavit indicated that two separate investigations revealed that the user of the email address "email@example.com" sent and/or received images of minors engaging in sexually explicit conduct. A subpoena was issued for the firstname.lastname@example.org account, and Yahoo responded, with information "reflecting that two IP addresses were used for two different emails: IP address 220.127.116.11 for the email on March 11, 2010 at 04:41:08 GMT and IP address 18.104.22.168 for the email on March 2, 2010 at 20:53:33 GMT." A publically ...