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United States v. Blake

United States District Court, S.D. West Virginia, Beckley Division

July 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
GORDON BLAKE, Defendant.

          MEMORANDUM OPINION AND ORDER

          IRENE C. BERGEN UNITED STATES DISTRICT JUDGE

         The Court has reviewed the Defendant's Motion to Suppress Evidence (Document 23), the Memorandum in Support of Defendant's Motion to Suppress Evidence (Document 24), the Response of the United States to Defendant's Motion to Suppress (Document 41), and the Defendant's Reply to the United States' Response to Defendant's Motion to Suppress Evidence (Document 44).

         The Court has also reviewed the Defendant's Motion in Limine to Request the Government to Specifically Identify Which Alleged Depictions of Child Pornography Will Be Introduced at Trial (Document 26), the Response of the United States to Defendant's Motion in Limine to Request the Government to Specifically Identify Which Alleged Depictions of Child Pornography Will Be Introduced at Trial (Document 40), the Defendant's Motion in Limine to Limit the Number of Files Containing Child Pornography Which Are Shown to the Jury at Trial (Document 27), and the Response of the United States to Defendant's Motion in Limine to Limit the Number of Files Containing Child Pornography Which Are Shown to the Jury at Trial (Document 39).

         In addition, the Court has reviewed the Defendant's Motion in Limine to Exclude Other Bad Acts Evidence at Trial (Document 25), the Response of the United States to Defendant's Motion in Limine to Exclude Other Bad Acts Evidence at Trial (Document 42), the Notice of the United States to Introduce Evidence Pursuant to Rule 414 of the Federal Rules of Evidence (Document 31), the Defendant's Response to Notice of the United States to Introduce Evidence Pursuant to Rule 414 of the Federal Rules of Evidence (Document 32), and the Response of the United States to Defendant's [Response] to Notice of the United States to Introduce Evidence Pursuant to Rule 414 of the Federal Rules of Evidence (Document 43).

         A. Motion to Suppress

         The Defendant moves to suppress the evidence collected during a search of his residence on July 21, 2018, as well as statements made by the Defendant on that date. The facts surrounding the search are uncontested, and the Court finds that a hearing would not assist in evaluating the motion.

         On July 21, 2018, the Defendant's son called the police after discovering images that he believed to be child pornography on a computer he was repairing for the Defendant. Trooper C.L. Mollohan responded. The Defendant's son showed him the images. Trooper Mollohan called for another state trooper to secure the evidence and remain at the home while he prepared an application for a search warrant. The warrant application contained the following factual allegations:

On Saturday, July 21, 2018 at approximately 1405 hours, the affiant received a complaint through his office regarding the discovery of Child Pornography on a hard drive located at XXX Shelia Street, Beckley, 25801 which resides within the boundaries of Raleigh County.
Your affiant arrived at the aforementioned location and spoke to…the son of Gordon Blake (The Accused). [He] stated that his father had asked him to attempt to repair a hard drive, and upon opening files on said hard drive [he] observed what he believed to be Child Pornography. The affiant asked [the son of the Defendant] to show him what he believed to be Child Pornography to which [he] complied. The affiant then observed what was in fact Child Pornography on the hard drive of the accused. The affiant asked the accused if he knew the reason for the affiant being at his residence to which the accused responded he knew why the affiant thought he was there. The affiant then asked the accused to elaborate to which he stated the affiant believed the material on the hard drive to be Child Pornography. The accused then stated that the girls on the hard drive were all models and were not Child Pornography.

(Document 23-1). In addition, Trooper Mollohan described his experience, including experience investigating computer crimes and crimes against children. He also cited W.Va. Code § 61-8C-3, including the language describing the prohibited content as “material visually portraying a minor engaged in any sexually explicit conduct.” (Id.)

         Raleigh County Magistrate Richard Jones approved issuance of the warrant, and Trooper Mollohan returned to the residence and executed the search. Officers seized three personal computers, seven hard drives, and fifty CD-ROMs. Trooper Mollohan took a recorded, mirandized statement from the Defendant, in which the Defendant denied awareness of illegal content. He admitted that some content on the CD-ROMs might include children, but nothing illicit or illegal. Officers obtained a second search warrant to conduct a forensic examination of the seized equipment and found a large number of images of alleged child pornography.

         The Defendant argues that the search warrant is invalid under United States v. Doyle, wherein the Fourth Circuit found a search warrant for child pornography invalid. 650 F.3d 460. There, officers sought a warrant to search for child pornography based on a report that three children had told a relative the defendant sexually abused them. One of the children told the relative that the defendant showed the child pictures of nude children. The warrant application failed to specify when the asserted child pornography was present. The Fourth Circuit found that “evidence of child molestation alone does not support probable cause to search for child pornography.” Id. at 472. Furthermore, “[t]he mere presence of nudity in a photograph, even child nudity, does not constitute child pornography as that term is defined by Virginia law.” Id. at 473. Because there was insufficient information to support probable cause that the photos constituted child pornography, and because there was no indication as to when the pictures were possessed, the court found the warrant invalid and found the officer's reliance on it to be unreasonable.

         The facts in this case are quite different from those in Doyle. A member of the public called in a tip about child pornography. The same day, an officer viewed the images and characterized them as child pornography. The officer noted his experience in computer crimes and crimes against children and referenced the statutory language applicable to child pornography offenses in West Virginia, including the requirement that the content include sexually explicit conduct. An experienced law enforcement officer's assessment that the images meet the legal definition of child pornography after personally viewing the images is likely sufficient to support probable cause in this Circuit.

         Even if a description or sample of the images is found to be necessary to permit an independent assessment by the reviewing magistrate, the absence of clear precedent in the Fourth Circuit on that point permits application of the good-faith exception. In United States v. Leon, the Supreme Court held that “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion. 468 U.S. 897, 922 (1984). However, “the officer's reliance on the magistrate's probable-cause determination and on the technical sufficiency of the warrant he issues ...


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