Federal District Court Opinions
U.S. v. HANSEL, (N.D.Iowa 10-20-2006) UNITED STATES OF
AMERICA, Plaintiff, v. TODD HANSEL, Defendant. No.
06-CR-102-LRR. United States District Court, N.D. Iowa,
Cedar Rapids Division. October 20, 2006
ORDER
LINDA READE, District Judge
The matter before the court is Defendant Todd Hansel’s
Motion to Suppress and Request for Hearing (“Motion”)
(docket no. 20). Page 2
I. PROCEDURAL BACKGROUND
On September 8, 2006, the grand jury returned a two-count
Superseding Indictment against Defendant.[fn1] Count 1
charges that, in or about June 2006, Defendant knowingly
transported and shipped and attempted to transport and ship,
in interstate and foreign commerce, visual depictions of
minors engaged in sexually explicit conduct, in violation
of 18 U.S.C. § 2252A(a)(1) and (b)(1). Count 2
charges that, in or about June 2006, Defendant knowingly
possessed and attempted to possess images of minors engaged
in sexually explicit conduct, said visual depictions having
been produced using materials that had been shipped and
transported in interstate and foreign commerce, namely, a
Western Digital computer hard drive, which was manufactured
outside the state of Iowa, in violation of 18 U.S.C.
§ 2252A(a)(5)(B) and (b)(2).
On September 5, 2006, Defendant filed the instant Motion
requesting that the court suppress items seized during
searches of Defendant’s residence. Defendant alleges that
the searches were based upon defective search warrants. On
September 12, 2006, the government filed a Resistance to
Defendant’s Motion.
On September 19, 2006, the court held a hearing (“Hearing”)
on Defendant’s Motion. Defendant was personally present
and represented by Attorney John Lane. Assistant United
States Attorney Ian Thornhill represented the government.
Following the Hearing, the court requested the parties to
submit further briefing. On September 25, 2006, Defendant
filed a Supplemental Memorandum of Authorities
(“Supplemental Memorandum”) (docket no. 42). On the same
date, the government filed a Supplemental Page 3
Memorandum in Support of Government’s Resistance to
Defendant’s Motion to Suppress (“Supplemental Resistance”)
(docket no. 43).
II. ANALYSIS
A. Findings of Facts
In about June of 2006, Investigator Charity Hansel from the
Sex Crimes Unit of the Cedar Rapids Police Department
(“CRPD”) was contacted by a mother from Illinois. The
mother told Investigator Hansel that her daughters, two
minor girls, had informed her that they had been sexually
abused by Defendant during the summer of 2005. On June 6,
2006, Investigator Hansel interviewed the girls and their
brother at the Child Protection Center at St. Luke’s
Hospital (“CPC”) in Cedar Rapids. The girls explained to
Investigator Hansel that, when they visited their father in
Cedar Rapids, he would often leave them at Defendant’s
house and in Defendant’s care.[fn2] The girls said that
Defendant would frequently have them sit on his lap and, on
one occasion, he licked the tongue of the older girl.
The older girl said that Defendant would require her to
sleep with him in his bed and would close the master
bedroom door while they were sleeping. Defendant told her
to sleep only in a top and underwear so that she did not
get hot. Defendant would sleep very close to the older
girl, sometimes even sharing her pillow. The older girl
explained that, on several occasions, while in Defendant’s
bed, Defendant would touch her genital and pubic areas by
rubbing his hand on the outside of her underwear. On at
least one occasion, Defendant put his hand inside the older
girl’s underwear and rubbed her buttocks. He also talked to
her about sex and showed her a pink dildo. Page 4
The younger girl told Investigator Hansel that, once, while
she was asleep on the floor in Defendant’s house, she awoke
to find Defendant’s hand touching her buttocks on the
outside of the back of her pants.
Both girls reported that Defendant purchased swimsuits for
them at Wal-Mart. Defendant would force them to change into
their swimsuits in front of him, which meant that they
would be nude in front of him. The older girl stated that
Defendant took photographs of both of them in their
swimsuits.
Based on what she learned from the interviews,
Investigator Hansel filled out a search warrant application
seeking to search Defendant’s residence at 1013 Third
Street Southwest, Cedar Rapids, Iowa, for items that would
corroborate the girls’ statements. In her June 20, 2006
affidavit submitted in support of her application for a
state search warrant (“First Affidavit”), Investigator
Hansel described her interview of the girls at the CPC. She
reported the following: (1) that Defendant took the girls
to Wal-Mart and bought them bikini swimsuits and bicycles;
(2) that Defendant showed them a plastic replica of a man’s
penis after watching a Britney Spears movie with them; and
(3) that Defendant walked around the girls wearing only
white briefs. Investigator Hansel also stated that the
girls’ parents described Defendant’s home, described its
location and identified Defendant by photograph.
The June 20, 2006 search warrant (“First Warrant”) issued
by a state magistrate authorized the officers to search
Defendant’s residence for the following items:
Wal-Mart sales receipt for children’s swimwear, clothing
consisting of a child’s two-piece swimsuit in pink and
another in blue with white flowers and a man’s white
briefs, a Britney Spears movie, sexual devices to include
but not limited to a plastic replica of a man’s penis, and
children’s bicycles. Page 5
On June 21, 2006, Investigator Hansel, along with two
uniformed officers and two of her partners from the CRPD
Sex Crimes Unit (collectively “officers”), one of whom was
Investigator Corey Peiffer, executed the First Warrant.
When Investigator Hansel arrived at Defendant’s residence,
the two uniformed officers had already stopped Defendant
outside of his residence. Investigator Hansel provided
Defendant with a copy of the First Warrant and went inside
his residence. Defendant immediately informed Investigator
Hansel that the swimsuits listed in the First Warrant were
located in the master bedroom in a small dresser.
Based on this information, Investigator Hansel began the
search of Defendant’s residence in that bedroom.
Investigator Hansel searched the small dresser.
Investigator Peiffer searched the headboard of Defendant’s
waterbed because that is where the girls stated the pink
dildo was located. After the officers had located each item
that was named in the First Warrant except the Wal-Mart
sales receipt and the white briefs, Investigator Peiffer
began to search the closet in the master bedroom for the
remaining items. While looking in the closet, Investigator
Peiffer found eight computer-produced 8?—10 photographs of
nude females. Investigator Hansel testified at the Hearing
that, based on her experience and training, she believed
the females depicted in the eight 8?—10 photographs were
prepubescent. Printed at the bottom of each photograph were
the Internet addresses “www.little-virgins.com” and
“http://www.little-virgins.com/nudist/12.jpg” and the date
“9/21/99.” During her testimony at the Hearing,
Investigator Hansel described the eight 8?—10 photographs as
“child erotica.”
Investigator Hansel also discovered a computer located in
the dining room of Defendant’s residence. There was a
webcam next to the computer. There was a chair located
against the wall of the opposite side of the room. The
webcam appeared to be aimed so that it could record images
of the mid-section or genitals of a person sitting in Page
6 the chair. The chair was lined with towels. Officers
found a nearly empty bottle of baby oil and towels next to
the computer. A second computer was found in another part
of Defendant’s residence, but it did not appear to be
“hooked up.”
On the same date, June 21, 2006, and based on the girls’
statements and the items found during the execution of the
First Warrant, Investigator Hansel applied for a second
state search warrant (“Second Warrant”). In the June 21,
2006 affidavit attached to the Second Warrant application
(“Second Affidavit”), Investigator Hansel referred to the
First Affidavit and stated that, pursuant to the First
Warrant, officers had found “eight 8?—10 printed pictures of
unknown prepubescent white females without any clothing
on.” Investigator Hansel also advised that the officers had
discovered two computers — one of which was “hooked
up to a printer.” The affidavit noted that the officers
found a 35mm camera, a videocamera, many photographs of the
girls in swimwear and several unmarked video tapes.
Investigator Hansel also stated that, “in [her] experience,
the printed pictures indicate[d] receipt of child
pornography by means of a computer. [And, b]ecause of the
camera equipment, there [was] also a likelihood child
pornography may have been produced.” On June 21, 2006, the
state magistrate signed the Second Warrant and authorized
CRPD officers to search Defendant’s residence and seize the
following:
Any and all electronic devices, which are capable of
analyzing, sorting, creating, displaying, converting, or
transmitting electronic or magnetic impulses or data,
including but not limited to: digital camera[s],
computer[s], laptop computer[s], central processing units,
external drives or storage media, terminals or video
display units, together with peripheral equipment such as
keyboards, modem[s], acoustic couplers, automatic dialers,
electronic tone generating devices, printing devices,
internal storage including hard drives, computer software
programs, together with instruction manuals and
associated documentation; the Photograph designs floppy
Page 7 disk[s] and CD disks for storage of electronic
media, any notes, papers, or documentation in
handwritting [sic], typed, photocopied, or printed form,
or stored on computer printouts, magnetic tape[s],
cassettes, disks, diskettes, photo-optical devices, or any
other medium. Any photographs and videotapes. Any
controlled substance as defined in Chapter 124 of the Iowa
Code, including but not limited to suspicious pills.
That same day, officers searched Defendant’s residence a
second time. Pursuant to the Second Warrant, Investigator
Hansel seized thirty-three “disks in reel,” twenty-two
CD’s, two “Quik cams,” one “ARTEC” scanner, one Polaroid
digital camera with memory card and case, five pornographic
magazines, one “printout of nude people,” one photograph
album, two computer towers, several floppy disks, two
handwritten receipts, four computer CD’s and two “papers.”
After seizing the items pursuant to the Second Warrant,
Investigator Hansel applied for a third state warrant
(“Third Warrant”) on June 21, 2006. In the June 21, 2006
affidavit attached to the Third Warrant application (“Third
Affidavit”), Investigator Hansel stated that, during the
execution of the Second Warrant, officers found two
homemade computer towers, two cameras and a videocamera
along with several other items. In the Third Affidavit,
Investigator Hansel explained that “[t]he items removed
from the residence possibly contain[ed] evidence relevant
to the sexual abuse investigation which [was] currently
being conducted by the [CRPD].” On June 21, 2006, the state
magistrate signed the Third Warrant and authorized the
search of the following:
Computer hardware, software data, including, but not
limited to central processing units (CPUs), hard discs,
hard disc drives, floppy disc drives, tape drives, CD-ROM
drives, display screens, keyboards, printers, modems,
scanning devices, video cameras/camcorders/VCRs, and other
image Page 8 capturing/reproducing devices, magnetic
tapes, cassette tapes, compact discs, thumb drives,
removable USB storage devices, personal digital assistants
(PDA[s]), electronic organizers, and floppy discs found
together or separately from one another. Any and all
documentation and records, whether on paper or stored on
computer media (including information stored within a
computer), disclosing, describing, referring, reflecting,
or adverting to contemplated, present or previous
agreements, arrangements, inquiries, or discussions by
[Defendant] with any individuals. Such information to be
seized includes personal communications between
individuals or entities who are not subject[s] on the
warrant, specifically including electronic communications
residing on optical or magnetic media (email).
Upon executing all of the state search warrants,
Investigator Hansel contacted the United States Attorney’s
Office concerning Defendant. On July 3, 2006, Investigator
Hansel applied for a federal search warrant (“Federal
Warrant”), seeking to seize and search
documents, books, ledgers, records, files, computer
software, including but not limited to, disks, magnetic
tapes, programs, and computer printouts, and any and all
correspondence in the name of [Defendant], and any aliases
and/or email names he is using . . . in violation of
Title 18, United States Code, Sections 2251, 2252, or
2252A.
“Attachment B” to Investigator Hansel’s affidavit in support
of the Federal Warrant application (“Federal Affidavit”)
itemized the items to be seized and searched. In her
Federal Affidavit, Investigator Hansel provided a sequence
of events surrounding the applications for and executions
of the three state search warrants. She explained that the
investigation of Defendant was initiated by the accusations
of sexual abuse by the girls. Investigator Hansel listed
the items found pursuant to the First Warrant, including
the eight Page 9 8?—10 photographs, but noted that none of
the eight 8?—10 photographs depicted the lascivious
exhibition of the females’ genital or pubic regions.
Investigator Hansel stated that, although a computer
examiner with the CRPD had begun an examination of
Defendant’s computer equipment, she did not rely on any
information from that examination in her Federal Affidavit
or application. On July 3, 2006, Chief Magistrate Judge John
A. Jarvey signed the Federal Warrant.
B. Legal Analysis
1. First Warrant
Defendant alleges that officers exceeded the scope of the
First Warrant by seizing the eight 8?—10 photographs which
were not specifically listed for seizure in the warrant.
Defendant further argues that these eight 8?—10 photographs
were not in plain view.
The First Warrant authorized the CRPD officers to search
Defendant’s residence for the following items:
Wal-Mart sales receipt for children’s swimwear, clothing
consisting of a child’s two-piece swimsuit in pink and
another in blue with white flowers and a man’s white
briefs, a Britney Spears movie, sexual devices to include
but not limited to a plastic replica of a man’s penis, and
children’s bicycles.
(Government Exhibit 10). A warrant to search a residence
generally extends to every part of the residence in which
the items sought may be found. United States v. Ross, 456
U.S. 798, 820-21 (1982); see also United States v. Hughes,
940 F.2d 1125, 1127 (8th Cir. 1991) (“A lawful search
extends to all areas and containers in which the object of
the search may be found.”)
Before beginning the search of Defendant’s residence,
Investigator Hansel provided Defendant with a copy of the
First Warrant. Defendant told Investigator Hansel that the
swimsuits listed in the First Warrant were located in his
master bedroom. Investigator Page 10 Hansel and
Investigator Peiffer entered Defendant’s master bedroom in
search of the items. Investigator Hansel began to search
the dresser, which Defendant said contained the swimsuits.
All but two of the items listed in the First Warrant were
found fairly quickly. While searching for the two remaining
items, the white briefs and the Wal-Mart sales receipt,
Investigator Peiffer opened the door to the closet located
in the master bedroom and looked inside the closet.
Investigator Peiffer found the eight 8?—10 photographs in
the closet and brought them to the attention of
Investigator Hansel. Investigator Hansel testified at the
Hearing that, based on her training and experience, she
believed the females depicted in the eight 8?—10 photographs
were prepubescent.
Although the eight 8?—10 photographs were not itemized in
the First Warrant as items to be seized, they were properly
seized pursuant to the plain view doctrine.
[The plain view] doctrine allows a police officer to
seize evidence without a warrant when (1) “the officer did
not violate the Fourth Amendment in arriving at the place
from which the evidence could be plainly viewed,” (2) the
object’s incriminating character is immediately apparent,
and (3) the officer has “a lawful right of access to the
object itself.” Horton v. California, 496 U.S. 128[, 137]
(1990); see also United States v. Wayne, 903 F.2d 1188,
1195-96 (8th Cir. 1990) (pre-Horton case). The discovery
of evidence in plain view need not be inadvertent. Horton,
496 U.S. at 137 (eliminating inadvertence requirement of
plurality in Coolidge v. New Hampshire, 403 U.S. 443
(1971)).
Hughes, 940 F.2d at 1126-27; see also Horton, 496 U.S. at
136 (holding that an officer, who is properly in the place
where an item can be seen, may seize the item if its
incriminating nature is readily apparent and that officer
has the right to access the item). Page 11
a. Officers were lawfully in Defendant’s master bedroom
closet
The First Warrant gave the officers the authority to
search Defendant’s entire residence for several items.
Investigator Peiffer had the authority to be in Defendant’s
master bedroom and the authority to search his closet.
Defendant immediately told the officers that at least one
of the items they were searching for was located in the
master bedroom. Additionally, the older girl told
Investigator Hansel that the pink dildo (described in the
First Warrant as “a plastic replica of a man’s penis”) was
in Defendant’s master bedroom. The officers had the
authority to search each place where the items listed in
the First Warrant might be found. See Ross, 456 U.S. at
820-21; see also United States v. Evans, 966 F.2d 398, 400
(8th Cir. 1992) (holding that officers were permitted to
seize photographs depicting the defendant’s marijuana
growing operation when a search warrant authorized the
officers to search for and seize, among other things, drugs
and drug paraphernalia which could have been inside the box
containing the photographs). The Wal-Mart sales receipt was
a small piece of paper, and the officers could look into
any space within the residence that could contain the
receipt. Accordingly, Investigator Peiffer had the
authority to search Defendant’s master bedroom and the
closet in that master bedroom.
b. Incriminating nature of the evidence
The requirement that the incriminating nature of the
evidence must be immediately apparent “is satisfied if
there is `probable cause to associate the property [seized]
with criminal activity.'” United States v. Newton, 788 F.2d
1392, 1395 (8th Cir. 1986) (citing Texas v. Brown, 460 U.S.
730, 741-42 (1983)). In making this determination, the
“collective knowledge of the officers executing the search”
should be taken into consideration. Id. (citing United
States v. Wright, 641 F.2d 602, 606 (8th Cir. 1981)).
The probable cause standard was carefully explained by
the Page 12 Supreme Court in Texas v. Brown, 460 U.S.
730 (1983): [P]robable cause is a flexible, common-sense
standard. It merely requires that the facts available to
the officer would “warrant a man of reasonable caution in
the belief,” that certain items may be contraband or
stolen property or useful as evidence of a crime; it does
not demand any showing that such a belief be correct or
more likely true than false. Id. at 742 (plurality
opinion) (citation omitted) (quoting Carroll v. United
States, 267 U.S. 132, 162 (1925)). Moreover, “the evidence
thus collected must be seen and weighed not in terms of
library analysis by scholars, but as understood by those
versed in the field of law enforcement.” Id. (quoting
United States v. Cortez, 449 U.S. 411, 418 (1981)).
United States v. Wayne, 903 F.2d 1188, 1196 (8th Cir.
1990); see also Evans, 966 F.2d at 400 (holding that the
incriminating nature of photographs depicting the defendant
with large quantities of marijuana was immediately apparent
to the officer who was searching defendant’s residence for
drugs and drug paraphernalia).
The incriminating nature of the eight 8?—10 photographs in
Defendant’s master bedroom closet was immediately apparent.
The officers were searching Defendant’s residence in
response to allegations of sexual abuse by the girls. The
First Affidavit provided that Defendant abused the girls in
his residence. At the Hearing, Investigator Hansel
testified that, based on her training and experience,[fn3]
the eight 8?—10 photographs with “www.little-virgins.com”
and “http://www.little-virgins.com/nudist/12.jpg” printed
on the bottom of each photograph were child erotica and
introduced the possibility that Defendant had received
child pornography using the computer found in his dining
room. She explained that people who possess or deal with
child pornography frequently possess Page 13 child
erotica, as well. Accordingly, the “incriminating
character” of the eight 8?—10 photographs was readily
apparent to the officers.
c. Lawful right of access to evidence
The officers had the lawful right to access the closet in
Defendant’s master bedroom and seize the eight 8?—10
photographs. The First Warrant gave the officers the
authority to search Defendant’s entire residence, including
accessing any place or container where the items listed in
the warrant might be found. See United States v. Murphy, 69
F.3d 237, 242 (8th Cir. 1995) (holding that the warrant to
search the defendant’s “residence for illegal firearms
provided the officers a lawful right of access to the place
where the drug evidence was found”). Accordingly, the
seizure of the eight 8?—10 photographs found in Defendant’s
master bedroom closet was permissible.
2. Second Warrant
Defendant asserts that the Second Warrant was defective.
Specifically, Defendant argues that Investigator Hansel
made false statements in her Second Affidavit. Defendant
argues that the state magistrate relied on the false
information in the Second Affidavit when he issued the
Second Warrant. In the Second Affidavit, Investigator
Hansel stated that, in her “experience, the printed
pictures [found during the execution of the First Warrant]
indicate receipt of child pornography by means of a
computer.” (Government Exhibit 10). During the Hearing,
however, Investigator Hansel testified that the eight 8?—10
photographs were child erotica and not child pornography.
Defendant alleges that, because the Second Warrant was
based on this misleading information, it was invalid and,
therefore, the equipment seized pursuant to the Second
Warrant must be suppressed.
To succeed in a challenge to a search warrant based on the
argument that the warrant was based on false information in
an affidavit, “a defendant must establish by a
preponderance of the evidence that the affiant, either
knowingly and intentionally, or with Page 14 reckless
disregard for the truth, included a false statement within
the warrant affidavit.” United States v. Clapp, 46 F.3d
795, 799 (8th Cir. 1995) (citing Franks v. Delaware, 438
U.S. 154, 155-56 (1978)). Once Defendant has met his burden
of proof, the court must determine whether, without the
false contents of the Second Affidavit, there was
sufficient information to establish probable cause. Id.
During the Hearing, Investigator Hansel testified that she
never believed the eight 8?—10 photographs were child
pornography.[fn4] Investigator Hansel explained that, based
on the circumstances and her training and experience, she
believed that Defendant had received other photographs that
meet the definition of child pornography. Investigator
Hansel stated that the eight 8?—10 photographs were child
erotica and not child pornography. She was unable, however,
to define the term “child erotica,” except to state that
the eight 8?—10 photographs of nude females fit the
definition, based on her training and experience.
Regardless of whether Investigator Hansel’s
mischaracterization of the eight 8?—10 photographs in the
Second Affidavit as child pornography was intentional or
reckless, the statement did not accurately portray the
facts. Based upon the statement in the Second Affidavit,
the state magistrate may have believed that the officers
found child pornography at Defendant’s residence.
Therefore, the court finds that there was misleading
statement in the Second Affidavit. See Clapp, 46 F.3d at
799.
Assuming, without deciding, that Investigator Hansel’s
micharacterization was intentional or reckless, the court
finds there was sufficient information in the Second
Affidavit to establish probable cause. The Second Affidavit
referred to the First Warrnt and explained to the state
magistrate that (1) the warrant application was based upon
a report of sexual abuse of the girls at Defendant’s
residence; (2) during the execution of the Page 15 First
Warrant, officers found several photographs of the girls in
swimsuits; (3) officers found the eight 8?—10 photographs
apparently generated from an Internet website; and (4)
officers saw two computers, a 35mm camera and a webcam,
indicating a likelihood that child pornography was being
produced.
Alternatively, even if the court were to find the Second
Warrant lacked probable cause, the seized evidence would be
admissible pursuant to the independent source doctrine. The
independent source doctrine allows “the introduction of
evidence discovered initially during an unlawful search if
the evidence is discovered later through a source that is
untainted by the initial illegality.” United States v. May,
214 F.3d 900, 906 (7th Cir. 2000) (citing Murray v. United
States, 487 U.S. 533, 537 (1987)).
To establish that the independent source doctrine applies
to evidence seized pursuant to a warrant obtained after an
unlawful entry to a home, the government must show both
(1) that the decision to seek the warrant was independent
of the unlawful entry — i.e., that police would
have sought the warrant even if the initial entry had not
occurred — and (2) that the information obtained
through the unlawful entry did not affect the
magistrate’s decision to issue the warrant. Murray, 487
U.S. at 542; United States v. Leveringston, 397 F.3d 1112,
1115 (8th Cir. 2005).
United States v. Khabeer, 410 F.3d 477, 483 (8th Cir.
2005). The government has an “onerous burden of convincing
[the] court that no information gained from the illegal
entry affected either the law enforcement officers’
decision to seek a warrant or the magistrate’s decision to
grant it.” Murray, 487 U.S. at 540. The court must
explicitly find that the government has established both
prongs of the test. See Khabeer, 410 F.3d at 483-84
(remanding the case to the district court for that court to
make “an explicit finding” of whether the information
obtained pursuant to an unlawful search affected the
officers’ Page 16 decision to seek a subsequent warrant).
The independent source doctrine applies to evidence that
was initially seized pursuant to a warrant which is
determined to be invalid and then later seized pursuant to
a valid warrant. See May, 214 F.3d at 906-07 (holding that
physical evidence improperly seized during the execution of
a state search warrant was properly admitted under the
independent source doctrine when federal officers
subsequently sought a federal warrant, based upon
sufficient independent information).
In United States v. Grosenheider, 200 F.3d 321 (5th Cir.
2000), the Fifth Circuit Court of Appeals addressed the
admissibility of evidence found on the defendant’s computer
in light of the independent source doctrine. Id. at 324.
In Grosenheider, a computer repairman contacted the police
department about child pornography that he discovered on
the defendant’s computer. Id. The police officer conducted
an illegal search of the computer and contacted a Special
Agent with the United States Customs Service. Id. The
Special Agent obtained a federal warrant to search the
defendant’s computer. Id. at 325. The Special Agent’s
affidavit in support of the warrant application contained
the information provided to the police officer by the
computer repairman but did not contain any information
discovered by the police officer during the illegal search
of the computer. Id. Upon obtaining the warrant, the
Special Agent secured the defendant’s computer from the
police officer, delivered the computer with warrant to the
computer repairman, returned to his office with the
computer and then searched the computer. Id. The Fifth
Circuit Court of Appeals held that both prongs of the
independent source doctrine had been met. Id. at 328.
Namely, the government showed that (1) the Special Agent
would have sought the search warrant even if the illegal
search of the computer by the police office had not taken
place and (2) the state magistrate’s decision to issue the
warrant was not tainted by any information gleaned from the
illegal search of the computer. Id. Accordingly, the Fifth
Circuit Court of Appeals held that “[u]nder the Page 17
independent source doctrine, . . . any illegality that may
have been part of [the police officer]’s seizure did not
affect the propriety of [the Special Agent]’s actions in
any way, and the evidence was therefore admissible.” Id. at
330.
In its Resistance, the government alleges that the federal
government would have sought a warrant to seize and search
Defendant’s computer equipment even if the CRPD officers had
not seized the equipment pursuant to the Second Warrant.
During the Hearing, the government argued that, had the
officers left the computers at Defendant’s residence, the
Federal Warrant would have sought to seize them from
Defendant’s residence instead of from the CRPD. As
explained in Section II(B)(4) herein, there was sufficient
evidence provided in the Federal Affidavit to support the
existence of probable cause. Based on the information
provided by Investigator Hansel, which she gathered during
her interview of the girls and her search of Defendant’s
residence pursuant to the First Warrant, the United States
Attorney, who is charged with prosecuting violations of 18
U.S.C. § 2252A, would have sought to obtain the
Federal Warrant.
Furthermore, when issuing the Federal Warrant, Chief
Magistrate Judge Jarvey did not rely on the information
found on the computers when determining whether there was
sufficient evidence that probable cause existed. The
Federal Affidavit explicitly states that Investigator
Hansel was not relying on and did not want Chief Magistrate
Judge Jarvey to rely on any information obtained during the
search of Defendant’s computer. Investigator Hansel noted:
[a] computer forensic examiner with the [CRPD] . . .
began an examination of the computer equipment seized from
[Defendant]’s residence at 1013 3rd Street, SW, Cedar
Rapids, Iowa. Your affiant has not included any of the
information from this examination in this affidavit and
does not rely on that examination for purposes of this
application. Page 18 (Government Exhibit 10). Accordingly,
there is no indication that Chief Magistrate Judge Jarvey
was aware of or relied on any information found on
Defendant’s computer when he reviewed the Federal Affidavit
and issued the Federal Warrant. The government has met its
burden to show that the decision to seek the Federal
Warrant was not tainted by the evidence seized pursuant to
the Second Warrant and Chief Magistrate Judge Jarvey’s
issuance of the Federal Warrant was not based on any
information obtained pursuant to the seizure of Defendant’s
equipment by the CRPD officers. Accordingly, Defendant’s
request that the court suppress the evidence seized
pursuant to the Second Warrant is denied.
3. Third Warrant
Defendant contends that the Third Warrant sought to examine
the computers and related hardware that were improperly
seized pursuant to the Second Warrant. Defendant argues
that, because the computers were improperly seized, they
could not be searched by the CRPD officers.
As noted in Section II(B)(2) herein, the computer equipment
was properly seized pursuant to the Second Warrant. The
state magistrate properly issued the Third Warrant to
search the equipment in the CRPD officers’ possession. “The
Fourth Amendment provides that no search warrants shall
issue without probable cause `supported by Oath or
affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.'” United
States v. Lloyd, 396 F.3d 948, 952 (8th Cir. 2005) (citing
U.S. Const. amend. IV). A warrant must provide officers
with sufficient detail to identify the property that may be
seized. Id.
The Third Warrant detailed the following computer equipment
to be searched:
1) Two homemade computer towers bearing no serial
numbers. Page 19
2) Poloriod [sic] digital camera with memory card bearing
serial number 90305972.
3) Pentax camera with film bearing serial number 4154566.
4) Panasonic videocamera with tape bearing serial number
I5WA10565.
(Government Exhibit 10). Additionally, the Third Warrant
noted that the items the CRPD officers were to seize
included
any and all documentation and records, whether on paper
or stored on computer media (including information stored
within a computer), disclosing, describing, referring,
reflecting, or adverting to contemplated, present or
previous agreements, arrangements, inquiries, or
discussion by [Defendant] with any individuals. Such
information to be seized includes personal communications
between individuals or entities who are not subject[s] on
the warrant, specifically including electronic
communication residing on optical or magnetic media
(email).
Accordingly, the search of that equipment by the CRPD
officers pursuant to the Third Warrant was proper.
Investigator Hansel noted in her Federal Affidavit that she
did not rely on the information obtained pursuant to the
execution of the Third Warrant when she requested the
Federal Warrant. Additionally, none of the information
gathered pursuant to the Third Warrant was provided to
Chief Magistrate Judge Jarvey in the application for the
Federal Warrant. Accordingly, even if the Third Warrant was
defective, it would not taint the search of the computer
equipment pursuant to the Federal Warrant. Page 20
4. Federal Warrant
Defendant asserts that there was no probable cause to issue
the Federal Warrant to seize and search his computer and
related items. Defendant argues that the Federal Warrant
was issued in violation of his Fourth Amendment rights.
Specifically, Defendant alleges that, because the eight
8?—10 photographs were not child pornography, there was no
probable cause to believe that Defendant’s computer,
computer disks, compact disks or video tapes contained
images of child pornography.
“Probable cause exists if[,] under the totality of the
circumstances, `there is a fair probability that contraband
or evidence of a crime will be found’ in the place
searched.” United States v. Bach, 400 F.3d 622, 627 (8th
Cir. 2005) (citing Illinois v. Gates, 462 U.S. 213, 238
(1983)). “Probable cause supporting the search warrant
existed if the affidavit set forth facts sufficient to
create a fair probability that evidence of criminal
activity would be found on the premises.” United States v.
Gamboa, 439 F.3d 796, 805 (8th Cir. 2006) (citing United
States v. Gumm, 229 F.3d 698, 699 (8th Cir. 2000)). Based
on the totality of the circumstances as provided in the
Federal Affidavit, there was probable cause to believe that
Defendant’s computer and computer equipment contained
evidence of child pornography.
Possession of child erotica, such as the eight 8?—10
photographs found in Defendant’s master bedroom, is not
itself illegal and might not alone be sufficient to provide
probable cause to believe that Defendant possessed child
pornography. See Jacobson v. United States, 503 U.S. 540,
551 (1992) (noting that “[e]vidence of predisposition to do
what once was lawful is not, by itself, sufficient to show
predisposition to do what is now illegal”); United States
v. LaChapelle, 969 F.2d 632, 638 (8th Cir. 1992) (noting
that, in light of the defendant’s entrapment defense,
evidence of the defendant’s possession of child pornography
when such possession was legal was not admissible as
evidence of the Page 21 defendant’s predisposition to
possess illegal child pornography). However, the possession
of the eight 8?—10 photographs must be combined with the
other circumstances detailed by Investigator Hansel in her
Federal Affidavit.
In her Federal Affidavit, Investigator Hansel provided a
detailed account of her investigation of Defendant. The
investigation began with accusations of improper sexual
contact with the girls. The Federal Affidavit detailed the
girls’ accusations of sexual abuse. Investigator Hansel
explained that the older girl stated that Defendant made
her sleep in his bed and frequently slept so close to her
that they shared a pillow. Defendant would fondle her pubic
region by “rubbing his hand on the outside of her underwear
and on at least one occasion put his hand inside the back
of her underwear and rubbed her buttocks.” (Government
Exhibit 10). Investigator Hansel noted that the younger
girl stated that she awoke to find Defendant’s hand on her
buttocks on top of her clothes. Investigator Hansel stated
that both girls reported that Defendant “would force them
to change into their swimsuits in front of him . . . and
would be completely naked in front of [Defendant] in doing
this.” Defendant would then take photographs of the girls
in their swimsuits. Investigator Hansel found several
photographs of minor females in swimsuits, some of which
were photographs of the girls who were sexually abused.
While executing the First Warrant, Investigator Hansel
observed a computer in Defendant’s dining room. The
computer was connected to both a printer and a webcam. The
webcam was aimed at the seat of a chair on the other side
of the dining room, “apparently capturing the mid-section
of whomever would be seated there.” (Government Exhibit
10). There were towels and an almost-empty bottle of baby
oil next to the computer. Investigator Hansel stated in the
Federal Affidavit that, based on her experience, training
and conversations with other law enforcement officers, she
is aware that persons who possess child erotica also
frequently possess child pornography. She explained that
Page 22
[i]n addition to child pornography, [child pornographers]
frequently collect and possess “child erotica” material
such as: erotic drawings of children, photographs of
children clipped from catalogs, and advertisements such as
clothing ads, and personal “souvenirs” relating to
children with whom they have had contact, including such
items as clothing and pubic hair clippings.
Id. Investigator Hansel noted that child pornographers use
computers to produce, distribute and store child pornography
and “that depictions of pornography can be hidden within
computer systems or computer images.” Id.
The Federal Affidavit presented to Chief Magistrate Judge
Jarvey detailed the accusations of sexual abuse of the
girls; described the computer equipment, webcam, chair,
baby oil and towels observed during the execution of the
First Warrant; described the eight 8?—10 photographs found
in Defendant’s closet; and referenced the three state
search warrants. Therefore, the court finds the Federal
Affidavit was sufficient to establish probable cause to
believe that a search of Defendant’s computers would
uncover evidence of the production or possession of child
pornography. Accordingly, Defendant’s Motion with regard to
the Federal Warrant is denied.
III. CONCLUSION
IT IS ORDERED:
(1) The court DENIES Defendant Todd Hansel’s Motion to
Suppress (docket no. 20); and
(2) The period between the filing of Defendant’s Motion
and this Order is excluded from calculation under the
Speedy Trial Act. 18 U.S.C. § 3161(h)(1)(F)
(excluding delay resulting from the filing of any
pretrial Page 23 motion through the conclusion of the
hearing thereon); 18 U.S.C. § 3161(h)(1)(J)
(excluding “delay reasonably attributable to any period,
not to exceed thirty days, during which any proceeding
concerning the defendant is actually under advisement by
the court”).
[fn1] Defendant was previously charged in a one-count
Indictment alleging possession of child pornography, in
violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2).
[fn2] It is unclear why the father left the girls with
Defendant.
[fn3] Investigator Hansel has been an officer at the CRPD
for fourteen-and-a-half years and has been in the CRPD Sex
Crimes Unit for three-and-a-half years.
[fn4] “Child pornography” is a term of art, which is defined
in 18 U.S.C § 2256(8). Page 1