ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE.
A grand jury indicted Defendant Patrick Stein with one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). This matter comes before the Court on Stein's Motion to Suppress Evidence and Request for Franks hearing (Doc. 30). For the following reasons, the Court grants Stein's request for a Franks hearing and—after reviewing and considering the parties' briefs, the relevant evidence, and the oral arguments made by counsel to the Court—denies Stein's Motion to Suppress.
The present charge against Patrick Stein for possession of child pornography arises from a Federal Bureau of Investigation ("FBI") probe into an unrelated criminal matter. In February 2016, a confidential informant alerted the FBI that a militia group called the Crusaders was discussing a violent attack against Muslims in southwestern Kansas. Based on this tip, the FBI launched what turned into a months-long investigation into three Crusaders members: Stein, Curtis Allen, and Gavin Wright. Over the next several months, with the informant's help, the FBI recorded Stein, Allen, and Wright making plans to detonate multiple bombs at an apartment complex largely occupied
The search warrant affidavit listed 16 paragraphs of materials to be searched and seized, including: an extensive list of tools and materials that could be used to manufacture improvised explosive devices ("IEDs"), and any documents, computers, cell phones, or electronic storage devices that could hold information related to the conspiracy.
To support a finding of probable cause, the search warrant affidavit outlined Stein's involvement in the bomb conspiracy, beginning in February 2016 and ending with Stein's arrest in October 2016. Over that time, Stein and his co-conspirators frequently used violent rhetoric against Somali-Muslims, referring to them as "cockroaches." In February 2016, Stein and the FBI's informant conducted surveillance of local Somalian refugees, and Stein made several comments about needing to "eliminate" them; the informant also reported that Stein stated that he was looking for explosives to "blow things up."
In June 2016, Stein called for a meeting with the Crusaders; there, he proposed carrying out an attack against local Muslims as retribution for the night club shooting in Orlando, Florida. Later that same month, Stein, Allen, and the FBI's informant were part of a group call
In July 2016, Stein, Allen, Wright, and the informant met in person at G & G Mobile Home Center ("G & G")—a business owned by Wright. During this meeting the group discussed a variety of potential places and people they could target; they also discussed different methods of attack. After this brainstorming session, they decided to pick a specific target and plan of action at their next meeting.
The group reconvened at G & G the following month. Stein and the others agreed to detonate four explosives at an apartment complex where a number of Somali-Muslims lived and where one of the apartments was used as a mosque. The plan was to fill four vehicles with explosives, park the vehicles at the four corners of the complex, and detonate the explosives remotely. Allen volunteered to make the explosives, indicating that he already possessed many of the raw materials needed. Stein was instructed to obtain a rock tumbler to assist in manufacturing the explosives. The affidavit also pointed out that Stein regularly took notes during these meetings and usually returned home with the notes afterwards.
During the investigation, the FBI informant introduced Stein to an FBI Undercover Covert Employee ("UCE") who was posing as a person who could supply the
During the search of Stein's home, the FBI seized a laptop computer and upon further inspection discovered that the computer contained child pornography. On October 19, 2016, a grand jury indicted all three men with conspiring to use a weapon of mass destruction in violation of 18 U.S.C. §§ 2, 2332a.
Before the trial in the first case, Stein filed a motion to suppress all evidence collected during the search of his home and vehicle, arguing the warrant was overbroad and lacked probable cause that evidence of the crime would be found in his home or vehicle. Stein also requested a Franks hearing to determine whether the search warrant affiant—Task Force Officer ("TFO") Chad Moore—omitted material facts that would taint the Magistrate Judge's determination that probable cause existed to search Stein's home.
The Court granted Stein's request and held a Franks hearing on March 19, 2018, where TFO Moore provided additional testimony. Stein's counsel elicited testimony from TFO Moore that the FBI possessed evidence indicating Stein did not own a computer. Stein attached four exhibits containing information that, he claims, vitiates probable cause to search Stein's residence for a computer. First, in April 2016, Stein instructed the FBI informant to avoid making plans on a computer because he did not want there to be a record. Second, in August 2016, Stein asked the informant if he knew anyone with a "decent laptop they [want to] get rid of ...?" When the informant replied that he did not, Stein responded: "You hear of anybody let me know." Third, three days later, Stein told the informant he had been "in desperate need [of a laptop] for some time ..." and that he does all his online activity on his phone because "it's all [he's] got." Fourth, on September 27, 2016, during a recorded conversation between the FBI informant and an unidentified person, the informant stated that Stein does everything on his phone and that Stein does not have internet or a computer. TFO Moore testified that the FBI never provided Stein with a computer.
Immediately following the March 19 Franks hearing, the Court orally denied Stein's motion to suppress. The case ultimately proceeded to trial, where a jury convicted Stein, Allen, and Wright on all counts.
On July 20, 2018, Stein filed the motion presently before the Court, requesting a
On September 11, 2018, the Court held a hearing on Stein's motion. Instead of asking for the Court to conduct a second Franks hearing to introduce new evidence, Stein requested the Court grant his motion for a Franks hearing and take judicial notice of the transcript and exhibits from the Franks hearing held on March 19, 2018, in his other criminal case. The Court agreed to follow that procedure. And the Court is now prepared to rule on Stein's motion to suppress.
Stein argues the affidavit supporting the warrant to search his home contained material omissions in violation of Franks v. Delaware.
The Court begins with Franks' second prong: materiality. Under this prong, the Court considers whether the affidavit unfairly took Stein's statements out of context, and if the Magistrate Judge would have made a different probable cause determination if more context had been given. The search warrant affidavit's alleged omissions fall into two categories. The first category relates to Stein's violent statements against Muslims. Stein argues that, by including his statements in isolation, the affidavit was designed to inflame the Magistrate Judge's passions against him. Had the affidavit provided more context, Stein claims it would have been clear to the Magistrate Judge that his violent rhetoric was not serious or that it was protected
The first omission Stein takes issue with is from a Zello conference call that included several participants. The affidavit included the following statement Stein made to a female participant: "Make sure if you start using your bow [and arrows] on them cockroaches, make sure you dip them in pig's blood before you shoot them." Stein admits this may be anti-Muslim rhetoric, but he claims that the statement is taken out of context to unfairly portray Stein as violent in nature. Specifically, Stein notes that the "affidavit fail[ed] to mention this statement was made during a conversation with a female participant who was discussing practicing with her bow and arrow due to the high price of ammunition" and that "[t]his snippet of conversation was taken from over an hour into a five-hour conference call."
The Court understands that Stein's statement—like so many statements people make—was made within the context of a longer conversation. Most of the quotes attributed to Stein were taken from much longer conversations, some of which were hours long. It would prove extraordinarily impractical and ill-advised for the search warrant to include the entirety of every relevant conversation. Undoubtedly, the search warrant affiant needed to exercise some discretion in deciding which excerpts and quotes to include. But after reviewing the longer transcript Stein attached as an exhibit, the Court fails to see how adding more context would influence how one views Stein's statement. Nor is it material that Stein made this comment an hour into a five-hour conversation.
Next, Stein points to another quote in the affidavit taken from an in-person meeting where he told a female participant:
Stein argues the affidavit wrongly omitted the female participant's response to his statement. She replied: "We gotta be realistic though because I can't get any [RPG's] and you can't either." Stein responded: "well, there are ways." The female participant answered by changing the subject. Stein argues that this shows the female participant did not take his comments seriously.
Adding more context to Stein's statement would not have altered the Magistrate Judge's probable cause determination. By his words, Stein demonstrated strong animus toward the group of people he was later suspected of targeting with violence. The female participant's response showed that she was doubtful Stein could acquire any RPGs to carry out an attack in the manner he described. But whether the female participant believed Stein had the ability to acquire RPGs is of minimal, if any, relevance. The search warrant affidavit did not authorize a search of Stein's home for RPGs. Stein's statement is relevant to his motive to commit a crime of violence against Somali-Muslims. Adding the female participant's response changes nothing in this regard.
Stein points to the phrase "it will be a bloodbath" as proof that the affiant intended to make Stein's statements "much more menacing and violent than they really are." Specifically, Stein notes that before he made this statement another participant of this call introduced the term "bloodbath." He further argues that his statement was part of a broader, protected political discussion on a possible coming civil war. This argument is not persuasive. Even though the term "bloodbath" did not originate with Stein, he clearly adopted the phrase and expressed an opinion about the role violence would play in achieving the group's objectives.
The Court holds that none of the omitted statements Stein has provided would negate probable cause that Stein was involved in a conspiracy to use a weapon of mass destruction. These omissions, therefore, do not form the basis of a Franks violation.
Stein asks the Court to consider four additional pieces of information showing he did not own or use a computer. First, Stein draws the Court's attention to an FBI document titled "Initiation of [Field Investigation] of Patrick Stein." This document states that "[Stein] did not want [the informant] to make any plans on a computer because he did not want there to be a record" and "[Stein] would keep any plans secure but would make sure people would still have access to the plans." Stein also highlights conversations between Stein and the informant. For example, in August 2016, Stein asked the informant if he knew anyone selling a laptop. Three days later, Stein told the informant he had been "in desperate need [of a laptop] for some time ..." and that he does all his online activity on his phone because "it's all [he's] got." Finally, about three weeks before Stein's arrest, the informant made a comment in a recording with an unidentified person that Stein does everything on his phone and that Stein does not have internet or a computer.
The Court concludes that none of these facts would change the Magistrate Judge's probable cause determination. Stein's reliance on his instruction to the FBI informant to avoid using computers is problematic for at least two reasons. First, the statement shows Stein's feelings about the informant making plans on a computer; it says nothing about Stein's willingness to use computers. Second, the statement was made in the early stages of the group's planning, and it was made because Stein wanted to avoid making records of the group's activities. Even if Stein originally intended to avoid using a computer to prevent leaving a record of the group's activities, there is ample information in the affidavit suggesting that Stein may have abandoned that strategy. Stein frequently used his phone and the internet in furtherance of the conspiracy, attended a meeting at G & G where Wright used a computer to mark potential targets for their attack, and kept handwritten notes during the group's meetings.
The next two pieces of information Stein relies on are equally unavailing. Stein expressed frustration to the FBI informant that he had to perform all his online activity
Lastly, Stein relies on a recorded conversation between the FBI informant and an unidentified person that occurred on September 27, 2016. During this conversation, the informant told the unidentified person that Stein does everything on his phone, and that Stein does not have internet or a computer. The unidentified person cannot be heard on the recording, so the Court cannot ascertain the full context of this conversation. With that in mind, the Court disagrees that this information would strip the warrant of probable cause. The informant's statement is consistent with what Stein told him in August, and it is unclear whether the informant was merely repeating what Stein told him a month earlier, or if the informant had new information that Stein still had no computer. Regardless, this conversation took place weeks before law enforcement searched Stein's home. So, even with this information, the Magistrate Judge could still have found probable cause to search Stein's home for a computer.
Stein identified a significant amount of information he believes was wrongly omitted from the Government's affidavit. The Court holds that none of the omitted information relating to Stein's violent rhetoric against Muslims would negate probable cause. Therefore, the affidavit did not violate Franks in this regard. Although a closer call, the omissions regarding Stein's computer ownership and use likewise fail to implicate Franks. Stein's strongest argument is his confession to the FBI's informant that he does everything on his phone because he has nothing else. But this is counterbalanced by the fact that Stein made this statement while asking for the informant's help in acquiring a laptop. Indeed, two of the four omissions central to Stein's argument involve Stein discussing his need for a computer. Adding the omitted information to the affidavit would not negate probable cause. And it could have made the Government's application stronger. Therefore, the Court holds the search warrant affidavit did not violate Franks.
Stein asks the Court to suppress all evidence from the search of his residence for three reasons. First, the warrant affidavit failed to establish an adequate connection between the criminal conduct under investigation and Stein's home. Second, the warrant was unconstitutionally broad because the list of items to be seized was too long to be sufficiently particularized. Third, the warrant was unconstitutionally broad because the Government lacked probable cause that Stein possessed a computer. The Court takes the liberty of addressing the computer issue first.
Stein argues that the search warrant was overbroad because it authorized the seizure of a computer. Stein claims that law enforcement not only lacked reason to believe Stein had a computer, but possessed information to the contrary. Although Stein frames this as an issue of whether the warrant was unconstitutionally
"A magistrate judge's task in determining whether probable cause exists to support a search warrant `is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him ... there is a fair probability that contraband or evidence of a crime will be found in a particular place.'"
Here, Stein argues it is unreasonable to presume a person owns a computer, citing authority estimating that approximately 75 percent of American adults owned a computer at the time of Stein's arrest.
Furthermore, as discussed above, adding the omitted information to the affidavit does not negate probable cause to seize any computers found in Stein's residence. To the contrary, Stein's explicit desire to acquire a computer only increased the probability that one would be found in his home.
Stein argues the search warrant authorized the Government to conduct a virtually unlimited search of his home. Under the Fourth Amendment, warrants must describe with particularity the place to be searched and the items to be seized during the search.
The search warrant here is sufficiently particularized to withstand Fourth Amendment scrutiny. Stein argues the "shopping list" of items in the search warrant gave law enforcement authority to conduct a "general fishing expedition and exploratory search"—pointing specifically to the long list of items to be seized in paragraphs A, D, and E of the warrant. The Court recognizes that the list of items to be seized in the search warrant is broad. But the Court must consider the nature of the crime being investigated: conspiring to use an improvised explosive device, which can be constructed using many items that are common or seemingly innocuous. The Court also considers the list of items within the context of the warrant's qualifying language that all items seized must be tied to the construction of improvised explosive devices.
Stein argues the affidavit contained insufficient information connecting his suspected crime to his residence. It is settled law that probable cause requires a nexus between the suspected criminal activity and the place to be searched.
In sum, "magistrate judges may draw their own reasonable conclusions, based on the Government's affidavit and the `practical considerations of everyday life,' as to the likelihood that certain evidence will be found at a particular place."
The Biglow factors favor finding a nexus between the suspected crime and Stein's residence.
Furthermore, the Government's affidavit provided enough "additional information" linking the conspiracy to Stein's residence to satisfy the Fourth Amendment's nexus requirement. The affidavit provided 11 pages of detailed information about Stein and his co-conspirators' plot to bomb an apartment complex, and Stein does not contest the Government had probable cause he was involved in the conspiracy. Additionally, according to the affidavit, Stein kept handwritten notes during some of the group's meetings, took the notes with him when he left, and generally returned home after the meetings. Stein argues this is insufficient to find a nexus between the crime and his home, noting that "[t]he affiant cannot even allege that Mr. Stein always went home after the meetings or that he took the notes into his home when he did." However, the relevant inquiry is whether there is a fair probability that evidence of the crime—here, the notes—would be found in Stein's home. Probable cause does not require "hard evidence" Stein stored the notes there. Given the sensitive nature of these documents, it was reasonable to infer that Stein would protect them in a safe location.
The affidavit also linked Stein's home to materials used to manufacture explosive devices. For example, Stein told the UCE that he possessed at least 300 pounds of fertilizer to manufacture a bomb. According to Stein, the fertilizer was located about 60 miles away from where Stein and the UCE were meeting. The affidavit pointed out that Stein's residence, as well as G & G, were approximately 60 miles away from that location. Stein raises two arguments for why this fact does not adequately connect Stein's home to the crime. First, Stein notes that he offered to leave the "shop" unlocked for the UCE to pick up the fertilizer.
The Court is unpersuaded by these arguments. Stein's comment that he possessed fertilizer within 60 miles could, of course, include any location within 60 miles. But it is reasonable to infer from this comment that the fertilizer was kept somewhere approximately 60 miles away, which would include Stein's residence and G & G. Perhaps—based on Stein's vague reference to the "shop"—the inference that the fertilizer was kept at G & G was stronger than the inference that it was located at Stein's home. But it is completely "uncontroversial" that "officers can follow alternative and competing leads when both are supported by a `fair probability' they will yield something productive."
Stein also briefly argues that the affidavit failed to demonstrate by which means the Government confirmed that the place they searched—a mobile home in Wright, Kansas—was Stein's residence. Stein makes this argument in a one-sentence paragraph citing to the Tenth Circuit's decision in United States v. Roach.
In Roach, law enforcement sought a warrant to search 15 residences connected to a drug-trafficking conspiracy involving multiple suspects.
Similarly, the Court concludes—despite sufficient facts in the affidavit to uphold the Magistrate Judge's determination that probable cause existed to search Stein's residence—the Government's affidavit did not include enough facts demonstrating this mobile home was Stein's residence. This does not, however, resolve the matter. In Roach, the Tenth Circuit concluded that, notwithstanding the warrant's lack of probable cause connecting Roach to the apartment, suppression was precluded by the good-faith exception to the warrant requirement. The Court will now consider whether the good-faith exception likewise precludes suppression here.
Both Stein and the Government address the good-faith exception as it pertains to whether there was sufficient reason to believe Stein kept evidence related to the conspiracy at his residence, and whether there was reason to believe Stein used a computer in furtherance of this conspiracy. However, neither party addresses the good-faith exception as it applies to whether the warrant adequately showed that Stein resided at this mobile home. That said, the Court will now consider whether the good-faith exception applies here.
In United States v. Leon,
Based on the Tenth Circuit's guidance in Roach, the Court concludes that it was not "entirely unreasonable" for the executing officers to rely on the search warrant. Nothing in Roach demonstrates that law enforcement did more to verify Roach's residence in that investigation than the FBI did to verify Stein's residence in this case. For example, like the affiant in Roach, TFO Moore explicitly stated that he knew the place to be searched was Stein's residence; additionally, he swore that all facts in the affidavit came from his "personal observations," his "training and experience," and "information obtained from other law enforcement officers, federal agents, and witnesses." More importantly, TFO Moore stated that Stein routinely returned to the residence described as Stein's home after meeting with his co-conspirators. This fact, without more, likely falls short of the "substantial basis" needed for probable cause that Stein resided there. However, pursuant to Roach, it does satisfy Leon's "minimal nexus" requirement. Thus, to the extent the warrant failed to demonstrate the mobile home was Stein's residence, the good-faith exception precludes suppression.
Finally, although the Court holds that probable cause existed that Stein used a computer in furtherance of the conspiracy and kept evidence of the conspiracy at his residence, the Court will still address the Government's argument, made in the alternative, that—even if the warrant lacked probable cause on these matters—the good-faith exception would preclude suppression.
Stein argues the good-faith exception should not apply, pointing to three examples where it is objectively unreasonable for an officer to rely on a search warrant: (1) when the magistrate judge issuing the warrant was misled by a deliberately or recklessly false affidavit; (2) when the magistrate wholly abandoned its detached and neutral judicial role; (3) when the affidavit was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable."
Finally, Stein argues that the warrant affidavit was so lacking in indicia of probable cause—what is often called a "bare bones" affidavit
The warrant to search Stein's residence contained no material omissions and, therefore, did not violate Franks. Furthermore, the Court denies Stein's motion to suppress. The search warrant affidavit provided the Magistrate Judge with a substantial basis to find probable cause to search Stein's residence. Specifically, the affidavit provided a reasonable basis to conclude Stein owned and used a computer in furtherance of the conspiracy to use a weapon of mass destruction, provided sufficient reason to believe Stein kept evidence of his suspected crimes at his residence, and stated with sufficient particularity the items to be seized. Furthermore, although the search warrant failed to adequately show that the place to be searched was, in fact, Stein's residence, it was not entirely unreasonable for the officers to rely on the search warrant's validity. Lastly, even if the warrant lacked probable cause that Stein used a computer or kept evidence at his residence, the good-faith exception provides an independent reason to deny Stein's motion to suppress.
