JAMES O. BROWNING, District Judge.
Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its essential findings on the record when deciding a motion that involves factual issues. See Fed.R.Crim.P. 12(d)("When factual issues are involved in deciding a [pretrial] motion, the court must state its essential findings on the record."). The findings of fact in this Memorandum Opinion and Order shall serve as the Court's essential findings for purposes of rule 12(d). The Court makes these findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge to decide preliminary questions relating to the admissibility of evidence, including the legality of a search or seizure and the voluntariness of an individual's confession or consent to search. See United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982), cert. denied, 461 U.S. 916, 103 S.Ct. 1898, 77 L.Ed.2d 286 (1983). In deciding such preliminary questions, the other rules of evidence, except those with respect to privileges, do not bind the Court. See Fed.R.Evid. 104(a). Thus, the Court may consider hearsay in ruling on a motion to suppress. See United States v. Garcia, 324 Fed.Appx. 705 (10th Cir. 2009)("We need not resolve whether Crawford's
1. McCarthy, formerly Claudia Fletes, is a police officer for the City of Westminster. See Transcript of Hearing at 42:14-24 (taken August 3, 2011)(Kastrin, McCarthy)("Aug. 3, 2011 Tr.").
2. McCarthy is assigned to a detective bureau that works crimes against children and domestic violence. See Aug. 3, 2011 Tr. at 43:2-5 (Kastrin, McCarthy).
3. McCarthy is a member of the safe team task force, in which local agencies work with the Federal Bureau of Investigation ("FBI") on cases where children are victims of crimes that are sexual in nature. See Aug. 3, 2011 Tr. at 43:9-12 (Kastrin, McCarthy).
4. On November 8, 2009, the father of a missing juvenile (hereinafter "K.Y.") reported K.Y. missing to a Westminster Police desk officer. See Aug. 3, 2011 Tr. at 45:5-9 (McCarthy).
5. Initially, the investigators had no information suggesting that K.Y. traveled with an adult male to another state. See Aug. 3, 2011 Tr. at 45:10-13 (Kastrin, McCarthy).
6. On November 9, 2009, however, K.Y.'s father went to the Westminster police station and provided the desk officer with two photographs of an adult male, which he had found in K.Y.'s Yahoo! account. See Aug. 3, 2011 Tr. at 45:21-24 (McCarthy).
7. The adult male was completely nude in both photographs. See Aug. 3, 2011 Tr. at 45:25-46:5 (Kastrin, McCarthy).
8. K.Y.'s mother emailed the Westminster desk officer a user name for the website agematch.com,
9. McCarthy ran a Google search on the user name and came across another profile associated with consensual.com. See Aug. 3, 2011 Tr. at 46:17-19 (McCarthy).
10. To view the profile on consensual.com, McCarthy had to create a fictitious account; once McCarthy created a fictitious account and logged on, she was able to view a few photographs of the person's profile. See Aug. 3, 2011 Tr. at 46:20-25 (Kastrin, McCarthy).
11. The photographs were of an adult male whose appearance matched the male in the nude photographs K.Y.'s father brought to the police station. See Aug. 3, 2011 Tr. at 46:25-47:3 (McCarthy).
12. The photographs of the adult male did not show any simulated sexual activity. See Aug. 3, 2011 Tr. at 58:21-25 (McMillian, McCarthy).
13. Based on McCarthy's experience and training, McCarthy thought that the adult male was looking for a sexual relationship with K.Y., because K.Y. was missing and had nude photographs of an adult male man who used agematch.com and consensual.com. See Aug. 3, 2011 Tr. at 47:13-48:2 (Kastrin, McCarthy).
14. K.Y.'s father informed the investigators that he noticed two incoming calls from an unknown number on his daughter's
15. K.Y.'s father also showed the investigators photographs that K.Y. had sent to the person with whom she was communicating, one of which depicted K.Y. from her chest up with her breasts exposed. See Aug. 3, 2011 Tr. at 48:6-10 (McCarthy).
16. K.Y. was not simulating sexual activity in the photographs. See Aug. 3, 2011 Tr. at 58:12-19 (McMillian, McCarthy).
17. McCarthy does not know whether the electronic mail transmission exchange between K.Y. and Christy predated the photographs, or whether Christy solicited the photographs. See Aug. 3, 2011 Tr. at 58:18-19 (McMillian, McCarthy).
18. Based on McCarthy's experience and training in crimes against children, she believed that the adult male "was seeking for [K.Y.] to send those photos for his sexual pleasure and to continue a sexual romantic relationship." Aug. 3, 2011 Tr. at 63:22-64:7 (Kastrin, McCarthy).
19. McCarthy contacted Carvo, an investigator for the Orange County District Attorney's Office, to let him know that she was investigating a missing juvenile whom she believed left the state with an adult male; McCarthy gave—to Carvo—K.Y.'s electronic mail address, her telephone number, and the electronic mail address that was used to send nude photographs of the adult male and to create an account on agematch.com. See Aug. 3, 2011 Tr. at 48:18-49:10 (Kastrin, McCarthy).
20. McCarthy gave Carvo this information because, at the time, he was working at the FBI office, and could obtain information regarding the internet protocol ("IP") addresses associated with the electronic mail transmissions and regarding K.Y.'s cellular telephone records. See Aug. 3, 2011 Tr. at 49:11-15 (Kastrin, McCarthy).
21. On November 9, 2009, McCarthy and Detective McCormick conducted an interview with K.Y.'s parents; during the interview, K.Y.'s mother told the detectives that K.Y. was diagnosed with depression; that K.Y. had attempted suicide on several occasions, the last occasion being in March 2009; that K.Y. liked to cut her wrists; and that K.Y. had mental health issues for which she was on medication. See Aug. 3, 2011 Tr. at 49:16-50:5 (Kastrin, McCarthy); id. at 60:1-8 (McMillian, McCarthy).
22. K.Y.'s parents told McCarthy and McCormick that K.Y. was not on medication when she left, and that they were very concerned about her well-being and her safety. See Aug. 3, 2011 Tr. at 50:6-9 (Kastrin, McCarthy).
23. Her parents also told McCarthy and McCormick that they believed K.Y. posed a risk of suicide or harm to herself. See Aug. 3, 2011 Tr. at 50:10-12 (Kastrin, McCarthy).
24. McCarthy and McCormick searched K.Y.'s bedroom, where they located numerous journals, writing, and drawings. See Aug. 3, 2011 Tr. at 50:13-17 (McCarthy).
25. In the journals, K.Y. wrote that she enjoys cutting herself to relieve stress; she also wrote about her research regarding how a human body can lose one-eighth of its blood before dying and how she "likes to lose one-eighth of her blood." Aug. 3, 2011 Tr. at 50:17-21 (McCarthy).
26. K.Y. wrote the last journal entry either the same week or the week before she went missing. See Aug. 3, 2011 Tr. at 50:24-60:1 (Kastrin, McCarthy).
27. The journal entries spanned a lengthy period of time; there was some
28. The information that K.Y.'s parents relayed to McCarthy and McCormick about K.Y.'s mental health, in combination with K.Y.'s journals, led McCarthy to believe that K.Y. posed a suicide threat:
Aug. 3, 2011 Tr. at 51:7-12 (McCarthy).
29. McCarthy was also concerned that K.Y. was no longer on her medication. See id. at 51:13-15 (Kastrin, McCarthy).
30. After McCarthy and McCormick finished their interview with K.Y.'s parents, Carvo called McCarthy; he told her that the two telephone calls from an unknown number were from a 505 area code, which is a New Mexico area code, that K.Y. received the two telephone calls on November 7, 2009 and on November 8, 2009, and that the IP addresses associated with the electronic mail transmissions that K.Y. received matched an address associated with the 505 telephone number. See Aug. 3, 2011 Tr. at 51:19-52:5 (Kastrin, McCarthy).
31. Carvo provided McCarthy with the address—2265 Kelly Road Southwest, Albuquerque, New Mexico. See Aug. 3, 2011 Tr. at 52:6-7 (Kastrin, McCarthy).
32. The timing of the two telephone calls to K.Y.'s telephone number on November 7, 2009 and 8, 2009 were significant, because the calls were close to the time the investigators believed K.Y. ran away. See Aug. 3, 2011 Tr. at 52:12-16 (McCarthy).
33. Based on this information, McCarthy believed that K.Y. was at 2265 Kelly Road SW. See Aug. 3, 2011 Tr. at 52:17-21 (Kastrin, McCarthy).
34. McCarthy knew all this information before making her first telephone call to the Bernalillo County Sheriff's Office ("BCSO"). Aug. 3, 2011 Tr. at 52:22-25 (Kastrin, McCarthy).
35. McCarthy believed that the circumstances presented an emergency situation, because there was evidence that K.Y. posed an active suicide risk, because K.Y. was off her medications and was possibly with an adult male in another state. See Aug. 3, 2011 Tr. at 53:1-7 (Kastrin, McCarthy).
36. McCarthy believed that K.Y. posed a risk of harm to herself and that the adult male posed a risk of harm to K.Y., because K.Y. could not consent to sexual activity with the adult male given that the age of consent in California is eighteen. See Aug. 3, 2011 Tr. at 53:8-12, 55:7-14 (Kastrin, McCarthy).
37. Although K.Y. wrote a runaway note, in which she stated that she was safe and that she would call later, these statements did not allay McCarthy's worries that the situation presented an emergency. See Aug. 3, 2011 Tr. at 65:14-23 (Kastrin, McCarthy).
38. McCarthy contacted the BCSO and asked BCSO to do a welfare check. See Aug. 3, 2011 Tr. at 53:14-25 (Kastrin, McCarthy).
39. The BCSO dispatcher relayed the following information to BCSO deputies:
Bernalillo County Sheriff's Department Computer Aided Dispatch Report at 1 (dated November 9, 2009)(Government's Exhibit H)("CAD Report").
40. In McCarthy's initial call to the BCSO, she did not mention anything about K.Y.'s mental health. See Aug. 3, 2011 Tr. at 54:1-5 (Kastrin, McCarthy).
41. She called the BCSO back approximately an hour later and told them about K.Y.'s mental health issues—that she was depressed, had attempted suicide in the past, and was off her medications. See Aug. 3, 2011 Tr. at 54:14-21 (Kastrin, McCarthy). See also CAD Report at 2 (stating that, at "19[:]49 THE DET FROM CALI CALLED ADV THE SUBJ IS SUICIDAL, OFF MEDS & DEPRESSED").
42. On November 9, 2009, following McCarthy's first call to the BCSO, BCSO Deputy Littlefield was dispatched to Christy's residence at 2265 Kelly Road, S.W. to perform a welfare check in reference to a run away from California. See Aug. 3, 2011 Tr. at 69:21-70:3 (Kastrin, Littlefield).
43. Littlefield had information that the run away was a sixteen-year-old female who left California, possibly in Christy's company. See Aug. 3, 2011 Tr. at 70:4-11 (Kastrin, Littlefield).
44. Littlefield believed that, before he "ever stepped foot on" Christy's property, he had probable cause to believe that Christy committed the New Mexico state crimes of kidnaping, custodial interference, contributing to the delinquency of a minor, and sexual exploitation of a minor. Aug. 3, 2011 Tr. at 70:12-72:10 (Kastrin, Littlefield).
45. Littlefield believed he had probable cause
46. Littlefield believed that he had probable cause for the New Mexico crime of custodial interference, because Christy took K.Y. across state lines, because Littlefield did not have any reason to believe that K.Y.'s parents had consented to her leaving, and because there was nothing in the dispatch that said K.Y.'s parents consented to her leaving the state. See Aug. 3, 2011 Tr. at 71:13-19 (Kastrin, Littlefield).
47. Littlefield believed that he had probable cause for the New Mexico crime of contributing to the delinquency of a minor, because Christy had, either with K.Y.'s consent or through enticement, brought K.Y. across state lines apparently against the wishes of her parents. See Aug. 3, 2011 Tr. at 71:20-72:3 (Kastrin, Littlefield).
48. Littlefield believed that he had probable cause for the New Mexico crime of sexual exploitation of a minor, because he believed, based on his training and experience, that there was a possibility child pornography could be involved, given the electronic mail transmission communications between K.Y. and Christy, and the nude pictures that Christy sent K.Y. See Aug. 3, 2011 Tr. at 72:9-16 (Kastrin, Littlefield).
49. Littlefield knew that Christy and K.Y. had communicated through electronic mail transmissions and that Christy had sent K.Y. nude photographs, but, as far as he knew, there was not any simulated sexual act in the nude pictures or any actual sexual act. See Aug. 3, 2011 Tr. at 78:1-6 (McMillian, Littlefield).
50. Littlefield shared the information that Christy possibly transported a run-away sixteen-year-old female—K.Y.—from California to New Mexico with Detective Weylin Proctor from the BCSO so that Proctor could get a search warrant. See Aug. 3, 2011 Tr. at 72:21-24 (Kastrin, Littlefield)
51. Littlefield wanted to search Christy's vehicle, Christy's residence, Christy's and K.Y.'s cellular telephones, Christy's computers, and any memory or data storage devices, cameras, or similar items. See Aug. 3, 2011 Tr. at 72:25-73:7 (Kastrin, Littlefield).
52. When Littlefield arrived at Christy's residence, he walked down the driveway, because it appeared to him that the residence's rear entrance was the main entrance or the entrance that was used most, because the leaves were disturbed going down the driveway, and the front porch was dark and did not look used. See Transcript of Hearing at 18:4-12 (taken April 21, 2011)(Kastrin, Littlefield).
53. The rear entrance is not visible from the front of the residence; the disturbance of the leaves in the driveway is consistent with disturbance from the tires of a car—there are two tracks where the leaves are disturbed. See Government's Exhibit J.
54. From the Court's independent review of the photographs, the Court does not agree that the front door did not look like the door people used. Littlefield could not see the back porch, so he could not have reasonably made a comparison before he went to the back porch. The back porch is messy and looks like a back porch; the front porch looks neat and inviting. See Government's Exhibit I; Government's Exhibit M; Government's Exhibit N.
55. After Littlefield looked in Christy's window, he believed that he had probable cause that Christy had committed production of child pornography, because he saw a flash that was consistent with a camera
56. When Littlefield looked in the window, he did not see a camera and could not, physically, have seen the computer on Christy's desk.
57. Littlefield later shared what he saw when he looked into the window with Proctor to make sure that, when Proctor obtained search warrants, he would include all devices, such as cameras, computers, flash drives, media storage devices, and cellular telephone cameras, which could be used for the production and distribution of child pornography. See Aug. 3, 2011 Tr. at 74:9-17 (Kastrin, Littlefield).
58. Littlefield has concluded that, had he not forced entry into Christy's residence when he did, he would have entered the residence at a later time, because BCSO was later given information that K.Y. was considered suicidal, off her medication, and a danger to herself. See Aug. 3, 2011 Tr. at 74:21-75:3 (Kastrin, Littlefield).
59. BCSO deputies learned this information approximately an hour after they forced entry into Christy's residence. See Aug. 3, 2011 Tr. at 76:13-18 (Kastrin, Littlefield).
60. Adkins, a Special Agent with the FBI, is currently assigned to work cases involving online exploitation of children. See Aug. 3, 2011 Tr. at 5:14-22 (Rees, Adkins).
61. Adkins is affiliated with a statewide task force relating to internet crimes against children. See Aug. 3, 2011 Tr. at 7:19-8:5 (Rees, Adkins).
62. In the course of her duties as an FBI agent who is assigned to investigate child exploitation cases, Adkins writes search warrants for premises that may contain evidence of a child exploitation crime. See Aug. 3, 2011 Tr. at 6:10-14 (Rees, Adkins).
63. When the FBI works jointly with a state agency, investigative decisions are made jointly through communications with both agencies and, at times, attorneys. See Aug. 3, 2011 Tr. at 11:1-4 (Rees, Adkins).
64. On the evening of November 9, 2009, sometime between six and seven, a task force member called Adkins to Christy's residence to assist the BCSO. See Aug. 3, 2011 Tr. at 7:17-23 (Rees, Adkins).
65. The task force member contacted Adkins, because there was a possibility a federal crime occurred, given that Christy
66. Before Adkins got to Christy's residence, she knew that an individual had traveled to California, picked up a minor, and brought her back to New Mexico. See Aug. 3, 2011 Tr. at 22:16-20 (McMillian, Adkins).
67. Adkins "knew that there was not parental permission when [she] was on [her] way over there, or there wouldn't have been a call to [BCSO] to begin with." Aug. 3, 2011 Tr. at 26:24-27:1 (Adkins).
68. Adkins did not know the circumstances of the transportation when she arrived on the scene. See Aug. 3, 2011 Tr. at 25:13-18 (McMillian, Adkins).
69. After she arrived on scene at Christy's residence, Adkins learned, mostly through Proctor and other BCSO deputies, that Christy had traveled to California and picked up K.Y., then brought her back to his residence in New Mexico. See Aug. 3, 2011 Tr. at 9:3-7 (Adkins).
70. BCSO deputies informed Adkins that K.Y. was removed from her place of residence without her parents' consent; Carvo also later told Adkins this information. See Aug. 3, 2011 Tr. at 9:22-25 (McMillian, Adkins).
71. On the scene, and later during her interview with K.Y., Adkins learned that Christy and K.Y. had communicated over the internet and that the communications were sexual in nature. See Aug. 3, 2011 Tr. at 10:1-9(McMillian, Adkins).
72. Adkins found out about the photographs that Christy and K.Y. sent each other during her interview of K.Y., when K.Y. described some of the photographs she sent to Christy; Adkins did not see the pictures that night. See Aug. 3, 2011 Tr. at 27:20-29:1 (McMillian, Adkins).
73. Adkins knew that Littlefield had looked through a window in Christy's residence, and that he had seen what appeared to be camera flashes and K.Y. in various stages of undress. See Aug. 3, 2011 Tr. at 9:1-11 (Rees, Adkins).
74. That evening, Proctor and Adkins had a discussion about obtaining a search warrant; Adkins made a telephone call to the FBI's evidence response team to determine whether they were available to execute a search warrant. See Aug. 3, 2011 Tr. at 11:7-11 (Adkins).
75. The FBI's evidence response team was not immediately available. See Aug. 3, 2011 Tr. at 12:6-16 (Rees, Adkins)
76. In Adkins' experience, if both the FBI and a state agency have probable cause for crimes, both agencies do not obtain a search warrant. See Aug. 3, 2011 Tr. at 11:12-19 (Rees, Adkins).
77. Adkins was prepared to acquire a federal search warrant that evening. See Aug. 3, 2011 Tr. at 12:3-5 (Rees, Adkins).
78. Because the FBI's evidence response team was not available until the following day, a decision was made that Proctor would obtain the search warrant, because it was believed a state agency could get the warrants quicker. See Aug. 3, 2011 Tr. at 12:22-13:10 (Rees, Adkins).
79. If Adkins had written the federal search warrant, she would have contacted Carvo or Fletes to obtain information about their investigation, and she would have contacted the BCSO deputies to obtain information about what occurred on the scene. See Aug. 3, 2011 Tr. at 13:11-20 (Rees, Adkins).
80. Adkins would have incorporated this information into her affidavit for a
81. Adkins did not do an "independent investigation of the circumstances, other than what [she] got from BCSO and Westminster PD." Aug. 3, 2011 Tr. at 34:14-17 (McMillian, Adkins).
82. All the "information [Adkins] had that evening, that [she] [would] ha[ve][]used to get a search warrant came from either the task force member, BCSO, Westminster PD, [the investigations that Westminster PD did,] or [her] interview with [K.Y.]" Aug. 3, 2011 Tr. at 36:11-17 (McMillian, Adkins).
83. Adkins did not ever write a warrant application. See Aug. 3, 2011 Tr. at 31:11-13 (McMillian, Adkins).
84. Adkins believes that an Assistant United States Attorney would have approved a federal search warrant. See Aug. 3, 2011 Tr. at 13:25-14:3 (Rees, Adkins).
85. Adkins has obtained other federal search warrants in this district, and she has never had an issue with a federal judge not issuing a search warrant in similar cases. See Aug. 3, 2011 Tr. at 14:4-11 (Rees, Adkins). See also Transcript of Hearing at 56:23-57:2 (taken July 8, 2011)(Court, Rees)("THE COURT: ... [S]o the only thing we'd be talking about here for purpose of a Rule 41 search warrant would be one of the United States magistrate judges here? MS. REES: Right. I never had an issue with not being able to [obtain a warrant.]").
86. If the BCSO had not acquired a search warrant that night, Adkins would have acquired a search warrant. See Aug. 3, 2011 Tr. at 14:12-15 (Rees, Adkins).
87. Adkins believed that she had probable cause, "based upon the evidence [she] learned that particular evening," for "a search warrant for [the federal crimes of] production of child pornography, possession of child pornography, kidnapping, and... traveler or the enticement statute." Aug. 3, 2011 Tr. at 14:18-24 (Rees, Adkins).
88. A person under the age of eighteen cannot consent to the production or possession of child pornography. See Aug. 3, 2011 Tr. at 39:6-13 (Rees, Adkins).
89. That the minor may have consented does not negate Adkins' probable cause for child pornography crimes or enticement or coercion crimes. See Aug. 3, 2011 Tr. at 40:4-8 (Rees, Adkins).
90. Adkins believes that she would have had probable cause for the federal crimes of production and possession of child pornography, based on Littlefield's "approach and view through the window," and the later "statements made by the victim," from whom Adkins learned that she sent explicit pictures of herself. Aug. 3, 2011 Tr. at 15:1-11 (Rees, Adkins).
91. Littlefield told Adkins that he looked through the window of Christy's residence and saw a young girl in what appeared to be some type of bondage apparatus, that the young girl was nude, and that he had seen flashes which could have come from a camera. See Aug. 3, 2011 Tr. at 31:19-32:3 (McMillian, Littlefield).
92. Adkins believes that, based on her experience, there is a possibility that a person who may be producing child pornography may also collect it. See Aug. 3, 2011 Tr. at 32:9-12 (Adkins).
93. Adkins believes that, "in theory," if she spoke to the Westminster Police Department, she would have acquired information that the victim sent explicit images of herself that were consistent with child pornography. Aug. 3, 2011 Tr. at 15:8-19 (Rees, Adkins).
94. Based upon her training and experience with the crimes of production and
95. Adkins believes that she would have had probable cause for the federal crime of kidnaping, because she was aware of evidence that Christy took K.Y. from her residence in California without her parents' permission. See Aug. 3, 2011 Tr. at 16:13-20 (Rees, Adkins).
96. Adkins received information that K.Y. was removed from her residence without her parents' permission on the scene from Proctor, from the task force member who initially contacted her, and from K.Y. during K.Y.'s interview. See Aug. 3, 2011 Tr. at 33:12-22 (McMillian, Adkins).
97. With a search warrant based on probable cause for kidnaping, Adkins would have been looking for K.Y.'s belongings, receipts related to travel, and other related items in Christy's vehicle and Christy's residence. See Tr. at 16:18-17:6 (Rees, Adkins).
98. Adkins believed that she had probable cause to write a search warrant for the federal crime of enticement or coercion, because she was aware of evidence that K.Y. and Christy used the internet and cellular telephones to communicate, and that Christy traveled across state lines to meet K.Y. and to transport her to Albuquerque. See Aug. 3, 2011 Tr. at 17:7-16 (Rees, Adkins).
99. Proctor told Adkins that K.Y. and Christy had communicated over the internet, and she also gained the same information later from Westminster investigators and from K.Y. See Aug. 3, 2011 Tr. at 33:1-8 (McMillian, Adkins).
100. A search warrant based upon probable cause for enticement or coercion would have encompassed Christy's residence, Christy's vehicle, Christy's cellular telephone, and Christy's computers. See Aug. 3, 2011 Tr. at 17:17-3 (Rees, Adkins).
101. Presuming Adkins "g[o]t a search warrant and [went] inside [Christy's] residence and [found] things like used condoms," Adkins "would have—If [she] had not done it previously, [she] would have stopped and requested a supplemental [search warrant]. But [she] would have requested in the search warrant items of a sexual nature, items that can be used: Sheets, bed sheets, condoms, et cetera.... Anything that could obtain DNA evidence," because the items would have been evidence of the crime. Aug. 3, 2011 Tr. at 18:17 (Rees, Adkins).
102. The DNA evidence would have included DNA evidence from Christy. See Aug. 3, 2011 Tr. at 18:16-17 (Rees, Adkins).
103. The BCSO's search warrant "sufficiently cover[ed] the evidence [she] would have sought to obtain in a federal search warrant." Aug. 3, 2011 Tr. at 18:20-24 (Rees, Adkins).
104. Adkins believed that there was no need for her to obtain a supplemental federal search warrant. See Aug. 3, 2011 Tr. at 18:25-19:2 (Rees, Adkins).
105. Adkins believes that, if the BCSO deputies had not looked through the window and seen the circumstances involving the missing juvenile, she still would have had probable cause for federal crimes so as to obtain a federal search warrant. See Aug. 3, 2011 Tr. at 19:3-8 (Rees, Adkins).
106. Adkins believes that these crimes would be the "traveler enticement [and]
107. Adkins believes she would have had probable cause for these crimes based upon evidence that Christy had traveled to California, picked up K.Y., and brought her across state lines without her parents' permission, and based upon evidence that K.Y. and Christy were communicating through the internet and cellular telephones. See Aug. 3, 2011 Tr. at 20:17-21:24 (Rees, Adkins).
108. With search warrants based on these crimes, Adkins would have sought to search Christy's vehicle and residence; she would have sought to seize computer-related material, any devices that could hold or store computer-related material and digital images, cellular telephones, and receipts for travel and communications. See Aug. 3, 2011 Tr. at 19:12-22 (Rees, Adkins).
109. If Adkins had found evidence of sexual activity in the residence, she would have obtained a supplemental search warrant for items of a sexual nature that could contain DNA evidence, including from Christy's person. See Aug. 3, 2011 Tr. at 19:23-20:6 (Rees, Adkins).
110. If BCSO had not looked through the window, and had not obtained a search warrant, Adkins is "absolutely certain" she would have applied for a search warrant the next day. Aug. 3, 2011 Tr. at 20:7-14 (Rees, Adkins).
111. Carvo is a member of a FBI task force that is comprised of state and local investigators who investigate internet crimes against children. See Aug. 3, 2011 Tr. at 87:5-88:1 (Rees, Carvo).
112. In this assignment, Carvo is cross designated to acquire both state and federal search warrants. See Aug. 3, 2011 Tr. at 88:2-4 (Rees, Carvo).
113. If a federal crime occurs in California, but the evidence exists elsewhere, Carvo can write a federal search warrant to acquire that evidence. See Aug. 3, 2011 Tr. at 88:9-12 (Rees, Carvo).
114. Based upon his investigation, training, and experience, Carvo believed that he had probable cause to acquire search warrants for Christy's vehicle, cellular telephones, residence, and other matters. See Aug. 3, 2011 Tr. at 88:13-18 (Rees, Carvo).
115. Carvo believed he had probable cause for the California crimes of: (i) child abduction—California Penal Code §§ 278 and 278.5; (ii) illegal contact with a minor—California Penal Code § 278.3; (iii) showing or sending harmful matter to a minor—California Penal Code § 288.2; (iv) arranging a meeting with a minor for sexual purposes—California Penal Code § 288.4; (v) attending a meeting with a minor for sexual purposes or for a lewd act—California Penal Code § 288.4b; (vi) annoying or molesting a child—California Penal Code § 647.6; (vii) unlawful sexual intercourse—California Penal Code § 261.5; (viii) possession of child pornography—California Penal Code § 311.11; (ix) production of child pornography—California Penal Code § 311.4; and (x) unlawful oral copulation with a minor—California Penal Code § 288A. See Aug. 3, 2011 Tr. at 88:21-89:21 (Rees, Carvo).
116. The age of consent in California is eighteen years. See Aug. 3, 2011 Tr. at 88:19-20 (Rees, Carvo). See also People v. Soto, 51 Cal.4th 229, 119 Cal.Rptr.3d 775, 245 P.3d 410, 422 n. 11 (Cal. 2011)("The Legislature later raised the age of consent from 14 to 18 ...." (citing Stats. 1897, ch. 139, § 1, p. 201; Stats. 1913, ch. 122, § 1, p. 212)).
118. The California crime of child abduction encompasses a defendant who maliciously takes or entices away a child under the age of eighteen when the defendant did not have rights to custody of that child, and when the defendant intended to detain or conceal the child from the child's lawful custodian; the defendant may be guilty of this crime even if the child consented to the taking. See Aug. 3, 2011 Tr. at 90:10-19 (Rees, Carvo). See also Cal.Penal Code § 277 ("`Child' means a person under the age of 18 years."); Cal.Penal Code § 278 ("Every person, not having a right to custody, who maliciously takes, entices away, keeps, withholds, or conceals any child with the intent to detain or conceal that child from a lawful custodian shall be punished....").
119. Carvo believed that he had probable cause for this crime, because Christy had been in contact with K.Y. through electronic mail transmissions, because K.Y. was under the age of eighteen, because the cellular telephone evidence and the evidence from the cellular telephone towers showed that Christy traveled from New Mexico to Westminster at the time that K.Y. disappeared and then traveled back to New Mexico, and because K.Y.'s parents did not consent to her leaving the state with Christy. See Aug. 3, 2011 Tr. at 90:22-91:6 (Rees, Carvo).
120. The California crime of child abduction by depriving a lawful custodian of a right to custody or visitation encompasses a defendant who takes or entices away a child who is under the age of eighteen when the defendant acted maliciously to deprive the right to custody of a lawful custodian. See Aug. 3, 2011 Tr. at 91:11-22 (Rees, Carvo). See also Cal.Penal Code § 277; Cal.Penal Code § 278.5 ("Every person who takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation, shall be punished....").
121. Maliciously is defined as when the defendant intentionally does a wrongful act or when he or she acts with the unlawful intent to distribute defraud, annoy, or injure someone else. See Aug. 3, 2011 Tr. at 91:21-92:1 (Carvo). See also People v. Neidinger, 40 Cal.4th 67, 51 Cal.Rptr.3d 45, 146 P.3d 502, 509-10 (2006)("The current section 278.5 requires that the person act `maliciously.' Section 7, subdivision 4, states that this word `import[s] a wish to vex, annoy, or injure another person, or an intent to do a wrongful act....'").
122. It is not a defense to the charge of the California crime of child abduction that the minor consented to go with the defendant. See Aug. 3, 2011 Tr. at 92:2-5 (Rees, Carvo). See also People v. Grever, 211 Cal.App.3d Supp. 1, 259 Cal.Rptr. 469, 472 (1989)("Just as with child stealing, the crime is committed against the parent, not the child; thus, the child's consent is irrelevant.").
123. Carvo believed that he had probable cause for the California crime of child abduction, because Christy and K.Y. had contact through electronic mail transmissions, because K.Y. was under eighteen, and because the cellular telephone evidence showed Christy traveling to Westminster, picking up K.Y., and driving her
124. The crime of sending harmful material to seduce a minor encompasses a defendant who shows or sends harmful material to a minor through electronic mail transmissions or the internet, when the defendant either knew that the person was a minor or failed to use reasonable care to determine the age of the minor, and when the defendant acted to sexually arouse, appeal to, or gratify the lust, passions, or sexual desires of himself or the minor, and with the intent or for the purpose of seducing the minor. See Aug. 3, 2011 Tr. at 92:13-25 (Rees, Carvo). See also Cal.Penal Code § 288.2 (stating that "[e]very person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means," harmful matter, if the person had "the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent, or for the purpose of seducing a minor," is guilty of a "public offense").
125. Material is considered harmful under this statute if it shows or describes sexual conduct in an obviously offensive way, an average person would conclude it lacks serious literary artistic, political, or scientific value for minors, and an average adult person applying contemporary state standards would find that the material appeals to prurient interests. See Aug. 3, 2011 Tr. at 93:1-8 (Carvo). See also Cal.Penal Code § 313 (defining "[h]armful matter" as "matter ... which to the average person, applying contemporary statewide standards, appeals to the prurient interest, and is matter which, taken as a whole, depicts or describes in a patently offensive way sexual conduct and which, taken as a whole, lacks serious literary, artistic, political, or scientific value for minors").
126. Carvo believes that the naked photographs that Christy sent to K.Y. constitute harmful material and that Christy intended to use the material to seduce K.Y., given Christy's and K.Y.'s communications over electronic mail transmissions and that they met on a dating website. See Aug. 3, 2011 Tr. at 93:9-24 (Rees, Carvo).
127. Carvo testified that, in the pictures Christy sent the minor, there is not a sexual act depicted or suggested, but that his genitals are visible. See Aug. 3, 2011 Tr. at 111:2-12 (McMillian, Carvo).
128. K.Y. was not simulating or performing a sexual act in the any of the pictures she sent Christy. See Aug. 3, 2011 Tr. at 112:4-8 (McMillian, Carvo).
129. Carvo does not know the dates that either Christy or the juvenile sent the pictures, or when Christy first acquired knowledge of the juvenile's age. See Aug. 3, 2011 Tr. at 112:9-113:1 (McMillian, Carvo).
130. To register on agematch.com and consensual.com, a person must be eighteen years old. See Aug. 3, 2011 Tr. at 113:2-7 (McMillian, Carvo).
131. During his investigation, Carvo was aware that K.Y. was sending photographs of herself to Christy, and, based on his review of the photographs, K.Y. appears to be fourteen or fifteen years of age; Carvo believes that it would be reasonable to deduce that a person who looked at the image would believe that the image is of a minor. See Aug. 3, 2011 Tr. at 93:25-94:13 (Rees, Carvo).
132. Carvo believed that he had probable cause to believe that Christy had committed
133. The California crime of contacting a minor with intent to commit certain felonies encompasses a defendant who contacts or attempts to contact a minor with the intent to commit a certain felony, which in this case, would be unlawful sex with a minor and unlawful oral copulation with a minor, when the defendant knew or reasonably should have known that the person was a minor. See Aug. 3, 2011 Tr. at 94:21-95:6 (Rees, Carvo). See also Cal.Penal Code § 288.3(a) (stating that "[e]very person who contacts or communicates with a minor, or attempts to contact or communicate with a minor, who knows or reasonably should know that the person is a minor, with intent to commit an offense" specified in the statute "involving the minor shall be punished by imprisonment in the state prison for the term prescribed for an attempt to commit the intended offense").
134. Carvo believes that the pictures K.Y. sent suggest she was a minor. See Aug. 3, 2011 Tr. at 95:8-10 (Rees, Carvo).
135. Under this statute, contact or communication includes direct or indirect contact or communication, personally, through electronic mail, through the internet, or through the telephone. See Aug. 3, 2011 Tr. at 95:11-15 (Rees, Carvo). See also Cal.Penal Code § 288.3(b) (defining "contacts or communicates with" as including "direct and indirect contact or communication that may be achieved personally or by use of an agent or agency, any print medium, any postal service, a common carrier or communication common carrier, any electronic communications system, or any telecommunications, wire, computer, or radio communications device or system").
136. Based on his investigation, Carvo was aware that K.Y. and Christy communicated through the internet, through electronic mail transmissions, and through the telephone. See Aug. 3, 2011 Tr. at 95:16-21 (Rees, Carvo).
137. Carvo believed that he had probable cause for the felonies of unlawful sexual intercourse and oral copulation, because, based on his training and experience investigating similar crimes, when two people exchange naked pictures through electronic mail transmissions and then arrange in-person meeting, the purpose of that meeting is for sexual contact. See Aug. 3, 2011 Tr. at 95:22-96:13 (Rees, Carvo).
138. The California crime of arranging a meeting with a minor for a lewd purpose encompasses a defendant who is motivated by an unnatural or abnormal sexual interest in children, arranging a meeting with a minor or a person that he or she believes to be a minor, when, at the meeting, the defendant intended to either expose his genitals or pubic area or to have the minor expose her genitals or pubic area or engage in lewd or lascivious behavior. See Aug. 3, 2011 Tr. at 96:17-97:2 (Rees, Carvo). See also Cal.Penal Code § 288.4(a) (stating that "[e]very person who, motivated by an unnatural or abnormal sexual interest in children, arranges a meeting with a minor or a person he or she believes to be a minor," for purposes of "exposing his or her genitals or pubic or rectal area, having the child expose his or her genitals or pubic or rectal area, or engaging in
139. Lewd or lascivious behavior covers any touching of a person with the intent to sexually arouse the person or the other person. See Aug. 3, 2011 Tr. at 97:3-12 (Rees, Carvo). See People v. Carpenter, 137 Cal.App.2d 792, 291 P.2d 189, 190 (1955)("[H]e evolved the theory that... there was a distinction between the `private parts' of the little girl and the `sexual parts'.... The argument is specious since section 288 relates to acts committed upon any part of the body of the child.").
140. Carvo believed that he had probable cause for this crime, because, based on his training and experience in investigating similar crimes, when an adult and minor exchange nude photographs with each other and then arrange a meeting in real life, it is likely that the meeting is to enable sexual contact between the two. See Aug. 3, 2011 Tr. at 97:13-20 (Rees, Carvo).
141. The California crime of attending a meeting with a minor for lewd purposes encompasses a situation where a person arranges a meeting with a minor or a person that they believe to be a minor, when the person was motivated to arrange the meeting by unnatural or abnormal sexual interest in children, when the person had a specific intent to expose his or her genitals or pubic or rectal area or have the child expose his or her genitals or pubic or rectal area, and when the person went to the arranged meeting place at or about the arranged time. See Aug. 3, 2011 Tr. at 98:10-21 (Rees, Carvo). See also Cal.Penal Code § 288.4(b) ("Every person described in paragraph (1) of subdivision (a) [—arranging a meeting with a minor for lewd purposes—] who goes to the arranged meeting place at or about the arranged time, shall be punished....").
142. Carvo believed he had probable cause for this particular crime, because the information from the cellular telephone towers showed that Christy used his cell phone in the Westminster area on the morning K.Y. disappeared, and because, based on his training and experience in investigating similar crimes, when an adult and minor exchange nude photographs with each other and then arrange a meeting in real life, it is likely that the meeting is to enable sexual contact between the two. See Aug. 3, 2011 Tr. at 98:22-99:17 (Rees, Carvo).
143. The California crime of annoying or molesting a child encompasses a case in which a defendant annoyed or molested a child under eighteen years of age and a defendant who, motivated by unnatural or abnormal sexual interest in child under eighteen years of age, engages in conduct which, if directed at a child, would violate this statute. See Aug. 3, 2011 Tr. at 99:18-100:2 (Rees, Carvo). See also Cal.Penal Code § 647.6(a) ("Every person who annoys or molests any child under 18 years of age shall be punished by a fine not exceeding five thousand dollars ($5,000), by imprisonment in a county jail not exceeding one year, or by both the fine and imprisonment."), Cal.Penal Code § 647.6(b) ("Every person who, motivated by an unnatural or abnormal sexual interest in children, engages in conduct with an adult whom he or she believes to be a child under 18 years ..., which conduct, if directed toward a child ... would be a violation of this section, shall be punished....").
144. A child does not need to be touched for a violation of this statute to occur. See Aug. 3, 2011 Tr. at 1003-5 (Rees, Carvo). See also United States v. Pallares-Galan, 359 F.3d 1088, 1101 (9th Cir. 2004)("[N]o actual contact need be
145. Carvo believed that he had probable cause for this crime, because Christy sent naked pictures to K.Y. See Aug. 3, 2011 Tr. at 100:9-12 (Rees, Carvo).
146. The California crime of unlawful sexual intercourse with a minor more than three years younger than the defendant encompasses defendants who have sexual intercourse with another person, when the defendant and the other person were not married to each other, and when, at the time of intercourse, the other person was under the age of eighteen and more than three years younger than the defendant. See Aug. 3, 2011 Tr. at 100:13-21 (Rees, Carvo). See also Cal.Penal Code § 261.5 (stating that "[u]nlawful sexual intercourse is an act of sexual intercourse accomplished with a person who is not the spouse of the perpetrator, if the person is a minor," that a minor "is a person under the age of 18 years," and stating that "[a]ny person who engages in an act of unlawful sexual intercourse with a minor who is more than three years younger than the perpetrator is guilty of either a misdemeanor or a felony, and shall be punished").
147. It is not a defense that the minor may have consented to sexual intercourse; the age of consent in California is eighteen. See Aug. 3, 2011 Tr. at 100:22-101:1 (Rees, Carvo). See also Cal.Penal Code § 261.5; People v. Soto, 119 Cal.Rptr.3d 775, 245 P.3d at 422 n. 11.
148. Carvo believed that he had probable cause for this crime, because Christy and K.Y. exchanged naked pictures through electronic mail transmissions over the internet and then arranged a meeting in the middle of the night for K.Y. to run away with Christy. See Aug. 3, 2011 Tr. at 101:2-9 (Rees, Carvo).
149. The California crime of oral copulation with a person under the age of eighteen encompasses a defendant who participates in an act of oral copulation with another person who was under the age of eighteen when the act was committed. See Aug. 3, 2011 Tr. at 101:10-16 (Rees, Carvo). See also Cal.Penal Code § 288a (stating that "any person who participates in an act of oral copulation with another person who is under 18 years of age shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year").
150. It is not a defense that the minor may have consented to the act. See Aug. 3, 2011 Tr. at 101:17-19 (Rees, Carvo). See also People v. Hillhouse, 109 Cal.App.4th 1612, 1 Cal.Rptr.3d 261, 267 (2003)(stating that the concept of consent is irrelevant to the determination whether the statute criminalizing oral copulation with a minor has been violated).
151. Carvo believed that he had probable cause for this crime, because, based on his interviews with child victims and subjects arrested for similar conduct, oral copulation occurs in almost every case between a child and an adult. See Aug. 3, 2011 Tr. at 101:20-102:4 (Rees, Carvo).
152. The California crime of using a minor in creating pornography encompasses a person who, with knowledge that a person is a minor under eighteen years of age or while in possession of facts on the basis of which he or she should reasonably know that the person is a minor under eighteen years of age, knowingly promotes, employs, uses, persuades, induces, or coerces the minor to engage in or assist
153. Carvo believed that he had probable cause for this crime, because, based on his training and experience, it is more likely than not Christy attempted to get K.Y. to take pictures of herself completely naked and it is more likely than not that Christy has engaged in this conduct with other minors and has asked other minors to take pictures of themselves naked. See Aug. 3, 2011 Tr. at 102:24-103:11 (Rees, Carvo).
154. The California crime of possession of child pornography encompasses possession of any image, whether it is a picture or a video, of a minor under the age of eighteen engaged in sexual conduct. See Aug. 3, 2011 Tr. at 103:21-104:4 (Rees, Carvo). See also Cal.Penal Code § 311.11 ("Every person who knowingly possesses or controls any matter ... the production of which involves ... use of a person under the age of 18 years, knowing that the matter depicts a person under the age of 18 years personally engaging in or simulating sexual conduct ... is guilty of a felony....").
155. Carvo believed that he had probable cause for this crime, because, based on his training and experience, when a defendant sends naked pictures of himself to a minor and then solicits similar pictures from the minor, it is more likely than not the defendant will possess child pornography in his home in his computer. See Aug. 3, 2011 Tr. at 104:5-15 (Rees, Carvo).
156. Based on his belief that he had probable cause for these crimes, Carvo would have sought to search Christy's vehicle, his cellular telephone, his residence, his computers, any digital media that could store pictures, evidence of contact between Christy and K.Y., evidence that K.Y. was in Christy's residence, and DNA evidence from Christy and K.Y. See Aug. 3, 2011 Tr. at 104:21-105:10 (Rees, Carvo).
157. Carvo also believed that he had probable cause for the federal crimes of production of child pornography, 18 U.S.C. § 2251, possession of child pornography, 18 U.S.C. § 2252; coercion or enticement of a minor 18 U.S.C. § 2422 and transportation of a minor for sexual purposes 18 U.S.C. § 2423. See Aug. 3, 2011 Tr. at 106:4-11 (Rees, Carvo).
158. Carvo believed that he had probable cause for the federal crime of production and/or possession of child pornography, because K.Y. sent Christy an image of her bare breasts, which, although by itself is not child pornography, based on Carvo's training and experience, when an adult man sends naked pictures of himself and solicits naked pictures of a minor, and then arranges a meeting in the middle of the night with the minor, it is more likely than not that he has asked for additional pictures of her, that he will take pictures of her, and that he has solicited pictures from
159. Carvo believed that he had probable cause for the federal crime of enticement or coercion, because of Christy's and K.Y.'s communications through the internet and electronic mail transmissions, because Christy sent K.Y. naked pictures of himself and solicited pictures of K.Y., and because cellular telephone evidence shows that Christy traveled across state lines to bring K.Y. to New Mexico. See Aug. 3, 2011 Tr. at 107:12-21(Rees, Carvo).
160. Carvo believed that he had probable cause for the crime of transportation of a minor for sexual purposes, because, based on his training and experience in similar cases, given the pictures Christy and K.Y. exchanged, and given the cellular telephone evidence showing that Christy traveled to bring K.Y. to New Mexico, it is more likely than not that they engaged in sexual activity that would have been a violation of several felonies in the state of California. See Aug. 3, 2011 Tr. at 107:21-108:8 (Rees, Carvo).
161. Based upon Carvo's belief that he had probable cause for both violations of California state law and violations of federal law, he would "have asked [BCSO] and/or—either one—the FBI to obtain a search warrant for [Christy's] Albuquerque residence, vehicle, computers, cell phones, things of that nature." Aug. 3, 2011 Tr. at 109:6-13 (Rees, Carvo).
162. If the BCSO or Albuquerque FBI were not able to obtain a search warrant for these locations, Carvo would have written a federal search warrant himself and come to the District of New Mexico to seek the warrant with himself as the affiant. See Aug. 3, 2011 Tr. at 109:14-19 (Rees, Carvo).
163. Carvo would have sought a search warrant for Christy's cellular telephone, Christy's vehicle, Christy's residence, Christy's computer, any digital media that had the capability of storing pictures, any evidence of contact between Christy and K.Y., any evidence that K.Y. had been in Christy's residence, and DNA evidence. See Aug. 3, 2011 Tr. at 107:14-108:3 (Rees, Carvo).
164. To acquire a search warrant for California crimes with evidence in New Mexico, Carvo could have written a search warrant affidavit, sent it to a detective in New Mexico, and had the New Mexico detective seek a search warrant incorporating the affidavit. See Aug. 3, 2011 Tr. at 105:11-18 (Rees, Carvo).
165. Carvo believed that he had probable cause based on his investigation, and not on any information he learned from the BCSO or the Albuquerque FBI. See Aug. 3, 2011 Tr. at 110:11-18 (Rees, Carvo).
166. Proctor wrote a supplemental report, finishing the report in December, 2009, or January, 2010, which stated that, after he gained confessions from Christy, Adkins contacted him and informed him that she was under the impression from the United States Attorney's Office that there were insufficient criteria to pursue federal charges against Christy, and that it was decided that the BCSO would take custody of the investigation and that he would be the case agent. See Aug. 3, 2011 Tr. at 124:25-126:15 (McMillian, Proctor).
167. Adkins assisted with the investigation, however, and the BCSO had subsequent meetings with the FBI and the United States Attorney's Office. See Aug. 3, 2011 Tr. at 127:14-22 (Rees, Proctor).
On February 14, 2011, Christy filed his Motion to Suppress Evidence and Statements. See Doc. 41. Christy asked the Court to suppress evidence allegedly illegally obtained from his residence during a warrantless search, followed by a search pursuant to a warrant, as well as his statements obtained as a result of the search. On February 15, 2011, Christy filed his Brief in Support of Motion to Suppress Evidence and Statements. See Doc. 46 ("First Brief"). Christy argued that there were not exigent circumstances to justify the invasion of his home. He argued that, had the deputies not forced entry into his home and searched his home, arrested him, and interviewed him, "none of the material used in the search warrant and affidavit would have been available to establish probable cause for the issuance of the warrant." First Brief at 3. He further argued that, even if the deputies' entry into his home was justified, the search that followed was unreasonable.
On February 28, 2011, the United States filed the United States' Response to Defendant's Motion to Suppress (Docs. 41, 46 and 47). See Doc. 54 ("Response"). The United States asked the Court to deny the Defendant's Motion to Suppress. The United States contended that the officers had a right to lawfully enter Christy's residence under the emergency aid/exigent circumstances exception to the search requirement of the Fourth Amendment to the United States Constitution. The United States further contended that, once inside the residence, the officers did not exceed the Fourth Amendment's limitations. The United States asserted that Christy's subsequent interviews and his recorded incriminating admissions were in accordance with Miranda
Response at 11 n. 4 (internal citation omitted)(emphasis added).
On April 1, 2011, Christy filed the Defendant's Amended Brief in Support of Motion to Suppress Evidence and Statements. See Doc. 66 ("Second Brief"). In
On April 6, 2011, the United States filed the United States' Response to Defendant's Amended Brief in Support of Motion to Suppress (Doc. 66). See Doc. 80. The United States contended that the only new information and/or argument in the Second Brief was that the deputies were wearing tactical gear, a reference to the BCSO exigent circumstance policy, and that the deputies' act of peering into the crack in the window shades was an illegal search. The United States reiterated its argument that the officers had a right to enter the resident under the emergency aid/exigent circumstances exception and its request that the Court deny Christy's motion to suppress. The United States mentioned inevitable discovery three times in its brief. In an introductory paragraph, the United States asserted: "If by chance the Court disagrees and finds the basis of the search warrants defective in any way, the Court should find application of the good-faith or inevitable discovery exceptions to the exclusionary rule." Response to Amended Brief at 9. The United States included the same footnote, with two sentences that mentioned the inevitable-discovery exception, that it had placed in its Response. See Response to Amended Brief at 15 n. 7. At the conclusion of its brief, the United States also included the statement that, "if the Court finds the search warrants were defective for some reason, the evidence need not be suppressed because of the good-faith and inevitable discovery exceptions to the exclusionary rule as articulated in the United States [sic] Response to the Defendant's Motion to Suppress." Response to Amended Brief at 23. The United States' Response, however, mentions the inevitable discovery exception only one once, in a footnote. The section of the Response devoted to why the exclusionary rule does not apply discusses only the good-faith exception to the exclusionary rule.
During the hearings on April 21, 2011, the United States mentioned inevitable discovery once, stating that it "would submit to the Court that if this Court finds, for lack of argument, everything that Mr. McMillian has proposed to this Court to be true, the evidence still would have been discovered under inevitable discovery." Apr. 21, 2011 Tr. at 6:13-17 (Rees).
The United States also solicited testimony regarding probable cause. The United States asked Carvo what he would have done if the BCSO had conducted a welfare check, but had not found K.Y. See Apr. 21, 2011 Tr. at 91:24-92:3 (Rees, Carvo).
Apr. 21, 2011 Tr. at 92:1-94:18. The United States asked Proctor whether he believes he had probable cause to search for all the items he listed in the search warrants he obtained. See Apr. 21, 2011 Tr. at 200:9-16 (Rees, Proctor). Proctor replied that he believes he had probable cause to search for all the items. See Apr. 21, 2011 Tr. at 200:16 (Proctor). Proctor testified that he reviewed the information that law enforcement officers in California provided to the BCSO, and that, based on that information, he believes he "would have had probable cause to write a search warrant for [Christy]'s house [and Christy's vehicle] if the deputies had not located [Christy] or [K.Y.] that night." Apr. 21, 2011 Tr. at 212:11-19, 213:2-5 (Rees, Proctor). He testified he would have had probable cause, because law enforcement officers "were able to confirm [Christy's] address and his identity and his path of travel. . . . They also had reason to believe that [K.Y.] was having sexual contact of some manner with [Christy], as well." Apr. 21, 2011 212:22-213:1 (Proctor).
On April 22, 2011, the United States mentioned inevitable discovery during a discussion with the Court regarding whether the deputies needed probable cause to enter Christy's residence under the exigent circumstances doctrine.
April 21, 2011 Tr. at 258:16-21 (Rees). The United States argued:
April 22, 2011 Tr. at 267:24-268:12 (Rees).
At the hearing on April 22, 2011, the United States argued that the deputies had exigent circumstances based on the information they received from California in the CAD report. The United States argued that the deputies had exigent circumstances when they pulled their police car up and conceded that, if they did not have exigent circumstances when Littlefield read the CAD Report, Littlefield could not have had exigent circumstances looking in the window.
Apr. 22, 2011 Tr. at 260:3-262:24 (Court, Rees)(emphasis added). It argued that, once Littlefield looked in the window, he saw circumstances that heightened the exigency suggesting child abuse. At the hearing, the United States asserted that exigent circumstances arose from the CAD report itself, and did not rely on the collective-knowledge doctrine.
Apr. 22, 2011 Tr. at 256:11-257:1, 259:5-20 (Court, Rees). See Apr. 22, 2011 Tr. ("MR. McMILLIAN: If I understand the Government's position, they're attributing all knowledge of—THE COURT: No, I don't think so. I don't think they're doing any sort of collective officer theory. . . . They're saying right here, this CAD report gives . . . Littlefield all the exigent circumstances he needs.").
On May 18, 2011, the Court entered a Memorandum Opinion and Order, which granted the Defendant's Motion to Suppress Evidence and Statements, filed February 14, 2011 (Doc. 41). See Doc. 120. The Court found that the BCSO deputies did not have exigent circumstances to enter Christy's residence, because they could not have had an objectively reasonable basis to believe that there was an immediate need to protect K.Y.'s personal safety, because she was, under New Mexico law, able to consent to sexual contact. The Court suppressed Christy's statements to Proctor as fruit of the illegal searches. It also suppressed the evidence that the deputies found when they executed search warrants for Christy's residence, vehicle, person, and Christy's and K.Y.'s cellular
On May 25, 2011, the Court filed an Amended Memorandum Opinion and Order to correct an omission in the order section of its Memorandum Opinion in Order, in which it failed to state that the United States' Motion to Strike Defendant Edward Christy's Motion to Suppress Evidence and Statements (Doc. 41), filed February 14, 2011 (Doc. 45), was denied. See Doc. 127.
On June 9, 2011, the United States filed its Motion to Reconsider. See Doc. 133. The United States argues that the evidence found in Christy's residence, in his vehicle, and on his person, as well as his subsequent statements, inevitably would have been discovered. It also argues that, at the suppression hearing, it mistakenly stated that, when the deputies looked through Christy's residential window, it was clearly a search that required an exception to the warrant requirement. The United States also argues that the Court can and should employ the collective knowledge doctrine for purposes of establishing exigent circumstances in the case.
On July 8, 2011, Christy filed the Defendant's Motion for Leave to File Out of Time Response to United States' Motion to Reconsider Suppression Order and Reopen the Suppression Hearing. See Doc. 148. Christy asserted that his counsel, as of the date of filing, despite diligent effort, did not have time to complete his response.
At the hearing on July 8, 2011, the United States asked the Court to reopen the suppression hearing for further testimony. Counsel for the United States, Charlyn Rees, discussed her involvement in the case:
July 8, 2011 Tr. at 46:24-47:7 (Court, Rees). At the hearing, the United States discussed the inevitability scenario it believes would have occurred.
July 8, 2011 Tr. at 23:15-28:5 (Court, Rees). The United States represented that it did not object to the Court granting Christy's motion for leave to file an out of time response. The United States also represented that it did not have any disagreements with the Court's findings of fact in its Amended Memorandum Opinion and Order. See July 8, 2011 Tr. at 59:14-21 (Court, Rees)("THE COURT: . . . Did you have any disagreements with the findings of fact? MS. REES: . . . [T]here was nothing I recall that [Holland Kastrin or I] saw that was inconsistent with the record."). The United States further represented that it adhered to, and was not asking the Court to reconsider in the motion, the Court's statement in its Amended Memorandum Opinion and Order that, because K.Y. was sixteen and could consent to a sexual relationship with Christy, the reasonable belief that the two were engaged in a sexual relationship was not sufficient to establish an objectively reasonable belief that K.Y. was at risk of being subjected to harmful sexual contact and was thus in physical danger. See July 8, 2011 Tr. at 60:15-19 (Court, Rees)("THE COURT: . . . Is that—Is that a concession you don't disagree with the statement there on page 61 of my opinion? MS. REES: I mean, that is—That I don't disagree with it? Obviously, that is your opinion, and we adhere to that."). The Court scheduled a hearing on August 3,
On July 12, 2011, the Court entered a Memorandum Opinion and Order, granting Christy's motion for leave to file out of time response no later than July 14, 2011. See Doc. 151.
On August 2, 2011, Christy filed his Supplemental Brief in Support of Motion to Suppress Evidence. See Doc. 157. In his brief, Christy argues that the United States cannot meet the burden of showing that the evidence would have been inevitably discovered. Christy also argues that the United States was correct when it stated that the deputies' actions of looking into the window constituted a search. Christy thus argues that the Court should not reconsider its Amended Memorandum Opinion and Order.
At the hearing on August 3, 2011, the United States called four witnesses: (i) Adkins; (ii) McCarthy; (iii) Littlefield; and (iv) Carvo. Christy called Proctor. The United States asked the Court to strike Christy's response, because Christy did not show good cause for failing to comply with the Court's deadline, or, if the Court was not inclined to strike the response, to allow the United States until September 16, 2011 to reply.
At the hearing on August 4, 2011, Christy stated that he elected not to file a response. He stated that he filed a supplemental brief, which did not bring any new issues to the Court's attention. He thus argued that he did not disobey any order of the Court.
In its motion to reconsider, the United States did not articulate under what authority the Court might entertain its motion. It also did not articulate the standard under which the Court should entertain its motion.
The Federal Rules of Criminal Procedure do not expressly recognize a motion to reconsider. See United States v. Rollins, 607 F.3d 500, 502 (7th Cir. 2010)("None of the Rules of Criminal Procedure authorizes a generic motion to reconsider; the criminal rules lack a counterpart to the motions authorized by Fed.R.Civ.P. 50(b), 52(b), or 59, though they do authorize some post-trial motions . . . that have features in common with motions under the civil rules."). In the criminal context, however, courts ordinarily apply the same standards as those used in civil cases. See United States v. Rollins, 607 F.3d at 502 (stating that the Supreme Court of the United States has "concluded that motions to reconsider in criminal prosecutions are proper and will be treated just like motions in civil suits")(citing United States v. Healy, 376 U.S. 75, 84 S.Ct. 553, 11 L.Ed.2d 527 (1964); United States v. Dieter, 429 U.S. 6, 97 S.Ct. 18, 50 L.Ed.2d 8 (1976); United States v. Ibarra, 502 U.S. 1, 112 S.Ct. 4, 116 L.Ed.2d 1 (1991)); United States v. Wilson, No. 08-cr-263-KHV, 2011 WL 1706890, at *1 (D.Colo. May 5, 2011)(stating that, in the context of criminal cases, courts ordinarily apply the same standard for a motion to reconsider as the standard they use in civil cases); United States v. Matlack, No. 09-cr-531-WYD, 2010 WL 2682110, at *1 (D.Colo. July 1, 2010)(stating that other district courts in the Tenth Circuit have relied on the standards for evaluating a motion to reconsider in the civil context when address motions to reconsider in the criminal context); United States v. West, No. 01-40122-01-SAC, 2002 WL 1334870, at *1 (D.Kan. May 9, 2002)("Rarely do parties in criminal proceedings file motions to reconsider rulings on pretrial motions. This court believes that the standards for
It is within the court's discretion to grant or to deny a motion to reconsider. See United States v. Wiseman, 172 F.3d 1196, 1207-08 (10th Cir.1999). "A motion under Rule 59(e) is warranted when: (1) there has been an intervening change in the controlling law; (2) there is newly discovered evidence which was previously unavailable; or (3) it is necessary to correct clear error or prevent manifest injustice." Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir.2000). "Thus, a motion for reconsideration is appropriate where the court has misapprehended the facts, a party's position, or the controlling law." Servants of Paraclete v. Does, 204 F.3d at 1012 (citation omitted). A district court has considerable discretion in ruling on a motion to reconsider. See Phelps v. Hamilton, 122 F.3d 1309, 1324 (10th Cir. 1997). A motion to reconsider is not an opportunity to rehash arguments previously addressed or to advance new arguments that could have been raised in prior briefing. See Servants of the Paraclete v. Does, 204 F.3d at 1012 ("It is not appropriate to revisit issues already addressed or advance arguments that could have been raised in prior briefing." (citation omitted)).
When evidence is obtained in violation of a person's Fourth or Fifth Amendment rights, the government will generally be prohibited from using that evidence in a criminal prosecution of that person. See Sanchez-Llamas v. Oregon, 548 U.S. 331, 332-33, 126 S.Ct. 2669, 165 L.Ed.2d 557 (2006)("[T]he exclusionary rule has been used primarily to deter certain Fourth and Fifth Amendment violations, including, e.g., unconstitutional searches and seizures, and confessions exacted in violation of the right against compelled self-incrimination or due process.")(internal citations omitted); United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974) ("Under this rule, evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure."). The exclusionary rule will apply if the defendant can show, by a preponderance of the evidence, a constitutional violation and a causal nexus between the violation and the evidence sought to be excluded. See United States v. Torres-Castro, 470 F.3d 992, 999 (10th Cir.2006). Once the defendant makes this showing, if the prosecutor still desires to proffer the challenged evidence, the burden shifts to the government to prove that an exception to the exclusionary rule applies. See United States v. Torres-Castro, 470 F.3d at 999.
The exclusionary rule has exceptions. If illegally obtained evidence is somehow purged of the taint of the unconstitutional conduct, it can be admitted. "The Government can establish that a particular item of evidence has been purged of the primary taint by demonstrating that the evidence would have been inevitably discovered, was discovered through independent means, or was so attenuated from the illegality as to dissipate the taint of the unlawful conduct." United States v. Olivares-Rangel, 458 F.3d 1104, 1109 (10th Cir.2006). See United States v. Torres-Castro, 470 F.3d at 999 ("[T]he government may avoid suppression by demonstrating
One exception to the exclusionary rule is the inevitable-discovery doctrine. The doctrine permits courts to admit unconstitutionally obtained evidence "if an independent, lawful police investigation inevitably would have discovered it." United States v. Owens, 782 F.2d 146, 152 (10th Cir.1986). See United States v. Torres-Castro, 470 F.3d at 999. "Inevitable discovery analysis thus requires the court to examine each of the contingencies involved that would have had to have been resolved favorably to the government in order for the evidence to have been discovered legally and to assess the probability of the contingencies having occurred." United States v. Cunningham, 413 F.3d 1199, 1203 (10th Cir.2005). The inevitable-discovery doctrine "applies whenever an independent investigation inevitably would have led to discovery of the evidence, whether or not the investigation was ongoing at the time of the illegal police conduct"; "it is possible for an investigation that begins after the violation to be independent of the illegal investigation." United States v. Larsen, 127 F.3d 984, 986-87 (10th Cir.1997). See United States v. Cunningham, 413 F.3d at 1204 n. 1 (stating that there is no conflict between the rules set forth in United States v. Larsen and United States v. Cunningham). "[A]s long as it can be shown by demonstrated historical facts that an independent and untainted discovery would inevitably have occurred, the evidence will be admissible." United States v. Griffin, 48 F.3d at 1151 (internal citations and quotations omitted).
In United States v. Owens, the Tenth Circuit emphasized the "danger of admitting unlawfully obtained evidence on the strength of some judge's speculation that it would have been discovered legally anyway." 782 F.2d at 152-53. The Tenth Circuit considered whether contraband seized without a warrant could still be admitted under the inevitable-discovery doctrine. Rejecting the government's position that the motel maids' routine cleaning of the defendant's room for the next occupant would have revealed the contraband and that, therefore, discovery of the evidence was inevitable, the Tenth Circuit found:
United States v. Owens, 782 F.2d at 153. "United States v. Owens suggests that
The Court will grant in part and deny in part the United States' motion. The Court reopened the suppression hearing and took more evidence from the parties. The Court finds that the United States did not mistakenly concede that, when Littlefield looked through a crack in the blinds, it was a search, because the conduct constituted a search and an unreasonable one. That there has been an unconstitutional search does not end the inquiry; there is a distinction between the Fourth Amendment analysis of search and seizure and the suppression rule. They are distinct concepts. Cf. United States v. Torres-Castro, 470 F.3d at 999 (stating that, for the exclusionary rule to apply, the defendant must show by a preponderance of the evidence not only a constitutional violation but also a causal nexus between the violation and the evidence sought to be excluded). The Court will apply the collective-knowledge doctrine to its analysis of exigent circumstances and probable cause. The Court finds that exigent circumstances would not have justified the deputies' warrantless entry into Christy's residence. Accordingly, the Court continues to believe that the deputies violated Christy's Fourth Amendment right to be free from warrantless searches and seizures. Nevertheless, the Court will not suppress the evidence, because, the Court will apply the inevitable discovery doctrine, an exception to the suppression rule. After a consideration of the relevant factors, the Court finds that Carvo would have obtained search warrants and discovered the evidence the Court suppressed.
The United States argues that, at the original suppression hearing, it mistakenly conceded that, when Littlefield looked through Christy's residence window, it was clearly a search that required an exception to the warrant requirement. The United States argues that it recently discovered United States v. Cousins, 455 F.3d 1116 (10th Cir.2006), which it asserts indicates that Littlefield was in a lawful area when he looked through the crack in the blinds. Christy argues that the act of looking through a crack in the blinds covering his window was a search. He argues that the facts of United States v. Cousins is distinguishable.
"The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself." United States v. Dunn, 480 U.S. 294, 300, 107 S.Ct. 1134, 94 L.Ed.2d 326 (1987). In Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), the Supreme Court of the United States recognized that the Fourth Amendment protects the curtilage of a house and stated that whether an area is curtilage is determined by factors that bear upon "whether an individual reasonably may expect that an area immediately adjacent to the home will remain private." 466 U.S. at 180, 104 S.Ct. 1735. In United States v. Dunn, the Supreme Court stated that it believed
480 U.S. at 301, 107 S.Ct. 1134. These factors are not a "finely tuned formula," but "are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration—whether the area in question is so intimately tied to the home itself that it should be placed under the home's `umbrella' of Fourth Amendment protection." 480 U.S. at 301, 107 S.Ct. 1134.
In United States v. Cousins, the Tenth Circuit found that the district court did not err in finding that a sideyard was not within the curtilage of the defendants' home. See 455 F.3d at 1122.
455 F.3d at 1118-19. Bryant later returned to the residence, because payments had not been made and someone had tampered with the boots cutting off the electric meter, and as he was leaning against the west wall of the sideyard—where he was able to see into the backyard of the house through an open gate—Bryant saw marijuana plants. See 455 F.3d at 1119. He promptly informed police officers of his observation, and the officers went to the residence, "walked up Defendants' driveway, turned west (away from the front door), and walked north into the sideyard where the electric meter was located." 455 F.3d at 1119. The officers looked through heart-shaped cutouts in the gate and saw the marijuana plants. See id. at 1119. The Tenth Circuit used the factors the Supreme Court articulated in United States v. Dunn to determine whether the area was within the curtilage. See United States v. Cousins, 455 F.3d at 1122 (citing United States v. Dunn, 480 U.S. at 301, 107 S.Ct. 1134). Regarding the first factor—the proximity factor—the Tenth Circuit stated: "The sideyard was immediately adjacent to the house. Thus, the proximity factor suggests this area is curtilage." 455 F.3d at 1122. Regarding the second factor—the enclosure factor—the Tenth Circuit stated:
455 F.3d at 1122. Regarding the third factor—the nature-of-use factor—the Tenth Circuit stated:
455 F.3d at 1122-23. Regarding the fourth factor—shielding from public view—the Tenth Circuit stated:
455 F.3d at 1123-24. The Tenth Circuit thus concluded that the sideyard did not fall within the curtilage of the defendants' home and that the law enforcement presence in the area did not violate the Fourth Amendment. See 455 F.3d at 1124.
At the first suppression hearing on April 21, 2011, Littlefield testified that, when he arrived at Christy's residence, he walked down the driveway, because it appeared to him that the residence's rear entrance was the main entrance or the entrance that was used most, because the leaves were disturbed going down the driveway and the front porch was dark and did not look used. See Apr. 21, 2011 Tr. at 18:4-12 (Kastrin, Littlefield).
The proximity factor weighs in favor of a finding of curtilage. As in United States v. Cousins, where the Tenth Circuit found that this factor suggested the area was curtilage, because the sideyard was immediately adjacent to the house, the area from where Deputy Littlefield looked into the window was adjacent to Christy's residence. The proximity factor thus suggests this area is curtilage. See United States v. Cousins, 455 F.3d at 1122 ("The sideyard was immediately adjacent to the house. Thus, the proximity factor suggests this area is curtilage.").
The enclosure factor weighs against a finding of curtilage. In United States v. Cousins, the Tenth Circuit found that the enclosure factor weighed against a finding of curtilage when, although the sideyard was enclosed on three sides, the unenclosed side was the expected path one would take to get to the sideyard and the path was a paved sidewalk. The area from which Littlefield looked into the window was enclosed on two sides; Christy's residence bordered one side of the area, and a fence bordered the opposite side. There are no boundaries between the area from which Littlefield looked into the window and the driveway. There are also no boundaries between the area from which Littlefield looked into the window and the area leading into Christy's backyard. There are no boundaries because the area is a driveway. Because the area was "only partially enclosed," and because the area is a driveway, the Court finds that this "factor weighs against a finding of curtilage." United States v. Cousins, 455 F.3d at 1122.
The third factor—nature of the use of the area—weighs against a finding of curtilage. The area from which Littlefield looked into the window was a driveway, which was clearly visible from the public street. As the Tenth Circuit has stated, "a driveway abutting and clearly visible from a public [street] is not a suitable setting for intimate activities associated with a home." Rieck v. Jensen, Nos. 10-4110, 10-4119, 2011 WL 2573363, at *5 (10th Cir. June 30, 2011). The nature and use of this area thus weighs against a finding of curtilage. See United States v. Cousins, 455 F.3d at 1123.
The fourth factor—shielding from public view—weighs against a finding of curtilage. Christy did not take steps to limit access to this area. This area was visible from the street and accessible to all persons wishing to enter it. There is no boundary between the area from which Littlefield looked in the window and the public street. Furthermore, the area is a driveway, fully visible from the public street. This fact thus also weighs against a finding of curtilage. See United States v. Cousins, 455 F.3d at 1123; United States v. Hatfield, 333 F.3d 1189, 1194-95 (10th Cir.2003)("Hatfield's driveway was open to the public. . . . The openness and accessibility of a driveway to the public has been an important factor that courts have used to conclude that an owner does not have a reasonable expectation of privacy. . . ." (citations omitted)).
After weighing these factors, the Court finds that the area from which Littlefield looked into the window "did not fall within the curtilage" of Christy's residence. United States v. Cousins, 455 F.3d at 1124. The Court thus concludes that the deputies' "presence in this area did not violate the Fourth Amendment." United States v. Cousins, 455 F.3d at 1124.
Although the deputies' presence in the area from which Littlefield looked into Christy's residence window did not violate the Fourth Amendment, Littlefield's act of peering into a small crack in the blinds
In California v. Ciraolo, the Supreme Court determined whether "aerial observation without a warrant from an altitude of 1,000 feet of a fenced-in backyard within the curtilage of a home" violated the Fourth Amendment. 476 U.S. at 209, 106 S.Ct. 1809. The Supreme Court stated: "That the area is within the curtilage does not itself bar all police observation." 476 U.S. at 213, 106 S.Ct. 1809. "Nor does the mere fact that an individual has taken measures to restrict some views of his activities preclude an officer's observations from a public vantage point where he has a right to be and which renders the activities clearly visible." 476 U.S. at 213, 106 S.Ct. 1809 (citing United States v. Knotts, 460 U.S. 276, 282, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983)). "What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection." California v. Ciraolo, 476 U.S. at 213, 106 S.Ct. 1809. The Supreme Court noted that the officers' observations "took place within public navigable airspace . . . in a physically nonintrusive manner; from this point they were able to observe plants readily discernible to the naked eye as marijuana." 476 U.S. at 213, 106 S.Ct. 1809. "Any member of the public flying in this airspace who glanced down could have seen everything that these officers observed. On this record, we . . . conclude that respondent's expectation that his garden was protected from such observation is unreasonable and is not an expectation that society is prepared to honor." 476 U.S. at 213-14, 106 S.Ct. 1809.
In Reeves v. Churchich, 484 F.3d 1244 (10th Cir.2007), the Tenth Circuit addressed whether an officers insertion of his rifle into the bedroom window of a residence was an unlawful search. See 484 F.3d at 1253. The Tenth Circuit found that the Reeves did not have a constitutionally protected reasonable expectation of privacy in the duplex's front yard where the officer was standing. See 484 F.3d at 1254. The Tenth Circuit thus found that the officer's entry into the yard did not violate the Fourth Amendment. See 484 F.3d at 1255. The Tenth Circuit stated: "Consequently, Churchich's mere visual observation of objects or people inside the Reeves' apartment through Alicia's bedroom window from the front yard was not a search under the Fourth Amendment." 484 F.3d at 1255. The Tenth Circuit noted: "The fact Alicia's window contained bars covered in foliage does not detract from this conclusion." 484 F.3d at 1255 n. 20 ("[T]he mere fact that an individual has taken measures to restrict some views of his activities [does not] preclude an officer's observations from a public vantage point where he has a right to be and which
Professor Emeritus Wayne R. LaFave has discussed whether a law enforcement officer's actions of looking into or of listening for sounds in a residence constitute a search. See 1 Search & Seizure § 2.3 (4th ed. 2004).
W. LaFave, supra § 2.3 (footnotes omitted).
The United States argues that, although it was not previously clear whether collective
In his brief, Christy argues that there were no exigent circumstances and, thus, the collective-knowledge theory is irrelevant. At the hearing on July 8, 2011, Christy asserted that the collective-knowledge doctrine does not deal with "a kind of ESP where every officer knows what every other officer knows. It deals rather in a very limited fashion, with the situation where there's been a [BOLO—Be On the Lookout] issued." Transcript of Hearing at 73:18-22 (taken July 8, 2011)(McMillian).
Under the collective-knowledge doctrine—also called the "fellow officer rule"—the knowledge of one officer supporting a search or seizure may be imputed to other law enforcement officers acting in conjunction with the knowledgeable officer. See United States v. Hensley, 469 U.S. 221, 232-33, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985); United States v. Wilkinson, 633 F.3d 938, 941 (10th Cir.2011). The collective-knowledge doctrine stems from the holding of the Supreme Court in United States v. Hensley. In United States v. Hensley, officers from a Kentucky police department stopped a defendant in reliance on a flyer issued by an Ohio police department indicating that the defendant was wanted for investigation of an aggravated battery. See 469 U.S. at 224-25, 105 S.Ct. 675. The trial court denied the defendant's motion to suppress evidence seized from his car after the stop. See 469 U.S. at 225, 105 S.Ct. 675. The appellate court reversed, finding that, "[b]ecause the Covington police were familiar only with the St. Bernard flyer, and not with the specific information which led the St. Bernard police to issue the flyer, . . . they lacked a reasonable suspicion sufficient to justify an investigative stop." 469 U.S. at 225, 105 S.Ct. 675. The Supreme Court reversed the court of appeals, concluding that, "if a flyer or bulletin has been issued on the basis of articulable facts supporting a reasonable suspicion that the wanted person has committed an offense, then reliance on that flyer or bulletin justifies a stop to check identification." 469 U.S. at 232, 105 S.Ct. 675.
Assuming the police make a Terry stop in objective reliance on a flyer or bulletin,
469 U.S. at 233, 105 S.Ct. 675.
The collective knowledge doctrine "can be conceptualized using two categories: `horizontal' collective knowledge and `vertical' collective knowledge." United States v. Chavez, 534 F.3d 1338, 1345 (10th Cir. 2008). "The first category subsumes situations where a number of individual law
The second category subsumes situations "where one officer has probable cause and instructs another officer to act, but does not communicate the corpus of information known to the first officer that would justify the action." United States v. Chavez, 534 F.3d at 1345. In these situations, the relevant inquiry is whether the officer who requested that other law enforcement officer to conduct a search or make a seizure had a sufficient legal basis to make the request. See United States v. Rodriguez-Rodriguez, 550 F.3d 1223, 1227 (10th Cir.2008)("When law enforcement officials rely on a bulletin or alert to conduct a stop or make an arrest, the relevant inquiry is whether the officer who issued the alert—rather than the officer who conducted the challenged action—had the requisite level of suspicion."). The first and second categories are not mutually exclusive; for example, "the officer who has probable cause may possess that information as a result of communication from other officers." United States v. Chavez, 534 F.3d at 1345 n. 12.
While the collective-knowledge doctrine is most commonly applied to impute reasonable suspicion or probable cause to other officers, see, e.g., United States v. Chavez, 534 F.3d at 1345-46, several courts and judges however stated or suggested that it also can be used to impute knowledge of exigent circumstances, see, e.g., United States v. Russell, 436 F.3d 1086, 1094-95 (9th Cir.2006)(Thomas, J., concurring in part and dissenting in part)("We analyze the `reasonable grounds to believe that there is an emergency at hand,' on an objective basis, taking into consideration the collective knowledge of the officers at the time." (citing United States v. Sutton, 794 F.2d 1415, 1426 (9th Cir.1986))); Anthony v. City of New York, 339 F.3d 129, 137 (2d Cir.2003)(stating that, because "the record before us shows that [the officers] knew the substance of the 911 call when they responded to Wright's apartment, this case does not raise any issues regarding the scope of the `collective knowledge'
The Court will apply the collective-knowledge doctrine in its determination whether exigent circumstances existed and whether there was sufficient probable cause to obtain a warrant. The United States sets forth both arguments in support of its contention that the evidence found in Christy's residence, vehicle, on his person, and his subsequent statements would inevitably have been discovered. The parties have not directed the Court's attention to, and the Court has not found, cases in which courts have applied the collective-knowledge doctrine in their inevitable-discovery analysis. Although the Court is not aware of authority applying the collective-knowledge doctrine in inevitable discovery analysis, courts apply the collective-knowledge doctrine to impute reasonable suspicion or probable cause to other officers, see United States v. Chavez, 534 F.3d at 1345-46, and, in its inevitable-discovery analysis, the Court must determine whether, excluding the information the deputies learned after they looked into and subsequently entered Christy's residence, the deputies had sufficient probable cause to get warrants for Christy's residence, vehicle, and person. Because the Court must make a probable cause determination, it will apply the collective knowledge doctrine. It seems that the more sound approach is to employ the collective-knowledge doctrine in its determination of probable cause as it would in any other determination of probable cause, and perhaps consider the fact of collective knowledge as a factor in determining the inevitability of discovery; the number of people who knew only bits and pieces of information may, depending on the circumstances, counsel for or against inevitability.
Although the parties have not directed the Court's attention to, and the Court has not found, cases which discuss, in depth, whether the collective-knowledge doctrine can be used to impute knowledge of exigent circumstances, the only authority which the Court has found has suggested that the collective knowledge doctrine can be used. See United States v. Russell, 436 F.3d at 1094-95; Anthony v. City of New York, 339 F.3d at 137; United States v. Pelletier, 2005 WL 1800084, at *12 n. 17. Application of the collective knowledge doctrine to impute knowledge of exigent circumstances is consistent with the Supreme Court's holding in United States v. Hensley. In United States v. Hensley, the Supreme Court held: "[I]f a flyer or bulletin has been issued on the basis of articulable facts supporting a reasonable suspicion that the wanted person has committed an offense, then reliance on that flyer or bulletin justifies a stop to check identification . . . ." 469 U.S. at 232, 105 S.Ct. 675. The Supreme Court recognized that "effective law enforcement cannot be conducted unless police officers can act on directions and information transmitted by one officer to another and that officers, who must
The United States argues that the evidence found in Christy's home, in his vehicle, in his and K.Y.'s cellular telephones, and on Christy's person, and that Christy's statements, inevitably would have been discovered. Christy argues that the United States cannot meet its burden of showing that the evidence in question would have been inevitably discovered.
"The inevitable discovery doctrine provides an exception to the exclusionary rule, and permits evidence to be admitted "if an independent, lawful police investigation inevitably would have discovered it.'" United States v. Cunningham, 413 F.3d at 1203 (quoting United States v. Owens, 782 F.2d at 152; citing Nix v. Williams, 467 U.S. at 444, 448, 104 S.Ct. 2501; United States v. Romero, 692 F.2d at 704). "The government possesses the burden of proving by a preponderance of the evidence that the evidence at issue would have been discovered without the Fourth Amendment violation." United States v. Cunningham, 413 F.3d at 1203 (citation omitted).
The United States argues that an entry in the CAD Report at 20:06—over an hour after the deputies made forced entry—which reads that a California detective informed BCSO that K.Y. was suicidal, off medication and depressed—would have given the deputies exigent circumstances to enter Christy's residence and inevitably would have led to the discovery of the same evidentiary items that were later seized pursuant to the search warrants. Christy argues that there were no exigent circumstances justifying warrantless entry and search of his residence. He argues that there is nothing in the record to suggest the reliability of the information that K.Y.'s parents relayed to McCarthy and McCormick regarding her psychological
In general, law enforcement officers must obtain a warrant to enter a person's home without the person's consent. See Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). Nonetheless, the Tenth Circuit has applied the inevitable discovery doctrine in cases involving violations of the Fourth Amendment where "legal doctrines providing exceptions to the warrant requirement would have inevitably led to the discovery of the evidence." United States v. Souza, 223 F.3d 1197, 1203 (10th Cir. 2000). One exception to the warrant requirement is the emergency aid doctrine, which allows law enforcement officers to enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. See United States v. Najar, 451 F.3d 710, 718 (10th Cir.2006)(emphasis added). In such emergency-aid situations, the Tenth Circuit employs a two-pronged test to determine whether emergency circumstances justify a warrantless entry into a home, which examines: "whether (1) the officers have an objectively reasonable basis to believe there is an immediate need to protect the lives or safety of themselves or others, and (2) the manner and scope of the search is reasonable." United States v. Najar, 451 F.3d at 717-18. A court is "guided by the realities of the situation presented by the record," and should consider the facts from the viewpoint of "prudent, cautious, and trained officers." United States v. Porter, 594 F.3d 1251, 1258 (10th Cir.2010) (citation omitted). "Reasonable belief does not require absolute certainty; the standard is more lenient than the probable cause standard." United States v. Porter, 594 F.3d at 1258 (citation omitted). "Officers do not need ironclad proof of `a likely serious, life-threatening' injury to invoke the emergency aid exception." United States v. Porter, 594 F.3d at 1258 (citation omitted). A court must also, however, remember that officers cannot create their own exigent circumstances to justify a warrantless entry. See United States v. Flowers, 336 F.3d 1222, 1230 (10th Cir.2003). In the limited circumstances where the risk of danger to the officers or others gives rise to the exigent circumstance, the court does not require a separate showing of probable cause. See United States v. Najar, 451 F.3d at 718.
In United States v. Shively, 9 Fed.Appx. 884 (10th Cir.2001), the Tenth Circuit affirmed the district court's denial of the defendant's motion to suppress. See 9 Fed.Appx. at 886. The defendant had telephoned his son and told him, in slurred speech, that he had ingested a large quantity of drugs in an attempt to kill himself. See 9 Fed.Appx. at 885. The son reported the telephone call to his mother, who called the police. See 9 Fed.Appx. at 885. Police officers were dispatched to the defendant's resident to check on his welfare. See 9 Fed.Appx. at 885. When the officers arrived at the defendant's residence, they knocked on the door and yelled "in an attempt to contact anyone inside." Id. at 885. The officers "checked all of the doors and windows and found them all to be locked." Id. at 885. The officers could not see inside the home through any of the residence's windows. See id. at 885. Two cars were parked outside the residence, both of which were registered to the defendant. See 9 Fed.Appx. at 885. The officers also called the defendant's home and cellular telephone, but did not reach the defendant. See 9 Fed.Appx. at 885. "The officers then contacted [d]efendant's uncle who indicated that if [d]efendant's
9 Fed.Appx. at 885. The defendant was transported to a hospital for a mental evaluation, where he allegedly gave an officer consent to search his home. See 9 Fed.Appx. at 885-86. The officer informed other officers who were still present at the defendant's residence that the defendant gave consent, and the officers entered the home and began securing the firearms; they also found marijuana and drug paraphernalia. See 9 Fed.Appx. at 886. The officers then exited the residence and obtained a search warrant. See 9 Fed.Appx. at 886. In addressing the defendant's motion to suppress evidence, in which the defendant argued that the officers' forced entry, protective sweep and consent search violated his Fourth Amendment rights, the district court found that "the first entry . . . was justified by exigent circumstances." 9 Fed.Appx. at 886. "Those circumstances include Ms. Shively's indication that Defendant was suicidal, Defendant's failure to respond to the officers' efforts to contact him inside the home and the presence of Defendant's vehicles indicating that he was likely inside." 9 Fed.Appx. at 886. The Tenth Circuit "conclude[d] the district court did not err" and affirmed the district court's decision without written analysis. 9 Fed.Appx. at 886-87.
In Cloaninger ex rel. Estate of Cloaninger v. McDevitt, 555 F.3d 324 (4th Cir. 2009), the United States Court of Appeals for the Fourth Circuit held that exigent circumstances permitted officers to seize an individual from his home without a warrant. See 555 F.3d at 334. The individual began to feel nauseous and flighty, and attempted to call his doctor at the Veterans Administration ("VA"). Id. at 328. He did not reach his doctor, but spoke to an unidentified female. See 555 F.3d at 328. "A police dispatcher subsequently contacted Burke County Deputies Steven Parlier and Yongla `Joe' Lo to report that Cloaninger had threatened suicide and to request that they conduct a welfare check at
555 F.3d at 334.
In Ziegler v. Aukerman, 512 F.3d 777 (6th Cir.2008), the United States Court of Appeals for the Sixth Circuit found that the officer "acted reasonably in taking Mrs. Ziegler into custody at her home without waiting for a warrant." 512 F.3d at 786. The Sixth Circuit stated:
512 F.3d at 985-86 (footnote omitted).
The United States argues that exigent circumstances would have justified entry
Aug. 3, 2011 Tr. at 51:7-13 (McCarthy). McCarthy was also concerned that K.Y. was no longer on her medication. See Aug. 3, 2011 Tr. at 51:13-15 (Kastrin, McCarthy). McCarthy believed that the circumstances presented an emergency situation, because there was evidence that K.Y. posed an active suicide risk, because K.Y. was off her medications and was possibly with an adult male in another state. See Aug. 3, 2011 Tr. at 53:1-7 (Kastrin, McCarthy). McCarthy believed that K.Y. posed a risk of harm to herself and that the adult male posed a risk of harm to K.Y., because K.Y. could not consent to sexual activity with the adult male given that the age of consent in California is eighteen. See Aug. 3, 2011 Tr. at 53:8-12 (Kastrin, McCarthy). Although K.Y. wrote a runaway note, in which she stated that she was safe and that she would call later, these statements did not allay McCarthy's worries that the situation presented an emergency. See Aug. 3, 2011 Tr. at 65:14-23 (Kastrin, McCarthy). McCarthy contacted the BCSO and asked BCSO to do a welfare check. See Aug. 3, 2011 Tr. at 53:13-18 (Kastrin, McCarthy). In McCarthy's initial call to the BCSO, she did not mention anything about K.Y.'s mental health. See id. at 54:1-5 (Kastrin, McCarthy). She called the BCSO back approximately an hour later and told them about K.Y.'s mental health issues—that she was depressed, had attempted suicide in the past, and was off her medications.
Exigent circumstances would not have justified warrantless entry into Christy's residence. For emergency circumstances to justify a warrantless entry into a home, "the officers [must] have [had] an objectively reasonable basis to believe there [wa]s an immediate need to protect the lives or safety of themselves or others." United States v. Najar, 451 F.3d at 717-18 (emphasis added). The cases that have allowed a warrantless entry because of the risk of suicide have involved a more pronounced and immediate risk of suicide than that protected here. Unlike United States v. Shively, where the Tenth Circuit affirmed the district court's conclusion that the first entry into the residence was justified by exigent circumstances when the defendant's ex-wife informed officers that the defendant called their son and told him, "in slurred speech, that he had ingested a large quantity of drugs in an attempt to kill himself," 9 Fed.Appx. at 886, the law enforcement officers did not have information that K.Y. was attempting suicide. They knew only that K.Y. had previously attempted suicide, the last occasion being in March 2009, approximately seven months before the deputies were called to do a welfare check. The deputies' knowledge that K.Y. was depressed and off her medication, and that she had previously attempted suicide, is not an objectively reasonable basis that there was an immediate need to protect K.Y. from herself.
It is important to recognize that there is not a suicide exception to the warrant requirement; there is an exigent circumstances exception. The self harm must still be exigent. A sizeable segment of the United States population has attempted suicide, see Suicide in the U.S.: Statistics and Prevention, National Institute of Mental Health, http://www.nimh.nih.gov/health/ publications/suicide-in-the-us-statistics-and-prevention/index.shtml# CDC-Web-Tool (last visited August 23, 2011)(stating that, in 2007, suicide was the tenth leading cause of death in the United States, that the overall rate was 11.3 suicide deaths per 100,000 people, and that an estimated eleven attempted suicides occur per every suicide death); here, the last attempt was seven months before the deputies were called to do a welfare check. A sizeable percentage of the United States population is also depressed. See Current Depression Among Adults—United States, 2006 and 2008, Morbidity and Mortality Weekly Report, October 1, 2010 Erratum (stating that 9.1% of the population in the United States is depressed); An Estimated 1 in 10 U.S. Adults Report Depression, Centers for Disease Control and Prevention, http:// www.cdc.gov/features/dsdepression/ (last visited August 29, 2011). Also, people go on and off medication. People who struggle with suicide and depression, and are not consistent with their medication, do not give up all rights to Fourth Amendment protection; the government still needs to secure a warrant unless the risk of harm to self is imminent or immediate. Just as a felon might harm again, a felon does not lose all constitutional protection unless the felon is reasonably likely to be placing another in danger of imminent harm. A person susceptible to suicide and depression is not in a materially different position. Moreover, the people who are with people who have attempted suicide and are depressed do not lose all their constitutional rights, too. If the exigent circumstances exception is to have any meaningful limits, the courts still must require an immediate need to protect someone from harm; if there is not an immediate need, the government still needs to get a warrant. Individual need is on a spectrum, and the Court does not want to unduly chill police from protecting people who are suicidal. On this spectrum, however, the risk of harm was not imminent or immediate.
The United States argues that the Court should apply the inevitable discovery
Christy argues that the United States cannot meet the burden of showing that the evidence would have been inevitably discovered. He argues that no independent investigation could possibly have existed, because all the officers, deputies, and agents involved were working from the same information and sources, and that courts are not permitted to speculate that at some future time a legal warrant might have been obtained.
"The inevitable discovery doctrine provides an exception to the exclusionary rule, and permits evidence to be admitted `if an independent, lawful police investigation inevitably would have discovered it." United States v. Cunningham, 413 F.3d at 1203 (quoting United States v. Owens, 782 F.2d at 152; citing Nix v. Williams, 467 U.S. at 444, 448, 104 S.Ct. 2501; United States v. Romero, 692 F.2d at 704). "The government possesses the burden of proving by a preponderance of the evidence that the evidence at issue would have been discovered without the Fourth Amendment violation." United States v. Cunningham, 413 F.3d at 1203 (citation omitted). The Tenth Circuit has stated that "the inevitable discovery exception applies whenever an independent investigation inevitably would have led to discovery of the evidence, whether or not the investigation was ongoing at the time of the illegal police conduct." United States v. Larsen, 127 F.3d at 986. The only requirement is "that the investigation that inevitably would have led to the evidence be independent of the constitutional violation." United States v. Larsen, 127 F.3d at 987 (citations omitted). Although "[t]he fact that another investigation was already underway when a constitutional violation occurred is strong proof that it was independent of the illegal investigation," it is "possible for an investigation that begins after the violation to be independent of the illegal investigation." United States v. Larsen, 127 F.3d at 987 (citations omitted). In United States v. Souza, the Tenth Circuit "set forth the standard for considering whether the inevitable discovery doctrine applies to a warrantless search," United States v. Cunningham, 413 F.3d at 1203, when "there is no exception to the warrant requirement that could serve as a basis for the inevitable discovery exception," United States v. Souza, 223 F.3d at 1203. The Tenth Circuit stated that "a court may apply the inevitable discovery exception only when it has a high level of confidence that the warrant in fact would have been issued and that the specific evidence in question would have been obtained by lawful means." United States v. Souza, 223 F.3d at 1205. The Tenth Circuit adopted factors that the United States Court of Appeals for the Second Circuit set forth to help courts determine "how likely it is that a warrant would have been issued and that the evidence would have been found pursuant to a warrant:"
223 F.3d at 1204 (citing United States v. Cabassa, 62 F.3d 470, 473-74 & n. 2 (2d Cir.1995)) (internal quotations and citations omitted). The Tenth Circuit has stated that "[t]he extent to which the warrant process has been completed at the time those seeking the warrant learn of the search, and whether a warrant is ultimately obtained, are factors entitled to great importance in determining whether the evidence would have inevitably been discovered pursuant to a warrant." United States v. Souza, 223 F.3d at 1204.
In United States v. Souza, the Tenth Circuit addressed whether the inevitable discovery exception applied. See 223 F.3d at 1203. The Tenth Circuit stated:
223 F.3d at 1204. The Tenth Circuit stated that, in the case before it, the probability was "very high that the evidence would have been discovered pursuant to a search warrant." 223 F.3d at 1205. Regarding the first factor, the Tenth Circuit stated:
223 F.3d at 1205. Regarding the second factor, the Tenth Circuit stated:
223 F.3d at 1205-06. The Tenth Circuit noted that a sergeant eventually obtained a search warrant. See 223 F.3d at 1206. The Tenth Circuit also stated, third, unlike "Cabassa, there is no question . . . concerning the inevitability of discovery of the evidence if the police had obtained a search warrant because the package was secured by the officers and there was no chance that it would not still be there when the warrant actually was issued." 223 F.3d at 1206. The Tenth Circuit thus stated that, although it was
223 F.3d at 1206.
In United States v. Cunningham, the Tenth Circuit "appl[ied] the inevitable discovery doctrine . . . because [it][was] convinced that without Mr. Cunningham's disputed consent, the warrant to search his house would have been issued and the incriminating evidence would have been discovered." 413 F.3d at 1205. The Tenth Circuit found that the case before it squared with United States v. Souza. See 413 F.3d at 1204. The Tenth Circuit, in addressing the first factor—the extent to which the warrant process had been completed at the time those seeking the warrant learn of the search—stated:
413 F.3d at 1204. Regarding the second factor—the strength of the showing of probable cause at the time the search occurred—the Tenth Circuit stated:
413 F.3d at 1204-05. Regarding the third factor—whether a warrant ultimately was obtained, albeit after the illegal entry—the Tenth Circuit stated: "Moreover, the officers ultimately did obtain a warrant, albeit based in part on information retrieved from inside Mr. Cunningham's home." 413 F.3d at 1205. Regarding the fourth factor—evidence that the officers jumped the gun because they lacked confidence in their showing of probable cause and wanted to force the issue by creating a fait accompli—the Tenth Circuit stated:
413 F.3d at 1205 (internal citations omitted). The Tenth Circuit thus applied the inevitable discovery doctrine. See 413 F.3d at 1205.
In United States v. Owens, the Tenth Circuit concluded "that the inevitable discovery exception to the exclusionary rule c[ould not] be invoked because of the highly speculative assumption of `inevitability' that would be required to apply it." 782 F.2d at 153. In United States v. Owens, police arrested the room's occupant, entered the room, and then opened and searched a drawer as well as a closed bag inside that drawer, discovering illegal drugs. See 782 F.2d at 148-49. Although marijuana, white power, and drug paraphernalia were in plain view, and the police had full control over the room, they did not make an attempt to seek a warrant. See 782 F.2d at 149. The Tenth Circuit stated: "Here, the unconstitutional search of the closed bag inside the closed dresser drawer tainted the only police investigation that was ongoing. Clearly these officers were not conducting an independent investigation that inevitably would have uncovered the cocaine." 782 F.2d at 152-53.
In its motion to reconsider, the United States concedes that "there was no attempt by deputies to obtain a warrant prior to making entry" into Christy's residence. Motion to Reconsider at 13. In United States v. Souza, the Tenth Circuit stated that "steps taken to obtain a warrant prior to the unlawful search" is "the prerequisite to a consideration of the inevitable discovery exception in these cases." United States v. Souza, 223 F.3d at 1205. In United States v. Sanders, 43 Fed.Appx. 249 (10th Cir.2002), however, the Tenth Circuit revisited this language:
43 Fed.Appx. at 254 n. 2. The Court thus believes that, under current Tenth Circuit precedent, the inevitable discovery doctrine is applicable in cases where the independent lawful investigation was not ongoing at the time the evidence was found unlawfully. See United States v. Larsen, 127 F.3d at 986 ("We conclude the inevitable discovery exception applies whenever an independent investigation inevitably
After considering the four factors that the Tenth Circuit set forth in United States v. Souza, the Court finds that the deputies would have inevitably discovered the evidence the Court suppressed in its Amended Memorandum Opinion and Order.
The deputies did not take any steps to obtain a warrant before entering Christy's residence. The United States concedes that they did not attempt to obtain a warrant before entering Christy's residence. See Motion to Reconsider at 13 ("[T]here was no attempt by deputies to obtain a warrant prior to making entry . . . . Thus, although the warrant process had not commenced before the initial entry into the Defendant's house, it no doubt would have commenced soon after the deputies verified that Christy lived there . . . ."). This factor thus weighs against applying the inevitable discovery exception.
The Court must also look at the "strength of the showing of probable cause at the time the search occurred." United States v. Cunningham, 413 F.3d at 1204 (citation omitted). At the hearing on July 8, 2011, the Court asked the United States to set forth its best scenario for inevitable discovery. The United States asserted that a federal agent would have obtained a federal warrant based on federal crimes. See July 8, 2011 Tr. at 25:21-26:7 (Rees). Because Adkins was the FBI agent involved with the case, the Court will begin its analysis with her.
The Court finds that Adkins did not have strong probable cause that Christy committed crimes. The search of Christy's residence occurred at 6:42 p.m. See CAD Report at 1. The task force member called Adkins to Christy's residence to assist the BCSO sometime between six and seven. See Aug. 3, 2011 Tr. at 7:12-18 (Rees, Adkins). It is thus possible—based on the record before the Court—that Adkins had no knowledge of the case, and thus no probable cause that Christy committed crimes at the time the search occurred. Assuming that Adkins had some knowledge of the case before the search occurred, however, the Court will address whether Adkins had strong probable cause at the time of the search. Before Adkins got to Christy's residence, she knew that an individual had traveled to California, picked up a minor, and brought her back to New Mexico without her parents' permission. See Aug. 3, 2011 Tr. at 22:16-20 (McMillian, Adkins). At the hearing on August 3, 2011, Adkins testified that she had probable cause, "based upon the evidence [she] learned that particular evening," for "a search warrant for [the federal crimes of] production of child pornography, possession of child pornography, kidnapping, and . . . traveler or the enticement statute." Aug. 3, 2011 Tr. at 14:18-24 (Rees, Adkins). Adkins believes that she would have had probable cause for the federal crimes of production and possession of child pornography, based on Littlefield's "approach and view through the window," and the later "statements made by the victim," from whom Adkins learned that she sent explicit pictures of herself. Aug. 3, 2011 Tr. at 15:1-11 (Rees, Adkins). This information, however, is fruit of illegal searches of Christy's residence. This information thus does not support a showing of probable cause. Adkins testified that she believes that, "in theory," if she spoke to the Westminster Police Department, she would have acquired information that the victim sent explicit images of herself that were consistent with child pornography. Aug. 3, 2011 Tr. at 15:12-19 (Rees, Adkins). The Court does not believe that
Adkins believed that she had probable cause to write a search warrant for the federal crime of enticement or coercion, because she was aware of evidence that K.Y. and Christy used the internet and cellular telephones to communicate, and that Christy traveled across state lines to meet K.Y. and to transport her to Albuquerque. See Aug. 3, 2011 Tr. at 17:7-16 (Rees, Adkins). Before Adkins spoke to Proctor and other BCSO deputies following the search of Christy's residence, however, she knew only that an individual had traveled to California, picked up a minor, and brought her back to New Mexico without her parent's permission. Section 2422 of Title 18 of the United States Code—which codifies the federal crime of coercion and enticement—states: "Whoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate. . . commerce . . . to engage . . . in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so [shall be punished]." 18 U.S.C. § 2422. Because Adkins did not have any information that Christy enticed or coerced K.Y. to travel in interstate commerce to engage in sexual activity for which he could be charged with a criminal offense at the time of the search, Adkins did not have strong probable cause for this crime. Adkins believes that she would have had probable cause for the federal crime of kidnaping, because she was aware of evidence that Christy took K.Y. from her residence in California without her parents' permission. See Aug. 3, 2011 Tr. at 16:13-23 (Rees, Adkins). Section 1201 of Title 18 of the United States Code—which criminalizes kidnaping—states: "Whoever unlawfully seizes, confines, inveigles, decoys, kidnaps, abducts, or carries away and holds for ransom or reward or otherwise any person . . . when . . . the person is willfully transported in interstate . . . commerce. . . shall be punished[.]" 18 U.S.C. § 1201. Christy could not have kidnaped K.Y. if K.Y. consented to traveling to New Mexico with him. See United States v. Toledo, 985 F.2d 1462, 1468 (10th Cir. 1993)("The record contains conflicting information regarding [the minor] Stephanie's consent to accompany Mr. Toledo to California. Consequently, we believe that Mr. Toledo was entitled to an instruction that no federal crime was committed if Stephanie willingly consented to the interstate travel."). Because Adkins did not know the circumstances of the transportation when she arrived on the scene, before she spoke to BCSO deputies after they finished searching Christy's residence, see Aug. 3, 2011 Tr. at 25:17-18 (McMillian, Adkins), Adkins did not have strong probable cause for the federal crime of kidnapping. The Court thus finds that Adkins did not have strong probable cause that Christy committed crimes.
The Court finds that Carvo had strong probable cause that Christy committed crimes. At the time of the search, Carvo believed he had probable cause for the California crime of unlawful sexual intercourse, because Christy and K.Y. exchanged naked pictures through electronic mail transmissions over the internet and then arranged a meeting in the middle of the night for K.Y. to run away with Christy. See Aug. 3, 2011 Tr. at 101:2-9
Cal.Penal Code § 261.5(a), (c). Carvo knew that K.Y. was a minor, that there was a large age difference between the two, and that Christy was an adult man. See Aug. 3, 2011 Tr. at 89:25-90:4 (Rees, Carvo). Carvo knew that Christy and K.Y. exchanged naked pictures through electronic mail transmissions. Because Carvo knew that K.Y. and Christy were exchanging naked pictures, "the belief that there was a sexual relationship or sexual interest between the two was reasonable." Amended Memorandum Opinion and Order at 57. These circumstances are sufficient to form "a reasonable ground for belief of [Christy's] guilt," Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (citation omitted), for the California crime of unlawful sexual intercourse.
18 U.S.C. § 2422. Because Carvo knew that Christy and K.Y. communicated through electronic mail transmissions, that Christy sent K.Y. naked pictures of himself and solicited pictures of K.Y., because evidence showed that Christy traveled across state lines with K.Y., and because Carvo had strong probable cause that Christy committed the California crime of unlawful sexual intercourse, Carvo had "a reasonable ground for belief of [Christy's] guilt," Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (citation omitted), for the federal crime of coercion or enticement. Because Carvo had strong probable cause for the California crime of unlawful sexual intercourse and for the federal crime of enticement or coercion, this factor weighs in favor of application of the inevitable discovery doctrine.
The deputies "ultimately did obtain a warrant, albeit based in part on information retrieved" from Littlefield's actions of peering through a crack in the blinds in Christy's window, and from the deputies' entry into Christy's residence and subsequent interview of Christy. United States v. Cunningham, 413 F.3d at 1205. Although portions of the affidavits supporting the warrants were based on information the Court has found illegally obtained, the affidavits also included information from the California investigation. Although the Tenth Circuit appears to rely on illegally obtained information in its inevitable discovery analysis, the Court does not believe that it can do so. Carvo had strong probable cause that Christy committed California and federal crimes, and Carvo's probable cause was based on his investigation, and not on any information he learned from the BCSO or from the Albuquerque FBI. See Aug. 3, 2011 Tr. at 110:11-18 (Rees, Carvo). Because Carvo had strong probable cause for a California crime and a federal crime, based on information that he learned in his investigation, and not based on information he learned from the BCSO or from the Albuquerque FBI, Carvo would have obtained search warrants that were not based on illegally obtained information. Based upon Carvo's belief that he had probable cause for both violations of California state law and violations of federal law, he would "have asked [BCSO] and/or—either one—the FBI to obtain a search warrant for [Christy's] Albuquerque residence, vehicle, computers, cell phones, things of that nature." Aug. 3, 2011 Tr. at 109:6-13 (Rees, Carvo). If the BCSO or Albuquerque FBI were not
There is "no evidence that the officers `jumped the gun' due to a lack of confidence about probable cause and out of a desire to force the issue." United States v. Cunningham, 413 F.3d at 1205. The record indicates that the search occurred when it did because the deputies believed that they had exigent circumstances to enter Christy's residence. This factor thus weighs in favor of application of the inevitable discovery doctrine.
The Court will apply the inevitable discovery doctrine.
United States v. Souza, 223 F.3d at 1206. After considering the factors that the Tenth Circuit adopted, the Court believes that "the probability is very high that the evidence would have been discovered pursuant to a search warrant." United States v. Souza, 223 F.3d at 1205. The evidence takes this case out of the sphere of speculation and into the sphere in which there is a high probability that Carvo would have obtained the evidence. Carvo had strong probable cause for violations of California state law and federal law, and he would have asked the BCSO or Albuquerque FBI to obtain search warrants. See Aug. 3, 2011 Tr. at 109:1-13 (Rees, Carvo). To acquire search warrants for California crimes with evidence in New Mexico, Carvo could have written search warrant affidavits, sent them to a detective in New Mexico, and had the New Mexico detective seek search warrants incorporating the affidavits. See Aug. 3, 2011 Tr. at 105:11-18 (Rees, Carvo). New Mexico courts can issue warrants for the search and seizure of any "property which has been obtained or is possessed in a manner which constitutes a criminal offense;" any "property designed or intended for use or which is or has been used as the means of committing a criminal offense;" or any "property which would be material evidence in a criminal prosecution." Rule 5-211 NMRA.
This case is unlike the scenario in United States v. Owens, where the Tenth Circuit declined to apply the inevitable discovery doctrine to the search of a motel room. See 782 F.2d at 151-52. In United States v. Owens, police arrested the room's occupant, entered the room, and then opened and searched a drawer as well as a closed bag inside that drawer, discovering illegal drugs. See 782 F.2d at 148-49. Although marijuana, white power, and drug paraphernalia were in plain view, and the police had full control over the room, they did not make an attempt to seek a warrant. See 782 F.2d at 149. Declining to apply the inevitable discovery doctrine, the Tenth Circuit concluded that the illegal searches of the drawer and bag "tainted the only police investigation that was ongoing." 782 F.2d at 152. Thus, there did not exist any prior and independent investigation that would have inevitably led to discovery of the concealed illegal drugs. See id. at 152. The Tenth Circuit concluded that "the inevitable discovery exception to the exclusionary rule cannot be invoked because of the highly speculative assumption of `inevitability' that would be required to apply it." 782 F.2d at 152. Unlike United States v. Owens, there was a prior and independent investigation—an investigation in Westminster California—before BCSO deputies began their investigation. Although the BCSO deputies' action tainted their investigation, it did not taint the investigation of the detectives in California, such as Carvo, who had strong probable cause and would have asked BCSO or the Albuquerque FBI to obtain a warrant, and, who would have sought a warrant himself had BCSO or the FBI not obtained
Because "a proper consideration of the relevant factors convinces [the Court] that the challenged evidence would inevitably have been discovered by independent lawful means," the Court will apply the inevitable discovery doctrine. United States v. Souza, 223 F.3d at 1206.
A warrant may be issued by the court to search for and seize any:
Rule 5-211 NMRA. Rule 5-211 is patterned after rule 41 of the Federal Rules of Criminal Procedure. See Rule 5-211 NMRA committee commentary. Rule 41 states:
Fed.R.Crim.P. 41. This portion of rule 41 appears to be the part of the rule on which rule 5-211 was patterned. The Court notes, however, that rule 41 also states:
Fed.R.Crim.P. 41. This rule places limits on the authority to issuance of warrants, but it appears that the purpose behind the rule is to limit the issuing court so that the court cannot issue a warrant for a person or property located outside of the court's jurisdiction. The rule does not state, however, that an issuing court cannot issue a warrant to search for and seize a person or property located within the district for a crime committed outside of the district, and there does not appear to be a sound reason to read into the rule a limit no present.
There is no New Mexico case law interpreting rule 5-211, but the plain language does not limit New Mexico state court warrants to those based on violations of New Mexico state law. See State ex rel. Klineline v. Blackhurst, 106 N.M. 732, 735, 749 P.2d 1111, 1114 (1988)(stating that s court's central concern, in construing a particular statute, is to determine and give effect to the intent of the legislature, using the plain language of the statute as the primary indicator of its intent).
There is no sound reason to give the language a narrow reading that the plain language does not suggest. Courts in other jurisdictions have held that a court may issue a warrant to seize property located in the issuing state if it constitutes evidence of a crime committed in another jurisdiction. See State v. Heylmun, 147 Ariz. 97, 708 P.2d 778, 780 (Ct.App.Ariz.1985)("Nothing in either [definition in the Arizona statutes regarding search warrants] indicates in any way that jurisdiction to search is limited to crimes committed in Arizona."); State v. Intercontinental, Ltd., 302 Md. 132, 486 A.2d 174, 178 (1985)("[T]he only jurisdictional requirement imposed by § 551(a) is that the property to be seized be located within the territorial jurisdiction of the issuing judge. It is not essential that the crime alleged in the application for the search warrant be committed within the judge's territorial jurisdiction.").
