U.S. v. Bunty

617 F.Supp.2d 359

UNITED STATES of America v. Patrick BUNTY.

Criminal No. 07-641.

United States District Court, E.D. Pennsylvania.

June 10, 2008.

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Michelle T. Rotella, U.S. Attorney's Office, Philadelphia, PA, for United States of America.

Ashish S. Joshi, Demosthenes Lorandos, Lorandos & Associates, Ann Arbor, MI, Burton Rose, Philadelphia, PA, Robert B. Gidding, Law Offices of Robert B. Gidding, Bala Cynwyd, PA, for Patrick Bunty.

MEMORANDUM AND ORDER

KAUFFMAN, District Judge.

On October 11, 2007, a federal grand jury returned a two-count Indictment charging Defendant Patrick Bunty ("Defendant" or "Bunty") with one count of transportation of six images of child pornography, in violation of 18 U.S.C. § 2252(a)(1) (Count One), and one count of possession of six images of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) (Count Two). On February 7, 2008, a two-count Superseding Indictment was issued which increased the number of images of child pornography allegedly transported and possessed from six to twelve.

Now before the Court are: (1) Defendant's Motion to Suppress Evidence Obtained Through Unlawful Searches and Dismiss All Charges Against the Defendant ("Defendant's Motion No. 1"); (2) Defendant's Motion to Quash the Indictment ("Defendant's Motion No. 3"); (3) Defendant's Motion to Dismiss the Case for Spoliation of Evidence ("Defendant's Motion No. 4"); (4) Defendant's Motion to Compel the Government to Produce an Electronic Clone or Digital Copies of the Images Alleged to Be Child Pornography ("Defendant's Motion No. 5"); (5) Defendant's Motion to Request Transcripts of the Grand Jury Proceedings ("Defendant's Motion No. 6"); (6) Defendant's Motion to Prevent the Government from Viewing, Disclosing, or Using the Contents of Privileged Attorney-Client Information ("Defendant's

Motion No. 7"); (7) Defendant's Motion for an Exact Electronic Copy of the Hard Drives Seized from the Defendant ("Defendant's Motion No. 8"); and (8) the Government's Motion to Admit Evidence of Other Crimes under Federal Rules of Evidence 414 and 404(b) (the "Government's Motion").¹

The Court conducted a hearing on these motions on May 22, 2008. At the hearing, the parties informed the Court that they intend to stipulate to the resolution of Defendant's Motions Nos. 5, 7, and 8. Accordingly, the Court will deny without prejudice Defendant's Motions Nos. 5, 7, and 8.² For the reasons that follow, the Court also will deny Defendant's Motions Nos. 1, 3, 4, and 6, as well as the Government's Motion.

I. BACKGROUND

On January 27, 2006, Defendant flew from London's Heathrow airport to Philadelphia, Pennsylvania. At the time, he was employed as a consultant to BearingPoint, Inc. ("BearingPoint") and had been working for BearingPoint's client, Wyeth Europa, in Maidenhead, England for approximately three weeks. Upon his arrival at the Philadelphia airport, he was referred for a secondary inspection after U.S. Customs and Border Protection agents compared the passenger manifest of his flight with National Crime Information Center ("NCIC") databases and determined that he had been arrested in Lancaster County, Pennsylvania on child sexual abuse charges and recently had pled guilty to corrupting the morals of a minor in that case.

During the secondary inspection, federal agents searched Defendant's luggage without his consent. They discovered in his possession two laptop computers, a digital camera, a cell phone that appeared to be capable of taking and storing digital images, and a variety of compact electronic storage devices, including a floppy disk and several compact discs, movie DVDs, and flash drives.³ They also found a letter from Defendant's Lancaster County Probation Officer giving him permission to travel to England and the Probation Officer's business card, which revealed that the Probation Officer was assigned to supervise sex offenders.

The agents looked at the contents of the floppy disk by inserting it into a government-owned computer and opening the six files contained on the disk. Each file contained a digital image the agents believed to constitute child pornography. The agents also attempted to examine the two laptop computers in Defendant's possession. Special Agent Joseph Magilton ("SA Magilton") asked Defendant to enter the passwords on the laptops, and told him that if he refused, the Government would have someone else access their contents. Defendant entered the password on the BearingPoint laptop, and the agents were able to examine its contents. However, he entered an incorrect password on the Wyeth laptop, which locked the laptop and prevented the agents from examining its contents at that time.

While still at the airport, Defendant was questioned by Immigrations and Customs Enforcement ("ICE") agents, including Special Agent Brian Maher ("SA Maher"), and was informed of his Miranda rights. He ultimately was released and allowed to leave the airport without being arrested. However, the ICE agents detained all of his computer equipment capable of taking or storing digital images.⁴ A subsequent forensic examination of one of the detained flash drives revealed the same six images of alleged child pornography that the agents found on the floppy disk during the airport search.

On May 11, 2006, Magistrate Judge David R. Strawbridge issued a search warrant authorizing the search of Defendant's residence. The probable cause basis for the search warrant was the affidavit of SA Maher, who claimed that he had reason to believe that Defendant's residence concealed child pornography. ICE agents conducted a search of Defendant's home on May 17, 2006. The agents seized approximately 26 items, including a personal journal belonging to one of Defendant's sons and an electronic computer folder marked "Lorandos" that allegedly contains privileged attorney-client information. Defendant was indicted on October 11, 2007, and subsequently charged by Superseding Indictment on February 7, 2008.

II. ANALYSIS

A. Defendant's Motion No. 1—Motion to Suppress Evidence Seized During An Unlawful Search and to Dismiss All Charges Against Defendant

Defendant argues that his Fourth Amendment rights were violated when his computer equipment was searched at the Philadelphia airport on January 27, 2006 because the federal agents did not have reasonable suspicion to conduct the search. As a consequence, he contends that all evidence seized as a result of the airport search should be suppressed. He further argues that since the search warrant for the May 11, 2006 search of his home was based on the evidence seized at the airport, all items seized as a result of the search of his home also must be suppressed. The Government responds that the search of Defendant's computer equipment at the border was a routine search, and therefore, did not require reasonable suspicion. However, even if the search was non-routine, the Government argues that the agents had reasonable suspicion.⁵

"[T]he Fourth Amendment's balance of reasonableness is qualitatively different at the international border than in the interior. Routine searches of the persons and effects of entrants are not subject to any requirement of reasonable suspicion, probable cause, or warrant." United States v. Montoya de Hernandez, 473 U.S. 531, 538, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985). As the Montoya de Hernandez Court noted, not only is the expectation of privacy less at the border, "the Fourth Amendment balance between the interests of the Government and the privacy right of the individual is also struck much more favorably to the Government at the border." Id. at 539-40, 105 S.Ct. 3304. Although the Supreme Court has not addressed specifically the search of computer equipment at the border, other federal courts have agreed that such searches do not require reasonable suspicion. See, e.g., United States v. Linarez-Delgado, 259 Fed.Appx. 506, 508 (3d Cir.2007) ("Customs Officers exercise broad authority to conduct routine searches and seizures for which the Fourth Amendment does not require a warrant, consent, or reasonable suspicion ... Data storage media and electronic equipment, such as films, computer devices, and videotapes, may be inspected and viewed during a reasonable border search." (citations omitted)); United States v. Arnold, 523 F.3d 941, 946 (9th Cir.2008) ("[W]e are satisfied that reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border."); United States v. Hampe, 2007 WL 1192365, at *4 (D.Me. Apr.18, 2007) (finding that a computer search at the border limited to opening and perusing files with icons located on the computer's desktop was routine and did not require reasonable suspicion); cf. United States v. Ickes, 393 F.3d 501, 503-05 (4th Cir.2005) (finding that the Government's search of a computer and disks found in a car at the border fell within the scope of searches permitted by 19 U.S.C. § 1581(a)).⁶ Defendant has not pointed to any aspect of the January 27, 2006 border search that would distinguish it from other routine computer searches at the border. Therefore, the Court is satisfied that reasonable suspicion was not necessary in this case.

Even if reasonable suspicion were necessary, the Court is satisfied that the circumstances in this case gave rise to such suspicion. The customs agents referred Defendant for a secondary inspection based on their knowledge of his arrest in Lancaster County for the sexual abuse of a child and the resulting conviction for corrupting the morals of a minor.⁷ During the secondary inspection, the agents discovered that he possessed two laptop computers, a digital camera, a cell phone that appeared to be capable of taking and storing digital images, and a variety of electronic storage devices (a floppy disk, several compact discs, movie DVDs, and flash drives). They also...