United States v. Hannah

UNITED STATES OF AMERICA, Plaintiff, v. TIMOTHY R. HANNAH, Defendant.

No. 18-cr-30071

United States District Court, C.D. Illinois, Springfield Division

July 27, 2021

OPINION

SUE E MYERSCOUGH, U.S. District Judge:

Before the Court is Magistrate Judge Tom Schanzle-Haskin's Report and Recommendation (d/e 52), which recommends denying Defendant Timothy R. Hannah's pending Motion to Dismiss Indictment for Failure to Preserve Exculpatory Evidence or in the Alternative to Preclude the Use of Tracy Stogsdill's Statements and For an Adverse Inference Instruction (Motion to Dismiss) (d/e 21) and recommends allowing in part and denying in part Defendant's pending Motion to Suppress Evidence (d/e 25). Defendant has filed Objections to the Report and Recommendation (d/e 54), as has the Government (d/e 56). For the reasons below, the Court ADOPTS IN PART and REJCTS IN PART the recommendations in Magistrate Judge Schanzle-Haskins' Report and Recommendation (d/e 52). Defendant's Motion to Dismiss (d/e 21) is DENIED. Defendant's request for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978), is GRANTED.

I. FACTUAL BACKGROUND

The relevant facts were fully set out in the “Statement of Facts” section of the Report and Recommendation, to which there has been only one objection, as noted below. For ease of review, the facts from the Report and Recommendation are recounted below with limited editing and additions.

On December 4, 2018, a grand jury indicted Mr. Hannah with five counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and one count seeking forfeiture of certain property pursuant to 18 U.S.C. § 2253. Indictment (d/e 1). A superseding indictment has since been filed, charging Mr. Hannah with only one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and one count seeking forfeiture of certain property pursuant to 18 U.S.C. § 2253.

The majority of the evidence against Mr. Hannah was found on electronic devices owned by Mr. Hannah. Law enforcement officials acquired the electronic devices in March, April and May 2016. The first warrant sought evidence of drug trafficking and possession of child pornography. The child pornography search was based solely on allegations made by Tracy Stogsdill. The other three warrants only sought evidence of possession of child pornography and relied, in large part, on the evidence found in the first search warrant. Mr. Hannah argues that the evidence from each of these warrants should be suppressed because there was not sufficient probable cause and because they were not executed in good faith.

A. The 2015 Investigation of Mr. Hannah

While the investigation leading to Mr. Hannah's indictment here did not begin until March 2016, Stogsdill had made previous allegations against Mr. Hannah. On June 9, 2015, approximately nine months before the first warrant application, Dewitt County, Illinois, Sheriff's Office Detective and Illinois State Police Task Force 6 (Task Force) Officer Luke Werts received a NEXTbook tablet computer (NEXTbook) from Clinton, Illinois Police Detective Ummel. Detective Ummel reported that on June 2, 2015 an individual named Tracy Stogsdill turned over the NEXTbook to the Clinton Police Department because she believed the NEXTbook contained child pornography downloaded by Mr. Hannah. Stogsdill stated that Mr. Hannah used the NEXTbook frequently while he lived with her at her residence. Detective Ummel turned the NEXTbook over to Werts because the residence was in Dewitt County outside the city limits of Clinton, Illinois. Werts secured a search warrant to search the NEXTbook for child pornography. On June 12, 2015, Werts took the NEXTbook to Decatur, Illinois Police Detective David Dailey. Detective Dailey determined that the NEXTbook had an app called Gallery Vault on it. Detective Dailey stated that Gallery Vault was an app used to conceal data. See Defendant's Reply (d/e 33) (Reply), Exhibit A, DeWitt County Sheriff's Office Incident/Offense Report 1-15-001142. Detective Dailey told Officer Werts this information. See Affidavit of C. Luke Werts at ¶5 (d/e 37-1).

Detective Dailey performed a file system backup utilizing a program called cellbrite and created a compact disc. Id. On June 17, 2015, Werts sent the NEXTbook and the compact disc to the Illinois State Police Computer Evidence Recovery Unit (CERU) in an attempt to execute a full search, including the concealed data. See Affidavit of C. Luke Werts at ¶6 (d/e 37-1).

On March 23, 2016, DeWitt County Sheriff's Office Detective Pippin received the NEXTbook and compact disc back from CERU and put them in the DeWitt County evidence vault. Werts reviewed a report from Jeff Knauer of CENU about the contents of the NEXTbook. Knauer determined that the NEXTbook contained pornography, but not child pornography. See Reply, Exhibit A, DeWitt County Sheriff's Office Incident/Offense Report 1-15-001142, Supplemental Report dated May 2, 2016.

Mr. Hannah argues that Werts likely saw the CENU/Knauer report prior to March 23, 2016. See Defendant's Sur- Sur-Reply (d/e 34), at p. 2-5. However, Werts did not complete the narrative report and states that he did not review Knauer's report until May 2, 2016. See Affidavit of C. Luke Werts at ¶8 (d/e 37-1). Werts states that he does not recall why there was a delay between the receipt of the Knauer/CENU report and his review of the report, but believes he may have been unaware that the evidence and report had been retrieved from CENU. Id. at ¶9. Werts further states that the Knauer/CERU report states that the NEXTbook and compact disc were analyzed between January 27, 2016 and March 21, 2016. Id. Accordingly, the Court finds that Werts could not have seen the report prior to applying for the first warrant at issue in this case.

B. Warrant One: March 17, 2016

On March 9, 2016, Mr. Hannah was arrested on state charges related to the manufacture of methamphetamine. At that time, the officers took possession of Mr. Hannah's ZTE model Z667G Serial #9B0428813371 cellular phone (Hannah Phone) and a removable storage device (SD Card) attached to the Hannah Phone. On March 17, 2016, Werts submitted a complaint and affidavit in support of a request for a search warrant to search the Hannah Phone and the S.D. Card (Warrant One). See Motion to Suppress, Exhibit 1, Warrant One and Warrant One Complaint. Werts asked for a warrant to search for:

C. Items or Material to be seized:

• Any and all evidence of the distribution and manufacturing of illegal drugs, including but not limited to e-mails, texts, word documents, private messages, and call logs

• Any and all evidence of the acquisition and/or distribution of child pornography including but not limited to videos, pictures, internet history, and previously deleted files

Warrant One Complaint, at 000019.^[1]

Werts stated in the Warrant One Complaint that on March 8, 2016, an Illinois Conservation Police Officer contacted Werts about a fire at Weldon Springs State Park in DeWitt County (Park). Maintenance workers saw the fire and a white man and woman with a black and white dog leave the area of the fire in a dark red Chevrolet four door sedan. Werts stated that he remembered from “prior law enforcement investigations” that Stogsdill drove a maroon Chevrolet Cobalt sedan. Werts and Task Force Inspector Sean Freytag spoke to Stogsdill. Stogsdill told Werts and Freytag that Mr. Hannah wanted her to drive him out to the country to burn items earlier that day. Id.

Werts stated that Stogsdill voluntarily came to the DeWitt County Sheriff's Office to be interviewed. Stogsdill waived her Miranda rights before the interview began. Stogsdill said that she took Mr. Hannah to the Park that day and took her dog along. Stogsdill said that Mr. Hannah initially did not tell her what he wanted to burn except that he could not just place it in a dumpster. Stogsdill said she smelled ammonia once the item started to burn. At that point she said that Mr. Hannah told her it was a “lab.” She confirmed that the term “lab” meant a “shake and bake cook” bottle used to manufacture methamphetamine. Werts stated that Stogsdill told Werts and Freytag that Mr. Hannah did not cook in front of her, but he kept his methamphetamine bottle with him. She described how Mr. Hannah acquired products including lye, salt, Coleman fuel, and ice packs, to amass the necessary ingredients to make methamphetamine. She said that Mr. Hannah sold the methamphetamine for $100 a gram. See Warrant One Complaint, at 000019-20.

Werts stated further in the Warrant One Complaint:

After describing the meth cook operation, Stogsdill informed Werts she had found pictures of young naked girls on her phone. She said Hannah obtains images on her phone and then sends them to his phone. According to Stogsdill Hannah uses the wireless connection at the Casey's parking lot to accomplish this.

On March 9, 2016 Timothy Hannah was interviewed. He admitted being in the area of the park where the fire took place, but denied burning anything. He confirmed the information given by the maintenance workers, admitting to arriving with Stogsdill and the dog in the maroon Chevrolet Cobalt. Hannah denied having any knowledge of producing methamphetamine and requested an attorney. Stogsdill gave consent to search her phone on the 14th of March, but all data had been erased. Illinois State Police technicians are currently attempting to retrieve previously deleted data on the phone.

Warrant One Complaint, at 000020.

On March 17, 2016, a DeWitt County Associate Circuit Judge issued Warrant One. Warrant One authorized the search of the Hannah Phone and the S.D. Card and the seizure of the items requested in the Warrant One Complaint and quoted above. Warrant...