United States v. Loera

182 F.Supp.3d 1173

United States of America, Plaintiff,

v.Jason Loera, Defendant.

No. CR 13–1876 JB

United States District Court, D. New Mexico.

Filed April 19, 2016

Damon P. Martinez, United States Attorney, Dean S. Tuckman, Stephen R. Kotz, Kristopher N. Houghton, Cynthis L. Weisman, Assistant United States Attorneys, United States Attorney's Office, David C. Serna, David C. Serna Attorney at Law, Albuquerque, NM, Attorneys for the Plaintiff.

Jerry A. Walz, Walz and Associates, Albuquerque, NM, Attorney for the Defendant.

MEMORANDUM OPINION AND ORDER

James O. Browning, UNITED STATES DISTRICT JUDGE

THIS MATTER comes before the Court on the Defendant's Motion to Reconsider Court's Memorandum Opinion and Order [Doc. 62] on Defendant's Motion to Suppress Evidence [Doc. 35], filed March 8, 2016 (Doc. 109)("Motion to Reconsider"). The Court held a hearing on April 8, 2016. The primary issues are: (i) whether the Court should reconsider its rulings, set forth in the last forty pages of its Memorandum Opinion and Order, filed October 20, 2014 (Doc. 62)("Motion to Suppress MOO"), 59 F.Supp.3d 1089 (D.N.M.2014) (Browning, J.), that: (a) Special Agent Aaron Cravens and Special Agent Brian Nishida acted in good faith when they continued to search Defendant Jason Loera's CDs after discovering child pornography on November 20, 2012, (b) probable cause still existed for issuance of the second search warrant even though Cravens illegally opened files on Loera's CDs on November 27, 2012, to provide a description of images on the CDs in the second search warrant affidavit, (c) even if the second search warrant suffered from an incurable defect, Nishida relied on the warrant in good faith when he searched Loera's CDs and laptop for child pornography, and (d) even if the second search warrant contained an incurable defect and Nishida did not execute the second search warrant in good faith, the agents inevitably would have discovered child pornography; and (ii) whether suppression is warranted on the grounds that the United States violated rule 41(e)(2)(B) of the Federal Rules of Criminal Procedure. The Court will deny the Motion to Reconsider. First, the Court concludes that its legal conclusions set forth in the last forty pages of its Motion to Suppress MOO are not good candidates for reconsideration. Even if the Court agreed that its legal conclusions set forth in the last forty pages of its Motion to Suppress MOO were good candidates for reconsideration, however, the Court would not modify its rulings or conclude that suppression is warranted in this case. Second, the Court has considered Loera's argument that the Court should suppress the evidence on the grounds that the agents violated rule 41(e)(2)(B) —an assertion he makes for the first time in his Motion to Reconsider—but concludes that suppression is not warranted in this case, because there is no evidence that the agents violated rule 41(e)(2)(B). Accordingly, the Court will deny the Motion to Reconsider.

FACTUAL BACKGROUND

In its Memorandum Opinion and Order, filed October 20, 2014 (Doc. 62)("Motion to Suppress MOO"), 59 F.Supp.3d 1089 (D.N.M.2014) (Browning, J.), the Court made, on pages five through twenty-five, one-hundred and twenty findings of fact. See Motion to Suppress MOO at 5–25, 59 F.Supp.3d at 1096–1108. Loera has stated that he does not challenge any of the Court's findings of fact. See Transcript of Hearing a t 21:18–25 (Court, Walz)(taken April 8, 2016)("Tr.").¹ The Court will therefore integrate those findings of fact herein by reference, and not repeat them. The Court will restate only some facts that are needed to evaluate the Motion to Reconsider.

Loera's apartment and electronic media were subject to a search (the first search), made pursuant to a search warrant (the first search warrant), on November 20, 2012, to search for evidence of computer fraud and electronic mail hijacking. See Motion to Suppress MOO at 512; 59 F.Supp.3d at 1096–1100. While Cravens and Nishida conducted the search, they found evidence of child pornography within Loera's electronic medium. See Motion to Suppress MOO at 12–19; 59 F.Supp.3d at 1100–04. The agents seized and took as evidence the material, which was outside the first search warrant's scope. See Motion to Suppress MOO at 12–19; 59 F.Supp.3d at 1100–04. Cravens conducted a second search of the material seized during the execution of the first search warrant, which contained child pornography, on November 27, 2012 (the second search) to obtain a better description of the material found and develop probable cause to search for evidence of child pornography. See Motion to Suppress MOO at 19–21; 59 F.Supp.3d at 1104–05. Subsequently, agents applied for a received a second search warrant on November 29, 2012 (the second search warrant). See Motion to Suppress MOO at 21; 59 F.Supp.3d at 1105. Based on both the first and second search warrants, Nishida conducted searches of Loera's Dell laptop computer and hard drive in December of 2012 and CDs in April, 2013. See Motion to Suppress MOO at 23–25; 59 F.Supp.3d at 1106–08. As a result of the searches, Nishida discovered evidence of child pornography. See Motion to Suppress MOO at 23–25; 59 F.Supp.3d at 1106–08.

PROCEDURAL BACKGROUND

A federal grand jury indicted Loera on two counts of receipt of visual depictions of minors engaged in sexually explicit conduct, allegedly occurring on September 9, 2009, and one count of possession of a visual depiction of a minor engaged in sexually explicit conduct, allegedly occurring on February 20, 2010. See Indictment at 1–2, filed May 29, 2013 (Doc. 2). Early in 2014, a federal grand jury filed a superseding indictment that charged Loera with three counts of possession of material containing any visual depiction of a minor engaged in sexually explicit conduct, each allegedly occurring on November 20, 2012. See Superseding Indictment at 1–2, filed January 9, 2014 (Doc. 25) ("Superseding Indictment").²

The Court issued the 166–page Motion to Suppress MOO on October 20, 2014. In its Motion to Suppress MOO, the Court denied Loera's Motion to Suppress Evidence, filed March 7, 2014 (Doc. 35)("Motion to Suppress"). See Motion to Suppress MOO at 1–2; 59 F.Supp.3d at 1094–95. The Court explained:

The Court heard the parties' arguments on the Motion on August 19, 2014. The primary issues are: (i) whether Defendant Jason Loera may seek suppression of the child pornography found on Loera's laptop computer and compact discs ("CDs"); (ii) whether the Search and Seizure Warrant, issued November 19, 2012, submitted to the Court at the May 20, 2014, evidentiary hearing as Government's Hearing Exhibit 9 ("First Warrant"), satisfies the particularity requirement in the Fourth Amendment to the Constitution of the United States of America; (iii) whether Federal Bureau of Investigation ("FBI") Special Agent Aaron Cravens' and Special Agent Brian Nishida's on-site preview of Loera's CDs during the execution of the First Warrant on November 20, 2012, was within the First Warrant's scope; (iv) whether the agents conducted an unlawful search when they continued searching Loera's CDs for evidence of computer fraud and electronic mail hijacking after they discoveredchild pornography; (v) whether the agents acted in good faith when they continued to search for evidence of computer fraud and electronic mail hijacking after discovering child pornography; (vi) whether Cravens was permitted to open files on Loera's CDs on November 27, 2012, for the limited purpose of providing a United States Magistrate Judge a description of four images depicting the sexual abuse of a child; (vii) whether, even if Cravens was not permitted to open the files on November 27, 2012, and even if those descriptions are excised from the affidavit in support of the Second Warrant, probable cause to issue the Search and Seizure Warrant (issued November 29, 2012), submitted to the Court at the May 20, 2014, evidentiary hearing as Government's Hearing Exhibit 10 ("Second Warrant") still exists; (viii) whether, even if the Second Warrant suffered from an incurable defect, Nishida relied on that warrant in good faith when he searched Loera's CDs and laptop for child pornography; and (ix) whether, even if the Second Warrant contained an incurable defect and Nishida did not execute the Second Warrant in good faith, the agents inevitably would have discovered child pornography.

The Court will deny the Motion. The Court concludes that Loera may seek suppression of the child pornography evidence, because he admitted that the CDs and laptop on which the agents discovered child pornography were within his control and possession when the agents seized them. The Court holds that the First Warrant satisfies the particularity requirement in the Fourth Amendment, because it limited the agents' search to evidence of computer fraud and electronic mail hijacking. The Court concludes that the agents' on-site preview of Loera's CDs during the execution of the First Warrant on November 20, 2012, was within the warrant's scope, because the warrant authorized the agents to open image and video files, and files with last-modified and created dates before July 29, 2011. The Court further holds that, while the Court is concerned with the soundness of the United States Court of Appeals for the Tenth Circuit's law related to computer searches, under that law, which the Court, as a district court, must faithfully apply, the agents conducted an unlawful search when they continued searching for evidence of electronic mail hijacking and computer fraud on Loera's CDs after they discovered child pornography. The Court concludes, however, that the agents acted in good faith when they did so. The Court holds that Cravens was not permitted to open files on Loera's CDs on November 27, 2012, for the limited purpose of providing a United States Magistrate Judge a description of four images depicting the sexual abuse of a child. The

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