United States v. Smith

UNITED STATES OF AMERICA v. JOSEPH SMITH, Defendant.

Criminal Action No. 19-324 (BAH)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

July 15, 2021

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

Defendant Joseph Smith is charged in a 19-count indictment with child sexual abuse, production and possession of child pornography, and enticing a minor, based on allegations that, between May 2016 and April 2017, he sexually abused his stepdaughter, referred to in this case by her initials "A.S." See generally Indictment, ECF No. 13. This case has been pending for over two years, with the trial now re-scheduled for the third time to begin on October 18, 2021, and defendant has for the first time moved to suppress all evidence obtained from the execution of a search warrant at his apartment on April 21, 2017, and, as pertinent here, the seizure of a Lenovo personal computer ("Lenovo PC"), a Motorola cell phone, and an Apple iPhone 6S. Def.'s Mot. Suppress Tangible Evid. and Electronic Data ("Def.'s Mot."), ECF No. 114. Pursuant to this and subsequent warrants obtained to search the seized electronic devices, the government searched and recovered incriminating evidence on the Lenovo PC, Motorola cell phone, and iPhone 6S and intends to offer this evidence at trial. Defendant argues that the warrant authorizing the April 21, 2017 search of his apartment lacked probable cause, was insufficiently particular, and was overbroad; that the flaws with the 2017 warrant were not cured by the subsequent warrant obtained by the government in 2019; and that the good-faith exception to the exclusionary rule should not apply. For the reasons described below, defendant's motion to suppress is denied.

I. BACKGROUND

The factual and procedural background of this case was described in detail in a previous opinion addressing five pretrial motions. See United States v. Smith, Case No. 19-cr-324 (BAH), 2020 WL 5995100 (D.D.C. Oct. 9, 2020).¹ The facts and procedural history below describe the information relevant to defendant's pending motion to suppress.

A. Relevant Factual Background

On April 21, 2017, the government applied for a Search Warrant for defendant's apartment located at 1301 C Street SE, #32 Washington, D.C. Def.'s Mot., Ex. A, Aff. of Jenny Alvarenga Supp. Appl. Search Warrant ("2017 Aff."), ECF No. 114-2. The application sought authorization to search for and seize evidence including "[c]ellular phones, computers, digital storage devices, thumb drives, removable electronic devices such as external hard drives," as well as "the extraction of all electronic data stored inside of them," and "any items or materials relating to the offense of First Degree Child Sexual Abuse." Id. at 3.

The affidavit in support of the warrant described the events that prompted the investigation and recounted A.S.'s statements days earlier at the Children's Advocacy Center. Id. at 1-2. The affiant averred that on April 19, 2017, a Metropolitan Police Department("MPD") officer contacted the Youth and Family Services Division of MPD, reporting that A.S. had disclosed to her mother that she had been sexually abused by defendant since May 2016. Id. at 1. That day, A.S. was forensically interviewed at the Children's Advocacy Center. Id. During the interview, A.S. indicated that defendant had repeatedly forced her to perform oral sex on him and forced her to receive oral sex from him beginning in May 2016. Id. The victim identified her stepfather, defendant Joseph Smith, as the person who abused her while she and her mother and sibling lived at his apartment. Id.

A.S. described defendant's use of electronic devices in perpetuating and communicating with her about the abuse. According to A.S., defendant would send text messages to her describing his expectations for future instances of sexual abuse. Id. at 2. She specifically disclosed that "in one of the texts the suspect sent her, he told her that for her 14th birthday he was going to put his penis in her vagina and her anus." Id. She further disclosed that "she would send the suspect nude pictures of herself at his request" and that "she ha[d] observed the suspect connecting his cellular phone to a computer located in his bedroom." Id. The victim also indicated that defendant had taken her cell phone, as well as her mother's, when the victim and her mother left the defendant's apartment on April 14, 2017, following a domestic violence incident between defendant and the victim's mother. Id. at 1.

In the affidavit, Detective Alvarenga described that, in her experience, sex offenders frequently "take pictures of their victims," store those images on their phones, and also "often store the[] images on their personal computers," sometimes to distribute the images on social networking sites or to sell them. Id. at 3.

Based on the affidavit, a D.C. Superior Court judge issued the requested search warrant, specifically authorizing the search of the premises for evidence of an offense in violation of D.C.Code § 22-3008 (First Degree Child Sexual Abuse), and the seizure of that evidence, including extractions of electronic data from seized devices. Def.'s Mot., Ex. A, 2017 Warrant, ECF No. 114-2. The warrant authorized the search of the premises for:

Cellular phones, computers, digital storage devices, thumb drives, removable electronic devices such as external hard drives, and the extraction of all electronic data stored inside of them to take place at the residence or a police or court facility, mail matter, any material identifying any resident of the house and to take photographs and sketches of the entire premises, and any items or material related to the offense of 1st Degree Child Sexual Abuse[,] which is [e]vidence of an offense IN VIOLATION OF DC Code 22-3008.

Id. The search warrant was executed that same day, April 21, 2017, and law enforcement seized the Motorola cell phone, iPhone 6S, and Lenovo PC, as well as three tablets, ten additional cell phones, an Xbox, and an air mattress. Id.

In May 2017, forensic examination of the seized devices was conducted by the Digital Evidence Unit of the D.C. Department of Forensic Sciences ("DFS"). Def.'s Mot. at 2 (describing extraction of sixteen digital devices); see also id., Ex. C., May 11, 2017 Rep. of Examination, ECF No. 114-4; id., May 10, 2017 Rep. of Examination. Data extraction from the Lenovo PC revealed "internet activity purporting to depict stepfather-stepdaughter pornography and other incest, teen-anal, and similar content," Gov't's Opp'n Def.'s Mot. Suppress Tangible Evid. and Electronic Data ("Gov't's Opp'n") at 6, ECF No. 115, and user data suggesting association with defendant, see May 10, 2017 Rep. of Investigation at 2. "Logical extraction" of the Motorola cell phone yielded only "benign" text messages between defendant and the victim, and a more comprehensive extraction that would discover deleted text messages and images was not performed. Gov't's Opp'n at 6. The forensic investigators were unable to access content on the iPhone 6S, which belonged to the victim, beyond accessing user account information on the SIM card. Id.

On May 6, 2019, the government obtained a second warrant to examine and extract data from two of the devices—the victim's iPhone 6S and the Motorola cell phone—that had been seized in the 2017 search of defendant's residence. Def.'s Mot., Ex. B, 2019 Warrant, ECF No. 114-3. This 2019 warrant contained a more thorough list of information and data to be seized. Id., Att. A ("2019 List of Property to be Searched") (listing the iPhone 6S and black Motorola cell phone as the devices to be searched); id., Att. B ("2019 List of Property to be Seized") (describing the information and data to be seized from the two phones).² The 2019 warrant authorized the seizure of "fruits evidence, information relating to, contraband, or instrumentalities, in whatever form and however stored, relating to [the charged offenses], as described in the search warrant affidavit, including, but not limited to [14 specified categories of information]." 2019 List of Property to be Seized at 1. The specified categories included records and information pertaining to the sexual abuse of A.S. as well as the devices' internet activity. Id. at 2-3.

This further forensic analysis of the Motorola phone and A.S.'s iPhone was accomplished with newer forensic tools and, for the iPhone, with A.S.'s passcode, and yielded substantially more incriminating evidence. Gov't's Opp'n at 6. Among the extracted files on the Motorola cell phone, DFS located sexually explicit images believed to be A.S., along with text messages between A.S. and the defendant. Gov't's Det. Mem. at 6, ECF 6; Gov't's Expert Discovery Ltr. to Counsel 2 ("Gov't's Disc. Ltr.") at 2, ECF No. 30-1. DFS was also able to perform a more thorough review of A.S.'s iPhone and located deleted text messages between A.S. and a phonenumber labeled as "Step Dad," and between A.S. and an unknown sender describing past and future intended sexual activity. Gov't's Disc. Ltr. at 2.

With this new evidence, defendant was arrested on May 10, 2019, and charged in D.C. Superior Court with one count of First Degree Sexual Abuse and four counts of Misdemeanor Sexual Abuse. Gov't's Det. Mem. at 5. On June 11, 2019, A.S. testified before a grand jury and "adopt[ed] her CAC interview and provid[ed] additional details about [defendant's] sexual assaults, threats, and production and possession of sexually explicit images of her." Gov't's Mot. in Limine to Admit A.S.'s Prior Statements at 3, ECF No. 24. On June 17, 2019, defendant was charged in this Court by criminal complaint, Complaint, ECF No. 1, and on September 25, 2019, he was indicted in the pending 19-count indictment on both federal and D.C. Code charges.³

B. Relevant Procedural History

This matter was initially set for trial on June 8, 2020, Min. Order (Nov. 18, 2019), but that schedule was disrupted by the global COVID-19 pandemic, and the trial date was...