United States v. Stroke

United States of America v. Cameron Stroke, Defendant.

14-CR-45S

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

May 2, 2019

Amended Report and Recommendation

I. PREFACE

On September 25, 2018, the Court filed two writings addressing pretrial defense motions in this case. One writing was a Decision and Order addressing non-dispositive motions. (Dkt. No. 201.) The other writing was a Report and Recommendation addressing a defense motion to suppress. (Dkt. No. 202.) As will be explained below, new information emerged after the issuance of the Report and Recommendation. The Court reopened the suppression hearing and received additional testimony and briefing from the parties. The Court now issues this Amended Report and Recommendation. The Amended Report and Recommendation replaces the first Report and Recommendation in its entirety.

Before moving on to substantive background and analysis, the Court wants to take a moment to thank the attorneys for their extraordinary civility, patience, and diligence as they fleshed out the record for this case. This case has had an unusually long history because it features a complex intermingling of federal and state procedural and substantive issues. Along the way, the attorneys put considerable effort into making sure that the Court had the best available information before it, collaborating as needed when novel issues arose. One side or the other inevitably will object to the various recommendations that appear below, and counsel will do what they need to do going forward. For all of their work so far, though, the Court will take the step of commending the principal attorneys by name: defense counsel James Harrington and Jesse Pyle; and Assistant United States Attorney Aaron Mango.

II. INTRODUCTION

Defendant Cameron Stroke ("Stroke") allegedly visited AOL and MyYearbook online discussion boards in 2009 and 2010 and posted messages encouraging girls under 18 years of age to contact him for sexually explicit communications and activity. Other users complained about the messages, and the complaints eventually made their way to law enforcement. A background investigation led to an interview of Stroke at his apartment by law enforcement officers on January 25, 2011. During the interview, Stroke confirmed his ownership of a particular email address connected to the messages, confirmed that he had made online postings as recently as the previous weekend, and confirmed that a laptop sitting on his coffee table was the sole computer that he used. Fearing possible destruction of evidence, the officers seized the laptop without a warrant and took it into their custody. Up to this point, the officers were convinced that Stroke had violated New York Penal Law § 235.21(3), disseminating indecent material to minors in the second degree. The officers obtained a warrant to search the contents of the laptop, on the sole basis of a violation of Section 235.21(3). The officers allegedly found child pornography after beginning the search, prompting them to stop and to obtain a second search warrant based on child pornography. Executing the second search warrant allegedly yielded additional evidence of child pornography. After a transfer of the case from state to federal law enforcement, Stroke now stands charged with five counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

Stroke has moved to suppress evidence obtained from the laptop. (Dkt. No. 35 at 19-21; Dkt. No. 83.) Stroke has advanced a number of arguments in favor of suppression. The officers lacked exigent circumstances to seize the laptop on the night of the interview. The seizure and later searches of the laptop were tainted by a "cumulative effect" of errors in state procedural law, including defects in certain grand-jury subpoenas that set up the January 25, 2011 interview; failure to consider an electronic search warrant instead of a warrantless seizure of the laptop; and failure to obtain permission from state court to transfer custody of the laptop to federal law enforcement agents. The most important argument that has emerged is that the entire investigation, having begun under Section 235.21(3) only, is void for having ignored a federal injunction that has prohibited enforcement of that statute anywhere in the state since 1997. Specifically, Stroke asserts that the investigation here violated the permanent injunction that District Judge Loretta Preska issued in the Southern District of New York after determining that Section 235.21(3) was unconstitutional. (See Appendix 1.) See also Am. Libraries Ass'n v. Pataki, 969 F. Supp. 160 (S.D.N.Y. 1997).

The Government opposes Stroke's suppression motion in all respects. The Government argues that the officers reasonably feared destruction of evidence if they had left the laptop in Stroke's possession. The Government argues further that each search of the laptop's contents followed a valid search warrant that the officers used in good faith. Additionally, the Government asserts that any purported violations of state procedural law do not in themselves implicate the Fourth Amendment. With respect to Judge Preska's injunction, the Government contends that neither the officers nor a wide array of prosecutors in Western New York ever knew about it or received any updates or training about it. Without any knowledge of the injunction, according to the Government, the officers acted in good faith in 2011 based on the state of the law in 1997. The resulting evidence thus, in the Government's view, falls under the exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897 (1984).

District Judge William M. Skretny has referred this case to this Court under 28 U.S.C. § 636(b). (Dkt. No. 12.) For the sake of a full record, the Court entertained oral arguments, suppression hearings, and supplemental briefing on multiple dates, with the last supplemental briefing arriving on April 2, 2019. After considering the entirety of the record including the testimony from the suppression hearings, the Court respectfully submits two recommendations to Judge Skretny. The Court does so for the sake of expediency, to help bring this aging case to an ultimate resolution as quickly as possible. As a primary recommendation, the Court concludes that the evidence obtained from Stroke's laptop should be suppressed because the investigation violated Judge Preska's injunction, lacked probable cause as a result, and cannot qualify for protection under Leon. Alternatively, if Judge Skretny were to decide that Leon does apply then the Court would recommend denial of Stroke's motion.

III. BACKGROUND

A. Postings in AOL Message Boards

This case concerns allegations that Stroke attempted to draw minors into sexually explicit online conversations, and that an investigation of those conversations uncovered child pornography in his possession. While the substantive events of this case unfolded, Stroke worked as a data entry clerk for Citigroup, processing passports for the Department of State. (Dkt. No. 46 at 5.) Defendant worked nights; his shift began at 9:30 PM and ended at 7:00 AM. (Dkt. No. 46 at 5.)

The events of this case began with certain online postings that drew complaints. For just a few examples, around July 2, 2010, someone with the screen name and the email address visited an AOL message board titled "Dating younger/older" and posted a message that read, "looking for an open-minded single mommy who'd like their young daughter be given special attention 29/m/ny [sic]." (Dkt. No. 150 at 3 (lowercase in original).) In 2009 and 2010, someone with the screen name and the email address visited a different discussion board and posted messages such as, "hey girls, i would love to eat out your pussy! get at me my email is thirteenrez@aol.com" [sic] and, "im a 29/m/ny and i like younger girls . . . any girls wanna chat? email me thirteenrez@aol.com" [sic]. (Id. at 6.) An anonymous user complained to AOL on July 2, 2010 about the message from that date quoted above. (Id. at 13.) Meanwhile, around August 4, 2010, someone with the identity [Age: 17] (thirteenrez@aol.com)> communicated on the MyYearbook social media website and posted the following: "hey im cameron, im actually 29 but i like younger, u ever been curious about bein w/an older guy? [sic]" (Id. at 35.) That posting generated a complaint from an identified MyYearbook user in Pennsylvania. (Id. at 34.) Upon receiving the complaints, the Internet service providers in question investigated any screen names, IP addresses, and email addresses associated with the postings.

B. The Involvement of NCMEC

The complaints and other information from the Internet service providers eventually arrived at the National Center for Missing and Exploited Children ("NCMEC"). "NCMEC [sic] what they do is they take—take these cyber tips, and the tips could be from an anonymous person, they could file a report online or via the phone; or it could be that a tip comes in typically from an internet content provider, like America Online or Yahoo! or Google. They're mandated to report when they discover child pornography or somebody soliciting children online." (Dkt. No. 42 at 14.) NCMEC, in turn, prepared four reports called CyberTipline Reports. Report Number 917626, with an entry date of July 2, 2010, covered certain message board postings detected from IP address 75.118.164.35 and email address . (See Dkt. No. 150 at 2-11; Dkt. No. 35-2.) The report contains information that NCMEC conducted an Internet search for this email address and found a profile that contained Stroke's full name. NCMEC conducted further email searches using Stroke's name and email address and "found a possible target name of Cameron Stroke, a location of Buffalo, NY and a birth date of March 22." (Dkt. No. 150 at 7.) NCMEC conducted further searches of Stroke's name and included his full birth date, age, and Social Security number in the report....