United States v. Zema

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UNITED STATES OF AMERICA, v. SAM ZEMA

Cr. No. 20-228

United States District Court, W.D. Pennsylvania

April 10, 2023

OPINION AND ORDER ON MOTION TO SUPPRESS EVIDENCE

Marilyn J. Horan, United States District Judge

Presently before the Court is Defendant Sam Zema's Motion to Suppress Evidence. ECF No. 46. Mr. Zema argues that an affidavit, supporting a search warrant to search Mr Zema's home for child pornography, lacked probable cause. The resulting search, he argues, therefore violated his Fourth Amendment right to be free from unreasonable searches and requires suppression of all evidence seized during the November 19, 2019 search of his house. The government has filed a Response opposing the Motion. ECF No. 50. Mr. Zema filed a Reply, to which the government filed a Sur-Reply. ECF Nos. 51 & 54. Video oral argument on the motion was held on June 7, 2022. ECF No. 58. After careful review of the challenged affidavit and search warrant, the motion and all briefing, and the applicable case law, the Defense Motion will be denied.

I. Background

The factual background relevant to the Motion to Suppress comes from the Affidavit in Support of an Application for a Search Warrant to Search Sam Zema's home in North Versailles, Pennsylvania. Aff. Supp. App. for Search Warrant, ECF. 50-1.^[1] The Affidavit was authored by FBI Special Agent Leonard Piccini, Jr. The Affidavit recounts that, on October 17, 2019, Mr. Zema telephoned Resolve Crisis Center (Resolve)^[2] because he was having inappropriate feelings for underage boys. Aff. ¶ 23; Tr. Supp. Mot. at 3-4, ECF No. 58. Mr. Zema explained to the Resolve counselor that he had had a recent event in his life that triggered his feelings for underage boys, which prompted his travel by car to find an underage boy of approximately 12 years of age. Id. ¶ 23. He told the Resolve counselor that he had previously engaged in inappropriate sexual relationships with underage males. Id. The Resolve counselor asked Mr. Zema if he had plans to act on his urges, to which Mr. Zema answered, “I hope not.” Id. He stated that the last time he acted on his urges was in the 1980s, and that was with an individual who has since passed away. Id. Thereafter, Resolve Crisis Center generated a Childline Referral, which the North Versailles Police Department received on October 31, 2019. Id. ¶ 21.

Acting on the Childline Referral, the North Versailles Police Department detectives interviewed Mr. Zema by telephone on October 31, 2019. Id. ¶ 24. During the interview, Mr. Zema stated that he is currently having troubles with his significant other. Id. ¶ 25. Mr. Zema told the detectives that, a few weeks ago, while he was driving in the community, he saw, and was attracted to, a 12- to 14-year-old boy. Id. He stated that he followed the boy, without making contact with him, for a minute or two before leaving the area. Id. After leaving the area, he telephoned Resolve. Id.

Mr. Zema told the police that he had previously had inappropriate relationships with underage males. Id. ¶ 26. He told the detectives that in the 1980s he had developed a relationship with an underage male prostitute. Id. Mr. Zema relayed that, when he recently attempted to locate that male online, he learned that he had passed away. Id. Mr. Zema also admitted that, approximately twelve years ago, he had had a sexual encounter with an underage boy. Id. He stated that he also had had sexual encounters with underage boys at various truck stops, but he declined to provide any additional information about such relationships. Id.

At this point in the interview, the detectives had become concerned about Mr. Zema's “recent urges and behaviors as well as his past relationships;” and therefore, the detectives asked Mr. Zema about his computer use “as it relates to underage boys.” Id. ¶ 27. The detectives asked him if he had a computer at his residence, to which Mr. Zema responded, “don't most people?” Id. ¶ 28. Next, they asked him if he “searches for young boys on the internet,” to which Mr. Zema replied, “that he [did] not want to go into that.” Id. Mr. Zema refused to provide his email address to detectives. Id. Finally, detectives asked Mr. Zema what other places he has lived. Id. ¶ 29. Mr. Zema named five states where he had previously resided, and he asked the detectives “if they were going to look for open cases” in those other states. Id. Mr. Zema then concluded the interview. Id. ¶ 30.

In his Affidavit, Special Agent Piccini sought authorization to search Mr. Zema's residence for evidence of violations of two categories of crimes: (i) 18 U.S.C. §§ 2252(a)(2), 2252(a)(4)(B), which prohibit the receipt, distribution, and possession of material depicting the sexual exploitation of a minor, and (ii) 18 U.S.C. §§ 2242(a) and (b), which make it a crime to persuade, induce, entice or coerce a minor to travel to engage in prostitution or any sexual activity, or use, attempt or conspire to use the mail or any facility of interstate commerce to persuade, induce, entice or coerce any minor to travel to engage in prostitution or any sexual activity. Id. ¶ 5. In Paragraphs 9 through 20 of the Affidavit, Special Agent Piccini related his knowledge, training, and experience with respect to computers and child pornography, as well as the mechanics for searching and seizing evidence from computers. Id. 9-20. In Paragraph 31, he reported detailed “Characteristics Common to Individual's Involved in Receiving Child Pornography and Who Have a Sexual Interest in Children and Images of Children.” Id. ¶ 31a-d. In particular, Agent Piccini stated that, based on his own “investigative experience related to child pornography investigations, and the training and experience of other law enforcement officers,” he had “learned that individuals who view and receive multiple visual depictions of minors engaged in sexually explicit conduct are often individuals who have a sexual interest in children and in images of children.” Id. Special Agent Piccini related that he believed that there was “probable cause to believe that evidence, fruits, and instrumentalities of violations of Title 18, United States Code, Sections 2252(a)(2), 2252(a)(4)(B), and 2422(a) and (b) may be located in [Mr. Zema's] residence . . . as well as the person of SAM ZEMA.”^[3] Id. ¶ 32. On November 1, 2019, the Magistrate Judge authorized the Search Warrant. That same day, pursuant to the search warrant, law enforcement searched Mr. Zema's residence, including his computers and other electronic media, and seized evidence. As a result of the evidence obtained from the search, Mr. Zema was charged with one count of possession of material depicting the sexual exploitation of a minor, in violation of 18 U.S.C. §§ 2252(a)(4)(B) & 2252(b)(2).

II. Applicable Law

The Fourth Amendment of the United States Constitution protects the public from unreasonable searches and seizures. When making a probable cause determination, a magistrate must ascertain “whether there is a ‘fair probability that contraband or evidence of a crime will be found in a particular place.'” United States v. Conley, 4 F.3d 1200, 1205 (3d Cir.1993) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983) (internal citations omitted)). The test, as set forth in Gates, requires that the issuing magistrate “make a practical, common sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity' and ‘basis of knowledge' of persons supplying hearsay information” there is probable cause to support a warrant. Id. at 238. A magistrate's “determination of probable cause should be paid great deference by reviewing courts.” Id. at 236.

“The duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]' that probable cause existed.” Gates, 462 U.S. at 236 (quoting Jones v. United States, 362 U.S. 257, 271 (1960)). “The supporting affidavit must be read in its entirety and in a commonsense and nontechnical manner.” Conley, 4 F.3d at 1208. A warrant must be upheld “as long as there is a substantial basis for a fair probability that evidence will be found.” Id. at 1205. Reviewing courts, however, must not “simply rubber stamp a magistrate's conclusions.” United States v. Tehfe, 722 F.2d 1114, 1117 (3d Cir.1983).

III. Discussion

Mr. Zema contends that the Affidavit lacks probable cause because it does not contain evidence that Mr. Zema ever possessed, received, or distributed child pornography, and because it does not contain any evidence connecting Mr. Zema or his residence to the possession of child pornography. He argues that the Affidavit also fails to aver, or make the connection, that individuals who have a sexual interest in children are also individuals who view and receive depictions of minors engaged in sexually explicit conduct; and further, the Affidavit fails to tie this supposition to Mr. Zema. Mr. Zema argues that, pursuant to relevant Third Circuit precedent, probable cause cannot be established where the Affidavit fails to assert a relational nexus that demonstrates, rather than merely asserts, that those who have a sexual interest in children are also those who collect child pornography. United States v. Zimmerman, 277 F.3d 426 (3d Cir. 2002), United States v. John, 654 F.3d 412 (3d Cir. 2011).^[4]

Additionally Mr. Zema argues that, like in Zimmerman and John, the good faith exception to the exclusionary rule would not apply in this case, because the Affidavit was so lacking indicia of probable cause that it would be unreasonable for a law enforcement officer executing the warrant to believe that probable cause existed. United States v. Leon, 468 U.S. 897, 923 (1984); United States v. Hodge, 246 F.3d 301, 308 (3d Cir. 2001)....