The opinion of the court was delivered by: Elfvin, Senior District Judge.
The Honorable Leslie G. Foschio, a Magistrate Judge in this judicial district, having considered all pre-trial matters that a Magistrate Judge may hear and determine pursuant to this Court's referral under 28 U.S.C. § 636(b)(1)(A), and having on January 7, 2003 filed his Report and Recommendation concerning such, and no objection thereto having been made, and the substance and rationale of said Report and Recommendation having been considered by this Court, it is hereby
ORDERED that said Report and Recommendation is fully confirmed and that defendant's motion to suppress is denied and that parties are to appear before this Court on the 11th day of April, 2003 at 1:00 p.m. (or as soon thereafter as this matter may be heard) to set a date for trial.
REPORT and RECOMMENDATION JURISDICTION
This case was referred to the under-signed for all pretrial proceedings by Honorable John T. Elfvin on August 7, 2002. The matter is presently before the court on Defendant's pretrial omnibus motion filed October 16, 2002 (Doc. No. 14).
Defendant Steven Laufer is charged in an indictment returned on July 11, 2002 ("the Indictment"), with a single violation of 18 U.S.C. § 2252(a)(4)(B), possession of child pornography. In connection with the underlying investigation leading to the Indictment, the undersigned, on October 25, 2001, issued a search warrant ("the search warrant"), authorizing the search of Defendant's residence located at 4805 Transit Road, Apartment 1804, Depew, New York. The search warrant application was supported by the affidavit of Federal Bureau of Investigation ("FBI") Special Agent Steven Forrest ("Agent Forrest") ("Agent Forrest's Affidavit"). On October 26, 2001, Defendant's residence was searched pursuant to the search warrant and certain items were seized, including Defendant's computer and hard drive — which was determined to contain contraband child pornography images — and other items. Defendant was arrested on October 30, 2001 and released on bail on October 31, 2001. When plea negotiations failed, the matter was presented to a grand jury which returned the Indictment on July 11, 2002.
On October 16, 2002, Defendant filed a pretrial omnibus motion (Doc. No. 14), seeking particularization, suppression of evidence, and various discovery. The motion is supported by the attached Affirmation of Robert B. Sommerstein, Esq. ("Sommerstein Affirmation"). The Government filed its response on October 24, 2002 (Doc. No. 15) ("Government's Response"). Oral argument on the motion was conducted on November 7, 2002, at which time all of Defendant's requests for nondispositive relief were resolved and decision was reserved on only Defendant's request to suppress evidence.
Following oral argument the Government filed, on November 22, 2002, a Supplemental Response (Doc. No. 17) ("Government's Supplemental Response"), and Defendant filed, on November 27, 2002, a Response to Government's Supplemental Response to Defendant's Pretrial Motion Regarding Suppression of Evidence (Doc. No. 18) ("Defendant's Response to Government's Supplemental Response"). Based on the following, Defendant's motion to suppress evidence should be DENIED.
Defendant asserts that the search warrant issued for his residence was not based on probable cause. Sommerstein Affirmation, ¶ 13. In particular, Defendant maintains that Agent Forrest's Affidavit contains conclusory allegations and hearsay statements, and although alleging that Defendant subscribed to a pornography website, there are no factual allegations that Defendant actually possessed any child pornography. Id. ¶¶ 8-10. Defendant further asserts that the evidence seized from his residence "may be virtual images of children engaged in sex or of youthful-looking adults posing as minors and which depictions are neither produced by exploiting actual children, nor necessarily meet the Court's definition of child pornography or obscenity." Id. ¶ 14. The Government argues in opposition that Agent Forrest's Affidavit sufficiently established probable cause for the search warrant and, alternatively, the search of Defendant's residence was valid pursuant to the investigating agents' reasonable reliance on the warrant such that the warrant was executed in accordance with the "good faith" exception to the exclusionary rule established in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Government's Response at 7-11.
In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) the Supreme Court established the "totality of the circumstances" test for the determination of probable cause under the Fourth Amendment with regard to a search warrant. The issuing judicial officer must "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 a fair probability that contraband or evidence of a crime will be found in a particular place." Gates, supra, at 238, 103 S.Ct. 2317 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960)). The quantum of proof necessary to establish probable cause is "only the probability, and not a prima facie showing, of criminal activity . . . ." Gates, supra (quoting Spinelli v. United States, 393 U.S. 410, 419, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969)). "Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal trials, have no place in the magistrate's decision. . . . The task of the issuing magistrate is simply to make a practical, commonsense 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 a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a `substantial basis for . . . conclud[ing]' that probable cause existed." United States v. Smith, 9 F.3d 1007, 1012 (2d Cir. 1993) (citing Gates, supra, at 23839, 103 S.Ct. 2317) (alterations in original).
A finding of probable cause may be based, in whole or in part, on hearsay from a reliable informant. Gates, supra, at 243-46, 103 S.Ct. 2317; Smith, supra, at 1013. An inquiry into the reliability of an informant is usually of two general types: (1) an inquiry into the informant's veracity, and (2) an inquiry into the quality of the informant's source of knowledge, such as whether the information is based on first hand observations, as opposed to rumor or innuendo. United States v. Wagner, 989 F.2d 69, 72-73 (2d Cir. 1993). In assessing a probable cause determination, "[t]he only questions for the Court are whether the [affiant's] reliance on that informant was reasonable, and whether the Magistrate was fully informed of all necessary facts when she made her finding of probable cause for the issuance" of the warrant. Smith, supra. Finally, a judge's determination of probable cause should be given great deference by a ...