The opinion of the court was delivered by: Leonard Wexler, Senior District Judge.
This case arises out of an investigation of individuals suspected of receiving and/or distributing child pornography via the internet. Defendant here is charged, inter alia, with receipt of child pornography in violation of 18 U.S.C. § 2252A.
In July of 2002, Defendant moved to suppress evidence obtained after execution of a search warrant. The evidence sought to be suppressed was obtained from Defendant's computer and included several images of child pornography. The motion to suppress was fully briefed by January 10, 2003. On January 17, 2003, in an oral ruling delivered from the bench, this court denied the motion. Presently before the court is Defendant's motion to reconsider the denial of his initial motion to suppress. For the reasons set forth below, the motion is denied.
I. The Candyman Investigation and Representations Made By the Undercover Agent
The warrant that authorized the search of Defendant's computer was one of many issued throughout the country arising from an investigation of an internet group known as the "Candyman" group. The investigation began in January of 2001, when FBI Supervising Special Agent Geoffrey Binney joined an "e-group," known as the Candyman group. E-groups are on line fora through which persons with similar interests can interact on the internet. Such groups allow individuals to communicate with each other via e-mail and by posting information on a website that members can visit.
As described by Agent Binney, the website for the Candyman group stated that the group was for "people who love kids." It further stated that members could post any type of messages or "pics and vids" they would like. Although the home page for the group did not use the words "child pornography," categories referred to on that page included a "transgender" category and made it clear that the site provided access to such images. Agent Binney described the Candyman group as existing for the express purpose of sharing messages, photographs and videos relating to child pornography.
In addition to describing the Candyman group in general terms, Agent Binney represented that all individuals who joined the group automatically received all e-mails transmitted by group members. It was later revealed that this statement was not true of all who joined the group. Instead, the automatic receipt of e-mail applied only to those who joined the group by e-mail and not to those who joined at the group's website. Specifically, those who joined the Candyman group by sending an e-mail to a certain web address would receive a confirming e-mail and would then automatically receive all e-mails posted by group members. Others, who joined the group by clicking on a "subscribe" icon at the group's website, would be presented with several e-mail options. While the default setting on that site was the option of automatic e-mail receipt, members joining at the website could opt out of receiving any e-mails from group members. Any member, whether or not they chose to receive e-mails, could visit the group's website and view files and previously posted e-mails containing images of child pornography.
II. The Initial Motion to Suppress
Defendant's initial motion to suppress argued that the statement contained in the search warrant affidavit regarding automatic e-mail receipt was false, misleading and/or made with reckless disregard for the truth. The motion further argued that absent that false statement, the affidavit was insufficient to establish the requisite probable cause. Accordingly, the motion sought a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978) or, in the alternative, immediate suppression of all fruits of the warrant and a consequent dismissal of the indictment.
Denying the motion, this court held that even assuming that the relevant statement was intentionally false, the affidavit, absent the statement, demonstrated probable cause to execute the warrant authorizing the search. The finding of probable cause, even without the allegedly false statement, made a Franks hearing unnecessary.
When ruling from the bench, this court referred to United States v. Strauser, ___ F. Supp.2d ___ (E.D.Mo. 2002), a case involving the Candyman investigation that was decided in the Eastern District of Missouri. In Strauser, the court denied the defendant's motion to suppress. In support of its ruling, the court there held that there was no showing that Agent Binney's statement regarding e-mail receipt was knowingly or recklessly ...