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United States of America v. Jesus Juarez

January 28, 2012

UNITED STATES OF AMERICA, PLAINTIFF,
v.
JESUS JUAREZ, DEFENDANTS.



The opinion of the court was delivered by: Roslynn R. Mauskopf, United States District Judge.

MEMORANDUM AND ORDER

Defendant Jesus Juarez was indicted on January 19, 2012 on one count of producing child pornography, in violation of 18 U.S.C. § 2251(a). Before the Court is Juarez's motion to suppress evidence recovered from his cell phone on the grounds that it was obtained pursuant to a search warrant that violated the particularity requirement of the Fourth Amendment. Juarez also seeks suppression of all other evidence in this case under the "fruit of the poisonous tree" doctrine. (Doc. No. 18.) The government filed a memorandum in opposition to the motion, (Doc. No. 19), to which Juarez replied, (Doc. No. 20). For the reasons stated below, the motion is denied.

BACKGROUND*fn1

On August 5, 2011, a New York City police officer observed Juarez as he set his cell phone to make a video recording, placed it in the mesh pocket of his backpack, and placed the backpack between the legs of women wearing dresses or skirts, without their knowledge, in the vicinity of Union Square Park in Manhattan. The observing officer arrested Juarez and recovered his cell phone, a Sprint HTC cellular telephone, model PC36100. (Compl. ¶ 3 (Doc. 1); Ex. A to Weil Decl. (Doc. 18-3).) The cell phone was in video-record mode when it was seized. (Compl. ¶ 3.) Juarez was subsequently charged with unlawful surveillance in the second degree, in violation of N.Y. Penal Law § 250.45(4). (Id. ¶ 4.)

The state authorities obtained a warrant to search Juarez's cell phone. The warrant authorized a search for: evidence tending to demonstrate the commission of Unlawful Surveillance in the Second Degree, P.L. § 250.45(4), in the vicinity of 4th Avenue and 14th Street, New York, New York, and the commission of related crimes, and conspiracy to commit those crimes, such evidence including but not limited to the numbers assigned to the below-described electronic device, any numbers, digits, letters and symbols stored in the memory of said device, as well as any digital photographs and video recordings taken and stored in the memory of said Target Cellphone, may be found within electronic device recovered by the New York City Police Department: (i) Spring HTC Cellular Telephone, model PC36100, with serial number HT48HL10995. (Ex. B to Weil Decl. (Doc. 18-4).) Authorities executed the search warrant, and found a series of images depicting a seven-year-old female lying face down on a bed, showing her underwear and bare legs. One image depicts an adult male hand pushing aside the minor's underwear and revealing her vagina. (Compl. ¶ 5.) One of these images, contained in the file named "dcim\.thumbnails\(8)-1744108214-s=37530448-fH=274-gH=160-mode=20-AG=0,=", is the basis for the sole count in the federal indictment against Juarez. (Indictment ¶ 1 (Doc. 7).)

After finding these images and having probable cause to believe Juarez committed child pornography offenses, local authorities obtained a second warrant to search Juarez's cell phone for additional images of child pornography. (Ex. C to Weil Decl. (Doc. 18-5).) They also obtained a third warrant to search Juarez's home for child pornography. (Ex. D to Weil Decl. (Doc. 18-6).) Local authorities arrested Juarez when they executed the warrant to search his home. (Compl. ¶ 6; Juarez Decl. ¶ 2 (Doc. 18-2).) During his arrest, he made "admissions about having taken the photo identified in the indictment." (Id.) An agent with the Department of Homeland Security then interviewed Juarez while he was detained at the Brooklyn Advocacy Center. (Compl. ¶ 7.) During the interview, Juarez admitted to having taken the photo referenced in the indictment. (Id.) After inspecting a copy of the photo, Juarez signed it, indicating that he took the photo. (Id.) Juarez also admitted to having taken similar photos of the same minor on four to five occasions. (Id.)

The federal indictment filed on January 19, 2012 charges Juarez with one count of inducing, enticing and coercing a minor to engage in sexually explicit conduct for the purposes of producing child pornography, in violation of 18 U.S.C. § 2251(a). On August 23, 2012, Juarez filed the motion to suppress now pending before the Court.

DISCUSSION

Juarez argues that the first warrant authorizing the initial search of his cell phone violated the particularity requirement of the Fourth Amendment because the warrant authorized, in essence, a general search of his cell phone. Juarez emphasizes the similarities between a modern cell phone, or "smartphone," and a computer by noting that these devices can contain vast amounts of private information. Warrants authorizing searches of them, according to Juarez, must contain meaningful limitations on the scope of the search. In Juarez's view, such limitations were lacking here. Furthermore, Juarez claims that the subsequently obtained evidence, including statements he made to local authorities in the course of his arrest and to federal officials, should be suppressed as fruits of the poisonous tree because that evidence would not have been discovered but for the initial illegal warrant.

The government counters that the warrant is sufficiently particular because it specifically identifies the crime of which Juarez was suspected and for which evidence was sought, and enumerates the types of items for which to be searched and seized. Even if the warrant was not sufficiently particular, the government argues that the Court should not apply the exclusionary rule because the officers executing the warrant did so in good faith.

For the reasons set forth below, the Court finds the initial warrant to be sufficiently particular. As such, defendant's motion is DENIED.

A. The Particularity Requirement

The Fourth Amendment guards against "'wide-ranging exploratory searches'" by requiring that a search warrant "describe with particularity the place to be searched and the persons or things to be seized." United States v. Rosa, 626 F.3d 56, 61 (2d Cir. 2010) (quoting Maryland v. Garrison, 480 U.S. 79, 84 (1987)). "The warrant must enable the executing officer to ascertain and identify with reasonable certainty those items that the magistrate has authorized him to seize," as well as the place to be searched. United States v. George, 975 F.2d 72, 75 (2d Cir. 1992) (citations omitted). Juarez does not challenge the warrant's particularity on the grounds that it fails to identify with particularity the place to be searched. Indeed, the warrant states explicitly the place to be searched: "Spring HTC Cellular Telephone, model PC36100, with serial number HT48HL10995." (Ex. B to Weil Decl. (Doc. 18-4).) Instead, the principal question raised by defendant is whether the warrant describes, with particularity, "the persons or things to be seized."

The Court of Appeals for the Second Circuit has instructed that a warrant meets the Fourth Amendment's particularity requirement when it sufficiently describes the types of evidence sought and links that evidence to the crime being investigated. In United States v. George, 975 F.2d 72, 75-76 (2d Cir. 1992), the court held that a warrant authorizing a search for particular types of evidence-a purse, credit cards, keys to a motorcycle, for example-as well as for "any other evidence relating to the commission of a crime" was not sufficiently particular because "nothing on the face of the warrant tells the searching officers for what crime the search is being undertaken." The warrant's authorization to search for "evidence relating to the commission of a crime" failed the particularity test because reference to "general criminal activity provides no readily ascertainable guidelines for the executing officers as to what items to seize." Id. at 76 ...


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