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United States v. Stroke

United States District Court, W.D. New York

April 25, 2017

United States of America
Cameron Stroke, Defendant.


          Honorable Hugh B. Scott United States Magistrate Judge


         Defendant Cameron Stroke (“Stroke”) faces five charges of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). (Dkt. No. 11.) Many of the details leading up to those charges appear elsewhere in the record and are not relevant to the narrow issue that the Court is addressing today. There is one set of details that the Court does need to discuss briefly, because it affects a discovery issue that the Court has struggled to resolve-whether to reopen the suppression hearing a second time to obtain testimony from a now-retired New York Assistant Attorney General. That set of details concerns certain events that occurred in connection with the New York State Attorney General's regional office in Albany, New York.

         During the pre-indictment investigation of Stroke, the National Center for Missing and Exploited Children (“NCMEC”) transmitted four reports called CyberTipline Reports to New York State's Internet Crimes Against Children Task Force (the “Task Force”). Every state has its own version of the Task Force to receive reports from NCMEC. The New York State Police (“State Police”) runs New York's Task Force, and the Task Force's office happens to be in Albany. Among other functions of the Task Force, “[o]nce Albany receives the tip [of a potential crime] they then try to determine, again, [in] what area within New York State was the crime being committed or where it was committed []. They do a bunch of research online attempting to discover a location, and routinely they send out subpoenas in order to try to determine the location of where the suspect committed the crime.” (Dkt. No. 42 at 15.) Two subpoenas duces tecum did issue by email in this case, returnable before the Supreme Court Grand Jury of the County of Albany. Assistant Attorney General Nancy Snyder (“Snyder”) signed both of them. One subpoena went to America Online, Inc. (Dkt. No. 35-5 at 2) and prompted a response the same day. The other subpoena went to Verizon (Dkt. No. 35-6 at 2); Verizon also responded promptly. The responses to the subpoenas eventually led State Police investigator Scott Folster (“Folster”) and two other agents to visit Stroke at his residence on January 25, 2011. A series of events occurred on January 25, 2011, most of which are not relevant for the narrow purposes of this Decision and Order. What is relevant is that Folster, though convinced already that Stroke had committed a crime (Dkt. No. 42 at 84), went to Stroke's residence with a voluntary “knock and talk” interview in mind.

         Stroke's pretrial motion to suppress evidence (Dkt. No. 35 at 19)-whose substance the Court will not address here to keep this Decision and Order non-dispositive-consistently has attacked the Albany grand jury subpoenas as illegal, and Stroke has sought to obtain Snyder's testimony as part of the pretrial record. As far back as the original motion, Stroke requested a “hearing to determine the procedures used by the New York State Attorney General.” (Id.) The Court conducted the initial suppression hearing without Snyder's testimony but then issued an Electronic Text Order on January 25, 2016 that requested supplemental briefing for the following questions:

1) Was an Albany County grand jury actually convened to investigate defendant?
Alternatively, did an already-impaneled grand jury in Albany County ever review any information pertaining to defendant?
2) If conducted properly, a “knock and talk” interview by itself does not appear to require subpoenas or warrants. See, e.g., U.S. v. Titemore, 335 F.Supp.2d 502, 505 (D. Vt. 2004). Given the amount of identifying information about defendant that appeared in the NCMEC reports, were the Albany County subpoenas a legal or factual prerequisite to the knock and talk interview? Put another way, under the inevitability doctrine or some analogous principle, would the events of this case from January 25, 2011 onward look any different if the Albany County subpoenas had issued from Erie County or not at all?

(Dkt. No. 92.) Following a status conference, the parties filed a stipulation on March 11, 2016 that addressed the questions from the Court's Order. (Dkt. No. 100.) The parties' joint answer to the first question was that, while an Albany County grand jury was convened at the time of the subpoenas, it was not convened to investigate Stroke, and it never in fact reviewed any information pertaining to Stroke. (Id. at 1.) The parties stated different positions with respect to the second question; Stroke believed that the record needed further development to answer the question. (Id. at 2.)

         On March 22, 2016, the Court issued a Decision and Order that reopened the suppression hearing to address the following issues:

Whether the Albany County grand jury subpoenas were a factor in the decision to conduct a “knock and talk” interview on January 25, 2011;
Whether the Albany County grand jury subpoenas were presented or otherwise discussed during the search warrant applications to West Seneca Town Court; and
If the Albany County grand jury subpoenas were not presented or otherwise discussed, whether the search warrant applications to West Seneca Town Court contained information that was available only from the subpoenas.

(Dkt. No. 101 at 3.) The supplemental hearing occurred on May 12, 2016 with additional testimony from Folster. Folster confirmed that the Albany County grand jury subpoenas influenced his decision to conduct the ...

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