United States District Court, D. Montana, Missoula Division
OPINION AND ORDER
DONALD W. MOLLOY, District Judge.
Defendant Joshua David Petersen's Motion to Suppress and request for a Franks hearing is now before the Court. ( See Doc. 376.) Petersen seeks suppression of all evidence and statements obtained following execution of a federal search warrant on his residence on October 2, 2013. (Doc. 377 at 1-2.) He alleges that material misrepresentations and omissions in the warrant affidavit negate the probable cause to search his residence on which the warrant was based. ( Id. ) Petersen's Motion is opposed. (Doc. 376 at 2; Doc. 391.) Also under consideration is the United States' Motion to Allow Expert Testimony via Video, (Doc. 378), should the Court grant Petersen's request for a Franks hearing. Petersen's Motion and request are not well-taken and will be denied. The United States' Motion will accordingly be denied as moot.
I. Factual Background
Joshua David Petersen is one of fourteen individuals charged following an investigation into an internet child pornography bulletin board created by the lead Defendant, Paul Wencewicz of Polson, Montana. (Doc. 127-1.) Eleven Defendants, including Wencewicz, have pled guilty. One Defendant is deceased. ( See Doc. 405.) Petersen is one of the two remaining Defendants who may proceed to trial. Trial is set for June 23, 2014. ( See Docs. 185, 439.)
The Second Superseding Indictment alleges that Petersen engaged in a child exploitation enterprise (Count I), in violation of 18 U.S.C. § 2252A(g), and conspired to advertise child pornography (Count II), in violation of 18 U.S.C. § 2251(d) and (e). (Doc. 186.) If convicted, Petersen faces a mandatory minimum sentence of 20 years, with a possibility of up to life, in prison, a term of supervised release of at least five years and up to life, and a possible fine of up to $250, 000. ( Id. )
Defendant's Motion tests the sufficiency of the warrant affidavit. On review, the Court is limited to the information and circumstances within the four corners of the affidavit. United States v. Taylor, 716 F.2d 701, 705 (9th Cir. 1983). On September 30, 2013, Federal Bureau of Investigation ("FBI") Special Agent Dawn A. Martin presented an application for a search warrant and 55-page supporting affidavit to United States Magistrate Judge Mark E. Aspey of the United States District Court for the District of Arizona. (Doc. 379-1 at 55.) The warrant affidavit included detailed factual allegations about activity on the bulletin board. This information was derived from two primary sources: undercover logins to the board using credentials supplied by Wencewicz incidental to a search of his residence and analysis and review of a backup copy of the board obtained from law enforcement in the United Kingdom following its seizure from an individual living on the Isle of Jersey. ( Id. at 19-23.)
The affidavit described the composition and operation of the board as follows. The board was a members-only community created to allow its 44 members to exchange images of children, including child pornography. ( Id. at 19-21.) Content posted on the bulletin board was divided into a total of eight forums and 28 sub-forums. ( Id. at 21-22.) Members were divided into membership levels with various privileges and responsibilities. ( Id. at 21-25.) Membership levels included groups called Administrators, Moderators, Legionaires, and Castle Residents. ( Id. ) For context and background, the affidavit presented common characteristics of individuals who advertise, receive, or access with intent to view child pornography and detailed how evidence of these crimes is commonly located in these individuals' residences and on their computers and other electronic devices. ( Id. at 16-19.) It also recited Special Agent Martin's qualifications and the law she asserted as applicable to the facts in the case. ( Id. at 1-5.)
The warrant affidavit directly targeted the conduct of one member of the board, a "Castle Resident" referred to as "Aqualung, " and alleged that this individual "likely displays characteristics common to individuals who advertise, receive, and/or access with intent to view child pornography." ( Id. at 19.) Aqualung became a member of the board on November 19, 2009 and last accessed the board on March 16, 2012. ( Id. at 42.) Aqualung used the email address email@example.com to create his member account on the board. ( Id. at 42, 49.) The FBI served a subpoena on Yahoo to provide subscriber information regarding the account. ( Id. at 49.) Yahoo provided connection logs for the account an alternate email address for the user: firstname.lastname@example.org. ( Id. ) The Yahoo connection logs and logs collected from the undercover logins and the backup of the board were found to be linked to Cable One, an internet service provider. ( Id. ) The FBI served a subpoena on Cable One to collect information about the subscriber linked to the connection logs. ( Id. ) Cable One associated the connection logs with an individual subscriber, Norma Petersen of Prescott, Arizona, and a User ID: m44u. ( Id. ) The FBI served a subpoena on Microsoft to provide subscriber information for the email@example.com email account. ( Id. ) Microsoft provided subscriber information associating the account with Joshua Petersen of Prescott, Arizona. ( Id. at 50-51.) Subsequent investigation, including a review of driver licensing records, connected Joshua Petersen's physical address to the physical address provided by Microsoft and Cable One. ( Id. at 52-53.)
The affidavit sought a warrant to search Joshua Petersen's residence at the physical address provided by Microsoft and Cable One. ( Id. at 1-2, 54.) It alleged probable cause was present to issue a search warrant for contraband, evidence, fruits, and instrumentalities of violations of 18 U.S.C. §§ 2251 and 2252A, more specifically, § 2251(d) and (e), which criminalizes the act of conspiring to advertise child pornography. ( Id. at 1-2.) The search warrant affidavit presented a description of alleged criminal conduct on the board directly undertaken by Defendant Petersen and a recitation of other related conduct by other members of the bulletin board. This conduct formed the basis for the affiant's statement of probable cause. ( Id. at 54-55.) The affidavit also included pertinent background information on computers and the internet, ( id. at 5-8), online bulletin boards, ( id. at 8-13), electronic evidence collection and analysis, ( id. at 13-16), and characteristics common to individuals who commit child pornography offenses, ( id. at 16-19), as relevant to the circumstances of this case.
The warrant affidavit alleged that members posted child pornography on the bulletin board. The affidavit described members posts to the bulletin board, which were alleged to include images and links to images of female children engaging in sexually explicit conduct, as well as members' comments on the same. ( Id. at 25-42.) Many of the posts were stated to include images depicting nude prepubescent females in sexually explicit poses. ( Id. )
In addition to linking Defendant Petersen to Aqualung's bulletin board account, the affidavit included specific allegations of criminal conduct engaged in by Petersen as a member the board. ( See id. at 42-47.) In response to another member's posting of several images of an apparent minor female in various states of undress, Petersen allegedly asked Wencewicz, the creator of the bulletin board, to post the movie Maladolescenza' on the board. ( Id. at 44.) The affidavit represented that "Maladolescenza' contains nudity and simulated sex acts with two 12-year old prepubescent actresses and has been banned as child pornography in various countries." ( Id. ) Petersen allegedly also responded to postings of sexually explicit images of "Katya" and "Liliana, " both minor females. ( Id. at 44-47.)
Furthermore, the affidavit presented allegations of Petersen's criminal conduct on other bulletin boards. ( See id. at 48.) The affiant stated that "[a] review of the communications on the Board reveals that [Petersen] was involved with other bulletin boards and was a founding member of the boards." ( Id. ) Petersen allegedly advised members of the board regarding his activity on other boards and provided his thoughts on how to best avoid law enforcement detection. ( Id. )
II. Summary Conclusion
Petersen alleges that the warrant affidavit intentionally or recklessly included false information material to the magistrate judge's finding of probable cause. He also alleges that the warrant affidavit intentionally or recklessly omitted material information. The Court finds that Petersen's claim that the warrant affidavit includes false information is unfounded and directly refuted by information presented by the government in Response to the Motion. Petersen is correct, though, in his assertion that the affidavit does not include information about the coding of images he allegedly commented on or about other images he posted to the board. This information was available to the government at the time the affidavit was submitted and it was not included. But the omitted material is not entirely beneficial to Petersen's position and is, on the whole, not exculpatory of the allegation that he possessed or accessed with intent to view child pornography. Furthermore, the omitted material does not affect a finding of probable cause as to his participation in the conspiracy to advertise child pornography set forth in the ...