The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Defendant Charles Todd Stokes, a United States citizen, is charged with traveling in interstate and foreign commerce for the purpose of engaging in a sexual act with a minor, in violation of 18 U.S.C. §2423(b). Stokes moves to suppress evidence recovered during a September 2003 search of his home in Thailand. The search was conducted by officers of the Royal Thai Police, with assistance from American Immigration and Customs Enforcement (ICE) agents, pursuant to a Thai search warrant. Stokes challenges the search as a violation of the Fourth Amendment and seeks to exclude several items, including depictions of child pornography, recovered in the search. For the reasons explained here, the motion is denied.
The following facts are drawn from the accounts of Investigator Paisarn Changjongpradit and Special Agent Gary Phillips, American ICE officials who were present during the search of Stokes's home and testified at a hearing on October 21, 2009.
Defendant Stokes is an American citizen who lived in Thailand during the relevant events. American ICE agents in Thailand began investigating Stokes in 2002 when they received a tip that Stokes had been fired from his job teaching English at a Thai school for having allegedly engaged in inappropriate contact with young students. (Hearing Tr. at 66-67.) ICE agents interviewed the administrators of the school and consulted the Federal Bureau of Investigation's criminal record database. They confirmed that Stokes had a criminal history involving crimes against children in the United States.*fn1 (Id. at 67.) ICE agents also interviewed teachers and administrators at a second Thai school where Stokes had worked and from which he had been subsequently fired. (Id. at 67-68.) A teacher who worked with Stokes told agents that Stokes had mentioned having "a boy or two" living with him at his former residence in Bangkok and that Stokes once made a comment about liking "them very young." (Id. at 68:2-12.)
Based on that information, Special Agent Phillips contacted the Royal Thai Police in January 2003. A Royal Thai Police officer named Lieutenant Norwat informed Phillips that Thai police had been independently investigating Stokes since 2001. (Id. at 68:14-22.) Norwat also told Phillips that in an interview, the assistant manager of a building where Stokes lived in 2001 told Norwat he had seen two young boys visiting Stokes's quarters. (Id. at 68-69.)
ICE agents then checked Stokes's work records and located a third Thai school where Stokes was employed in 2003. (Id. at 69-70.) Teachers at that school were interviewed and reported that Stokes had engaged in inappropriate physical contact with students and that Stokes had recently been living with a young boy in the Thai city of Pattaya, located roughly 200 kilometers south of Bangkok. (Id. at 70-71; 8-9.) In March 2003, ICE agents interviewed Christopher Phillips, a teacher and former colleague of Stokes, who stated that he believed Stokes to be a pedophile because Stokes regularly hugged and kissed a young male student and because Stokes had lived for a period with a "street kid," a boy Christopher Phillips estimated to be roughly 15 years old. (Id. at 71:14-22.)
ICE agents initiated surveillance of Stokes' home in Pattaya in September 2003. (Id. at 71- 72). After identifying a vehicle registered to Stokes and confirming that Stokes lived at the residence, ICE Investigator Paisarn contacted the Royal Thai Police in Pattaya. (Id. at 72:7-12.) Because of the significant distance between Stokes's residence and ICE's usual operating area in Bangkok, Investigator Paisarn asked the Thai police in Pattaya for assistance in conducting surveillance of Stokes and his residence. (Id. at 9-10.) At the time, the Thai police force in Pattaya did not have a unit that focused exclusively on child exploitation investigations. (Id. at 15:5-11.) Instead, Paisarn requested assistance from Colonel Thongsuk, a senior officer with the narcotics unit of the Royal Thai Police in Pattaya. (Id. at 10-11.) Paisarn believed that the Thai narcotics unit was best suited to assist the investigation because, unlike any other unit then operating in Pattaya, narcotics officers wore plain clothes and regularly conducted surveillance and undercover investigations. (Id. at 10-15.) On September 10, 2003, Investigator Paisarn briefed Colonel Thongsuk and informed him that Stokes was suspected of sexually exploiting children. (Id. at 15-16.) According to Paisarn, neither man mentioned any suspected connection between Stokes and drugs or drug use at this meeting. (Id.)
In early October 2003, following weeks of surveillance,*fn2 Thai authorities informed Investigator Paisarn and Special Agent Phillips that the Thai provincial court of Pattaya had issued a warrant allowing Colonel Thongsuk and his men to search Stokes's home. (Id. at 18-19; 72-73) Colonel Thongsuk requested that Investigator Paisarn and Special Agent Phillips accompany the Thai police officers to observe the search and assist with English translation if needed. (Id. at 19:16-21.) Neither Paisarn nor Phillips viewed the Thai warrant before the morning of the search.
On the morning of October 9, 2003, Thai police officers, commanded by Colonel Thongsuk, executed the warrant with assistance from Investigator Paisarn, Special Agent Phillips, and other ICE investigators. The ICE agents and Thai police officers met outside Stokes's home at 6:10 a.m. Stokes was not at home at the time, however, so the officers waited for his return before attempting to enter. (Id. at 21-22.) While they were waiting, Paisarn reminded Thongsuk that the purpose of the search was to locate evidence of child exploitation. (Id.) Thongsuk agreed. (Id. at 21:7-12.) There is no indication that Thongsuk or Paisarn viewed the warrant at this time.
At 6:20 a.m., when Stokes arrived and attempted to enter the residence, Colonel Thongsuk stopped him and informed Stokes that Thai police had a warrant and intended to search the house. (Id. at 22-23.)*fn3 When it was clear that Stokes could not understand what Thongsuk was saying, Thongsuk called Paisarn over to translate. (Id. at 23:2-6.) Investigator Paisarn read the warrant, which was written in the Thai language, to Stokes in English. (Id. at 23:7-17.) This was the first time Paisarn read the warrant. (Id.) Special Agent Phillips testified that he could not read Thai and thus did not read the warrant. (Id. at 77:16-18). According to the certified English translation, the warrant empowered the Thai police to conduct a search of Stokes's residence "in order to locate and seize any illegal items and narcotics . . . of which possession is considered illegal or which was illegally obtained, or which has been used or is intended to be used to commit a crime." (Ex. 3 to Def.'s Mot. at 549.)
After being read the warrant, Stokes allowed the Thai police officers and ICE officials into the house. (Hearing Tr. at 23:18-22.) The Thai officers and Investigator Paisarn immediately moved to secure the house. (Id. at 74.) Special Agent Phillips entered only after the home was secured and after he was invited in by Thai officers. (Id.) Phillips testified that he did not engage in an independent search of the home. He explained, "I didn't know if I had really authorization to do that. I basically waited for the colonel to allow me to look around." (Id. at 75.)
Soon after entering the house, Thai officers heard noises coming from an upstairs room.
Stokes led Paisarn and Thai officers to the upstairs master bedroom where officers determined that the noise emanated from a television set. (Id. at 23-24.) Paisarn then searched the closet of the master bedroom, where he found a camera. (Id. at 24.) Stokes approached Paisarn and asked that Paisarn not remove the camera. (Id.) When Paisarn asked why, Stokes replied in Thai, "It is not polite." (Id.) Suspicious, Paisarn turned on the camera and discovered that the camera contained photographs of children committing sexual acts. (Id. at 24-25.) Paisarn called Colonel Thongsuk, who was leading the search, and showed Thongsuk the camera and photographs. (Id. at 25.) Thongsuk questioned Stokes as to the identity and location of the children in the photographs and told Paisarn to examine the full contents of the camera for "anything else that is illegal in the Thai law." (Id.) The camera contained several additional photographs of children performing sexual acts. Following the ...