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United States v. Winn

United States District Court, S.D. Illinois

February 9, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
NATHANIEL J. WINN, Defendant

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For Nathaniel J. Winn, Defendant: Todd M. Schultz, LEAD ATTORNEY, Assistant Federal Public Defender - East St. Louis, East St. Louis, IL.

For USA, Plaintiff: Angela Scott, LEAD ATTORNEY, U.S. Attorney - Fairview Heights, Fairview Heights, IL.

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MEMORANDUM AND ORDER

NANCY J. ROSENSTENGEL, United States District Judge.

This matter is before the Court on the Motion to Suppress Evidence filed by Defendant Nathaniel J. Winn on November 14, 2014 (Doc. 21). Winn seeks to suppress the evidence obtained by law enforcement officers from his cell phone. The motion has been fully briefed by the parties (Docs. 21, 22, 27, 30). The Court heard oral arguments and accepted documentary evidence at a hearing on January 6, 2015, and the motion was taken under advisement (Doc. 31). Having considered the arguments made by both parties and the evidence in the record, for the following reasons, Winn's motion to suppress is granted in part and denied in part.

Background

On Friday, June 20, 2014, a complaint was made to the Mascoutah Police Department that two days earlier, on June 18, 2014, an unknown adult male was using his cell phone to photograph or videotape a group of thirteen and fourteen-year-old girls in their swimsuits without their permission at the Mascoutah Public Pool (Doc. 27-1). While taking the pictures, this unknown adult male was rubbing his genitals on the exterior of his swim trunks ( Id.). The man was later identified as Defendant, Nathaniel Winn (Doc. 27-1; Doc. 22-1).

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The officers were concerned that Winn would find out that he was being investigated for the incident at the pool and destroy the evidence on his phone (Doc. 22-1). So, on Saturday, June 21, Detective Jared Lambert went to Winn's house to speak with him ( Id.). At that time, Detective Lambert believed he had probable cause to seize and search Winn's phone for evidence of public indecency ( Id.). Winn initially refused to give Detective Lambert his phone, but later consented to the seizure ( Id.). Winn informed his mother where his cell phone was located in the house, and she went inside and retrieved the phone for Detective Lambert ( Id.).

Instead of immediately applying for a search warrant to search the contents of Winn's cell phone, Detective Lambert decided to continue the investigation in an effort to speak with all of the individuals involved in the incident ( Id.). Detective Lambert was off work on Sunday, June 22, so no work was done to further the investigation that day. The following day, Monday, June 23, Detective Lambert interviewed five witnesses, Sergeant Kevin McGinnis interviewed two witnesses, and Sergeant Matt Steinkamp interviewed one witness ( See Doc. 27-4). Altogether, the run time of the video of these eight witness statements is no more than 45 minutes ( see id.). On Tuesday, June 24, Detective Lambert was at an all-day training, and he was unable to do anything to further the investigation. Sergeant Steinkamp interviewed two more witnesses, however, and Officer Kyle Donovan interviewed one witness ( see id.). Altogether the run time of the video of these three witness statements is no more than 21 minutes ( see id.).

Detective Lambert was at an all-day training again on Wednesday, June 25. Neither he nor any of the other officers did anything to investigate the case against Winn on that day. On Thursday, June 26, Detective Lambert typed the narratives of the five videotaped witness statements that he took. On Friday, June 27, Detective Lambert continued typing up the narratives. Altogether, he wrote approximately seven pages of narrative report.

Detective Lambert also completed the first draft of the complaint for a warrant to search Winn's cell phone on Friday, June 27. Lambert testified that none of the other officers who assisted in the investigation could apply for the search warrant because, as part of his position as Detective, he is responsible for applying for all search warrants. The complaint for the search warrant is just over two pages long (Doc. 22-2). Approximately one-and-a-half pages are original content and set forth the facts upon which Detective Lambert believed he had probable cause to search the phone ( see Doc. 22-2). Detective Lambert wrote, in pertinent part, that a woman called the police department on June 20, 2014, to report that, two days prior, a man was taking pictures of her daughter and her friends at the pool and fondling his genitals through his shorts ( Id.). A number of witnesses, including the four victims, reported that Winn followed them around at the pool, took pictures or videos of them without their permission, and fondled his genitals on the exterior of his swim trunks while in close proximity to them ( id.). The four victims also reported that they were alarmed and disturbed by Winn's actions ( Id.).

In the complaint for the search warrant, Detective Lambert inserted a list of items to be seized from the phone by using a template provided by the St. Clair County State's Attorney's Office. That template provides for the seizure of

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any or all files contained on said cell phone and its SIM Card or SD Card to include but not limited to the calendar, phonebook, contacts, SMS messages, MMS messages, emails, pictures, videos, images, ringtones, audio files, all call logs, installed application data, GPS information, WIFI information, internet history and usage, any system files on phone, SIM Card, or SD Card, or any data contained in the cell phone, SIM Card or SD Card to include deleted space.

( Id.). Detective Lambert then submitted the draft of the complaint to the St. Clair County State's Attorney's Office to review and to fill in the appropriate offense to be charged.

On Saturday, June 28, and Sunday, June 29, Detective Lambert was off work and nothing more was done to further the investigation or to obtain the search warrant. On Monday, June 30, Detective Lambert had the complaint and the search warrant reviewed and signed by assistant State's Attorney (" ASA" ) Julie Elliot. ASA Elliot indicated on the complaint to the search warrant that the search of the phone was for evidence related to the offense of public indecency (Doc. 22-2). She indicated on the search warrant, however, that the search of the phone was for evidence related to the crime of disorderly conduct (Doc. 22-3). Neither Detective Lambert nor ASA Elliot noticed the discrepancy. ASA Elliot did not make any edits to the template of the items to be seized from the phone (Doc. 22-2; Doc. 22-3). The complaint and search warrant were then presented to Circuit Judge Jan Fiss at the state trial court in St. Clair County, Illinois. Judge Fiss signed both the complaint and search warrant. He also did not notice the discrepancy between the complaint and the search warrant.

The following day, July 1, 2014, Detective Lambert met with Jason Robertson, an investigator with the St. Clair County Sheriff's Department who is in charge of cell phone extractions (Doc. 22-4; Doc. 27-6). Lambert told Investigator Robertson that the cell phone was believed to contain evidence regarding a public indecency case (Doc. 22-4). Investigator Robertson used a Cellebrite UFED Touch machine to extract data from Winn's cell phone and to generate a report detailing what was extracted ( Id.). Robertson did not manually search Winn's cell phone. Notably, the extraction report did not contain the pictures of the girls at the pool taken by Winn on June 18, 2014 ( see id.). It did, however, contain pornographic images of children and three non-pornographic videos of a minor female taken at a residence on June 1, 2014 ( Id.; Government's Exhibit 6--Bates stamped pages 57-60). After observing the child pornography, Robertson " did a manual search on the phone and discovered several of the photographs had been downloaded from the KIK application" (Doc. 22-4). Robertson informed Detective Lambert about the child pornography on the phone, and the two of them went to Winn's home where Winn's mother gave them consent to search the home ( Id.)[1] Detective Lambert also spent time identifying the minor female in the three videos and speaking with her parents (Government's Exhibit 6--Bates stamped pages 57-60).

On July 3, 2014, Winn was charged in state court in St. Clair County, Illinois, with one misdemeanor count of public indecency for " knowingly engag[ing] in an

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act of sexual conduct with the intent to arouse or satisfy his sexual desire in that he touched his sex organ while taking photographs with his cell phone of 13 and 14 year old girls at [a public swimming] pool" (Doc. 27-4; Government's Exhibit 5--Bates stamped pages 61-62). Based on data extracted from his cell phone, he also was charged with twenty-one felony counts of child pornography and three felony counts of unlawful videotaping of a minor ( Id.).

Four days later, on July 7, 2014, Detective Lambert decided to " manually look through the cell phone" to try to find the pictures of the girls taken by Winn at the Mascoutah Public Pool on June 18, 2014 (Doc. 22-6). From the home screen of the phone, he clicked " Apps," then " Gallery," then " Camera" ( Id.). There he observed nine images of girls in swimsuits taken on June 18, 2014 ( Id.).

This case came to federal court after the St. Clair County State's Attorney's Office referred it to the United States Attorney's Office to pursue federal child pornography charges against Winn. He was indicted in the Southern District of Illinois on September 17, 2014, on two counts of receipt of visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2) (Doc. 1).

Discussion

Winn argues that the evidence obtained from his cell phone should be suppressed because (1) the seizure of his cell phone became unreasonable when Detective Lambert waited nine days to obtain the search warrant; (2) Detective Lambert did not have probable cause to believe that evidence of disorderly conduct would be found on the cell phone; (3) the search warrant was overbroad and lacked sufficient particularity; and (4) the search of the cell phone exceeded the scope of the search warrant (Docs. 21, 22).

The Court begins with a brief overview of Fourth Amendment law before discussing whether a Fourth Amendment violation occurred and whether suppression of the evidence is warranted.

A. The Fourth Amendment

The Fourth Amendment protects the " right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. CONST. amend. IV. In order to " compel respect for the constitutional guaranty," the United States Supreme Court created the exclusionary rule. Davis v. United States, 131 S.Ct. 2419, 2426, 180 L.Ed.2d 285 (2011) (citing Elkins v. United States, 364 U.S. 206, 217, 80 S.Ct. 1437, 4 L.Ed.2d 1669 (1960)). When applicable, that rule forbids the use of evidence obtained by police officers in violation of the Fourth Amendment. It is well established, however, that a violation of the Fourth Amendment does not necessarily mean that the exclusionary rule applies. Herring v. United States, 555 U.S. 135, 140, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) (" We have repeatedly rejected the argument that exclusion is a necessary consequence of a Fourth Amendment violation." ) It applies only when the benefits of deterring future Fourth Amendment violations outweighs the heavy costs of suppressing evidence. Herring, 555 U.S. at 141. " The principal cost of applying the rule is, of course, letting guilty and possibly dangerous defendants go free." Herring 555 U.S. at 141 (citing Leon, 468 U.S. at 908); Davis, 131 S.Ct. at ...


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