United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
E. BUCKLO, UNITED STATES DISTRICT JUDGE
2, 2016, a grand jury returned an indictment charging
defendant Donald Wanjiku with one count of transportation of
child pornography in violation of 18 U.S.C. §
2252A(a)(1). Before me is Mr. Wanjiku's motion to
suppress evidence obtained during a search of his electronic
devices at O'Hare International Airport on June 9, 2015,
as well as all evidence later obtained as a result of that
search. On March 21, 2017, I held an evidentiary hearing on
the motion. Having closely considered the parties'
arguments and the evidence presented, I deny the motion for
the reasons explained below.
noted otherwise, the following facts are undisputed. On June
9, 2015, Mr. Wanjiku arrived at O'Hare after a sixty-day
trip to the Philippines. At the primary inspection site
(i.e., the passport control area through which all
international travelers must pass), a Customs and Border
Patrol (“CBP”) officer referred Mr. Wanjiku for
secondary inspection in an area known as “baggage
control hall A, ” where CBP and Homeland Security
Investigations (“HSI”) were conducting a special
operation dubbed “Operation Culprit.” During the
secondary inspection, CBP officer Adam Toler discovered and
initiated searches of three electronic devices belonging to
Mr. Wanjiku-a cell phone, a laptop computer, and an external
hard drive. The government's searches of these devices
produced photographic and video evidence of suspected child
pornography, which led to the charges in this case.
Toler testified at the suppression hearing about Operation
Culprit and his inspection of Mr. Wanjiku. He began by
describing Operation Culprit as targeting “certain
flights that were coming from areas of high sex tourism,
” specifically, Philippines, Thailand, and Cambodia.
H'rg. Tr. at 5:1-3. Four officers, including Officer
Toler, participated in the operation. Officer Toler testified
that to identify individuals potentially of interest, he and
his fellow agents culled the list of all passengers arriving
from those countries into a “manageable list” of
people who “seem[ed] to match the scope of our
operation.” Id. at 6:14, 8:4. They began by
“looking for U.S. citizens, males, returning from one
of those countries that were traveling alone, ” who had
a prior criminal history, and who were between the ages of
eighteen and fifty or sixty. Id. at 5:10-12, 22. The
agents used something called the “TECS platform”
to search “all databases linked to CBP, ”
including NCIC and ADIS (i.e. Arrival and Departure
Information System), for information about the travelers'
arrival and departure records, their criminal histories, and
the e-mail addresses and telephone numbers they used to book
their reservations. Id. at 40:18-23; 53:11-18.
Because Mr. Wanjiku satisfied each of the initial screening
criteria, his name was included on the agents'
preliminary list of individuals potentially of interest to
Operation Culprit. Id. at 7:19-21.
Toler stated that he and his fellow agents then “worked
through each individual name to see if we could whittle the
list down a little bit more.” H'rg. Tr. at 7:23-25.
For example, “if you've got a man who is from the
Philippines who is traveling to the Philippines where he is
originally from and his criminal history is something like a
drunk driving arrest, it doesn't seem to match the scope
of our operation, so we would remove him from the
list.” Id. at 7:25-8:5. At this stage of
screening, which took place prior to Mr. Wanjiku's
arrival, agents discovered that Mr. Wanjiku's criminal
history included an arrest for contributing to the
delinquency of a minor, which Officer Toler testified
“heightened our level of suspicion on him because we
are dealing with sex tourism where a lot of the victims are
minors.” Id. at 8:15-19. The agents also
noticed that Mr. Wanjiku had made three trips to the
Philippines in the preceding two years, id. at
10:1-3, which Officer Toler testified “seem[ed]
strange” because Mr. Wanjiku had no apparent
affiliation with that country, such as a wife who was from
there, a record of “people traveling to his address
from the Philippines, ” employment affiliations, or
“something that we could see that he is somehow tied to
the Philippines.” Id. at 9:2-3, 11:3-9.
agents' pre-arrival investigation of Mr. Wanjiku also
revealed that an email address linked to one of his prior
trips was “Mr. Dongerous, D-o-n-g-e-r-o-u-s, ”
which Officer Toler testified further heightened their
suspicions “because DONG is the name or slang name for
male genitalia.” Id. at 8:22-24. The agents
plugged this email address into Facebook and found what they
believed to be Mr. Wanjiku's profile, and which showed a
picture of him in a mask, as well as “multiple friends
who seemed very young.” Id. at 12:17-23.
Officer Toler stated that these factors further increased
their interest in Mr. Wanjiku because Operation Culprit
“is for sex tourism and exploitation of children, and
to see somebody who has multiple young friends on their
Facebook seemed a little strange, especially for somebody who
is in his 40s. Also, to have -- be wearing a mask in your
Facebook profile, that seemed a little strange as
well.” Id. at 13:1-6.
on the factors described above, the agents included Mr.
Wanjiku among the individuals flagged in the TECS system with
a “one day lookout” to signal to the primary
border control officers that the individuals should be sent
to baggage hall A for secondary inspection. Id. at
16:6-17:5. According to Officer Toler, the primary officer
indicated in notes provided to secondary officers that Mr.
Wanjiku was “evasive for questioning.”
Id. at 46:21-22.
Toler described the secondary inspection process generally as
Once the people came in, we were doing the baggage
inspections on all the people who were referred based on our
operation. And so we would take their bags, we would get a
binding declaration from them. Of course, I would get a
binding declaration from them. I would ask them about what
they were doing out of the United States. Get a story about
their trip. Then open up their bags, go through their bags
and pretty much make sure that everything in their bags
corroborated with what they said about their trip.
Id. at 17:20-18:3.
Toler stated that he first saw Mr. Wanjiku while he was
waiting in line while Toler and the other officers completed
other baggage exams. Then, Mr. Wanjiku did something Officer
Toler had never seen before: he left the line before it was
his turn for examination. Indeed, Officer Toler later
discovered, after Mr. Wanjiku was escorted back to the line
by an ICE agent, that Mr. Wanjiku had gotten out of the
general queue in baggage hall A and gone to baggage hall B-an
area approximately one to two hundred feet away and across an
exit corridor-to use the bathroom.
Toler stated that the first thing he asked Mr. Wanjiku was
why he had gone to the other hall, to which Mr. Wanjiku
responded that he had heat stroke and needed to use the
bathroom. Id. at 24:13-15. Officer Toler informed
Mr. Wanjiku that there were also bathrooms in baggage hall
He perceived Mr. Wanjiku as “visibly nervous about the
whole situation, ” noting that he was “sweating
profusely” (although the airport is air-conditioned)
and that he was “shifting his weight.”
Id. at 24:16-18.
Toler proceeded to question Mr. Wanjiku about his trip,
explaining that his purpose was to “get his story of
his trip, ” to get “a set of facts” he
would then compare with the contents of his luggage to see
whether the items corroborated or did not corroborate the
story. In Officer Toler's view, several elements of Mr.
Wanjiku's story didn't add up. First, Mr. Wanjiku
told Officer Toler that he had stayed with friends in the
Philippines, and he provided their address. Yet, his luggage
contained “a pocket full of receipts” for hotel
stays, most of which were for one night. Id. at
31:8-11. When Officer Toler asked him about the receipts, Mr.
Wanjiku explained that “his friend showed him around
the country and those were receipts for going around the
country.” Id. at 31:17-18. But that
explanation didn't alleviate Officer Toler's
concerns. Two of the receipts were for the same ...