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United States v. Wanjiku

United States District Court, N.D. Illinois, Eastern Division

April 7, 2017

United States of America
v.
Donald Wanjiku

          MEMORANDUM OPINION AND ORDER

          ELAINE E. BUCKLO, UNITED STATES DISTRICT JUDGE

         On June 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.

         I.

         Unless 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.

         Officer 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.

         Officer 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, ”[1] employment affiliations, or “something that we could see that he is somehow tied to the Philippines.” Id. at 9:2-3, 11:3-9.

         The 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.

         Based 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.

         Officer Toler described the secondary inspection process generally as follows:

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.

         Officer 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.

         Officer 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 A.[2] 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.

         Officer 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 ...


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