United States v. Genin, 594 F. Supp. 2d 412 (S.D.N.Y. 2009)

Metadata:

Date of Decision: 26 January 2009
Author: Robinson, D.J.
Subsequent Proceedings: United States v. Genin, 2013 U.S. App. LEXIS 9217 (2d Cir. 2013)

Facts:

[Note: The District Court drew the following facts from an affidavit of FBI Special Agent Stephen Tortorella, filed in support of his application for a search warrant for Genin’s apartment.]

In 2006, Italian investigators arrested a man who operated two Web sites, youngvideomodels.net and youngvideomodels.com, that offered DVDs and downloadable content containing child pornography. Following his arrest, the site operator provided investigators with a list of e-mail addresses of individuals who had purchased content from his sites.

The content was distributed in one of two ways: either by delivery of a DVD to the customer by mail, or by sending the customer a temporary link to the purchased content and a password to gain access. Customers paid for the content by sending funds to the site operator by mail, by credit card, or through various online payment systems.

According to a Europol report (as summarized by the FBI), all of the individuals depicted in the Web site video were between the ages of 8 and 16. The FBI summary reported that “in some of the videos, the minors are depicted engaging in sexual acts, such as actual or simulated masturbation, oral sex, or simulated vaginal sex with adults or each other.” It also stated that “many of the videos, the minors are dressed in ‘string’ lingerie or are completely nude, and are posed such that their genitals are the focus of the image.”

In the spring of 2007, Europol provided the FBI with a hard drive containing approximately 150 movies seized from the Web sites. The movies were reviewed by the FBI’s “Innocent Images Unit” (IIU), but not by Special Agent Tortorella. The affidavit prepared by Special Agent Tortorella does not identify the individual who reviewed the movies or his/her qualifications.

The IIU analyst agreed that the all of the seized videos depicted females under the age of 17, and some under the age of 10. The analyst stated that “nearly all of the minors appear nude or partially nude,” and that “in nearly all of the videos the minors are engaged in sexual acts, or are depicted with their legs spread, or the camera lens zoomed in close on their pubic region, thereby clearly exposing the minor’s genitals.”

in addition to the video summary, Agent Tortorella recounted the IIU summary of 15 e-mails sent from “hellmansmayo13@webtv.net” to the Web site operator. WebTV stated that the subscriber associated with that e-mail address was Richard Genin (the defendant). The e-mails, which were reproduced in Agent Tortorella’s affidavit, make multiple reference to videos depicting underage females. Agent Tortorella stated that the IIU analyst reviewed several of the videos specifically referenced in the e-mails and confirmed that the videos depicted child pornography. The user of the e-mail address “hellmansmayo13@webtv.net” told the Web site operator that his name was “Richard Genin” and provided the same address given to WebTV.

Based on Special Agent Tortorella’s affidavit, a search warrant was issued on 31 March 2008, and was executed the following day. The search uncovered receipts for Western Union money transfers to the Web site operator; a WebTV console; paperwork associated with the purchase of various videos; and a number of videos in VHS and DVD format. In a subsequent interview, Genin admitted using his WebTV console to purchase child pornography from numerous Web sites, including the sites at issue in this case. He was charged with one count of possession of child pornography.

Genin subsequently filed a pre-trial motion seeking suppression of certain physical evidence and his voluntary statements.

Issues:

Whether the Magistrate erred in concluding that the representations in the affidavit of Special Agent Tortorella were sufficient to establish probable cause.

Genin argues that: 1) neither Special Agent Tortorella nor the magistrate actually reviewed the alleged contraband, and the expert upon whom the affidavit relies is completely unidentified; and 2) the information upon which the affidavit was based was stale (two years elapsed between Genin’s last e-mail to the Web site and the issuance of the warrant).

Rule:

1) Existence of Probable Cause: The magistrate’s ruling regarding probable cause “should be paid great deference by reviewing courts.” Illinois v. Gates, 462 U.S. 213, 236, 103 S. Ct. 2317, 76 L. Ed. 2d 527 (1983); United States v. Travisano, 724 F.2d 341, 345 (2d Cir. 1983). The role of the reviewing court is to make sure that the magistrate had a “substantial basis” for his or her ruling. See Gates, 462 U.S. at 236. At the same time, the reviewing court must not serve as a rubber stamp, and must determine whether the affidavit “provide the magistrate with a substantial basis for determining the existence of probable cause, and . . . wholly conclusory statement[s] . . . fail[] to meet this requirement.” Gates, 462 U.S. at 239.

A finding of probably cause is required by the 4th Amendment to the U.S. Constitution. Probable causes exists if, “given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238.

Given the contents of the e-mails between Genin and the Web site operator, the magistrate was justified in concluding that the persons depicted in the videos were minors. However, the magistrate also needed to find probable cause that Genin possessed videos depicting sexually explicit activity or child pornography. Genin’s e-mails do not make reference to sexually explicit activity, nor do the descriptions provided by the IIU agent. Thus, the search warrant could only be justified if the videos met the requirements of 18 U.S.C. § 2256(2)(A)(v)–“lascivious exhibition of the genitals or pubic area.”

Due to the statute’s use of the word “lascivious,” that determination is inherently subjective. United States v. Battershell, 457 F.3d 1048, 1051 (9th Cir. 2006). Since the term is not self-defining, “jurors (and judges) need neutral references and considerations to avoid decisions based on individual values or the revulsion potentially raised in a child pornography prosecution” based on lascivious depictions of minors. United States v. Rivera, 546 F.3d 245, 252 (2d Cir. 2008). The District Court cited favorably to a number of decisions holding that a magistrate may not find probable cause for a suspect’s possession of a “lascivious” photo based merely on an agent’s conclusory statement. See, e.g., Battershell, 457 F.3d at 1051-53; United States v. Syphers, 426 F.3d 461, 465-66 (1st Cir. 2005); United States v. Brunette, 256 F.3d 14, 17-19 (1st Cir. 2001).

2) Good Faith Exception: In the event that there was no probable cause for the issuance of the warrant, the government argues that the agents who executed the search warrant acted in good faith in doing so. “The Supreme Court has held that the ‘marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.'” United States v. Leon, 468 U.S. 897, 922, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984).

Interpreting Leon, the 2d Circuit has held that an law enforcement agent acts in good faith unless one of four conditions is met: “(1) where the issuing [judge] has been knowingly misled; (2) where the issuing [judge] wholly abandoned his or her judicial role; (3) where the application is so lacking in indicia of probable cause as to render reliance upon it unreasonable; (4) where the warrant is so facially deficient [such as by failing to particularize the place to be searched or the things to be seized] that reliance upon it is unreasonable.” United States v. Falso, 544 F. 3d 110, 125 (2d Cir. 2008).

Analysis:

1) Existence of Probable Cause: In the instant case, the affidavit does not contain a description of the specific videos discussed by Genin in his e-mails, nor were copies of (or images from) the videos attached as exhibits. The affidavit merely repeats the statement of the IIU agent that he viewed videos received by Genin and determined that they were child pornography. However, the IIU agent did not state which videos he viewed or the statutory basis for his conclusion.

Genin’s own descriptions in the videos are “sordid” and suggestive of lasciviousness, but in the end, are an insufficient basis for the magistrate to conclude that there was probable cause that Genin possessed child pornography. While it is a “close question,” the District Court concluded that Special Agent Tortorolla’s affidavit did not contain sufficient specific facts to support a finding of probable cause.

2) Good Faith Exception: Genin argued that under the third exception to Leon, the officers did not act in good faith. Specifically, he argues that “the warrant affidavit was so lacking in indicia of probable cause that reliance on it was unreasonable.  He argues that the absence of any descriptions and reliance on an unidentified expert should have alerted law enforcement agents to the affidavit’s critical flaws.

The District Court disagreed. It noted that in the 2d Circuit, it is still “unclear” whether an affidavit must contain either contain detailed descriptions of alleged contraband or have copies attached as exhibits. See United States v. Jasorka, 153 F.3d 58, 61 (2d Cir. 1998). Given that the absence of probable cause was a “close call,” reliance on the search warrant by law enforcement was “objectively reasonable.” However, the District Court noted that in the future, it would make a different determination if sufficient descriptions or attachments are not included.

Holding:

Genin’s motion to suppress the evidence seized during the search is denied. Since his motion to suppress his voluntary statements made during the search was based on his challenge to the search warrant, that motion is also denied.