BARRY J. PORTMAN
Federal Public Defender
Chief Assistant Federal Public Defender
1301 Clay Street, Room 200C
Oakland, CA 94612-5204
Telephone: (510) 637-3500
Counsel for Defendant XXX
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA,
Plaintiff,
v.
XXX XXX,
Defendant.
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FACTS
On April 8, 1999, Detective Lewis Doty of the Walnut Creek Police Department swore out a search warrant affidavit and sought permission from Judge Michael Coleman of the Contra Costa Superior Court to search seven separate residences and vehicles associated with those residences. (1) In addition, Detective Doty sought arrest warrants for six individuals, including the defendants XXX XXXX and XXX XXX.
Judge Coleman signed the requested search and arrest warrants on April 8, 1999. Pursuant to those warrants, Mr. XXX's residence at XXXX, Oakland, California, and Mr. XXX's residence at XXXX, Hayward, California, were subsequently searched, as were both defendants' vehicles. Both defenda nts were arrested and subsequently made statements to police.
The search warrant affidavit was drafted such that certain background facts applicable to all of the targeted residences/individuals were set forth in the beginning of that affidavit. See SWA III at 1-4. Following those generally applicable facts, Detective Doty set forth facts specific to each of the individuals who were the object of his investigation.
Because of this search warrant format, this memorandum will first address the common facts alleged in the search warrant affidavit and then will examine the facts relating to each defendant.
A. Common Facts
The search warrant affidavit begins with an explanation of how the police investigation at issue in this case began. It alleges that in November 1998, San Jose police arrested a man who allegedly possessed pictures of "naked young boys." One of the boys was subsequently identified through police work, and police interviewed the boy on January 28, 1999. This boy, who police refer to in the affidavit as Victim #1, told police that he participated in various Internet chat rooms, and that his participation in these chat rooms eventually led him to meet and have sex with a man called Robert. SWA III at 1-2.
After Victim #1 revealed these facts to the police, Victim #1's father was called. Victim #1's father met with police, and subsequently provided police with full access to his son's computer. The police eventually took the computer to San Jose, and after receiving written permission from Victim #1's father, went on-line posing as Victim #1. SWA III at 2-3.
Between January 28, 1999 and April 7, 1999, Officer McEwan of the San Jose Police Department participated in an on-line chat room and communicated with various individuals who entered into the chat room. During these conversations, Officer McEwan alleges that he was "acting as if he was the juvenile [Victim #1]." SWA III at 4. However, Officer McEwan never states in the affidavit that he claimed to those in the chat room that he was a juvenile. (2) Although the search warrant affidavit provided to undersigned counsel does not reveal the on-line moniker used by Victim #1, it does reveal that Victim #1's profile on America On Line stated the following:
Member Name: I'll give you two guesses
Location: North Calif----> I am a Walnut freak
Birthdate: 198?hmmm whats the last number?
Sex: Male
Martial Status:Possibly
Hobbies: breathing, the basis boring suburban stuff, o and soccer, music, chillin out w/my WC crew, girls
Computers: this is getting a little too personal, ok thats my private business
Occupation: professional certified smart ass
Personal Quote:"A real friend stabs you in the front"
-Oscar Wilde "crazy, i'm thinking, just knowing that the world is round, and here i'm dancing on the ground.am i right
side up or upside down? and is this real, or am i dreaming?" --DMB
The important part of this profile is that the last figure of Victim #1's birthdate is stated as a question mark. If one were to replace that question mark with a 1 or 0, Victim #1 would have been 18 or 19 at the time of the events at issue in this case. Thus, there is no way that someone pulling up the AOL profile of Victim #1 would be able to tell that he was a juvenile.
B. Facts With Respect To XXX XXX
Starting in February 1999, Officer McEwan started communicating on-line with an individual whose on-line moniker was "XXXX." Officer McEwan accessedXXX's on-line profile, which provided some background information, but not the subscriber's last name or address. During the next few months, Officer McEwan andXXX exchanged on-line "chat," which included graphic sexual discussions. There were also exchanges regarding a possible meeting between Officer McEwan and XXXX. On April 3, 1999, Officer McEwan claims in the affidavit thatXXX sent Officer McEwan "an [sic] photo of a naked young boy. The boy was postioned [sic] face down with his anus pushed up." SWA III at 11. That photo is available for the Court's review, but is not submitted with the memorandum. One cannot tell from the photograph the age of the person depicted. (3)
Officer McEwan states in the affidavit that he obtained a prior search warrant to obtain subscriber information regardingXXX from AOL (discussed infra). The search conducted pursuant to that warrant revealed that the monikerXXX belonged to Jeff XXX, 285 Van Buren #3, Oakland, California. Officer McEwan then pursued other investigative sources and reported in the affidavit that XXX's general identifying information matched the AOL profile information forXXX. He further determined that XXX had a prior state court juvenile conviction for a violation of California Penal Code § 288(a).
After Officer McEwan determined that theXXX moniker belonged to Mr. XXX, he discussed Mr. XXX with Victim #1. Victim #1 stated that he had talked on-line toXXX, but had stopped in November 1998. SWA III at 11. During the time they communicated, there was some talk about sex. Officer McEwan alleges that Victim #1 told him that Victim #1 "did tellXXX how old he was." Id. However, Officer McEwan does not state in the affidavit what age Victim #1 toldXXX he was. Moreover, Officer McEwan prepared a police report about the interview with Victim #1. Exhibit 4. In that report, Officer McEwan states only that he asked Victim #1 "ifXXX knew how old he was and X [Victim #1] said that he did." (4)
The rest of the affidavit relating to Mr. XXX sets forth verbatim transcripts of discussions betweenXXX and Officer McEwan, who was posing as Victim #1. What is important about various conversations detailed in the affidavit is that Officer McEwan never tellsXXX during the discussions that he was under the age of 18. See SWA III at 4-12.
C. Facts With Respect To Craig XXX
As with Mr. XXX's case, Officer McEwan went on-line into a chat room posing as Victim #1 and began conversing with an individual whose moniker was "BoiOhboi." During the next two months, Officer McEwan chatted with BoiOhboi, and the conversations oftentimes dealt with explicit sexual matters. During one of these conversations, Officer McEwan represented to BoiOhboi that he was 15 years old. See SWA III at 21.
On February 23, 1999, Detective Doty obtained a search warrant to search AOL's records for background information on the person using the moniker "BoiOhboi." That search revealed that the person using the moniker "BoiOhboi" was Craig XXX. Detective Doty then obtained other background information about Mr. XXX, including his address. Upon further investigation, Detective Doty determined that the address on Mr. XXX's AOL account was not where he lived. As a result, Detective Doty went to another state court judge and obtained a search warrant for Pacific Bell telephone records for a number included during one of the chats by "BoiOhboi." That search revealed that the number was held by Mr. XXX at 934 Cheryl Ann Circle #31, Hayward, California. SWA III at 25. Subsequent investigation by police determined that XXX owned 934 Cheryl Ann Circle #31 and owned a Honda Accord.
D. The February 23, 1999 Search Warrant for AOL Accounts
February 23, 1999, Detective Doty presented a search warrant affidavit to Contra Costa County Superior Court Judge Mills seeking all AOL records for persons using the AOL monikers "Capnjeffry" and "BoiOhboi." See SWA I. That search warrant affidavit sets forth initially a generalized description of what Detective Doty claims are the tendencies and proclivities of child molesters and pedophiles, none of which are specifically related to any particular person. The specific facts which are alleged in this affidavit are the same initial facts discussed above: a man was arrested and the police discovered pictures of boys; they discovered the identity of this boy, and police went on-line posing as the boy; various chats were undertaken by the police. The only specific mention of any chat with the person using the moniker "Capnjeffry" set forth in the search warrant affidavit is the following:
[February 18, 1999]
McEwan: "my parents r in just now..kind watchin me" "but im ok jus nowwhile on the computer"
Capnjeffry: "ok" Are you still interested in meeting?"
Capnjeffry: "Will you be free tis weekend?"
Capnjeffry: "I'd love to just be able to see your eyes and smile in person"
Capnjeffry: "Well I would like to kiss you and see you nude" "Would love to see you soft then hard. I want you to feel
so comfortable with me that you can just wipe it out"
Capnjeffry: "Show me your pubes and you smooth chest"
Capnjeffry: "You putting my hand on your hot cock as I'm driving. Making me watch you J/O" "Playing with your balls"
Capnjeffry: "I would love for you to take my hand and stick my finger up your tight ass as you moan. At that point, I
know you want to get fucked bad"
McEwan: "...r u gonna come to WC" "how shal I meet and where shall we go"
Capnjeffry: "You tell me. You know WC better than I do. Will you be able to get away?"
Capnjeffry: "Maybe my place, maybe your, maybe a gas station. Not sure. Maybe all of the above"
McEwan: "What wheels du u hve"
Capnjeffry: "Nissan Altima"
Capnjeffry: "We culd go up to Mt. Diablo" "I like sex in the outdoors"
Capnjeffry: "Jeffs cell-(510) 703-1511. Call anytime before 4:00 pm"
SWA I at 10-11.
As one can see from this exchange, no mention is made of the age of the person who police are impersonating. No mention is made in the affidavit elsewhere that "Capnjeffry" has ever been told that the person with whom he is chatting is under the age of 18.
With regard to Craig XXX, the facts set forth in the affidavit specifically relating to chat statements and actions made by "BoiOhboi" are the following:
[February 16, 1999]
BoiOhboi: "Stranger long time no see"
McEwan: "I know..sorry"
BoiOhboi: "I wish so bad you could come over now, stay the night/weekend even"
BoiOhboi: "I could pick you up at BART"
McEwan: "Same place as before"
BoiOhboi: "south hayward Bart"
McEwan: "...wats ur #"
BoiOhboi: "510 780-0257, call anytime"
BoiOhboi: "well talk lots, rent a movie, make popcorn, snuggle naked under a blanket"
McEwan: "Wht shud we do under the blanket"
BoiOhboi: "touch, fondle lead up to oral sex"
BoiOhboi: "as we have only chatted online, I don't know that much about you, only your pic and that I enjoy our conversations"
[Later on February 16, 1999, in a subsequent "chat"]
BoiOhboi: "if u r under 16 how could you stay out the weekend?" "Or overnight"
McEwan: "hve my ways"
BoiOhboi: "so how do you get the parents to let you stay out all night?"
[February 18, 1999]
BoiOhboi: "you told me that you felt bad having sex with older guys"
McEwan: "..yeh..but ur not 2 old ru"
BoiOhboi: "depends on yur taste"
BoiOhboi: "the age scares me a little, but as with everything in life, there are challenges"
McEwan: "...thts kewl..how old were u the 1 time?"
BoiOhboi: "21"
BoiOhboi: "u have my # right?"
McEwan: "yeh"
BoiOhboi: "510-780-0257"
SWA I at 11-13.
LEGAL ARGUMENT
The first issue presented by the search warrant affidavits is whether the search of AOL's records was valid. If it was not, all information obtained as a result of that warrant must be purged from the subsquent search warrant affidavit used to obtain arrest and search warrants for the seven individuals ultimately arrested by Detective Doty, including defendants XXX and XXX.
A. AOL Search Warrant Affidavit
The AOL search warrant fails to state on its face that there was probable cause to believe that either Mr. XXX or Mr. XXX committed a state crime. First, the affidavit states at some length the affiant's opinion about the sexual proclivities and habits of child molesters. SWA I at 2-4. This generalized claim does nothing to supply probable cause to search a place or business for evidence. There is no doubt that a search warrant may include an expert opinion.
But if the government presents expert opinion about the behavior of a particular class of persons, for the opinion to have
any relevance, the affidavit must lay a foundation which shows that the person subject to the search is a member of the class.
United States v. Weber, 923 F.2d 1338, 1345 (9th Cir. 1990) (government failed to show in child pornography case that defendant fit description of pedophile).
In terms of the factual recital about defendants XXX and XXX, Detective Doty first sets forth in the affidavit detailed facts about how a man was arrested with pictures of naked boys, and that one of the boys was eventually identified. The affidavit states that Detective McEwan eventually received permission to go on-line under the boy's screen name, and then enter into chat rooms with other individuals. SWA at 2-3. Detective Doty then sets forth verbatim statements made during the course of some of these chats.
The problem which arises at this point relating the sufficiency of these factual recitations is that there is no clear indication on the face of the search warrant as to what law Detective Doty believes the persons identified in the search warrant affidavit have violated. The only statute set forth on the face of the warrant is Cal. Penal Code § 311.3. That statute prohibits the distribution of child pornography. There is no indication anywhere in the affidavit that either Mr. XXX or Mr. XXX transmitted or possessed child pornography. Thus, the warrant affidavit could not establish probable cause for the sole statute set forth on the search warrant application and the warrant was therefore invalid.
Possibly, the government could argue that the individuals could have been charged with violating Cal. Penal Code § 288.2, i.e.using the Internet to send "harmful" material to a minor. (5) That statute, however, requires knowledge that the recipient of the "harmful" material is a minor. The problem with such an assertion is that nowhere in the general description of the events leading up to Officer McEwan's entry into chat rooms does Detective Doty state in the affidavit that Officer McEwan told the participants in the chat rooms that he was a juvenile. This omission is fatal to the validity of the search warrant, because absent some knowledge on the part of the chat room members that they were communicating with a minor there can be no violation of law regardless of how graphic the sexual discussion might be. Here, Officer McEwan never states that such information was generally conveyed to the chat room participants during the time he was pretending to be Victim #1.
Moreover, when one reviews the specific "chat" set forth in the affidavit between Officer McEwan andXXX, it is crystal clear that Officer McEwan never claims that he toldXXX that he was under the age of 18. See SWA I at 10-11. There is thus absolutely no evidence presented by this search warrant affidavit suggesting that Mr. XXX committed a violation of any statute, state or federal.
As for Mr. XXX, there is one exchange that might be construed as representing an implicit suggestion that Officer McEwan told BoiOhboi that he was under the age of 16:
BoiOhboi: "if u r under 16 how could you stay out the weekend?" "Or overnight."
McEwan: "hve my ways"
BoiOhboi: "so how do you get parents to let you stay out all night?"
SWA I at 12.
There are numerous problems with the argument that this single reference supports a finding that there was probable cause to believe that Mr. XXX had committed a state crime.
First, Cal. Penal Code § 288.2 on its face requires actual knowledge by the sender of harmful knowledge that the person receiving the matter is a minor. (6) Here, Officer McEwan was not a minor. Thus, there could have been no violation of that statute because the defendant XXX could not have satisfied the mens rea requirement of the law.
Second, the conversation (which is given no context in the affidavit) can be fairly read to mean that if Officer McEwan told Mr. XXX that he was under 16, Mr. XXX did not believe him because he questions him as to how, if he was in fact under 16, he could stay out at night. This skepticism would be perfectly reasonable, because the rules of AOL do not allow minors to become members and empower parents to restrict the ability of minors to enter into member created chat rooms, which is where Officer McEwan was operating.
Should the government argue that these restrictions are inadequate to stop a minor from entering into a chat room and that Mr. XXX could not legally assume that he was talking to an adult, the issue of whether the affidavit states probable cause to believe that a law has been violated becomes a legal issue. In Reno v. American Civil Liberties Union, 117 S.Ct. 2329 (1997), the Supreme Court examined the constitutionality of the Communications Decency Act of 1996 (CDA). That law prohibited persons from initiating "obscene or indecent" communications with anyone who the sender knows is under 18 years of age. Id. at 2238. The Supreme Court declared the statute facially unconstitutional, in part because there was no method available to prevent minors from entering into chat rooms. Id. at 2347. That being the case, the Court concluded that the exchange of even indecent message in a chat room could not be criminalized because of the burden placed upon protected speech by such a statute. Id. at _____________.
There can be doubt but that Cal. Penal Code § 288.2 suffers from exactly the same Constitutional infirmities that the Supreme Court found fatal in ACLU v. Reno.
If Officer McEwan is the "expert" in the field of child pornography and the use of the Internet he claims to be in the first four pages of the search warrant application, he would clearly have been aware that the Supreme Court had invalidated a federal statute which criminalized exactly the same activity which § 288.2 invalidates.
Third, there is no suggestion that Mr. XXX violated § 288.2 even if he had been misled into believing that Officer McEwan was under the age of 18. After the exchange set forth in the affidavit which might be construed to suggest that Officer McEwan told Mr. XXX that he was under the age of 16, Mr. XXX never again conveys "harmful matter" to the alleged minor. Rather, the subsequent exchanges set forth in the affidavit are benign conversations. Thus, a fair reading of the "chat" suggests that if Mr. XXX was misled by Officer McEwan at some point into thinking that he was talking to a person under the age of 18, Mr. XXX stopped exchanging sexual "chat" and therefore violated no law. (7)
In sum, there are absolutely no facts presented in the AOL search warrant application ever suggesting that Mr. XXX violated any state laws. There is but one fact alleged in the affidavit that suggests that Mr. XXX might be subject to prosecution to a law not even identified on the face of the search warrant. For a host of reasons, that single fact cannot be held to represent a sufficient basis upon which to conclude that Mr. XXX violated any state laws as well.
More importantly, this affidavit is so totally devoid of probable cause that no reasonable police officer could have relied upon it. See United States v. Leon, 468 U.S. 897, 922 (1984). All fruits of the AOL search must be suppressed.
B. Search/Arrest Warrant Affidavit For Residences and Individuals
1. There are three search warrant affidavits which are addressed in this memorandum. The first affidavit was presented to California Superior Court Judge Mills on February 23, 1999, and sought AOL records. It shall be referred to as SWA I (Exhibit One). The second affidavit was presented to California Superior Court Judge Coleman on March 31, 1999, and sought Pacific Bell telephone records. That affidavit shall be referred to as SWA II (Exhibit Two). Finally, Judge Coleman was presented with a third affidavit on April 8, 1999, seeking the search and arrest warrants referred above. That affidavit shall be referred to as SWA III (Exhibit Three).
2. As is later discussed, this distinction is crucial because a central issue relating to the validity of the searches is whether the targeted individuals knew or believed that they were conversing with a minor.
3. In a police report prepared by Officer McEwan at the time of his investigation, Officer McEwan describes the picture not showing a "naked young boy," but rather as a picture of a male "adult or late teen." See Exhibit Four.
4. This interview was videotaped, and is the subject of a subpoena by defense counsel.
5. The reason counsel chose this statute is because that is the crime which Officer McEwan alleges was violated when he sought the second search warrant. The government, to even make this argument, obviously must demonstrate to this Court that it is legally permissible to obtain a search warrant warrant that is not a "general" warrant when no law is referenced in the affidavit.
6. Cal. Penal Code § 288.2 provides in relevant part:
7. It is no wonder that the state dismissed all of its charges against Mr. XXX and Mr. XXX on the day motions raising these issues were to be heard and sent this case to the federal government for prosecution.