Free Motion to Suppress Evidence - District Court of Delaware - Delaware

Case 1:07-cr-00156-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE UNITED STATES OF AMERICA, Plaintiff, v. ROBERT BUCKLEY, Defendant. : : : : : : : : :

Criminal Action No. 07-156-GMS

DEFENDANT'S PRE-TRIAL MOTION TO SUPPRESS EVIDENCE AND STATEMENTS Defendant, Robert Buckley, by and through his undersigned counsel, Eleni Kousoulis, hereby moves this Court, pursuant to Federal Rule of Criminal Procedure 12(b)(3) and the Fourth and Fifth Amendments of the United States Constitution, for an Order suppressing for use by the government any and all evidence obtained as a result of the unlawful search of 1113 Donna Marie Loop, Bear, Delaware, including any and all statements made by the defendant to law enforcement officials, that the government intends to introduce at trial. In support of this motion, the defendant submits as follows: I. MOTION TO SUPPRESS EVIDENCE SEIZED PURSUANT TO THE SEARCH WARRANT. 1. On October 27, 2007, Special Agent William O. Horn, swore out an affidavit and

attached it to his application for a search warrant for 1113 Donna Marie Loop, Bear, Delaware.1 In the affidavit, Agent Horn alleged that there was probable cause to believe that Robert Buckley had purchased at least two subscriptions to a website that was distributing child pornography, that Mr. A copy of the Agent Horn's Affidavit and the Search Warrant for 1113 Donna Marie Loop, Bear, Delaware, are attached hereto as "Exhibit A".
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Buckley resided at 1113 Donna Marie Loop, Bear, Delaware, and that evidence of violations of federal law involving the possession and receipt of child pornography would be located at 1113 Donna Marie Loop, Bear, Delaware. 2. On or about October 27, 2007, a search was conducted at 1113 Donna Marie Loop,

Bear, Delaware, by law enforcement officers pursuant to the search warrant. As a result of the search, a computer was seized that was later allegedly determined to contain videos and images of child pornography. 3. Following his arrest, Mr. Buckley was questioned by law enforcement officers and

allegedly made several incriminating statements. 4. Mr. Buckley contends that there was no probable cause justifying the search of 1113

Donna Marie Loop, Bear, Delaware, and thus the search was illegal and in violation of the United States Constitution.2 5. In the present case, although the location in question was searched pursuant to a

warrant, the search warrant affidavit failed to establish probable cause that Robert Buckley possessed child pornography, or that child pornography would be located at 1113 Donna Marie Loop, Bear, Delaware. 6. The Fourth Amendment prohibits unreasonable searches and seizures. Where no

probable cause exists for a search, suppression of any evidence recovered will be required. United States v. Roberson, 90 F.3d 75 (3d Cir. 1996); Hayes v. Florida, 105 S. Ct. 1643 (1985); United

As of the filing of this motion, no discovery has been provided with regard to the actual execution of the search warrant at 1113 Donna Marie Loop, Bear, Delaware. The defendant reserves the right to supplement this motion to challenge the execution of the search warrant, should there be grounds to do so, once the defendant is provided with additional discovery. 2

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States v. Shaefer, Michael & Clairton, 637 F.2d 200 (3rd Cir. 1980). 7. The search warrant issued in the present case was not supported by probable cause.

This Court must determine whether the magistrate judge "had a `substantial basis' for concluding that probable cause existed" to support the warrant. United States v. Whitner, 219 F.3d 289 (3d Cir. 2000). 8. In determining the sufficiency of an affidavit in support of a search warrant, a

"totality of the circumstances" standard is applied. United States v. Jewell, 60 F.3d 20, 23 (1st Cir. 1995). To assess whether a search warrant was legally issued, there must have been facts presented to a magistrate which rise to a level of probable cause when viewing the evidence under a totality of the circumstances analysis. Id. 9. In the present case, the affidavit failed to establish that Mr. Buckley purchased access

to the "Illegal.CP" website, or to establish the requisite probable cause as a matter of law to support issuance of the search warrant to search 1113 Donna Marie Loop, Bear, Delaware. 10. The only facts relied upon in the affidavit in support of Agent Horn's allegation that

Mr. Buckley may be in possession of child pornography or that he purchased access to a child pornography website, or that evidence of such would be located at 1113 Donna Marie Loop, Bear, Delaware, was that: (1) Mr. Buckley's Visa credit card was billed $79.99 by "ADSOFT" with a transaction date of June 4, 2006; (2) Mr. Buckley's Mastercard credit card was billed $79.99 by "ADSOFT" with a transaction date of June 5, 2006; (3) these transactions were processed by JetPay; (4) JetPay database revealed that these same Visa and Mastercard credit card belonging to Mr. Buckley showed up in the JetPay database with the term "ADSOFT, the phrases "term37400" and "term37544," and the purchase prices of "$79.99", and (5) that Robert Buckley was receiving mail 3

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at 1113 Donna Marie Loop, Bear, Delaware. 11. There was, however, insufficient linkage in the affidavit between Mr. Buckley and

"Illegal.CP" website, and therefore, no probable cause to establish that Mr. Buckley was in possession of child pornography, or that child pornography would be found at 1113 Donna Marie Loop, Bear, Delaware. It was never sufficiently determined in the affidavit that ADSOFT did not engage in any legitimate business not relating to child pornography. Upon information and belief, ADSOFT did engage in business other than that connected to child pornography.3 In fact, in ¶ 31, FN 17 of the affidavit, ICE agents indicate that legitimate products were being offered through the ADSOFT website, including something called "RegFreeze spyware" for a purchase price of $79.99. ICE agents made the determination that no such product existed because the three times the agents attempted to purchase the product the webpage was down. However, there are other legitimate reasons that could account for why on those three occasions the webpage could not to be displayed. The agents' assumptions were conclusionary and unsupported by any facts. 12. Furthermore, as referenced in ¶ 30, FN 15, there was no evidence to suggest that

JetPay, Visa, or Mastercard knew the nature of any of ADSOFT's transactions. Therefore, the fact that JetPay was the third party processor of Mr. Buckley's two credit card transactions, adds nothing to the probable cause determination. It seems clear that JetPay was the third party processor for

In United States v. Mitchell, 2007 WL 2915889 at *2, FN3 (S.D.Ga.), the court recognized that "[i]n addition to processing bill payments for the Illegal.CP website, AdSoft processes Internet payment transactions for other, legitimate online vendors as well." Furthermore, the government conceded in that case that the simple fact that ADSOFT charges appear on an individual's credit card statement is insufficient upon which to base probable cause for issuance of a search warrant, since they lacked any proof that the ADSOFT charges were specifically for the child pornography website. Mitchell at *2. 4

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many legitimate transactions having nothing to do with child pornography. 13. Lastly, the fact that the phrases "term37400" and "term37544" appeared on the

JetPay database in relation to Mr. Buckley's credit card transactions does not establish that this transaction was related to the purchase of access to child pornography. Although the phrase "term" followed by a series of numbers was linked to transactions involving the purchase of access to child pornography websites, there was no evidence presented in the affidavit to show that this or similar phrases did not appear on JetPay's database in reference to legitimate, non-child pornography transactions. 14. The assertions made in the affidavit do not rise to the level of probable cause to

believe that Mr. Buckley had purchased access to the "Illegal.CP" website. Although it was determined that Mr. Buckley incurred two charges of $79.99 to ADSOFT on his credit cards, there is insufficient proof that these particular ADSOFT charges were specifically for the targeted websites.4 15. Given the lack of evidence, linking the ADSOFT charges that appeared on Mr.

Buckley's credit card statements to the purchase of a subscription to a child pornography website, and the lack of evidence linking any computer associated with Mr. Buckley to child pornography, there clearly was not probable cause to establish that Mr. Buckley had purchased access to any child

In the examples cited in the affidavit in which charges billed to ADSOFT were linked to child pornography websites, there existed additional evidence against those individuals than there is with Mr. Buckley. In the cases cited in the affidavit there were intercepted electronic communications between "Dykstra Hotmail Account" and the individuals attempting to subscribe to the "Illegal.CP," and the intercepted emails from "Dykstra Hotmail Account" to the individuals contained a direct link to the "Illegal.CP" website. With regard to Mr. Buckley, no evidence of any such emails to him from "Dykstra Hotmail Account" was presented in the affidavit. Furthermore, no IP address connected to Mr. Buckley or to his computer was found on any of the servers connected with the "Illegal.CP" website. 5

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pornography website. Therefore, there was not a substantial basis for the finding of probable cause that items relating to the possession of child pornography would be found at Mr. Buckley's home, 1113 Donna Marie Loop, Bear, Delaware, and the warrant was invalid. As such, all evidence seized pursuant to the warrant, including any statements made by Mr. Buckley, must be suppressed. If evidence was seized as a result of an illegal search then the evidence obtained must be suppressed, pursuant to the "fruit of the poisonous tree doctrine" as was expressed in Wong Sun v. United States, 371 U.S. 471 (1963). II. MOTION TO SUPPRESS DEFENDANT'S STATEMENTS. 16. Mr. Buckley also moves under the Fifth Amendment and Miranda to suppress any

statements he allegedly made to law enforcement officers. According to Jackson v. Denno, 378 U.S. 368, 380 (1964): "[a] defendant objecting to the admission of a confession is entitled to a fair hearing in which both the underlying factual issues and the voluntariness of his confession are actually, and reliably determined." Once the defendant raises the issue regarding the admissibility of a statement the government bears the burden of establishing compliance with Miranda v. Arizona, 384 U.S. 436 (1966) and its progeny. See Miranda, 384 U.S. at 475. 17. It is a fundamental principle that a suspect subjected to custodial interrogation must

be advised of his rights before making a statement. Miranda, 384 U.S. 436. If a statement is obtained, the government has a heavy burden of proving the suspect waived his rights knowingly, intelligently, and voluntarily. Id. at 444. 18. In the present case, no evidence has been presented to indicate that there was an

affirmative indication of an understanding or voluntary waiver of the entire litany of constitutional rights. See Miranda, 384 U.S. at 473-74 (discussing that each right must be explained and attendant

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rights, such as the right to appointed counsel, must also be specifically explained and understood by the defendant). 19. The government has provided no evidence that Mr. Buckley was ever advised of his

Miranda rights prior to being questioned by law enforcement officials, or that any alleged waiver of his rights was knowing, intelligent, or voluntary. WHEREFORE, the defendant, Robert Buckley, respectfully requests that this Court conduct a hearing to further develop the facts related to this motion and subsequently enter an Order to suppress the evidence and statements as discussed above. Respectfully Submitted, /s/ Eleni Kousoulis, Esquire Assistant Federal Public Defender 704 King Street, Suite 110 Wilmington, Delaware 19801 (302) 573-6010 [email protected] Attorney for Defendant Robert Buckley Dated: February 29, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE UNITED STATES OF AMERICA, Plaintiff, v. ROBERT BUCKLEY, Defendant. : : : : : : : : :

Criminal Action No. 07-156-GMS

ORDER The Court having considered Defendant Buckley's Motion to Suppress Evidence and Statements and good cause having been shown therefore; IT IS HEREBY ORDERED this day of , 2008, that any

evidence seized during the search of 1113 Donna Marie Loop, Bear, Delaware, and any statements made by Mr. Buckley, shall be suppressed.

HONORABLE GREGORY M. SLEET Chief Judge, United States District Court

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