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United States v. Fisher

United States District Court, D. Nevada

November 15, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JUSTIN ANTHONY FISHER, Defendant.

          ORDER GRANTING EVIDENTIARY HEARING

          GEORGE FOLEY, JR., United States Magistrate Judge

         This matter is before the Court on Defendant Justin Anthony Fisher's Motion to Suppress Evidence (ECF No. 41), filed on August 10, 2017. The Government filed a Response (ECF No. 47) on September 1, 2017. Defendant did not file a reply. On October 4, 2017, the Court conducted a hearing during which it heard oral argument by the parties' counsel. At the conclusion of the hearing, the Court stated that it was inclined to recommend that Defendant's motion be denied because the alleged misrepresentations or omissions in the search warrant affidavit were not material. Having considered this matter further, however, the Court has determined that Defendant has met the threshold showing for an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155-56, 98 S.Ct. 2674 (1978).

         BACKGROUND

         Defendant is charged in a six count criminal indictment filed on February 28, 2017 with sexual exploitation of children in violation of 18 U.S.C. § 2251(a) and (e); distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b); receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b); possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B); and coercion and enticement in violation of 18 U.S.C. § 2422(b). Indictment (ECF No. 15). These charges arise, in part, from the execution of a search warrant at Defendant's residence at 10432 Burkehaven Avenue, Las Vegas, Nevada on November 21, 2016. The search warrant was issued on November 16, 2016 and authorized the police to seize “[a]ny data evidence of visual depictions/representations (images and videos) that depict minors (real or animated) in an erotic, sensual or sexual manner.” It further authorized the seizure of visual depictions that constitute child pornography as defined in 18 U.S.C. § 2256(8). Government's Response (ECF No. 47), Exhibit D, at pg. 117.[1] Defendant challenges the validity of the search warrant on the grounds that the affidavit in support of its issuance contained intentional and/or reckless misrepresentations or omissions of material fact. Defendant argues that but for these misrepresentations or omissions, probable cause would not have existed to support issuance of the warrant. He therefore requests an evidentiary hearing to determine if the misrepresentations or omissions were intentionally or recklessly made. The Government argues that the affidavit does not contain misrepresentations or omissions of material fact, but to the extent the affidavit did omit relevant facts, the omissions are not material to a finding of probable cause. The Government therefore argues that Defendant is not entitled to an evidentiary hearing and his motion to suppress should be denied.

         1. November 16, 2016 Search Warrant Affidavit.

         The affidavit in support of the November 16, 2016 search warrant was submitted by Detective Scott Miller of the Las Vegas Metropolitan Police Department. Detective Miller is/was a member of the Internet Crimes Against Children Task Force. Under the heading Synopsis, Detective Miller stated as follows:

On or about April 27, 2016, the National Center for Missing and Exploited Children (NCMEC) received a report from Tumblr reference a possible transmission of child pornography. Tumblr reported a user; “mcw”, screen/user name of mcw, and an IP address of 24.253.48.163 uploaded 8 child exploitation images on their Tumblr account. Affiant viewed said images of child sexual exploitation and deemed 2 images to be child pornographic in nature.
A search warrant was served on Tumblr reference above account which resulted in numerous other images/videos of child exploitation being discovered.
This investigation conducted by Affiant has traced this child sexual exploitation computer activity of child pornography to 10432 Burkehaven Avenue, Las Vegas, NV 89166, where affiant expects to find computer / digital evidence of these crimes.

Exhibit D, at pg. 107.

         Under the heading Probable Cause Offering, Detective Miller further stated:

On or about April 27, 2016, the National Center for Missing and Exploited Children (NCMEC) received a report from Tumblr reference a possible transmission of child pornography. Tumblr reported the user uploaded 8 images/videos of child sexual exploitation. Tumblr provided the following information regarding the user:
IP Address: 50.118.198.254 and 24.253.48.163 Date of Incident: April 19, 2016 at 14:14:00 UTC Email Address: mcwarson@gmail.com Screen/User Name: mcw Profile URL: https://mcw.tumblr.com
This report was documented under NCMEC CyberTip #10001179 and forwarded on May 26, 2016 to the Las Vegas Metropolitan Police Department for follow up investigation.
Affiant viewed the 8 uploaded images/videos and deemed two of them to be child pornography. The following is a description of both of the said videos: [Description omitted][2]

Id. at pg. 108.

         Detective Miller further stated that on May 28, 2016, an administrative subpoena was served on Cox Communications “for subscriber information for this IP address, 24.253.48.163 accessed on April 19, 2016, 09:36 hours EDT.” Id. at pg. 108. On June 14, 2016, Cox Communication responded to the subpoena, stating that “IP address 24.253.48.163 resolves to Justin Fisher, Account #: 11011176-03, address of 10432 Burkehaven Avenue, Las Vegas, NV 89166 and telephone number of 702-569-xxxx.” Id. at pg. 109. Detective Miller further stated that on July 1, 2016 a search warrant was served on Google, Inc. for all account information regarding email account: mcwarson@gmail.com, but that no return of further evidence of child exploitation was discovered. Id. at pg. 109. He further stated:

On July 1, 2016, a search warrant was served on Tumblr for all account information regarding Tumblr account mcwarson@gmail.com, IP address 24.253.48.163, user name: mcw.
On September 16, 2016, Tumblr responded to said search warrant with numerous other images/videos of child exploitation. Affiant viewed these images/videos and deemed over 40 of them to be child pornography. The following is a description of 7 of the said images/videos: [Description omitted]

Id. at pg. 109.

         Detective Miller stated that in response to an administrative subpoena served on October 26, 2016, NV Energy stated that 10432 Burkehaven Avenue “resolved” to Justin Fisher. Id. at pg. 110. Based on the foregoing information, ...


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