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United States v. Wright

United States District Court, D. Nevada

January 6, 2020

UNITED STATES OF AMERICA, Plaintiff,
v.
EDWARD C. WRIGHT, Defendant.

          ORDER

          MIRANDA M. DU, CHIEF UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         Defendant Edward C. Wright was indicted on two counts involving receiving and possessing child pornography. (ECF No. 1.) Defendant moves to suppress the evidence the government collected under a search warrant, primarily from his tablet (“Motion”).[1] (ECF No. 20.) In a prior order, the Court granted Defendant's request for a Franks[2] hearing contained within his Motion (ECF No. 32), and the Court held that hearing on December 23, 2019 (the “Hearing”) (ECF No. 41). As further explained below, the Court agrees with Defendant that Detective Laura Thomsen made intentional omissions in her application for a search warrant (“Warrant”), but otherwise disagrees with Defendant on the Franks issue because the Court finds the Warrant still would have issued if the omissions were added back in. Thus, the Court will not suppress any evidence based on Detective Thomsen's Franks violation. Further, the Court finds that Detective Thomsen and other unnamed investigators at the Washoe County Sheriff's Office (“WCSO”) violated Defendant's Fifth Amendment rights when they forcibly unlocked his smartphone-before they got a warrant-by holding it up to his face. Thus, the Court will suppress any evidence obtained from the smartphone. However, because this constitutional violation was not causally connected to the evidence discovered on Defendant's tablet, the Court declines to suppress the evidence collected on the tablet pursuant to the Warrant.

         II. FINDINGS OF FACT[3]

         The Court relies on documents filed by Defendant with his Motion, along with the testimony offered and exhibits admitted at the Hearing, to construct this factual background.

         In 2018, Detective Thomsen began investigating Defendant for his failure to update his address as required of a registered sex offender. (ECF No. 25 at 2.) In February 2018, detectives also began investigating Defendant for sexually assaulting a four-year-old child. (Id.) Though he agreed to meet detectives for a polygraph in March 2018 in connection with the assault investigation, Defendant did not appear for the polygraph. (Id.) Detectives were unable to locate Defendant again until January 2019. At the time, Defendant was living with Timothy Bennett. (ECF No. 20 at 2.) Bennett called the police on January 28, 2019 to report that he discovered what he thought was child sexual abuse imagery on Defendant's tablet. (Id.) Bennet spoke with Detective Thomsen when he called. (Id.) After that conversation, Detective Thomsen interviewed Bennett twice. (Id.) Detective Thomsen recorded those interviews. (Id.)

         In the interviews, Bennett explained how he came to know Defendant, how he let Defendant move in with him, and how he came to find what he thought was child sexual abuse imagery on Defendant's tablet. (ECF No. 20-1 at 6-7.) Bennett also described the images he saw on the tablet on January 11, 2019. (Id. at 6.) Detective Thomsen noted all of this information both in her police report (id.), and in the affidavit (“Affidavit”) she filed in support of her application for a search warrant (“Application”) to search three electronic devices that belonged to Defendant-a smartphone and a smart watch in addition to the tablet (ECF No. 20-4 at 1-10). She also wrote in both documents that Bennett told her Defendant always had all three devices in his possession. (ECF Nos. 20-1 at 7, 20-4 at 9.) In addition, Detective Thomsen noted in her Affidavit that Defendant pleaded guilty to possession of child pornography in 2003, had missed a required sex offender registration, and was under investigation for the sexual assault of a child. (ECF No. 20-4 at 9-10.) She wrote that this history made it reasonable to believe that Bennett's tip as to the child sexual abuse imagery on Defendant's tablet was reliable. (Id. at 10.)

         Detective Thomsen's Application was granted, resulting in the Warrant. (ECF No. 20-4 at 12-13.) The Warrant authorized law enforcement to make “a complete search within” Defendant's tablet, smartphone, and smart watch, “including any containers therein, whether locked or unlocked, which could reasonably contain the evidence to be searched for . . .” (Id. at 13.) After conducting a forensic examination of Defendant's electronic devices under the Warrant, Detective Thomsen's colleagues found 300 images of alleged child pornography on the tablet, but were unable to download anything from the smartphone or smart watch. (ECF No. 25 at 2.)

         However, Detective Thomsen also learned other information from Bennett in the recorded interviews that she did not include in her Application. At the Hearing, Detective Thomsen repeatedly testified that she intentionally omitted the five items of information summarized below from her Application because she thought they were not relevant to the Application.[4] First, Bennett told Detective Thomsen that he is an ex-felon. (ECF No. 20 at 3.) Specifically, he was convicted of obtaining money by false pretenses and grand larceny in 2007-for stealing a mobile home, forging its title, and selling it to someone else for $20, 000. (ECF No. 20-3.) Second, Bennett told Detective Thomsen he had the passwords to Defendant's electronic devices, and had accessed them when Defendant was not there on at least one occasion. (ECF No. 27 at 7.) Third, Bennett told Detective Thomsen that he wanted to see Defendant arrested. (Id.) Fourth, Bennett told Detective Thomsen that he had, referring to Defendant, “choked that son-of-a-bitch halfway to death, ” when Defendant showed up at Bennett's apartment drunk, and Bennett's son had to pull Bennett off Defendant to break up the altercation. (ECF No. 41.) Fifth, Bennett told Detective Thomsen that he had been letting Defendant stay with him in his studio apartment, and pay him rent money, even though Bennett was prohibited from doing so and could lose his subsidized housing if the relevant authorities found out. (Id.) As noted, Detective Thomsen did not include any of this in her Affidavit. (ECF No. 20-4.)

         Detective Thomsen arrested Defendant at the Washoe County Senior Center for failing to register as a sex offender and took him to jail. (ECF No. 20 at 3; see also ECF No. 20-1 at 7.) Based on Detective Thomsen's testimony at the Hearing, the exchange in the interrogation room described below occurred shortly after she arrested Defendant, but before she submitted the Application-described above. Thus, the exchange described below occurred before she obtained the Warrant.

         After moving Defendant to an interrogation room, accompanied by two other unidentified WCSO officers, Detective Thomsen told Defendant: “Obviously you are in custody. I'll just read you Miranda real quick . . . before I talk to you.” (ECF No. 20 at 3.) She read Defendant a Miranda warning. (Id.) Detective Thomsen then asked Defendant, “Are you cool talking with me?” (Id.) Defendant responded, “I want an attorney.” (Id. at 3-4.) Detective Thomsen confirmed his statement. (Id. at 4.)

         After Defendant invoked his right to counsel, Detective Thomsen stopped asking him substantive questions. But on the recording of the interview, you can then hear male voices-the other detectives-say, “I think he needs to take his glasses off, ” and then ask Defendant to take off his glasses. (ECF No. 20-5 at 1:29-1:41.) Several minutes later in the recording (id. at 6:34), you can hear the sound of his phone unlocking (ECF No. 20 at 4). Shortly thereafter, Detective Thomsen and the other detectives appear to have gotten what they were seeking, and end the recording (id. at 6:35-6:54). The government does not dispute any of this. (ECF No. 25.) The government concedes the officers in the interrogation room unlocked Defendant's smartphone by holding it up to his face. Similarly, the government does not dispute this occurred before Detective Thomsen got the Warrant.

         III. DISCUSSION

         Defendant makes two main arguments in his Motion. The Court addresses both below-first the Franks argument, and then Defendant's arguments regarding the forcible unlocking of his phone using his face, which the Court refers to under the heading ‘biometrics.'

         A. Franks

         Defendant first argues suppression is warranted under Franks. (ECF No. 20 at 7-10.) This argument was the focus of the Hearing. In Franks, the Supreme Court established a two-prong test for overturning a judicial officer's probable cause finding. Under this test, as always, there is a “presumption of validity with respect to the affidavit supporting the search warrant.” Franks, 438 U.S at 171. And here, as noted, the Court determined Defendant made a sufficient preliminary showing such that a Franks hearing was warranted (ECF No. 32), and held the Hearing. That brings the Court to the merits of Defendant's Franks challenge.

         “To prevail on a Franks challenge, the defendant must establish two things by a preponderance of the evidence:” (1) “that the affiant officer intentionally or recklessly made false or misleading statements or omissions in support of the warrant, ” and (2) “that the false or misleading statement or omission was material, i.e., necessary to finding probable cause.” U.S. v. Perkins, 850 F.3d 1109, 1116 (9th Cir. 2017) (internal quotation marks, punctuation, and citation omitted). “If both requirements are met, the search warrant must be voided and the fruits of the search excluded[.]” Id. (internal quotation marks and citation omitted). Under the first Franks step, a “negligent or innocent mistake does not warrant suppression.” Id. Under the second step of Franks, the “key inquiry is ‘whether probable cause remains once the evidence presented to the magistrate judge is supplemented with the challenged omissions.'” Id. at 1119 (citation omitted). “Probable cause to search a location exists if, based on the totality of the circumstances, there is a ‘fair probability' that evidence of a crime may be found there.” Id.

         The Court begins with Franks step one. It is not a close call. Defendant has established by a preponderance of the evidence that Detective Thomsen intentionally omitted the Five Omissions from her Application. Indeed, Detective Thomsen testified at the Hearing that she intentionally omitted the Five Omissions from her Application because she determined they were not relevant to Bennett's credibility, at least in part because he was a reporting party and not someone himself under investigation, and seemingly in part because of her belief that what constitutes relevant information to include in her Application lies entirely within her discretion. Thus, Detective Thomsen's testimony at the Hearing establishes that Defendant prevails on Franks step one.

         But the Court will not immediately move on to Franks step two because the Court found Detective Thomsen's testimony at the Hearing troubling. It seems to reflect a view of appropriate investigatory practices that defy both the law and common sense. At the most basic level, Detective Thomsen explained that she did not include the Five Omissions ...


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