Opinion
CRIMINAL CASE NO. 1:05-CR-146-WSD-JMF.
May 22, 2006
Attached is the Report and Recommendation of the United States Magistrate Judge made in this action in accordance with 28 U.S.C. § 636(b)(1) and this Court's Local Criminal Rule 58.1(A)(3)(a). Let the same be filed and a copy, together with a copy of this Order, be served upon counsel for the parties.
Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within ten (10) days of the receipt of this Order. In connection therewith, the aforesaid ten-day period, plus three days for mailing, shall be excluded from the Speedy Trial Act ( 18 U.S.C. § 3161, et seq.) computation, regardless of whether such party files any such objection. Should objections be filed, they shall specify with particularity the alleged error or errors made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the district court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the district court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir. 1983), cert. denied 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984).
The Clerk is directed to submit the Report and Recommendation with objections, if any, to the district court after expiration of the above time period.
IT IS SO ORDERED.
MAGISTRATE JUDGE'S REPORT, RECOMMENDATION AND ORDER
PART ONE History of the Case
On or about November 15, 2005, the Grand Jury returned the instant two-count superseding criminal indictment [Doc. 42] charging that, on or about March 16, 2005, in this district, the Defendant did knowingly possess a firearm (i.e., a Glock model 23 pistol) and ammunition as a convicted felon, in violation of Title 18, U.S.C. § 922(g) (Count One). Count Two charges the Defendant with knowingly receiving child pornography in violation of Title 18, U.S.C. § 2252A(a)(2)(A) [Doc. 42, Count Two].
On April 5, 2005, the Grand Jury returned a one-count indictment against the defendant [Doc. 6]. This first criminal indictment charged the defendant with only Count One of the superseding indictment [Doc. 42] (i.e., knowingly possessing a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)). On February 21, 2006, this Court filed its Report, Recommendation and Order [Doc. 73] recommending that the Defendant's Motion to Suppress the search of the his residence on March 16, 2005 [Docs. 10, 16-1, 58] be denied. The conclusions and recommendations previously advanced by this Court in its February 21, 2006 Report, Recommendation and Order are adopted by reference and incorporated herein as if set forth in full. The instant Report and Recommendation pertains to the Defendant's Preliminary Motion to Suppress Evidence [Doc. 52] filed on December 12, 2005 regarding the child pornography retrieved from the search of the his computers and other electronic media.
On April 13, 2005, defendant Steven Kearns (hereafter "Kearns" or "the Defendant") was arraigned and pled not guilty [Doc. 11]. On December 12, 2005, Kearns filed the instant Preliminary Motion to Suppress Evidence seized pursuant to the search of Kearns' computers yielding images of child pornography [Doc. 52]. On December 30, 2005, Kearns filed a Second Amendment to his Motion to Suppress and Brief in Support thereof [Docs. 58, 57-1].
On January 31 and February 16, 2006, this Court conducted evidentiary hearings to consider Kearns' Motion to Suppress Evidence [Docs. 52, 58]. In connection therewith, it received testimony from United States Secret Service Agent Benedict Murray; and documentary evidence, to wit: a sequential listing of files found on CD disk 29 (GX-1), six images found on CD disk 29 labeled "Music 12005" (GX-2), a list of the titles of the 35 CDs seized from the Defendant's residence (DX-1), a computer printout of all of the files found on CD disk 29 (DX-2), a file reference list (DX-3), and a copy of the British Computer Society Computer Forensics and the Encase Forensic Analysis Tool (DX-4). The hearings were taken down by a Court Reporter, and the transcript of the January 31 hearing will be referred to hereafter as "Tr.1." The transcript of the February 16 hearing will be referred to hereafter as "Tr.2."
At the hearing, numerous exhibits were submitted by the parties, and will hereafter be referred to as "GX-" for the Government's exhibits and "DX-" for the Defendant's exhibits. This Court also admitted several exhibits during the evidentiary hearings conducted on July 1, August 3, October 7, and November 16, 2005 in connection with the Defendant's Motion to Suppress the search of his residence, to wit: photographs of defense counsel and witness Hugh Cofield in front of the Defendant's residence (DX-1; DX-2); various photographs of the Defendant's residence (DX-7; DX-8; DX-12; DX-13; DX-15; DX-16; DX-20; DX-21); photograph of Special Agent Justin Boyd (DX-14); statements of Special Agents Lisa Haynes (DX-10), Ben Murray (DX-18), Craig Caldwell (DX-19), Dean Glore (DX-23), James Armiger (DX-24); statement of Deanna Belokur (DX-11); redacted statements (DX-17), certification document and tape recording of Defendant's stepdaughter's 911 call on March 16, 2005 (DX-25; DX-22); and the application and affidavit for the search warrant (GX-1).
This exhibit was filed under seal.
Thereafter, on April 13, 2006, Kearns filed his Post-hearing Brief in Support of his Second Amended Motion to Suppress [Doc. 82-1]. On April 26, 2006, the Government filed its Post-hearing Response to Kearns' Second Amended Motion to Suppress [Doc. 86].
Presently pending before the undersigned is the Defendant's December 12, 2005 Preliminary Motion to Suppress [Doc. 52]; Defendant's December 30, 2005 Second Amendment to Motion to Suppress and Brief in Support thereof [Docs. 58, 57-1]; Defendant's April 13, 2006 Post-hearing Brief in Support of Second Amended Motion to Suppress [Doc. 82-1]; and the Government's April 26, 2006 Post-hearing Response to Defendant's Second Amended Motion to Suppress [Doc. 86].
PART TWO The Issues
I. Whether Special Agent Murray's viewing and seizing of pornography files contained on the Defendant's computer CD disk was within the scope of the original search warrant authorizing a search for only financial, accounting, and real estate fraud-related evidence.
PART THREE Findings of Fact 18 U.S.C. §§ 1007 1014 1028 1029inter alia Id. Id Id Id inter alia inter alia Id 18, U.S.C. § 922 18, U.S.C. § 2252A
As previously noted, this Court issued its Report, Recommendation and Order in this case in connection with Kearns' Motion to Suppress the search of his residence on February 21, 2006 [Doc. 73]. The Findings of Fact previously stated by this Court in its February 21, 2006 Report, Recommendation and Order are hereby adopted by reference and incorporated herein as if set forth in full. Any reference to those facts will hereinafter be referred to as [Doc. 73, FOF #-]. Thus, the Findings of Fact contained herein pertain only to the search of the Defendant's computers, CDs, and other electronic media seized from the Defendant's residence located at 234 Lindsey Place, Marietta, Georgia.
Specifically, Special Agent Glore, in his affidavit in support of the search warrant application, requested permission to search and seize, inter alia, credit card information and credit card transactions that may be stored on a computer, electronic mail correspondence, computer hardware that may contain credit card information and records of transactions; and, if, upon arriving at the scene, the agents conclude that it would be impractical to search the computer hardware on-site for the aforesaid evidence, to conduct an off-site search of the hardware. Special Agent Glore also requested permission to utilize whatever data analysis techniques appear necessary to locate and retrieve the evidence explaining that while "keyword" searches or searching for particular directory or file names may be appropriate in some cases, in others, such techniques may not yield the evidence described in the warrant because suspects may, inter alia, store criminal evidence on a computer in random order with deceptive file names, mislabel or hide files and directories, or encode communications to avoid using key words thereby requiring the searching agent to have to briefly examine all of the stored data to determine which particular files fall within the scope of the warrant. [Doc. 73, (GX-1)].
As previously mentioned in this Court's Report, Recommendation and Order entered on February 21, 2006 [Doc. 73], 18 U.S.C. § 1007 provides, "[w]hoever, for the purpose of influencing in any way the action of the Federal Deposit Insurance Corporation, knowingly makes or invites reliance on a false, forged, or counterfeit statement, document, or thing shall be fined not more than $1,000,000 or imprisoned not more than 30 years or both."
18 U.S.C. § 1014 provides in pertinent part that, "[w]hoever knowingly makes any false statement or report, or willfully overvalues any land, property or security, for the purpose of influencing in any way the action of . . . any institution the accounts of which are insured by the Federal Deposit Insurance Corporation . . . upon any application, advance, discount, purchase, purchase agreement, repurchase agreement, commitment, or loan, or any change or extension of any of the same, by renewal, deferment of action or otherwise, or the acceptance, release, or substitution of security therefor, shall be fined not more than $1,000,000 or imprisoned not more than 30 years, or both . . ."
18 U.S.C. § 1028(a)(7) provides that whoever "knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law . . . shall be subject to fine or imprisoned . . ."
18 U.S.C. § 1029(a)(2) provides that whoever "knowingly and with intent to defraud traffics in or uses one or more unauthorized access devices during any one-year period, and by such conduct obtains anything of value aggregating $1,000 or more during that period . . . shall, if the offense affects interstate or foreign commerce . . ." be subject to fine, imprisonment, or both. 18 US.C. § 1029(e)(1) provides that "the term `access device' means any card, plate, code, account number, electronic serial number, mobile identification number, personal identification number, or other telecommunications service, equipment, or instrument identifier, or other means of account access that can be used, alone or in conjunction with another access device, to obtain money, goods, services, or any other thing of value, or that can be used to initiate a transfer of funds (other than a transfer originated solely by paper instrument)." In addition, 18 U.S.C. § 1029(e)(3) provides that "the term `unauthorized access device' means any access device that is lost, stolen, expired, revoked, canceled, or obtained with intent to defraud."
Special Agent Glore arrested Mr. Williams on November 19, 2004 for bank fraud. [Doc. 73, FOF #24]. At that time, Mr. Williams informed Special Agent Glore that the Defendant was involved in the bank fraud scheme by generating a false merchant credit in the amount of $267,453.22 to Mr. Williams' SunTrust Bank debit card. [Id.]
At the time of his deposition on January 31, 2006, Special Agent Murray had been employed with the Secret Service for approximately four and a half years and assigned to the ECSP for approximately one year and ten months. Tr.1 at 3, 106. As part of his training, he took a seven-week course on how to conduct a forensic examination of computers for evidence in criminal cases. Tr.1 at 106. Furthermore, Special Agent Murray read the search warrant, and understood the scope of the warrant to allow him to search for any type of legal documents, documents relating to real estate, appraisals, letters, credit applications, pictures of homes, mortgage fraud, and templates. Tr.2 at 58.
Special Agent Murray explained that generally there are common file designations used on a computer, to wit: .doc refers to a word document; .txt is also a word processing document; .mpg is a movie file; and .mp3 is a music file. Tr.1 at 5-6. He further stated that it is possible to label a file with one designation, when, in reality, the "file" actually belongs under another designation. Tr.1 at 5-6, 14. For example, he testified that he opened the files identified as image or picture files (i.e., .jpg files) because it is easy to manipulate such a file into a different extension or make it appear to be a different type of file such as changing a word document extension (i.e., .doc) to a picture file extension (i.e., .jpg) in order to disguise the type of file it really is. Tr.1 at 14, 17-19, 35, 87, 98-99; Tr.2 at 52. Based on his experience, he testified that suspects often disguise incriminating files by changing their designation to reflect that of a different designation. Tr.1 at 6; Tr.2 at 23. Thus, it is not necessarily clear from the name of the file or its designation what is actually contained in the file. Tr.1 at 9, 38, 41. Special Agent Murray further explained that the transient nature of CDs make it more likely than not that a suspect would disguise those files by changing the extension or designation for those files. Tr.1 at 5-6, 40, 91. Indeed, this was particularly important in this case since the search for financial fraud evidence was not limited to text files, but also included .pdf files. Tr.1 at 17-18, 98-99. In fact, Special Agent Murray testified that he did find financial or business-related documents that were in a .pdf format that contained .jpgs (i.e., pictures). Tr.1 at 97.
Special Agent Murray stated that he did not conduct a "keyword" search in this case because relevant evidence was readily identifiable once he opened the files. Tr.1 at 5, 8, 17; Tr.2 at 19, 43.
Special Agent Murray testified that he was not looking for child pornography at any time while examining the computers and CDs; nor did he direct any searches for child pornography. Tr.1 at 13, 15; Tr.2 at 41, 45. He stated that he conducted his search pursuant to the warrant (i.e., searching for financial fraud documents). Tr.1 at 15, 17; Tr.2 at 45, 64-65. Indeed, he testified that he opened the files on CD 29 not because he believed it might contain child pornography, but rather because it was the next file listed and he was opening all of the files as part of his routine search for the items listed in the search warrant. Tr.1 at 59, 61-63, 76. In addition, he stated that, even if he had not found the images of child pornography, he would have nevertheless still opened all of the files on the CD. Tr.1 at 14.
Special Agent Murray admitted that, without opening any of the files, he could have taken the files' hash value (i.e., a unique digital fingerprint of a file) and sent it to NCMEC for it to determine whether or not it contains child pornography. Tr.1 at 115-117; Tr.2 at 15-16. However, he also testified that NCMEC does not accept hash values and requires the actual images to be sent for its analysis, in part, because a new image of child pornography may not have a hash value on record with it. Tr.1 at 115-116; Tr.2 at 15-17, 41.
See also 1:05-MJ-1720. Pursuant to Rule 201 of the Federal Rules of Evidence, this Court took judicial notice of the application, affidavit, and search warrant. Tr.1 at 66.
See 1:06-MJ-0058. This Court also took judicial notice of this application, affidavit, and search warrant. Tr.1 at 67.
I. Special Agent Murray's search of the Defendant's computers and CDs for images, under file extensions such as .jpg, .mpg, .mp3, and .pdf was not an impermissible general search but a reasonable search under the Fourth Amendment.
The Defendant moves to suppress the evidence gained from Special Agent Murray's search of the child pornography files found on CD 29 on the ground that his search of these files was beyond the scope of the warrant authorizing a search for financial, accounting, and real estate fraud-related evidence. Specifically, the Defendant contends that Special Agent Murray conducted an impermissible general search of his computer CDs that exceeded the scope of the March 15, 2005 search warrant; and he further contends that Special Agent Murray made no attempt to address intermingled documents (i.e., documents containing both relevant and irrelevant information) by employing reasonable means available to limit the focus of his search to fraud rather than opening every file on the Defendant's CDs. See [Doc. 82-1].
It is well-established that the Fourth Amendment requires that a search warrant describe the things to be seized with sufficient particularity to prevent a general exploratory rummaging of a person's belongings. See Coolidge v. New Hampshire, 403 U.S. 443, 467, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); see also Marron v. United States, 275 U.S. 192, 196 48 S.Ct. 74, 76, 72 L.Ed. 231 (1927) ("The requirement that warrants shall particularly describe things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another"). To prevent such rummaging, a "warrant must enable the executing officer to ascertain and identify with reasonable certainty those items that the magistrate has authorized him to seize." See United States v. George, 975 F.2d 72, 75 (2nd Cir. 1992). In some cases, however, it is not immediately apparent whether an item is within the scope of the search warrant; and, in such cases, an agent must briefly examine the item to determine whether it is one that he is authorized to seize. United States v. Slocum, 708 F.2d 587, 604 (11th Cir. 1983).
An agent's conduct in executing a search warrant is governed by the Fourth Amendment's mandate of reasonableness. See United States v. Wuagneux, 683 F.2d 1343, 1349 (11th Cir. 1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983). "The resolution of the motion to suppress does not turn on whether [Special Agent Murray] conducted the most technically advanced search possible, but on whether the search, as conducted was reasonable." United States v. Gray, 78 F.Supp.2d 524, 529 (E.D. Va. 1999) (citingFlorida v. Jimeno, 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991)). Thus, the particularity requirement of the Fourth Amendment must be applied "with a practical margin of flexibility, taking into account the nature of the items to be seized and the complexity of the case under investigation." See United States v. Sawyer, 799 F.2d 1494, 1508 (11th Cir. 1986) (citing Wuagneux, supra). Furthermore, "[t]he magnitude of the search is not sufficient to establish a constitutional violation. Instead, the search `may be as extensive as reasonably required to locate and seize items described in the warrant.' The reasonableness of the search depends upon the complexity of the crime being investigated and the difficulty involved in determining whether certain documents evidence fraud." Sawyer, 799 F.2d at 1509 (internal citations omitted). Therefore, "in some instances, searching officers must be able to examine nearly every document possessed by a suspected criminal, if only to determine whether the documents contain evidence of criminal activity." United States v. Le, 173 F.3d 1258, 1276 (10th Cir. 1999).
In applying the standard to a search of a computer, CDs and other electronic media, the agents must be clear as to what it is they are seeking on the computer and search it in a way that avoids searching files of types not authorized by the search warrant. United States v. Walser, 275 F.3d 981, 986 (10th Cir. 2001). However, a computer search "may be as extensive as reasonably required to locate the items described in the warrant." Wuagneux, 683 F.2d at 1352 (finding that reading the warrant with practical flexibility entails an awareness of the difficulty of piecing together the paper puzzle in cases involving complex financial transactions and widespread allegations of various types of fraud). Indeed, as previously mentioned, in some instances, agents are authorized to examine all files located at the specific cite to look for the specified evidence. See Gray, 78 F.Supp.2d at 528 (citing United States v. Heldt, 668 F.2d 1238, 1267 (D.C. Cir. 1981)). "So it is not surprising then, that in the course of conducting a lawful search pursuant to a search warrant, law enforcement agents often discover evidence of criminal activity other than that which is the subject of the warrant. If an agent sees, in plain view, evidence of criminal activity other than that for which [he] is searching, this does not constitute an unreasonable search under the Fourth Amendment . . ." Gray, supra; see also Andresen v. Maryland, 427 U.S. 463, 481 n. 10, 96 S.Ct. 2737, 2749 n. 10, 49 L.Ed.2d 627 (1976) (recognizing that effective investigation of complex white collar crimes may require the assembly of a paper puzzle from a large number of seemingly innocuous pieces of individual evidence); United States v. Abrams, 615 F.2d 541, 548 (1st Cir. 1980) (Campbell, J., concurring) (investigators in fraud cases do not and often cannot know in advance what precisely they will find in files).
Here, the March 15, 2005 search warrant explicitly authorized the search and seizure of, inter alia, the Defendant's computers, floppy disks, and CDs establishing that probable cause existed that evidence of financial and real estate fraud-related documents would be contained therein. In fact, the Defendant does not contend otherwise. Rather, he asserts that the search of the disks for such information should have stopped short of opening and viewing the contents of the particular files that proved to contain the images of child pornography arguing that Special Agent Murray should have been able to determine what kind of material each computer file contained without having to open the file according to the indication in the file directory of the file type (i.e., whether the file was labeled as a .txt file or .jpg file) or by conducting a file signature analysis match, which would indicate whether a file extension is misidentified. Tr.2 at 23, 40. However, contrary to the Defendant's assertion, in executing this search warrant, Special Agent Murray was authorized to cursorily review the files on the computers and CDs to determine if they were of the type covered by the search warrant.
As Special Agent Murray explained, files containing graphical images may be assigned file extensions that are typically assigned to text files and files containing text may be assigned file extensions typically given to graphical image files. Tr.1 at 5-6, 9, 14, 17-19, 35, 38, 40-41, 87, 91, 98-99; Tr.2 at 23, 52;see also United States v. Hunter, 13 F.Supp.2d 574 (D. Vt. 1998). Hence, Special Agent Murray could not have determined simply from the file names and extensions that the files on the disks that contained the alleged child pornography did not contain other material relevant to the fraud allegations. He knew from his experience that suspects often intentionally disguise their files by manipulating their file designation. Tr.1 at 6; Tr.2 at 23.
Even if the sexually suggestive titles would put a reasonable agent on notice that those files contained sexual material, it is reasonable to conclude, as Special Agent Murray did, that these files could have been disguised and still contain evidence of the existence of assets and properties or transactions providing evidence of fraud. See United States v. Childers, 117 Fed.Appx. 633, 636 (10th Cir. 2004). Therefore, he could not be certain that files with the .jpg designation did not actually contain items for which he was authorized to search. He could have done that only by opening and inspecting the contents of the files, without regard to the file extensions they bore. Furthermore, even the warrant's authorization of the search for the photographs relating to the fraud (i.e., pictures of homes) allowed Special Agent Murray to open and inspect the contents of the graphical image files on the disks. Indeed, the search for financial fraud evidence in this case was not limited to text files, but also included .pdf and .jpg files. Tr.1 at 17-18, 98-99. In fact, Special Agent Murray even found financial or business-related documents that were in a .pdf format that contained .jpgs or pictures. Tr. 1 at 97. In the course of doing so, he inadvertently discovered evidence of suspected child pornography. Documents not specified by the search warrant may be seized if discovered inadvertently when probable cause to seize exists on its face. See Heldt, 668 F.2d at 1267.
The Defendant heavily relies on the Tenth Circuit's decision inUnited States v. Carey, 172 F.3d 1268 (10th Cir. 1999). However,Carey is clearly factually distinguishable and inapposite from the present case. In Carey, the police inadvertently discovered child pornography on the defendant's computer while searching for evidence of drug transactions. Id. The officers, however, without obtaining a second warrant, abandoned their search for drug transactions, and proceeded to search for further images of child pornography. Id. at 1271, 1273. Indeed, the officer in Carey testified that after he inadvertently found the first image of child pornography, when he thereafter searched the .jpg files, he was specifically looking for child pornography and not drug-related evidence that was the subject of the search warrant. Id. Therefore, the Tenth Circuit held that while the first image of child pornography was inadvertently discovered and not due to be suppressed, the officer had exceeded the scope of the search warrant because when he opened the subsequent .jpg files, he expected to find and was, in fact, looking for child pornography thereby abandoning his search for drug-related evidence and intentionally commencing a search for child pornography not authorized by the existing search warrant. Id. at 1276.
Of particular importance in this case, in contrast to the facts presented in Carey, is that Special Agent Murray testified that he never abandoned his original search nor did he commence a new search for child pornography, but was, rather, continuing his sequential search of CD 29 without regard to file names or designations. Tr.1 at 13, 15, 17; Tr.2 at 41, 45, 64-65. As the Eastern District Court of Virginia recognized in a footnote inGray:
Not presented here is what result would obtain had [the agent] not stopped his search and obtained a warrant after the initial discovery of the child pornography. Arguably, [the agent] could have continued his systematic search of the defendant's computer files pursuant to the first search warrant, and, as long as he was searching for the items listed in the warrant, any child pornography discovered in the course of that search could have been seized under the "plain view" doctrine. (citation omitted).Gray, 78 F.Supp.2d at 530 n. 11. This case is no different than that contemplated by the Eastern District Court of Virginia in its footnote 11 above. The child pornography seized by Special Agent Murray must have been in plain view during his search for fraud-related evidence. To satisfy the plain view doctrine: (1) the agent must be lawfully in the place where the seized item was in plain view; (2) the item's incriminating nature must have been immediately apparent; and (3) the agent had a lawful right of access to the object itself. See Horton v. California, 496 U.S. 128, 136-37, 110 S.Ct. 2301, 110 L.Ed.2d 112 (1990).
Here, pursuant to the valid search warrant, Special Agent Murray determined that the items listed in the search warrant which could be located on computer files could be found in plain text, special text, or graphic files. Tr.1 at 14-19, 97-99. While searching the graphics files for evidence of fraud, as allowed by the warrant, Special Agent Murray inadvertently discovered what he perceived to be images of child pornography. The incriminating nature of the files was immediately apparent to Special Agent Murray. Since he was lawfully searching for evidence of fraud in the graphics files, that he had legitimately accessed and where the child pornography was located, the evidence was properly seized under the plain view doctrine. See Mapp v. Warden, 531 F.2d 1167, 1172 (2nd Cir. 1976), cert. denied, 429 U.S. 982, 97 S.Ct. 498, 50 L.Ed.2d 592 (1976) ("it would be somewhat absurd to require an investigator to be oblivious to that which would be apparent to anyone else with normal powers of observation").
In addition, this Court finds the Defendant's argument that after Special Agent Murray viewed the first image of child pornography, he had probable cause to suspect the other images (i.e., .jpg files) contained child pornography uncompelling. Special Agent Murray could not be certain, regardless of the designation given the files, that the remaining files did not contain materials for which he was authorized to search. In fact, at least one of the files located in between the suspected images of child pornography on CD 29 contained several software programs of the type relevant in this case. Tr.1 at 12-13; (GX-1).
In short, having found that the search warrant was supported by probable cause, stated particularly the items to be seized, and executed in a reasonable manner, this Court is compelled to conclude that the evidence of child pornography obtained in the execution of the search warrant on the Defendant's computers, CDs and other electronic media should not be suppressed.
For the above and foregoing reasons, the Defendant's Motion to Suppress is without merit.
IT IS THEREFORE RECOMMENDED that the Defendant's Motion to Suppress [Docs. 52, 58] be DENIED.
ORDER AND CERTIFICATE
All other motions having been disposed of,IT IS HEREBY ORDERED that this case be, and is hereby Certified Ready for Trial.
Let a copy of this Order be served by mail upon counsel for the parties.
IT IS SO RECOMMENDED, ORDERED AND CERTIFIED.