Opinion
Case No. 04-60216-CR-COHN/SNOW.
March 11, 2005
REPORT AND RECOMMENDATION
THIS CAUSE is before the Court on the following motions filed by the defendant, which were referred to United States Magistrate Judge, Lurana S. Snow, for report and recommendation.
1. Motion to Suppress Physical Evidence (DE 239);
2. Additional Motion to Suppress Physical Evidence (DE 248);
3. Motion to Suppress All Evidence and Fruits Derived from Illegally Intercepted Telephone Calls (DE 228), and
4. Motion for Order in Limine regarding evidence or testimony concerning telephone conversations between defendant Kenneth Wilk and Kelly Jones (DE 237).
The defendant seeks to suppress all evidence obtained as the result of a federal search warrant served at his residence on August 19, 2004, and the subsequent state warrants that were issued after the shooting of two Broward Sheriff's Office (BSO) deputies during the execution of the federal warrant. He also asks that the contents of his telephone conversations with Kelly Ray Jones while Jones was incarcerated at the St. Lucie County Jail be suppressed and that an order in limine be issued precluding the introduction of evidence or testimony related to those calls. An evidentiary hearing on those motions was held on February 28 and March 1, 2005.
I. EVIDENCE PRESENTED
Special Agent Christopher Harvey of the Bureau of Customs and Immigration Enforcement (ICE) testified that he is a member of the LEACH (Law Enforcement Against Child Harm) Task Force, which investigates crimes against children. The Task Force is composed of members of federal, state and local law enforcement agencies, including the St. Lucie County Sheriff's Office (SLSO). Agent Harvey was the affiant on the application for the federal search warrant issued by United States Magistrate Judge Frank Lynch for the defendant' residence on August 18, 2004.
A copy of that application and warrant is attached to this report.
Agent Harvey testified that in July 2004, he participated in the arrest of Kelly Ray Jones at the defendant's residence and in a court ordered search of that residence. Agent Harvey and Jones discussed a person named "Chuck" (Charles Carothers), who was a witness against Jones. Following his arrest, Jones was housed in the St. Lucie County Jail, from which Jones regularly placed telephone calls.
Agent Harvey contacted SLSO Detective Dan Burkhardt and requested copies of tape recorded telephone calls made by Jones from the jail. Detective Burkhardt is not a correctional officer, but is a sheriff's deputy assigned to the St. Lucie County Jail on a full time basis and is the person in charge of telephone calls placed by inmates. Detective Burkhardt informed Agent Harvey that recorded calls are accessed by the telephone number called rather than by the inmate's name. Agent Harvey provided Detective Burkhardt with the telephone number of Jones' residence, where the defendant continued to live.
Agent Harvey knows from conversations with Detective Burkhardt that the St. Lucie County Jail records all outgoing telephone calls placed by inmates. Calls must be collect, and each call begins with a recorded preamble that is heard by the inmate and the person he has called. The preamble states that the call will be disconnected if a third party is connected and that the call may be monitored. The recipient then must press "3" on his or her telephone to accept the call. If the recipient accepts the call, the call is recorded; if the recipient fails to press "3," there is no recording. Therefore, the recorded preamble is not included in the inmate calls tape recorded by the jail. Prior to the hearing on the instant motion, Detective Burkhardt demonstrated this by placing a call to Agent Harvey.
There are no written directives to St. Lucie County Jail personnel pertaining to the recording of inmate telephone calls and no documents are given to the inmates regarding the policy of recording on all phone calls. (Government's Supplemental Response to Defendant's Motion to Suppress All Evidence and Fruits Derived From Illegally Intercepted Telephone Calls).
In the third recorded telephone call placed by Jones to the defendant, Jones reminds the defendant that the call is being recorded. In Agent Harvey's opinion, Jones and the defendant spoke in coded language during all of their recorded telephone conversations. Agent Harvey bases this opinion on his experience in fifteen to twenty child pornography investigations, as well as on the totality of the conversations recorded during 73 telephone calls placed by Jones to the defendant.
Agent Harvey testified that computers were seized from the residence of the defendant and Jones during the execution of the July 2004 search warrant. The recorded telephone conversations between the defendant and Jones revealed that there was another computer remaining at the residence. Jones instructed the defendant to delete certain e-mails from that computer, and the defendant responded that this was the reason there was a computer repairman at the home. Jones and the defendant also discussed the need to destroy certain computer disks (CDs). Jones pointed out that destroying evidence against Jones might also entail destroying evidence against "him." Agent Harvey believes that Jones was referring to Carothers, who was a witness against Jones.
During another conversation, the defendant told Jones that he was able to get rid of some of the e-mails on the AOL account, but had not bee able to delete all of them before AOL shut down the account. Jones instructed the defendant to take notes, and the defendant replied that he had a pad by every telephone. The defendant and Jones also discussed various retaliatory measures that could be taken against Carothers; the need to raise money for Jones' arrest; the possibility of selling the house and leaving the country; people who were friends of Carothers, and someone Jones told the defendant to get in touch with if he had a problem.
As a result, Agent Harvey believed that the evidence which could be found at the defendant's residence included records of real estate transactions, handwritten notes, emails, child pornography, contact information relating to co-conspirators, computers and computer-related items. In his application for the federal search warrant, he included these things in the list of items to be seized. Agent Harvey understood that in determining which items to seize, he and the searching officers were limited by the information contained in his affidavit in support of the search warrant that was issued by Judge Lynch on August 18, 2004.
Agent Harvey stated that he requested assistance from local law enforcement officers in the execution of the warrant. He explained that there are only eight agents in his Fort Pierce office and that it is routine to ask for help from state and local officers whenever a search warrant must be executed. Agent Harvey stated that there were two meetings of the search warrant team prior to the time it was executed. The first, which Agent Harvey did not attend because he was obtaining the warrant from Judge Lynch, took place on August 18, 2004. The second meeting was held at approximately 7:45 a.m. on August 19, 2004.
Agent Harvey testified that during these meetings, the search team discussed previous entries into the residence, and a general description of the interior and exterior was provided. Based on surveillance that had been conducted, the officers knew that there were no vehicles in the driveway. This led Agent Harvey to conclude that the garage, which previously had been used for storage, may have been cleared out to make room for the cars. Agent Harvey knew that the defendant possessed more than one firearm. However, during previous entries the guns were located in a locker inside a closet.
Agent Harvey explained that there was a lengthy discussion about the procedure for entry. At Agent Harvey's request, BSO officers were to be in charge of the initial entry. The members of the search team discussed the fact that during the July 2004 arrest of Jones, Jones had been permitted to leave the residence and was stopped by a marked vehicle. Agent Harvey pointed out that during recorded telephone conversations, Jones and the defendant had discussed the fact that the police probably would come back and would utilize the same procedure. During one such conversation, the defendant told Jones that every time someone knocked on his door or he heard the dogs bark, he was afraid it was the law enforcement. Jones advised the defendant not to answer the door, since the police would probably do it the same way as they had with Jones.
Agent Harvey testified that the members of the search team also discussed using a ruse. However, they decided against such a tactic because the defendant was anticipating this possibility. Also, there was no place outside the residence to line up an entry team and they did not want an officer alone at the door. After considering and rejecting other procedures, including use of a SWAT team to gain entry, they decided to "knock and announce."
Agent Harvey related that prior to approaching the residence on the morning of August 19, 2004, surveillance officers saw an individual (presumably the defendant) who briefly went outside the house to put something in the trash. No other activity was observed. At approximately 8:30 a.m., six members of the entry team approached the front of the house, forming a line known as a "snake" leading up to the front door. Agent Harvey, who was the last in line, carried a battering ram and was assigned to cover the officers who were ahead of him.
Agent Harvey stated that as the team approached the garage, they heard doors barking. When the first officers reached the front door, Agent Harvey set down the ram. He heard one of the deputies repeatedly knock on the door and announce that it was the Broward County Sheriff with a warrant. This went on for approximately 30 seconds, but no one called out or answered the door. Agent Harvey noted that the officers could not see inside the house because the windows were tinted.
Agent Harvey testified that he heard one of the deputies give the command to make entry. He observed two officers using a pry bar and a sledge hammer to force open the door. When this did not succeed, one of the officers smashed a window. Agent Harvey stated that the process of opening the door took longer than usual (at least another 30 seconds and possibly as long as one minute). Throughout this time, the officers continued to yell, "Police, search warrant."
When they finally gained entry, the officers continued yelling. All six members of the initial entry team tried to enter as a unit. Agent Harvey, who was the last in line, never got inside.
On cross examination, Agent Harvey testified that he has no affiliation with the St. Lucie County Jail and that he did not obtain a search warrant, subpoena or court order for the taped calls placed by Jones from the jail. Agent Harvey stated that he spoke to Detective Burkhardt within a few days of Jones' arrival at the jail in July 2004. Agent Harvey had spoken to Detective Burkhardt regarding jail telephone calls in other cases. On this occasion, Detective Spector of the St. Lucie County Sheriff's Office had made the first contact with Detective Burkhardt, asking for any telephone calls made by Jones.
Agent Harvey explained that such a request is made routinely. At the time this request was made, the defendant was not a target or suspect in any criminal investigation. Agent Harvey also stated that Detective Spector, who is a member of the LEACH Task Force, was acting at Agent Harvey's behest in making the request, and that Detective Spector had never expressed any animosity toward the defendant or a desire to "get him."
Agent Harvey conceded that he did not listen to the telephone conversations between the defendant and Jones as they were taking place. Therefore, Agent Harvey does not know of his own personal knowledge whether the recorded preamble was played on any of the calls or whether the equipment which generates the recording was functioning on each call.
Agent Harvey also acknowledged that he may not have been present when officers began executing the federal search warrant for the defendant's residence on August 19, 2004, since Agent Harvey had been a witness to the events which led up to the shooting of Deputies Fatta and Cedeno. However, Agent Harvey did speak to the search team and described to them exactly what he was looking for. Agent Harvey joined the search on August 19, 2004, and remained with the search team until the search was concluded a few days later. He stated that he seized notes written by the defendant during telephone conversations with Jones, receipts which showed work done by a computer repairman, and a computer which contained child pornography. There was no other child pornography found in the house.
Agent Harvey reiterated that he had been part of the team that was to make entry into the house. His assignment, as the last person in line, was "rear cover." He was required to carry the battering ram and, when he saw that the ram was not needed to gain entry, to draw his weapon and look out for threats such as people, open doors or windows and obstructions. Agent Harvey stated that the window was broken by the officers ahead of him before they succeeded in opening the door.
Agent Harvey recalled that dogs were barking as the officers gained entry. Deputy Fatta went in first, followed by Deputy Cedeno. Agent Harvey was unable to make entry because the chain was broken by gunfire and there was a bottleneck at the door. At this point, the rest of the entry team was required to take cover. Agent Harvey positioned himself at a corner of the garage where he was able to see the front door and window. When Deputy Cedeno exited the house, another officer fired shots through the window.
Agent Harvey testified that all of the officers on the search team wore vests which identified them as law enforcement officers. The BSO deputies wore black vests with yellow lettering, most of which was five to six inches in height, although there was some smaller lettering on each vest. Agent Harvey stated that he did not shout his identification as a law enforcement officer or discharge his firearm; only the BSO deputies did these things. Agent Harvey did not see the defendant until after he had been handcuffed.
BSO Lieutenant Kevin P. Butler testified that he is a member of the LEACH Task Force and is in charge of the ICAC (internet crimes against children) grant which funds the task force. Lt. Butler stated that he was the supervisor at the defendant's residence on August 19, 2004, and took up a position at the rear perimeter of the defendant's property. He explained that original plan had been to use a ruse to gain entry, but the plan was changed because the officers learned that the defendant might be anticipating a ruse.
Lieutenant Butler related that he heard officers in the entry team knock and announce their presence. There was no response from inside the house. Lieutenant Butler then heard gunfire and saw that Deputy Cedeno had been wounded. When the defendant appeared at the door, Lieutenant Butler ordered him to exit the residence with his hands up, then lie down on the ground on his stomach. Lieutenant Butler quickly patted down the defendant and handcuffed him. When Lieutenant Butler learned that Deputy Fatta was still inside the house, he instructed St. Lucie County Sheriff's Deputy Whitney to stay with the defendant.
On cross examination, Lieutenant Butler conceded that he had not participated in drafting the search warrant and had not read it. Lieutenant Butler explained that BSO was using a "high risk entry team," which is different from a SWAT team.
Lieutenant Butler recalled that he heard gunfire a few seconds after he heard hammering at the door. He specifically recalled hearing the officers use the words, "Sheriff's Office," and "search warrant." Lieutenant Butler could not see inside the house and did not observe the shooting of either deputy. He heard two shots from a large caliber weapon, followed by small caliber rounds, which he later learned had been fired into the house by police officers.
II. RECOMMENDATIONS OF LAW
1. Motion to Suppress Physical Evidence
In this motion, the defendant seeks to exclude evidence seized pursuant to the search warrant issued by Judge Lynch on August 18, 2004. He argues that the warrant was defective because (1) it was based in part on use of illegally intercepted telephone conversations between the defendant and Kelly Jones; (2) contained false and misleading representations and deliberate omissions of material facts; (3) was overbroad, and (4) lacked probable cause. The defendant also challenges the execution of the warrant based on the fact that it was executed by local officers not listed in the warrant and in violation of the "knock and announce" statute. Finally, the defendant argues that evidence seized pursuant to subsequent search warrants of his residence and of AOL accounts involved in this case must be suppressed as "fruit of the poisonous tree."
Review of the conduct of the police in obtaining and executing the search warrant for the defendant's residence is controlled byUnited States v. Leon, 468 U.S. 897 (1984). In creating what has been called a "good faith exception" to the exclusionary rule, the Court recognized that the rule "operates as 'a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect, rather than a personal constitutional right of the party aggrieved.'" Id. at 906, quoting United States v. Calandra, 414 U.S. 338, 348 (1974). The Court noted that the articulated purpose of the exclusionary rule never had been to punish the errors of judges and magistrates, and there is no evidence to suggest that judges or magistrates are inclined to ignore or subvert the Fourth Amendment or that "exclusion of evidence seized pursuant to a warrant will have a significant deterrent effect on the issuing judge or magistrate." Leon, 468 U.S. at 916. Accordingly, the Court concluded that "suppression of evidence seized pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule". Id. at 918.
The Court noted that in an ordinary case, a police officer cannot be expected to question a magistrate's probable cause determination or judgment that the form of the warrant is technically correct. However, suppression of evidence seized pursuant to a warrant still might be proper in those rare instances where the officer has no reasonable grounds for believing that the warrant was properly issued. Id. at 921-923. Therefore, the Court recognized four situations where a finding of good faith reliance would not be appropriate:
1. Where the magistrate or judge was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth, as discussed in Franks v. Delaware, 438 U.S. 154 (1978);
2. Where the issuing magistrate wholly abandoned his or her judicial role and becomes a "rubber stamp" for the police, as inLo-Ji Sales, Inc. v. New York, 442 U.S. 319 (1979);
3. Where the warrant is based on an affidavit that is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable, as in Brown v. Illinois, 422 U.S. 590, 610-611 (1975); and
4. Where a warrant is so facially deficient, as where it fails to particularize the place to be searched or the items to be seized, that the executing officers cannot reasonably presume it to be valid. Leon, 468 U.S. at 923.
a) Franks Violation
The defendant contends that the first exception to the rule articulated in Leon applies because Agent Harvey's affidavit in support of the search warrant contains deliberate misstatements and omissions of material fact. In Franks v. Delaware, 438 U.S. 154 (1978), the Supreme Court established the procedures to be utilized where a defendant challenges the truthfulness of averments in an affidavit used to procure a search warrant:
[W]here the defendant makes a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause, the Fourth Amendment requires that a hearing be held at the defendant's request. In the event that at that hearing the allegation of perjury or reckless disregard is established by the defendant by a preponderance of the evidence, and with the affidavit's false material set to one side, the affidavit's remaining content is insufficient to establish probable cause, the search warrant must be voided . . .Id. at 155-156. Allegations that the statements of the affiant were merely negligent or the result of innocent mistake are insufficient, and the deliberate falsity or reckless disregard must be directed toward the affiant, not toward an informant whose statements are contained in the affidavit. Id.
A person who seeks to challenge the veracity of an affidavit in support of a search warrant or wiretap application must meet the threshold requirement of a "substantial preliminary showing" that false statements were deliberately or recklessly made.
There must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons. Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.Franks v. Delaware, 438 U.S. 154, 171 (1978). The same analysis applies where the challenge is to the omission of relevant facts from the affidavit. United States v. Harvey, 560 F.Supp. 1040, 1074 (S.D. Fla. 1982).
In his Motion to Suppress Physical Evidence, the defendant states:
The magistrate judge who issued the first [federal] warrant was not given all material information. The judge was not informed that the (sic) Chuck Carothers was a male prostitute who was apparently working with law enforcement. Moreover, there was no indication that Carothers made an identification of Defendant as the person who supposedly confronted him. In addition, there is no explanation of how Carothers became a government witness. Agent Harvey makes a statement in his affidavit that the Defendant was a user of the computer (the computer seized at the time of Jones's arrest), but does not explain how "forensics" came to that conclusion. A statement was made that the Defendant was charged with a felony in 2001 "in connection with Jones' 2001 arrest," without explanation or basis in fact. Agent Harvey makes no mention of any contacts between the Defendant and "Robert," whom he concedes was an undercover officer.
(Motion, DE 239 at 15-16.)
These allegations fall far short of the "substantial preliminary showing" required by Franks, since the omissions about which the defendant complains would have had no bearing on the magistrate judge's finding of probable cause. Moreover, the defendant has made no offer of proof by means of affidavits or otherwise. Therefore, the undersigned declined to conduct a hearing on this issue and there is no basis to invalidate the search warrant on this ground.
b) Lack of Probable Cause and Overbreadth
The defendant also argues that the warrant lacks probable cause and is overbroad. As noted above, Leon requires that the affidavit in support of the warrant be "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable." In Illinois v. Gates, 462 U.S. 213, 238 (1983), the Supreme Court held that in issuing a search warrant, the task of a judge or magistrate is "to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place." In so holding, the Court recognized that search warrant affidavits "'are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no place in this area.'" Id. at 235, quoting United States v. Ventresca, 380 U.S. 102, 108 (1965).
A review of Agent Harvey's affidavit reveals that it sets forth ample probable cause to believe that evidence of federal crimes would be found at the defendant's residence. Specifically, the warrant refers to the crimes of conspiracy to obstruct justice by witness and evidence tampering and conspiracy to possess child pornography that had been transported in interstate or foreign commerce, in violation of 18 U.S.C. §§ 1512(k) and 2252(b)(2), as charged in Counts 5 and 6 of the Superseding Indictment.
The evidence which the warrant authorized the agents to seize was:
1. Books, records, invoices, receipts, notes, records of real estate transactions.
2. Any and all written communications to include but not limited to hand written notes and emails or electronic communications.
3. Photographs, including still photos, negatives, video tapes, films, undeveloped film and the contents therein, in particular photographs or images whether electronic or not that would constitute child pornography.
4. Electronic equipment, such as computers, telex machines, facsimile machines, telephone answering machines and related manuals used to generate, transfer, count, record and/or store the information described in items 1, 2 and 3. Additionally, the computer software, tapes and discs, audio tapes and the contents therein, containing the information generated by the aforementioned electronic equipment.
5. Address and/or telephone books, Rolodex indices and any papers reflecting names, addresses, telephone numbers, pager numbers, fax numbers, email addresses and/or telex numbers of co-conspirators, sources of supply, or witnesses in this case.
6. Indicia of occupancy, residency, rental and/or ownership of the premises described herein, including, but not limited to utility and telephone bills, canceled envelopes, rental, purchase or lease agreements and keys.
7. Cellular phones, bills to said phones, and documents containing subscriber information, present at the address.
8. Any messages left on phone answering devices from Co-conspirators, sources of supply or witnesses, whether recorded on audio tape or digitally.
In United States v. Travers, 233 F.3d 1327 (11th Cir. 2000), the court held that Leon's good faith exception applies to a search conducted pursuant to an overly broad warrant, unless the warrant is so overly broad on its face that the executing officers could not reasonably have presumed it be valid. Id. at 1330, citing United States v. Accardo, 749 F.2d 1477 (11th Cir. 1985). The court went on to hold that a warrant to search for "all documents involving real estate, litigation, property, mailings, photographs and any other material reflecting identity, and anything reflecting potential fraud" was not so facially deficient (in failing to particularize the place to be searched or the things to be seized) that the executing officers could not have reasonably presumed it to be valid. Travers, 233 F.3d at 1330.
In United States v. Weinstein, 762 F.2d 1522 (11th Cir. 1985), the court similarly rejected the appellant's claim that an a search warrant was overly broad and lacked sufficient particularity with respect to the items to be seized. In so holding, the court noted:
The affidavit of FBI agent Roberts, attached to the warrant, set out the scope and operation of the pharmaceutical fraud scheme. . . . Included within that affidavit were the dates during which the scheme was believed to have operated. Moreover, the agents conducting the challenged searches were briefed about the investigation; the agent who investigated the case was available to answer questions. On the basis of this showing, we believe that the warrant, both as issued and as executed, was sufficiently particular in scope to pass muster under the fourth amendment.Id. at 1532.
In the instant case, Agent Harvey testified that he understood that the categories of items to be seized were limited by his affidavit. He briefed the searching agents on the items he was looking for and was present during the search. Although the search may have commenced before Agent Harvey's arrival as a result of the shootings, Agent Harvey joined the search team on August 19, 2004, and remained with the team until the search was concluded. He testified that he seized items directly related to the allegations contained his affidavit.
The evidence seized pursuant to this warrant which the Government seeks to introduce at trial consists of: One Compaq CPU serial # 1X14JD4TKK01M; two cell phones; a check from the defendant to SASS (Single Action Shooting Society); a typed document with the letterhead Kenneth "Killer" Wilk; documents pertaining to the defendant's 2001 case (exhibits, reports, pleadings and correspondence); documents pertaining to the defendant's concealed weapons permit; an Advanced Computer Services invoice, dated 7/16/04, and handwritten notes pertaining to the defendant's obstruction of justice plans with Kelly Jones. (Government's Supplemental Response to the Defendant's Motions to Suppress Physical Evidence).
Clearly Agent Harvey acted in good faith in securing and executing the search warrant for the defendant's residence, and the warrant was not "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable" or "so facially deficient . . . that the executing officers [could not] reasonably [have presumed] it to be valid. Leon, 468 U.S. at 923. Therefore, the good faith exception applies and there is no legal basis to invalidate the warrant.
c) Reference to Recorded Telephone Conversations
The defendant also argues that the search warrant is invalid because it was based on telephone conversations which were intercepted in violation of the federal wiretap statute, 18 U.S.C. § 2510, et seq., and in violation of his right to privacy.
By its terms, the wiretap statute does not apply to "any device or apparatus that can be used to intercept a wire, oral or electronic communication . . . being used by an investigative or law enforcement officer in the ordinary course of his duties," 18 U.S.C. § 2510(5)(a)(ii), or to persons "acting under color of law . . . where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception." 18 U.S.C. § 2511(2)(c).
Courts consistently have held that prison officials are "investigative or law enforcement officers" for purposes of the statute, where monitoring is conducted pursuant to an ongoing prison policy and inmates are notified that their calls are monitored. United States v. Horr, 963 F.2d 1124 (8th Cir. 1992); United States v. Sabubu, 891 F.2d 1308, 1329 (7th Cir. 1989); United States v. Feekes, 879 F.2d 1562, 1565-66 (7th Cir. 1989); United States v. Paul, 614 F.2d 115, 117 (6th Cir.) cert. denied, 446 U.S. 941 (1980). Although in most cases, the prison policy was in written form and there was written notification to the inmates of the policy, nothing in the cases suggests that either is required.
In Horr, supra, at 1125, the court simply noted that recording was done pursuant to Bureau of Prisons policy. No mention was made of written policies or regulations. The fact that the jail personnel regularly recorded all inmate telephone conversations, without more, was sufficient to find that the recording of inmate calls fell within the "law enforcement" exception to the wiretap statue embodied in 18 U.S.C. § 2510(5)(a)(ii). Id. at 1126. Similarly, in United States v. Van Poyck, 77 F.3d 285, 287 (9th Cir. 1996), the court stated only that the jail "routinely tapes and selectively monitors all inmate telephone conversations." This was sufficient to sustain the court's finding that the § 2510(5)(a)(ii) exception applied.Id. at 292.
Additionally, courts also have held that inmates with knowledge of telephone recording policies are deemed to have consented to the interceptions for purposes of the wiretap statute. United States v. Footman, 215 F.3d 145, 155 (1st Cir. 2000); United States v. Workman, 80 F.3d 688, 692-94 (2d Cir. 1996); Van Poyck, supra, at 292; Horr, 963 supra, at 1126. Again, these cases generally have involved written notification to inmates of the jail policy to record all outgoing telephone calls, but no case holds that written notification is required for a finding of consent.
In Workman, supra, at 693, the court emphasized that the inmate "warned his interlocutors that the call might be monitored, and he sometimes used coded language in an apparent effort to mislead authorities who might be listening." In such circumstances, a court is entitled to infer consent regardless of whether the inmate was specifically told that the use of the jail telephones constituted a consent to monitoring and recording.Id. Similarly, in Footman, supra, at 155, the court noted that "[t]he question of consent, either express or implied, may vary with the circumstances of the parties." It is worth noting that one of the procedures employed by the jail was a pre-recorded message which informed both parties to the conversation that the call would be recorded. Id. at 154.
Finally, courts have repeatedly have held that, for Fourth Amendment purposes, recipients of calls from prison inmates do not have a reasonable expectation of privacy in their conversations. In Sabubu, supra, at 1329-1330, the court emphasized that the appellant was a frequent visitor to the prison and knew of its strict security measures, and frequently used coded language during her conversations with one of the inmates. The court, quoting United States v. Vasta, 649 F. Supp. 974, 991 (S.D.N.Y. 1986), stated:
"It is difficult to imagine that the considerations that justify monitoring and recording of a prisoner's utterances could somehow not apply at the other end of the telephone. The rights of free persons may well at times be implicated and stand or fall with the rights of prisoners."
Id. at 1329-30. See also, Footman, supra, at 155 ("prison inmates have few expectations of privacy in their communications"); Van Poyck, supra, at 291 ("any expectation of privacy in outbound calls from prison is not objectively reasonable").
In the instant case, the St. Lucie County Jail had a policy of recording every telephone call placed by any inmate. The policy was implemented by means of a tape recorded preamble to every telephone call which warned both parties to the conversation that the call could be monitored, and which required the party receiving the call to acknowledge receipt of the message by pressing "3" key on his or her telephone. In the third call placed by Jones to the defendant, Jones reminded the defendant that the call was being recorded, and both Jones and the defendant used coded language throughout their recorded conversations.
Based on the jail policy of recording each outgoing telephone call placed by an inmate once the recipient accepted the call, the wiretap statute does not apply because Jones' conversations were being recorded by law enforcement officers in the ordinary course of their duties. 18 U.S.C. § 2510(5)(a)(ii). Additionally, the undersigned finds that Jones impliedly consented to the recording of his outgoing telephone calls based on the preamble played prior to every outgoing call, his warning to the defendant in the third of 73 recorded calls that the call was being recorded and his repeated use of coded language. Since one party to the calls consented, the requirements of the federal wiretap statute are inapplicable. 18 U.S.C. § 2511(2)(c).
Finally, the defendant had no reasonable expectation of privacy in his conversations with Jones while Jones was incarcerated at the St. Lucie County Jail. Therefore, the defendant's Fourth Amendment rights were not violated by the recording and dissemination of those calls. There is no reason to invalidate the search warrant based on the inclusion of information pertaining to the intercepted calls.
d) Execution of Warrant by State Officers
The defendant argues that the evidence seized pursuant to the search warrant must be suppressed because it was served by BSO deputies, rather than the federal agents ("Immigration and Customs Enforcement and any Authorized Officer of the United States") to whom it was directed. Under federal law, "'a search warrant may be executed by (1) the person to whom the warrant is directed; (2) any officer authorized by law to execute search warrants, or (3) some other person aiding a person under (1) or (2) who is present and acting in the execution of the warrant.'"United States v. Gilbert, 942 F.2d 1537, 1540 (11th Cir. 1991), quoting United States v. Martin, 600 F.2d 1175, 1182 (5th Cir. 1979).
In the case sub judice, BSO deputies assisted Agent Harvey, a federal ICE agent, in executing the search warrant. They did so at Agent Harvey's request, and Agent Harvey participated in the execution of the warrant. This was clearly permissible under federal law, and does not constitute grounds to suppress any evidence seized pursuant to the warrant.
e) Violation of the "Knock and Announce" Statute
The defendant argues that the officers who executed the search warrant violated 18 U.S.C. § 3109, which requires such officers to announce their authority and purpose and await admission. Agent Harvey and Lieutenant Butler testified that the officers executing the warrant knocked on the door and repeatedly shouted, "Sheriff's Office, search warrant" prior to making a forced entry into the defendant's residence. Agent Harvey, who was positioned in front of the house and watching these officers, recalls that the officers waited for approximately 30 seconds before forcibly opening the door, which took another 30 seconds to a minute. Lieutenant Butler, who was located on the rear perimeter of the property, recalls hearing the officers yell for a few seconds.
Based on the totality of the circumstances, including the officers' knowledge that the defendant was expecting the police to come to his residence and had been advised by Kelly Jones not to answer the door, the undersigned finds that the officers executing the search warrant complied with the requirements of 18 U.S.C. § 3109.
f) Subsequent Search Warrants
Since there is no legal basis to suppress evidence seized pursuant to the federal search warrant executed at the defendant's residence on August 19, 2004, this court need not suppress evidence seized as the result of subsequent warrants as "fruit of the poisonous tree."
2. Additional Motion to Suppress Physical Evidence
In this motion, the defendant asks the court to suppress evidence seized from his residence pursuant to two state search warrants seeking items related to the shooting of Deputies Fatta and Cedeno and relating to the defendant's potential defense based on "AIDS dementia."
The application for the first of these warrants, which was presented to Broward Circuit Judge Elijah H. Williams on August 19, 2004, states:
On August 19, 2004, at 0600 hrs, members of the Broward County Sheriff's Office, Strategic Investigation Division, in conjunction with the St. Lucie Sheriff's Office and a Federal Task Force "ICE" conducted a Surveillance of 1950 Northeast 57 Street, Ft. Lauderdale, Fl. surveillance teams observed suspect Kenneth Wilk exit the residence to place the trash on the swale (sic). Suspect Wilk then re-entered the residence.
At 0843 hrs, members of he Broward County Sheriff's Office, Strategic Investigation Division, in conjunction with the St. Lucie Sheriff's Office and a Federal Task Force "ICE" executed a legally issued Federal Search Warrant and Arrest Warrant at 1950 Northeast 57 St., Ft. Lauderdale, Fl. Upon announcing their presence, they executed the search warrant, by breaching the front door to the residence. Upon the deputies entering the residence, sole occupant Kenneth Wilk began firing at the deputies and the deputies returned fire. The Deputy Sheriffs executing the Search Warrant and Arrest Warrant were wearing clothing clearly identifying them as Law Enforcement Officers. This case is documented under case number BSO4-02-7755.
Deputy Sheriff Todd Fatta, CCN 7996 sustained a fatal gunshot wound to the chest. Deputy Sheriff Fatta was transported to North Broward Medical Center-Trauma Unit, where Deputy Sheriff Fatta was pronounced dead by treating physicians.
Deputy Sheriff Sergeant Angelo Cedano CCN 5914 sustained a gunshot wound to the hand and shoulder and is currently being treated at North Broward Medical Center-Trauma Unit for multiple gunshot wounds.
Suspect Kenneth Wilk w/m 11/02/61 was taken into custody at the residence.
A search of the residence revealed no other person inside the residence.
The execution of the Federal Search Warrant was for the search and seizure of computer related materials, cellphones under violation of computer related crimes.
The residence has been secured and guarded by Broward Sheriff's Office, Uniform Patrol, pending issuance of this search warrant.
Judge Williams issued a warrant authorizing the search for, and seizure of evidence of murder in which a firearm was involved.
The second warrant application was presented to Broward County Circuit Judge Peter Weinstein on August 23, 2004. That application recited the same information as quoted above, with the following addition:
On August 20, 2004, during suspect Kenneth Wilk's magistrate hearing, the defendant offered testimony that he was suffering from dementia and the items sought would be evidence tending to show the defendant's mental condition, reasoning abilities and state of mind, leading up to and during the crime.
Judge Weinstein authorized a search of the defendant's residence for evidence pertaining to the defendant's state of mind at the time of the shooting.
Clearly the warrant applications demonstrated that there was a "fair probability" that contraband or evidence of the crime of murder and of the defendant's intent to commit that crime, would be found at the defendant's residence. Gates, 462 U.S. at 238. The defendant has failed to show that either of the warrants was "so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable" or "so facially deficient . . . that the executing officers [could not] reasonably [have presumed] it to be valid. Leon, 468 U.S. at 923. Therefore, the evidence seized pursuant to the state search warrants is admissible against the defendant at trial.
3. Motion to Suppress All Evidence and Fruits Derived from Illegally Intercepted Telephone Calls and
Motion for Order in Limine Re Evidence or Testimony Concerning Telephone Conversations Between Defendant Kenneth Wilk and Kelly Jones
These motions should be denied for the reasons set forth in section 1(c), above.
III. CONCLUSION
This Court having considered carefully the pleadings, arguments of counsel, and the applicable case law, it is hereby
RECOMMENDED that:
1. The Motion to Suppress Physical Evidence (DE 239) be DENIED;
2. The Additional Motion to Suppress Physical Evidence (DE 248) be DENIED;
3. The Motion to Suppress All Evidence and Fruits Derived from Illegally Intercepted Telephone Calls (DE 228) be DENIED, and
4. The Motion for Order in Limine regarding evidence or testimony concerning telephone conversations between defendant Kenneth Wilk and Kelly Jones (DE 237) be DENIED.
The parties will have ten days from the date of being served with a copy of this Report and Recommendation within which to file written objections, if any, with The Honorable James I. Cohn, United States District Judge. Failure to file objections timely shall bar the parties from attacking on appeal factual findings contained herein. LoConte v. Dugger, 847 F.2d 745 (11th Cir. 1998), cert. denied, 488 U.S. 958 (1988); RTC v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).
DONE AND SUBMITTED.
AFFIDAVIT OF CHRISTOPHER HARVEY SENIOR SPECIAL AGENT DEPARTMENT OF HOME LAND SECURITY BUERAU OF IMMIGRATION AND CUSTOMS ENFORCEMENT
I, Christopher S. Harvey, after being duly sworn, depose and state:1. I am a Special Agent (S/A) with the Department of Homeland Security, Immigration and Customs Enforcement (ICE) having been so since March 2003. Prior to March 2003, I was employed by the U.S. Customs Service as both a Special Agent and a Marine Enforcement Officer since 1998 and prior to that as a Deputy Sheriff since 1996. I have been assigned to the investigation of cases involving the Sexual Exploitation of Children. These investigations have included the utilization of surveillance techniques, undercover activities, the interviewing of subjects and witnesses, and the planning and execution of search, arrest and seizure warrants. I have also received training on the aforementioned investigations at the Federal Law Enforcement Training Center in Glynco, Georgia.
2. I am an investigative or law enforcement officer of the United States within the meaning of Section 2510(7) of Title 18 United States Code. That is, I am an officer of the United States, who is enpowered by law to conduct investigations of and make arrests for, offenses enumerated in Title 18, United States Code, Sections 2422, 2251 and 2252, et seq.
3. I am conducting an investigation involving the sexual exploitation of children and related activities of the individual named herein. I have personally participated in the investigation of the offenses referred to herein, and because of my personal participation in this investigation and reports made to me by members of the participating law enforcement agencies, I am familiar with the facts and circumstances of this investigation. I have participated in investigations involving pedophiles, preferential child molesters, and persons who collect and/or distribute child pornography, along with the importation and distribution of materials relating to the sexual exploitation of children. I have received training in the area of child pornography and child exploitation through the US Customs Academy. I have observed and reviewed examples, and assisted in several child pornography and child exploitation investigations, which has involved reviewing examples in all forms of media including computer media, and have discussed and reviewed these materials with other law enforcement officers.
Forensic Analysis of Computers
4. SS/A David Sheeks, an ICE computer forensics agent, has advised that based upon his knowledge, training and experience, and that of the Computer Forensics Unit at the ICE Cyber Crimes Center (IC3), computer files or remnants of such files can be recovered months or even years after they have been accessed by a computer. Electronic files downloaded to a hard drive can be stored for years at little or no cost. Even when such files have been deleted, they can be recovered months or years later using readily available forensics tools. When a person "deletes" a file on a computer, the data contained in the file does not actually disappear; rather, that data remains on the hard drive (or media) until it is overwritten by new data. Therefore, deleted files, or remnants of deleted files, may reside in free space or slack space — that is, in space on the hard drive (or media) that is not allocated to an active file or that is unused after a file has been allocated to a set block of storage space — for long periods of time before they are overwritten. In addition, a computer's operating system may also keep a record of deleted data in a "swap" or "recovery" file. Similarly, files that have been viewed via the Internet are automatically downloaded into a temporary Internet directory or "cache." The browser typically maintains a fixed amount of hard drive space devoted to these files, and the files are only overwritten as they are replaced with more recently viewed Internet pages. Thus, the ability to retrieve residue of an electronic file from a hard drive depends less on when the file was downloaded or viewed than on a particular user's operating system, storage capacity, and computer habits.
5. SSA Sheeks has advised that based upon his knowledge, training and experience, and that of the Computer Forensics Unit at IC3, searching and seizing information from computers often requires agents to seize most or all electronic storage devices (along with related peripherals) to be searched later by a qualified computer technician in a laboratory or other controlled environment. This is true because of the following:
(a) The volume of evidence. Computer storage devices (like hard disks, diskettes, tapes, and optical disks) can store the equivalent of millions of pages of information. Additionally, a suspect may try to conceal criminal evidence; he or she might store it in random order with deceptive file names. This may require searching authorities to examine all the stored data to determine which particular files are evidence or instrumentalities of crime. This process can take weeks or months, depending on the volume of data stored, and it would be impractical and invasive to attempt this kind of data search on-site.
(b) Technical Requirements. Searching computer systems for criminal evidence is a highly technical process requiring a properly controlled environment. The vast array of computer hardware and software available requires that some computer technicians specialize in particular systems and applications, so it is difficult to know before a search which technician is prepared to analyze the system and its data. In any event, data search protocols are exacting scientific procedures designed to protect the integrity of the evidence and to recover even hidden, erased, compressed, password-protected, or encrypted files. Because computer evidence is vulnerable to inadvertent or intentional modification or destruction (both from external sources and from destructive code imbedded in the system as a "booby trap"), a controlled environment is necessary to complete an accurate analysis. Further, such searches often require the seizure of most or all of a computer system's input/output peripheral devices, related software, documentation, and data security devices (including passwords) so that a qualified computer technician can accurately retrieve the system's data in a laboratory or other controlled environment.
6. In light of these concerns, your affiant hereby requests the Court's permission to seize the computer hardware (and associated peripherals/media) that are capable of containing some or all of the evidence described in the warrant, and to conduct an off-site search of the hardware for the evidence described.
7. This affidavit is offered for to show that there is probable cause to believe that evidence of possession and/or distribution of child pornography, violations of 18 U.S.C. 2252, et seq., and instrumentalities of the crime and evidence pertaining to the violation of 18 USC 1512, are located at the residence of Kenneth Wilk and Kelly Jones of 1950 NE 57th Street, in Fort Lauderdale, Florida.
8. Pursuant to my training and experience as well as the training and experience of other law enforcement personnel, I know that:
a. Child Pornography is not readily available, and individuals who wish to obtain it, do so from abroad or by discreet contact with other individuals who have it available.
b. The use of computers to traffic in, trade, or collect child pornography has become one of the preferred methods of obtaining such materials. The computer provides a high degree of anonymity in obtaining child pornography. An individual familiar with a computer can use it, usually in the privacy of a home or office, to interact with another individual or business offering such materials in this country or abroad. The use of a computer provides individuals with a sense of privacy and secrecy not attainable by other media.
c. Individuals involved in the possession and transportation of child pornography rarely, if ever, dispose of their sexually explicit material. These materials are extremely valuable to these individuals because of the difficulty, scarcity, expense, and danger involved in their collection. These items are often kept in the individual's residence or other secure location to ensure convenient and ready access. The increased sense of security which a home computer and computer media may afford, provide probable cause to believe that computer images will be retained for as long as other types of child pornography. In addition, even if a computer file is deleted from a hard drive or other computer media, a computer expert is still likely to retrieve parts of, or all such files through a forensic examination of the computer.
d. Computers and computer technologies have introduced a new and revolutionary method by which traders or collectors of child pornography may interact with each other. Child pornography formerly was produced using cameras and film (either still photography or movies). The photographs required darkroom facilities and a significant amount of skill in order to develop and reproduce the images. There were definable costs involved with the production of child pornographic images. To distribute these on any scale required significant resources. The photographs themselves were somewhat bulky and required secure storage to prevent their exposure to the public. The distribution of these items was accomplished through a combination of personal contacts, mailings, and telephone calls.
e. The development of computers has added to the methods used by traders or collectors of child pornography to interact with and sexually exploit children. Computers basically serve four functions in connection with child pornography: production, communication, distribution, and storage.
f. Child pornographers can now produce both still and moving images directly from a common video camera. Using a cable, the camera is attached directly to the computer using a device called a video capture board. This device turns the video output into a form that is usable by computer programs. The output of the video camera can be stored, manipulated, transferred, or printed out directly from the computer.
g. The captured image is similar to a photograph. The image can be printed, edited, lightened, darkened, cropped, and manipulated in a wide variety of ways. The producers of child pornography can also use a device known as a scanner to transfer photographs into a computer-readable format. As a result of this technology, it is relatively inexpensive and technically easy to produce, store, and distribute child pornography. There is the added benefit to the child pornographer that this method of production does not leave as large a trail for law enforcement to follow as other methods.
h. Previously, in general terms, traders or collectors of child pornography had to rely on personal contact, U.S. Mail, and telephonic communications in order to sell, trade, or market child pornography. The development of the computer has also changed the way contacts are made. A device known as a modem allows any computer to connect to another computer through the use of telephone lines. By connection to a host computer, electronic contact can be made to literally millions of computers around the world. A host computer is one that is attached to a dedicated network and serves many users. These host computers are sometimes commercial concerns, such as BellSouth Internet Service, called service providers, which allow subscribers to dial a local telephone number and connect to a network which is in turn connected to the host computer system. The INTERNET is a world wide computer network, which connects computers and allows communications and the transfer of data and information across state and national boundaries. These service providers allow electronic mail service, commonly known as "E-mail," between their own subscribers and those of other networks. "E-mail" is an electronic form of communication, which can contain many forms of information including both printed correspondence and graphic images. "E-mail" is similar to conventional paper type mail in that it is addressed from one individual to another and is usually private. Individuals using "E-mail" have a unique INTERNET "E-mail" address which indicates they have a subscription, membership, or affiliation with an organization or commercial service which provides access to the INTERNET computer network. "E-mail" generally contains a message header, which gives the "E-mail" address, or screen name, of the individual originating the data message. A provider of INTERNET access is referred to as an INTERNET Service Provider or ISP. One such ISP is BellSouth Internet Service. Some ISPs, including BellSouth Internet Service and America OnLine, offer their subscribers the ability to communicate publicly or privately with each other in real time in the form of "chat rooms." Contact with others in this OnLine format is very open and anonymous. The communication can also be quite private in the form of person-to-person instant messages. This communication structure is ideal for traders or collectors of child pornography.
i. Computerized visual depictions are in the form of "computer graphic files." These files may be contained in several computer formats, differentiated by the type of format convention by which they were created. Two common types of computer graphic files are JPEG (Joint Photographic Experts Group) format, which have the "jpg" file extension; and the GIF (Graphic Interchange Format) having the "gif" file extension. There are also other formats. These image files often contain images or photographs that have been converted into a computer format by use of a scanner.
BACKROUND FACTS
9. As the result of an undercover operation targeting child predators on America On Line, (AOL), Kelley Jones of 1950 NE 57th Street in Fort Lauderdale, Florida, was arrested on 07/15/04, and charged with the state charge of transmission of child pornography. These images were transmitted to St. Lucie County to Detective Spector of the St. Lucie County Sheriff's Office (SLCSO) who was acting in a undercover capacity. Subsequent to the arrest of Jones a court-ordered search of the above-listed residence was conducted.10. The two images mentioned above were sent to Detective Spector on 07/12/04. The first image received is of an adult male holding a child under the age of twelve on his lap with his erect penis penetrating the child's anus. The second image received was of three children under the age of 18 with one of the boys performing oral sex on the other. Both of these images would be considered child pornography under federal law.
11. As a result of a forensic exam of a computer seized from the above residence (see ¶ 9) it was discovered that on 06/03/04, screen name Kelevision2 e-mailed a visual depiction to screen name Male4Fam (now cooperating with law enforcement and sometimes known as "Robert") which included a image that showed a adult male with an erect penis holding a boy under the age of eighteen with his legs spread, on his lap. This image would be considered child pornography under federal law.
12. It should be noted that the images were transmitted using America Online (AOL) whose servers are based in the state of Virginia. AOL has advised that e-mail transmissions, even within the state of Florida, must exit Florida for successful transmissions due to the use of AOL servers.
13. As a result of the aforementioned forensic exam numerous images, files and video files were discovered that would be considered to be child pornography under federal law.
Facts as to violations of 18 USC 2252 and 1512
14. At the time of Jones' arrest, and after being read his Miranda warning, Jones was asked if he knew a individual named "Chuck," to which he responded that he did. Jones was informed by Detective Spector, in the presence of your Affiant, that the individual known to him as Chuck was a witness in the case against him and that he was to have no contact with him, directly or indirectly.
15. As part of the investigation a Chuck Carothers was interviewed about how he knew Jones and questioned about his possible possession of child pornography. Carothers stated that Jones used the screen name Kelevision2 and that Jones would come to his apartment and use his computer to down load child pornography to computer disks. Carothers went on to state that Jones would then provide him (Carothers) with a copy of the disk and leave with a disk for himself (Jones).
16. As a result of a subpoena issued to AOL, subscriber and payment information was received in connection with the screen name Kelevision2. Kelevision2 was the screen name used by Jones to transmit child pornography images to Detective Spector. The results of the subpoena listed the subscriber of the account as a Kenneth Wilk of 1950 NE 57th Street, in Fort Lauderdale, Florida. The billing information for the account showed that it was billed to a credit card issued in Wilk's name.
17. Information found in the above-listed AOL account, pursuant to search warrant served on AOL, showed that the screen names Kelevision2 and Warriorkingj were used by Jones and Hoppykpw was used by Wilk.
18. A background investigation was conducted on Kelly Jones and it was learned that Kelly Jones was still living with Kenneth P. Wilk at 1950 NE 57th Street in Fort Lauderdale, Florida. This information was learned by law enforcement observation and drivers license information for the two men.
19. Forensics on the computer seized as a result of the aforementioned search warrant showed Wilk as the registered owner of the computer, and both he and Jones as users.
20. Detective Spector knows Kenneth Wilk to be the boyfriend of Kelly Ray Jones. Detective Spector had previously arrested both Kelly Ray Jones and Kenneth Wilk in the past. On or about March 22, 2001, Detective Spector arrested Kelly Ray Jones for transmission of child pornography and other related computer sex crimes. The U.S. Attorney's Office later indicted Jones on federal charges of using a computer to attempt to entice a minor to engage in sexual activity. Jones later pled guilty and was sentenced to twenty-eight months in prison, followed by three years of supervised release. Jones was released from federal prison and is currently on supervised release. Wilk was arrested on felony state charges of Threatening a Public Official in connection with Jones' 2001 arrest; however, he pled to a misdemeanor Assault on a Law Enforcement Officer charge.
21. Kelly Jones is being held at the St. Lucie County jail; from the jail Jones has made several phone calls to Kenneth Wilk at the Ft. Lauderdale residence of Wilk and Jones. The inmates at the jail are notified that calls made from the jail are recorded. Your Affiant has received recordings of these conversations. It should be noted that the suspects know that they are being recorded and state that on one of the first phone calls, and at times seem to be trying to talk in code.
22. On or about July 16-18, 2004, recorded conversations indicate that KENNETH WILK possessed and exercised control over CD's containing visual depictions of minors engaging in sexually explicit conduct, on the premises owned by the defendants, at 1950 N.E. 57th Street in Ft. Lauderdale, Florida. During a recorded phone conversation on July 17, 2004, JONES called WILK, and discussed whether WILK had destroyed "the CD's," which contained evidence. Jones stated to Wilk, "In your zest for destroying what you destroyed, you destroyed some evidence against him." Wilk responds, "Yeah but, you know, it's fifteen years for every single one of them." Further in the conversation in followup to Jones' telling Wilk where to put the CDs, Jones said, ". . . Out there, nobody is going to go out there." Wilk responds with, "They were there, just by luck they missed a particular shelf." (Your affiant believes that this conversation refers to the prior law enforcement search of the Jones/Wilk residence.) Jones and Wilk continue to argue, and Jones tells Wilk to put the CDs out by the hot tub, which your Affiant knows to be in the backyard area of the residence. Jones then suggests that Wilk put items in a cooler, possibly commingled with some sort of drugs; Wilk makes reference to a drug dog and and Jones suggests burying the cooler and covering the cooler with coffee. Finally Jones tells Wilk that "Some things there can't be replaced, ok? . . . irreplaceable!, What are you going to do?" Wilk responds that he will tape them in a box. Your Affiant, from these and other conversations, believes that Jones and Wilk are considering multiple locations in the residence and outside it (within the property bounds), as locations for hiding additional evidence.
23. On 08/09/04, Jones calls Wilk and asks, "You didn't get rid of that stuff in the garage did you? That still there?" Wilk responds, "Yes and no," but states that he can't talk on the phone about it. It is the opinion of your Affiant after listening to all of the phone conversations as a whole that the suspects when speaking of "stuff" or "things" located at the residence, are speaking of both CDs containing child pornography (possibly those made with Carothers) and illegal drugs of some sort.
24. On 07/16/04, a recorded phone call has Jones calling Wilk and asking, "Did you do what I asked about the e-mails?" Wilk responds that he had not yet been able to, and "that's why" the computer repairman was at the residence. It should be noted that Wilk makes reference to the repairman arriving at the residence during the phone call, and in several of the recorded calls states that once the Compaq computer he possesses is repaired, he can use it to access AOL and send out e-mails to try to contact witnesses in the case against Jones. The surrounding conversations indicate that the purpose of the contacts is to assure that the witnesses will not be detrimental to Jones' case.
25. During several of the phone calls Jones tells Wilk to enter his AOL account and delete emails present there and states, "Going through the emails is vital, get rid of them." Wilk responds, "Ok I'll do it". The results of a search warrant served on AOL shows an individual entering the screen names used by Jones and deleting emails following Jones' arrest. In subsequent phone conversations with Jones, Wilk acknowledges that he did, indeed, enter Jones' accounts and delete the contents of the same. Wilk added that he did not get to delete everything because AOL shut down the account.
26. On 07/16/04, during a recorded conversation, Jones asks Wilk to cancel his cell phone and states, "The cell phone, cancel it" Wilk responds, "I'm surprised they didn't take it . . .". During this conversation Jones expresses to Wilk that he can't tell him why to get rid of the cell phone because of where he is but that he needs Wilk to think it out on his own; Jones makes references to the fact that it has certain numbers on it that Wilk needs to get rid of. Your Affiant believes that phone numbers relevant to this investigation, including numbers of possible witnesses and/or victims, are on this cell phone which was left at the Jones/Wilk residence.
27. On 07/16/04, KENNETH WILK called Carothers and left a message warning Carothers against a meeting with "Robert," (whom WILK said he thought might be law enforcement) and stated, "Don't' kill my lover . . . don't kill my partner, because that's what you're going to do." WILK left a callback number. It should be noted that "Robert" at this time was actually Detective Spector acting in an undercover capacity.
28. On 07/16/04, JONES telephoned WILK and gave WILK directions to the residence of Carothers. WILK agreed to go to the residence to see him (Carothers). JONES indicated that the contact was a good idea since Carothers was going to be used as a witness against JONES.
29. On 07/16/04, WILK went to the residence of Carothers and claimed that JONES would be killed and that Carothers would end up in jail, no matter how much he (Carothers) cooperated. According to recorded statements of Wilk, Wilk claimed the contact was "like the Sopranos" and that he (Wilk) believed Carothers was very afraid. Wilk goes on to add that he was attempting to place a note on Carothers' door when the confrontation occurred and that he did not get to post the note. A police officer from the Wilton Manners Police Department responded to Carothers' residence, recorded the messages left by Wilk, and took a report from Carothers. In this report Carothers states that he was very scared of Wilk and added that he was afraid to leave his residence.
30. On 07/16/04, JONES told WILK that WILK had to "burn him" [Carothers] and JONES gave WILK two screen names of persons who might know Carothers; WILK promised to go to Carothers's friends.
31. Throughout the recorded phone calls Jones and Wilk discuss ways of discouraging the testimony of Carothers, including placing sugar or moth balls in his gas tank, impacting his livelihood, "poisoning the well" as Wilk states and making him a "pariah" as Jones replies.
32. On 07/17/04, JONES called WILK and discussed how to impact Carothers including sending an e-mail to a magazine in which Carothers advertised his business.
33. On 07/18/04, WILK e-mailed the magazine in which Carothers advertised his services and blamed Carothers, whom WILK claimed was "sick" and a "danger to our community," for causing WILK's partner (JONES) to be set up for a serious felony. This e-mail was recovered pursuant to a search warrant for Wilk and Jones' AOL account.
34. During one of the first recorded conversations between Jones and Wilk, Wilk states that since he (Wilk) knows that Chuck (Carothers) is a witness, that he (Wilk) should not have contact with him, as he could be arrested for tampering with a witness. In further recorded discussions Wilk goes on to discuss with Jones how to influence Carothers not to be a witness.
35. As a result of the AOL search warrant, e-mails were recovered showing Wilk's attempts to contact screen names provided by Jones as friends of Carothers. Two e-mails were sent after Jones' arrest, by using the Kelevision2 screen name, to both screen names identified by Jones as "friends" of Chuck (Carothers); the e-mails identified him (Chuck) as a police informant and requested that the recipients contact "Ken" (Wilk).
36. On 08/10/04, in a recorded call Jones states, "I still think you ought to do some of the things we talked about." Wilk responds with, "If you think that's the best I'll do it," and ". . . They already got me for, you know, trying to intimidate a witness." Wilk goes on to express that tampering with a witness could get him arrested. Wilk goes on to state that he thinks, "Spreading the word is going to make his life a holy hell".
37. Throughout the recorded conversations between Wilk and Jones, Jones instructs Wilk to write down all the information Jones conveys in the phone calls. Wilk agrees to do so and tells Jones that he is keeping notepads by every phone to comply with his request. Wilk also tells Jones several times that he will write things on his "To do list." Your Affiant believes that these notepads and lists will be found at the residence and will contain evidence.
38. It has been evident to your Affiant that the residence at 1950 NE 57th St., Ft. Lauderdale, Florida has been central to the transmission, possession and receipt of child pornography and that child pornography has been regularly stored and hidden in various places in the residence and continues to be at this time.
39. Based on the information presented in this affidavit, your Affiant believes that there is probable cause to conclude that Kenneth Wilk and Kelly Jones have committed violations of Title 18 USC 2252(b) (2) in that they did knowingly and intentionally combine, conspire, confederate and agree with each other, and others both known and unknown, to knowingly possess one or more matters containing a visual depiction that has been mailed or has been shipped or transported in interstate commerce, by any means including by computer, the production of which involves the use of a minor engaging in sexually explicit conduct, and such visual depiction is of such sexually explicit conduct, in violation of Title 18, United States Code, Section 2252(a) (4) (B). Your affiant believes that there is probable cause to conclude that evidence and instrumentalities of such violation will be found on the premises to be searched, and that evidence of the related conspiracy to obstruct justice by tampering with a witness and destroying and concealing evidence will also be found on the premises, which includes the dwelling and any exterior areas, including any out buildings, within the property bounds.
40. Your Affiant has been inside the residence located at 1950 NE 57th St., Ft. Lauderdale, Florida in connection with an earlier search warrant. Based on my observations the place to be searched, including the attached garage and all structures known at that time and areas with in the curtilage, are accurately described in Attachment A, incorporated herein by reference.
41. Furthermore your Affiant believes that there is probable cause that Kenneth Wilk and Kelly Jones have conspired to violate Title 18 USC 1512 (b), (c) and (d), attempted to intimidation and corrupt persuasion of a witness to a crime (to prevent testimony or transmission of information to law enforcement) and destruction and concealment of evidence, and harassment to attempt to prevent testimony or reporting of a crime or assisting in a criminal investigation, all in violation of 18 USC 1512 (k), and that evidence and instrumentalities of said violation will be found on the premises.
Affiant further sayeth naught.
Christopher Harvey Senior Special Agent Department of Homeland Security Immigration and Customs Enforcement
Sworn and subscribed to before me this 18 day of August, 2004.
FRANK J. LYNCH, Jr. UNITED STATES MAGISTRATE JUDGE
ATTACHMENT A 1950 NORTHEAST 57th Street Fort Lauderdale, Florida.
The residence to be searched is 1950 Northeast 57th St., Ft. Lauderdale, County of Broward, and State of Florida. Traveling east on Commercial Blvd. to NE 18th Avenue, go North to NE 57th Street and turn right and go east three blocks to the address of 1950 NE 57th Street; the home faces north. The residence is a one story single-family residence. The residence is light tan in color and has a gray roof. The front door is dark brown, faces to the west and opens to the outside. The numbers 1950 are affixed on the north side of the residence near the garage door.The rear of the property consists of a small yard area with a pool and patio closest to the house; the back yard is surrounded by a fence. The front yard of the premises contains some large trees and shrugs and is iopen to the street which the front of the house faces.
The premises to be searched includes the dwelling and all land (such as the yard and grounds) and property at the above address, including any outbuildings or similar structures such as housing for plumbing.
Attachment B
ITEMS TO BE SEIZED AND SEARCHED:
1. Books, records, invoices, receipts, notes, records of real estate transactions.
2. Any and all written communications to include but not limited to hand written notes and emails or electronic communications.
3. Photographs, including still photos, negatives, video tapes, films, undeveloped film and the contents therein, in particular photographs or images whether electronic or not that would constitute child pornography.
4. Electronic equipment, such as computers, telex machines, facsimile machines, telephone answering machines and related manuals used to generate, transfer, count, record and/or store the information described in items 1, 2 and 3. Additionally, computer software, tapes and discs, audio tapes and the contents therein; containing the information generated by the aforementioned electronic equipment.
5. Address and/or telephone books, Rolodex indices and any papers reflecting names, addresses, telephone numbers, pager numbers, fax numbers, email addresses and/or telex numbers of co-conspirators, sources of supply, or witnesses in this case.
6. Indicia of occupancy, residency, rental and/or ownership of the premises described herein, including, but not limited to utility and telephone bills, canceled envelopes, rental, purchase or lease agreements and keys.
7. Cellular phones, bills to said phones, and documents containing subscriber information, present at the address.
8. Any messages left on phone answering devices from Co-conspirators, sources of supply or witnesses, whether recorded on audio tape or digitally.
[As used above, the terms records, documents, programs, applications or materials includes records, documents, programs, applications or materials created, modified or stored in any form.]
9. Any computer equipment used to facilitate the transmission, creation, display, encoding or storage of data, including word processing equipment, modems, docking stations, monitors, printers, plotters, encryption devices, and optical scanners;
10. Any magnetic, electronic or optical storage device capable of storing data, such as floppy disks, hard disks, tapes, CD-ROMs, CD-R, CD-RWs, DVDs, optical disks, printer or memory buffers, smart cards, PC cards, memory calculators, electronic dialers, electronic notebooks, and personal digital assistants;
11. Any documentation, operating logs and reference manuals regarding the operation of the computer equipment, storage devices or software.
12. Any applications, utility programs, compilers, interpreters, and other software used to facilitate direct or indirect communication with the computer hardware, storage devices or data to be searched;
13. Any physical keys, encryption devices, dongles and similar physical items that are necessary to gain access to the computer equipment, storage devices or data; and
14. Any passwords, password files, test keys, encryption codes or other information necessary to access the computer equipment, storage devices or data.
ATTACHMENT A 1950 NORTHEAST 57th Street Fort Lauderdale, Florida.
The residence to be searched is 1950 Northeast 57th St., Ft. Lauderdale, County of Broward, and State of Florida. Traveling east on Commercial Blvd. to NE 18th Avenue, go North to NE 57th Street and turn right and go east three blocks to the address of 1950 NE 57th Street; the home faces north. The residence is a one story single-family residence. The residence is light tan in color and has a gray roof. The front door is dark brown, faces to the west and opens to the outside. The numbers 1950 are affixed on the north side of the residence near the garage door.The rear of the property consists of a small yard area with a pool and patio closest to the house; the back yard is surrounded by a fence. The front yard of the premises contains some large trees and shrugs and is iopen to the street which the front of the house faces.
The premises to be searched includes the dwelling and all land (such as the yard and grounds) and property at the above address, including any outbuildings or similar structures such as housing for plumbing.
Attachment B
ITEMS TO BE SEIZED AND SEARCHED:
1. Books, records, invoices, receipts, notes, records of real estate transactions.
2. Any and all written communications to include but not limited to hand written notes and emails or electronic communications.
3. Photographs, including still photos, negatives, video tapes, films, undeveloped film and the contents therein, in particular photographs or images whether electronic or not that would constitute child pornography.
4. Electronic equipment, such as computers, telex machines, facsimile machines, telephone answering machines and related manuals used to generate, transfer, count, record and/or store the information described in items 1, 2 and 3. Additionally, computer software, tapes and discs, audio tapes and the contents therein, containing the information generated by the aforementioned electronic equipment.
5. Address and/or telephone books, Rolodex indices and any papers reflecting names, addresses, telephone numbers, pager numbers, fax numbers, email addresses and/or telex numbers of co-conspirators, sources of supply, or witnesses in this case.
6. Indicia of occupancy, residency, rental and/or ownership of the premises described herein, including, but not limited to utility and telephone bills, canceled envelopes, rental, purchase or lease agreements and keys.
7. Cellular phones, bills to said phones, and documents containing subscriber information, present at the address.
8. Any messages left on phone answering devices from Co-conspirators, sources of supply or witnesses, whether recorded on audio tape or digitally.
[As used above, the terms records, documents, programs, applications or materials includes records, documents, programs, applications or materials created, modified or stored in any form.]
9. Any computer equipment used to facilitate the transmission, creation, display, encoding or storage of data, including word processing equipment, modems, docking stations, monitors, printers, plotters, encryption devices, and optical scanners;
10. Any magnetic, electronic or optical storage device capable of storing data, such as floppy disks, hard disks, tapes, CD-ROMs, CD-R, CD-RWs, DVDs, optical disks, printer or memory buffers, smart cards, PC cards, memory calculators, electronic dialers, electronic notebooks, and personal digital assistants;
11. Any documentation, operating logs and reference manuals regarding the operation of the computer equipment, storage devices or software.
12. Any applications, utility programs, compilers, interpreters, and other software used to facilitate direct or indirect communication with the computer hardware, storage devices or data to be searched;
13. Any physical keys, encryption devices, dongles and similar physical items that are necessary to gain access to the computer equipment, storage devices or data; and
14. Any passwords, password files, test keys, encryption codes or other information necessary to access the computer equipment, storage devices or data.