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United States v. VanDyck

United States District Court, D. Arizona

May 19, 2016

United States of America, Plaintiff,
Ryan Galal VanDyck, Defendant.



         Pending before the Court are the Motion to Suppress Due to Illegal Search Warrant Unsupported by Probable Cause (Doc. 87) and the Motion to Suppress Due to Illegal Grand Jury Subpoena (Doc. 88) filed by Defendant Ryan Galal VanDyck (“VanDyck”). Evidence and argument were presented to the Court on May 16, 2016.

         I. Factual Background

         TPD Sergeant Shawn Holewinski (“Sgt. Holewinski”) testified that, at relevant times, he was a detective assigned to the internet crimes again children unit. In May of 2015, his unit received a tip from the National Center for Missing and Exploited Children ("NCMEC"). NCMEC had received an April 10, 2014, tip from American Online that an alleged image of child pornography had been uploaded to an internet protocol address through an email named The IP address was geo-located to Tucson, Arizona and was serviced by Comcast Cable Company (“Comcast”). The information was memorialized in a Cyber Tipline Report.

         Sgt. Holewinski testified that, on May 28, 2014, he requested a Grand Jury Subpoena from the Pima County Grand Jury through the Pima County Attorney’s Office. The subpoena was issued, sent to Comcast Legal Response Center in New Jersey, and requested "subscriber information to include the name, address, and phone numbers related to the user of IP address" Ex. 3.[1] The subpoena included, "If you fail to appear as ordered, the court may issue a warrant for your arrest." Id.

         Comcast provided the information. It listed the subscriber name as Premier Landscaping Service located at 3008 W. Sun Ranch Trail, Tucson, Arizona. The email associated with the account was Detective Daniel Barry (“Det. Barry”) testified that further investigation revealed VanDyck and Breana VanDyck were the primary residents at the address.

         Det. Barry testified that his investigation revealed that, in May 2011, a complaint was filed with the Pima County Sheriff's Office by the mother of a 13-year-old victim. See also Ex. 9. The mother had obtained an injunction against harassment against VanDyck after she learned of an inappropriate relationship between VanDyck and her daughter. According to the initial report, the mother was aware that her daughter and VanDyck were exchanging emails but her observations at her daughter's birthday party led her to think that VanDyck was pursuing an inappropriate relationship with her daughter. After the injunction was in place, the mother believed the victim continued to receive emails from VanDyck using an alias.

         Det. Barry also testified that, in November 2005, the Pima County Sheriff's Office investigated VanDyck for impersonating a police officer. See also Ex. 7. While conducting a consent search for the gun used while impersonating an officer, deputies found photos of children ages seven to ten under VanDyck’s bed. The children in the photos were not wearing any clothing and their genitalia were exposed. A consensual search of VanDyck’s computers did not reveal the existence of images of child pornography.

         Det. Barry provided a probable cause statement in support of a request for a search warrant. He included a summary of his training and experience, including over 300 hours of training relating to the investigation of internet crimes against children. Det. Barry’s extensive experience and training has not been disputed. Additionally, Det. Barry included VanDyck’s prior law enforcement contacts. He testified that, in his experience, there is a correlation between the possession of child erotica and the possession of child pornography. A search warrant was issued on September 3, 2014. Sgt. Holewinski testified that Detective Gregory Wright (“Det. Wright”) advised him that Van Dyck was out of town. Det. Barry testified that Det. Wright provided information that Breanna VanDyck had stated that VanDyck would not be home until the 4th. On September 8, 2014, Sgt. Holewinski requested an extension of time to serve the search; the extension was granted.

         The warrant was executed on September 9, 2014, approximately five months after the original tip was received. After searching an external hard drive, police discovered a video. The Government alleges this video depicts the attempted production of child pornography (Count 1). This video led detectives to Idaho, where VanDyck's co-defendant resided. A second search warrant was executed on April 10, 2015 - another computer in VanDyck's possession allegedly contained child pornography (Count 2).

         VanDyck has filed a Motion to Suppress Due to Illegal Search Warrant Unsupported by Probable Cause (Doc. 87) and a Motion to Suppress Due to Illegal Grand Jury Subpoena (Doc. 88). Responses and replies have been filed.

         II. Motion to Suppress Due to Illegal Search Warrant Unsupported by Probable Cause (Doc. 87)

         A. Probable Cause

         VanDyck asserts the 2014 warrant was not supported by probable cause. A magistrate judge or a state court of record may issue a warrant authorizing the search for and seizure of a person or property within a federal district upon a showing that probable cause exists to believe that contraband or evidence will be found. Fed. R. Crim. P. 41. The test to be applied is whether, using common sense and considering the totality of the circumstances, a magistrate judge can reasonably conclude that there is a "fair probability" that contraband or evidence of a crime will be found in the place to be searched. Illinois v. Gates, 462 U.S. 213, 238 (1983). "[A] magistrate judge must look to the ‘totality of the circumstances' to determine whether the supporting affidavit establishes probable cause." United States v. Alvarez, 358 F.3d 1194, 1203 (9th Cir. 2004) (quoting Gates, 462 U.S. at 230). "Under the totality of the circumstances test, otherwise innocent behavior may be indicative of criminality when viewed in context . . . . [I]ssuing judges may rely on the training and experience of affiant police officers." United States v. Chavez-Miranda, 306 F.3d 973, 978 (9th Cir. 2002). "[A]n issuing magistrate may draw reasonable inferences about where evidence is likely to be kept, based on the nature of the evidence and the type of offense alleged." United States v. Fernandez , 388 F.3d 1199, 1253 (9th Cir. 2004) (modified, 425 F.3d 1248 (9th Cir. 2005)) ("[i]n the case of drug dealers, evidence is likely to be found where the dealers live.") (citations omitted).

         A magistrate judge's finding of probable cause is entitled to great deference. United States v. Underwood, 725 F.3d 1076, 1081 (9th Cir. 2013). "[T]he duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed." Gates, U.S. at 238-39. "Courts should not invalidate warrants by interpreting affidavits in a hypertechnical, rather than a common-sense manner." Id. at 236. As long as the magistrate judge had a substantial basis for concluding "that a search would uncover evidence of wrongdoing, the Fourth Amendment requires no more." Id.

         VanDyck argues that the information contained in the affidavit was stale. While VanDyck points out that there is no arbitrary time limit on how old the factual information contained in an affidavit may be, see e.g., State v. Kasold, 110 Ariz. 563, 521 P.2d 995 (1974); United States v. Guinn, 454 F.2d 29 (5th Cir. 1972), cert. denied, 407 U.S. 911 (1972), he also points out that the question of staleness depends more on the nature of the activity than on the number of days that have elapsed since the factual information was gathered. See e.g., State v. Smith, 122 Ariz. 58, 593 P.2d 281 (1979); United States v. Weinrich, 586 F.2d 481 (5th Cir. 1978), cert. denied, 441 U.S. 927 (1979).

         Indeed, the mere lapse of time is not controlling. United States v. Lacy, 119 F.3d 742, 745 (9th Cir. 1997). Rather, staleness must be evaluated "‘in light of the particular facts of the case and the nature of the criminal activity and property sought.'" Id. at 745 (citation omitted). In Lacy, the fact that child pornography had been downloaded from a computer ten months earlier did not cause seizure of hard drives and disks to be based upon impermissibly stale information where reason existed to believe items were still in the residence.

         In arguing the information relied upon was stale because the warrant was not issued until approximately five months after the original tip, VanDyck points to two papers discussing child pornography trafficking. See Wolak, J., et al. Measuring a year of child pornography trafficking by U.S. computers on a peer-to-peer network. Child Abuse & Neglect (2013),; Hurley, R., et al., Measurement and Analysis of Child Pornography Trafficking, publication/docs/2013/UM-CS-2013-007.pdf. VanDyck ...

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