United States District Court, D. Arizona
K. JORGENSON, UNITED STATES DISTRICT JUDGE
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.
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
firstname.lastname@example.org. 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.
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 188.8.131.52." Ex. 3. The subpoena included,
"If you fail to appear as ordered, the court may issue a
warrant for your arrest." Id.
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 email@example.com. Detective Daniel Barry
(“Det. Barry”) testified that further
investigation revealed VanDyck and Breana VanDyck were the
primary residents at the address.
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.
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.
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.
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).
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.
Motion to Suppress Due to Illegal Search Warrant
Unsupported by Probable Cause (Doc. 87)
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.")
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.
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).
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.
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 &
Hurley, R., et al., Measurement and Analysis of
Child Pornography Trafficking,
publication/docs/2013/UM-CS-2013-007.pdf. VanDyck ...