U.S. v . Getzel CR-01-102-JD 09/24/02
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Criminal N o . 01-102-JD
Opinion N o . 2002 DNH 170
Paul Getzel
O R D E R
The defendant, Paul Getzel, renews his motion to suppress
all evidence resulting from a search of his home on October 1 9 ,
2001, pursuant to a warrant issued by this court on that day.
In this new challenge Getzel contends that under the Supreme
Court’s construction of the Child Pornography Prevention Act of
1996 (“CPPA”), 18 U.S.C. § 2251 et seq., in Ashcroft v . Free
Speech Coalition,
122 S.Ct. 1389 (2002), the search warrant fails
to comply with the Fourth Amendment.
Background1
In August of 2001, the German National Police, the
Bundeskriminalamt (“BKA”), notified the United States Customs
Service that the user of a certain America Online screen name had
posted news group messages that contained images of child
1
For additional, more detailed facts, see the court’s
orders of January 2 4 , 2002, and April 1 9 , 2002, denying Getzel’s
prior motions to suppress.
pornography. Pursuant to the information provided by the BKA,
the Customs Service investigated the screen name and subsequently
learned that the account subscriber was Paul Getzel. The BKA
provided the Customs Service with a CD-Rom containing over fortyfive images that were posted to the news group from Getzel’s
account.
Subsequent investigation revealed that Paul Getzel was
employed by the Cardigan Mountain School, a day and boarding
school for boys in grades six through nine located in Canaan, New
Hampshire. The headmaster of the Cardigan Mountain School
informed United States Customs Special Agent James Lundt that
Getzel lived on the campus of the school.
On October 1 9 , 2001, Agent Lundt swore out an affidavit in
support of an application for a warrant to search Getzel’s
residence. In his affidavit he sets out specific facts to
establish probable cause that Getzel’s residence contained
evidence of the crimes of possession and transport of child
pornography in violation of 18 U.S.C. §§ 2252 or 2252A. In the
affidavit, Agent Lundt states that he has viewed the CD-Rom
provided by the BKA and affirms that it shows images of minor
children engaged in sexually explicit conduct in violation of §
2252. Based on the information presented in Agent Lundt’s
affidavit and attachments, the magistrate judge issued a warrant
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to search Getzel’s residence.
At approximately 6:30 p.m. on October 1 9 , 2001, Special
Agent Lundt and two other United States Customs Special Agents
executed the warrant. During the search, the agents seized
Getzel’s computer and two computer storage diskettes. Getzel
returned to the premises during the search and engaged in
discussion with the agents.
Getzel has twice moved to suppress all evidence resulting
from the search of his residence. His first motion to dismiss
challenged the validity of the search warrant on the ground that
it failed to meet the constitutional requirement of describing
with particularity the place to be searched. The court
determined that the specific location to be searched was
adequately described in the search warrant and denied Getzel’s
motion. See Order of Jan. 2 4 , 2002. Getzel’s second motion to
suppress challenged the sufficiency of the affidavit underlying
the search warrant, alleging that there was not probable cause
for issuing the warrant. The court determined that Special Agent
Lundt’s affidavit and previous experience with child pornography
investigations provided a sufficient basis for a finding of
probable cause to issue the warrant. See Order of Apr. 1 9 , 2002.
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Discussion
Getzel brings this third motion to suppress on the ground
that the United States Supreme Court’s recent Free Speech
Coalition opinion undermines the validity of the search warrant.
The government objects, contending first that the affidavit and
appended information provided a sufficient basis for the
magistrate to make a determination of probable cause, and second,
that the good faith exception to the exclusionary rule protects
the search from retroactive invalidation.
I. Good Faith Exception to the Exclusionary Rule
The defendant contends that the ruling in Free Speech
Coalition renders the warrant invalid because the affidavit in
support of the warrant fails to show that actual minor children
were used to produce the images in question. The defendant’s
contention is based on the premise that Free Speech Coalition
applies retroactively to this case. The court will first address
this issue.
In United States v . Leon, 468 U.S. 8 9 7 , 920-21 (1984), the
Supreme Court limited application of the exclusionary rule,
holding that evidence seized pursuant to a lawfully issued search
warrant will not be suppressed when law enforcement officers act
with objective good faith in obtaining the search warrant and act
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within its scope. The good faith exception to the exclusionary
rule applies to searches conducted in good faith reliance on a
warrant or a statute later declared to be unconstitutional. See
Michigan v . DiFillippo, 443 U.S. 3 1 , 40 (1979), United States v .
Curzi,
867 F.2d 3 6 , 45 (1st Cir. 1989).
At the time the warrant in this case was issued, Special
Agent Lundt and the United States Customs Service agents were
complying with the law of the First Circuit. When Special Agent
Lundt applied for the warrant, the First Circuit had already
upheld all of the definitional provisions of the CPPA. See
United States v . Hilton, 167 F.3d 61 (1st Cir. 1999). Indeed, at
that time, most circuits that had considered the definitional
provisions of the CPPA had concurred with the First Circuit. See
generally, United States v . Fox,
248 F.3d 394 (5th Cir. 2001);
United States v . Mento,
231 F.3d 912 (4th Cir. 2000); United
States v . Acheson,
195 F.3d 645 (11th Cir. 1999). But see, Free
Speech Coalition v . Reno,
198 F.3d 1083 (9th Cir. 1999).
The good faith exception to the warrant requirement
“protects good faith police reliance on a magistrate search
warrant, even if the warrant later proves invalid.” United
States v . Procopio, 88 F.3d 2 1 , 28 (1st Cir. 1996). However,
there are four circumstances under which the “exclusionary rule”
will continue to operate to suppress evidence seized pursuant to
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a search warrant:
(1) [where] the magistrate is “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”;
(2) [where] the magistrate “wholly abandon[s] his
[detached and neutral] judicial role”;
(3) [where] the warrant is “so facially deficient
[e.g. failing to list with sufficient
particularity, the evidence to be seized] . . .
that the executing officers cannot reasonably
presume it to be valid”; or
(4) the supporting affidavits are “so lacking in
indicia of probable cause as to render official
belief in its existence entirely unreasonable.”
United States v . Zayas-Diaz, 95 F.3d 105, 113 (1st. Cir. 1996)
(quoting Leon, 468 U.S. at 923 (citing Brown v . Illinois,
422
U.S. 5 9 0 , 610-11 (1975))). Getzel does not contend that any of
these circumstances are at issue in this case. No claim has been
made that the agents acted in bad faith either in obtaining or in
executing the warrant. Getzel’s sole contention in this motion
is that the substantive change in the law as a result of the Free
Speech Coalition case operates to defeat the probable cause on
which the search warrant was based.
The probable cause which underlies a search warrant is not
defeated by a subsequent showing that a relevant substantive law
provision is unconstitutional. See DiFillippo 443 U.S. at 39-40.
Based on the applicable law at the time it was issued, the search
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warrant was valid. Therefore, the good faith exception to the
exclusionary rule protects the search from retroactive
invalidation under Free Speech Coalition.
II. Validity of the Warrant under Free Speech Coalition
Even if Free Speech Coalition is assumed to apply to this
case, the court concludes that the affidavit was sufficient to
establish probable cause for the issuance of the warrant.
Getzel accurately contends that a search warrant affidavit
must provide sound reason to believe that the proposed search
will uncover evidence that a crime has been committed. Getzel
also accurately observes that Free Speech Coalition struck down a
provision of the CPPA, specifically, 18 U.S.C. § 2256(8)(B)
(“Section B”). 2 This provision was one of four different
categories of visual depictions defined as child pornography
under the CPPA. Specifically Section B dealt with so-called
virtual child pornography, “visual depiction[s that are] or
appear[] to b e , of a minor engaging in sexually explicit
2
Ashcroft v . Free Speech Coalition also struck down 18
U.S.C. § 2256(8)(D) which included any sexually explicit image
that was “advertised, promoted, presented, described, or
distributed in such a manner that conveys the impression” that it
depicts “a minor engaging in sexually explicit conduct,” in the
definition of child pornography.
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conduct.” 18 U.S.C. § 2256(8)(B). Getzel contends that the
search warrant cannot be supported by probable cause because the
affidavit fails to provide sound reason to believe that the
search will uncover evidence that actual minor children were used
to produce the images.
Getzel’s suggestion that the government must conclusively
establish at the time a search warrant is sought that the persons
depicted in suspected child pornography are, in fact, actual
minors overstates the government’s burden.
A. The Scope of Free Speech Coalition
Free Speech Coalition did not overturn the CPPA. Indeed, it
reaffirmed the validity of the CPPA and specifically left in
force 18 U.S.C. § 2256(8)(A) defining child pornography as any
visual depiction where “the production of such visual depiction
involves the use of a minor engaging in sexually explicit
conduct.”
18 U.S.C. § 2256(8)(A) (“Section A ” ) . So long as the
affidavit and supporting documents establish a sufficient basis
on which the magistrate judge could conclude that there was
probable cause to believe the search of Getzel’s apartment would
uncover evidence of child pornography under Section A , the search
warrant is valid.
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B. Government’s Burden
The Fourth Amendment requires that search warrants only
issue upon a showing of probable cause. U.S. Const. amend. IV
(“[N]o Warrants shall issue, but upon probable cause, supported
by Oath or affirmation . . . . ” ) . To meet this burden, the
government need only establish that there is “a substantial basis
for . . . conclud[ing] that a search would uncover evidence of
wrongdoing.” Jones v . United States, 362 U.S. 2 5 7 , 271 (1960).
In this case, the government must establish that there is a
substantial basis to believe that actual minors were involved in
the production of the alleged child pornography. The government
need not disprove the possibility that the images are something
other than what they appear to b e , pornographic images of actual
minor children. In establishing probable cause “[t]he government
need not show ‘the quantum of proof necessary to convict.’"
United States v . Figueroa,
818 F.2d 1020, 1024 (1st Cir. 1987)
(citing United States v . Miller,
589 F.2d 1117, 1128 (1st Cir.
1978)); see also Illinois v . Gates,
462 U.S. 213, 235 (1983).
The First Circuit has emphasized that “[t]he process [of
determining probable cause] does not deal with hard certainties,
but with probabilities.” Figueroa,
818 F.2d at 1024. All that
is required is that the magistrate judge have “made a ‘practical,
common-sense decision whether, given all the circumstances set
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forth in the affidavit before him, including the 'veracity' and
'basis of knowledge' of persons supplying hearsay information,
there is a fair probability that contraband or evidence of a
crime will be found in a particular place.’” United States v .
Hernandez, 183 F.Supp 2d 4 6 8 , 472 (D.P.R. 2002)(citing Gates, 462
U.S. at 2 3 8 ) .
C. Sufficiency of Special Agent Lundt’s Affidavit and
Supporting Materials to Establish Probable Cause
In assessing the validity of the search warrant issued in
this case, the court must determine whether probable cause
existed to believe that any of the images Getzel is alleged to
have had fall within the definition of child pornography in
Section A . See United States v . Brunette, 256 F.3d 1 4 , 18 (1st
Cir. 2001); Hernandez, 183 F. Supp. 2d at 474-75. A mere
assertion in an affidavit, absent any descriptive support and
without an independent review of the images, is insufficient to
sustain a finding of probable cause. Brunette, 256 F.3d at 17
(holding that warrant was issued without probable cause where
affiant did not give detailed factual description of images and
magistrate did not independently review the images).
Getzel contends that neither Agent Lundt’s descriptions of
the CD-Rom images, nor the “17.jpg” image attached to his
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affidavit and reviewed by the issuing magistrate, is sufficient
to establish probable cause to believe that the younger male in
the images is an actual minor and not a representation.
Special Agent Lundt has served as a Customs Service agent
for over twenty-seven years and has been personally involved with
more than twelve child pornography investigations. He affirmed
that the boy depicted in 17.JPG is the same boy depicted in the
CD-Rom images. The court, upon reviewing 17.JPG, has determined
that probable cause existed to believe that the boy in this image
is a minor. See Order of April 1 9 , 2002. Furthermore, Special
Agent Lundt’s affidavit specifically alleges that the images in
question are of minor children. His allegations in the affidavit
describe, inter alia: “images of minor children engaged in
sexually explicit conduct . . .” (Aff. ¶ 1 7 ) ; “a naked
prepubescent child male child [sic], kneeling in profile to the
camera with an erect penis,” (Aff. ¶ 1 7 ) ; “a naked minor male
reclining on a bed and fondling his penis,” (Aff. ¶ 1 7 ) ; and “the
minor male child . . . sexually interacting with a naked adult
male.” (Aff. ¶ 1 8 ) . There is a presumption of validity with
respect to the allegations contained in an affidavit supporting a
search warrant. See Franks v . Delaware, 438 U.S. 1 5 4 , 171
(1978). Given the totality of circumstances presented in Special
Agent Lundt’s affidavit and the attached supporting documents,
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specifically the attached image 17.jpg, and his detailed
descriptions of minor children engaging in sexually explicit
conduct in other images, as well as his previous experience with
child pornography investigations, the court finds that there is a
substantial basis for finding probable cause to issue the search
warrant for evidence of child pornography involving actual minor
children.
Conclusion
For the foregoing reasons, defendant’s motion to suppress
(document n o . 28) is denied.
SO ORDERED.
Joseph A . DiClerico, J r .
United States District Judge
September 2 4 , 2002
cc: Bjorn R. Lange, Esquire
Helen W . Fitzgibbon, Esquire
U.S. Probation
U.S. Marshal
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