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United States of America v. Simon Jasper Mccarty

December 13, 2011

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
SIMON JASPER MCCARTY, DEFENDANT.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

POST-REMAND ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS

I. INTRODUCTION

On August 5, 2008, Defendant Simon Jasper McCarty ("Defendant"), a United Kingdom national, was traveling from Hilo to Honolulu when the Transportation Security Administration ("TSA") found photographs of naked prepubescent children in his luggage. As a result of this discovery and a subsequent investigation, the Second Superseding Indictment ("SSI") charges Defendant with ten counts of child pornography, including: two counts of knowingly transporting child pornography in interstate commerce on July 28, 2008 in violation of 18 U.S.C. §§ 2252A(a)(1) and (b)(1) (counts 1 and 2), two counts of knowingly possessing child pornography on August 5, 2008 in violation of 18 U.S.C. §§ 2252(a)(5)(B) and (b)(2) (counts 3 and 4); and five counts of coercing a minor to engage in sexually explicit conduct for the purpose of producing visual depictions of such conduct in violation of 18 U.S.C. §§ 2251(c)(1)(B) and 2251(e) (counts 5-10).

On April 13, 2009, Defendant filed a Motion to Suppress all evidence obtained as a result of the August 5, 2008 search of his luggage at the Hilo International Airport. Defendant argued that (1) the TSA performed an overbroad search of his luggage such that there was no probable cause supporting the arrest, (2) he did not give informed consent for the Hawaii County Police Department ("HCPD") to search his luggage, and (3) he did not knowingly and voluntarily waive his Miranda rights. On December 24, 2009, the court granted Defendant's Motion, finding that the TSA screeners had performed an overbroad search and the court could not determine what materials TSA screeners had seen as part of their permissible search such that the government had not carried its burden of establishing probable cause to arrest Defendant. See United States v. McCarty, 672 F. Supp. 2d 1085 (D. Haw. 2009). As a result, the court suppressed all evidence obtained during the subsequent consent and warrant-based searches as fruit of the poisonous tree.

On appeal, the Ninth Circuit vacated the suppression order and remanded for further proceedings. See United States v. McCarty, 648 F.3d 820 (9th Cir. 2011). The Ninth Circuit held, among other things, that although the TSA screeners performed an overbroad search by reading papers in Defendant's luggage, the screeners viewed the photographs as part of their administrative search and they could be considered in making the probable cause determination.

After receiving post-remand briefing from the parties and hearing additional oral argument, the court finds that the photographs the TSA screeners viewed as part of their administrative search supported a probable cause finding to arrest McCarty for violation of Hawaii Revised Statutes ("HRS") § 707--752, promotion of child abuse in the third degree. The court also rejects Defendant's additional arguments seeking suppression and therefore DENIES Defendant's Motion to Suppress.

II. ANALYSIS

A. Probable Cause for Arrest

As explained in earlier orders,*fn1 Defendant checked two bags while traveling from Hilo to Honolulu -- a Travel Pro bag and a Travel Zone bag. During screening at Hilo International Airport, Defendant's Travel Pro bag was flagged as a possible safety concern due to what appeared to be a laptop with a dark mass around it. TSA screener Dorina Andrade ("Andrade") subsequently pulled out the laptop, at which point an envelope slid out, spilling some of its contents.

As previously described, see McCarty, 672 F. Supp. 2d at 1092, the contents of the envelope included photographs of nude and partially clothed children, Gov't Exs. 1-56, newspaper and magazine clippings describing sexual acts including sex between minors and trial testimony of sexual encounters between a minor boy and a woman, id. at 72-75, magazine clippings of children's pajama, underwear, and swimwear advertisements, id. at 59-71, and handwritten notes drafted in the first person describing a man molesting boys and a girl. Id. at 80-81. Of the 58 photographs from the envelope, 57 are of minor children in various states of undress -- for example, young boys with no shirts on, boys in their underwear only, one shirtless boy laying down while a hand reaches toward his pants, and one boy lying face up on top of Defendant while Defendant lifts up the boy's shirt. Eleven photographs include child nudity, some of which are not child pornography and might appear almost innocent if viewed in isolation, see id. at Exs. 7, 10, 58, McCarty, 672 F. Supp. 2d at 1101, while three (in particular Exs. 1-3) focus on the child's genitalia and are clearly meant "to arouse or satisfy the sexual cravings of a voyeur." See United States v. Overton, 573 F.3d 679, 686 (9th Cir. 2009) (quoting United States v. Hill, 459 F.3d 966, 972 (9th Cir. 2006)); see also McCarty, 672 F. Supp. 2d at 1092 (describing the eleven photographs).

Andrade, assisted by TSA screener Jenny Moniz ("Moniz"), viewed the photographs that had fallen out of the envelope, viewed some of the photographs that remained in the envelope, and read portions of the written materials during their search. In light of what they saw, Andrade called her supervisor; TSA lead Tracy Kitamura ("Kitamura") and TSA supervisor Stephanie Kamohai ("Kamohai") subsequently reviewed the materials before calling Hilo Airport law enforcement officer Rodney Aurello ("Aurello").*fn2 Based on Aurello's review of some of the photographs, he called HCPD. HCPD officer Norbert Serrao ("Serrao") reviewed the materials and arrested Defendant for violation of HRS § 707-752, promotion of child abuse in the third degree.

This court found and the Ninth Circuit agreed that Andrade and Moniz went beyond the scope of a lawful administrative search and violated Defendant's Fourth Amendment rights by reading the written materials from the envelope that had fallen out of Defendant's Travel Pro bag. See McCarty, 648 F.3d at 836 (holding that Andrade's actions of reading the content of letters and looking at the newspaper articles and advertisements fell outside the scope of an administrative search). Both this court and the Ninth Circuit further agreed that the probable cause determination could not be based solely on what Serrao reviewed --he reviewed photographs that Andrade did not review, and read the textual materials which went beyond what an administrative search should have included.*fn3

The Ninth Circuit clearly differed with this court, however, in whether Andrade viewed at least some photographs for administrative purposes or solely to investigate her suspicions that the photographs were child pornography. This court found that it could not determine which photographs Andrade and Moniz saw during the course of the lawful administrative search, as opposed to purely a search for child pornography. McCarty, 672 F. Supp. 2d at 1101-02. This court concluded that "the government has failed to carry its burden that the TSA properly uncovered photographs that would support probable cause to arrest Defendant." Id. at 1102.

The Ninth Circuit disagreed with this court's factual findings, determining that Andrade consistently testified that she reviewed the photographs for safety reasons such that "all of the photographs viewed by the screeners as part of the lawful search for explosives must be considered in reaching a probable cause determination."*fn4 McCarty, 648 F.3d at 839. The Ninth Circuit further outlined the steps this court must take to determine whether probable cause existed to arrest Defendant -- requiring the court to determine (1) what photographs Andrade and Moniz viewed as part of their administrative search; and (2) whether those photographs support probable cause to arrest Defendant for violation of HRS § 707-752.*fn5 The court now addresses these steps.

1. Photographs Viewed by Screeners

The Ninth Circuit instructed this court to determine what photographs the screeners viewed during their administrative search of Defendant's Travel Pro bag:

On remand, the district court's probable cause determination should proceed in two steps. First, the court should decide what materials may be considered in determining whether probable cause existed to arrest McCarty. As [United States v. Jensen, 425 F.3d 698 (9th Cir. 2005),] illustrates, courts generally consider the information known to the arresting officers at the time of the arrest. Here, Serrao testified that he had viewed all of the photographs in McCarty's envelope and perhaps also some of the textual materials before making the arrest. The general rule must, however, be narrowed here, because the fruits of an unlawful search cannot provide probable cause for an arrest, see Johnson v. United States, 333 U.S. 10, 16-17, 68 S. Ct. 367, 92 L.Ed. 436 (1948), and it is clear some portion of this search was unlawful. Although -- consistent with our enumeration of the search's lawful scope -- all of the photographs viewed by the screeners as part of the lawful search for explosives must be considered in reaching a probable cause determination, the textual materials seen by the screeners may only be considered if the government demonstrates that suppression is an inappropriate remedy. Similarly, the photographs not viewed by the screeners may be considered only if they do not constitute fruit of the poisonous tree.

McCarty, 648 F.3d at 839.

This task is easier said than done -- this court and the Ninth Circuit have recognized that Andrade did not consistently testify regarding "exactly which images she saw, how many photographs spilled onto the table, and whether she touched or did not touch the photographs on the table before calling the lead officer."*fn6 McCarty, 648 F.3d at 838; McCarty, 672 F. Supp. 2d at 1096. Indeed, Andrade provided inconsistent testimony regarding the scope of her inspection of the photographs. For example, in one instance Andrade testified that she "inspected whatever pictures were on the table first" and then turned to those that remained in the envelope. Doc. No. 57 at 67; see also id. at 55. At other instances, Andrade testified that she went through less than half of the photographs on the table, id. at 61, 74, and at still other instances she testified that she merely "looked" at the photographs on the table without touching them or seeing any of the photographs that may have been underneath those that were on top. Id. at 85-88. What is clear from her testimony, however, is that she did not review all of the photographs -- she stopped her search before going through all the photographs that had remained in the envelope. Id. at 97-98.

The court's inquiry, however, does not stop at Andrade. At a minimum, the screeners that viewed the photographs as part of an administrative search included not only Andrade, but also Moniz. See Doc. No. 90, Def.'s Post-Remand Br. at 6 (conceding that Moniz assisted Andrade in the administrative search such that the photographs she reviewed must be considered). Further, regardless of whether Kitamura, Kamohai, and Serrao reviewed the photographs as part of any administrative search,*fn7 their testimony, along with that of Moniz, provides insight into what images Andrade and Moniz in fact observed during their administrative search. Moniz, Kitamura, Kamohai, and Serrao answered questions directly, displaying an appropriate recall of events. Unlike Andrade, based on the court's observations of these witnesses and their overall manner of testifying, the court finds their testimony credible. And based on their credible testimony, the court is able to determine several photographs that Moniz and Andrade in fact did observe during their administrative search.

As a starting place, Moniz provided a clear and credible picture of the steps she and Andrade took and was able to identify some of the photographs she saw. Moniz testified that when she came over to assist Andrade, the photographs that had fallen out of the envelope were "scattered on the table" and that she and Andrade picked up the photographs and collected them. Id. at 123, 127-31. Moniz further testified that as they were collecting the scattered photographs to put back in the envelope, "at that point we saw something that was improper, we did look through the rest of them, and then we stopped." Id. at 131 (emphasis added). In other words, according to Moniz -- who this court finds credible -- Moniz and Andrade reviewed all of the photographs that had fallen out of the envelope. Because Moniz did not recall personally looking through the photographs in the envelope, id. at 133, the court concludes that the photographs Moniz and Andrade viewed included all of the photographs that had fallen out of the envelope and a portion of the photographs that remained in the envelope (which Andrade apparently viewed alone).

As to the specific photographs she saw, Moniz recalled seeing photographs of "[a] child that was naked like a pond setting by a rock. Another child that was naked standing -- maybe like two or three years old and just standing there nude." Id. at 140-41. Moniz further recalled a "specific photo of a child laying on a bed. It was the top half of his body, he was without a shirt on, he laid there in a very stiff position with his eyes squinted shut to hold it shut like he was very uncomfortable." Id. at 140. After carefully reviewing all of the photographs, the court finds that Moniz' first description is consistent with either Government's Exhibits 4, 5, or 6, the second description is consistent with Government's Exhibit 7 or 10 (or possibly even Exhibit 8), and the third description appears most consistent with Government's Exhibits 15, 18, or 19.

Turning to the testimony of Kitamura, Kamohai, and Aurello, the court is able to identify at least one additional photograph that Andrade and Moniz necessarily saw during their search. Their collective testimony confirms that after Andrade and Moniz conducted their administrative search, none of these individuals disrupted the placement of the photographs between those that had fallen out of the envelope (that is, those left on the table after Andrade and Moniz' review) and those that remained in the envelope (of which Andrade viewed a portion).*fn8 As a result, their testimony describing the photographs they saw outside the envelope describes what Moniz and Andrade necessarily saw during their administrative search.

Specifically, Kitamura was the next individual after Moniz and Andrade to review the materials, and he testified that he reviewed only those photographs that were outside of the envelope, which included photographs of nude and partially-clad children. See id. at 176-77, 179-81. Next, Kamohai "shuffled" through the materials, apparently maintaining the separation between those that had fallen out and scattered versus those that remained in the envelope. See id. at 190-95 (stating that the materials she saw was a single pile consisting of the photographs that had previously fallen out of the envelope on top, with the envelope containing additional photographs on the bottom). And, importantly, the separation between those photographs that had fallen out of the envelope versus those remaining in the envelope still existed when Aurello reviewed the materials. Id. at 163-66. Aurello reviewed only the photographs that were outside the envelope, and only "looked into the envelope to see that there was quite a few photographs in there, but I didn't thumb through those photographs in the envelope." Id. at 166. In other words, Aurello reviewed only those photographs that were outside the envelope and which Moniz and Andrade had already reviewed.

Aurello was able to specifically describe the photographs he saw -- he recalled seeing photographs of "male minors in the nude posing," including a photograph of two nude boys. Id. at 169. There are only two photographs that include two nude boys -- Government Exhibits 2 and 3. Because Aurello reviewed only those photographs that were outside the envelope and Moniz and Andrade reviewed that same group of photographs as part of the administrative search, the court concludes that Moniz and Andrade necessarily saw Government's Exhibit 2 or 3 during their administrative search.

That Moniz and Andrade reviewed Exhibits 2 and/or 3 is further confirmed by the reactions each individual had upon seeing the photographs that had fallen out of the envelope. The court previously described these two exhibits as "[c]olor photographs of two prepubescent boys . . . standing naked, with both boys' penises clearly visible. The photographs are taken from above the boys, such that the angle of the photographs cut off the boys' full faces." McCarty, 672 F. Supp. 2d at 1092. In other words, the focus of these photographs is the children's genitalia. These photographs, compared to the other 55 photographs found in Defendant's Travel Pro bag, are certainly the most disturbing -- only nine other photographs contain child nudity (with only one other photograph focusing on the child's genitalia and cutting off the face of the child), and the remaining photographs show children semi-clothed. Yet each individual who reviewed the photographs that had fallen out of the envelope had an immediate reaction that the photographs were highly improper. Moniz testified that her immediate reaction to the photographs was "disgust;" the children in the photographs looked "uncomfortable, upset, unhappy," and in "harm's way." Id. at 124, 130. Moniz' reaction is consistent with Andrade's testimony that she saw numerous photographs of children, including those of children in the nude, which made her feel "like something was wrong, that the kids were in a situation where they might be harmed." Id. at 24; see also id. at 62-63. The photographs were disturbing to Kitamura and made him feel "sick to my stomach." Id. at 180-82. Aurello decided "right off the bat" to call the police. Id. at 167.

In sum, the court finds that of the 57 photographs found in Defendant's Travel Pro bag, Moniz and Andrade reviewed a portion of them, and in particular at least Government Exhibits 2 or 3, one of 4-6, and one of 15, 18, and 19, as part of their administrative search.

2. Probable Cause Determination

For the second step, the court must make the probable cause determination. The Ninth Circuit has instructed that "[o]nce the district court determines which evidence may be considered as part of the probable cause determination, it must determine whether that evidence was 'sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.'" McCarty, 648 F.3d at 840 (quoting Jensen, 425 F.3d at 704). The Ninth Circuit further explained:

To show that the police had probable cause to arrest McCarty, the government is required to prove only that "'at the moment of arrest the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense.'" United States v. Jensen, 425 F.3d 698, 704 (9th Cir. 2005) (quoting United States v. Bernard, 623 F.2d 551, 559 (9th Cir. 1980)). Under this objective standard, the government need not "show [ ] that the officer[s'] belief is more likely true than false," United States v. Brobst, 558 F.3d 982, 997 (9th Cir. 2009), and need not demonstrate "probable cause for every element of the offense," Blankenhorn v. City of Orange, 485 F.3d 463, 472 (9th Cir. 2007) (internal quotation marks omitted). Instead, the government must show that the officers had an objectively reasonable belief that McCarty committed a crime, based on the totality of the relevant circumstances. See Luchtel v. Hagemann, 623 F.3d 975, 979 (9th Cir. 2010). Accordingly, the government is not required to prove that all or any of the photographs actually exhibited child pornography in order to establish probable cause for McCarty's arrest.

McCarty, 648 F.3d at 838-39 (footnote omitted).

Defendant was arrested for violation of HRS § 707-752, which prohibits the knowing possession of child pornography. See HRS § 707-752(1). "Child pornography" is defined as "any pornographic visual representation, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexual conduct," id. § 707-752(2), with "sexual conduct" including, among other things, "lascivious exhibition of the genital or pubic area of a minor." Id. "'Lascivious' means tending to incite lust, to deprave the morals with respect to sexual relations, or to produce voluptuous or lewd emotions in the average person, applying contemporary community standards." Id.

Although the government need not establish that the photographs Moniz and Andrade viewed constitute child pornography, see McCarty, 648 F.3d at 839, there is no dispute that if Andrade and Moniz viewed child pornography, then Serrao certainly had probable cause to arrest Defendant for violation of HRS § 707-752. And applying the factors outlined in United States v. Dost, 636 F. Supp. 828, 832 (S.D. Cal. 1986), aff'd sub nom. United States v. Wiegand, 812 F.2d 1239 (9th Cir. 1987),*fn9 the court easily concludes that the Government's Exhibits 2 and 3 are clearly presented "to arouse or satisfy the sexual cravings of a voyeur." See Overton, 573 F.3d at 686 (quoting United States v. Hill, 459 F.3d 966, 972 (9th Cir. 2006)). Specifically, the focal point of the images is the children's genitalia (their faces are cut off from view), and the children are inappropriately pulling down their underwear specifically to display their genitalia. Given the explicit nature of these photographs, either one of them -- on their own -- would be "sufficient to warrant a prudent man in believing that [Defendant] had committed or was committing a [violation of HRS § 707-752]."

Yet in this case, Government's Exhibits 2 or 3 was not seen in isolation and the totality of the circumstances further confirm that probable cause existed to arrest Defendant. Andrade and Moniz did not see only one photograph, but saw several photographs of nude and partially nude children. Moniz described that the children in the photographs looked "uncomfortable, upset, unhappy," and in "harm's way." Doc. No. 57 at 130. Moniz further specifically identified that she saw a photograph of a "child that was naked like a pond setting by a rock," which corresponds to Government's Exhibits 4, 5, or 6.*fn10 Even without Government Exhibit 2 or 3, Exhibits 4, 5, or 6, when placed in context with additional photographs of semi-nude boys, establishes an objectively reasonable belief that Defendant committed a violation of HRS § 707-752 -- the boy in the photograph, between the age of 7 to 10, is too old to be photographed nude naturally and his body is the focus of each photograph. Further, when viewed alongside any of the additional photographs (all of which feature semi-nude children), its intent is clear -- to elicit a sexual response in the viewer.

Thus, based on all of the relevant circumstances -- that Moniz and Andrade saw photographs of nude and semi-nude children, at least one, if not two photographs they saw contained child pornography, and there were additional photographs that they were aware of -- the court finds that the HCPD officers had an objectively ...


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