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United States v. Barthelman

United States District Court, Tenth Circuit

July 31, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
ELIAS BARTHELMAN, Defendant.

MEMORANDUM AND ORDER

MONTI BELOT MONTI L. BELOT UNITED STATES DISTRICT JUDGE

This case comes before the court on defendant’s motion to suppress. (Doc. 28). The motion has been fully briefed (Docs. 31, 32, 35, 36, 37) and the court conducted an evidentiary hearing on June 18, 2013. The motion to suppress is granted in part and denied in part for the reasons herein.

I. Facts

On February 23, 2012, the mother of Jane Doe, an 11 year old girl, contacted the Ohio Internet Crimes Against Children (ICAC) and reported that Jane Doe was having a conversation on Google Plus with an adult male.[1] Rick McGinnis, an investigator with the Cuyahoga County prosecutor’s office, went to Jane Doe’s home and interviewed the minor. McGinnis received permission from Jane Doe and her mother to search Jane Doe’s email account with Google and Jane Doe’s Ipod touch, an electronic device used to send text messages. The Ipod touch contained five thumbnail images of a nude female. Jane Doe identified those images as ones she took of herself. The Ipod device also contained three thumbnail images of what “appeared to be” an adult male penis. Jane Doe’s mother informed McGinnis by email that Jane Doe sent nude images to an individual identified as “John” and that this individual sent images of his penis to Jane Doe.

After reviewing the emails in Jane Doe’s account, McGinnis determined that Jane Doe sent five videos to an individual with an email account of johnsmith19910@yahoo.com (“johnsmith”) on January 17, 2012, between 7:46 and 7:48 p.m. The emails did not contain written text. There were no emails from “johnsmith” to Jane Doe prior to Jane Doe’s transmission of the videos. On January 18, “johnsmith” sent an email to Jane Doe which said “hey, unblock me on textplus please.” (Def. exh. A at 5). On January 19, Jane Doe responded “no!” (Id.) On January 20, “johnsmith” stated “awww, come on, that was a lot of fun, lets have sum [sic] more fun;).” (Id.) Jane Doe responded “No! No! No! You are not dragging me into that - if you reply to this, I will seriously consider reporting you to the police.” (Id.) That same evening, “johnsmith” sent a response asking “r u gonna sho them the vids u sent me? cuz I will!” (Id. at 6)(sic throughout). The last email between Jane Doe and “johnsmith” occurred at 7:44 p.m. on January 20 and was sent by Jane Doe stating “no...I’m eleven years old. seriously. stop emailing me and get a nonsexual life.” (Id. at 5).

On March 20, 2012, McGinnis met with Jane Doe and her mother to verify the videos in the emails. Jane Doe confirmed that the videos were taken by her and that she appears in the videos. On March 21, 2012, a grand jury subpoena was sent to Yahoo Inc. requesting account and IP address information for the Yahoo mail user “johnsmith19910@yahoo.com.” The return provided information which led McGinnis to subpoena Cox Communications for the account information for the specific IP address identified by Yahoo. The account was registered to defendant at 422 East Quivira Street in Kechi, Kansas.

On May 3, [2] McGinnis applied for a search warrant for the “johnsmith” email account from Judge Corrigan of the Cuyahoga County District Court in Ohio. On the application for the warrant, McGinnis swore to the following:

Affiant has exhibited probable cause necessary to search the below listed property/stored electronic information, wherein affiant avers that he has reasonable cause to believe, and does believe, that said property/stored electronic information, to wit: Yahoo profiles for johnsmith19910@yahoo.com. That is currently in the possession of Yahoo Inc., Sunnyvale, California, and the said property/stored electronic information to be searched being located in the possession of Yahoo Inc. Sunnyvale, California, there is now being kept, concealed, and possessed the following evidence of a criminal offense:
Any and all information for Yahoo! ID "johnsmith19910" or Yahoo! email account "johnsmith19910@yahoo.com"to include name and address; Yahoo! email address; alternate email address; IP address and date and time of registration;
For the subscriber identified above, the contents of any and all emails stored in the subscriber's Yahoo! account from November 1, 2011 through present day; Any and all contents of electronic files that the subscriber has stored in the subscriber's Briefcase and/or Flickr account; Any and all Yahoo! IDs listed on the subscriber's Friends list;
Any and all methods of payment provided by the subscriber to Yahoo! for any premium services; The identity of the moderators and members of the Yahoo! Group known from the above Yahoo ID, including the date the Group was created, the Group ID, the dates that members joined the group, and the delivery options for the current members; The current contents of the Files, Photos, Links, and Polls section of the Yahoo! Group associated with the above Yahoo ID and the archived message posts, and all records relating to the activities of the Group members, as reflected in the Group Activity Log.
Any and all evidence of communications used in the furtherance of the violation of laws of the State of Ohio, to wit: Ohio Revised Code Chapter 2907 and any and all other fruits and instrumentalities of crime at the present time unknown.

The facts upon which affiant bases such belief is as follows:

1. Affiant avers that he has been a certified peace officer in the State of Ohio for approximately twenty years. Affiant avers that he has been in law enforcement for the past twenty years and has been assigned to the Internet Crimes Against Children Task Force for the past five years.
2. Affiant avers that he has received training in the investigation of felony and misdemeanor offenses, including sex offenses and offenses involving compu1ers and/or the Internet and child exploitation.
3. Affiant avers that he has conducted and/or participated in investigations into felony and misdemeanor offenses which have resulted in state and/or federal prosecutions, including, but not limited to, investigations into sex offenses and offenses involving computers and/or the Internet.
4. Affiant avers that on February 23, 2012, [Jane Doe’s mother] contacted the Ohio ICAC Task Force and reported that her 11 year-old daughter (hereinafter identified as Jane Doe), was having a chat conversation on Google Plus with an adult male. Your affiant interviewed [Jane Doe’s mother] and Jane Doe and [Jane Doe’s mother] consented to the forensic examination of her daughter's Ipod Touch. Your affiant received permission from [Jane Doe’s mother] and Jane Doe to take over "Jane Doe's" Gmail and Google Plus accounts.
5. Your affiant knows that on February 27, 2012, Investigator Jeff Rice completed a forensics examination on the Ipod used by Jane Doe. Investigator Rice's forensics examination identified five nude thumbnail images found of a young female and three thumbnail images of what appears to be an adult male's penis.
6. Affiant avers that on March 20, 2012, he re-interviewed [Jane Doe’s mother] and Jane Doe regarding the images discovered on the IPod. Jane Doe advised your affiant that she had taken the image entitled ""1 05ZU K1" in her bathroom at her house. This image depicted Jane Doe in a state of nudity with her breasts exposed.
7. Affiant avers that on March 21, 2012 he received an email from [Jane Doe’s mother] stating that her daughter admitted to taking all of the images identified by Investigator Rice on the IPod which depicted a minor female child in a state of nudity, specifically displaying her breasts and genitals.
8. Affiant avers that on March 22, 2012, he received additional information from [Jane Doe’s mother] stating that her daughter had sent these images and videos to an individual identified only as John and that this individual did send images of his penis to Jane Doe.
9. On March 23, 2012, your affiant logged into "Jane Doe's" Gmail account and discovered five videos sent from "Jane Doe's" Gmail account to an individual using the Yahoo email account of "johnsmith19910@yahoo.com." The videos depicted Jane Doe in a state of nudity and were sent individually on January 17, 2012 at 7:48pm, January 17, 2012 at 7:47pm, January 17, 2012 at 7:46pm, January 17, 2012 at 7:46pm, and January 17, 2012 at 7:48pm.
10. Additionally, your affiant discovered email conversations from January 17, 2012 thru January 20, 2012 during which time Jane Doe advised the suspect that she was 11 years of age and transmitted nude images of herself to "johnsmith19910@yahoo.com" at his request. Affiant also knows that during these conversations, "johnsmith19910@yahoo.com" threatened Jane Doe to produce and send videos of herself naked and that she filmed herself naked at his request and sent these videos to him. Your affiant learned that Jane Doe attempted to delete these videos from her Ipod after she produced them.
11. The above information has led Affiant to believe that probable cause exists to believe that the items listed herein (i.e. property/stored electronic information, including information stored by Yahoo, Inc.) are evidence of a crime and are now being unlawfully kept, concealed, and/or possessed in the said property/stored electronic information: Yahoo profiles for "johnsmith19910" in violation of Revised Code of Ohio, to wit: R.C. 2907.

(Exh. 2A) (Emphasis added to reflect the statements found to have been falsely made).

The first several paragraphs include language which is taken from the Yahoo compliance manual. This manual is authored by Yahoo for law enforcement and contains sample language which Yahoo requests that officers use in the search warrants. The Yahoo search warrant signed by Judge Corrigan included these paragraphs.

On April 23, 2012, McGinnis contacted the Wichita Police Department’s Exploited Missing Child Unit and relayed the information from his investigation. Detective Jennifer Wright received the materials and followed up with McGinnis who later sent her the search warrant and affidavit. Wright did not do an independent investigation but had several conversations with McGinnis.

Wright applied for a search warrant for defendant’s home from a judge in Sedgwick County District Court. On the application for the warrant, Wright related the following:

Affiant is a detective with the Wichita Police Department currently assigned to the Exploited and Missing Child Unit; Internet Crimes Against Children Task Force. In that capacity Affiant was assigned to the follow up investigative duties of case number 12C03 8616. This case involves the allegations of Sexual Exploitation of a Child, KSA 21-5510 where the email account johnsmith19910@yahoo.com used at IP address 68.102.165.185 was utilized to have contact with a known 11 year old unmarried white female, M.S. and to received movie files of M.S. performing sexual acts. After reviewing reports and/or conducting interviews the Affiant has learned the following information:
On Monday, June 4, 2012 Affiant spoke with Investigator Rick McGinnis, Cuyahoga County Prosecutor's Office, Cleveland, Ohio. McGinnis investigated a case involving an eleven (11) year old unmarried white female, M.S. who had sent five self produced pornography movies to a male using the email account johnsmith19910@yahoo.com on January 17, 2012. McGinnis received a report from M.S.'s mother on February 23, 2012 after she located information that M.S. had engaged in conversations using Google Plus with an adult male. McGinnis obtained a waiver to search for the electronic device used by M.S. to have contact with johnsmith19910@yahoo.com with this device being an Apple I-pod touch. McGinnis said he requested a forensic examination be conducted on this device and received these results from Investigator Jeff Rice on February 27, 2012. Investigator Rice's forensic examination identified five nude thumbnail images found of a young female and three thumbnail images of what appears to be an adult male's penis. McGinnis interviewed M.S. on March 20, 2012, regarding these images found on M.S.'s I-pod touch. M.S. said the images of the young female were of her and that she had taken them at her residence in Ohio. The image titled "105ZUKl" is of her nude with her breasts exposed and she advised she took that in the bathroom at her residence in Ohio. M.S. said she sent those pictures to a male named "John" using her Google email account, stannaggie2000@gmail.com. M.S. identified the pictures of the adult male's penis as pictures she received from "john" a male using the email account johnsmith19910@yahoo.com. McGinnis advised in the pictures of the adult male penis he could see in the background light tan linoleum or tile floor with a brown trim and a gray vent cover on the floor itself.
On March 23, 2012, Investigator McGinnis logged into M.S.'s email account starmaggie2000@gmail.com after obtaining a waiver for this activity. McGinnis discovered five videos sent from this email account to an individual using the Yahoo email account of johnsmith19910@yahoo.com. These videos were sent individually on January 17, 2012 between 1946 and 1948 hours. McGinnis also located an email conversation from January 17, 2012 to January 20, 2012 during which time M.S. advised this male she was 11 years old and transmitted these five self produced pornography movies to this male at his request. McGinnis also located information during this email conversation that where M.S. had blocked this male on the chat conversation venue utilized by the two of them "textplus" and that she told this male she was 11 years old and to stop emailing her and to get a nonsexual life and that she was considering reporting him to the police. This male replied to this by asking M.S. if she was going to show them (the police) the videos she had sent him because he would and asked for another video. M.S . told this male no and he replied that it had been fun and to have some more fun. M.S. sent another email stating "no" and that was the last email located on the email account for M.S. by McGinnis.
McGinnis said he viewed all five videos. McGinnis said all five were of M.S. and that he confirmed this with M.S. after she identified them to be movies of her that she produced at the request of the ...

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