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United States v. Krueger

United States District Court, District of Kansas

February 7, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
ZACHARY KRUEGER, Defendant.

MEMORANDUM AND ORDER

MONTI L. BELOT UNITED STATES DISTRICT JUDGE

This case comes before the court on defendant’s motion to suppress. (Doc. 11). The motion has been fully briefed and is ripe for decision. (Doc. 13). The court held an evidentiary hearing on February 6, 2013.

I. Facts

In May 2013, Rick Moore, a special agent with Homeland Security (HSI), received a lead concerning defendant from the Delaware HSI office. The Delaware agent came into contact with defendant when he was conducting covert operations online. Defendant shared his peer to peer networking account and password with the agent who discovered child pornography contained in defendant’s files. The agent captured defendant’s IP address from the account and used that information to determine defendant’s physical address in Emporia, Kansas.

Moore used the information gathered from the Delaware investigation to obtain a search warrant for defendant’s residence. The search warrant sought to locate items which depicted child pornography and was issued by Magistrate Judge Karen Humphreys in Wichita, Kansas, on June 7, 2013. The search warrant was executed by Moore at 6:40 a.m. on June 13. While at the residence, Moore learned from Matthew Hastings, defendant’s roommate, that defendant was in Oklahoma City, Oklahoma, visiting Nate Benner. Moore searched the residence for defendant’s computer and cell phone, but they were not at the residence. Hastings informed Moore that if those items were not in the residence, defendant would probably have them with him. Moore asked Hastings to refrain from contacting defendant about the search warrant. Hastings told Moore that he would not contact defendant.

Moore contacted Jeff Perkins, an HSI agent in Oklahoma City. Moore informed Perkins that they were looking for defendant who may be with Nate Benner in Oklahoma City. Perkins determined a potential address for Benner. Perkins drove to the residence and located defendant’s vehicle. Perkins called Moore, informed him of the location of defendant’s vehicle and sent photographs of the residence and vehicle. Perkins then remained at the residence conducting surveillance.

Moore called Jason Hart, the AUSA assigned to the case, to inform him of the events. Hart began to prepare a warrant to search the home in Oklahoma and defendant’s vehicle. Hart advised Moore to drive to Wichita so that they could present the warrant to Magistrate Gale. At 11:30 a.m., Moore and Hart met with Magistrate Gale. Moore told the magistrate that defendant and his computer were in Oklahoma. The warrant specified that the Oklahoma residence was only to be searched for defendant’s property.

After receiving the warrant, Perkins reviewed it to confirm the address was correct and that it had a signature authorizing the search. Perkins testified that he did not have any reason to question the validity of the warrant at the time he was given the warrant. Perkins and eight additional officers approached the Oklahoma residence to execute the warrant. Perkins knocked on the door and asked if defendant was inside. Defendant was sitting on the couch. The officers did an initial sweep of the residence. After the sweep, Perkins located defendant’s computer and hard drive. The items were seized but not searched. At some time after the entry, an officer picked up the warrant and noticed that it was signed by a judicial officer in Kansas. The officer asked Perkins if that was acceptable.[1]Perkins called Moore to relay the concern. Moore contacted the AUSA. Moore then instructed officers not to search the property until additional warrants or consents were given.

HSI agent Kari Newman assisted in the execution of the search warrant and conducted an interview with defendant. During the interview, Newman informed defendant of his Miranda rights. Defendant read his rights and signed the waiver. Defendant admitted to viewing child pornography and trading it with others online.

Defendant’s computer and hard drive were sent to a forensic lab in Kansas City, Missouri. Moore retained various CDs seized in the search. Ultimately, Moore obtained a warrant to view the CDs. There was nothing of any evidentiary value on the CDs.

On June 26, Moore contacted officer Kevin Shireman to assist in the investigation. Shireman went to defendant’s house in Emporia. Shireman told defendant that he was there on behalf of Moore and asked for consent to search the computer and hard drive that were stored in Kansas City. Defendant gave written consent to search the computer and hard drive.

Defendant seeks to suppress his statements and the computer and hard drive on the basis that the warrant was not authorized.

II. Analysis

Federal Rule of Criminal Procedure 41(b) ...


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