United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE
October of 2015, S.P. and F.P., twin sisters who were then
sixteen or seventeen years old, told their mother that her
boyfriend, the defendant Random Shane Smith, had been
sexually abusing them for some six years. The twins were born
in 1998. The mother, a United States Army Sergeant stationed
at McConnell Air Force Base in Wichita, Kansas, did not
initially believe the information because she believed Smith
was impotent and unable to have intercourse. Still, she drove
her daughters to Mendota, Illinois to live with her parents.
The mother did not report the alleged abuse to law
the girls were in Mendota, according to information latter
supplied to investigators, they received threatening or
abusive emails from Smith, including an email from Smith that
“I fucking hate you more than anything just fucking
girls reported the abuse to their grandparents, who then
informed the local police. The police informed armed forces
investigators, and two AFOSI Agents, Pingaree and Inness
interviewed the girls.
the interview conducted by Pingaree and Inness, a Special
Agent of the FBI prepared an affidavit which was submitted to
United States Magistrate Judge Gwynne Birzer. The affidavit
sought permission to search the mother’s residence at
McConnell to investigate likely violations of 18 U.S.C.
§ 2241(a), 18 U.S.C. § 2251 (production of child
pornography), and 18 U.S.C. § 1512(b)(3) and (d)
(witness tampering). Based on this affidavit, Judge Birzer
authorized a search of the base housing used by the mother
and the defendant. The defendant has been charged with two
counts of aggravated sexual abuse, in violation of 18 U.S.C.
§ 2241(a) (Counts 1 and 2, respectively, directed as to
each of the two sisters); separate counts of production and
possession of child pornography, in violation of 18 U.S.C.
§ 2251(a) (Count 3 and 4), and one count of tampering
with a witness or victim, in violation of 18 U.S.C. §
1512(b)(3) (Count 5).
matter is now before the court on two motions by Smith.
First, Smith seeks to suppress the results of the warrant.
(Dkt. 39). Second, he has moved for a bill of particulars.
(Dkt. 36). For the reasons provided herein, the court denies
the affidavit in support of the warrant contains background
material as to the investigation and the affiant’s
knowledge of the prior cases of abuse. The core of the
affidavit, discussing the sexual abuse of S.P. and F.P., is
contained in two paragraphs.
Both MV1 (S.P.) and MV2 (F.P.) confirmed and provided
additional details regarding SUBJECT's [Smith’s]
sexual abuse of the minor victims, including (but not limited
a. Both girls were afraid of SUBJECT, because of his
strength, physical size and military training. A few times
SUBJECT pushed MV1 to the ground if she refused to comply
with SUBJECT's demands for MV1 to perform sexual acts on
b. For MV1, the sexual abuse began in Maryland in 2009, where
SUBJECT would kiss and lick MV1. The sexual abuse continued
when MV1 moved to North Carolina, where SUBJECT forced MV1 to
perform sex acts on him. In North Carolina, SUBJECT began
subjecting MV1 to penetrative sexual acts.
c. When MV1 moved to [McConnell] in April of 2014, SUBJECT
continued to force MV1 to perform sex acts upon, or with,
SUBJECT. A few times SUBJECT forced MV1 and MV2 to perform
sex acts on him at the same time. Further, SUBJECT used bath
robe belt to bind MV1's arms to the bed and use[d] a
sleeping mask to blind her face and perform penetrative
sexual acts on her. SUBJECT also forced sexual acts to be
performed by MV1 in the kitchen on a counter across from the
refrigerator at [address redacted], in a dark brown recliner
in the living room at [redacted], in the basement at
[redacted] on a variety of blankets, on a bed in the bedroom
of MV1's mother at [redacted], on Ninja Turtle sheets in
MV1 's bedroom at [redacted], and on the bed in the spare
bedroom at [redacted].
d. MV2 reported hearing SUBJECT trying to persuade MV1 to
perform oral sex on him in Maryland, but did not confront
e. For MV2, the sexual abuse began later, in North Carolina,
where SUBJECT would use his fingers to touch MV2's
genitals while she slept.
f. When MV2 moved to MCAFB in April of 2014, SUBJECT
continued to sexually abuse MV2, forcing her to perform oral
sex while holding and moving her head and subjecting MV2 to
penetrative sexual acts. For MV2, SUBJECT would force MV2 to
engage in sexual acts in a dark brown recliner in the living
room at [redacted], on a bed in the bedroom of MV2's
mother at [redacted], and on Disney Minion sheets in
MV2's bedroom at [redacted].
g. The sex acts perpetrated by SUBJECT while in Kansas
occurred on-base at [redacted], Wichita, Kansas 67210.
19 is much shorter. It states that S.P. told Pingaree and
that [Smith] took nude pictures of her genitals, as well as
pictures while he engaged in sexual acts with her. She
reported he used his cell phone to do this, and that the
pictures were taken at [address redacted], Wichita, Kansas,
motion to suppress, Smith alleges that the affidavit was
actively misleading because it failed to identify the
following facts revealed in S.P’s interview:
(1) Smith’s photographing S.P during sex was a one-time
event, occurring some two years before the affidavit for
warrant (Dkt. 39, at 10-11);
(2) the sexual activity occurred without actual force
(Id. at 12-13).
(3) Smith deleted the photos shortly after taking them;
(4) To the extent Smith had other sexual photos on his phone,
these were all photos of adult women; and
(5) In addition to disbelieving the girls’ report
because she believed Smith impotent, their mother also
doubted their story because the girls recanted their story
argues the affidavit contained both material misstatements
and material omissions. He argues that the affidavit was
actively misleading in suggesting the photography was
ongoing, when in reality S.P.’s statement indicates
that he took five to eight photographs of her vagina or
during sex, and that this occurred while they were living in
temporary base housing, which would have occurred in February
of 2014. In addition, he contends that the allegation of
physical force of pushing in Paragraph 18 was actively
misleading because S.P. never states in the interview that
Smith pushed her during or prior to sexual intercourse.
argues that the affidavit was deliberately misleading in
order obscure the staleness of the information about the
sexual photography, and to supply the force element of the
federal crime he is charged with. He contends that the
affidavit’s allegation of the use of force was
deliberately misleading so as to obscure the fact that S.P.
had reported that “she had turned down Mr. Smith for
sex and that the relationship was a boyfriend dynamic.”
(Dkt. 39, at 13).
argues that the warrant should be suppressed because it is a
general warrant which fails to describe with particularity
the target of the search, citing decisions such as United
States v. Riccardi, 405 F.3d 852, 861-63 (10th Cir.
2005). (Dkt. 39, at 14-17), and that the warrant lacked
probable cause. (Id. at 17-23). Moreover, he
contends, since the exclusion of the relevant information was
intentional or reckless the court must ...