A warrant to search a vehicle was supported by probable cause, based on facts in the affidavit that a confidential witness observed child pornography on the owner’s laptop computer and that, based on the swearing officer’s experience, people who collect child pornography often keep the collection close by, such as in their residence or car.
In August 2016, FBI Special Agent Gonzalez presented the magistrate judge with an application for a search warrant for Defendant Richard Haas’s residence and his 2015 Jetta. The application was supported by a lengthy affidavit (First Affidavit) asserting probable cause based in part on Haas’s communications with a confidential witness (“CW”). The magistrate judge granted the application, and FBI agents executed the warrant the next day. Among the items recovered from the car was a purple vibrator that Haas allegedly used to commit other child molestation offenses.
The agents searched Haas’s residence and Jetta when he was not present. After the search, they went to his work address and found him in his work vehicle, a Ford truck, and arrested him for aggravated sexual battery of a minor. While searching Haas’s person and the truck, the agents recovered a cell phone and laptop.
Gonzalez then submitted an application for another search warrant for the truck and cell phone, supported by another affidavit (Second Affidavit). The Second Affidavit was identical to the First, except for a summary of events following execution of the first warrant. The magistrate judge granted the second application, and a search of the laptop revealed numerous images of children engaged in sexually explicit conduct.
Haas previously moved to suppress evidence seized during the Ford truck search. The court concluded that the Second Affidavit had fully disclosed the information necessary to assess CW’s credibility, but also held that it failed to establish probable cause as to the truck because there was no nexus between that location and the evidence to be seized from it. Still, suppression was not warranted because the good-faith exception applied.
Haas now moves to suppress evidence based on the sufficiency of the First Affidavit and search of the Jetta.
Haas asserts that Gonzalez knowingly or recklessly omitted several relevant facts from the First Affidavit. But the court has previously noted that CW’s criminal history did not need to be included in the Second Affidavit because she was otherwise forthcoming with FBI agents, and there was no indication that her past offenses had any bearing on her interactions with Haas. Haas points to no new evidence making this analysis improper as to the First Affidavit.
Similarly, CW’s work as a prostitute is readily inferable from Gonzalez’s statement in the First Affidavit that she had “provided escort services to Haas” for the four years that she knew him. This fact is also indistinguishable from Haas’s contention about CW’s criminal history. It remains true that CW was forthcoming with police, correctly identified Haas in photos, provided his cell phone number to agents, and never provided information that they subsequently determined was false. There was simply no need for Gonzalez to include every single piece of information that would have only minimally affected CW’s reliability.
Also similarly, the First Affidavit’s failure to mention that the police hadn’t corroborated CW’s statements about Haas showing her child pornography on his laptop, identifying the victims as neighborhood children, is of no moment. Providing this sort of information to support CW’s credibility might have been appropriate if she had done something to make the agents question her truthfulness, but she had not. In any event, Gonzalez explicitly stated that agents corroborated other details CW provided, such as Haas’s telephone number, which in turn helped them uncover more facts suggesting child molestation.
Because Haas cannot identify any intentional or reckless omissions of relevant facts in the First Affidavit, his request for a Franks hearing must be denied.
The common foundation of Haas’s arguments is his assertion that the First Affidavit was “bare bones” and filled with “boilerplate recitations” of Gonzalez’s experience that were not appropriately tethered to the facts of this case. But the Second Affidavit – which was practically identical to the First – was far from “bare bones.” The First Affidavit clearly lays a foundation that shows the Haas is a member of at least two relevant classes: child molesters, and child-pornography collectors.
Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. The FBI’s corroboration of several details from CW implies that her description of the images on Haas’s computer is accurate. And CW didn’t need any experience with child pornography to observe that the girls in the pictures were “in various stages of undress and engaged in sexually explicit acts,” especially given the significant number of images that she saw.
The magistrate judge also had sufficient information to find a nexus between Haas’s Jetta and evidence of child pornography that the FBI sought there. While the Jetta is referenced in the affidavit only twice, there is ample evidence to show that Haas possessed child pornography. Also, Gonzalez stated that in his experience with child exploitation investigations, “individuals who access with intent to view, possess, collect and receive child pornography often maintain their collections … in a safe, secure, and private environment, such as a computer…. These collections are … kept close by, usually at the collector’s residence, or inside the collector’s vehicle, to enable the individual to view the collection.”
This allegation was not enough to create a nexus between Haas’s Ford truck and evidence of child pornography, but the link is much closer with the Jetta because Haas had previously been observed driving the Jetta – his personal vehicle – from his residence, where he was very likely to maintain illicit material.
Based on these circumstances, there was a sufficient factual nexus between the evidence of Haas’s child pornography possession and his Jetta to allow the magistrate judge to infer that more evidence related to child pornography would likely be found there.
Even if the First Affidavit didn’t support a probable cause finding, the good-faith exception precludes exclusion of the evidence from the Jetta.
Evidence that Haas possessed child pornography in his residence and used his Jetta to get to and from that location gave the magistrate judge a solid basis for probable cause. Even if the affidavit was technically inadequate, the indicia of probable cause to search the Jetta were stronger than the indicia as to the Ford, the search of which was permissible under the good-faith exception.
Motion to suppress denied.
United States v. Haas, Case No. 3:16cr139, Aug. 23, 2018. EDVA at Richmond (Payne). VLW No. 018-3-352, 18 pp.m