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United States v. Wagner

United States District Court, E.D. Tennessee, Winchester

September 29, 2014

UNITED STATES OF AMERICA
v.
THOMAS JOEL WAGNER

REPORT AND RECOMMENDATION

WILLIAM B. MITCHELL CARTER, Magistrate Judge.

I. Introduction

After the Cowan, Tennessee Police Department executed a search warrant for defendant Thomas Joel Wagner's computer and other electronic devices in his home, he was charged with unlawfully and knowingly possessing child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). Wagner argues that the affidavit used to obtained the search warrant contained material misrepresentations and omitted material facts which, if omitted and included, respectively, would show probable cause was lacking to search defendant's electronic devices for child pornography. He seeks suppression of all evidence obtained as a result of the execution of the search warrant. This matter is before the undersigned Magistrate Judge having been referred for a report and recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(B) and (C). For the reasons stated herein, it is RECOMMENDED the motion to suppress be DENIED.

II. Facts

A. The Search Warrant Affidavit

The affidavit used to procure the search warrant for defendant's computer and other electronic devices was sworn to on August 22, 2013 by Bruce Smith, Assistant Chief of Police of the Cowan, Tennessee Police Department. The affidavit stated in relevant part:

2. I am an Assistant Chief with the Cowan Police Department; I am currently assigned to the C.I.D./Patrol Division. I have been with the Cowan police Department for 7 years. I have investigated and prosecuted criminal activities for 7 years.
3. Detective Ronnie Durm for the Winchester Police Department, Franklin, Tennessee, is assisting me in the investigation. Detective Ronnie Durm has been [sic] criminal investigator for 6 years. Detective Ronnie Durm is currently assigned to the Internet Crimes Against Children Task Force with the Winchester Police Department, and has handled numerous computer-related crime investigations.
* * *
5. My basis for believing that the computer graphical images depicting minors engaged in sexual activity that is patently offensive in violation of T.C.A. § 39-17-1003 described herein are in the above stated location and that these records are evidence of said violation of criminal law are as follows:
On 08/21/2013 the Cowan Police Department received information from Detective Ronnie Durm of Winchester Police Department in reference to a Cyber Tip#2008093) from National Center for Missing and Exploited children (NCMEC) in which a child pornographic image with the name "bbrxfppmeq.jpg" was uploaded from the IP address 68.53.0.58 using the user name "johnitguy" on 07/23/2013 at 17:59 UTC to the social media site "Pintrest" [sic]. Cold Brew Labs/Pintrest [sic] legal department then stored the IP address, time and date of the uploaded image (bbrxfppmeq.jpg) and notified NCMEC about the image. The image is described as; I. File name bbrxfppmeq.jpg which depicts two female children between the age of 10-12 years of age nude exposing breasts and genitals standing next to a male child between the age of 7-9 years of age who is nude. Detective Durm advised me that he received the Cybertip on 08/14/2013 and on 08/16/2013, Detective Durm issued a judicial subpoena in Franklin County for the IP address 68.53.0.58, user name and subscriber information which returned the following information; Dynamic Internet Protocol (IP) address registered to: Thomas Wagner [redacted] Cowan, TN 37318 in which there was an email registered by the name of "johnitguy@comcast.net".

(Search Warrant Affidavit, Doc. 15-1, Page ID # 37, 39.)

B. The Evidentiary Hearing

The undersigned conducted an evidentiary hearing pursuant to Franks v. Delaware, 438 U.S. 154, 171 (1978) on August 14, 2014. Det. Ronnie Durm of the Winchester Police Department was the ...


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