United States District Court, W.D. Tennessee, Western Division
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
CHARMIANE G. CLAXTON, Magistrate Judge.
Before the Court is Defendant, Marc Anthony Baechtle's, Motion to Suppress Evidence. (D.E. #22). The instant motion has been referred to the United States Magistrate Judge for Report and Recommendation. (D.E. #23). For the reasons set forth herein, it is recommended that Defendant's Motion to Suppress be DENIED.
On February 20, 2003, a grand jury empaneled in the Western District of Tennessee issued a two-count Indictment against Defendant charging him with violating 18 U.S.C. § 2251(a) and §2. Defendant entered a plea of not guilty. On January 16, 2015, Defendant filed the instant Motion to Suppress Evidence requesting that the Court "suppress all evidence written, oral, or tangible, obtained during or as a direct or indirect result from the search of the Marc Baechtle residence located at 12936 Waterford Wood Circle, Apt. 305, Orlando, Florida, on or about September 25, 2007." On January 28, 2015, the United States filed its Response thereto.
II. Proposed Findings of Fact
On September 25, 2007, Judge Wilfredo Martinez of the Circuit Court of the Ninth Judicial Circuit in and for Orange County, Florida issued a Search Warrant for the premises occupied by or under the control of Defendant at the address of 12936 Waterford Wood Circle #305, Orlando, Florida. (Def.'s Mot. to Suppress, Exh. 1 at 1, 3). The Search Warrant determined that there was probable cause to conduct a search for evidence, including but not limited to, "[i]mages of child pornography and files containing images of child pornography in any form wherever it may be stored or found, including... [a]ny computer, computer system and related peripherals, " "movies, photographs, and other evidence of the felony sexual battery incidents between Mark Baechtle and the victim [M.D.], " and "motion pictures, films, videos, and other recording of visual depictions of children engaged in sexually explicit conduct." ( Id . at 1-2). The Search Warrant set forth that the evidence sought is in violation of Florida state law, which criminalizes sexual battery and possession of child pornography.
The Affidavit for Search Warrant ("Affidavit") submitted to Judge Martinez was sworn to by Special Agent Ryan W. Bliss of the Florida Department of Law Enforcement ("FDLE"). ( Id . at 4). The Affidavit sets forth Special Agent Bliss's twelve-year employment history with FDLE, his law enforcement experience, including in the areas of violent crime and sex crime, and his training, including on computer crimes and child sexual exploitation. ( Id. at 5). The Affidavit further sets forth, based upon Special Agent Bliss's knowledge, training, and experience, as well as the training and experience of others in law enforcement with whom he has had discussions, that"[c]omputers and computer technology have revolutionized the way in which child pornography is produced, distributed and utilized, " that the "development of computers has also revolutionized the way in which child pornography collectors interact with and sexually exploit children, " and that there are "certain characteristics common to individuals involved in the receipt and collection of child pornography." ( Id . at 5-7).
As to the revolutionary changes in investigating crimes of child pornography and sexual exploitation of children, Special Agent Bliss stated that the development of computers has made it easier and less costly to produce, store, and distribute child pornography and to do so with relative anonymity. ( Id . at 5-6). Special Agent Bliss additionally set forth the four basic functions computers serve in connection with child pornography: "production, communication, distribution, and storage." ( Id . at 6).
With respect to production, the development of digital cameras and scanners allows child pornographers to easily upload recordings "directly to the computer" in a method that "does not leave as large a trial for... law enforcement to follow." ( Id .) With respect to communication and distribution, computers have allowed child pornographers to electronically connect "to literally millions of computers around the world" in ways that permit "quick, relatively secure" and anonymous international communication that is "as easy as calling next door." ( Id .) These methods of production, communication, and distribution "are well known and are the foundation of transactions between child pornography collectors over the Internet." ( Id . at 6-7)
With respect to storage, Special Agent Bliss stated that a "computer's capability to store images in digital form makes it an ideal repository for child pornography, " especially due to the growth in storage capacity of home computers. ( Id . at 7). While the computer can store "thousands of images at very high resolution, " it leaves behind "no readily available evidence" of the illegal activities absent a "careful laboratory examination of [the] electronic storage devices." ( Id .)
As to the characteristics common to individuals involved in the receipt and collection of child pornography, Special Agent Bliss stated that "[c]hild pornography collectors may receive sexual gratification, stimulation, and satisfaction from contact with children; or from fantasies, they may have, viewing children engaged in sexual activity or in sexually suggestive poses, such as in person, in photographs, or other visual media; or from literature describing such activity." ( Id .) Individuals engaged in crimes of child pornography often "collect sexually explicit or suggestive materials, in a variety of media" and use these materials "for their own sexual arousal and gratification" as well as "to lower the inhibitions of children they are attempting to seduce, to arouse selected child partners, or demonstrate the desired sexual acts." ( Id .)
"Collectors of child pornography almost always possess and maintain their hard copies' of child pornographic material, that is, their pictures, films, video tapes, magazines, negatives, photographs, correspondence, mailing lists, books, tape recordings, etc. in the privacy and security of their home or some other secure location." ( Id .) Child pornographers "typically retain" this material "for many years" and often keep their collections "in a digital or electronic format" on a home computer. ( Id . at 7-8) "These collections are often... kept close by, usually at the collector's residence to enable the collector to view the collection, which is valued highly." ( Id . at 8). "Child pornography collectors may correspond with and/or meet others to share information and materials, " they "rarely destroy correspondence from other child pornography distributors/collectors, " and they typically "conceal such correspondence as they do their sexually explicit material." ( Id .) Law enforcement officers involved in the investigation of child pornography throughout the world also document that "[c]ollectors of child pornography prefer not to be without their child pornography for any prolonged time period." ( Id .)
After setting forth his knowledge, experience, and training, Special Agent Bliss addressed the "facts tending to establish probable cause for this application." ( Id .) On September 19, 2007, Special Agent Bliss interviewed the victim, M.D, who advised him of the following. ( Id .) Beginning in the late spring of 2001, while living in Memphis, Tennessee, Defendant began sexually molesting M.D. ( Id .) M.D. was eleven years old when the sexual molestation began, and Defendant was her mother, Michelle Dobbs', boyfriend. ( Id .) M.D. stated that, when she would return home from school, Defendant would have images of child pornography displayed on the computer. ( Id .) Defendant would "coerce" her to view certain images of child pornography known as "the Jordache" and would describe acts taking place between the adult male and the minor female of approximately the same age as M.D. ( Id .) Defendant would also sexually molest her while viewing the child pornography on the computer. ( Id .) This type of activity occurred for approximately three months. ( Id .)
By June, 2001, prior to M.D.'s twelfth birthday in July, Defendant's "demands for sex from [M.D.] continued." ( Id .) During the summer months, Defendant would watch child pornography on the computer and engage in sexually explicit conduct with M.D. ( Id .) The nature of the sexual conduct during these months "quickly progressed" despite M.D.'s resistence due to the intense pain she experienced from engaging in the sexually explicit conduct. ( Id . at 9)
On one occasion, Defendant traveled to South Carolina with M.D. ( Id .) While traveling to South Carolina in Defendant's van, Defendant repeatedly forced M.D. to engage in sexually explicit conduct. ( Id .) When M.D. refused to engage in certain sexual acts, Defendant advised that she should take a sleeping pill so that she "would not know" it was occurring. ( Id .) Defendant produced a "small white colored pill and advised that this pill would cause [M.D.] to sleep and [M.D.] would not feel any pain." ( Id .) M.D. took the pill and "did not awaken until the late afternoon of the next day." ( Id .) Upon awakening, M.D. asked Defendant if his requested sexual acts had occurred. ( Id .) He responded that they had not but "directed" her to his digital camera that contained nude photographs of her captured while she was sleeping. ( Id .) Defendant informed M.D. that he had removed her clothes while she was asleep and "placed [her] in ...