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United States v. Kowalczyk

United States District Court, D. Oregon, Portland Division

November 21, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ANDREW FRANKLIN KOWALCZYK, Defendant.

          ORDER FOLLOWING PRETRIAL CONFERENCE

          MICHAEL W. MOSMAN, CHIEF UNITED STATES DISTRICT JUDGE.

         On November 14, 2018, the Court conducted a Pretrial Conference at which it addressed the parties' pretrial motions, reviewed draft jury instructions and a draft verdict form with the parties, discussed the manner of voir dire, and heard for-cause challenges to prospective jurors on the basis of jurors' responses to the Prospective Juror Inquiry. In addition, the Court conducted a hearing on November 16, 2018, at which the Court received foundational testimony from Special Agent Josh Findley regarding his ability to identify Defendant's voice.

         After reviewing the record and hearing argument at the Pretrial Conference, the Court issues the following Order:

         I. Defendant's Motions to Suppress

         Defendant, through counsel, filed a Motion to Suppress [809] in which Defendant contends: (1) the inventory search that the Court relied on in the inevitable discovery findings in its August 3, 2012, Opinion and Order, was pretext for an unconstitutional evidentiary search; (2) evidence found in Defendant's storage unit should be suppressed on the basis of an unconstitutionally prolonged seizure of that storage unit before law enforcement obtained a search warrant; and (3) warrantless examinations of data found on Defendant's digital devices after the initial search pursuant to the January 4, 2008, search warrant were unconstitutional. Defendant's first two arguments amount to motions to reconsider the Court's August 3, 2012, Opinion and Order [317]. Defendant's argument regarding the subsequent searches of his digital data presents a new basis for suppression that was not previously raised.

         The Court has also considered two pro se Motions to Suppress. Defendant filed a Motion to Suppress Evidence [868] regarding the same inventory-search issues raised by counsel, and a Motion to Suppress Evidence [871] regarding the delay in the search of his storage unit. After considering the parties arguments and reviewing the record, the Court declines to reconsider its August 3, 2012, Opinion and Order, and denies Defendant's Motions.

         The Court adheres to its finding that the search in the motel parking lot was a valid search incident to arrest under then-existing law, and that subsequent searches were permissible after the earlier search incident to arrest. See Op. Or. [317], at 31-38. The Court also adheres to its finding that even if the search incident to arrest was not valid or if the search of the luggage exceeded the scope of a search incident to arrest, the evidence found in the luggage would inevitably have been discovered during an inventory search pursuant to Puyallup Police policy. See Op. Or. [317], at 37-43. The Court emphasizes that no inventory search took place in this case. The searches of Defendant's luggage after the search incident to arrest in the motel parking lot were explicitly evidentiary searches that were justified by the earlier search incident to arrest. Op. Or. [317], at 37. See also United States v. Cook, 808 F.3d 1195, 1199 (9th Cir. 2015) (subsequent warrantless searches of containers that remained in the legitimate uninterrupted possession of the police are permissible as long as the initial search was valid). Because officers did not conduct any inventory search in this case, there is not any possible record from which the Court could find an inventory search was pretext for an evidentiary search such that it would be unconstitutional under United States v. Orozco, 858 F.3d 1204 (9th Cir. 2017), and United States v. Johnson, 889 F.3d 1120 (9th Cir. 2018).

         The Court also adheres to its finding that evidence found during the March 11, 2008, search of Defendant's storage unit should not be suppressed even though the two-month delay between the seizure of the storage unit and its search was unreasonable and unconstitutional. Defendant contends a draft search warrant affidavit for the storage unit created by detectives in January 2008 indicates officers made a deliberate, tactical decision to delay the search of the storage unit while law enforcement developed additional probable cause to justify the search of the unit. This inference, however, is not plausible. By the time officers seized the storage unit by overlocking it on January 11, 2008, they had ample evidence of identify theft, fraud, counterfeiting, and child-pornography offenses to obtain a search warrant for the storage unit. Although the warrant application for the March 11, 2008, search may have contained greater detail than the early-January draft application, that is an obvious outgrowth of the reality that the investigation was further along in March than it was in January and does not undermine the finding that law enforcement had ample probable cause to search the storage unit in early-January. Moreover, there is not any apparent tactical advantage for the investigators to have drawn from the delay in the search of the storage unit. It is far more likely that the task of obtaining a search warrant and conducting the search simply fell through the cracks of an investigation that was rapidly expanding both in scope and in the number of agencies involved and was focused primarily on identifying additional victims of the alleged abuse. Although the two-month delay before the search of the storage unit was unreasonable, as the Court found in its August 3, 2012, Opinion and Order, the record supports a finding that the delay was the result of negligence, and not gross negligence, systemic negligence, or deliberate law-enforcement inaction.

         Finally, the Court rejects Defendant's argument that subsequent examinations of the data derived from the January 4, 2008, search of Defendant's digital devices were unconstitutional. The initial search of Defendant's digital devices was justified by two facially valid search warrants issued January 3 and January 4, 2008. Subsequent re-examinations of the forensic images taken of the data stored on Defendant's digital devices were permissible, and the sharing of that data among various law-enforcement agencies was lawful. See Cook, 808 F.3d at 1199; United States v. Joseph, 829 F.2d 724, 728 (9th Cir. 1987) (exchange of information between law-enforcement agencies is not a “search”).

         On this record, therefore, the Court DENIES Defendant's Motion to Suppress [809] filed by counsel, and his pro se Motions to Suppress [868, 871].

         II. Defendant's Motions in Limine

         The Court GRANTS in part and DENIES in part Defendant's Motions in Limine [848] as set out below. To the extent that any party believes that a party-opponent has opened the door to evidence that the Court excludes, that party must raise the matter with the Court outside the presence of the jury before seeking to introduce any such evidence.

         The Court grants in part and denies in part Defendant's first motion in limine. Pursuant to Order [894], the Court conducted an exhibit-by-exhibit assessment of the alleged child-pornography images and videos that the government intends to introduce. The Court records its exhibit-specific rulings in an Order filed herewith and finds the admission of images and videos consistent with those rulings is neither unduly cumulative nor unfairly prejudicial to Defendant.

         The Court grants in part and denies in part Defendant's second and third motions in limine. Subject to the Court's satisfaction that the government can make a sufficient showing that its evidence indicates an attempt by Defendant to distribute or to share image(s) derived from the abuse alleged in the Superseding Indictment (or, at least, an intent to do so), the Court concludes evidence of Defendant's attempts to share such image(s) is highly probative of Defendant's intent and motive as it relates to Defendant's specific intent to create visual depictions of the abuse. The Court also finds such evidence is relevant to demonstrate that Defendant was the individual who created the images, and that the probative value of such evidence substantially outweighs any unfair prejudice.

         In light of the admissibility of the evidence of Defendant's attempt to share at least one image of the charged abuse, the Court also finds the probative value of very limited evidence of Defendant's possession of child pornography unrelated to the charged abuse substantially outweighs the unfair prejudice of the introduction thereof. The Court, in particular, finds the unfair prejudice of limited evidence of other child pornography is diminished substantially when one takes into account that the jury will already be aware of Defendant's attempts to share the child pornography at issue in this case. Defendant's possession of other child pornography is relevant circumstantial evidence of Defendant's motive and intent to produce visual depictions of the alleged abuse because rational jurors could infer Defendant intended to create those images to add to his collection of child pornography. Accordingly, the Court will permit the government to elicit testimony that law enforcement located a collection of child pornography unrelated to the charged abuse on Defendant's digital devices. ...


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