The opinion of the court was delivered by: RODRIGUEZ
This matter comes before the court on the motion of defendant Robert Villard for an order suppressing certain evidence seized from defendant's residence in Van Nuys, California, on September 9, 1987 pursuant to a search warrant issued by a municipal court judge in California. The facts regarding the search of defendant's apartment were ascertained in a preliminary hearing held before this court on November 20, 1987. At that hearing, William H. Dworin, a detective and United States Deputy Marshal assigned to a multi-agency sex crimes task force in Los Angeles, California, testified. Detective Dworin was one of the officers who arrested the defendant in California for the federal charges pending here. Subsequent to that arrest, the detective prepared a state warrant for the search of the defendant's apartment. Detective Dworin was also the principal officer involved in executing the warrant. The detective also testified as an expert on child pornography and the behavior of pedophiles. (Tr. at 3-5).
On September 9, 1987, Detective Dworin accompanied Special Agents Michael Randolph and Alan Rogers of the F.B.I. to the defendant's apartment in Van Nuys. They were armed with an arrest warrant based on federal indictments issued in New Jersey. The indictments allege that the defendant transported child pornography across state lines.
Having ascertained no threat to the officers, the detective awakened the young male, who was fully dressed. The boy indicated that he was a fifteen year old model and that he had obtained his mother's permission to remain overnight at the defendant's apartment following a late photography session. The detective knew that the defendant is self-employed as a child agent and photographer. The boy further indicated, under questioning, that he had not been molested in any way. Based on his experience in the field, the detective believed the boy's statements. (Tr. at 11-12). The detective directed the boy to call home on a telephone located on a nightstand by the bed. While the boy spoke to his mother, the detective stood by, waiting to speak to her when the boy was finished.
Detective Dworin stood between the bedroom doorway and the bedroom closet doorway, which are in close proximity to one another on the same wall, opposite the bed. The sliding closet door was ajar, possibly as a result of the cursory inspection of the premises which the detective had conducted. Detective Dworin testified that while he was standing there waiting to speak to the boy's mother, he was just "looking around." (Tr. at 17). Within the closet, on a shelf recessed approximately one and a half feet from the closet door, he observed a black "notebook" type ring binder. (Exhibit G-4). The binder was open on the shelf, which is approximately five-feet nine inches from the floor. The binder was stacked on top of some other items which were a few inches high. The binder was apparently located in a position on the right side of the shelf so that the right portion of the binder was at least partially behind the wall of the closet and the left cover of the binder was within the closet doorway. (Exhibit G-1). The sliding closet door emerges from the right door jam. (Exhibit D-1). The door was "ajar," but there was no testimony regarding how far it was open, or to what extent it obscured the binder. (Tr. at 18).
The detective is approximately six feet in height and the binder was at approximate eye level to him. He observed there were pages of photographic slides stacked on the right cover of the binder. Some of the pages were attached to the binder rings. A few were lying on top, unattached. The detective could not ascertain the content of these slides whatsoever from his vantage point. (Tr. at 18-21; Exhibit G-4).
The detective lifted the top-most loose page of slides, removed it from the closet, held it up to the light and viewed it "casually." (Tr. at 26). One slide, the third from the top left, caught his eye. He observed it to be a slide of two juveniles, nude, and apparently engaged in sexual activity. (Tr. at 29). On direct exam, the detective described his viewing of the page of slides as follows:
Q. Now, you see that slide. Do you look to see what the other slides look like?
A. Once I saw that one slide, that jumped out at me, I stopped. Basically stopped looking, put the slide away.
Q. You say you put the slide away. What did you do with them?
A. I put them back in the book.
A. I notified the two agents that I was going to seek a state search warrant. And that the residence had to be secured.
On cross examination the detective elaborated:
A. Yes, I do. I did not search, move items to search for serial numbers to be called in. I wasn't looking in fact for child pornography or child exploitation. I was there. It was movement, I made a movement, looked at the material, and I stopped right then. I felt that if I had continued to look and study that material, that would have been a search. I didn't. I felt that there was sufficient from what I saw at a casual glance. I felt that was like a plain sight view. And that was what was on my mind.
Q. Now I believe it's your testimony that you saw only one picture?
A. One that stood out, yes.
Q. Well, but your, your affidavit for the search warrant says and I'll read from it. Your affiant viewed on one of the loose sheets of slide and observed it to contain numerous slides depicting one and two male juveniles under 12 years of age nude and what appeared to be in explicit acts. That's correct?
A. One stood out. The others I viewed but I didn't study.
Q. Well, I thought a moment ago you testified that as soon as you saw one, you quickly put it back so as not to be accused of engaging in a search?
A. When you hold a set of slides up, you have your view of, is of the total. One stood out. And if you you'd like to hold one up and see that --
Q. But is it true you saw numerous slides depicting one and two male juveniles
Q. Now if you were simply glancing at this to kill time and only wanted to see what had happened, what was there, why wouldn't you have put it down before you saw the numerous slides?
A. Because I held them all up at once. I saw it in total and what I saw one slide stood out showing what I believe to be sexual exploitation.
Q. You indicated right after that in your affidavit, you said your affiant had conducted prior investigations of Villard, was aware that Villard did photograph juveniles in nude poses. Do you recall writing that?
Q. So when you happened to pick up this Exhibit Five, containing all of these slides, it wasn't simply to pick up whatever happened to be lying around like an issue of Time Magazine or Reader's Digest. You were going for exactly what you ...