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United States v. Schaffer

United States District Court, D. New Jersey

October 12, 2017

UNITED STATES OF AMERICA,
v.
GREGORY JOHN SCHAFFER, Defendant.

          OPINION

          JOSE L. LINARES CHIEF JUDGE, UNITED STATES DISTRICT COURT.

         This matter comes before the Court by way of Defendant Gregory John Schaffer's Motion in limine to Suppress the Use of Duplicate Videos Found on Defendant's Acer Laptop (ECF No. 59), as well as his supplemental Motion in limine to Suppress the External Hard Drive Seized on the Day of His Arrest. (ECF No. 64). The Government has submitted Opposition to both Defendant's Motions in limine. (ECF No. 62, 74), to which Defendant has replied. (ECF Nos. 69, 75). The Court decides this matter after conducting oral argument on September 5, 2017 with regard to the Image of the Acer Laptop and after reviewing the parties' supplemental submissions regarding the External Hard Drive. For the reasons set forth below, the Court denies both of Defendant's Motions in limine.

         I. BACKGROUND

         Defendant Gregory Schaffer has been indicted on two counts of production of child pornography and one count of possession of child pornography. (ECF No. 1). The Government became aware of Defendant's alleged misconduct during an investigation into allegations of sexual assault by a 15 year-old girl in Brooklyn, NY. (ECF No. 62 at 2). Defendant was arrested for the sexual assault on June 3, 2012. (Id.).

         During its investigation, the Government found, on Defendant's Acer Laptop Computer ("Acer Laptop"), photographs of "teenage-appearing girls wearing bathing suits or naked." (Id.). On July 31, 2012, the Government obtained a warrant to search Defendant's emails, cell phone, and the Acer Laptop computer. (Id.). Prior to searching the laptop, the Government made "an exact forensic image of the Acer laptop's hard drive." (Id.). During the search of the laptop, the Government found videos of the Brooklyn victim in a bathing suit, which also showed Defendant groping her. (Id.). The Government also found five videos which depict Defendant allegedly sexually abusing two minors from New Jersey. These videos are the basis for the three count indictment in this District. (Id. at 2-3). Moreover, the Government found approximately 100 other "depictions of child pornography." (ECF No. 1; ECF No 62 at 3).

         The Government also seized an external hard drive at the time of Defendant's arrest on June 3, 2012 (ECF No. 1 at 5-6 ("Gigaware Hard Drive")). According to the Government, the Gigaware Hard Drive was used by Defendant as a backup for the Acer Laptop. (ECF No. 69 at 2). Hence, the Government seeks to introduce the forensic image of the Acer Laptop, along with the Gigaware Hard Drive. (Id.). Defendant opposes the use of either item, asserting various arguments regarding the inadmissibility of same. (ECF Nos. 59, 64).

         II. DISCUSSION

         On September 5, 2017, this Court held oral argument and found that the Government did not engage in any inappropriate search and seizure of Defendant's other electronic devices. (ECF Nos. 66, 72). However, the Court reserved decision with regard to the forensic image of the Acer Laptop. (Id.; id.). Additionally, the Court was informed that the Government had recently inspected the Gigaware Hard Drive and sought to introduce same as proof of Defendant's possession of the illegal videos and images. (Id.; id.). The Court is now in receipt additional information, which it has taken into account, namely Defendant's Motion in limine to Suppress the Gigaware Hard Drive (ECF No. 69), the Government's Opposition to said Motion (ECF No. 74), and Defendant's reply thereto (ECF No. 75). Considering all the briefing before the Court and the arguments presented at the September 5, 2017, the Court is not persuaded that either item should be suppressed.

         The Fourth Amendment of the U.S. Constitution guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const, amend. IV. To prevail on a motion to suppress, a defendant generally bears the burden of proving that the challenged evidence was obtained in violation of the Constitution. See United States v. Acosta, 965 F.2d 1248, 1257 n.9 (3d Cir. 1992) ("The proponent of a motion to suppress has the burden of establishing that his Fourth Amendment rights were violated.") However, if the defendant establishes a basis for his motion, e.g., that the search or seizure was conducted without a warrant that complied with the Fourth Amendment, the burden shifts to the Government to show that the evidence was constitutionally obtained. See, e.g., United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995).

         Preliminarily, the Court has already ruled that the warrant to search the aforementioned electronic devices was supported by probable cause, and that the delay between the seizure of said devices and when the search took place was not unreasonable. (ECF No. 47). Accordingly, the Court will not revisit these issues and focuses solely on whether the search of said devices was proper based on the facts presented to this Court. With that in mind the Court concludes that the concerns implicated in United States v. Johnson, supra, specifically are of no import here and Defendant bears the ultimate burden of showing that his Constitutional rights were violated.

         Defendant argues that both the forensic image of the Acer Laptop, as well as the Gigaware Hard Drive, are inadmissible because both were searched improperly in violation of the Fourth Amendment. (ECF Nos. 59, 64). With regard to the image of his laptop, Defendant argues that the Acer Laptop was illegally searched prior to the Government's obtention of a proper warrant, and, therefore, the forensic image of same is inadmissible. (ECF No. 59 at 6-14). In support of this argument, Defendant claims that the hard drive forensically imaged by the Government "is not the same hard drive that was seized from him" on June 3, 2012. (ECF No. 59 at 7). Defendant also avers that the Acer Laptop itself was illegally searched, because it was searched before the Government obtained a search warrant for same. (Id.).

         This Court finds that Defendant has not shown that the Acer Laptop was inappropriately searched prior to the issuance of the search warrant. Defendant's entire argument in support of this contention rests solely on the fact that the affidavit for the search warrant referenced photographs of "teenage-appearing girls wearing bathing suits" that appeared "inside" Defendant's Acer Laptop. (Id. at 12-13). Thus, Defendant concludes, the Government must have looked inside his laptop in order to get the information it used in support of the warrant prior to obtaining the warrant. (Id.).

         The Government explains that it did not search Defendant's Acer Laptop prior to obtaining a warrant (ECF No. 62 at 12-13), instead asserts that the photographs, and other items referenced in the application for the warrant, already existed in a "computer-printed" format visible to the Government when it arrested Defendant on June 3, 2012. (Id.). The Government supports this contention with a citation to said photographs. (Id. (citing ECF No. 35-23 at ¶ 00028 ¶ 9)). Accordingly, the Government purports it can prove that the items referenced in the affidavit in support of the application were in plain view, and not obtained by having to illegally search the Acer Laptop.

         It is well settled that an officer may seize evidence that is in plain view without a search warrant if three conditions are satisfied: 1) the officer must have lawfully arrived at the place from where the evidence could be plainly viewed; 2) the incriminating nature of the evidence seized must be immediately apparent; and 3) the officer must have possessed a lawful right of access to the object itself. See United States v. Stabile,633 F.3d 219, 241 (3d Cir. 2011) (citations omitted). Here, all three prongs of the aforementioned test are met. The officers were at Defendant's home to effectuate an arrest in connection with the Brooklyn case, the photographs and other items that were used ...


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