United States District Court, D. New Jersey
L. LINARES CHIEF JUDGE, UNITED STATES DISTRICT COURT.
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
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.
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).
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.
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
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).
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.
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.
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.).
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
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 ...