Opinion
4:24-CR-40019-LLP
09-13-2024
UNITED STATES OF AMERICA, Plaintiff, v. TERRION ECHOLS, Defendant.
REPORT AND RECOMMENDATION
VERONICA L. DUFFY United States Magistrate Judge.
INTRODUCTION
Defendant Terrion Echols is before the court on an indictment charging him with knowingly transporting child pornography using a means and facility of interstate and foreign commerce, in violation of 18 U.S.C. §§ 2252A(a)(1) and 2252A(b)(1). See Docket No. 1. Mr. Echols has filed a motion to suppress certain evidence. See Docket No. 29. The United States (“government”) resists the motion. See Docket No. 36. This matter has been referred to this magistrate judge for holding an evidentiary hearing and recommending a disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and DSD LR 57.11.
FACTS
An evidentiary hearing was held on September 6, 2024. Mr. Echols was there in person along with his lawyer, Assistant Federal Public Defender Matthew Powers. The government was represented by its Assistant United States Attorney, Jeffrey Clapper. One witness testified and 12 exhibits were received into evidence. From this testimony and these exhibits, the court makes the following findings of fact.
On September 5, 2023, the National Center for Missing and Exploited Children (NCMEC) submitted two CyberTips: 173302330 and 173302482 (CyberTips “330” and “482,” respectively). Docket No. 30, at 1. The submitter for CyberTips 330 and 482 was Dropbox, Inc. Id. Both CyberTips were associated with the email address deandreechols08@gmail.com. Id. CyberTip 330 consisted of four files with the following names:
1. IMG7830.jpg
2. 6a1ac761-a653-4e41-96cc-b8bfddaf5623.jpg
3. 87062bef-de2f-408f-8f4c-c104d500c112.jpg
4. IMG7824.jpgId. at 1-2. NCMEC characterized these images as “apparent child pornography” and “CP (unconfirmed).” Id. at 2. CyberTip 482 consisted of one file with the following name:
1. IMG7826.jpg.Id. NCMEC characterized this image as “apparent child pornography.” Id.
On September 28, 2023, the South Dakota Internet Crimes Against Children (ICAC) Task Force received the CyberTips from NCMEC. Id. On October 3, Special Agent Robert Lautner downloaded both CyberTips. Id. Agent Lautner wrote a report on those CyberTips on October 3. Id. In that report, he identified Mr. Terrion Echols as his suspect. Id. He included Mr. Echols's date of birth in his report. Id. He also included an additional CyberTip, 29544412 (the “Wisconsin CyberTip”), from NCMEC which “may have resolved out of Milwaukee, WI.” Id.
On October 13, Agent Lautner applied for a search warrant for the “Dropbox user account associated with the email address of deandreechols08@gmail.com.” Id. On October 18, he applied for a search warrant to be served on Google for the records associated with that email address. Id. at 2-3.
Agent Lautner provided the following characterizations of the images associated with CyberTip 330 in his affidavit:
1. 87062bef-de2f-408f-8f4c-c104d500c112.jpg “is an image of a nude pubescent black male, approximately 14 to 15 years of age, exposing his erect penis . . . .” Id. at 3.
2. IMG7824.jpg “is an image of an exposed and erect penis being pointed at the face of a prepubescent toddler male, who appears to be sleeping . . . the physical attributes of the penis lead me to believe the owner, and subject taking the photograph, is the same teenager in 87062bef-de2f-408f-8f4c-c104d500c112.jpg . . . .” Id.
3. IMG7830.jpg “is another image of the same erect and exposed penis next to the face of the same toddler as in file IMG7824.jpg . . . .” Id.
4. 6a1ac761-a653-4e41-96cc-b8bfddaf5623.jpg “is an image of the same teenager from file 87062bef-de2f-408f-8f4c-c104d500c112.jpg.” Id.
He provided the following characterizations of the image associated with CyberTip 482:
1. IMG7826.jpg “is another image of the same erect penis and toddler from file IMG7824.jpg.” Id.
Agent Lautner stated, “all images appear to be in violation of SDCL 22-24A-3 Manufacturing, Possession and Distribution of Child Pornography.” Id. No explanation was given as to how he aged the “pubescent black male” to be “approximately 14 to 15 years of age.” Id. at 3-4. The images themselves were not included as part of the search warrant affidavit submitted to the state courts. Id. at 4.
In his search warrant affidavit, Agent Lautner also made the following statement: “There is a previous NCMEC report from 2018, reported by Facebook, using the same email address. That incident used an IP address out of Wisconsin and was forwarded to the presiding law enforcement agent. The email address associated with that cybertip was also deandreechols08.com.” Id. Agent Lautner did not include the fact that Mr. Echols would have been 14 years old at the time that CyberTip was generated, and that the recipient of the photographs was a 35-year-old man. Id.
On August 27, 2024, Mr. Echols filed a motion to “suppress any and all evidence obtained by the government during the search of (1) the Dropbox account associated with the email address deandreechols08@gmail.com, (2) the search of Mr. Echols['s] Gmail account deandreechols08@gmail.com, (3) the search of Mr. Echols'[s] apartment and person on December 11, 2023, 4 including all evidence obtained from his black iPhone 11 and from his Dell Chromebook, [and] (4) all subsequent statements made by Mr. Echols to law enforcement.” Docket No. 29, at 1. On September 6, 2024, the court held a hearing on Mr. Echols's suppression motion. See Docket No. 37.
During the hearing, the Government called Special Agent Robert Lautner as a witness. Agent Lautner testified that he is a special agent criminal investigator assigned to the South Dakota Internet Crimes Against Children (ICAC) Task Force. Agent Lautner further testified that he received CyberTips from NCMEC of “Child Pornography, possession, manufacture, and distribution” associated with the email address “deandreechols08@gmail.com.” When asked about his description of the subject of those photographs as “approximately 14 to 15 years of age,” Agent Lautner admitted that he did not know the subject's identity or date of birth; however, Agent Lautner described that he approximated the subject's age “based off of facial features, body composition, and [his] professional experience.” When asked whether he had “any question in [his] mind whether or not that's a minor male,” Agent Lautner replied “no.”
On cross-examination, Federal Defender Matthew Powers questioned Agent Lautner regarding how he determined the subject's age in the photographs. Agent Lautner admitted that he could not guarantee the subject's exact age, but stated that he was “confident” the subject was a minor. Federal Defender Powers also noted that one of the images appeared to have a scar on the stomach, and Agent Lautner noted that he did not recall observing it at the time he submitted his affidavit.Agent Lautner also confirmed that he did not include that Mr. Echols was 14 years old at the time the Wisconsin CyberTip was generated.
Agent Lautner did not confirm, however, that a scar was actually present in the photograph. When asked if he could identify a scar on the subject's stomach, Agent Lautner responded: “What appears to be part of the printout? . . . I don't recall observing it . . . I can't identify what would be identified as a scar, no.
DISCUSSION
A. Entitlement to a Franks Hearing
In some circumstances, a defendant may “attack the veracity of a warrant affidavit after the warrant has been issued and executed.” Franks v. Delaware, 438 U.S. 154, 164 (1978). A defendant is entitled to a so-called “Franks hearing” only if he makes a substantial preliminary showing that an affiant to a search warrant application (1) knowingly or intentionally, or with reckless disregard for the truth (2) made false statements or omitted material statements, and (3) the alleged statements or omissions were necessary to a finding of probable cause. Id. at 155-56. The requirement that the defendant's preliminary showing be substantial “is ‘not lightly met.' ” United States v. Brackett, 846 F.3d 987, 993 (8th Cir. 2017) (quoting Franks, 438 U.S. at 17172)). Rather, “it requires a defendant to offer specific allegations of deliberate falsehood along with supporting affidavits or similarly reliable statements.” Id.
Likewise, because there is “a presumption of validity with respect to the affidavit supporting the search warrant . . . [t]o mandate an evidentiary hearing, the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine.” Franks, 438 U.S. at 171. Instead, “[t]here must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. They should point out specifically the portion of the warrant affidavit that is claimed to be false; and they should be accompanied by a statement of supporting reasons.” Id.
Given this high standard, the Eighth Circuit has on multiple occasions affirmed the denial of a Franks hearing. See, e.g., United States v. Gonzalez, 781 F.3d 422, 431 (8th Cir. 2015) (affirming denial of Franks hearing where defendant failed to show that affiant acted with reckless disregard for the truth); United States v. Arnold, 725 F.3d 896, 899 (8th Cir. 2013) (affirming denial of Franks hearing where defendant failed to provide evidence that misrepresentations were deliberate or reckless, and “the affidavit established probable cause even absent any misrepresentations and including the omitted information”); United States v. Snyder, 511 F.3d 813, 816-17 (8th Cir. 2008) (affirming denial of Franks hearing where defendant failed to show intentionality or recklessness, and probable cause would have still existed without the false information and with the omitted information); United States v. Gabrio, 295 F.3d 880, 883-84 (8th Cir. 2002) (holding that affiant's failure to disclose confidential informant's criminal record and judicial commitment for mental illness did not necessitate a Franks hearing).
Here, Mr. Echols alleges that Agent Lautner's affidavit contained the following falsehoods or material omissions: (1) Agent Lautner represented that the alleged child pornography depicted a 14- or 15-year-old male, whereas Mr. Echols alleges there was no way for Agent Lautner to determine the images were of a teenage male, and the images were not presented to the judge; and (2) Agent Lautner represented Mr. Echols had previously been part of a tip about child pornography in Wisconsin, without revealing to the state court judge that Mr. Echols was the victim in the Wisconsin matter, not the purveyor of child pornography.
With these two very specific allegations, the court finds Mr. Echols has carried his burden to entitle him to a Franks hearing. Accordingly, the court addresses the arguments on the merits.
B. Application of Franks to Mr. Echols' Argument
The Fourth Amendment dictates that a search warrant may be issued only upon a showing of probable cause. United States v. Williams, 477 F.3d 554, 557 (8th Cir. 2007). “Where an issuing judge's probable cause determination was premised on an affidavit containing falsehoods or omitted statements, the resulting search warrant may be invalid if the defendant can prove by a preponderance of evidence” two factors. Id. First, “that the police omitted facts [or stated false facts] with the intent to make, or in reckless disregard of whether they thereby made, the affidavit misleading,” and second, “that the affidavit, if supplemented by the omitted information [and/or without the false information] would not have been sufficient to support a finding of probable cause.” Id. (quoting United States v. Reivich, 793 F.2d 957, 961 (8th Cir. 1986)). Accordingly, the first step in the Franks analysis is to determine whether an affiant made false statements or omitted material statements.
1. Were there Falsehoods or Material Omissions in the Affidavit?
Mr. Echols alleges that there was one falsehood and one material omission in Agent Lautner's affidavit. First, Mr. Echols argues that Agent Lautner falsely attested that the alleged child pornography depicted a 14- or 15-year-old male, that there was no way for Agent Lautner to determine the images were of a teenage male, and the images were not presented to the judge. Second, Mr. Echols argues that Agent Lautner omitted material information by representing that Mr. Echols had previously been part of a tip about child pornography in Wisconsin, but failing to reveal that Mr. Echols was underage at the time of that tip and that the recipient of the image was a 35-year-old man.
a. Failure to Describe Means of Determining Subject's Age.
Mr. Echols first argues that Agent Lautner falsely stated in his affidavit that the alleged child pornography depicted a 14- or 15-year-old male, because Agent Lautner would have no way of determining the images were of a teenage male, and the images were not presented to the judge. At the hearing, Agent Lautner testified that he “can't guarantee that [the subject]'s not” 18 years old, though he clarified that he was “confident that [the subject] is a minor.”
The court rejects Mr. Echols's argument and finds that Agent Lautner's failure to describe how he determined the subject's age was not a false statement or material omission. Courts “have accepted, for purposes of an affidavit in support of a search warrant, the conclusory age estimates made by civilians and other untrained lay witnesses without demanding a detailed explanation of how the witnesses reached that conclusion.” Battershell, 457 F.3d at 1054. That is because “[c]ommon sense suggests that most of the time one can tell the difference between a child and an adult.” United States v. Wiegand, 812 F.2d 1239, 1243 (9th Cir. 1987). Accordingly, courts have routinely accepted an affiant's description of a subject's age without a corresponding explanation of how the affiant arrived at that approximation. See, e.g., United States v. Hall, 142 F.3d 988, 995 (7th Cir. 1998) (accepting computer repairman's statement that images showed “minors”); United States v. Peterson, 294 F.Supp.2d 797, 806 (D.S.C. 2003), affd, 145 Fed.Appx. 820 (4th Cir. 2005) (accepting a computer repairman's statement that images showed “pre-pubescent” boys).
Accordingly, there was no requirement for Agent Lautner to include a description in his search warrant affidavit of how he approximated the subject's age. Nevertheless, at the Franks hearing, Agent Lautner described that he approximated the subject's age “[b]ased off of facial features, body composition, and [his] professional experience.” That is more than sufficient to support his approximation of the subject's age.
Mr. Echols also argues that Agent Lautner erred by not providing the images included in CyberTips 330 and 482 as a part of his search warrant affidavit. See Docket No. 30, at 6 (“And those images were not provided to the courts who signed the warrant, so the judges who signed those warrants had to rely solely on SA Lautner's description.”).
The court rejects Mr. Echols's argument. “A magistrate judge need not view all the evidence personally to make its decision;” accordingly, “failure to attach . . . photographs themselves d[oes] not prevent [a] search warrant from being issued.” United States v. Ranke, 480 Fed.Appx. 798, 803 (6th Cir. 2012) (quotation omitted). Courts have routinely held that search warrants may issue where an affiant describes photographs rather than providing the actual images to the reviewing magistrate. See, e.g., United States v. Miknevich, 638 F.3d 178, 183 (3d Cir. 2011) (rejecting “any suggestion that a . . . search warrant must include copies of the [child pornographic] images giving rise to the request for a warrant”); United States v. Pena, 266 Fed.Appx. 574, 576 (9th Cir. 2008) (rejecting argument that “the warrant should not have issued because the magistrate failed to personally review the photographs”); United States v. Battershell, 457 F.3d 1048, 1053 (9th Cir. 2006) (“[F]ailing to include a photograph in a warrant application is not fatal to establishing probable cause. Indeed, a judge may properly issue a warrant based on factual descriptions of an image.”); United States v. Chrobak, 289 F.3d 1043, 1045 (8th Cir. 2002) (“To make this [probable cause] determination, the judge must either view the images or rely on a detailed factual description of them.”) (emphasis added).
Here, Agent Lautner provided a detailed factual description of the relevant images. For each photograph, Agent Lautner provided the following descriptions:
• “File 87062bef-de2f-408f-8f4c-c104d500c112.jpg is an image of a nude pubescent black male, approximately 14 to 15 years of age, exposing his erect penis. The angle of the photograph and subject's arm indicates that the photograph may be self-produced.” Docket No. 43, at 26.
• “File IMG7824.JPG is an image of an exposed and erect penis being pointed at the face of a prepubescent toddler male, who appears to be sleeping. The photograph is taken at a downward angle, with the penis either sitting on the bed next to the toddler's face or being held in the air next to the toddler. The physical attributes of the penis lead me to the believe [sic] the owner, and subject taking the photograph, is the same as the teenager in 87062bef-de2f-408f-8f4c-c104d500c112.jpg. [T]he lascivious exhibition or being used in connection with sexually explicit conduct [sic].” Id.
• “File IMG7830.JPG is another image of the same erect and exposed penis next to the face of the same toddler as in file IMG7824.JPG. The photograph again appears to be taken at a downward angle. The physical characteristics of the penis again indicate that the subject is the
same teenager from file 87062bef-de2f-408f-8f4c-c104d500c112.jpg.” Id. at 27.
• “File 6a1ac761-a653-4e41-96cc-b8bfddaf5623.jpg is an image of the same teenager from file 87062bef-de2f-408f-8f4c-c104d500c112.jpg. The teenager is nude and appears to be taking the photograph from high over his right shoulder, holding the photo-taking device with his right hand. His erect penis is exposed, and an apparent living room is in the background of the photograph.” Id.
• “File IMG7826.JPG is another image of the same erect penis and toddler from file IMG7824.JPG. The image appears to have been taken at a slightly different downward angle. The angle still indicates that the image was self-produced. The physical characteristics of the penis still lead me to believe the subject is the same teenager as in cybertip 173302330. Id. at 28.
At the hearing, Agent Lautner explained that “[t]he last line, ‘the lascivious exhibition or being used in connection with the sexually explicit conduct,' may be a copy/paste typo on my part.”
These statements constitute “sufficiently detailed descriptions of the images . . . to permit the issuing judge to make an independent finding of probable cause.” United States v. Mutschelknaus, 592 F.3d 826 (8th Cir. 2010). Agent Lautner described photographs of a 14- to 15-year-old male exposing his erect penis, in some cases directed at a toddler. That constitutes child pornography under both South Dakota and federal law. See SDCL §§ 22-24A-3 & 22-24A-2 (providing that “[a] person is guilty of possessing, manufacturing, or distributing child pornography if the person . . . [c]reates any visual depiction of a minor engaging in a prohibited sexual act,” defined as including “actual or simulated exhibition of the genitals” and “any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed”); 18 U.S.C. §§ 2252(a)(1) & 2256(2)(A) (prohibiting “knowingly transport[ing] or ship[ping] . . . any visual depiction, if . . . the producing of such visual depiction involve the use of a minor engaging in sexually explicit conduct,” defined as including “lascivious exhibition of the anus, genitals, or pubic area of any person”). Agent Lautner including the actual photographs would have done nothing to add to the issuing judge's finding of probable cause.
At the time Agent Lautner submitted his affidavit on October 11, 2023, SDCL § 22-24A-3 was operative. That statute was subsequently superseded by SDCL § 22-24A-35. That, however, does not impact the court's probable cause analysis. See Rogers v. Stem, 590 Fed.Appx. 201, 202 n.2 (4th Cir. 2014) (“That the General Assembly later repealed the statute at issue need not alter our [probable cause] analysis. As will be discussed below, Officer Stem was chargeable with knowledge of the law in place at the time of the events leading to this case.”). In any event, SDCL § 22-24A-35, which replaced SDCL § 22-24A-3, did not change the law in a way that would affect probable cause in this case. See SDCL §§ 22-24A-35 & 22-24A-2(17) (providing that “[a] person is guilty of possessing child pornography if the person knowingly possesses . . . [a]ny visual depiction of a minor engaging in a prohibited sexual act,” defined as including “actual or simulated exhibition of the genitals . . . in a lewd or lascivious manner” or “any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.”).
Accordingly, the court finds that Agent Lautner's failure to include the photographs, as well as his failure to describe the basis for his approximation of the subject's age as 14 or 15 years old, does not constitute a falsehood or material omission under Franks.
b. Failure to Disclose that Mr. Echols was a Minor During the Wisconsin CyberTip.
Mr. Echols next argues that Agent Lautner omitted material information relating to the Wisconsin CyberTip. In his search warrant affidavit, Agent Lautner included the following statement: “There is a previous NCMEC report from 2018, reported by Facebook, using the same email address. That incident used an IP address out of Wisconsin and was forwarded to the presiding law enforcement agency.” Docket No. 43, at 28. Mr. Echols argues that this statement was misleading because it did not disclose that “Mr. Echols would have been 14 years old at the time that CyberTip was generated,” or that “the recipient of the image in that CyberTip was a 35-year-old man.” Docket No. 30, at 4 (cleaned up). Accordingly, Mr. Echols argues, he was “the victim in that case.” Id.
The court assumes, solely for purposes of its Franks analysis, that Mr. Echols was 14 at the time the Wisconsin CyberTip was generated, and that the recipient of that image was a 35-year-old man. Nevertheless, the court finds that Agent Lautner's failure to include that information was not a material omission. The reason is simple-even 14-year-olds can be guilty of producing and distributing child pornography. See SDCL §§ 22-24A-35 (providing that “[a] person is guilty of possessing child pornography if the person knowingly possesses . . . [a]ny visual depiction of a minor engaging in a prohibited sexual act”); SDCL § 22-24A-41 (listing affirmative defenses, none of which include being a minor). Accordingly, in South Dakota it is not a defense to a charge of possession of child pornography that one is a minor. The same is true under federal law. See 18 U.S.C. § 2252(c) (listing affirmative defenses, none of which include being a minor). Therefore, the Wisconsin CyberTip would still contribute to the judge's probable cause determination on CyberTips 330 and 482 even if the omitted information had been included. The omission was therefore not material. The court notes that nowhere in the Wisconsin tip is Mr. Echols identified as a “victim.”
The court finds that Agent Lautner's failure to disclose that Mr. Echols was 14 at the time the Wisconsin CyberTip was generated was not a false statement or material omission under Franks.
2. Once the Omission and the Falsehoods are Rectified, is there Probable Cause?
To suppress evidence at a Franks hearing, “[t]here must be allegations of deliberate falsehood or of reckless disregard for the truth, and those allegations must be accompanied by an offer of proof.” Franks, 438 U.S. at 171. While “reckless disregard for the truth may be inferred from the fact that information was omitted, this inference is valid only when the defendant shows that the omitted material would be clearly critical to the finding of probable cause.” United States v. Gonzalez, 781 F.3d 422, 431 (8th Cir. 2015) (citations omitted, cleaned up). Accordingly, to determine whether Agent Lautner acted intentionally or with reckless disregard for the truth, the court must decide whether the false and omitted information was dispositive to the finding of probable cause.
As explained above, supra at 9-16, the court finds that there were no false statements or material omissions in Agent Lautner's search warrant affidavit. Accordingly, there is no need under Franks to consider whether probable cause exists without any alleged falsehoods or omissions, or whether the lack of such probable cause warrants a finding of deliberate falsehood or reckless disregard for the truth. Nevertheless, for the sake of completeness, the court will next consider whether probable cause would have existed for Mr. Echols's search warrant if the alleged falsehoods were excluded and the alleged omissions were included.
a. Inclusion of Photographs and Basis for Determining Age
Mr. Echols first argues that Agent Lautner erred by not including the relevant photographs in his search warrant affidavit and by “offer[ing] no explanation based in any possible reliable aging scheme or metric” for his conclusion that the images depicted a 14- to 15-year-old male. Docket No. 30, at 5-6. This, Mr. Echols claims, means “the judges who signed those warrants had to rely solely on SA Lautner's description.” Id.
But even had Agent Lautner included those photographs, it would not have made a difference to the probable cause determination. The court has conducted an independent review of the relevant photographs and concludes that Agent Lautner's descriptions of those photographs are accurate. While it is technically possible that the subject of the photographs was 18 or older, probable cause does not require absolute perfection. Rather, “[p]robable cause exists when, viewing the totality of the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Reed, 921 F.3d 751, 757 (8th Cir. 2019) (quotation omitted). The court finds that, even had the photographs had been included in Agent Lautner's search warrant affidavit, the issuing judge would still have had probable cause to issue a warrant.
Likewise, the court finds that Agent Lautner's failure to describe his basis for determining the subject's age was not prejudicial to the issue of probable cause. As explained at the Franks hearing, Agent Lautner approximated the subject's age “based off of facial features, body composition, and [his] professional experience.” Had Agent Lautner included that description of how he approximated the subject's age, the court doubtless would have still issued a search warrant. Accordingly, Agent Lautner's failure to describe how he determined the subject's age had no impact on the finding of probable cause.
Indeed, even if those photographs depicted an adult rather than a 14- to 15-year-old male, the probable cause analysis would have been the same for all photographs involving a toddler. That is because a photograph of a male directing his erect penis at a toddler's face constitutes child pornography, regardless of whether the erect penis belongs to an adult or a minor. See SDCL §§ 22-24A-35 & 22-24A-2(17) (providing that “[a] person is guilty of possessing child pornography if the person knowingly possesses . . . [a]ny visual depiction of a minor engaging in a prohibited sexual act,” and defining a “prohibited sexual act” as including “any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed.”). An exposed and erect penis being directed at a sleeping toddler simulates that sexual battery will be committed. See SDCL §22-24A-2(15) (defining “sexual battery” as “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.”).
In short, the finding of probable cause would not have been affected by Agent Lautner including the photographs in his search warrant affidavit or describing his method of approximating the subject's age. Under Franks, there is therefore no basis for suppressing the evidence obtained by those search warrants.
b. Omission in the Wisconsin CyberTip
Mr. Echols also argues that Agent Lautner erred by omitting material information in his search warrant affidavit; specifically, Mr. Echols argues that Agent Lautner should have disclosed that Mr. Echols was 14 at the time the Wisconsin CyberTip originated, and that the recipient of the relevant photograph was 35 years old.
The court finds that this omission did not affect the finding of probable cause. As discussed above, supra at 15, a minor can be guilty of producing child pornography. And, also as explained above, supra at 18, some of the photographs would constitute child pornography even had Mr. Echols been 18 at the time they were taken, because they display an erect penis being directed at a toddler's head.
Accordingly, omitting that Mr. Echols was 14 at the time the photographs were taken, as well as omitting that the recipient of those photographs was a 35-year-old man, did not affect the court's finding of probable cause. There is accordingly no basis to suppress the results of the search warrants under Franks.
CONCLUSION
Based on the facts, law, and analysis discussed above, this magistrate judge respectfully recommends denying Mr. Echols's motion to suppress, Docket No. 29, in accordance with this opinion.
NOTICE TO PARTIES
The parties have fourteen (14) days after service of this report and recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1)(B), unless an extension of time for good cause is obtained. Failure to file timely objections will result in the waiver of the right to appeal questions of fact. Objections must be timely and specific in order to require de novo review by the district court. Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black, 781 F.2d 665 (8th Cir. 1986).