Opinion
10-P-1727
12-06-2011
COMMONWEALTH v. JAMES FINGLAS.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, who has been charged with one count of possession of child pornography, has been given leave to pursue this interlocutory appeal from the denial of his motion to suppress evidence found during the May 5, 2008, execution of a search warrant at his home. At issue is whether the affidavit submitted in support of the warrant application established probable cause to believe that child pornography would be found.
1. Legal standard. '[O]ur inquiry as to the sufficiency of the search warrant application always begins and ends with the 'four corners of the affidavit." Commonwealth v. O'Day, 440 Mass. 296, 297 (2003), quoting from Commonwealth v. Villella, 39 Mass. App. Ct. 426, 428 (1995). In reviewing a finding of probable cause, we consider only the facts contained in the affidavit and any reasonable inferences therefrom. Commonwealth v. Kaupp, 453 Mass. 102, 107 (2009). 'To establish probable cause to search, '[a]n affidavit must contain enough information for an issuing magistrate to determine that the items sought are related to the criminal activity under investigation, and that they reasonably may be expected to be located in the place to be searched at the time the search warrant issues." Commonwealth v. Cruz, 430 Mass. 838, 840 (2000), quoting from Commonwealth v. Cinelli, 389 Mass. 197, 213 (1983), cert. denied, 464 U.S. 860 (1983).
2. The affidavit. The affidavit accompanying the search warrant application was prepared on May 5, 2008, by Detective Steven Washington of the Fall River police department. The affidavit states, in full:
'I, Detective Steven Washington, being duly sworn, depose and say: I am a police officer in the City of Fall River and have been so for the past 13 years. I am presently assigned to the Major Crimes Division and have been so for 13 months. I have investigated numerous serious and violent crimes to include rape and child pornography. I have been to schools such as the John E. Reid School on Investigating Computer Facilitated Crimes Against Children. I have personal knowledge of the facts and circumstances related below, as the result of my investigative efforts and those of other police officers who have reported their findings to me.
'Based on my personal knowledge, I believe the crime of Possession of Child Pornography Ch. 272 Sec. 29C took place at apartment 2 of 11 Courtney Street in Fall River. The facts establishing the grounds for my request to the court for the issuance of the search warrant are as follows:
'On Wednesday, April 30th, 2008, I was assigned to conduct an investigation involving child pornography by Det. Sgt. John Martins. He relayed to me information from Special Agent Gregory Squire of I.C.E. Homeland Security. Special Agent Squire received information from America Online (AOL), wishing to identify names of various accounts. These accounts were associated with the downloading of child pornography. The items downloaded were retrieved and given to the Fall River Police on a CD-R disc.
'One of the user accounts named by AOL is NATALY20. This account was found having received 5 images of child pornography from screen name CUTEBUTBALD via e-mail sent on March 30th, 2006. These images depict young boys in various sexual acts and positions. The images are on the CD-R disc, which will be placed in this file. The information obtained from AOL on the user account NATALY20 came back to the following: It was registered to Jim Finglas from 1800 Highland Avenue, Fall River MA. He had a telephone number of [telephone number]. The account was purchased by credit card. The name on the card was James Finglas with a card number of [credit card number][expiration date]. As of March 28th, 2008 the account was still active. Another user name connected with this account was Flakjaket. Homeland Security and AOL obtained this information.
'A law enforcement check was conducted by the Department of Homeland Security and provided us with updated information on James Finglas. The following information was provided: James Finglas, [date of birth], [Social Security number].
'I checked the Registry of Motor Vehicles via IMC and ascertained an address of 11 Courtney Street, Apartment 2 in Fall River, Massachusetts. I also went to 11 Courtney Street and viewed the mailbox assigned to apartment 2. The name read Finglas.
'Based on my training and experience, it is known that subjects who contain [sic] child pornography do not get rid of the material. Therefore, I respectfully request that the Court issue a warrant, ordering the search of apartment 2 of 11 Courtney Street in Fall River, Massachusetts for the items listed on the attached application, directing that if any of the above evidence is found, it be seized.'
3. Discussion. Although the defendant points to numerous alleged deficiencies in the affidavit, we need not address them all. The affidavit fails to establish probable cause if only because it lacks sufficient detail from which it may be inferred that child pornography reasonably could be expected to be located at the defendant's residence at the time the warrant was sought.
Even assuming that the affidavit sufficiently links NATALY20 to the defendant and his 2008 address, the only connection between NATALY20 and child pornography consists of the assertion that AOL named that account as one 'associated with the downloading of child pornography' and, more particularly, as having received five images depicting young boys in various sexual acts and positions, by electronic mail (e-mail) sent by CUTEBUTBALD on March 30, 2006. The affidavit does not establish that the defendant searched out and obtained such images, through a file-sharing method or otherwise, as distinct from receiving these particular images on a single occasion through an unsolicited e-mail. Nor does it provide any technical or other information from which it may be determined that the e-mail from CUTEBUTBALD was opened, and that the attached images were accessed, viewed, and/or saved. See Commonwealth v. Kaupp, supra at 112.
We assume, for present purposes, that this description allowed the magistrate to infer that the images in question were child pornography. We note, however, that although these images were saved to a CD and made part of the police file, they were not provided to the magistrate for review.
Furthermore, there are insufficient facts from which to determine that the defendant would be likely to possess a computer on which to store images of child pornography and would do so for a prolonged period of time. See and compare Commonwealth v. Kenney, 449 Mass. 840, 845-847 (2007); Commonwealth v. Anthony, 451 Mass. 59, 70-71 (2008). Even if we were to assume that the meager recitations about Detective Washington's experience established his qualifications to opine that 'it is known that subjects who contain [sic] child pornography do not get rid of the material,' this opinion is of no import without facts to support the assumption that the defendant was such an individual. In this (and other) respects, the affidavit stands in stark contrast to the detailed affidavits at issue in Kenney, supra, and Anthony, supra, on which the Commonwealth relies.
In short, the affidavit is inadequate to establish a timely nexus between the defendant and the location to be searched and to permit the determination that the particular items of criminal activity sought reasonably could be expected to be found there. See Commonwealth v. Cinelli, supra at 213. The order denying the defendant's motion to suppress is, accordingly, reversed. A new order shall enter allowing the motion.
So ordered.
By the Court (Kafker, Cohen & Katzmann, JJ.),