Opinion
Criminal No. 08-145 (SRC).
March 13, 2009
ORDER
This matter having come before the Court upon the motion filed by Defendant Salvatore Stabile ("Defendant") for reconsideration [docket item no. 62] of this Court's Order of January 21, 2009 [docket item no. 61]; and Plaintiff the United States of America (the "Government") having opposed the motion; and the Court having considered the papers filed by the parties; and for the reasons expressed in the Opinion filed herewith,
IT IS on this 13th day of March, 2009,
ORDERED that Defendant's motion for reconsideration [docket item no. 62] be and hereby is DENIED.
OPINION
This matter comes before the Court upon the motion filed by Defendant Salvatore Stabile ("Defendant" or "Stabile") for reconsideration [docket item no. 62] of this Court's Order of January 21, 2009 denying his motion to suppress evidence of child pornography found on some of the six computer hard drives seized during a search of Stabile's home on July 24, 2006 and later searched by detectives. Plaintiff the United States of America (the "Government") has opposed the motion. The Court has considered the papers filed. For the following reasons, the motion for reconsideration will be denied.The facts of this case are well-known to the parties and, moreover, set forth at length in the Court's January 21, 2009 Opinion (the "Suppression Opinion") that accompanied the Order denying the suppression motion. In denying the motion to suppress, the Court found that the challenged evidence, though obtained through warrantless searches, was admissible by virtue of the inevitable discovery doctrine. Defendant seeks reconsideration of the Court's order on the motion to suppress on the grounds that the inevitable discovery doctrine is not applicable on the facts of this case and that, under an analysis according to the appropriate independent source doctrine, the evidence must be excluded.
Local Civil Rule 7.1(i), which applies to criminal actions by virtue of Local Criminal Rule 1.1, creates a procedure by which a court may reconsider its decision upon a showing that dispositive factual matters or controlling decisions of law were overlooked by the court in reaching its prior decision. See Bryan v. Shah, 351 F.Supp.2d 295, 297 (D.N.J. 2005); Bowers v. Nat'l Collegiate Athletic Assoc., 130 F.Supp.2d 610, 612 (D.N.J. 2001). Rule 7.1(i) does not contemplate a recapitulation of arguments considered by the court before rendering its decision. See Bermingham v. Sony Corp. of Am., Inc., 820 F.Supp. 834, 856 (D.N.J. 1992), aff'd, 37 F.3d 1485 (3d Cir. 1994); Carteret Sav. Bank, F.A. v. Shushan, 721 F.Supp. 705, 709 (D.N.J. 1989). Our jurisprudence directs that a motion under Rule 7.1(i) may be granted only if: (1) "an intervening change in the controlling law has occurred; (2) evidence not previously available has become available; or (3) it is necessary to correct a clear error of law or prevent manifest injustice." Database Am., Inc. v. Bellsouth Advert. Publ'g Corp., 825 F.Supp. 1216, 1220 (D.N.J. 1993); North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir 1995). Reconsideration is "an extraordinary remedy," which should only be granted "very sparingly." See NL Indus. Inc. v. Commercial Union Ins. Co., 935 F. Supp. 513, 516 (D.N.J. 1996); Maldonado v. Lucca, 636 F. Supp. 621, 630 (D.N.J. 1986). Indeed, "mere disagreement with a court's decision normally should be raised through the appellate process and is inappropriate on a motion for reargument." Yurecko v. Port Auth. Trans. Hudson Corp., 279 F. Supp. 2d 606, 609 (D.N.J. 2003) (quotation and citation omitted).
Defendant believes reconsideration is warranted here to correct a clear error of law committed by the Court when it applied the wrong exclusionary rule exception, and thus reached the wrong result, to analyze the admissibility of the child pornography evidence discovered in searches violating the Fourth Amendment. Stabile argues that the inevitable discovery doctrine does not apply because, as the Court noted in the Suppression Opinion, the case involved no prediction or speculation as to what law enforcement would do; rather law enforcement in fact sought and obtained a search warrant based on the incriminating file names appearing in plain view during Detective Vanadia's search of the 120 GB hard drive.
Defendant relies on the Third Circuit's opinion in United States v. Herrold, 962 F.2d 1131 (3d Cir. 1992). There, the appeals court found that an inevitable discovery analysis, which had been applied by the district court in denying the defendant's motion to suppress, was inappropriate in light of the actual discovery and seizure of the challenged contraband evidence in a second, separate search. Id. at 1139. Holding that the case was better understood under the independent source doctrine, theHerrold court stressed the distinction between a situation in which the a court must speculate as to whether law enforcement would have lawfully obtained the evidence in question and one in which the officers in fact obtained the evidence apart from a tainted, illegal search:
[U]nder the independent source doctrine, evidence that was in fact discovered lawfully, and not as a direct or indirect result of illegal activity, is admissible. In contrast, the inevitable discovery doctrine, applied in Nix, permits the introduction of evidence that inevitably would have been discovered through lawful means, although the search that actually led to the discovery of the evidence was unlawful. The independent source and inevitable discovery doctrines thus differ in that the former focuses on what actually happened and the latter considers what would have happened in the absence of the initial search.Id. at 1140 (emphasis in original). Here, because we know what investigative steps occurred after the tainted search of the 12 video files, Stabile argues that the Court conducted the wrong inquiry, to his detriment.
Guided by Herrold, the Court concludes that its analysis under the inevitable discovery doctrine was appropriate, and moreover, that on the facts of this case, the independent source doctrine, even if applicable, would yield the same result.
The inevitable discovery analysis was the appropriate one because the facts of the case called for the Court to determine whether the evidence would have been discovered through lawful means. The Court notes that given both law enforcement errors it identified in the Suppression Opinion — first, Detective Vanadia's unlawful search of the 12 video files and then, the federal agents' incorrect identification of the 40 GB hard drive as the target of the first federal search warrant and subsequent warrantless search of the 40 GB hard drive (warrantless because the first federal search warrant was not supported by probable cause to suspect criminal evidence on the 40 GB hard drive) — a lawful search uncovering the challenged evidence never in fact occurred. The subsequent searches of the other five hard drives, including the 120 GB hard drive which contained the child pornography videos, was also constitutionally infirm, as the warrant purportedly supporting those searches was based on probable cause evidence obtained in the illegal search of the 40 GB hard drive.
The Court believes it correctly conducted the inquiry called for by the inevitable discovery doctrine. In particular, with regard to this case, it concluded that the preponderance of the evidence demonstrated that had the unlawful search of the 12 video files on the 120 GB hard drive never occurred, law enforcement would have sought and obtained a search warrant to search the 120 GB hard drive for child pornography based on the plain view file names. In finding that the incriminating file names were inadvertently discovered in an area where law enforcement was authorized by warrant to be, the Court credited Detective Vanadia's testimony that he opened the Kazvid folder to look for hidden or deliberately "misfiled" counterfeit check-related material. The Court then found that a warrant for the 120 GB hard drive would have issued based on the plain view evidence. In evaluating whether the facts of the case supported such a prediction of the inevitable, the Court took into account that Agent Albanese in fact applied for and obtained a warrant based on the file names. Defendant seems to misunderstand this critical factor in the Court's inevitable discovery inquiry as an indication that the wrong exclusionary rule exception was applied. Herrold does not hold, as Defendant characterizes, that when the Court "focuses on what actually happened" and need not speculate as to what would have transpired, only the independence source doctrine, and not the inevitable discovery exception, can apply. Indeed, the inevitable discovery jurisprudence instructs that the Court should base a finding of inevitability on verifiable facts, not on speculation. United States v. Vasquez De Reyes, 149 F.3d 192, 195 (3d Cir. 1998).
At bottom, both doctrines aim at evaluating whether evidence that would otherwise be excluded based on a Fourth Amendment violation should nevertheless be admitted as sufficiently removed from the tainted search. "The independent source, inevitable discovery, and attenuation doctrines recognize that where the causal link between the constitutional violation and later-revealed evidence is tenuous or, indeed, non-existent, the later-revealed evidence can be said to be untarnished by the constitutional violation and therefore may be admissible." United States v. Pelullo, 173 F.3d 131, 136 (3d Cir. 1999). The crucial distinction drawn by Herrold between the doctrines is that independent source poses an inquiry tailored to a situation in which both a constitutionally infirm search and a lawful search uncovered the challenged evidence whereas inevitable discovery targets its inquiry to a situation — such as in the case at bar — in which the sole source of the evidence is an unlawful search. Herrold, 962 F.2d at 1140. Though they ask different questions, which depend on the facts presented, they are expressions of the same legal principle, i.e., that the exclusionary rule should not bar evidence directly or derivatively connected to an unlawful search because other circumstances dissipate the taint. See Murray v. United States, 487 U.S. 533, 538-39 (1988). Analyzing the rationale of Nix in recognizing an inevitable discovery exception to the exclusionary rule, the Supreme Court in Murray explained: "The inevitable discovery doctrine, with its distinct requirements, is in reality an extrapolation from the independent source doctrine: Since the tainted evidence would be admissible if in fact discovered through an independent source, it should be admissible if it inevitably would have been discovered." Id. at 539.
Defendant's reliance in his motion on the fact that a search warrant was actually sought and obtained following Detective Vanadia's unauthorized viewing of the 12 child pornography videos is misplaced for an additional reason. Given the shared concern of the doctrines, and the purely fact-based trigger for which of the two will apply in a given case, it would be illogical to reject applying one of the two analyses simply because a case may present a hybrid of the paradigms in which the doctrines typically apply. Here, yes, a warrant was in fact obtained, but rather than result in a lawful search — which would have put the case squarely within the territory covered by the independent source doctrine — that first federal search warrant was itself flawed.
Assuming, arguendo, the Court should evaluate the admissibility of the evidence through the lens of independent source, the result would be the same. In other words, the Court would ask with respect to the connection between Detective Vanadia's illegal search of the 120 GB hard drive and the ultimate acquisition of child pornography evidence from Stabile's hard drives:
(1) whether a neutral justice would have issued the search warrant even if not presented with information that had been obtained during an unlawful search and (2) whether the first search prompted the officers to obtain the search warrant.Herrold, 962 F.2d at 1144; see also Murray, 487 U.S. at 542 (holding evidence would not be admissible if agents' decision to seek warrant prompted by discovery made during illegal search or if tainted evidence affected magistrate's decision to issue warrant). The Herrold court held that "[i]f the answers to these questions are yes and no respectively . . . then the evidence seized during the warranted search, even if already discovered in the original entry, is admissible." Herrold, 962 F.2d at 1144. In this case, the Herrold analysis renders the evidence admissible.
The answer to the first question is clearly yes. A federal magistrate judge did in fact issue a warrant authorizing a search for child pornography. As the facts summarized in the Suppression Opinion show, the first federal search warrant was not at all based on the illegally discovered videos, but rather on the lawfully obtained file names. The warrant application made no mention of the videos, and the probable cause it presented to the magistrate judge was based on the file names and Detective Vanadia's experience with the material that file names of that sort contained.
As for the second question, the Court finds that officers, in particular Agent Albanese in this case, would have sought a search warrant absent Detective Vanadia's confirmation that at least 12 of the suspiciously-titled files contained sexual images involving children. The evidence shows that law enforcement had already considered the possibility that Stabile possessed child pornography, though their suspicions based on the DVDs turned out to be unfounded. Detective Vanadia was instructed to stop his search immediately should he come across evidence of child pornography so that federal authorities could be notified. Had he stopped at the appropriate place, the evidence on which a decision to seek a warrant could be made would be limited to the lawfully discovered file names. It is inconceivable that, informed "only" of several patently incriminating file names as "9yofuck", Agent Albanese would not have sought a warrant to search the hard drives for child pornography. Indeed, he had already sought such authorization, based on the DVDs, from Judge Ahto, who issued the state search warrant.
Defendant stresses that the unlawful search cannot be unwound from the decision to seek the first federal search warrant because had Detective Vanadia not confirmed that at least 12 of the files contained child pornography, he would not have alerted the Morris County assistant prosecutor, and in turn the federal authorities, of his discovery. That analysis misses the mark. Clearly, an illegal search occurred, and law enforcement should not have seen the videos to begin with, as Detective Vanadia was instructed to halt the search upon encountering any evidence of child pornography. However, it is precisely that turn of events that brings to bear the independent source analysis the Court is undertaking. The question is whether on the record of this case federal law enforcement — specifically Detective Albanese — was prompted to seek the first federal search warrant from the magistrate judge by the videos.
In finding that the answer to this question is no, the Court is guided by the Third Circuit's recent decision in United States v. Price, ___ F.3d ___, No. 06-4503, 2009 WL 514095 (3d Cir. Mar. 3, 2009). In that precedential opinion, the court considered the applicability of the independent source doctrine to allow evidence initially seen during a search conducted in violation of the Fourth Amendment but then seized pursuant to a later-obtained warrant. Officers suspected that defendant Price manufactured methamphetamine in his Page Road home. Price, 2009 WL 514095, at *1. On October 5, 2004, they arrived at the house on Page Road and sought consent from his common-law wife to search the premises. Id. at *2-3. (Price was not present because he had been arrested at a different location earlier that day. Id. at *1.) Two areas of the house were searched: the main part of the residence and the basement, which was accessible only from the outside of the house. Id. at *2-3. In the basement, the officers observed several items used in the manufacture of methamphetamine. Id. at *3. Hours after the consent searches, the officers sought and obtained a warrant to search the Page Road residence, executed the warrant later that day, and seized numerous chemicals related to methamphetamine manufacture from the basement. Id. at *4. Price moved for the suppression of, among other evidence, the items seized from the basement, arguing that the police did not have valid consent to enter the basement initially and thus the evidence was the tainted product of the warrantless search. Id. at *8. The district court denied his suppression motion, and the Third Circuit affirmed. Id. at *11. The Price court held that the validity of the common-law wife's consent was irrelevant because, even assuming the illegality of the officers initial entry into the basement, the search warrant sought after that entry contained sufficient probable cause from independent sources to legitimize the second search. Id. at *8. Holding that the independent source doctrine vitiated the any taint associated with the evidence, thePrice court found that the evidence illegally observed did not prompt the officers to apply for a search warrant. Id. at *9-10. The court noted that, apart from the tainted evidence, the officers had information from confidential informants about methamphetamine production at the Page Road residence, Price had previously sold methamphetamine to the officer who applied for the warrant, Price had incriminating paraphernalia on his person when he was arrested and his bedroom (in the main part of the residence, which was legally searched) contained a chemical used in the drug's manufacture as well as glass pipes with methamphetamine residue. Id. at *10. The court reasoned that knowing these things, it seemed "impossible" that the police would not have applied for the warrant. Id. After excising the warrant application's references to the evidence obtained during the warrantless basement search, the Price court found the search warrant supported by sufficient independent and legally obtained probable cause, including the evidence discovered during the legal portion of the initial search of the Page Road residence.Id. at *10-11.
In Price, the Third Circuit did not find it impossible to disentangle the officers' illegal discovery of incriminating methamphetamine evidence in Price's basement from their decision, only hours later, to apply for a search warrant targeting precisely that kind of evidence in Price's home, including the basement. Indeed, the court's independent source analysis concluded that the illegal search did not prompt the warrant application even though the application relied, in part, on information the officers would not have had but for the illegal search of the basement. The facts of this case are equally, if not more compelling to vitiate the taint of the Fourth Amendment violation committed when Detective Vanadia opened the video files. For the reasons discussed above, the facts demonstrate that law enforcement would have sought the first federal search warrant on the basis of information lawfully obtained prior to the illegal search of the video files.
Under this alternate analysis, the Court must apply both the independent source doctrine and the inevitable discovery doctrine. The independent source doctrine removes the taint of the illegal searches insofar as the viewing of the 12 videos tarnished the investigation. However, the subsequent searches, as described in the Suppression Opinion, were not supported by valid warrants. The illegality of those searches was rooted in the misidentification of the 40 GB hard drive as the target of the first federal search warrant. For the reasons expressed in the Suppression Opinion, the Court finds that had the correct 120 GB hard drive been identified in that warrant and searched, the incriminating evidence at issue would have inevitably been discovered.
III. CONCLUSION
For the foregoing reasons, the Court denies Defendant's motion for reconsideration. An appropriate form of Order will be filed together with this Opinion.