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United States v. Sullivan

United States District Court, W.D. Washington, Tacoma

May 7, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
SEAN D. SULLIVAN, Defendant.

          ORDER DENYING DEFENDANT'S REVISED MOTIONS TO SUPPRESS AND FOR A FRANKS HEARING

          BENJAMIN H. SETTLE United States District Judge.

         This matter comes before the Court on Defendant Sean Sullivan's (“Sullivan”) revised motions to suppress, Dkt. 51, and for a Franks hearing, Dkt. 52. The Court has considered the pleadings filed in support of and in opposition to the motions and the remainder of the file and hereby denies each motion for the reasons stated herein.

         I. FACTUAL BACKGROUND

         The indictment in this case charges Sullivan with three counts: one count of production of child pornography in violation of 18 U.S.C. § 2251(a) and (e); and two counts of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). Dkt. 16.

         A. Allegations

         The complaint describes the alleged minor victim of the production count as MV1; Kassandra Jeffers (“Jeffers”) is MV1's mother. Dkt. 1 at 3-4. On July 24, 2017, Jeffers took MV1 to the hospital after seeing nude photographs of MV1 on Sullivan's black LG smartphone. Id. A nurse at the hospital notified law enforcement around 8:22 P.M., who interviewed Jeffers telephonically. Id.; Dkt. 56-3 (Government Ex. 4). Jeffers reported that she viewed Sullivan's phone the day before and, inside a Google file or folder labeled “trash, ” discovered four photos of MV1. Dkt. 1 at 4. Jeffers described the photos as two images showing MV1 nude on a white toddler bed Jeffers recognized as belonging to Sullivan, and two images showing MV1 nude next to Sullivan's erect penis. Id. at 4-5.

         On July 25, 2017, Jeffers provided a written statement, id. at 4, and MV1 underwent a forensic interview. At the forensic interview, MV1 denied that anyone had taken nude photos of her or touched her private parts. See Dkt. 65-1. On July 25, 2017, law enforcement searched Sullivan's residence, seizing an Alcatel One Touch (“Alcatel”) cell phone. Sullivan was not present at the residence during the search, and the black LG phone was never located. On July 26, 2017, law enforcement arrested Sullivan, seizing a Motorola G4 Play (“Moto G4”) cell phone that Sullivan admitted possessing. Dkt. 1 at 5. During an interview with law enforcement that day, Sullivan admitted to looking at “nudist” images of naked children. Dkt. 44-2 at 8.

         B. Warrants

         A Cowlitz County District Judge issued four warrants in this case.

         Device Warrant. The first warrant issued on July 25, 2017. Dkt. 44-1 (“Device Warrant”). The Device Warrant authorized the search of Sullivan's home, person, car, LG smartphone, and “any other electronic or storage device” belonging to Sullivan. Id. Detective Cory Robinson (“Detective Robinson”) of the Cowlitz County Sheriff's Office prepared the application for the device warrant. Id. The Device Warrant summarized the allegations in part as follows:

“ ...Jeffers said approximately two weeks ago Sullivan asked if he could take [MV1] for the day and they would be with Sullivan's roommates. Jeffers said she didn't think anything of it and let Sullivan take [MV1]. Jeffers said when [MV1] returned, she told Jeffers that they didn't go to the park or do much of anything. [Redacted] said she was later around Sullivan's roommates when they were talking about how Sullivan was making them feel weird about having their children around him. Jeffers said yesterday she started to look through Sullivan's pictures on his cell phone. Jeffers said as she was looking through his Google photos, she noticed a picture of [MV1] where her hand was behind her back and she was lifting up her shirt to expose her stomach. Jeffers said she continued to look through Sullivan's pictures and found a folder labeled “trash”. Jeffers said she opened the folder and started going through the pictures. Jeffers said as she was going through the pictures, she saw two different photographs of her daughter completely nude. Jeffers said [MV1] looked like she was posing in the photographs. Jeffers said she continued going through the photographs and found four pictures of her daughter nude. Jeffers said in these pictures [MV1] was completely nude with her legs around the waist of Sullivan. Jeffers said Sullivan was also nude and had his penis on [MV1's] vagina.

         Device Warrant at 6-7.

         On July 27, 2017, law enforcement searched the Moto G4 phone seized from Sullivan during his arrest pursuant to the Device Warrant. The search of the Moto G4 produced evidence that six photos had been recently deleted from the folder “Google Photos/local trash.” Dkt. 44-2 at 10. One image discovered on the Moto G4 appeared to be child pornography as recognized by the National Center for Missing and Exploited Children, id. at 9-10, and one video downloaded to the phone and entitled “INCEST AMATEURS - SHOCKING INCEST UPLOADED BY MEMBERS!” showed “a male subject having intercourse with a young teenage female of unknown age, ” id. at 10. The Moto G4 search indicated that there were “two Google accounts associated with the device: Irishlord45@gmail.com and 4leafindustries@gmail.com.” Id. at 9.

         The Alcatel phone was also searched pursuant to the Device Warrant. There were “no images or videos” located on the device. Dkt. 59-2 at 2. The Alcatel search indicated the device was associated with the Google account “4Leaf Logging” 4leafindustries@gmail.com. Id. After reviewing the forensic image of the Alcatel phone, Detective Robinson believed the device “ha[d] seen little day to day use.” Id.

         Google Warrants. On August 1, 2017, Detective Robinson prepared affidavits supporting search warrant applications for the Google accounts associated with the “Irishlord45@gmail.com” and “4leafindustries@gmail.com” email addresses. See Dkts. 44-2 (“Irishlord45 Affidavit”), 59-1 (“4leafindustries Affidavit”) (collectively “Google Warrants”). Except for the identification of the separate Google accounts, the affidavits supporting the Google Warrants are identical. In addition to Jeffers's allegations, the Google Warrants relied in part on the content obtained from the search of the Moto G4 phone, as well as Sullivan's July 26, 2017 admission to viewing nudist images of children. Irishlord45 Affidavit at 8-9; 4leafindustries Affidavit at 8-9.

         Google produced content responsive to the Google Warrants. Analysis of the “irishlord45” account discovered multiple images of MV1 with her underwear exposed and/or as the focus of the image. Id. at 6-7. One image found on the “irishlord45” account showed a “prepubescent female lying on her side on a brown and tan patterned blanket with her pubic area exposed.” Id. at 3. The child in the image is depicted “from the neck down to her thighs” and wears “a white tank top with a sparkly butterfly” and pajama pants that have been pulled down to expose the child's pubic area. Id. at 6. MV1's grandmother viewed this image, identifying the butterfly shirt worn by the child in the photo as belonging to MV1. Id. Following the execution of the Google warrants and the discovery of the above-described content in the “irishlord45” account, Sullivan was charged in state court and released to a substance abuse treatment center.

         Blue LG Warrant. In November 2017, following a report of child pornography found on a cell phone confiscated at the drug treatment center Sullivan attended, affiant Detective McNeal of the Cowlitz County Sheriff's Office prepared an affidavit supporting the issuance of the fourth warrant in this case. Dkt. 45-1 (“Blue LG Warrant”). The affidavit, which quotes from a report by responding Deputy Pattinson, reads in part:

I went to DAPC and spoke with Amber Delagrange. Delagrange is the site manager for this location. Delagrange said Sean Sullivan entered into their treatment facility on 11-16-17. Delagrange said when each new patient is admitted, they are advised of the rules of the facility and told that their belongings can be searched at any time. Delagrange said that cell phones and other items are prohibited. Delagrange said it was brought to the attention of the staff that there was drug paraphernalia in Sullivan's room. Sullivan and his roommate were sent for UA's and their room was searched by two employees, Jason Vein and Deeanna Gilman. Delagrange said during the search a homemade pipe and a cell phone were located Delagrange said the employees opened the phone to see if they could identify who it belonged to and saw images of nude children.
Delagrange provided me with an LG brand smartphone and said it was the one recovered from Sullivan's room. Gilman said she entered Sullivan's room to search it with Vein. Gilman said they lifted up Sullivan's mattress and located a homemade smoking device and a cell phone showed Gilman the LG phone and she confirmed it was the same one they had located. Gilman said the phone was on and wasn't locked Gilman said Vein looked through the phone to try and determine who the owner was.
Gilman said Vein looked in the pictures to see if there was a picture of the owner and found numerous photos of nude children. Gilman said she saw several of the pictures and said the pictures were of nude females she believed to be between the ages of 11-13. Gilman said she has children and was certain that the nude females in the photos were minors. Gilman agreed to provide me with a written statement. Prior to Gilman signing the statement, I went over the perjury clause at the bottom of the form. Gilman stated she understood and signed the statement.

         Blue LG Warrant at 5.

         Detective McNeal subsequently imaged and searched the LG phone confiscated from Sullivan at the drug treatment center pursuant to the Blue LG Warrant. Dkt. 1 at 7-8. “In the Google Chrome browser history of the phone, Detective McNeal saw that the search term ‘little nudist girl sister' had been used.” Id. at 8. Detective McNeal also identified two images of suspected child pornography stored on the blue LG phone. Id.

         Sullivan was subsequently indicted by a grand jury sitting in this district on June 13, 2018. Dkt. 16. Trial is set to commence May 13, 2019. Dkt. 49.

         II. PROCEDURAL HISTORY

         A. Motion to Suppress

         On April 18, 2019, Sullivan filed a revised motion to suppress challenging the breadth of each warrant issued in this case. Dkt. 51. On April 19, 2019, the Government responded and filed a motion for leave to file an overlength response. Dkts. 54, 59. On April 25, 2019, Sullivan replied. Dkt. 62.

         B. Motion for Franks Hearing

         On April 18, 2019, Sullivan filed a revised motion for hearing pursuant to Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (“Franks”). Id.[1] On April 19, 2019, the Government responded, Dkt. 56, filed a motion for leave to file an overlength response, Dkt. 58, moved to seal supporting exhibit 3 to its response, Dkt. 55, and filed sealed exhibit 3, Dkt. 57. On April 25, 2019, Sullivan filed a motion for leave to file an overlength reply, Dkt. 63, moved to seal his reply, Dkt. 64, and filed a sealed reply, Dkt. 65.

         III. DISCUSSION

         A. ...


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