United States District Court, W.D. Washington, Tacoma
ORDER DENYING DEFENDANT'S MOTION TO
BENJAMIN H. SETTLE United States District Judge
matter comes before the Court on Defendant Donnie Barnes,
Sr.'s (“Barnes”) motion to suppress. Dkt. 32.
The Court has considered the pleadings filed in support of
and in opposition to the motion and the remainder of the file
and hereby denies the motion for the reasons stated herein.
PROCEDURAL HISTORY & FACTUAL BACKGROUND
is charged with one count each of production, distribution,
and possession of child pornography. Dkt. 13. Trial is set to
commence on October 29, 2019.
April 22, 2019, Barnes filed a motion to suppress and a
motion for leave to file an overlength motion. Dkts. 31, 32.
On May 6, 2019, the Government responded and filed a motion
for leave to file an overlength response. Dkt. 36. On May 16,
2019, Barnes replied and filed a motion for leave to file an
overlength reply. Dkts. 39, 40. On May 17, 2019, the
Government surreplied and filed a motion for leave to
surreply. Dkts. 41, 42.
Investigation and § 1509 Summons
February 2018, Special Agent Reese Berg (“Agent
Berg”), working for Homeland Security Investigations
(“HSI”), a component of the Bureau of Immigration
and Customs Enforcement (“ICE, ” collectively
“ICE-HSI”) began investigating Barnes. Agent
Berg's investigation started after ICE-HSI received a
lead from Australian police that an individual using the name
“TICK10T012TOCK” had uploaded sexually explicit
images of a female minor to a foreign photo-sharing website.
Dkt. 1 at 3-4. After viewing the images, an Australian
officer obtained a list of internet protocol
(“IP”) addresses that
“TICK10T012TOCK” used to log onto the
photo-sharing website. Id. at 6. One of these IP
addresses, 126.96.36.199, belonged to internet service
provider (“ISP”) Comcast Communications
(“Comcast”). Id. ¶ 13. A HSI
officer issued a summons to Comcast requesting subscriber
information for that IP address on February 20, 2018.
Id. HSI issued the summons under the authority of 19
U.S.C. § 1509(a)(1). Dkt. 36-1 at 6-7.
complied with the summons by providing the subscriber records
associated with its IP address. Id., ¶ 14; Dkt.
36-1 at 3 (summons return). Specifically, Comcast responded
that IP address 188.8.131.52 was assigned to customer K.T.,
associated with a physical service address in Spanaway,
Washington, and that the email user identification for the
account was firstname.lastname@example.org. Dkt. 36-1 at 3. The extent of
the subscriber information provided by Comcast to ICE-HSI is
shown in the below image.
Barnes and K.T. live together at the Spanaway address, along
with K.T.'s two children. Dkt. 32 at 3.
Execution of Search Warrant
receiving the above internet subscriber information from
Comcast, Agent Berg sought a warrant authorizing the search
of Barnes's person and home from Magistrate Judge Teresa
L. Fricke. Dkt. 32-2. Before applying for the warrant, Agent
Berg conducted surveillance on Barnes's home on two
dates, February 28 and March 1, 2018. Dkt. 32-2, ¶¶
22, 25. On February 28, Agent Berg saw K.T. leave the home at
6:30 a.m., accompanied by her two children. Id.
¶ 22. On March 1, Agent Berg saw Barnes leave the home
at 6:02 a.m. Id. ¶ 25
on Agent Berg's observations, Judge Fricke found good
cause to grant permission to execute the search warrant at
night. Dkt. 36-2 at 2 (warrant granting permission to search
“at any time in the day or night because good cause has
been established”); Fed. R. Crim. P. 41 (defining
“daytime” as the hours between 6:00 A.M. and
enforcement executed the warrant shortly after 5:00 a.m. on
March 6, 2018.Dkt. 1 ¶ 17. Barnes was home and
agreed to speak with Agent Berg. Id. During the
interrogation Barnes admitted possessing incriminating
depictions of K.T.'s minor daughter, which was later
corroborated through forensic examination of digital devices
seized from the Spanaway residence pursuant to the warrant.
Id. ¶¶ 17-18; Dkt. 36 at 4.
Motion to Strike
surreply, the Government asserts that in reply Barnes
“raises two matters not previously presented in his
opening brief and mischaracterizes the Government's
position on a third.” Dkt. 42. Under local rule, the
filing of surreplies in this District is limited to:
requests to strike material contained in or attached to a
reply brief, in which case the opposing party may file a
surreply requesting that the court strike the material,
subject to the following . . .
(2) The surreply . . . shall be strictly limited to
addressing the request to strike. Extraneous argument or a
surreply filed for any other reason will not be considered.
Rule W.D. Wash. LCR 7(g). The Government requests that the
Court not consider the two arguments Barnes allegedly raised
for this first time in reply. Dkt. 42 at 1-2. Therefore, the
Court will construe that part of the Government's
surreply as a motion to strike those arguments from the
record, consistent with Local Rule W.D. Wash. LCR 7(g).
the Government also argues that Barnes's reply
“mischaracterize[d] the Government's
position” regarding the applicability of the good faith
exception to the exclusionary rule in this case. Dkt. 42 at 2
(citing Dkt. 40 at 1). The Government presents legal argument
in surreply as to why it believes the exception is
applicable. Dkt. 42 at 2- 3. This is “[e]xtraneous
argument” not made in furtherance of a motion to strike
and therefore the Court will not consider it. Local Rule W.D.