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United States v. Barnes

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

June 18, 2019



          BENJAMIN H. SETTLE United States District Judge

         This 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.


         Barnes 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.

         On 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.

         1. Investigation and § 1509 Summons

          In 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.[1] Id. at 6. One of these IP addresses,, 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.

         Comcast 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 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 Dkt. 36-1 at 3. The extent of the subscriber information provided by Comcast to ICE-HSI is shown in the below image.

         (Image Omitted.)

         Id. Barnes and K.T. live together at the Spanaway address, along with K.T.'s two children. Dkt. 32 at 3.

         2. Execution of Search Warrant

          After 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

         Based 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 10:00 P.M.).

         Law enforcement executed the warrant shortly after 5:00 a.m. on March 6, 2018.[2]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.


         A. Motion to Strike

         In 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.

         Local 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).

         However, 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. Wash. ...

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