IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT COURT OF CALIFORNIA

PLEASE TAKE NOTICE that, before Judge Anthony W. Ishii, the defendant, XXXXXXXXXXXX, will move that this Court quash suppress all evidence obtained from the search warrant for the Defendant's residence at XXXX XXXXXX XXXX, XXXXXX, California.
The motion will be made on the following grounds: 1) that on its face the affidavit in support of the search did not establish probable cause for the issuance of the search warrant, and 2) that the Affidavit supporting the search warrant contained a material omission without which the lack of probable cause would have been apparent to the issuing magistrate.
This motion will be based on the attached memorandum of points and authorities, all papers filed in this action, and any evidence taken at this hearing on this motion, and argument at this hearing.
Dated: January ___, 2010

Respectfully Submitted,
UNITED DEFENSE GROUP

By: /s/ Eric A. Chase
Eric A. Chase, Esq.
Attorneys for Defendant

MEMORANDUM OF POINTS AND AUTHORITIES

A. STATEMENT OF FACTS

1. SUMMARY OF THE UNDISPUTED FACTS RELEVANT TO THIS MOTION

On June 27, 2003, a Search Warrant was signed by Magistrate Judge A.M. Snyder authorizing a search of the Defendant's residence. The affidavit in support of the search warrant prepared by Special Agent (SA) Kenneth Tam relied entirely on information provided in a report by another agent, SA Nghiem, which in turn relied on information in an attached report from SA Condo from the Maryland metropolitan Office, for ALL of the specific facts related to probable cause that evidence of a crime might be found in the possessions of the Defendant. SA Nghiem's report warned that the information he was providing did NOT establish probable cause and he set forth the facts supporting, and explained his reasoning, for that conclusion. That information was not included in the affidavit reviewed by the magistrate before signing the warrant.

1. BACKGROUND

On August 3, 2006, based on an affidavit prepared by SA Tam a Search Warrant was signed by Magistrate Judge Sandra M. Snyder authorizing the search of the residence, computer and possessions of the Defendant for evidence related the possession of child pornography. On August 7, 2006, the search was conducted. As a result of that search, one file containing a video of two apparent prepubescent girls urinating, lasting approximately five minutes, was found. On August 17, 2006, an indictment was issued charging the Defendant with possession and receipt of that one file.

1. THE AFFIDAVIT

As with most warrants related to child pornography, it is mostly made up of "boilerplate" language about the general characteristics of people who produce, trade, distribute, or possess images of minors engaged in sexually explicit conduct (Warrant Affidavit, paragraph 3.):

• They view children as sexual objects; (Warrant Affidavit, paragraph 3(a).)
• They collect sexually explicit images and purchase memberships in websites that contain child pornography to aid in their collecting activities; (Warrant Affidavit, paragraph 3(b).)
• They rarely, if ever, dispose of such images; (Warrant Affidavit, paragraph 3(c).)
• They use sexually explicit images of minors as a means of reliving fantasies or actual sexual encounters; (Warrant Affidavit, paragraph 3(d).)
• They go to great lengths to conceal and protect from discovery their collections; (Warrant Affidavit, paragraph 3(e).)
• They maintain images of minors with whom they have had sexual contact; (Warrant Affidavit, paragraph 3(f).)

The Boilerplate also contains a statement the affiant relied on information provided by other agents either directly or in reports. (Warrant Affidavit, paragraph 14.) The information specific to probable cause that Mr. XXXXXX had engaged in activities that might provide probable cause to believe that evidence of child pornography would be found in his possessions is contained at paragraphs 14 through 16. Those paragraphs state the following:

• In August of 2005, FBI special agent (SA) Condo had purchased memberships to several commercial web sites that allowed members to access child pornography contained on those sites; (Warrant Affidavit, paragraph 14.)
• SA Condo was directed to transfer money into E-Gold Account #XXXXXX to purchase the memberships; (Warrant Affidavit, paragraph 14.)
• SA Condo viewed child pornographic images on the websites; (Warrant Affidavit, paragraph 14.)
• SA Condo had to submit a valid e-mail address to receive the password needed to access the child porn websites purchased with the E-Gold account; (Warrant Affidavit, paragraph 15.)
• SA Condo obtained via search warrants transaction history records for E-Gold Account #XXXXXX for June 2005 through September 2005; (Warrant Affidavit, paragraph 15.)
• The records indicated that on July 15, 2005, a user transferred money to that account from another E-Gold account using IP address XXX.XXX.XXX.XXX, using the e-mail address XXXXXX@XXXXXX; (Warrant Affidavit, paragraph 16.)

The affidavit goes on to explain how the activities described by SA Condo were connected to the Defendant and his residence through the email account and IP address provided by SA Condo. (Warrant Affidavit, paragraphs 17 and 18.)

1. THE OMISSIONS FROM THE AFFIDAVIT

The specifics related to probable cause for this Defendant's property contained in Paragraphs 14-16 of the affidavit set forth above were communicated by SA Nghiem to the FBI field office in Sacramento in a report dated April 24, 2003. That report also contained the following analysis of the information it was communicating.

(Exhibit A, p. 5. Emphasis by capitalization in original.)
The affidavit contained no reference whatsoever to this analysis by SA Nghiem and did not even hint at his conclusion that the information he was providing did "...NOT necessarily mean that the identified individuals were purchasing child pornography."
Those statements fail to include one obviously important link in the investigative chain: nowhere do they indicate that Mr. XXXXXX used the funds he transferred into the E-Gold account to purchase memberships with websites containing child pornography; instead, those statements only present evidence that Mr. XXXXXXtransferred money into the same account that SA Condo used to purchase memberships in child pornography websites.

B. ARGUMENT

1. DEFENDANT HAS A RIGHT TO MOVE TO QUASH THIS WARRANT

A defendant may move to quash and traverse a search warrant and to suppress the evidence obtained on the ground that the search and seizure was unreasonable because there was not probable cause for issuance of the warrant. See Illinois v. Gates, 462 U.S. 213 (1983).

1. THE AFFIDAVIT DID NOT PRESENT PROBABLE CAUSE TO BELIEVE THAT CHILD PORNOGRAPHY WOULD BE FOUND AT MR. XXXXXX'S RESIDENCE

SA Nghiem's analysis excerpted above and omitted from the affidavit was, of course, correct. The specifics communicated in the report, and which formed the apparent basis for probable cause, can be restated syllogistically:

1. SA Condo was directed by child pornography websites to purchase memberships to those websites by transferring money into E-Gold Account #XXXXXX;
2. Further investigation revealed that Mr. XXXXXX transferred money into E-Gold Account #XXXXXX;
3. Therefore, probable cause existed to believe that Mr. XXXXXX had child pornography images stored on his computer and at his home.

This syllogism obviously fails logical analysis, as its third prong does not follow necessarily from its first two unless an assumption is made that only people who purchased memberships to child pornography websites transferred money into that E-Gold account. As pointed out by SA Nghiem, that assumption is fallacious.
It is understandable that the reviewing magistrate may have misunderstood this significant point. From the wording of the affidavit, without the benefit of SA Nghiem's full report, though it was not stated explicitly, it certainly appeared that E-Gold account #XXXXXX was used solely for the purchase of memberships in websites offering child pornography. However, a careful reading of the affidavit proves it to be fatally lacking in probable cause. For a magistrate to have a substantial basis for concluding that an affidavit established probable cause, "the facts must be sufficient to justify a conclusion that the property which is the object of the search is probably on the premises to be searched at the time the warrant is issued.
United States v. Greany, 929 F.2d 523, 524-525 (9th Cir. 1991), citing United States v. Hendricks, 743 F.2d 653, 654 (9th Cir. 1984). Although incapable of precise definition, the Supreme Court gave guidance for determining what quantum of proof amounts to probable cause in Illinois v. Gates, 426 U.S. 213, 235 (1983): "[I]t is clear that 'only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.'" (Citing Spinelli v. United States, 393 U.S. 410, 419 (1969).) In addition, "Probable cause sufficient to support a warrant exists where 'the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found.'" United States v. Olson, 408 F.3d 366, 370 (7th Cir. 2005) quoting Ornelas v. United States, 517 U.S. 690, 696 (1996).
This affidavit was unlike those so often held to provide sufficient evidence to warrant a man of reasonable prudence in the belief that child pornography evidence would be found in a home. Unlike in United States v. Ganoe, 538 F.3d 1117 (9th Cir. 2008), no officer received child pornography from Mr. XXXXXX, via e-mail, or a file-sharing program, or otherwise. Unlike in United States v. Gourde, 440 F.3d 1065 (9th Cir. 2006), the affidavit here does not disclose evidence that Mr. XXXXXX belonged to a website containing child pornography. And unlike United States v. Tucker, 305 F.3d 1193 (10th Cir. 2002), no informant told agents of seeing child pornography at Mr. XXXXXX's home. Reviewing courts in those cases found the affidavits sufficient because the inference that child pornography would be found at the places to be searched proceeded directly from information that child pornography had at some point been sent to or from those residences, or had originated from or been viewed by a person using a computer at those residences.
This affidavit contained no such direct inference. Instead, it asked the issuing magistrate to assume that any person who would have transferred money to the same E-Gold account to which an undercover agent was directed by child pornography websites must have also done so to access child pornography websites. However, as the Supreme Court stated in Ybarra v. Illinois, 444 U.S. 85, 91 (1991), "a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person."
Citing Sibron v. New York, 392 U.S. 40, 62-63 (1968). The Supreme Court held that the fact that the bartender at the tavern in Ybarra had been seen selling heroin in the bar did not give probable cause to believe that the defendant, a patron at the bar, would possess heroin, stating, "Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seize another or to search the premises where the person may happen to be." Id. at 63.
As in Ybarra, where the coincidence that the patron came into the bar did not give probable cause to believe that he did so to purchase drugs, the coincidence that Mr. XXXXXX had transferred money into the same account used by the undercover agent does not establish probable cause to believe that he did so for the same reason as did the agent. As in Ybarra, then, the chain of inferences is so attenuated as to have been insufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime would be found.
The affidavit here is thus comparable to that in United States v. Falso, 544 F.3d 110, 119-120 (2nd Cir. 2008), in which the Second Circuit found insufficient an affidavit stating merely that the defendant either gained access or attempted to gain access to a non-member website connected to a member-only website selling child pornography, because, "Even if one assumes (or infers) that [the defendant] accessed the [free] site, there is no specific allegation that [the defendant] accessed, viewed or downloaded child pornography." Id. The affidavit here asked the magistrate to make an even more attenuated assumption. Because the warrant was not supported by probable cause, the Defendant respectfully requests that this Court quash it and suppress all evidence seized pursuant thereto.

1. THE OMISSION OF NECESSARY STATEMENTS FROM THE AFFIDAVIT ENTITLES THE DEFENDANT TO A FRANKS HEARING

In Franks v. Delaware, 438 U.S. 154, 171-72 (1978), the United States Supreme Court determined that a defendant who specifically alleges that a search warrant is based on an affidavit containing material misrepresentations or omissions is entitled to a hearing to present evidence in support of those allegations. The Ninth Circuit stated the requirement for a hearing to determine whether a defendant is entitled to a hearing, in United States v. Perdomo, 800 F.2d 916, 920 (9th Cir. 1986):

(Quoting United States v. Dicesare, 765 F.2d 890, 894-895 (9th Cir. 1985).
A. An identifiable, specific omission exists.
As stated in the statement of facts, supra, the affiant omitted from the affidavit important information about the E-Gold account indicating the assessment of FBI investigators that it was impossible to determine whether any particular contributor to the account had used that account to purchase memberships in websites offering child pornography.
B. The omission was deliberate or reckless.
This omission must have been deliberate or reckless. The FBI report on which ALL of the probable cause specifics was based contained the omitted information, most importantly; the direct statement that the facts provided did "...NOT necessarily mean that the identified individuals were purchasing child pornography." (Exhibit A, p. 5.). The affiant was obviously in possession of the omitted information. It is inescapable that the omitted information should have been included, and therefore, the omission was at best reckless.
That the FBI, one of those agencies engaged in the "often competitive enterprise of ferreting out crime," against which the protection of the warrant requirement is directed¹, determined the results of the investigation to be insufficient to present probable cause for search warrants is a clear indication that a neutral and detached magistrate, if presented with all of the information by which the FBI made that determination, would have come to the same conclusion. SA Tam was in possession of the cited report when he applied for the search warrant on XXXXXXXX, XXXX. He therefore must have known that the FBI investigation results showed no direct link between any of the E-Gold account-holders and any child pornography websites
C. The omission was necessary to the magistrate's finding of probable cause.
As stated supra, the FBI itself had already determined that the facts it had uncovered did not lead to a conclusion that the person had done so in order to gain access to child pornography websites. Had the magistrate been given accurate information, we must conclude that he would have reached the same conclusion.
D. The Defendant suggests that a full Franks hearing may not be necessary.
The Defendant is aware that a Franks hearing is usually held upon an allegation of a material omission from a search warrant and we are certainly prepared should the Court desire a Franks hearing. However, we suggest that such a hearing may not be necessary given the posture of this case for two reasons. 1) The first ground set forth above is sufficient to traverse the warrant as the affidavit, on its face, fails to establish probable cause because of the failure of its logic; and, 2) that the facts related to the material omission is contained in the very official FBI report that forms the basis of the affidavit, and, absent some abrogation of those facts by the Government, there is nothing to be determined by the taking of evidence.

1. CONCLUSION

Accordingly, all evidence subsequently obtained from these search warrants must be suppressed.

Dated: January ___, 2010

Respectfully Submitted,

UNITED DEFENSE GROUP

By: /s/ Eric A. Chase
Eric A. Chase, Esq.
Attorneys for Defendant