U.S. v. DIAZ

3:03CR233(EBB)

303 F.Supp.2d 84 (2004) | Cited 2 times | D. Connecticut | February 3, 2004

Omnibus Ruling on Defendant's Motion for Bill of Particulars and Motions to Suppress INTRODUCTION

Defendant Bernabe Diaz (hereinafter "defendant" or "Diaz") moves for abill of particulars, and to suppress evidence obtained as a result of asearch and seizure of his home, as well as statements defendant made tolaw enforcement officials during such search [Doc. Nos. 47, 49 and 51].For the reasons set forth below, the defendant's pre-trial motions aredenied.

BACKGROUND

On March 31, 2003, a minor victim (hereinafter "Jane Doe" or "Jane"),informed the Danbury Police Department that she had been sexuallyassaulted by the defendant and another individual from the time she wasthirteen, through December 2001 or January 2002, when she was sixteen.Jane Doe advised the police department that the sexual encountersoccurred at her home, as well as at the defendant's former residence, 72CedarPage 2Drive in Danbury, Connecticut, and that some of these incidents hadbeen videotaped. Diaz, the defendant, is a former police officer with theDanbury Police Department, and a lawyer whose practice includes criminaldefense work.

On April 3, 2003, the Danbury Police Department obtained a warrant tosearch the defendant's current residence, 1504 Bradford Drive. Thedefendant had moved from his Cedar Drive residence, where the allegedillegal acts took place, to 1504 Bradford Drive, Danbury, Connecticut inJune 2002. The warrant application included an affidavit by DetectiveMark Williams and Detective Rachel Halace, members of Danbury PoliceDepartment's Youth Bureau. The affidavit included statements made by JaneDoe and Jane Doe's father, attesting to the fact that the defendant hadsexually assaulted Jane Doe on various occasions at his previous home onCedar Drive, and that video tapes had been made of sexual activityinvolving Jane and another person. Jane Doe reported that the defendantowned the video camera, and that she had last viewed one of the videosshe was in at her own home around December 2002 or January 2003. She alsostated that she believed that her mother had since given the video backto the defendant.

The warrant application also included statements by the affiants,Detective Williams and Halace, based on theirPage 3training and experience, explaining that persons who engage insexual activity using pornographic videos and other sexual aids, andperson who engage in sexual activity with minors, tend to keep possessionof these items for extended periods of time and are unlikely to destroythem. (Defense Exhibit A at 3f) The warrant, which was executed on April3, 2003, authorized the search of 1504 Bradford Drive, and the seizureof: Pornographic magazines, pornographic videos, videotape recorders and cameras, DVD's, DVD players, any sexually explicit materials, and photographs with juveniles in them, names and phone lists of juveniles, vibrators, dildos and any other objects used for sexual gratification, a money clip with an Indian on it, and information relating to the receipt of dissemination of any and all photographs or other visual reproductions relating to child pornography, including minors engaged in sexual activities.The defendant was not at home when the search began, however, hewas advised that the warrant was being executed and thereaftervoluntarily went to his home. At approximately 12:10, when the defendantarrived at his residence, but before he entered his home, he was providedwith a copy of the search warrant. He called his attorney on his cellphone from the front lawn, and then entered his residence. While inside,he made several statements to the searching officers regarding theevidence they were looking for, including stating that thePage 4officers would not find "a video of me and [Jane]."1 Thedefendant then gave the officers his cell phone so they could call himwhen they were finished with the search, and left the premises.

While searching defendant's home, the officers located numerouscomputers and computer media equipment, which led the officers to callthe FBI for assistance. After receiving FBI approval, a Danbury policeofficer called the defendant on his cell phone and ask for his consent tosearch the computers and related equipment. Defendant consented to thesearch over the phone, and, at the request of the officer, returned tohis home in order to execute a written consent form. The form thedefendant signed states that:

I Bernabe Diaz, having been informed of my Constitutional Right not to have a search and seizure made without a search warrant and my right to refuse to such a search and seizure, do hereby consent to allow members of the [Danbury Police Department and FBI] conduct a complete search of my residence, place of business, garage and/or 2 Covenant Tech Computers, and 1 Compaq Ser. No. 6126FCDZA232 computer with all hard drives, hardware, media, etc. located at 1504 Bradford Drive, Danbury Connecticut and all appurtenances thereto. These police officers are authorized to take from the aforesaid location such materials or other property as they may desire, andPage 5 that these items may be brought to a Forensic Laboratory for examination. This written permission is being given by me to the above named members of the above named agencies voluntarily and without duress, threats or promises of any kind.

After defendant left his home for the second time, FBI agentsarrived at the residence, and, after being briefed on the facts of thecriminal investigation, decided to participate. As the search continued,the officers hooked up a digital video camera to the television and foundpornographic footage involving a minor performing sexual acts. This videowas determined to be direct evidence of child pornography, and theinvestigative team decided they had probable cause to arrest Diaz. He waseventually arrested upon his return to his residence.

The following day, on April 4 2003, A federal search warrant wasobtained from Magistrate Judge Holly B. Fitzsimmons, for seizure of theitems that the defendant had consented to being seized and that werealready in FBI custody. A forensic examination of the materials occurredthereafter, locating images of child pornography on disks and harddrives, and identifying internet activity by the defendant on childpornographic websites. The government intends to introduce the aboveevidence at trial.

Legal Analysis

I. Motion for Bill of ParticularsPage 6

The defendant moves this court to order the government to provide abill of particulars specifying as to count one and two (1) the specificdates and locations of the alleged unlawful activity, (2)the nature andmeans of interstate commerce alleged to be used by the defendant totransport the materials in question and (3) with respect to theconspiracy count, the date and location where said conspiracy wasallegedly formed, the date and location of the overt acts alleged, andthe date and location of the original occurrence of the principaloffenses charged. (Def.'s Mot. for Bill of Particulars at 1-2).

A bill of particulars is required only when the charges set forth inthe indictment are so general that they fail to inform the defendant ofthe specific acts of which he is accused. United States v.Torres, 901 F.2d 205, 234 (2d Cir.), cert. denied,498 U.S. 906, 111 S.Ct. 273 (1990). A defendant must possess informationspecific enough to enable him to prepare an adequate defense, to preventsurprise at trial, and to allow him to plead double jeopardy if that becomesnecessary at a later time. United States v. Murgas,967 F. Supp. 695, 702 (N.D.N.Y. 1997).

In determining whether the defendant has received sufficientinformation to allow him to prepare for trial, aPage 7court should consider any information obtained by the defendantthrough discovery, as well as that contained within the indictment.United States v. Muyet, 945 F. Supp. 586, 599 (S.D.N.Y. 1996).The government is not required to reveal to a defendant all of theevidence it will produce at trial. United States v. Feola,651 F. Supp. 1068, 1133 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2dCir.), cert. denied, 493 U.S. 834, 110 S.Ct. 107 (1989).Indeed, because a bill of particulars serves to restrict how thegovernment may present its case at trial, the question is not whether theinformation sought would be beneficial to the defendant, but whether itis necessary for his defense. United States v. Young & Rubicam,Inc., 741 F. Supp. 334, 349 (D. Conn. 1990).

In the present case, the defendant asks for the exact dates andspecific acts the government alleges he performed, and the precise meansby which the pornographic materials were transported in interstatecommerce. These details lie outside the range of information to which thedefendant is entitled. A bill of particulars may not be used as a tool toget an advance view of the government's evidentiary theory.Torres, 901 F.2d at 234. Taking into consideration both theindictment and materials the defendant has received in discovery, theCourt finds that Diaz has been adequately informed of the allegationsPage 8against him. The indictment tracks the statutory language of theoffenses charged and sufficiently apprises the defendant of the nature ofthe accusation against him, thus satisfying Fed. Rule Grim. P. 7(c)(1).United States v. Bagaric, 706 F.2d 42, 61 (2d. Cir. 1983). Withrespect to the charge of conspiracy, the general rule in conspiracy casesis that the defendant is not entitled to obtain detailed informationabout the conspiracy in a bill of particulars. Murgas,967 F. Supp. at 702; Muyet, 945 F. Supp. at 599 (holding that thedefendants in a conspiracy case may not obtain the ". . . `whens',`wheres', and `with whoms' . . ." in a bill of particulars).

Furthermore, the government represents that it has met with thedefendant on several occasions, during which times it has outlined thegovernment's evidence against the defendant, specific acts that thegovernment believes are relevant to defendant's liability, and explainedtheir theory of the case. (Government's Omnibus Resp. at 8, fn 1.) Inaddition, during discovery, evidence such as the supporting affidavit tothe search warrant, which includes detailed information of the allegedillegal acts which the government has charged, has already been providedto the defendant. Thus, the Court concludes that the defendant hasreceived sufficient information in the indictment and discovery materialsto allowPage 9him to prepare adequately for trial and conduct his defense.United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984). Torequire the government to provide further details would unfairly restrictthe government's trial preparation. For these reasons, the defendant'sMotion for a Bill of Particulars [Doc. No. 49] is denied.

II. Motion to Suppress Evidence and Statements

Defendant next moves this court to suppress all evidence seized duringthe search of his residence, 1504 Bradford drive. Defendant argues thatthe state search warrant issued was defective because the informationprovided was stale, and was insufficient to establish probable cause toissue a valid search warrant. Based on the premise that the originalsearch was unlawful, the defendant also moves to suppress all statementshe made to officers during their search, and all evidence seized as aresult of the written consent defendant gave to the searching officers.

A. Validity of Search Warrant

Defendant argues that the search warrant issued giving police theauthority to search his residence at 1504 BradfordPage 10Drive was defective because the information provided in theaffidavit was stale, and because there was insufficient evidence toestablish probable cause. The Fourth Amendment to the United StatesConstitution provides that "no Warrants shall issue, but upon probablecause, supported by Oath or affirmation, and particularly describing theplace to be searched, and the persons or things to be seized." U.S.Const, amend. IV; see also Fed.R.Crim.P. 41. In a seminal case, theSupreme Court adopted a totality of the circumstances test fordetermining whether probable cause exists, asserting that "[t]he task ofthe issuing magistrate is simply to make a practical, common-sensedecision whether, given all the circumstances set forth in the affidavitbefore him, including the `veracity' and `basis of knowledge' of personssupplying hearsay information, there is a fair probability thatcontraband or evidence of a crime will be found in a particular place."Illinois v. Gates, 462 U.S. 213, 238-239 (1983)(quotingJones v. United States, 362 U.S. 257, 271 (1960)). Defendantfirst claims that because the illegal conduct alleged in the affidavit insupport of the search warrant had seized approximately 16 months prior,the information had become stale, and was therefore insufficient toestablish probable cause. To justify a search, probable cause must becurrent andPage 11not rest on facts which existed in the past, unless there is reasonto believe those facts are still in existence. United States v.Beltempo, 675 F.2d 472, 477 (2d Cir. 1982), 3 C. Wright, FEDERALPRACTICE AND PROCEDURE § 662 at 23 (1969). In essence, informationproffered in support of a search warrant application is stale when it "isso old that it casts doubt on whether the fruits or evidence of a crimewill still be found at a particular location." United States v.Lamb, 945 F. Supp. 441, 460 (S.D.N.Y. 1996). In deciding whetherinformation in a warrant application is stale, the Second Circuit hasidentified several determining factors, including "the currency andspecificity of the information, the reliability of the sources ofinformation, the nature of the alleged criminal activity, the duration ofthat activity in the location in question and the nature of the evidencebeing sought." United States v. Paul, 692 F. Supp. 186, 191(S.D.N.Y. 1988) (citing United States v. McGrath, 622 F.2d 36,42 (2d Cir. 1980)).

In the case before us, the affidavit in support of the search warrantalleges illegal child pornographic activity that occurred for a period ofapproximately two to three years, but had seized sixteen months prior tothe application for the warrant. While there was a recognizablysignificant time lapse between the alleged conduct and the search warrantapplication,Page 12the nature of the alleged criminal activity justifies themagistrate's finding that there was probable cause to believe thatevidence of the offenses would be located at defendant's residence at thetime the search warrant was requested.

In child pornography cases, courts have repeatedly recognized thatcollectors of child pornography tend to retain their materials.United States v. Cox, 190 F. Supp.2d 330, 333 (S.D.N.Y. 2002).As one of our sister courts noted: The observation that images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes is supported by common sense and the cases. Since the materials are illegal to distribute and possess, initial collection is difficult. Having succeeded in obtaining images, collectors are unlikely to quickly destroy them. Because of their illegality and the imprimatur of severe social stigma such images carry, collectors will want to secret them in secure places, like a private residence. This proposition is not novel in either state or federal courts: pedophiles, preferential child molesters, and child pornography collectors maintain their materials for significant periods of time.United States v. Lamb, 945 F. Supp. 441, 460 (N.D.N.Y.1996); see also United States v. Ricciardelli,998 F.2d 8, 12, n. 4 (1st Cir. 1993) ("history teaches that collectors [ofchild pornography] prefer not to dispose of their dross, typicallyretaining obscene materials for years"); United States v. Hay,231 F.3d 630, 633-36 (9th Cir. 2000), cert. denied, 534 U.S. 858(2001) (probable cause to believe child pornography would bePage 13found in defendant's computer despite passage of six months fromsingle transmission of nineteen computer graphic files containing childpornography to defendant's computer because affidavit explained thatcollectors of child pornography rarely if ever dispose of it).

As in the cases cited above, the warrant application submitted tosearch defendant's home contained statements regarding the retentionpractices of those who create or distribute pornographic videos, therebymooting any possible issue that the information was stale. This courtrejects defendant's argument that there was insufficient information inthe affidavit for a judge to reasonably apply the line of authoritysupporting the proposition that those involved in sexually deviantbehavior tend to keep their materials for a significant time. Defendantsomehow finds solice in the fact that at the time of the defendant'ssexual encounters with Jane Doe, she was thirteen years old, and he istherefore not a pedophile. Pedophilia, however, is not a requisitefinding to determine that one involved in child pornography is likely tohave retained the materials connected with the activity. Further,defendant's argument that the standard regarding retention practices ofchild pornographers should not have been invoked in his probable causedetermination because he did notPage 14have a prior criminal history of child pornography is withoutmerit. The affidavit provided evidence that the defendant was involved inthe child pornography industry, as defined by Title 18 United States Code§§ 2251(a)and (d), § 2252(a(5), § 2256(8)(A) and 2.Therefore, the officer's were not required to show a prior history ofchild pornographic activities, and the magistrate was reasonable in herconsideration of the line of cases that have found that childpornographers retain materials for significant lengths of time.

Further, "[w]here the activity is of a continuing nature a greater timelapse is justified than where the offense is an isolated one."Beltempo, 675 F.2d at 477. In the present case, the illegalsexual conduct attested to by the affiant occurred over a period of atleast two years, possibly three. In addition, Jane Doe, the victim ofdefendant's alleged illegal activity, stated that three to four monthsprior to making this statement, she had seen a video tape in which shewas involved in sexually explicit acts. She further stated that shebelieved her mother had given the tapes back to the defendant at thattime, allowing for a reasonable inference that the defendant was stillinvolved in child pornographic activity. While the production of childpornography with respect to Jane Doe had ceased, there was more recentevidencePage 15suggesting that defendant still possessed the pornographicmaterials, and was therefore still in violation of the law. In sum, thestatement by Jane Doe that the defendant had sexually assaulted hernumerous times, that the actions had been taped with his video camera,and that her mother had recently returned such materials to thedefendant, together with the officer's statements regarding childpornographer's retention practices, provided enough probable cause for areasonable person to believe these materials may be at his home, andissue a search warrant on that basis.

Defendant also argues that the affidavit is conjectural, and devoid ofany direct knowledge by Jane Doe regarding the location of the videotapes, since she had never been to his new home. The affidavit included astatement by Jane Doe stating "I think this tape is at Bernie's house inDanbury now because my mom gave it back to him. It was his video camerashe used to make the video tape." (Defendant's Exhibit A. at 3e) Contraryto defendant's claim, the fact that the alleged illegal conduct occurredin defendant's prior residence, and that Jane Doe had never been todefendant's new home, does not negate the determination that there was afair probability that evidence of the crimes would be found indefendant's current residence. "There is no constitutional requirementthat anPage 16affidavit must attest to a personal observation of criminalactivity at the premises to be searched . . . The critical issue iswhether there was probable cause to believe that the evidence was thenlocated at the premises named in the warrant." United States v.McCall, 740 F.2d 1331, 1337 (4th Cir. 1984) (citing UnitedStates v. Rahn, 511 F.2d 290 (10th Cir. 1975); United States v.Mulligan, 488 F.2d 732 (9th Cir. 1973)). It was reasonable for theissuing judge to conclude that because the defendant sold his oldresidence and purchased and moved into another, he took his personalbelongings with him, including evidence of his pornographic conduct.While this court does not generally approve of searches conductedpursuant to a warrant issued many months after criminal activity hasoccurred, or condone searching places where no criminal activity isalleged to have occurred, the unique facts of this case provided probablecause to believe defendant still possessed the illegal materials.

Even if the information submitted in support of the search warrant wasstale or inadequate to constitute probable cause, the good faithexception to the exclusionary rule is applicable to this case.United States v. Leon, 468 U.S. 897, 922 (1984). "Under Leon,evidence is admissible even if it is obtained as the result of a warrantthat is wanting in probable cause or isPage 17technically defective so long as the authorities have relied inobjective good faith on a facially valid warrant.'" United States v.Moore, 742 F. Supp. 727, 737 (S.D.N.Y. 1990)(quoting UnitedStates v. Sheppard, 901 F.2d 1230, 1234 (5th Cir. 1990)). This courtfinds that it was an objectively reasonable law enforcement activity toseek and expedite a search warrant based on information that a teenagegirl had been subject to sexual molestation over a lengthy period oftime, which was videotaped, despite the lapse of time that had occurred.Further, there is no indication in this record of the presence of any ofthe four circumstances that the Leon court identified, wherereliance on a warrant would not be objectively reasonable. 468 U.S. at923. The Danbury Police Officers did not deliberately or recklesslymislead the magistrate judge in the warrant application, there was noevidence that the magistrate judge abdicated her duty as a neutral factfinder, the warrant was sufficiently particular, and the affidavit wasnot so lacking in probable cause that reliance on it would be objectivelyunreasonable. See id. Therefore, even if theinformation the warrant was issued upon was found to be insufficient toestablish probable cause, the officer's good faith reliance on thewarrant was reasonable, and therefore no fourth amendment violation canbe established.Page 18

B. Suppression of Evidence Seized with Defendant's Consent& Defendant's Statements Made During Search

Defendant also moves this court to suppress statements he made toofficers during the search of his home, and to suppress the evidenceseized pursuant to the written consent defendant gave the officers whileconducting the search. Defendant's main argument in support of suchmotion is that the statements he made to the police, and his consent tosearch the computer equipment in his home, were the direct product of theoriginal search, which was tainted by an invalid search warrant.Defendant does not dispute that the statements he made to the officerswere voluntary and spontaneous, or made without inquiry by lawenforcement officers. Because this court found that the search wasconducted pursuant to a valid search warrant, and executed in good faith,this court also rejects defendant's claim that the statements he madeduring the search, and the items seized based on his written consent,were tainted in any way.

Defendant also claims that even if defendant's consent is determined tobe valid, the scope of the search was broader than the consent defendantgave, and defendant was not apprised of his rights before he signed theconsent form. Contrary toPage 19defendant's assertion, the written consent form defendant signedacknowledged: Bernabe Diaz, having been informed of my Constitutional Right not to have a search and seizure made without a search warrant and my right to refuse to such a search and seizure, do hereby consent to allow members of the [Danbury Police Department and FBI] conduct a complete search of my residence, place of business, garage and/or 2 Covenant Tech Computers, and 1 Compaq Ser. No. 6126FCDZA232 computer with all hard drives, hardware, media, etc. located at 1504 Bradford Drive, Danbury Connecticut and all appurtenances thereto. (Defendant's Exhibit C).Therefore, defendant clearly was informed of his right to deny thesearch, and consented to a "complete" search of his residence, despitehis contention that the form was only intended to search the computersand should not have been used "to justify the entire search of theresidence." (Defendant's Reply Mem. In Support of Motions to Suppress at9.) Both the original search warrant and the written consent signed bydefendant specifically allowed a complete search of defendant'sresidence. Therefore, This argument lacks merit.

Finally, defendant filed no affidavit reciting any supporting facts tohis assertion that the events in question occurred differently thenattested to in the Police Report. The Second Circuit has made very clearthat a defendant seeking to suppress evidence bears the burden ofdemonstrating disputedPage 20issues of fact that would justify an evidentiary hearing.See United States v. Culotta, 413 F.2d 1343, 1345 (2dCir. 1969). The required showing must be made by an affidavit from anindividual with personal knowledge of the underlying facts. SeeUnited States v. Ruggiero, 824 F. Supp. 379, 393-94 (S.D.N.Y.1993)(finding a motion to suppress not supported by the proper affidavitmay be denied without a hearing). Because defendant has provided no suchaffidavit and there is no basis for suppressing such evidence on theexisting record, defendant's request for oral argument is denied.

CONCLUSION

For the preceding reasons, defendant's Motion For a Bill of Particulars[Doc. No. 49], Motion to Suppress Evidence [Doc. No. 47] and Motion toSuppress Statements [Doc. No. 51] are DENIED.

SO ORDERED.

1. The government plans to use such statements at trial as evidenceof defendant's guilt, because of the alleged fact that at the time thestatement was made, defendant had not been informed of the specificnature of the evidence they were seeking.

Omnibus Ruling on Defendant's Motion for Bill of Particulars and Motions to Suppress INTRODUCTION

Defendant Bernabe Diaz (hereinafter "defendant" or "Diaz") moves for abill of particulars, and to suppress evidence obtained as a result of asearch and seizure of his home, as well as statements defendant made tolaw enforcement officials during such search [Doc. Nos. 47, 49 and 51].For the reasons set forth below, the defendant's pre-trial motions aredenied.

BACKGROUND

On March 31, 2003, a minor victim (hereinafter "Jane Doe" or "Jane"),informed the Danbury Police Department that she had been sexuallyassaulted by the defendant and another individual from the time she wasthirteen, through December 2001 or January 2002, when she was sixteen.Jane Doe advised the police department that the sexual encountersoccurred at her home, as well as at the defendant's former residence, 72CedarPage 2Drive in Danbury, Connecticut, and that some of these incidents hadbeen videotaped. Diaz, the defendant, is a former police officer with theDanbury Police Department, and a lawyer whose practice includes criminaldefense work.

On April 3, 2003, the Danbury Police Department obtained a warrant tosearch the defendant's current residence, 1504 Bradford Drive. Thedefendant had moved from his Cedar Drive residence, where the allegedillegal acts took place, to 1504 Bradford Drive, Danbury, Connecticut inJune 2002. The warrant application included an affidavit by DetectiveMark Williams and Detective Rachel Halace, members of Danbury PoliceDepartment's Youth Bureau. The affidavit included statements made by JaneDoe and Jane Doe's father, attesting to the fact that the defendant hadsexually assaulted Jane Doe on various occasions at his previous home onCedar Drive, and that video tapes had been made of sexual activityinvolving Jane and another person. Jane Doe reported that the defendantowned the video camera, and that she had last viewed one of the videosshe was in at her own home around December 2002 or January 2003. She alsostated that she believed that her mother had since given the video backto the defendant.

The warrant application also included statements by the affiants,Detective Williams and Halace, based on theirPage 3training and experience, explaining that persons who engage insexual activity using pornographic videos and other sexual aids, andperson who engage in sexual activity with minors, tend to keep possessionof these items for extended periods of time and are unlikely to destroythem. (Defense Exhibit A at 3f) The warrant, which was executed on April3, 2003, authorized the search of 1504 Bradford Drive, and the seizureof: Pornographic magazines, pornographic videos, videotape recorders and cameras, DVD's, DVD players, any sexually explicit materials, and photographs with juveniles in them, names and phone lists of juveniles, vibrators, dildos and any other objects used for sexual gratification, a money clip with an Indian on it, and information relating to the receipt of dissemination of any and all photographs or other visual reproductions relating to child pornography, including minors engaged in sexual activities.The defendant was not at home when the search began, however, hewas advised that the warrant was being executed and thereaftervoluntarily went to his home. At approximately 12:10, when the defendantarrived at his residence, but before he entered his home, he was providedwith a copy of the search warrant. He called his attorney on his cellphone from the front lawn, and then entered his residence. While inside,he made several statements to the searching officers regarding theevidence they were looking for, including stating that thePage 4officers would not find "a video of me and [Jane]."1 Thedefendant then gave the officers his cell phone so they could call himwhen they were finished with the search, and left the premises.

While searching defendant's home, the officers located numerouscomputers and computer media equipment, which led the officers to callthe FBI for assistance. After receiving FBI approval, a Danbury policeofficer called the defendant on his cell phone and ask for his consent tosearch the computers and related equipment. Defendant consented to thesearch over the phone, and, at the request of the officer, returned tohis home in order to execute a written consent form. The form thedefendant signed states that:

I Bernabe Diaz, having been informed of my Constitutional Right not to have a search and seizure made without a search warrant and my right to refuse to such a search and seizure, do hereby consent to allow members of the [Danbury Police Department and FBI] conduct a complete search of my residence, place of business, garage and/or 2 Covenant Tech Computers, and 1 Compaq Ser. No. 6126FCDZA232 computer with all hard drives, hardware, media, etc. located at 1504 Bradford Drive, Danbury Connecticut and all appurtenances thereto. These police officers are authorized to take from the aforesaid location such materials or other property as they may desire, andPage 5 that these items may be brought to a Forensic Laboratory for examination. This written permission is being given by me to the above named members of the above named agencies voluntarily and without duress, threats or promises of any kind.

After defendant left his home for the second time, FBI agentsarrived at the residence, and, after being briefed on the facts of thecriminal investigation, decided to participate. As the search continued,the officers hooked up a digital video camera to the television and foundpornographic footage involving a minor performing sexual acts. This videowas determined to be direct evidence of child pornography, and theinvestigative team decided they had probable cause to arrest Diaz. He waseventually arrested upon his return to his residence.

The following day, on April 4 2003, A federal search warrant wasobtained from Magistrate Judge Holly B. Fitzsimmons, for seizure of theitems that the defendant had consented to being seized and that werealready in FBI custody. A forensic examination of the materials occurredthereafter, locating images of child pornography on disks and harddrives, and identifying internet activity by the defendant on childpornographic websites. The government intends to introduce the aboveevidence at trial.

Legal Analysis

I. Motion for Bill of ParticularsPage 6

The defendant moves this court to order the government to provide abill of particulars specifying as to count one and two (1) the specificdates and locations of the alleged unlawful activity, (2)the nature andmeans of interstate commerce alleged to be used by the defendant totransport the materials in question and (3) with respect to theconspiracy count, the date and location where said conspiracy wasallegedly formed, the date and location of the overt acts alleged, andthe date and location of the original occurrence of the principaloffenses charged. (Def.'s Mot. for Bill of Particulars at 1-2).

A bill of particulars is required only when the charges set forth inthe indictment are so general that they fail to inform the defendant ofthe specific acts of which he is accused. United States v.Torres, 901 F.2d 205, 234 (2d Cir.), cert. denied,498 U.S. 906, 111 S.Ct. 273 (1990). A defendant must possess informationspecific enough to enable him to prepare an adequate defense, to preventsurprise at trial, and to allow him to plead double jeopardy if that becomesnecessary at a later time. United States v. Murgas,967 F. Supp. 695, 702 (N.D.N.Y. 1997).

In determining whether the defendant has received sufficientinformation to allow him to prepare for trial, aPage 7court should consider any information obtained by the defendantthrough discovery, as well as that contained within the indictment.United States v. Muyet, 945 F. Supp. 586, 599 (S.D.N.Y. 1996).The government is not required to reveal to a defendant all of theevidence it will produce at trial. United States v. Feola,651 F. Supp. 1068, 1133 (S.D.N.Y. 1987), aff'd, 875 F.2d 857 (2dCir.), cert. denied, 493 U.S. 834, 110 S.Ct. 107 (1989).Indeed, because a bill of particulars serves to restrict how thegovernment may present its case at trial, the question is not whether theinformation sought would be beneficial to the defendant, but whether itis necessary for his defense. United States v. Young & Rubicam,Inc., 741 F. Supp. 334, 349 (D. Conn. 1990).

In the present case, the defendant asks for the exact dates andspecific acts the government alleges he performed, and the precise meansby which the pornographic materials were transported in interstatecommerce. These details lie outside the range of information to which thedefendant is entitled. A bill of particulars may not be used as a tool toget an advance view of the government's evidentiary theory.Torres, 901 F.2d at 234. Taking into consideration both theindictment and materials the defendant has received in discovery, theCourt finds that Diaz has been adequately informed of the allegationsPage 8against him. The indictment tracks the statutory language of theoffenses charged and sufficiently apprises the defendant of the nature ofthe accusation against him, thus satisfying Fed. Rule Grim. P. 7(c)(1).United States v. Bagaric, 706 F.2d 42, 61 (2d. Cir. 1983). Withrespect to the charge of conspiracy, the general rule in conspiracy casesis that the defendant is not entitled to obtain detailed informationabout the conspiracy in a bill of particulars. Murgas,967 F. Supp. at 702; Muyet, 945 F. Supp. at 599 (holding that thedefendants in a conspiracy case may not obtain the ". . . `whens',`wheres', and `with whoms' . . ." in a bill of particulars).

Furthermore, the government represents that it has met with thedefendant on several occasions, during which times it has outlined thegovernment's evidence against the defendant, specific acts that thegovernment believes are relevant to defendant's liability, and explainedtheir theory of the case. (Government's Omnibus Resp. at 8, fn 1.) Inaddition, during discovery, evidence such as the supporting affidavit tothe search warrant, which includes detailed information of the allegedillegal acts which the government has charged, has already been providedto the defendant. Thus, the Court concludes that the defendant hasreceived sufficient information in the indictment and discovery materialsto allowPage 9him to prepare adequately for trial and conduct his defense.United States v. Panza, 750 F.2d 1141, 1148 (2d Cir. 1984). Torequire the government to provide further details would unfairly restrictthe government's trial preparation. For these reasons, the defendant'sMotion for a Bill of Particulars [Doc. No. 49] is denied.

II. Motion to Suppress Evidence and Statements

Defendant next moves this court to suppress all evidence seized duringthe search of his residence, 1504 Bradford drive. Defendant argues thatthe state search warrant issued was defective because the informationprovided was stale, and was insufficient to establish probable cause toissue a valid search warrant. Based on the premise that the originalsearch was unlawful, the defendant also moves to suppress all statementshe made to officers during their search, and all evidence seized as aresult of the written consent defendant gave to the searching officers.

A. Validity of Search Warrant

Defendant argues that the search warrant issued giving police theauthority to search his residence at 1504 BradfordPage 10Drive was defective because the information provided in theaffidavit was stale, and because there was insufficient evidence toestablish probable cause. The Fourth Amendment to the United StatesConstitution provides that "no Warrants shall issue, but upon probablecause, supported by Oath or affirmation, and particularly describing theplace to be searched, and the persons or things to be seized." U.S.Const, amend. IV; see also Fed.R.Crim.P. 41. In a seminal case, theSupreme Court adopted a totality of the circumstances test fordetermining whether probable cause exists, asserting that "[t]he task ofthe issuing magistrate is simply to make a practical, common-sensedecision whether, given all the circumstances set forth in the affidavitbefore him, including the `veracity' and `basis of knowledge' of personssupplying hearsay information, there is a fair probability thatcontraband or evidence of a crime will be found in a particular place."Illinois v. Gates, 462 U.S. 213, 238-239 (1983)(quotingJones v. United States, 362 U.S. 257, 271 (1960)). Defendantfirst claims that because the illegal conduct alleged in the affidavit insupport of the search warrant had seized approximately 16 months prior,the information had become stale, and was therefore insufficient toestablish probable cause. To justify a search, probable cause must becurrent andPage 11not rest on facts which existed in the past, unless there is reasonto believe those facts are still in existence. United States v.Beltempo, 675 F.2d 472, 477 (2d Cir. 1982), 3 C. Wright, FEDERALPRACTICE AND PROCEDURE § 662 at 23 (1969). In essence, informationproffered in support of a search warrant application is stale when it "isso old that it casts doubt on whether the fruits or evidence of a crimewill still be found at a particular location." United States v.Lamb, 945 F. Supp. 441, 460 (S.D.N.Y. 1996). In deciding whetherinformation in a warrant application is stale, the Second Circuit hasidentified several determining factors, including "the currency andspecificity of the information, the reliability of the sources ofinformation, the nature of the alleged criminal activity, the duration ofthat activity in the location in question and the nature of the evidencebeing sought." United States v. Paul, 692 F. Supp. 186, 191(S.D.N.Y. 1988) (citing United States v. McGrath, 622 F.2d 36,42 (2d Cir. 1980)).

In the case before us, the affidavit in support of the search warrantalleges illegal child pornographic activity that occurred for a period ofapproximately two to three years, but had seized sixteen months prior tothe application for the warrant. While there was a recognizablysignificant time lapse between the alleged conduct and the search warrantapplication,Page 12the nature of the alleged criminal activity justifies themagistrate's finding that there was probable cause to believe thatevidence of the offenses would be located at defendant's residence at thetime the search warrant was requested.

In child pornography cases, courts have repeatedly recognized thatcollectors of child pornography tend to retain their materials.United States v. Cox, 190 F. Supp.2d 330, 333 (S.D.N.Y. 2002).As one of our sister courts noted: The observation that images of child pornography are likely to be hoarded by persons interested in those materials in the privacy of their homes is supported by common sense and the cases. Since the materials are illegal to distribute and possess, initial collection is difficult. Having succeeded in obtaining images, collectors are unlikely to quickly destroy them. Because of their illegality and the imprimatur of severe social stigma such images carry, collectors will want to secret them in secure places, like a private residence. This proposition is not novel in either state or federal courts: pedophiles, preferential child molesters, and child pornography collectors maintain their materials for significant periods of time.United States v. Lamb, 945 F. Supp. 441, 460 (N.D.N.Y.1996); see also United States v. Ricciardelli,998 F.2d 8, 12, n. 4 (1st Cir. 1993) ("history teaches that collectors [ofchild pornography] prefer not to dispose of their dross, typicallyretaining obscene materials for years"); United States v. Hay,231 F.3d 630, 633-36 (9th Cir. 2000), cert. denied, 534 U.S. 858(2001) (probable cause to believe child pornography would bePage 13found in defendant's computer despite passage of six months fromsingle transmission of nineteen computer graphic files containing childpornography to defendant's computer because affidavit explained thatcollectors of child pornography rarely if ever dispose of it).

As in the cases cited above, the warrant application submitted tosearch defendant's home contained statements regarding the retentionpractices of those who create or distribute pornographic videos, therebymooting any possible issue that the information was stale. This courtrejects defendant's argument that there was insufficient information inthe affidavit for a judge to reasonably apply the line of authoritysupporting the proposition that those involved in sexually deviantbehavior tend to keep their materials for a significant time. Defendantsomehow finds solice in the fact that at the time of the defendant'ssexual encounters with Jane Doe, she was thirteen years old, and he istherefore not a pedophile. Pedophilia, however, is not a requisitefinding to determine that one involved in child pornography is likely tohave retained the materials connected with the activity. Further,defendant's argument that the standard regarding retention practices ofchild pornographers should not have been invoked in his probable causedetermination because he did notPage 14have a prior criminal history of child pornography is withoutmerit. The affidavit provided evidence that the defendant was involved inthe child pornography industry, as defined by Title 18 United States Code§§ 2251(a)and (d), § 2252(a(5), § 2256(8)(A) and 2.Therefore, the officer's were not required to show a prior history ofchild pornographic activities, and the magistrate was reasonable in herconsideration of the line of cases that have found that childpornographers retain materials for significant lengths of time.

Further, "[w]here the activity is of a continuing nature a greater timelapse is justified than where the offense is an isolated one."Beltempo, 675 F.2d at 477. In the present case, the illegalsexual conduct attested to by the affiant occurred over a period of atleast two years, possibly three. In addition, Jane Doe, the victim ofdefendant's alleged illegal activity, stated that three to four monthsprior to making this statement, she had seen a video tape in which shewas involved in sexually explicit acts. She further stated that shebelieved her mother had given the tapes back to the defendant at thattime, allowing for a reasonable inference that the defendant was stillinvolved in child pornographic activity. While the production of childpornography with respect to Jane Doe had ceased, there was more recentevidencePage 15suggesting that defendant still possessed the pornographicmaterials, and was therefore still in violation of the law. In sum, thestatement by Jane Doe that the defendant had sexually assaulted hernumerous times, that the actions had been taped with his video camera,and that her mother had recently returned such materials to thedefendant, together with the officer's statements regarding childpornographer's retention practices, provided enough probable cause for areasonable person to believe these materials may be at his home, andissue a search warrant on that basis.

Defendant also argues that the affidavit is conjectural, and devoid ofany direct knowledge by Jane Doe regarding the location of the videotapes, since she had never been to his new home. The affidavit included astatement by Jane Doe stating "I think this tape is at Bernie's house inDanbury now because my mom gave it back to him. It was his video camerashe used to make the video tape." (Defendant's Exhibit A. at 3e) Contraryto defendant's claim, the fact that the alleged illegal conduct occurredin defendant's prior residence, and that Jane Doe had never been todefendant's new home, does not negate the determination that there was afair probability that evidence of the crimes would be found indefendant's current residence. "There is no constitutional requirementthat anPage 16affidavit must attest to a personal observation of criminalactivity at the premises to be searched . . . The critical issue iswhether there was probable cause to believe that the evidence was thenlocated at the premises named in the warrant." United States v.McCall, 740 F.2d 1331, 1337 (4th Cir. 1984) (citing UnitedStates v. Rahn, 511 F.2d 290 (10th Cir. 1975); United States v.Mulligan, 488 F.2d 732 (9th Cir. 1973)). It was reasonable for theissuing judge to conclude that because the defendant sold his oldresidence and purchased and moved into another, he took his personalbelongings with him, including evidence of his pornographic conduct.While this court does not generally approve of searches conductedpursuant to a warrant issued many months after criminal activity hasoccurred, or condone searching places where no criminal activity isalleged to have occurred, the unique facts of this case provided probablecause to believe defendant still possessed the illegal materials.

Even if the information submitted in support of the search warrant wasstale or inadequate to constitute probable cause, the good faithexception to the exclusionary rule is applicable to this case.United States v. Leon, 468 U.S. 897, 922 (1984). "Under Leon,evidence is admissible even if it is obtained as the result of a warrantthat is wanting in probable cause or isPage 17technically defective so long as the authorities have relied inobjective good faith on a facially valid warrant.'" United States v.Moore, 742 F. Supp. 727, 737 (S.D.N.Y. 1990)(quoting UnitedStates v. Sheppard, 901 F.2d 1230, 1234 (5th Cir. 1990)). This courtfinds that it was an objectively reasonable law enforcement activity toseek and expedite a search warrant based on information that a teenagegirl had been subject to sexual molestation over a lengthy period oftime, which was videotaped, despite the lapse of time that had occurred.Further, there is no indication in this record of the presence of any ofthe four circumstances that the Leon court identified, wherereliance on a warrant would not be objectively reasonable. 468 U.S. at923. The Danbury Police Officers did not deliberately or recklesslymislead the magistrate judge in the warrant application, there was noevidence that the magistrate judge abdicated her duty as a neutral factfinder, the warrant was sufficiently particular, and the affidavit wasnot so lacking in probable cause that reliance on it would be objectivelyunreasonable. See id. Therefore, even if theinformation the warrant was issued upon was found to be insufficient toestablish probable cause, the officer's good faith reliance on thewarrant was reasonable, and therefore no fourth amendment violation canbe established.Page 18

B. Suppression of Evidence Seized with Defendant's Consent& Defendant's Statements Made During Search

Defendant also moves this court to suppress statements he made toofficers during the search of his home, and to suppress the evidenceseized pursuant to the written consent defendant gave the officers whileconducting the search. Defendant's main argument in support of suchmotion is that the statements he made to the police, and his consent tosearch the computer equipment in his home, were the direct product of theoriginal search, which was tainted by an invalid search warrant.Defendant does not dispute that the statements he made to the officerswere voluntary and spontaneous, or made without inquiry by lawenforcement officers. Because this court found that the search wasconducted pursuant to a valid search warrant, and executed in good faith,this court also rejects defendant's claim that the statements he madeduring the search, and the items seized based on his written consent,were tainted in any way.

Defendant also claims that even if defendant's consent is determined tobe valid, the scope of the search was broader than the consent defendantgave, and defendant was not apprised of his rights before he signed theconsent form. Contrary toPage 19defendant's assertion, the written consent form defendant signedacknowledged: Bernabe Diaz, having been informed of my Constitutional Right not to have a search and seizure made without a search warrant and my right to refuse to such a search and seizure, do hereby consent to allow members of the [Danbury Police Department and FBI] conduct a complete search of my residence, place of business, garage and/or 2 Covenant Tech Computers, and 1 Compaq Ser. No. 6126FCDZA232 computer with all hard drives, hardware, media, etc. located at 1504 Bradford Drive, Danbury Connecticut and all appurtenances thereto. (Defendant's Exhibit C).Therefore, defendant clearly was informed of his right to deny thesearch, and consented to a "complete" search of his residence, despitehis contention that the form was only intended to search the computersand should not have been used "to justify the entire search of theresidence." (Defendant's Reply Mem. In Support of Motions to Suppress at9.) Both the original search warrant and the written consent signed bydefendant specifically allowed a complete search of defendant'sresidence. Therefore, This argument lacks merit.

Finally, defendant filed no affidavit reciting any supporting facts tohis assertion that the events in question occurred differently thenattested to in the Police Report. The Second Circuit has made very clearthat a defendant seeking to suppress evidence bears the burden ofdemonstrating disputedPage 20issues of fact that would justify an evidentiary hearing.See United States v. Culotta, 413 F.2d 1343, 1345 (2dCir. 1969). The required showing must be made by an affidavit from anindividual with personal knowledge of the underlying facts. SeeUnited States v. Ruggiero, 824 F. Supp. 379, 393-94 (S.D.N.Y.1993)(finding a motion to suppress not supported by the proper affidavitmay be denied without a hearing). Because defendant has provided no suchaffidavit and there is no basis for suppressing such evidence on theexisting record, defendant's request for oral argument is denied.

CONCLUSION

For the preceding reasons, defendant's Motion For a Bill of Particulars[Doc. No. 49], Motion to Suppress Evidence [Doc. No. 47] and Motion toSuppress Statements [Doc. No. 51] are DENIED.

SO ORDERED.

1. The government plans to use such statements at trial as evidenceof defendant's guilt, because of the alleged fact that at the time thestatement was made, defendant had not been informed of the specificnature of the evidence they were seeking.

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