United States v. Church

232 F. Supp. 3d 831, 2017 U.S. Dist. LEXIS 8431, 2017 WL 282639
CourtDistrict Court, E.D. Virginia
DecidedJanuary 20, 2017
DocketCriminal No. 3:16cr92
StatusPublished

This text of 232 F. Supp. 3d 831 (United States v. Church) is published on Counsel Stack Legal Research, covering District Court, E.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Church, 232 F. Supp. 3d 831, 2017 U.S. Dist. LEXIS 8431, 2017 WL 282639 (E.D. Va. 2017).

Opinion

MEMORANDUM OPINION

Robert E. Payne, Senior United States District Judge

This matter is before the Court on Defendant Charles E. Church’s MOTION TO SUPPRESS EVIDENCE (“Def. Mot.”) (ECF No. 17) and the United States’ MOTION TO RECONSIDER (ECF No. 37). For the reasons set forth below, the Defendant’s Motion will be GRANTED, and the United States’ Motion will be DENIED.

BACKGROUND

A. Procedural History

In January of 2016, Church was indicted on two counts of Forcible Sodomy and one count of Rape in the Circuit Court of the City of Richmond. While the state case was pending, a criminal complaint (ECF No. 1) was filed in this Court and a federal warrant (ECF No. 5) was issued for Church’s arrest. Thereafter, the state charges against Church were nolle grossed, he was taken into federal custody, and he made his initial appearance (ECF No. 7). Church was indicted (ECF No. 13) on six counts of Receipt of Child Pornography in violation of 18 U.S.C. § 2252A(a)(2)(A), and two counts of Possession of Child Pornography in violation of 18 U.S.C. § 2252A(a)(5)(B)).

On August 12, 2016, Church filed this MOTION TO SUPPRESS EVIDENCE (“Def. Mot.”), seeking to suppress all evidence gathered from the seizure of his tablet and laptop computers, as well as all evidence from his Google e-mail account collected pursuant to the second warrant (Def. Mot. 1). The United States filed a response (“U.S. Resp.”), and Church filed a reply (“Def. Reply”) (ECF No. 19). An evidentiary hearing was held and, at the request of the Defendant,, the Court ordered supplemental briefing, keyed to the transcript of that hearing, addressing specific issues surrounding the nature of the consent given by Peesha Church, the Defendant’s spouse. Church then filed a supplemental brief (“Def. Supp.”) (ECF No. 30), the United States filed a response (“U.S. Supp. Resp.”) (ECF No. 31), and Church filed a reply (“Def. Supp. Reply”) (ECF No. 34).

On October 17, 2016, the Court issued a Memorandum Opinion (ECF No. 32) holding that the search warrant obtained and executed against Church on November 4, 2015 was invalid under Fourth Circuit precedent, and that the good faith exception to the warrant requirement, first articulated by the Supreme Court in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), did not apply. See United States v. Church, 2016 WL 6123235 (E.D. Va. Oct. 18, 2016). Pursuant to that opinion and the Court’s prior orders, further evidence and argument was heard on the consent issue at a second hearing (“Hrg. II”), after which a final supplemental round of briefing was ordered. The United States filed its brief (“U.S. Supp. II.”) (ECF No. 37) and included within it a MOTION TO RECONSIDER, asking the Court to revisit certain aspects of its prior Memorandum Opinion (ECF No. 32). Church filed a response (“Def. Supp. Resp.”) (ECF No. 38), and the United States filed a reply (“U.S. Supp. Reply”) (ECF No. 39). The motion is now ripe for decision.

B. Facts

On November 3, 2015, a minor female (“MV1”) reported to her family guardian that Church, a Police Officer for the City of Richmond, had sexually assaulted her at [835]*835his Richmond home sometime after 7:00 p.m. on the previous evening (Def. Mot. 1). Following this report, the family guardian contacted Richmond police, voluntarily turned over MVl’s cellular telephone to them, and transported MV1 to the Pediatric Emergency Room at Virginia Commonwealth University Medical Center, where she was examined and interviewed by a Forensic Nurse. (Hiner Aff. Attach. B ¶ 6). Following this examination, a physical evidence recovery kit (PERK) was delivered to Detective Steve Kendell of the Richmond Police Department (RPD). Id.

The following morning, November 4, 2015, MV1 was taken to the Child Advocacy Center and interviewed a second time by Ms. Brianna Valentino. (Hiner Aff. Attach. B ¶2) During that interview, MV1 told Valentino that she and her younger sibling (MV2) were in an upstairs bedroom preparing to go to sleep when Church exchanged several SMS (short message service) text messages with her. Id. at ¶ 2. In one message, Church queried MV1 whether MV2 was asleep. MV1 stated that, after she informed Church by text message that MV2 had fallen asleep, Church responded that he was coming upstairs, Id. MV1 told Valentino that she was led by Church into his bedroom, where upon Church undressed them both, digitally penetrated her vagina and anus, attempted to penetrate her vagina and anus with his penis, and forced her to perform oral sexual intercourse on him. Id. at ¶ 5. MV1 was also asked whether Church had ever sent or showed her pornographic images or videos, and MV1 stated that he had not. (Def. Mot. 2). Based on MVl’s statements to Valentino and the PERK from VCU Hospital, Richmond Police arrested Church at 1:30 p.m. for Forcible Sodomy of a Minor. (Hiner Aff. Attach. B ¶ 2, ¶ 8). As part of the arrest, Church’s cellular telephone was seized by the RPD and his apartment was secured.

While MV1 was being interviewed at the Child Advocacy Center, Richmond Police Detective Lieutenant Don Davenport contacted Kevin Hiner, a detective in the Computer Crimes Unit and a Task Force Officer assigned to the FBI’s Richmond Division Innocent Images Taskforce and Southern Virginia Internet Crimes Against Children Task Force. (Hiner Aff. Attach. B ¶ 2). Davenport informed Hiner of the burgeoning investigation into Church’s activities. Id. Hiner contacted Valentino and, after reviewing notes from her interview with MV1, requested and was given permission to examine MVl’s cellular telephone. The text messages described by MV1 were not discovered, but Hiner’s search revealed that text messages between MV1 and Church had been deleted. Id. at ¶ 7. Based on all the evidence that had then been acquired, Hiner prepared an affidavit for a warrant to search Church’s residence.

In the application for the warrant, Hiner summarized the aforementioned facts and asserted that, together, they “indicate[d] that on November 2, 2015 Charles Church utilized a cellular telephone to exchange SMS text messages with MV1 prior to the sexual assault.” (Hiner Aff. Attach. B 512). Based on the this evidence, Hiner concluded “that probable cause exists that evidence pertaining [sic] the forcible sodomy of MV1 is being stored on a cellular telephone or other device capable of storing digital data.” Id. Consistent with this conclusion, Hiner’s warrant application identified Forcible Sodomy (Va. Code Ann. § 18.2-67.1) as the offense in relation to which a search was requested. Id. at ¶ 1. Additionally, however, Hiner requested permission to search for evidence of the Possession, Reproduction, Distribution, and Facilitation of Child Pornography (Va. Code Ann. § 18.2-374.1) (“Child Pornography”). Id.

[836]*836In his attachment outlining the “things or persons to be searched,” Hiner did not list sheets, towels, bed linens, or any other form of physical evidence that might be associated with the crime of Forcible Sodomy. Instead, he requested authorization to search and seize, inter alia,

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Bluebook (online)
232 F. Supp. 3d 831, 2017 U.S. Dist. LEXIS 8431, 2017 WL 282639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-church-vaed-2017.