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United States v. Morgan

United States District Court, E.D. Missouri, Eastern Division

March 3, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
DAMIEN MORGAN, Defendant.

MEMORANDUM

THOMAS C. MUMMERT, III, Magistrate Judge.

This matter is before the Court on a motion filed by Damien Morgan (Defendant) to suppress evidence and statements. [Doc. 29] An evidentiary hearing was held on February 24, 2015, at which Defendant, represented by Assistant Public Defender Beverly A. Beimdiek, and Assistant United States Attorney Erin Granger, representing the Government. The Government produced the testimony of St. Louis Police Detectives Michael Spreck and David Wilferd. Government Exhibits 1-5 and Defendant's Exhibit A were admitted into evidence.

Based upon the evidence adduced at the evidentiary hearing and the applicable law the undersigned finds and concludes as follows.

Findings of Fact

1. Detective Spreck has been a police officer for nineteen years and assigned to the Cyber Crimes Unit for seven years. He has been assigned to the Federal Bureau of Investigation (FBI) task force on violent crime since 2009 and has had extensive training in investigating child pornography. His supervisor, Detective Sergeant Robert Muffler has had extensive training in cyber searching for child pornography. Sgt. Muffler uses a software program that searches the BitTorrent network for Internet Protocol (IP) addresses that share child pornography through peer-to-peer file sharing. Each file has its own, unique hash value. On August 4, 2013, Sgt. Muffler identified a computer with an IP address of 71.8.195.128 containing thirteen child pornography files, willing to share those files. The files contained photographs and videos. Detective Spreck viewed three of those files and confirmed that they contained child pornography.

2. Detective Spreck subpoenaed Charter Communications regarding the location of the above IP address and on August 28, 2013, Charter provided the police with 3444 Delor, Apt. 2W, St. Louis, Missouri, and identified Defendant as being the person and address connected to that IP address. A police officer contacted the Postal Service and confirmed that Defendant received mail at that residence. On October 9, 2013, Ameren UE was also contacted and confirmed that the utilities at that address were billed to Defendant.

3. On October 18, 2013, Detective Spreck prepared and presented a search warrant (Gov. Ex. 1) to a Missouri Circuit Court Judge. Five days later, the search warrant was executed on Defendant's residence. The affidavit supporting the search warrant contained the relevant information set out in paragraphs one and two above, including a description of the three files Detective Spreck viewed and confirmed as containing child pornography. Prior to executing the search warrant, Detective Spreck learned that Defendant had an outstanding warrant for his arrest on an "No Fare Transit" charge. Police officers surveilled Defendant's residence early in the morning of October 23, 2013, from their unmarked police vehicle. At approximately 8:00 a.m., they observed an individual matching a photograph of Defendant in police possession. The officers stopped Defendant, identified themselves as police officers, and advised Defendant of the pending arrest warrant and of the police investigation relating to child pornography. Defendant identified himself and his address and was arrested on the pending warrant. No guns were drawn, and Defendant was not handcuffed at that time. Defendant was patted down pursuant to his arrest and for the safety of the police officers. The officer located Defendant's keys and seized an HTC cell phone. Defendant was given the Miranda [1] warnings and stated that he understood the warnings. He did not request an attorney, and no threats or promises were made by the police officers to induce his cooperation. Defendant agreed to talk and was cooperative and coherent. Defendant was provided the one-page search warrant to read and review.

4. Defendant advised the police officers that he had peer-to-peer programs on his computers, a Dell desktop, and an ASUS laptop. He stated that there was a computer in a brown bag near his door that belonged to a former girlfriend and not to him. Defendant denied having any child pornography. When asked by Detective Spreck for his keys to open the apartment door, Defendant voluntarily provided the keys to Spreck. The keys were eventually left in Defendant's apartment after the searches. The keys were not used to search a mailbox or a safe. Several other officers arrived at Defendant's residence to assist in the search, including two forensic examiners, Detective Bobby Baine and Sgt. Muffler. Defendant was handcuffed and placed in a patrol car during the search. When handcuffing Defendant, Detective Spreck observed tattoos on Defendant's wrists and arms. Detective Baine seized the two computers and all other items listed in the search warrant return. (Gov. Ex. 1.)

5. Defendant was transported to the police station by Detective Spreck. En route Defendant and Spreck talked about forensic examination of computers and the use of software by police. At the police station, Defendant was placed in a chair next to Detective Spreck's desk. Defendant's handcuffs were removed and Defendant removed his jacket or coat. Detective Spreck provided Defendant the Miranda warnings again. Again, Defendant understood the warnings. Defendant was not threatened or coerced by the police. Defendant was coherent and cooperative. Defendant asked to call his work and his sister and Detective Spreck provided Defendant with Defendant's seized HTC cell phone. The Detective obtained the name of "A.E.", Defendant's former girlfriend and the alleged owner of the computer in the bag at Defendant's residence, and another former girlfriend, "J.U." The police officers did not search Defendant's cell phone until they later received a search warrant for the search.

6. Detective Spreck was talking to Defendant during this time but did not consider the conversation an interrogation. Spreck was waiting for Detective Baine to conduct a preliminary examination of Defendant's computers. Detective Baine discovered thirteen photographs of child pornography on Defendant's computer, including a photograph included a child on a dark mattress being digitally sodomized by an adult hand. The adult arm contained tattoos on the left forearm. Children's clothing was also identifiable. The photographs were taken with a cell phone. Other bed covering was also identifiable. Detective Spreck asked Defendant to move his shirt sleeve so that he could take a photograph of Defendant's tattooed arm. Defendant agreed to do so. Defendant's shirt was not removed.

7. Defendant was advised of the child pornography located on his computer and the information about the tattooed arm and the sodomy. Defendant advised the detective that he met a woman named Michelle on Craig's List when investigating P-Mom or Pedo Mom which relates to women who are pedophiles with children. Defendant stated that he had sex with Michelle. Days later, Michelle took child pornographic photos of her five-year old daughter; Defendant created a slide show with these photographs. Defendant and Michelle had sex while watching the child pornography slide show. Defendant then became agitated and asked Detective Spreck about the possible charges he faced. Spreck advised Defendant of the possible charges. Defendant stated "I'm fucked" and stood up from the chair. Detective Spreck stuck his arm out to prevent Defendant from standing and pushed Defendant back into the chair. Defendant rose up with enough force that Spreck's wristwatch was pulled off of his arm and damaged. Neither Defendant nor Detective Spreck were injured. Defendant was advised of new charges of resisting arrest and assault. Detective Spreck had no further contact with Defendant pursuant to Police Department policy.

8. Detective Spreck planned to begin recording the interrogation of Defendant after Spreck learned of the sodomy photographs. The interrogation was to be audio-taped in an interrogation room. Defendant requested an attorney after the physical altercation and all questioning ceased. Defendant was transported to a holding cell.

9. Along with bed coverings, blankets, and other items, the detectives removed a colored mattress in Defendant's residence that was similar to the mattress depicted in the child pornography photographs. Detective Spreck prepared and presented a search warrant to a Missouri Associate Circuit Judge to search Defendant's residence a second time for these items and any other items relevant to the child pornography investigation. (Gov. Ex 2.) The search warrant was executed and signed on October 23, 2013, and items were seized as listed on the search warrant return.

10. The detective investigated Defendant's public Fecebook profile and observed photographs of J.U. and her daughter, who resembled the child in the child pornography photographs. Detective Spreck contacted J.U. and advised her of the investigation. J.U. advised the officer that her two daughters, C.U. and B.U., twelve and two years of age respectively, spent the night at Defendant's apartment on October 18, 2013, while J.U. completed some college requirements. Redacted photographs of B.U. were presented to J.U.; ...


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