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United States v. Dallman

United States District Court, W.D. Missouri, Southern Division

October 12, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
MARK RICHARD DALLMAN, Defendant.

          REPORT & RECOMMENDATION OF U.S. MAGISTRATE JUDGE

          DAVID P. RUSH UNITED STATES MAGISTRATE JUDGE

         Pursuant to 28 U.S.C. § 636(b), the above-styled criminal action was referred to the undersigned for preliminary review. Defendant moves to suppress evidence and statements obtained from the search of his computer on September 5 and 12, 2013. (Doc. 76.) He argues that the search violated his Fourth Amendment rights because Deputy United States Marshal Michael Walker exceeded the scope of the search warrant obtained to search his computer. (Id.) The Government argues Deputy Walker searched the computer pursuant to two valid search warrants and that his actions are supported by case law. (Doc. 78.) On August 4, 2016, the undersigned held a hearing on the Motion. (See Doc. 88.) Defendant was present with his attorney, Kristin Jones, and the Government was represented by Assistant United States Attorney Patrick Carney. (See id.) During the hearing, the Court received evidence and heard testimony from Deputy United States Marshal Michael Walker; Detective Larry Roller of the Joplin, Missouri Police Department; and Tami Loehrs, a computer and forensics expert. After careful review of the evidence and for the reasons set forth below, it is hereby RECOMMENDED that Defendant's Motion, (Doc. 76), be GRANTED and that the evidence obtained as a result of the search of Defendant's computer on September 5, 2013 be SUPPRESSED.

         I. Findings of Fact[1]

         On August 22, 2013, Deputy Walker was notified that Defendant had been arrested by the Howell County Sheriff's Office. Defendant had allegedly been living in Missouri for over one year under the assumed name John Sanders. A records check determined that Defendant was a convicted sex offender and had not registered as required by law. On August 23, 2013, Deputy Walker went to West Plains, Missouri to interview Defendant and collect various forms of identification with the name John Sanders. Defendant was read his Miranda rights and subsequently admitted to obtaining a false identity through the internet.

         On September 5, 2013, Deputy Walker obtained a search warrant to search for evidence relevant to the identity theft and the failure to register as a sex offender. His affidavit supporting the search warrant stated that he believed evidence of those crimes would be on Defendant's computer, as well as evidence of Defendant's travel between May 2007 and August 23, 2013. In relevant part, that warrant provided the following items would be searched and seized:

1. All documents, records, materials, and items related to telephone bills/toll documents;
2. All documents, records, materials, and items related to travel records (including indicia of airline expenses, lodging receipts, car rentals, and other travel related expenses);
3. All documents, records, materials, and items related to charge card records;
4. All documents, records, materials, and items, in any electronic format or medium (including, but not limited to, e-mail messages, chat logs and electronic messages, other digital data files and web cache information) that concern online storage or other remote computer storage, including, but not limited to, software used to access such online storage or remote computer storage, user logs or archived data that show connection to such online storage or remote computer storage, and user logins and passwords for such online storage or remote computer storage related to any and all documents described above in items 1-3;
5. All documents, records, materials, and items related to electronic records of websites visited relating to travel, and residency;
6. All documents, records, materials, and items related to indicia of use and/or residency at 3731 South Glenstone, Lot 505, Springfield, Missouri, 11020 East State Highway 76, Forsyth Missouri, 18412 North Old highway 65, Omaha, Arkansas, or 4678 West Highway 160, West Plains, Missouri.
7. All documents, records, materials, and items related to electronic records, receipts, notes, correspondence, electronic mail, short message service messages, multi-media message service messages, weblogs, microblogs (i.e., Twitter, Identica, etc.), social websites (i.e., Facebook, My Space, etc.), ledgers, related to travel and residency; and,
8. All documents, records, materials, and items related to passwords, encryption keys, and other access devices that may be necessary to access the computer.

(Gov. Ex. 1.) The warrant did include the search and seizure of evidence of child pornography, and no such permission was sought ...


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