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United States v. Johnson

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

October 12, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JERALD W. JOHNSON, Defendant.

          MEMORANDUM, AND REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Noelle C. Collins United States Magistrate Judge.

         This matter was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b).

         Defendant filed a Motion to Suppress Evidence (Doc. #24) and the government filed a Response (Doc. #25). Based on the evidence and testimony adduced, as well as a review of the transcript of the hearing held in this matter; and having had an opportunity to evaluate the credibility of the witnesses and to observe their behavior, the undersigned makes the following finds of fact and conclusions of law.

         FINDINGS OF FACT

         On August 27, 2015, Officer Casey Hill with the Washington, Missouri Police department in Franklin County was working as the school resource officer at Washington Middle School. A school counselor contacted Officer Hill with information about two female students and their recent encounter with defendant Jerald Johnson. One of the girls, who was identified by Officer Hill as “M.C., ”[1] had told a classmate that she participated in a recent photo shoot. This information was reported to adults at the school. When questioned about the circumstances, M.C. explained that the photo shoot was not sexual and did not include nudity, but she admitted to wearing lingerie-type outfits provided to her. She also reported to the school counselor that she was with her ten-year-old friend, “A.S., ” during the night of August 26th when all of this occurred. The girls were together apparently for a sleepover, and they were out walking to a local Sonic restaurant around dinnertime when they met a woman who purportedly took them to a location for a photo shoot.

         Officer Hill interviewed M.C., who initially told him that a woman named “Jenny” took her and her ten-year-old friend to a house. M.C. was 13 years old at the time, and Officer Hill thought M.C. looked her age and acted with the relative maturity of a girl of her age. He thought her voice and demeanor would have been very immature if she was thought to be 18 years old. Officer Hill acknowledged on cross examination that sometimes individuals can be wrong in estimating the age of another person, but with respect to M.C., her facial features and body composition were consistent with her age. Officer Hill had four years of experience with the police department at the time of these events.

         Officer Hill testified that M.C.'s account was confusing to follow about whether a man was present at the house where the photographs were taken. M.C. said that she was dressed in lingerie that was provided to her so that she could pose for the photographs. M.C.'s story began to change and “break down” and the girl eventually told Officer Hill that she and her ten-year-old friend were walking from a family friend's residence when they met a man named Jerry along the way, which eventually led to a photo shoot at Jerry's residence.[2] M.C. did not know Jerry prior to this encounter.

         M.C. reported that Jerry told the girls that he was photographer. The girls discussed with defendant the pictures he had hanging on his wall inside the house. Later, M.C. took off her clothing in Jerry's bathroom to change into the lingerie that he provided. She posed for photographs but she was unsure what photographs, if any, were taken of her ten-year-old friend who also changed clothes. Later, she said Jerry drove them near her home but he did not give them a ride all the way home.

         Officer Hill contacted M.C.'s father who came to the school. Officer Hill also contacted his supervisor, Det. Sgt. Steven Sitzes, who had more experience with such investigations. Det. Sgt. Sitzes responded to the school. They asked her about Jerry's house. M.C. said that she could identify the house, but she could not describe it. Thereafter, M.C. rode with her dad and they were followed by the police to identify the house. M.C. identified the house and she saw Jerry sitting on the front porch when they passed by. After obtaining this information from M.C., Det. Sitzes and Officer Hill approached defendant on his porch.

         Upon seeing officers approach, defendant made the spontaneous statement, “I guess you guys are here about those two girls from the other night.” Officer Hill confirmed that they were investigating the matter. Defendant said that he took photographs and he voluntarily showed officers two photographs of the girls that were on his cellular telephone. The photographs on defendant's cellular telephone were images of the girls fully clothed, appearing to be outside defendant's house.

         Defendant also told officers that he met the girls when they were walking by his house. He was working in his yard and they asked him for cigarettes. He said, “no” but he eventually offered them sodas to drink because it was hot outside. Officer Hill assumed that defendant did not offer cigarettes to the girls because he knew they were too young to smoke. Officer Hill asked whether defendant had other photographs of the girls. He said that he had recently developed some film that was inside his house.

         Defendant invited the two officers inside his residence, where he lived alone, to see his photographs. Officer Hill observed pictures hanging on a wall of young women in various stages of dress, including lingerie, bathing suits and some posed in the nude in defendant's living room. They entered defendant's basement and saw professional lighting, cameras, reflectors, backdrops and a table that was covered in what looked like velvet fabric. They also saw lingerie. Officers walked upstairs to a small “dark room” where defendant showed Det. Sgt. Sitzes additional photographs that he said he developed recently. Officer Hill saw photographic negatives but he did not enter the space.

         Defendant Johnson also showed officers digital photographs on his computer in a different room upstairs. He scrolled through images and showed officers a photograph of M.C. in which she posed on a table with one leg up, wearing red lingerie and lipstick, and blowing a kiss to the camera. Her breasts were “pushed out” and her back was arched. And Officer Hill saw a picture of ten-year-old A.S. wearing a wig and a knee-length dress. Officer Hill did not see all of the photographs on defendant's computer but he was sufficiently concerned that he asked for permission to search defendant's computer and files. The request to search occurred after the two officers walked back downstairs in defendant's dining room on the main floor. The tenor of the conversation was friendly.

         Defendant would not clarify either his refusal for a search or his permission for it. He went “back and forth” about whether he should or not. Officers did not threaten defendant and he was not under arrest. Miranda warnings were not given to defendant, nor did they attempt to interview him.

         During this time, defendant made statements about his encounter with the girls, including stating that after he took photographs of the girls, he ordered a pizza for the three of them to eat for dinner, and he and the two girls watched a movie inside his house before he dropped them off at the Sonic and he returned home at around 10:45 p.m. Defendant told officers that he knew the younger girl was “too young” and he asked M.C. for identification, which she did not produce so he did not photograph her in the nude when M.C. asked him to do so. Officers told defendant the ages of the two girls and defendant commented that he had never seen a 13 year old with a body like that.

         Officer Hill thought that the circumstances were strange, given that the girls looked underage to him and because M.C. and her friend were complete strangers to defendant prior to their walking onto his property and conversing with him. And defendant did not know the girls' full names, even after taking their photographs and serving them dinner. Officer Hill also wondered whether defendant had recording devices in the bathroom where the girls changed clothes, given that he had other cameras for photography in his basement. Officer Hill also thought it was a problem that defendant offered to delete the files after they asked for consent to search his electronic devices.

         Officers contacted Captain Charles Subke with the Franklin County Sheriff's Department, and they decided to seek a search warrant for defendant's residence.[3] See (Gov't Exs. 1-2). Capt. Subke testified at the hearing. He has 16 years of experience investigating child-related offenses such as child pornography and child enticement. He is the lead officer of the Franklin County Detective Bureau and a commander with Missouri's Internet Crimes Against Children (ICAC), which includes his oversight of several Missouri counties. The purpose of the ICAC association is for law enforcement agencies to work together in investigating sexual crimes against children so that they can draw on their collective expertise and share information.

         Sgt. Sitzes forwarded copies of M.C.'s photographs to Capt. Subke, who considered the poses to be provocative based on his training and experience. He considered it an uncommon circumstance for a 13-year-old girl and her 10-year-old friend to be at a house of a stranger where such photos would be taken. He noted at the hearing that defendant's offer to delete photographic images suggested that defendant has something he wanted to hide. He also knew that adults who engage in child enticement typically engage children between the ages of 10 and 14 via social media applications and through phone conversations to disrobe and take selfies to be forwarded to the adult. Rewards of food, like pizza, and offers to show a movie[4] are methods familiar to him that adults use to gain trust and establish a sense of comfort with the children they target. The poses of M.C. indicated to him the process of “grooming” that starts when an adult seeks to gain the trust of a child with awards in order to lure a child inside a house, and induce the child to put on certain clothes and to take photographs. In his experience, investigations of child pornography can include finding images of a girl or boy fully clothed, leading to images of the child in underwear, then genitalia displayed, and culminating in oral sex or sexual intercourse. Capt. Subke was also aware in his training and experience that child pornography often involves someone taking a series of pictures of the child in different settings including outdoor photographs that might otherwise be unremarkable.

         Officer Hill was the affiant for the August 27th state search warrant. Officer Hill left the residence and defendant stayed on site with Det. Sgt. Sitzes and Capt. Subke. Other officers responded to the house and there were approximately five officers present while they waited for Officer Hill to return. Defendant was on the front porch with Det. Sgt. Sitzes and Capt. Subke when Officer Hill returned to defendant's house with the search warrant. The search warrant affidavit described the qualifications of Officer Hill and the location to be searched with particularity, along with a description of the items to be seized and searched. Officers did not search the residence until Officer Hill returned with the search warrant. They stayed with defendant and officers escorted him to get a drink after he asked.

         At no time was defendant restrained. The atmosphere at defendant's residence of August 27th was calm. He was free to leave the property but officers told defendant that he could not be inside the residence unescorted for security reasons until the search ended. Defendant stayed on his front porch for most of the time during the search. Officers found a shotgun in the residence and they seized it. Capt. Subke testified that he took this measure because he has experience with subjects of child pornography investigations displaying aggressive, assaultive behavior or suicidal ideation. Defendant was not agitated. Thereafter, officers seized computer equipment, packages of small-sized lingerie and other items.

         On September 3, 2015, Capt. Subke sought a second state search warrant to conduct a forensic search of the electronic equipment seized on August 27th. Images and videos found led to the charges in this case.

         Capt. Subke noted, unlike traditional glamour shots, that defendant's photographs were full body poses and showed M.C. in tight lingerie that fit close to her genitals. He is aware that individuals who collect child pornography also often collect child erotica as companion material, based on his training and experience.

         Defendant Johnson also testified at the hearing. He described himself as a semi-professional, part-time photographer with a basement studio at his residence. He has photographed minors previously, but mainly in a family setting. He likes to talk to parents before ...


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