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United States v. Carlisle

United States District Court, N.D. Alabama, Northeastern Division

May 12, 2017

UNITED STATES OF AMERICA
v.
MARK ANTHONY CARLISLE, Defendant.

          SUBSTITUTE MEMORANDUM OPINION [1]

          MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE

         Defendant Mark Anthony Carlisle is charged in a four-count indictment with coercion or enticement of a minor in violation of 18 U.S.C. § 2422(b) and engaging in activities related to material constituting or containing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and 18 U.S.C. § 2252A(b)(2). (Doc. 1, pp. 1-3). On March 28, 2016, Mr. Carlisle filed a motion to suppress evidence that law enforcement seized in a search of Mr. Carlisle's residence. The search occurred on August 6, 2013. (Doc. 12). The magistrate judge assigned to the case held a hearing on Mr. Carlisle's motion on April 18, 2016. (See Doc. 23). On April 22, 2016, the magistrate judge entered a report and recommendation denying Mr. Carlisle's motion. (Doc. 21). Mr. Carlisle timely filed an objection to the magistrate's report and recommendation. (Doc. 24). The Court held a hearing to explore Mr. Carlisle's objections on October 26, 2016. (Docs. 29, 31).

         On March 13, 2017, the Court sustained in part Mr. Carlisle's objections to the magistrate judge's recommendation and granted Mr. Carlisle's motion to suppress. (Doc. 38). In particular, the Court found that the police seized Mr. Carlisle's computer pursuant to a valid search warrant but that the United States violated Mr. Carlisle's Fourth Amendment rights by waiting 441 days after law enforcement seized Mr. Carlisle's computer to perform a forensic analysis on the computer's hard drive. (Doc. 38, p. 20). On April 3, 2017, the United States filed a motion in which the United States asked the Court to reconsider its ruling. (Doc. 39). The Court held a supplemental evidentiary hearing on May 2, 2017. (Doc. 46). Based on evidence that the United States presented at the supplemental hearing and on arguments that the United States made in its motion to reconsider, the Court withdraws its March 13 opinion and enters this substitute opinion.

         For the reasons discussed below, the Court overrules Mr. Carlisle's objections and denies Mr. Carlisle's motion to suppress. (Docs. 12, 21, 24, 32).

         I. BACKGROUND

         On July 31, 2013, a judge for the Circuit Court of Madison County, Alabama issued a search warrant for Mr. Carlisle's home, located at 426 Walnut Grove Road, New Market, Madison County, Alabama 35761. The warrant authorized local law enforcement officers to search for “computers, cellular telephones or computer-related storage devices found thereon, as further described in Attachment A and Attachment B.” (Doc. 25-1). Attachment A contains a photo of the residence located at 426 Walnut Grove Road, New Market, Alabama. (Doc. 25-1, p. 9). Attachment B contains a description of property to be seized and searched, including, but not limited to:

Any and all records, documents, journals, and materials pertaining to an electronic solicitation of [a] child by computer and any visual depiction of a minor engaging in sexually explicit conduct, child pornography, child erotica, a sexual interest in children, or sexual activity involving children.
Any and all records, documents, and materials that concern any internet accounts or any internet-related media.
Any and all software that may be utilized to create, receive, distribute, store, modify, conceal, or destroy any of the evidence sought.

(Attachment B - Doc. 25-1, p. 10). Attachment B also states that “[i]n the execution of this warrant, the agents may seize all computers and computer-related media to be searched later by a qualified examiner in a laboratory or other controlled environment.” (Doc. 25-1, p. 10).

         Detective Brendan Morgan of the Hoover Police Department executed the affidavit in support of the search warrant. (Doc. 25-1, p. 2). Paragraph 2 of Detective Morgan's affidavit states:

As will be shown, there is probable cause to believe that Mark Anthony Carlisle engaged in criminal conduct, ‘Electronic Solicitation of a Child by Computer' as defined in 13A-6-122 and ‘Possession and possession with intent to disseminate obscene matter containing visual depiction of persons under 17 years age' as defined in 13A-12-192 of the Code of Alabama, 1975, by means of communicating with a computer and a cellular telephone that is located at the aforementioned address.

(Doc. 25-1, p. 2).

         In his warrant affidavit, Detective Morgan described the background of the investigation into Mr. Carlisle. (Doc. 25-1, p. 5). Detective Morgan's affidavit states that on May 15, 2013, an undercover police detective made contact with Mr. Carlisle in response to an advertisement that Mr. Carlisle placed on Craigslist. (Doc. 25-1, p. 5). According to the warrant affidavit, Mr. Carlisle believed that he was communicating with a parent who was soliciting her minor female child, under age 12, and two minor cousins, a female under age 12 and a male under age 10. (Doc. 25-1, p. 5). Law enforcement traced the Craigslist advertisement to 426 Walnut Grove, New Market, Madison County, Alabama 35761-which is Mr. Carlisle's residence and the place where the search was executed. (Doc. 25-1, pp. 5-6). The warrant affidavit describes the substance of the on-line communications between Mr. Carlisle and the undercover agent. In the course of roughly ten separate communications between March 23, 2013 and July 6, 2013, Mr. Carlisle describes the sexual conduct he wished to engage in with the minor children. (Doc. 25-1, p. 6). Mr. Carlisle also forwarded a photo of his face and genitals to the undercover agent. (Doc. 25-1, p. 6).

         Detective Morgan's affidavit explains that based on his training and experience, “[t]hose who have demonstrated an interest or preference in sexual activity with children or in sexually explicit visual images depicting children are likely to keep secreted, but readily at hand, sexually explicit visual images depicting children.” (Doc. 25-1, pp. 7-8). The affidavit also explains that “[p]ersons trading in, receiving, distributing or possessing images or movies of child pornography often have copies of those files on their computer's hard drive or computer-related media." (Doc. 25-1, p. 7).

         On August 6, 2013, law enforcement executed the search warrant and seized numerous items from Mr. Carlisle's home, including a Gateway computer, two cell phones, a camera, and several thumb drives, floppy discs, and CDs. (Doc. 23, Defendant's Exhibit 2). On August 14, 2013, law enforcement made an image of the Gateway computer's hard drive. (Doc. 23, p. 18). An image is an exact copy of a computer hard drive. (Doc. 23, pp. 18-19). On August 16, 2013, the computer was placed in a property room at the Hoover Police Department; the computer is still there. (Doc. 23, p. 18). On July 29, 2014, Mr. Carlisle filed a motion in the Circuit Court of Jefferson County, Alabama in which Mr. Carlisle sought the results of the government's forensic examination of the property that the government seized from his home. (Doc. 32-2). In response to Mr. Carlisle's motion, the state district attorney's office inquired into the status of Mr. Carlisle's case. (See Doc. 47, p. 134).

         The Hoover Police Department did not complete its forensic analysis of the computer hard drive until October 15, 2014, more than one year after the computer was seized. (Doc. 23, p. 31; Doc. 23, Defendant's Exhibit 3). Testimony reflects that the agent who conducted the initial investigation of this case left the Hoover Police Department for other employment. (Doc. 23, p. 23; see also Doc. 47, p. 80). The agent's replacement, Detective Morgan, was the individual who would have been responsible for performing forensic analysis of the computer, but, in time, he also left his employment with the Hoover Police Department. (Doc. 23, p. 26). In the hearing before the magistrate judge, another officer involved in the case, Lieutenant Keith Czeskleba, testified that aside from personnel turnover, he could not account for the delay between the time the computer was seized and the forensic analysis of the computer was performed. (Doc. 23, pp. 26, 30). He stated that, after the officer to whom the case initially was assigned left the department, her cases “just sat idle.” (Doc. 23, ...


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