United States District Court, N.D. Alabama, Northeastern Division
SUBSTITUTE MEMORANDUM OPINION 
MADELINE HUGHES HAIKALA UNITED STATES DISTRICT JUDGE
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).
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.
reasons discussed below, the Court overrules Mr.
Carlisle's objections and denies Mr. Carlisle's
motion to suppress. (Docs. 12, 21, 24, 32).
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
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
(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).
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).
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).
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).
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).
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, ...