United States v. Hodivsky

          ORDER DENYING MOTION TO SUPPRESS (DOC. 37)

          KRISTI K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Taras Hodivsky, Jr.'s motion to suppress and the Government's response in opposition. After a careful review of the briefs, and with the benefit of a hearing on the motion, the Hodivsky's motion to suppress (Doc. 37) is DENIED for reasons stated on the record at the end of the hearing. Below, the Court provides a written summary of the ruling.

         I. BACKGROUND

         A superseding indictment was filed against Hodivsky charging him with three counts: the making, printing, and publishing of notices and advertisements seeking or offering to receive child pornography in violation of 18 U.S.C. § 2251(d) (Count 1); distribution and attempted distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2) and (b) (Count 2); and the possession of material which contains an image of child pornography that had been shipped or transported using any means and facility of interstate and foreign commerce and was produced using materials that had affected interstate and foreign commerce in violation of 18 U.S.C. § 2252A(a)(5)(B) (Count 3). (Doc. 23). Hodivsky entered a plea of not guilty. (Doc. 28).

         Hodivsky has moved to suppress evidence discovered as a result of a search of his cell phone, a Galaxy S9. (Doc. 37). Two warrants were applied for and issued in connection with the cell phone. The first application is dated January 22, 2019. (Suppression Hearing, Defendant's Exhibit 1). It applied for a search warrant to seize “digital devices such as phones, computers, digital storage devices, such as sd cards or micro sd cards that could contain pornographic images . . . .” Baldwin County District Judge William E. Scully, Jr. signed and issued this warrant to search specified property of Taras Hodivsky, Jr. for, among other items, the cell phone. The second warrant was dated January 30, 2019. (Suppression Hearing, Def.'s Ex. 3). In the second application, Detective John Gleaton of the Summerdale Police Department applied for a warrant to search “[t]he cell phone of Taras Hodivsky[, ] Jr. containing stored electronic data . . . .” (Def.'s Ex. 3 at 1). This warrant was also issued by Judge Scully.

         The basis for the search and seizure of the cell phone derived from statements the alleged minor victim provided during the course of a forensic interview conducted on or about January 17, 2019. During the course of the forensic interview, according to Gleaton, the alleged victim relayed that during or around the time when Hodivsky would allegedly make sexual contact with her, Hodivsky would show her pornographic images or videos on his cell phone. In the second warrant application, Gleaton relayed that the alleged victim described “being shown pornographic pictures or movies depicting sexual acts on [Hodivsky's] phone.” (Ex. 1 at 2). And the affidavit Gleaton submitted in support of his application for the second warrant relayed that “the [alleged] victim told of pornographic images or video shown to her by the defendant on his cell phone. These images[, ] if displayed on an electronic device[, ] would likely still be present on the device.” (Ex. 3 at 2).

         II. OVERVIEW OF THE ARGUMENTS

         Hodivksy has moved to suppress the evidence discovered during law enforcement's search of the phone on several bases. He argues that (1) the search warrant failed to establish probable cause because it did not provide a nexus (i.e., a link) between the elements of the offenses listed on the warrant applications and the data located on the cell phone; (2) the search warrant is overbroad (not sufficiently particular) because it permitted a search of the entire cell phone; and (3) law enforcement exceeded the search warrant's scope by going beyond what was “actually stored” on the phone, (Doc. 37 at 13), to search the contents of a third-party application-the MEGA App.

         The Government disagrees with each of Hodivsky's arguments. And, in any event, it argues (persuasively) that even if Hodivksy successfully challenged the warrant's probable cause, the good faith exception established in United States v. Leon, 468 U.S. 897 (1984), would not require the evidence to be suppressed.

         III. ANALYSIS

         a. The nexus requirement is satisfied.

         Hodvisky contends the warrant was not supported by probable cause because it failed to establish a nexus between his cell phone and the elements of the crimes listed in the search warrant's application. The application for both warrants listed only two offenses: First Degree Rape, in contravention of Alabama Code 13A-6-61, and Sexual Abuse of a Child Less Than 12 Years Old, in violation of Alabama Code 13A-6-69.1. Hodivsky maintains that since showing pornographic images and videos to a minor does not support an element of either crime, the requisite nexus was not established. (Doc. 37 at 7-8).

         The Court is unpersuaded. “A sufficient basis for probable cause for a search exists when under the totality of the circumstances there is a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Noriega, 676 F.3d 1252, 1261 (11th Cir. 2012) (quoting United States v. Lopez, 649 F.3d 1222, 1245 (11th Cir. 2011)). The Fourth Amendment also requires “a nexus between the item to be seized . . . and criminal behavior.” Warden v. Hayden, 387 U.S. 294, 307 (1967); see also United States v. Payne, 341 F.3d 393, 400 (5th Cir. 2003) (“Facts in the affidavit must establish a nexus between the house [or item] to be searched and the evidence sought.”). To establish a nexus in cases where the evidence sought is not contraband or a fruit or instrumentality of a crime, an affidavit or application must demonstrate that “the evidence sought will aid in a particular apprehension or conviction.” Id.

         The alleged child victim stated that Hodivksy showed her photos and videos on his phone and, based on the child's description, the officers believed that the photos were of children engaged in sexual activity. Accordingly, evidence of child pornography on the Hodivsky's phone would corroborate the child's statement of how the abuse occurred. Moreover, it is evidence of a defendant's effort to “groom” the child so that the abuse could occur ...