United States District Court, S.D. Alabama, Southern Division
ORDER DENYING MOTION TO SUPPRESS (DOC. 37)
K. DuBOSE, CHIEF UNITED STATES DISTRICT JUDGE
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.
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).
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.
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).
OVERVIEW OF THE ARGUMENTS
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.
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.
The nexus requirement is satisfied.
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
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.
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 ...