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United States v. Saemisch

United States District Court, D. Massachusetts

March 1, 2019



          George A. O'Toole, Jr., United States District Judge

         The defendant, Christopher Saemisch, is charged by indictment with one count of distribution of child pornography in violation of 18 U.S.C. § 2252A(a)(2). He has moved to suppress evidence seized as a result of his arrest, contending that suppression is required because Homeland Security agents located him by using real-time cell site location information (“CSLI”) for which no court order or warrant had been issued. He also moves to suppress evidence seized pursuant to a search warrant executed on his residence because it is fruit of the unlawful CSLI tracking and because his post-arrest transport constituted an unnecessary delay in his being brought before a judicial officer in violation of Rule 5 of the Federal Rules of Criminal Procedure.

         I. Factual Background

         The investigation that led to the defendant's indictment began in early April 2016 when an acquaintance of the defendant who was an inmate at FMC Devens (the cooperating witness, or “CW”) contacted federal agents to inform them that the defendant had discussed his viewing, sharing, and storing of child pornography by telephone and email with the CW. The CW also said that the defendant had expressed a desire to travel to Europe to engage in sexual relationships with children. During his communications with the CW, the defendant frequently discussed his access to and involvement with specific children, including a five-year-old girl (“Minor-1”) and a nine-year old girl (“Minor-2”), [1] at a nudist camp and other places. For example, in one email dated April 27, 2016, the defendant wrote:

Skyler[2] feels he's a friend of mine who went to a pagan camp that is clothing optional this weekend he left on Friday ended up staying with some people Saturday night and he slept in a tent with [Minor-1] the 5 year old and he slept with [Minor-1] the next several nights. . . . [H]e's going back to the house probably give [Minor-1] a bath here real soon it was fun giving her a shower at the camp after she rolled around in a mud puddle but naked . . . it must have taken an hour in the shower for [Minor-1] and Skyler to get clean. he had to work real hard to make sure she was clean everywhere then he had to clean the shower floor.”[3]

(U.S.' Resp. in Opp'n to Def.'s Mot. to Suppress Evid. (“Gov't Opp'n”), Ex. A (dkt. no. 110).)[4] The next day, he sent another email to the CW describing how he (as “Skylar”) had spent the night at Minor-1's house:

He slept in [Minor-1's] room. They stayed up and watched super hero six, snuggling together. Then her medication kicks in and she is out like a log. At that point, nothing will wake her. Skylar called me and said he was tired today, but happy.

(Id., Ex. C (dkt. no. 110-2).) He went on to say:

Like [Minor-1] naked in the mud puddle, dad told Skylar “lets not tell mom.” [Minor-1] was quick to remind Skylar from then on “shhhhh. Don't tell mom....”
. . . .
They want Skylar to baby sit for 5 days over Memorial Day weekend . . . . He will be at the pagen festival with [Minor-1] while the parents work long hours at the festival. Like last weekend, [Minor-1] and Skylar will share a tent together for the whole festival.

(Id.) A day later, on April 29, he elaborated on Minor-1's medication and reiterated his plan to sleep in the same tent with her:

As far as medications go I'm now so part of the routine that when I am there I administer the medications.they're trying to go natural so along with a pill and a chewable pill that she takes she also takes this natural mix of frankincense and myrrh and it's called passionflower so mom's warned me that she'll get real passionate after she takes it, really huggy and wants to cuddle and touch and kiss. And I have found that to be so, she takes passionflower right before bed. but she loves to cuddle and kiss all the time anyway ! So I don't notice too big of a difference . So in summary you could say she takes medications that make her very passionate before bed and then knocks her out completely ...........
I may offer to set up my tent or if it's easier, because it's going to be so crowded, we could either set up [Minor-1's] tent or mine but there's really no sense setting up both of them. ....

(Id., Ex. D (dkt. no. 110-3).)

         On May 3, 2016, agents conducted an undercover operation during which the defendant allegedly sent several emails containing child pornography to an email account created and controlled by federal agents under the belief that the CW was the recipient. The CW and the ...

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