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United States v. Scanzani

United States District Court, D. Massachusetts

August 15, 2019

UNITED STATES OF AMERICA
v.
RAYMOND SCANZANI, Defendant.

          MEMORANDUM AND ORDER ON MOTION TO SUPPRESS

          F. DENNIS SAYLOR IV UNITED STATES DISTRICT JUDGE.

         Defendant Raymond Scanzani is charged with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). He has filed a motion to suppress evidence seized by the government from his apartment. Scanzani alleges that the search and seizure violated the Fourth Amendment of the United States Constitution because the warrant (1) was not supported by probable cause and (2) was overbroad and did not describe the items to be seized with particularity. In addition, Scanzani alleges that the government's search of his attic, which resulted in the seizure of a story that he had written, exceeded the scope of the warrant.

         I. Background

         A. Factual Background

         In December 2006, Raymond Scanzani was convicted in the United States District Court for the Southern District of Florida of (1) one count of knowingly mailing and transporting and attempting to mail and transport child pornography by use of a computer in violation of 18 U.S.C. § 2252A(a)(1), (2) one count of receiving child pornography by means of a computer in violation of 18 U.S.C. § 2252A(a)(2)(B), and (3) one count of possession of child pornography by means of a computer in violation of 18 U.S.C. § 2252A(a)(5)(B). United States v. Scanzini, No. 06-cr-60185 (S.D. Fla. 2006).[1] He was sentenced to a prison term of 96 months to run concurrently, followed by a lifetime term of supervised release.

         In addition to the standard conditions of release, the court ordered a series of special conditions. Among other things, the court ordered that Scanzani would be prohibited from “possess[ing]” any “visual depictions of minors or adults engaged in sexually explicit conduct, ” and “accessing via computer any ‘material' that relates to . . . possession of child pornography.” (Conditions of Probation and Supervised Release at 4-5). The court also ordered that he “shall submit to a search of his/her person or property in a reasonable manner and at a reasonable time by the U.S. Probation Office.” (Id.). Condition (h) further provided that he

shall submit to the U.S. Probation Officer conducting periodic unannounced examinations of [his] person, property, house, residence, vehicles, papers, computer(s), other electronic communication or data storage devices or media, include [sic] retrieval and copying of all data from the computer(s) and any internal or external peripherals and effects at any time, with or without warrant by any law enforcement or probation officer with reasonable suspicion concerning unlawful conduct or a violation of a condition of probation or supervised release. The search may include the retrieval and copying of all data from the computer(s) and any internal or external peripherals to ensure compliance with this condition and/or removal of such equipment for the purpose of conducting a more thorough inspection; and to have installed on the defendant's computers) [sic], at [Scanzani's] expense, any hardware or software systems to monitor [his] computer use.

(Id.).

         Scanzani's term of supervised release began on June 18, 2013.[2] On October 5, 2016, Scanzani's probation officer gave him permission to own and use a computer at his home. On October 2, 2017, the probation department installed the monitoring software RemoteCOM on his computer. RemoteCOM monitors a user's computer activities and applies specific “trigger” words applicable to the user's offense. Once a “trigger” word is detected, the system conducts an initial review of the computer activity that may constitute a violation and refers it to the offender's probation officer for further review. A probation officer can also independently review the offender's activity.

         On May 25, 2018, RemoteCOM notified the probation department that monitoring had discovered notable information in the screenshots data field recorded from Scanzani's computer. On June 6, 2018, RemoteCOM provided a report on the activity that it had detected to the probation department. Homeland Security Investigations (“HSI”) Special Agent Jason Defreitas reviewed the report, which consisted of approximately 34 PDF documents of images from Scanzani's computer.

         On June 27, 2018, Defreitas submitted an application to Magistrate Judge Cabell for a warrant to search Scanzani's person and home. The application included a supporting affidavit from Defreitas. The affidavit provided background information concerning Scanzani's criminal history and the current investigation. Among other things, Defreitas submitted three photographs from the RemoteCOM report that he opined “depict[ed] minors engaged in sexually explicit conduct based on the lascivious exhibition of their genitals.” (Affidavit of Defreitas, ¶ 5g).

         In his affidavit, Defreitas attested that the RemoteCOM report “consist[ed] of approximately 34 pdf documents containing images from S[canzani]'s computer.” (Id. ¶ 5d). Those documents, Defreitas attested, contained “screenshots of a narrative story, actively being edited by S[canzani] [that] involv[ed] the sexual molestation of infants, toddlers and young boys.” (Id. ¶ 5e). Defreitas included the first sentence of the story, which read, “He realized it was absolutely necessary to gain the boy's trust, and begin to form a loving bond with him before he could begin the first stages of total molestation.” (Id.). The story was apparently written in a distinctive font that Defreitas believed matched the font Scanzani had used in his monthly supervision reports to probation. (Id.).

         In addition, Defreitas attested that the report “contain[ed] numerous images of infants and prepubescent children either fully naked or partially naked with their genitals exposed.” (Id. ¶ 5f). In particular, Defreitas described the three photographs he had submitted to the magistrate judge:

i. In the file titled CumulativeDetail-34.pdf is an image denoted DSC0051 of a naked infant boy approximately 1-3 years old with legs spread wide. The photo shows the boy from the mid-torso down, and the focal point of the photo is on the boy's genitals.
ii. In the file titled CumulativeDetail-33.pdf is an image of a naked boy approximately 3-6 years old standing with one leg and his genitals propped up on a container. The boy is holding a banana.
iii. In the file titled CumulativeDetail-32.pdf is an image denoted DSC0008 of a boy approximately 3-6 months old, naked from the waist down lying on his side with his shirt pulled up and his genitals exposed.

(Id. ¶ 5fi-iii). After describing the photographs, Defreitas attested that, in his opinion, “such images depict minors engaged in sexually explicit conduct based on the lascivious exhibition of their genitals.” (Id. ¶ 5g).

         The affidavit concluded with extensive information about characteristics common to consumers of child pornography and Defreitas's ultimate conclusion that there was probable cause to believe that evidence, fruits, and instrumentalities of violations of 18 U.S.C. § 2252A would be located at Scanzani's residence.

         Based on the application, Magistrate Judge Cabell issued a warrant to search Scanzani's apartment on June 27, 2018.[3] The warrant authorized agents to search the “SUBJECT PREMISES, ” which consisted of “only Apartment/Unit 1 at 85 Andover Street, Peabody, MA, and any appurtenances to the real property located at 85 Andover Street, Peabody, MA, including the attached garage, and any storage unites and outbuildings thereto.” (Warrant at 4). The warrant further provided that “[t]he SUBJECT PREMISES does not include the vacant unit or the other rented unit” at 85 Andover Street. (Id. at 5).

         The warrant authorized the seizure of “[a]ll records, in whatever form, and tangible objects that constitute evidence, fruits, or instrumentalities of 18 U.S.C. § 2252A, ” including “records and tangible objects pertaining” to “child pornography and child erotica” and to “communications with any other person that relates to the sexual exploitation of children.” (Id. at 6). The warrant also authorized seizure of various types of evidence related to “computer equipment, ” one of which was “evidence indicating the computer user's state of mind as it related to the crime under investigation.” (Id.).

         On July 3, 2018, agents executed the warrant and seized a cell phone, laptop, USB thumb drive, camera, S.D. card, and computer from Scanzani's apartment. (Id. at 3). The thumb drive contained images of naked children, including the three images Defreitas had submitted to the magistrate judge. The S.D. card contained deleted images depicting young children in suggestive poses, some of whom were naked.

         During the search, agents came across an attic at the top of a flight of stairs located outside a door to Scanzani's bedroom. The door to the attic was locked. After telling agents that he had sole control of the attic, Scanzani identified the key to unlock the door. The agents then searched the attic, where they found a handwritten copy of the “narrative story” that had been captured on RemoteCOM. Agents also found a second copy of the story on Scanzani's desk in his apartment. That copy had been printed in the same font as the image captured by RemoteCOM and also included handwriting.

         On August 2, 2018, Scanzani was indicted for possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).

         II. Analysis

         Scanzani contends (1) that the warrant application did not establish probable cause; (2) that Defreitas “omitted material information critical to the magistrate's determination of whether to issue the search warrant, ” and that a Franks hearing is necessary to “determine whether [Defreitas] omitted the information with an intent or reckless disregard to mislead the magistrate”; (3) that the warrant was unconstitutionally overbroad; (4) that seizure of the physical copies of the narrative story exceeded the scope of the warrant; and (5) that the agents were not authorized to search the attic.

         A. Whether the Search Required a Warrant

         The first issue is whether the government was required to obtain a warrant at all, in light of the fact that Scanzani was subject to warrantless searches as a condition of his supervised release.

         “To be valid under the Fourth Amendment, a search must be ‘reasonable.'” United States v. Graham, 553 F.3d 6, 15 (1st Cir. 2009) (quoting United States v. Knights, 534 U.S. 112, 119 (2001)). “Typically, to be considered reasonable a search of a home must be supported by probable cause and be executed pursuant to a particularized warrant authorizing the search.” Id. “However, there are exceptions to the probable cause and warrant requirements, as the reasonableness of any search is ultimately determined by examining the ‘totality of the circumstances' and balancing on one hand ‘the degree to which [the search] intrudes upon an individual's privacy' and on the other ‘the degree to which [the search] is needed for the promotion of legitimate government interests.” Id. (quoting Knights, 534 U.S. at 118-19).

         In Knights, the Supreme Court upheld a warrantless search of the residence of a person who had been placed on probation, where one of the conditions was that he would submit to a warrantless search at any time by any probation officer or law enforcement officer. 534 U.S. at 114. The court upheld the search based on the totality of the circumstances, “with the probation search condition being a salient circumstance.” Id. at 118. The court noted the fact that the probationer had a “significantly diminished” reasonable expectation of privacy, and that the state had an interest in “apprehending violators of the criminal law” that “justifiably” permitted it to “focus on probationers in a way that it does not on the ordinary citizen.” Id. at 119-21. It then held that “the balance of these considerations requires no more than reasonable suspicion to conduct a search of this probationer's house.” Id. at 121. It further noted that it did “not decide whether the probation condition so diminished, or completely eliminated, [Knights's] reasonable expectation of privacy (or constituted consent).” Id. at 120 n.6. See Graham, 553 F.3d at 15-18 (applying Knights in the context of a warrantless search of a state probationer's apartment).[4]

         Here, condition (h) of Scanzani's conditions of supervised release clearly and unambiguously provided for warrantless searches of his property upon “reasonable suspicion.” And there is no question that law enforcement had an objectively reasonable basis to suspect Scanzani possessed child pornography when the search was executed. Nonetheless, Scanzani contends that the ...


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