United States District Court, D. Nebraska
MEMORANDUM AND ORDER
RICHARD G. KOPF SENIOR UNITED STATES DISTRICT JUDGE
On June 29, 2015, Magistrate Judge Cheryl R. Zwart made findings of fact and recommended that the defendant’s motion to suppress be denied in its entirety. The defendant, Alex Garden, has filed a statement of objections.
I have conducted a de novo review of the record. While Judge Zwart’s findings of fact are correct, I respectfully disagree with her recommendation that statements made by the defendant and evidence found when his cell phone was searched should not be suppressed. Specifically, I do not accept her legal conclusions that (1) the defendant was lawfully detained under Terry v. Ohio, 392 U.S. 1 (1968); (2) there was probable cause to arrest the defendant had the officers elected to do so; and (3) the defendant’s consent to the search of his cell phone, and his consent to providing a statement to officers, purged the taint of any unlawful detention. Accordingly, I will not adopt Judge Zwart’s recommendation, but instead will sustain the defendant’s objections and grant his motion to suppress in all respects.
Judge Zwart correctly determined that the officers were not authorized to detain Mr. Garden at his workplace solely for the purpose of executing a search warrant at his residence. See Bailey v. United States, __ U.S.__, 133 S.Ct. 1031, 1042 (2013) (detention incident to execution of search warrant is limited to immediate vicinity of premises to be searched). To satisfy the Fourth Amendment, his detention “must be justified by some other rationale.” Id.
Judge Zwart determined that “the information contained in the search warrant [for the defendant’s residence] supported a reasonable, articulable suspicion that Alex Garden had or was engaged in criminal activity such that detention for investigatory purposes was justified under Terry.” (Filing No. 53 at CM/ECF p. 13). Moreover, she found “there was a ‘probability or substantial chance’ that Alex Garden was engaged in possession and distribution of child pornography” (id.), such that “probable cause [existed] to arrest Alex Garden when he arrived at his employer’s parking lot on September 18, 2013.” (Filing No. 53 at CM/ECF p. 14.)
The affidavit for the search warrant, which was prepared by Investigator Corey Townsend of the Nebraska State Patrol (“NSP”) on September 18, 2013, stated the following pertinent facts:
7. On or about August 9, 2013 the Nebraska State Patrol received a cyber tip from the National Center for Missing and Exploited Children, from here on referred to as NCMEC.
8. On or about July 24, 2013 Tagged.com reported to NCMEC an incident of child pornography that occurred between February 25, 2013 and February 26, 2013.
9. Tagged.com provided records which show that at the reported time users 5985083688 (listed age on profile - 13 years old) and 5981995292 (listed age on profile - 16 years old) engaged one another in a conversation. The dialogue indicates they exchanged nude photographs by email. User 5985083688 asked for photographs to be sent to email@example.com.
10. Tagged.com provided the following information about user 5985083688:
Name: Kenzie Garden
Address: Lincoln, NE 68507 U.S.
Date of Birth: 01/01/2000
Approximate Age: 13
Email Address: kenziegarden@ya ...