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United States v. Bartunek

United States District Court, D. Nebraska

August 9, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
GREGORY BARTUNEK, Defendant.

          FINDINGS AND RECOMMENDATION

          Susan M. Bazis United States Magistrate Judge

         This matter is before the Court on multiple motions filed by Defendant, Gregory Bartunek.[1] These motions include the following: Motion to Suppress (Filing No. 47); Motion to Amend (Filing No. 48); Motion to Suppress Statement (Filing No. 69); Motion to Suppress (Filing No. 70); Motion to Suppress (Filing No. 71); Motion to Suppress (Filing No. 72); Motion to Dismiss (Filing No. 74); Motion for Order to Release Property (Filing No. 79);[2] Motion to Suppress (Filing No. 80); Motion to Suppress (Filing No. 82); Motion to Suppress (Filing No. 85); Motion to Compel (Filing No. 100); Motion for Reconsideration and Motion to Compel (Filing No. 158); and Motion for a Franks Hearing.[3] (Filing No. 178.)

         Bartunek is charged in a Two Count Indictment with Distribution of Child Pornography in violation of 18 U.S.C. 2252A(a)(2) and Possession of Child Pornography in violation of 18 U.S.C. 2252(a)(4)(B). (Filing No. 1.) Bartunek seeks to suppress all evidence and statements obtained as a result of the search of his home on May 25, 2016, in Omaha, Douglas County, Nebraska and his arrest at his home on February 16, 2017, in Omaha, Douglas County, Nebraska. (Filing Nos. 47, 48, 69, 70, 71, 72, 74, 79, 80, 82, 85, 100, 158.)

         The Court held an evidentiary hearing on June 22, 2017. Bartunek was present with his standby counsel, Michael Maloney. The United States was represented by Assistant United States Attorney, Michael Norris. The Court heard testimony of Deputy United States Marshal John Huggins, Omaha Police Officer David Pecha, Deputy Untied States Marshal Christopher Cicha and Paul Bartunek. A transcript (TR.) of the hearing was prepared and filed on July 8, 2017. (Filing No. 177.) This matter is now fully submitted and ready for decision.

         BACKGROUND

         A search warrant was executed on Bartunek's house on May 25, 2016. (TR. 50.) While in the bedroom of the home, officers observed dolls with plastic penises affixed to them. (TR. 52, Ex. Nos. 5, 6.) The dolls were clothed in children's underwear. Officers also observed children's underwear in a chest in the bedroom. (TR. 60.) Several electronic devices were seized from the residence, as well as a cox cable bill so officers could verify who lived at the premises. (TR. 56, 59.) During the execution of the warrant, photographs were taken to document the condition of the residence and to possibly serve as evidence of the crime being charged. (TR. 57.)

         Bartunek was not present when officers entered his residence to execute the search warrant on his home, but he arrived after the search had been completed. (TR. 61.) When Bartunek arrived outside the residence, Officer Pecha was waiting and explained to him that a search warrant had been executed on his residence. Officer Pecha told Bartunek that they wanted to speak to him. (TR. 62.) Officer Pecha testified that he never told Bartunek that he had to speak to him or that he was in custody. (TR. 63 and 70.) Officer Pecha did not give Miranda warnings to Bartunek. Officer Pecha testified that during their conversation, Bartunek inquired whether he should have an attorney, but did not say that he wanted an attorney. (TR. 70-71.) After speaking to Officer Pecha for a few minutes, Bartunek definitively requested an attorney. Officer Pecha then terminated the interview and left Bartunek's residence. (TR. 70.) Bartunek was not arrested at that time. (TR. 69-70.)

         On February 16, 2017, Deputy Cicha, a deputy United States Marshal, was assigned to execute an arrest warrant for Gregory Bartunek. (TR. 80-81.) Deputy Cicha understood the arrest warrant to be for possession or distribution of child pornography. (TR. 81.) The officers arrived at Bartunek's home a little after 7:00 a.m. on February 16, 2017. (TR. 83.) When officers arrived, some of the officers went to the front door and others went to the back door, announcing their presence. (TR. 83-84.) An individual came out of a door on the east side of the house from the basement. (TR. 84.) Officers told that individual that they were looking for Gregory Bartunek. The individual confirmed that Bartunek lived at the residence, and officers then went into the basement to make sure no one else was in the basement. (TR. 84.)

         Officers continued to announce their presence at the front door of the residence for several minutes. (TR. 86, 87.) When no one responded, officers began ramming the front door. (TR. 87.) After the third time of ramming the door, Bartunek told officers he was coming to the door. (TR. 87.) Bartunek was unable to open the door, however, so Deputy Cicha kicked the door open. (TR. 88.) Once officers opened the door, they handcuffed Bartunek and informed him that a warrant had been issued for his arrest. (TR. 17.) Officers took Bartunek, who was dressed only in a robe, underwear, t-shirt, and house slippers, outside to the front porch. (TR. 17, 88.) While on the porch, Bartunek asked about his clothes. (TR. 90.) Bartunek was then placed in Deputy Cicha's car. (TR. 89.) While in the car, Deputy Cicha showed Bartunek the arrest warrant. (TR. 89, 92.) Deputy Cicha did not give Bartunek Miranda warnings at that time because he was not asking Bartunek any questions. (TR. 92.)

         Due to the cold conditions outside, officers determined that they had to go inside the house to get clothes for Bartunek. (TR. 17.) Based on Bartunek not coming to the door, which heightened officers' concerns for their safety, officers decided to perform a “sweep” of the residence to make sure there was nothing inside that could hurt them. (TR. 18.) Deputy Huggins, who has been with the Marshal's Office for twenty-five years, led the sweep of Bartunek's residence. (TR. 18-19.) Deputy Huggins observed dolls in the corner of the bedroom of the home, as well as a handgun and bullets on top of a dresser. (TR. 22-23.) The middle drawer of the dresser was open, and Deputy Huggins noticed that the drawer was full of children's underwear. (TR. 22-23.) Deputy Huggins retrieved pants for Bartunek, which were by the desk in the front room. (TR. 24.) Deputy Huggins testified that he took pictures of the dolls after the sweep had been completed. (TR. 28.) Deputy Huggins also took a picture of the gun. (TR. 28-29.)

         Following his arrest, Bartunek was transported to Douglas County Corrections. (TR. 92-93.) When he arrived at Douglas County Corrections, Bartunek refused to answer any booking questions, asserting he was “pleading the fifth.” (TR. 93-94.)

         ANALYSIS [4]

         1. Motion to Suppress Evidence Seized During Execution of the Search Warrant (Filing Nos. 47 and 48)

         Bartunek argues that the evidence seized during the execution of the search warrant should be suppressed because the warrant lacked particularly, was overly broad, was issued without probable cause, and contained stale information. Bartunek also asserts that the affidavit and application for the search warrant were deficient, illegal and invalid. [5]

         Bartunek argues that the warrant lacked particularity because he did not control or reside in the basement of the house, and claims that the application was based on false information because it indicated that he controlled the “premises.” Before executing the warrant, officers investigated the house by searching the records of the Douglas County Assessor. The records listed the residence as a single family dwelling. Officers also checked utility records, which showed that one person, i.e. Bartunek, was responsible for the utilities. Officers drove by the house several times in advance of executing the warrant and observed that there was only one address on the house and one mailbox. In short, nothing indicated that there was a separate residence being maintained in Bartunek's home. Therefore, the argument that the warrant and/or affidavit and application lack particularity and/or a falsity due to a second residence being in the house is without merit. See United States v. Davis, 557 F.2d 1239 (8th Cir. 1977) (upholding search warrant for an address which later turned out to include two separately occupied apartments where officers had reason to believe it was only a single-family dwelling under the control of one person).

         Bartunek also argues that the search warrant was overly broad because officers took items and photographs unrelated to the list of items to be searched for in the warrant. Bartunek claims that if the items were not pictures of child pornography, or did not show the condition of and/or the location of items expressly listed in the warrant, the photographs were beyond the scope of the warrant. While not completely clear, Bartunek appears to complain about all photographs taken at the residence, as well as the removal of a utility bill from his home. Bartunek's argument is misplaced.

         The photographs taken of prescription bottles and the utility bills that were seized from the residence are items identifying who was occupying the residence. Photographing items and seizing utility bills to show venue was authorized by the search warrant and the practice is supported by case law. See United States v. Romo-Corrales, 592 F.3d 915, 920 (8th Cir. 2010) (“Venue evidence includes items such as bills, receipts, and letters”); United States v. Blakeney, 942 F.2d 1001 (6th Cir. 1991) (stating that “indicia of occupancy” includes any document or object that would tend to provide the true identity of the owners or occupants of the premises). Likewise, officers did not improperly photograph the dolls and drawer of children's underwear. Officers were lawfully on the premises and the items photographed were in plain view. See United States v. Espinoza, 641 F.2d 153, 167 (4th Cir. 1981) (finding that where agent was lawfully on the premises in the execution of a valid search warrant, the agent did not exceed the scope of the warrant by making the photographs of what he saw in plain view).

         Bartunek also argues that the search warrant was issued without probable cause. “Probable cause means a fair probability that contraband or evidence of a crime will be found in a particular place, given the circumstances set forth in the affidavit.” United States v. Huyck, 849 F.3d 432, 439 (8th Cir. 2017) (quotation omitted). When reviewing the search warrant, the Court must look at the totality of the circumstances set forth in the affidavit. See United States v. Etherridge, 165 F.3d 655 (8th Cir. 1999). As long as the issuing judge had a substantial basis for concluding the search would uncover evidence of wrongdoing, the Fourth Amendment requires no more. Illinois v. Gates, 462 U.S. 213 (1983).

         The purpose of the warrant was to locate images and evidence of child pornography. The affidavit and application for the warrant stated that the National Center for Missing and Exploited Children CyberTipline received information from Omegle.com, a social networking chat website, that one of its users had uploaded a video of child pornography. (Ex. No. 1.) Bartunek asserts that the information reported by Omegle.com was only “suspected” child pornography and, because the information was not verified for accuracy, it could not be used to support a search warrant. Bartunek's argument lacks merit. A screenshot of the uploaded video was reviewed by the officer who applied for the search warrant. The image shows a young boy holding an ...


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