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United States v. Barthman

United States District Court, D. Minnesota

March 15, 2017


          Katharine T. Buzicky, Assistant United States Attorney, for plaintiff.

          David J. Malban, for defendant.


          JOHN R. TUNHEIM Chief Judge

         Defendant Brian Arthur Barthman is charged with Possession of Child Pornography Involving a Prepubescent Minor, in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). Prior to charging, investigators obtained a warrant to search Barthman's residence and vehicles, and they seized a number of electronic devices which were subjected to a forensic examination. Barthman moved to suppress the resulting evidence, arguing that (1) the search warrant did not sufficiently articulate the place to be searched and the items to be seized; (2) the state court judge issued the warrant without a sufficient showing of probable cause; and (3) even if the search of the vehicles and premises was otherwise proper, investigators were required to obtain another search warrant before undertaking the forensic examination of the seized electronic devices. United States Magistrate Judge Leo I. Brisbois issued a Report and Recommendation (“R&R”) on January 17, 2017, recommending denial of Barthman's motion to suppress. Barthman now objects to the R&R, arguing that (1) the search warrant did not sufficiently allege “that contraband or evidence of a crime would be found in a particular place” and (2) an apparent drafting error in a later search warrant calls into question the validity of the operative search warrant and the actions taken in reliance on that warrant, including the search, seizure of electronic devices, and forensic examination of those devices.

         The Court finds that the operative warrant, issued December 23, 2015, was valid because there was probable cause and the warrant sufficiently described the places to be searched and the items to be seized. The warrant authorized the search, seizure, and forensic examination that took place, and even if the warrant was invalid, investigators' good-faith reliance on the warrant was objectively reasonable. The Court will overrule Barthman's objections and adopt the R&R in full.



         On December 23, 2015, Hermantown Police Resource Officer Lisa Perich applied for a search warrant (the “Second Warrant”)[2] to search Barthman's home and vehicles. (R&R at 2, 5, Jan. 17, 2017, Docket No. 32; Ex. 1.) Officer Perich attached an affidavit describing the basis for the search. The affidavit contained statements from Barthman's two minor daughters, C.B. (age twelve) and A.B. (age six), made in the course of C.B.'s discussions with a school counselor, a social worker, and a school principal on December 17 and 18, 2015. The affidavit also contained statements the girls made during forensic interviews conducted by the First Witness Child Advocacy Center on December 18, 2015 and December 21, 2015. (Ex. 1 ¶¶ 5-20.)

         The affidavit stated that C.B. told interviewers that Barthman touched her chest and vaginal area, that sometimes he “la[id] on her and she [didn't] like it, ” he “pushed [her] on the bed and started to hurt [her], he “badly massag[ed]” her chest while she sat on his lap, he “put[] his penis in her vagina and also that he licked her vagina, ” he “put his penis on her butt, ” he forced her touch his penis with her hand, and he showed her pornographic images on his phone. (Id. ¶¶ 7-8, 10-16.) C.B. stated that she did not feel safe at home and did not want to return. (Id. ¶ 17.) The affidavit stated that A.B. told interviewers that one of Barthman's house rules was that he did not allow the children to touch his computer, that Barthman had shown her pictures or videos of people without their clothes on, and that “[her] family” had taken a picture or video of her without her clothes on. (Id. ¶¶ 18-20.)

         In the application, Officer Perich sought evidence related to “criminal sexual conduct and communications of sexually explicit materials to children.” (Id. ¶ 25.) In her affidavit, Officer Perich stated that people involved in pornography often view and store pornographic images on their computers and “it is also common for people that are sexually attracted to children to collect nude, sexually suggestive, and sexually explicit material featuring children.” (Id. ¶ 21.) She also attested that it is common for such individuals to maintain records, including photographs or videos, of sexual encounters with children, to store such records on their cell phones, and to store, transport and charge their cell phones or other electronic devices in their vehicle. (Id. ¶ 21.) Officer Perich's affidavit described in detail the forensic examination process that would be necessary to properly retrieve and analyze data stored on any seized electronic devices. (Id. ¶¶ 22-25.) The application requested permission “to conduct a search of any collected phones, computers, and such devices for the purpose of locating crimes associated to criminal sexual conduct and communications of sexually explicit materials to children.” (Id. ¶ 25.)

         District Court Judge Dale Harris for the State of Minnesota, Sixth Judicial District, granted Officer Perich's application, signing the Second Warrant on December 23, 2015. (Id. at 5.) The Second Warrant authorized a search for “[a]ny and all types of computer systems, ” computer disks, “[p]ornography in any form or medium, ” “[a]ny and all materials and photographs depicting sexual conduct, nude individuals, and minors, ” “[a]ny device capable of recording images, ” “[i]ndicia of occupancy, ” “[p]aperwork showing membership or subscriptions to internet sites, ” and “[d]ata contained on either hard drives or removable media, ” including deleted files as well as email files or chat room information showing contact with minors. (Id.)

         Officers executed the Second Warrant on the afternoon of December 23, 2015. (Ex. 4.) They seized a number of electronic devices, including tablets, cell phones, cameras, video tapes, laptop and desktop computers, thumb drives, CDRs, and an external storage drive. (Id.)

         On December 29, 2015, Officer Perich's colleagues obtained another warrant (the “Third Warrant”).[3] (Ex. 3.) The affidavit supporting the application for the Third Warrant listed the many devices seized during the search of Barthman's residence and vehicles and requested permission to conduct a forensic examination of those devices for evidence of “criminal sexual conduct, solicitation of a child and the possessions [sic], distribution or production of child pornography.” (Ex. 3 ¶ 29.) While the application materials for the Third Warrant focused on the forensic search, the text of the warrant that the state court judge actually signed, apparently by some mistake, contained language authorizing another search of Barthman's home and vehicles, rather than merely a forensic search of Barthman's seized devices. (See Id. at 7-8.) However, Officer Perich testified that she believed the Second Warrant authorized a forensic search of the devices, and therefore the Third Warrant was unnecessary. (Tr. of Hr'g on Dec. 7, 2016 (“Hr'g Tr.”) at 40-41, 43, Dec. 20, 2016, Docket No. 28.)

         II. ...

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