United States District Court, D. Vermont
OPINION AND ORDER
WILLIAM K. SESSION, III, District Judge.
Defendant Richard Cyr has submitted two motions for the Court's consideration. First, Defendant moves to suppress a search warrant for a residence and vehicle. Second, Defendant moves to dismiss the indictment on First Amendment grounds. For the following reasons, both motions are denied.
I. Motion to Suppress
A. Factual Background
Mr. Cyr is charged with one count of using the internet to persuade a fifteen-year-old female, K.S., to engage in illegal sexual activity and with one count of attempting to commit that offense. See 18 U.S.C. § 2422(b). Mr. Cyr allegedly created a fake sixteen-year-old female Facebook profile under the name Ann Clancy, which he used to contact teenage girls and convince them to engage in sexual acts with "her" older boyfriend. Mr. Cyr allegedly met with K.S. on October 14, 2013 after communicating with her on Facebook using the Ann Clancy alias, then drove her to a remote location and engaged her in sexual activity.
On October 16, 2013 K.S.'s mother called the Orange County Sheriff's Department Special Investigation Unit ("OCSIU"), which primarily investigates child abuse and sex crimes, and reported an incident involving her daughter. K.S. gave an interview the following day and on three or four other occasions. During one of these interviews K.S. described the vehicle in which she had allegedly been driven. Police located a vehicle matching K.S.'s description at Randolph Union High School (RUHS) on October 21, 2013 and determined it was registered to Carmella Cyr. A record search revealed that Richard Cyr also resided at the same address and that the property contained a main residence and an apartment residence.
Detective Scott Clouatre was the lead detective in this investigation. This case was his second investigation with the OCSIU but he had previous experience as a patrol officer. He has been in the law enforcement field since 2007.
Prior to applying for the warrant challenged in this motion, Detective Clouatre obtained and executed a state warrant for K.S. and Anne Clancy's Facebook accounts on October 21, 2013. On October 22, 2013 K.S. identified Mr. Cyr in a photo array. She also gave law enforcement access to her Facebook account. An officer posing as K.S. communicated with "Ann Clancy." Law enforcement could find no evidence that Ann Clancy was a real person.
On October 25, 2013, K.S. gave an interview in which she provided more details of the incident including alleged sexual contact. Detective Clouatre testified that this interview, along with the other evidence the investigation had already revealed, provided probable cause to arrest Mr. Cyr. Detective Clouatre and another officer traveled to the Cyr residence in an attempt to locate Mr. Cyr at approximately 3:00 pm on October 25. They found him in the process of moving his belongings using the Cyr vehicle from the apartment residence to the main residence. Mr. Cyr was taken into custody and officers secured the premises and the Cyr vehicle. Mr. Cyr was read and ultimately waived his Miranda rights. He gave an interview at the police station and remained in custody after the interview.
After about three hours of interviewing Mr. Cyr, Detective Clouatre called the state court clerk's office to discuss conditions and bail. Then he began drafting a search warrant, an attachment, an affidavit, and a warrant application. During the hearing on this motion, Detective Clouatre testified that some of the language in these documents was boilerplate and some had been copied and pasted from a previous warrant, but the rest was entirely new. Detective Clouatre sent the package of draft documents to an Assistant State's Attorney who gave him feedback over the phone. Detective Clouatre incorporated this feedback into the final version. Normally Vermont state warrants may only be executed between 6:00 am and 10:00 pm without an exception being granted. Detective Clouatre testified the drafting process was a "rush job" because he was concerned about getting the warrant approved and executed during this window.
Around 9:30 pm the same day, Detective Clouatre emailed the warrant, attachment, affidavit, and warrant application to a state judge who reviewed the documents and then phoned Detective Clouatre. The judge administered the oath to Detective Clouatre and ultimately signed the warrant. Detective Clouatre then phoned an officer at the Cyr residence and informed him of the potential crimes to which the search related and the types of items to be seized. The search began around 10:00 pm.
Detective Clouatre picked up Mrs. Cyr when her shift at RUHS finished around 11:00 pm. He gave her a copy of the warrant and drove her to her residence, approximately five minutes away. They both stayed at the scene for the remainder of the search. Once Detective Clouatre arrived he supervised the rest of the search. All items seized were placed in his vehicle. He reviewed each item to ensure it fell within the parameters of the search warrant. He reviewed some items at the scene and some at the station. Detective Clouatre also began drafting an inventory of items seized at the scene, which he finished the next morning. He took the computers and other items seized, such as hard drives, a digital camera, Mrs. Cyr's cell phone, and some of Mr. Cyr's papers, to the station. The electronic items were subsequently examined at the Vermont Forensics Laboratory and additional evidence was found.
Detective Clouatre testified that he knew that he was required to list the offenses to which the search related on the warrant but did not do so. However, the warrant application did list statutes, including those related to statutory sexual assault, luring a child, and contributing to juvenile delinquency. The government claims the omission of the word "application" at the end of the phrase "records relating to violations of statutes listed on the warrant" was inadvertent and Detective Clouatre testified that it was a mistake.
Subsequent to the challenged warrant three federal search warrants were issued. Two were issued on February 11, 2014, one for a Gmail account and one for a Hotmail account. The third was issued on February 13, 2014, for K.S. and Ann Clancy's Facebook accounts.
B. Legal Standard
The Fourth Amendment to the United States Constitution protects against "wide ranging exploratory searches" by mandating that a search warrant describe with particularity the place to be searched and the persons or things to be seized. United States v. Rosa, 626 F.3d 45, 61 (2010) (quoting Maryland v. Garrison, 480 U.S. 79, 84 (1987)). The requirement that warrants be particular in their descriptions "makes general searches under them impossible and ...