MEMORANDUM AND ORDER
This matter is before the Court on the Motion to Suppress Evidence filed by Defendant Nathaniel J. Winn on November 14, 2014 (Doc. 21). Winn seeks to suppress the evidence obtained by law enforcement officers from his cell phone. The motion has been fully briefed by the parties (Docs. 21, 22, 27, 30). The Court heard oral arguments and accepted documentary evidence at a hearing on January 6, 2015, and the motion was taken under advisement (Doc. 31). Having considered the arguments made by both parties and the evidence in the record, for the following reasons, Winn’s motion to suppress is granted in part and denied in part.
Background
On Friday, June 20, 2014, a complaint was made to the Mascoutah Police Department that two days earlier, on June 18, 2014, an unknown adult male was using his cell phone to photograph or videotape a group of thirteen and fourteen-year-old girls in their swimsuits without their permission at the Mascoutah Public Pool (Doc. 27-1). While taking the pictures, this unknown adult male was rubbing his genitals on the exterior of his swim trunks (Id.). The man was later identified as Defendant, Nathaniel Winn (Doc. 27-1; Doc. 22-1).
Instead of immediately applying for a search warrant to search the contents of Winn’s cell phone, Detective Lambert decided to continue the investigation in an effort to speak with all of the individuals involved in the incident (Id.). Detective Lambert was off work on Sunday, June. 22, so no work was done to further the investigation that day. The following day, Monday, June 28, Detective Lambert interviewed five witnesses, Sergeant Kevin McGinnis interviewed two witnesses, and Sergeant Matt Steinkamp interviewed one witness (See Doc. 27-4). Altogether, the run time of the video of these eight witness statements is no more than 45 minutes (see id.). On Tuesday, June 24, Detective Lambert was at an all-day training, and he was unable to do anything to further the investigation. Sergeant Stein-kamp interviewed two more witnesses, however, and Officer Kyle Donovan interviewed one witness (see id.). Altogether the run time of the video of these three witness statements is no more than 21 minutes (see id.).
Detective Lambert was at an all-day training again on Wednesday, June 25. Neither he nor any of the other officers did anything to investigate the case against Winn on that day. On Thursday, June 26, Detective Lambert typed the narratives of the five videotaped witness statements that he took. On Friday, June 27, Detective Lambert continued typing up the narratives. Altogether, he wrote approximately seven pages of narrative report.
Detective Lambert also completed the first draft of the complaint for a warrant to search Winn’s cell phone on Friday, June 27. Lambert testified that none of the other officers who assisted in the investigation could apply for the search warrant because, as part of his position as Detective, he is responsible for applying for all search warrants. The complaint for the search warrant is just over two pages long (Doc. 22-2). Approximately one-and-a-half pages are original content and set forth the facts upon which Detective Lambert believed he had probable cause to search the phone (see Doc. 22-2). Detective Lambert wrote, in pertinent part, that a woman called the police department on June 20, 2014, to report that, two days prior, a man was taking pictures of her daughter and her friends at the pool and fondling his genitals through his shorts (Id.). A number of witnesses, including the four victims, reported that Winn followed them around at the pool, took pictures or videos of them without their permission, and fondled his genitals on the exterior of his swim trunks while in close proximity to them (id.). The four victims also reported that they were alarmed and disturbed by Winn’s actions (Id.).
In the complaint for the search warrant, Detective Lambert inserted a list of items to be seized from the phone by using a template provided by the St. Clair County State’s Attorney’s Office. That template provides for the seizure of
*911 any or all files contained on said cell phone and its SIM Card or SD Card to include but not limited to the calendar, Phonebook, contacts, SMS messages, MMS messages, emails, pictures, videos, images, ringtones, audio files, all call logs, installed application data, GPS information, WIFI information, internet history and usage, any system files on phone, SIM Card, or SD Card, or any data contained in the cell phone, SIM Card or SD Card to include deleted space.
(Id.). Detective Lambert then submitted the draft of the complaint to the St. Clair County State’s Attorney’s Office to review and to fill in the appropriate offense to be charged.
On Saturday, June 28, and Sunday, June 29, Detective Lambert was off work and nothing more was done to further the investigation or to obtain the search warrant. On Monday, June 30, Detective Lambert had the complaint and the search warrant reviewed and signed by assistant State’s Attorney (“ASA”) Julie Elliot. ASA Elliot indicated on the complaint to the search warrant that the search of the phone was for evidence related to the offense of public indecency (Doc. 22-2). She indicated on the search warrant, however, that the search of the phone was for evidence related to the crime of disorderly conduct (Doc. 22-3). Neither Detective Lambert nor ASA Elliot noticed the discrepancy. ASA Elliot did not make any edits to the template of the items to be seized from the phone (Doc. 22-2; Doc. 22-3). The complaint and search warrant were then presented to Circuit Judge Jan Fiss at the state trial court in St. Clair County, Illinois. Judge Fiss signed both the complaint and search warrant. He also did not notice the discrepancy between the complaint and the search warrant.
The following day, July 1, 2014, Detective Lambert met with Jason Robertson, an investigator with the St. Clair County Sheriffs Department who is in charge of cell phone extractions (Doc. 22-4; Doc. 27-6). Lambert told Investigator Robertson that the cell phone was believed to contain evidence regarding a public indecency case (Doc. 22^4). Investigator Robertson used a Cellebrite UFED Touch machine to extract data from Winn’s cell phone and to generate a report detailing what was extracted (Id.). Robertson did not manually search Winn’s cell phone. Notably, the extraction report did not contain the pictures of the girls at the pool taken by Winn on June 18, 2014 (see id.). It did, however, contain pornographic images of children and three non-pornographic videos of a minor female taken at a residence on June 1, 2014 (Id.; Government’s Exhibit 6-Bates stamped pages 57-60). After observing the child pornography, Robertson “did a manual search on the phone and discovered several of the photographs had been downloaded from the KIK application” (Doc. 22-4). Robertson informed Detective Lambert about the child pornography on the phone, and the two of them went to Winn’s home where Winn’s mother gave them consent to search the home (Id.)
On July 3, 2014, Winn was charged in state court in St. Clair County, Illinois, with one misdemeanor count of public indecency for “knowingly engag[ing] in an
Four days later, on July 7, 2014, Detective Lambert decided to “manually look through the, cell phone” to try to find the pictures of the girls taken by Winn at- the Mascoutah Public Pool on June 18, 2014 (Doc. 22-6). From the home screen of the phone, he clicked “Apps,” then “Gallery,” then “Camera” (Id.). There he observed nine images of girls in swimsuits taken on June 18, 2014 (Id.).
This case came to federal court after the St. Clair County State’s Attorney’s Office referred it to the United States Attorney’s Office to pursue federal child pornography charges against Winn. He was indicted in the Southern District of Illinois on Sep-tember 17, 2014, on two counts of receipt of visual depictions of minors engaged in sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2) (Doc. 1).
Discussion
Winn argues that the evidence obtained from his cell phone should be suppressed because (1) the seizure of his cell phone became unreasonable when Detective Lambert waited nine days to obtain the search warrant; (2) Detective Lambert did not have probable cause to believe that evidence of disorderly conduct would be found on the cell phone; (3) the search warrant was overbroad and lacked sufficient particularity; and (4) the search of the cell phone exceeded the scope of the search warrant (Docs. 21, 22).
The Court begins with a brief overview of Fourth Amendment law before discussing whether a Fourth Amendment violation occurred .and whether suppression of the evidence is warranted.
A. The Fourth Amendment
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV. In order to “compel respect for the constitutional guaranty,” the United States Supreme Court created the exclusionary rule. Davis v. United States, — U.S. -,
B. Delay in Obtaining the Search Warrant
Winn concedes that the initial seizure of his phone was reasonable, but argues that the seizure became unreasonable when the police waited nine days to obtain a search warrant (Id. at pp. 2-5). The Court disagrees.
According to Fourth Amendment jurisprudence, the police were required to obtain the search warrant within a reasonable period of time after seizing the phone. United States v. Burgard,
On the individual’s side of the balance, the most relevant factor to consider is the individual’s possessory interest in the seized object. Burgard,
On the state’s side of the balance, one of the key factors to consider is the state’s basis for the seizure. Burgard,
That being said, Winn’s possessory interest in the phone was diminished by the fact that he never revoked his consent or contacted the Mascoutah Police Department to ask about the progress of the investigation or to seek the return of his phone. See United States v. Christie,
Shifting to the other side of the balance, the state also, had a strong interest in the cell phone because the police had probable cause to believe that it contained evidence of a crime. But the police did not act with any sense of urgency in obtaining the search warrant. It appears to the Court that at the time the phone was seized on the afternoon of Saturday, June 21, there was probable cause to obtain a search warrant for the phone.
Even accepting that the additional investigation was necessary, it is difficult to understand why it took nine days to apply for the search warrant. There were eleven witnesses who were interviewed, but the interviews were not complex or time-consuming. All of the witnesses were local children and employees of the pool who fully cooperated with the police. Altogether, the run time of their videotaped statements is just over an hour, and the narrative reports total only sixteen type-written pages. And, most notably, the task of interviewing the witnesses and documenting their statements was split between five officers. Over a third of the Mascoutah Police Department was involved in this investigation,
Detective Lambert explained that during the nine-day period at issue, he was off work three of those days and at an all-day training for two. He also explained that no other officer in the Department could obtain the search warrant because that task fell solely to him. Neither explanation is persuasive. No evidence was offered that the training was mandatory or that it could not have been postponed. See United States v. Mitchell,
While Detective Lambert undoubtedly could have worked more quickly, case law indicates that his pace did not violate the Fourth Amendment. In the case of a seizure based on probable cause, the Seventh Circuit held that the six-day delay between the seizure of the defendant’s cell phone and obtaining a search warrant was not unreasonable, even though the. police officer was not diligent because the officer’s “delay was not the result of complete abdication of his work or failure to ‘see any urgency.’ ” Burgard,
The facts and circumstances of this case leave it comfortably nestled somewhere in the middle of Burgard, Stabile, and Christie. Winn consented to the seizure of his cell phone, he never asked for it back, and while Detective Lambert worked slowly, there, is no evidence that he completed abdicated his work or failed to see the urgency in acting.
In sum, after balancing the interests at stake, the Court concludes that the nine-day delay between seizing Winn’s cell phone and obtaining a search warrant was avoidable, but not unreasonable. Accordingly, the portion of Winn’s motion to suppress related to the reasonableness of the delay in obtaining the search warrant is denied.
C. Probable Cause
Winn next argues that the search warrant was riot supported by probable cause (Doc. 22, pp. 5-6). He points out that the complaint for the search warrant presented probable cause to search the phone for evidence of public indecency, but the warrant authorized a search of evidence of an entirely different crime: disorderly conduct. He argues that the discrepancy is fatal, because the complaint did not allege facts to establish probable cause to search for evidence of disorderly conduct. Again, the Court disagrees.
Generally speaking, minor errors are not fatal to an otherwise valid search warrant, especially when the errors are attributable to the judge or the government attorney. See United States v. Smith,
Based on a review of the evidence, the Court concludes that listing disorderly conduct as the relevant offense on the search warrant was an unintentional error. The police reports categorized the incident as public indecency (see, e.g., Docs. 27-1, 22-1); Detective Lambert testified that he believed he had probable cause to obtain a warrant to search for evidence of public indecency; the State’s Attorney’s Office listed public indecency as the relevant offense on the complaint in support of the search warrant (Doc. 22-2); Detective Lambert also testified that he was never aware that the warrant referred to an offense other than public indecency, and he understood at all times that the intent of the warrant was to search for evidence of public indecency; and the State’s Attorney’s Office charged Winn with public indecency, not disorderly conduct, just days after the warrant was issued. Simply put, the only time the words “disorderly conduct” appear anywhere in the record is on the search warrant. The only logical conclusion to be drawn is that doing so was a mistake. And the mistake is attributable solely to the State’s Attorney’s Office, not the police, because the State’s Attorney’s Office was responsible for filling in the offense section on the complaint and the search warrant (Doc. 27, p. 16). As the Seventh Circuit noted, “[w]hile careless drafting by government attorneys is indeed problematic, it is not tantamount to police misconduct that rises to the level of disregard for citizens’
Winn has conceded that probable cause existed to issue the warrant for public indecency. Accordingly, the 'fact that the warrant listed a different offense is not fatal to the warrant’s validity. The exclusionary rule does not serve to deter police officers “from obtaining wárrants based on accurate information that is reported to the issuing state court judge in a somewhat slipshod manner.” Lowe,
Assuming the opposite is true, and the warrant only authorized a search for evidence of disorderly conduct, the Court finds that the facts alleged in the complaint were sufficient to establish probable cause to believe that’ Winn’s cell phone contained evidence of disorderly conduct. In Illinois, to commit the offense of disorderly conduct, a person must engage in conduct that: (1) is unreasonable; (2) alarms or disturbs another; and (3) threatens to provoke or provokes a breach of the peace. Reher v. Vivo,
The Seventh Circuit has recently endorsed the definition of “breach of peace” contained in the Restatement (Second) of Torts as “a public offense done by violence, or one causing or likely to cause an immediate disturbance of public order.” Sroga v. Weiglen,
In sum, mistakenly listing disorderly conduct as the relevant offense in the search warrant was an error that does not amount to a Fourth Amendment violation because the warrant was supported by probable cause. Accordingly, the portion of Winn’s motion to suppress related to probable cause is denied.
D. Overbreadth and Particularity of the Search Warrant
Winn next argues that the search warrant violated the Fourth Amendment because it failed to state with particularity the items permitted to be seized (Doc. 22, pp. 6-8). It authorized the seizure of “any and all files” that constituted evidence of disorderly conduct which, according to Winn, essentially invited the police to conduct an illegal general search of his cell phone (Id.). The Court agrees with Winn on this point.
The Fourth Amendment prohibits general search warrants and requires that a warrant describe, with particularity, the place to be searched and the persons or things to be seized. U.S. Const, amend. IV. The purpose of the particularity, requirement is to “protect persons against the government’s indiscriminate rummaging through their property” and to “[prevent] the searching for and seizure of items that there is no probable cause to believe are either contraband or evidence of a crime” United States v. Jones,
To satisfy the particularity requirement, a warrant “must describe the objects of the search with reasonable specificity, but need not be elaborately detailed.” Vitek Supply Corp.,
The warrant in this case particularly described the place of the search: the white Samsung Galaxy III cell phone. With regard to the objects of the search, however, the warrant was facially over-broad, exceeded the probable cause to support it, and was not as particular as the circumstances would allow.
The warrant authorized the seizure of “any or all files” contained on the cell phone and its memory card that “constitute[d] evidence of the offense of [Public Indecency 720 ILCS 5/11-30],”
' The major, overriding problem with the description of the object of the search— “any or all files” — is that the police did not have probable cause to believe that everything on the phone was evidence of the crime of public indecency. The description was a template used by the St. Clair County State’s Attorney’s Office for all cell phone searches. Templates are, of course, fine to use as a starting point. But they must be tailored to the facts of each case. This particular template authorized the seizure of virtually every piece of data that could conceivably be found on the phone. The Supreme Court put the scope of such a wholesale seizure in perspective by explaining that it “would typically expose the government to far more than the most exhaustive search of a house.” Riley v. California, — U.S. -,
Based on the complaint supporting the search warrant, there was probable cause to believe that only two categories of data could possibly be evidence of the crime: photos and videos (see Doc. 22-2). The complaint did not offer any basis — such as facts learned during the investigation or Detective Lambert’s training and expertise — to believe that the calendar, phone-book, contacts, SMS messages, MMS mes
The Government elicited explanations at the hearing from Detective Lambert and Investigator Robertson as to how some of this data might be evidence of the crime of public indecency. However, “[t]he police cannot rationalize a search post hoc on the basis of information they failed to set forth in their warrant application to a neutral [judge].” Messerschmidt v. Millender, — U.S. -,
The bottom line is that if Detective Lambert wanted to seize every type of data from the cell phone, then it was incumbent upon him to explain in the complaint how and why each type of data was connected to Winn’s criminal activity, and he did not do so. Consequently, the warrant was overbroad, because it allowed the police to search for and seize broad swaths of data without probable cause to believe it constituted evidence of public indecency.
With respect to the categories of data for which the police did have probable cause — the photos and the videos — the warrant was not as particular as could be reasonably expected given the nature of the crime and the information the police possessed. The warrant merely described the category of data, rather than specific items, which allowed the police to seize all of the photos and videos on Winn’s phone, as opposed to specific photos and videos. As the Supreme Court explained, a sixteen-gigabyte smart phone like Winn’s can hold thousands of pictures and hundreds of videos dating back “to the purchase of the phone, or even earlier.” Riley,
Most importantly, the warrant should have specified the relevant time frame. The alleged criminal activity took place on one day only—June 18, 2014—and the police were looking for photos or videos taken that same day. There was nothing in the complaint indicating that any data created prior to that date was connected to the suspected public indecency. “Failure to limit broad descriptive terms by relevant dates, when such dates are available to the police, will render a warrant overbroad.” United States v. Lazar,
The only limit implied by the search warrant is the reference to the criminal statute that Winn supposedly violated. “An unadorned reference to a broad federal statute does not sufficiently limit the scope of a search warrant.” United States v. Leary,
Here, it is especially hard to accept that the reference to the criminal statute could possible constitute a meaningful limitation on the scope of the search when the warrant referred to the wrong criminal statute. Furthermore, the execution of the warrant clearly demonstrates that the reference to the criminal statute did nothing to actually restrict the seizure or limit the executing officers’ discretion. Detective Lambert asked Investigator Robertson to do a complete phone dump, and Robertson used the Cellebrite UFED Touch machine to extract every bit of data from the cell phone that the machine could detect. Two calendar events, a forty-four item call log, twenty-three contacts, eighty text messages, 312 images, and twenty-five
In sum, the complaint establishes that the police had probable cause to look for and seize a very small and specific subset of data on Winn’s cell phone. But the warrant did not limit the scope of the seizure to only that data or describe that data with as much particularity as the circumstances allowed. Instead, the warrant contained an unabridged template that authorized the police to seize the entirety of the phone and rummage through every conceivable bit of data, regardless of whether it bore any relevance whatsoever to the criminal activity at issue. Simply put, the warrant told the police to take everything, and they did. As such, the warrant was overbroad in every respect and violated the Fourth Amendment.
E. Good Faith Exception
The Government argues that even if the warrant was overbroad and lacked particularity, the search was nonetheless valid under the good faith exception set forth in United States v. Leon,
A review of the facts in this case shows that there is certainly an element of recklessness on the part of Detective Lambert with respect to the list of items to be seized. The complaint supporting the search warrant is geared toward searching for and seizing only photos or videos of young girls in swimsuits taken at the Mas-coutah Public Pool on June 18, 2014. Detective Lambert admitted at the hearing that those photos or videos were the only evidence that he wanted to get from Winn’s cell phone. Detective Lambert also admitted that he had not uncovered any information suggesting that Winn forwarded these pictures to anyone, and he had no reason to believe that the calendar, call log, or text messages contained any evidence of public indecency. Yet, when he drafted the complaint, he chose not to edit the template of items to be seized to eliminate the categories of data that had no connection to the suspected crime. He also chose not to incorporate any information that would have substantially clarified the description of the data to be seized so as to limit the invasion of Winn’s privacy. He explained at the hearing that he simply inserted the entire template and left it to the assistant State’s Attorney to edit it down.
Detective Lambert’s expectations were misguided, however, because ASA Elliot’s review of the complaint and search warrant template was quick and cursory; overall, she failed to tailor the warrant to the facts or the crime under investigation. For instance, she mistakenly indicated on the warrant that the relevant offense was disorderly conduct. She also indicated on the warrant that the day was Wednesday when it was actually Monday, and she failed to insert the date and the month. Most importantly, she did not edit down the .template of the list of items to be seized from Winn’s cell phone. She left it as is, even though it was glaringly over-broad.
Judge Fiss did the same. Detective Lambert testified that Judge Fiss did not simply sign warrant. Judge Fiss swore Lambert in, and it appeared to Lambert that Judge Fiss went through each individual page of the complaint and the search warrant. While Lambert was unsure of the exact amount of time that Judge Fiss spent reviewing it, he indicated that the Judge did not rush through it by any means. Even accepting Lambert’s testimony as true, it is manifest that Judge Fiss abandoned his judicial role to some extent. Courts typically exhibit a “strong preference for warrants” and provide “great deference” to a judge’s conclusion that a warrant shall issue. Leon,
Although not argued by Winn, the Court thinks that .the fourth circumstance also applies in this case. As thoroughly explained above, see supra Part D, the warrant was so facially and grossly overbroad in its description of the items to be seized that “[a] reasonably well-trained officer would have known the search was illegal despite the issuing judge’s authorization.” Leon,
Based on the foregoing, the Court finds that the good faith doctrine is inapplicable to the facts of this case.
F. Exceeded the Scope of the Warrant
Winn’s final argument is that the police violated the Fourth Amendment by the manner in which the officers executed the search warrant, specifically by exceeding the scope of the warrant (Doc. 22, pp. 8-11). His primary complaint is that Investigator Robertson used a forensic extraction device to search the phone instead of simply performing a manual search. The Court thinks this argument is misguided based on the circumstances of this case. The Cellebrite machine was used to extract all of the data from Winn’s cell phone and then index and catalogue it into a more user-friendly format for viewing. Given that the warrant authorized the police to search the entirety of the cell phone, using the Cellebrite machine is certainly the easiest and most expeditious way to view all of the data. See United States v. Mann,
Winn also suggests that Investigator Robertson was not actually looking for evi
It is evident that neither Investigator Robertson nor Detective Lambert reviewed the extraction report simply to identify and segregate the items that were related to the public indecency incident and therefore fell within the scope of the warrant. Investigator Robertson testified at the hearing that he did not review the extraction report to see if the photos of the young girls at the pool were on it, and he did not even know that those photos had not been extracted until several days later. Robertson did, however, see images of child pornography in the extraction report. Those images had no relevance whatsoever to the public indecency incident and were obviously outside the scope of the warrant. But Robertson still performed a manual search of the phone and figured out that several of the photos had been downloaded from the KIK application (Doc. 22-4). He also told Detective Lambert about the child pornography, and together the two of them went to Winn’s house where they obtained consent from Winn’s mother to search the house (Doc. 22-4), presumably for more evidence of child pornography.
As for Detective Lambert, he testified that he realized the photos of the young girls at the pool were not on the extraction report at the time he went through it. Yet he still did not attempt to manually search the phone for those photos for a number of days. Instead, like Investigator Robertson, he was busy following up on data that was not connected to the public indecency incident. He discovered three videos that implicated Winn for unlawfully videotaping a minor (see Government’s Exhibit 6— Bates stamped pages 57-60). He watched those videos, even though they clearly did not. pertain to the alleged public indecency at the pool, and then undertook an investigation to identify the child in the videos (see id.). Lambert also viewed the content of every other photo and video that was extracted even though he could tell at a glance that the bulk of them had nothing to do with the alleged public indecency based on the thumbnail images and the fact that they were created weeks, if not months, prior to the incident. He then itemized the photos and videos, categorized them based on their content, and also summarized of the content of some (see Doc. 22-5).
Inspector Robertson and Detective Lambert’s actions make clear that whatever interest they had in finding the photos of the girls in swimsuits was lost as soon as they discovered evidence of other
To summarize, Investigator Robertson and Detective Lambert searched and seized data when they knew they were not going to find evidence related to public indecency. In doing so, they ignored the one limitation in the warrant and exceeded its scope. They conducted a general search for crimes unrelated to public indecency and violated the Fourth Amendment.
To the extent the Government believes that child pornography could be seized pursuant to the plain view doctrine,
G. Suppression
In determining whether to suppress the evidence obtained from Winn’s cell phone, the Court relies on its conclusion that the warrant was overbroad and lacked sufficient particularity in violation of the Fourth Amendment, and that the good faith doctrine is inapplicable to the facts of this case. Furthermore, the Court believes that suppression of the evidence seized from the cell phone will serve the exclusionary rule’s goal of deterrence. This case goes to the very heart of what the Fourth Amendment was designed to prohibit — general warrants and general searches.
Because the warrant is a general warrant, it has no valid portions. Every portion is impossibly overbroad, encompassing every conceivable bit of data generated by
Conclusion
Defendant Nathaniel Winn’s Motion to Suppress Evidence (Doc. 21) is GRANTED in part and DENIED in part. All evidence obtained from Defendant’s cell phone is SUPPRESSED.
IT IS SO ORDERED.
Notes
. Detective Lambert’s police report concerning these events was not submitted to the Court.
. Detective Lambert stated in the police report from June 21, 2014, that he "believed probable cause had been established in this investigation ... against Winn for illegally photographing and/or videotaping underage females at the pool” (Doc. 22-1). Detective Lambert similarly testified at the hearing that, at the time he went to Winn’s house on June 21, he believed he had probable cause for a search warrant for public indecency or disorderly conduct.
. Detective Lambert testified at the hearing that the Mascoutah Police Department has thirteen officers. He and four other officers took part in this investigation.
. Detective Lambert was responsible for interviewing five of the eleven witnesses and typing eight of the sixteen pages of narrative report.
. See Reher v. Vivo,
. The warrant actually said "constituted evidence of Disorderly Conduct 720 ILCS 5/26-1” (Doc. 22-3). The Court previously found, however, that listing disorderly conduct as the relevant offense was a mistake, and the warrant intended to authorize a search for evidence of public indecency. See supra Part C.
. With respect to the photos, he indicated that seventy-two pictures were blank or of a nonsexual nature; twenty-one pictures were of a penis; 219 pictures were of a sexual nature— "mostly all having images of females [sic] subjects appearing to be under the age of 17, many with female subjects appearing to be under the age of 8”; and twenty-three images were of "sexual penetration and/or appearing to have male ejaculation on minor female subjects (including images of what appears to be infants” (Doc. 22-5). With respect to the videos, a number of them were of "a male subject masturbating until ejaculation;” two were of female subjects who appeared to be under the age of thirteen masturbating to their webcam; one video was a female subject who appeared to be under the age of eight performing oral sex on an adult male and getting anally penetrated by an adult male; and one video was multiple female subjects who appeared to be under the age of twelve engaging in numerous sexual acts with one another and with an adult male (Doc. 22-5).
. Counsel for the Government stated at the evidentiary hearing that photos of child pornography were in plain view.