United States District Court, D. South Dakota, Western Division
ORDER GRANTING MOTION TO REOPEN DETENTION HEARING AND ORDER DETAINING DEFENDANT
VERONICA L. DUFFY, Magistrate Judge.
Andrew Hiipakka is before the court on an indictment charging him with receipt and possession of child pornography, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and (a)(5)(B). See Docket No. 1. Approximately 9 weeks after the court released Mr. Hiipakka on bond, the government moved to reopen the bond hearing and to have Mr. Hiipakka held in custody pretrial. See Docket No. 22. An evidentiary hearing was held on November 5, 2014, on the government's motion and each side has now submitted supplemental briefs. See Docket Nos. 29, 30. The following is this court's decision.
Defendant Andrew Hiipakka asserts that law enforcement received a tip that he was receiving images of child pornography sometime in the early summer of 2014. Mr. Hiipakka asserts that law enforcement obtained a search warrant for Mr. Hiipakka's residence on June 17, 2014, but did not execute the search at that time because Mr. Hiipakka was gone and would reportedly not be back "for some time." See Docket No. 31. Mr. Hiipakka alleges that law enforcement then obtained a new search warrant for his home on August 13, 2014, and executed that warrant on August 14, 2014. Id . Four days later, Agent Brent Gromer of the South Dakota Division of Criminal Investigation first removed a hard drive from Mr. Hiipakka's computer that had been seized in the search. Id . Mr. Hiipakka was arrested on a state criminal complaint and arrest warrant the next day. Id.
On August 19 and 20, 2014, news sources reported that Andrew Hiipakka was charged with eight counts of possession, manufacturing, or distributing child pornography in South Dakota State Circuit Court. See e.g. http://keloland.com/newsdetail.dfm/former-middle-school-teacher-indicted-on-child-pornography-charges/?id㣛. (reported August 20, 2014). News stories reported that law enforcement, after receiving a tip, had discovered Mr. Hiipakka had stored on his computer several videos and other images depicting young boys in various sexual acts, including some with adults, "all of them too offensive to describe in detail on television." Id . The news report stated that the ages of the victims depicted in Mr. Hiipakka's collection of pornography ranged from three years old to 14 years old. Id . The news report also stated that investigators had found several sub-folders on Mr. Hiipakka's computer containing more than 1, 000 additional child pornography files, not all of which police had been able to review at the time of the news report. Id . See also http://rapidcityjournal.com/news/local/middle-school-teacher-arrested-on-child-pornography-charges/article_2de17c1e-eca9-5a82-982e-d622d4b4c937.html. (reporting the same information one day earlier on August 19, 2014). News reports stated that Mr. Hiipakka's employer, a school, had been informed of the investigation on August 14, 2014. Id . According to news reports, Mr. Hiipakka was being held in state court on a $50, 000 bond. Id.
The government indicted Mr. Hiipakka in this court on August 26, 2014. See Docket No. 1. He was arrested on these federal charges on the same day and made his initial appearance in this court on August 27, 2014. See Docket No. 10. A full contested bond hearing was held at that time and the government presented testimony as well as argument and proffers. Id . The government's case agent, Brent Gromer, testified. See Docket No. 33. Agent Gromer is the Commander for the State of South Dakota's Internet Crimes Against Children task force. Id. at 5. A gent Gromer testified that he had begun forensic examinations on Mr. Hiipakka's computer on the Monday previous to the bond hearing. See Docket No. 33 at p. 6. The court takes judicial notice that was August 25, 2014, two days prior to the bond hearing.
In the two days that Agent Gromer had been able to spend examining Mr. Hiipakka's computer, he had looked at a single folder labeled "Video" that contained approximately 95, 000 images. Id. at p. 8. Of those 95, 000 images, Agent Gromer had been able to examine approximately 10 percent of the images. Id . Of that 10 percent (roughly 9, 500 images), 4, 880 images were identified by Agent Gromer as being child pornography. Id . Agent Gromer indicated because of the large volume of images on Mr. Hiipakka's computer, it would take him some time to finish his forensic examination. Id. at pp. 8-9.
Regarding the 4, 880 images of child pornography Agent Gromer had identified prior to the hearing, he had identified several involving acts of violent rape against a child, images of bondage involving children, and pornography involving children as young as one year old. Id. at pp. 9-10. The majority of the images Agent Gromer had seen involved boys between the ages of 10 to 15 years old. Id. at p. 11. Many of the images involved depictions of children being sexually penetrated by adults. Id . Agent Gromer's examination of Mr. Hiipakka's computer was not yet at a point where Agent Gromer could testify whether any of the images had been produced by Mr. Hiipakka or merely received by him. Id. at p. 12. In response to cross-examination by Mr. Hiipakka's attorney, Agent Gromer testified that his examination, so far, did not indicate any evidence that Mr. Hiipakka had actually made sexual contact with any child. Id. at pp. 13-14.
Following the August 27, 2014, hearing, the court decided that Mr. Hiipakka could be released on bond with significant restrictive conditions. See Docket No. 16. Among those conditions were:
Mr. Hiipakka was placed on home confinement and required to wear a Remote Location Monitoring Device;
Mr. Hiipakka is subject to a curfew every night from 10:00 p.m. to 7:00 a.m.;
Mr. Hiipakka cannot possess any weapons or alcohol;
Mr. Hiipakka may not have contact with anyone under the age of 18;
Mr. Hiipakka may not use a computer except under certain controlled circumstances for the purpose of searching for a job; and
Mr. Hiipakka must abide by all court orders, including his bond order in state court.
Id. A report submitted by pretrial services prior to the November 5 hearing on the government's motion indicated that Mr. Hiipakka has been compliant with all conditions set for him on August 27, 2014. Indeed, the government's motion does not allege that Mr. Hiipakka has violated any of these conditions.
Rather, the government seeks to reopen the bond hearing held over two months ago on the basis of information that was in the possession of government investigators at the time of Mr. Hiipakka's first bond hearing, but not "known" to the government because of the huge volume of evidence on Mr. Hiipakka's computer and the limited amount of time police had had as of August 27, 2014, to review that evidence. Mr. Hiipakka claims that the government has not ...