United States District Court, D. South Dakota, Southern Division
ORDER AS TO FRANKS HEARING
Veronica L. Duffy United States Magistrate Judge
Eric Wallace Hedrick is before the court on an indictment
charging him with receipt of child pornography in violation
of 18 U.S.C. §§ 2252A(a)(2)(A), 2252A(b)(1), and
2253. See Docket No. 1. Currently pending is a
motion to suppress the evidence which the government obtained
pursuant to a January 17, 2019, search warrant as well as
evidence obtained from subsequently-issued search warrants
which built upon the evidence obtained from the January
warrant. See Docket Nos. 20 & 27. The government
opposes the motion. See Docket No. 25.
Mr. Hedrick's motion is premised on Franks v.
Delaware, 438 U.S. 154 (1978). The Court in
Franks held a defendant may challenge an affidavit
supporting a search warrant on grounds that the affiant
deliberately or recklessly included false information.
Franks, 438 U.S. at 155-56. A defendant may also
challenge the deliberate or reckless omission of
material information under Franks. United States
v. Reivich, 793 F.2d 957, 960 (8th Cir. 1986). To
prevail on a challenge of a deliberate or reckless inclusion,
the defendant has the burden to show (1) that a false
statement knowingly and intentionally, or with reckless
disregard for the truth, was included in the affidavit, and
(2) that the affidavit's remaining content is
insufficient to establish probable cause. United States
v. Gladney, 48 F.3d 309, 313 (8th Cir. 1995).
preliminary matter, a defendant is only entitled to a
Franks hearing if he makes a substantial showing
that an affiant to a search warrant application knowingly or
intentionally, or with reckless disregard for the truth, made
false statements or omitted material facts and that the
alleged statements were necessary to a finding of probable
cause. Franks, 438 U.S. at 155-56. “Whether
[the defendant] will prevail at that hearing is, of course,
another issue.” Id. at 172. The government
asserts Mr. Hedrick is not entitled to a Franks
hearing, having not made the above-described initial showing.
See Docket No. 25.
investigation in Mr. Hedrick's case originated when
Google made a tip regarding suspected child pornography to
the National Center for Missing and Exploited Children
(NCMEC). The tip included a file containing a suspected child
pornography image. NCMEC then passed that tip and
accompanying file along to South Dakota child protection
authorities and the affiant was assigned to investigate. The
January 17, 2019, search warrant was a request for the
affiant to be allowed to view the image associated with the
Google tip to NCMEC.
Hedrick makes three allegations in support of the
Franks portion his motion. First (1), that the
affiant lied, misstated, or suggested erroneously that
Google, in making its tip, used “Photo DNA” in
identifying the image as one that constituted child
pornography. Mr. Hedrick also asserts the affiant omitted two
material facts: (2) that Google had never viewed the image in
the process of making the tip and (3) that NCMEC also never
viewed the image in the process of passing the tip along to
the last two allegations first, the affiant stated in the
affidavit that “NCMEC did not review” the image
included with Google's tip. See Docket No. 20-5
at p. 6, ¶12. The affiant also stated that “the
contents of the file were not reviewed [by Google]
concurrently to making the report, [to NCMEC]”
Id. Thus, contrary to Mr. Hedrick's assertion,
it appears that the affiant did in fact inform the
court that neither Google nor NCMEC had viewed the image
which was the subject of Google's tip/report. These
allegations do not support holding a Franks hearing.
Hedrick's other assertion is that the affiant stated
Google used Photo DNA to identify the image associated with
the tip as child pornography when, in fact, Google did not
use Photo DNA. Mr. Hedrick suggests that the information in
the affidavit is at odds with the information in the
15 of the affidavit describes Photo DNA technology.
See Docket No. 20-5 at p. 7, ¶15. The affiant
then states: “Here, that technology [Photo DNA]
was used to determine that a user
of its services posted or transmitted a file with the same
hash value as an image that has previously [been] identified
as containing child pornography.” Id.
(emphasis added). This statement, read in isolation, is
false. The NCMEC report makes no mention of the use of Photo
DNA technology in this case. See Docket No. 20-6.
However, reading paragraph 15 in context, particularly with
paragraph 16, the overall accuracy of the affidavit as a
whole is affected.
16 states: “Google identified the file [in this case]
by hash value and/or PhotoDNA, the
value of which was then compared against those hash values
or PhotoDNA values associated with
files that have previously been classified as child
pornography by NCMEC and/or law enforcement.”
See Docket No. 20-5 at p. 7, ¶16. Clearly, the
affiant told the court that her assertion of probable cause
in support of the search warrant was based on
either the hash value
identification or PhotoDNA.
second prong of Mr. Hedrick's burden to show entitlement
to a Franks hearing requires that he show the
affidavit lacks probable cause when one eliminates any
mention of Photo DNA. Franks, 438 U.S. at 155-56.
Specifically, Mr. Hedrick argues the hash values alone cannot
support probable cause because the NCMEC report states only
that Google “historically” examines the hash
values of a suspect image and compares them against hash
values of known child pornography, a fact the affiant
repeated in the affidavit.
Docket No. 20-6 at p. 3 (repeated in the affidavit at Docket
20-5 at p. 6, ¶12). Mr. Hedrick argues there is no
evidence Google actually performed such a hash value
comparison in this case. Without such evidence of an actual
hash value comparison having ...