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United States of America v. Benjamin Joseph Hager

August 31, 2011


The opinion of the court was delivered by: Ralph R. Erickson, District Judge United States District Court



Before the Court is Defendant Benjamin Joseph Hager's (hereafter "Hager") motion to suppress the search of 747 VHS videotapes lawfully seized from his residence on November 24, 2010 (Doc. #35). The motion seeks to suppress any evidence obtained from or discovered during a review of the tapes by agents of the Department of Homeland Security. Also before the Court is Hager's alternative request that the Court conduct a hearing under Franks v. Delaware, 438 U.S. 154 (1978).

The matter came regularly on for a hearing on July 19, 2011. The Court allowed supplemental briefs to be filed based on evidence presented at the hearing (Docs. #51, 52). Having carefully considered the evidence and the arguments of the parties, the Court now issues this memorandum opinion and order.


Hager believes: (1) the warrant that authorized the seizure did not authorize the viewing of the tapes and that it could not have authorized viewing consistent with the United States Constitution's probable cause requirement; (2) viewing the VHS tapes exceeded the scope of the underlying warrant; and (3) a warrant obtained after a partial view of the VHS tapes is fruit of the poisonous tree and must be suppressed. The United States disagrees, arguing that the November 23, 2010 warrant that led to the November 24 seizure authorized the viewing of the seized tapes, and that as a result the second warrant was entirely appropriate. The United States further argues that even if the warrant was improvidently granted or officers exceeded the scope of the warrant, they conducted themselves at all times in a manner that falls within the good faith exception of United States v. Leon, 468 U.S. 897 (1984).

With regard to the related request for a hearing under Franks v. Delaware, 438 U.S. 154 (1978), Hager claims that the affidavit underlying the search warrant in question was materially false and that the falsehood was a deliberate or reckless one. More specifically, Hager contends the agents needed to advise the magistrate judge that they already had access to metadata from numerous image files that Mueller emailed to Hager, and that they knew or should have known that no metadata would be located in Hager's apartment because they were aware Hager accessed the Internet through WebTV. The United States denies that a Franks hearing is required under the facts present in this case because it believes that the search warrant application was not on the whole misleading, that any lack of precision was neither deliberate nor reckless, and that the warrant was fully supported by probable cause even disregarding the misstatement in the affidavit.

The Court finds that the warrant executed on November 24, 2010 extended to the 747 VHS tapes, was supported by full probable cause, and was not based on any intentional or reckless misstatement; therefore, Hager's motions are DENIED.


In September of 2010, Timothy Litzinger, a Special Agent with the directorate ICE Homeland Security Investigations (hereafter "HSI"), was contacted by HSI agents from Michigan. The Michigan agents informed Special Agent Litzinger that they were engaged in a child pornography investigation of Robert J. Mueller who resided in Sterling Heights, a suburb of Detroit, Michigan. (Doc. #48, Transcript of Suppression Hearing held on July 19, 2011, p. 76 (hereafter "Tr.")). Special Agent Litzinger was told by the Michigan HSI agents that on July 6, 2010, they had executed a search warrant at Mueller's residence and discovered images of more than one adult male sexually assaulting Mueller's four minor daughters. Tr. 59-60; Doc. #1, Case No. 3:10-mj-144, United States v. 716 6th St. S., Apt. #7, Wahpeton, ND 58075 (D.N.D.), Affidavit of Timothy Litzinger in support of November 23, 2010 search warrant ¶ 15 (hereafter "Search Warrant Aff. 1").

During the Michigan search, the agents found a lock box which contained a pair of soiled little girl's panties wrapped in clear plastic and accompanied by a note from an individual named "Ace" which stated:

Hey bro, well I sprayed a bunch of loads in these for ya, just like ya wanted, lol. (You can see plenty of yellow cum stains if you look inside the panties). Definitely had lots of fun doing it too. Can't wait to do it lots more for ya in the future too, hehe. Talk to ya later. Ace.

Search Warrant Aff. 1 ¶ 16.

Mueller admitted to the officers that he had been producing child pornography depicting his daughters, that he had shared this information with others online, and that he had sought out other people who had a similar sexual interest in young girls through internet online chat forums. Id. at ¶ 17. Mueller also confessed that he had traded child pornography with people he had come to trust but that rather than sending the images by email he used Bitwise, an encrypted peer-to-peer program. Id. The HSI agents seized Mueller's electronic media and a later search of the computer revealed a photograph of a package, marked "Handle with Care" revealing a return address of "Ben Hager, 716 - 6th St S., Apt. # 7, Wahpeton, ND 58075." Id. at ¶ 19.

Michigan HSI further reported that they had discovered emails showing that a person using the email address "" had a sexual interest in children and that he referred to himself as "Ace." Id. at ¶ 24. The "CujoBen" account was also found to be registered to Ben Hager at the same Wahpeton address. Id. at ¶ 26.

As a result of this information, HSI Special Agent Shane Conroy of the Grand Forks, North Dakota office conducted some surveillance and investigation and discovered that Benjamin Hager and his young daughter lived at the residence listed on the return address, and that only Hager and ...

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