United States District Court, M.D. Florida, Ocala Division
REPORT & RECOMMENDATION 
R. LAMMENS UNITED STATES MAGISTRATE JUDGE.
Justin Lewis is charged by indictment with possession of
child pornography in violation of 18 U.S.C. §
2252A(a)(5)(B) and (b)(2). (Doc. 1). Lewis has filed a motion
to suppress evidence seized by the government through orders
under 18 U.S.C. § 2703(d) and while executing search
warrants of his email, residence, and electronic devices. He
has requested a Franks hearing to contest the
validity of the orders and warrants. (Doc. 14). The government
has responded to the motion. (Doc. 32).
reviewing the motion, the Court has, at the parties'
request, considered records that were created in the Northern
District of Florida, where Lewis faces separate charges. In
addition, the Court conducted its own hearing to allow Lewis
to present supplemental argument and evidence in support of
his motion. Lewis submitted multiple additional exhibits and
testified at the hearing- mainly offering his own commentary
and argument on the evidence. In addition, Lewis filed a
twenty-six-page closing argument that included an additional
thirty pages of line-by-line commentary on the previous
hearing. After a review of this voluminous record and upon
referral from the district court, I submit that the motion is
due to be denied.
addition to this case, Lewis also faces charges for wire
fraud in the Northern District of Florida. No. 1:18-cr-15.
The fraud investigation in the Northern District began when
FBI Special Agent Brannon Baxter determined, based on a
referral from Lewis's bank and information from Verizon
Wireless, that Lewis was involved in a scheme to re-sell
wireless data accounts obtained as part of his corporate
account. (Doc. 15-1, ¶¶4-10) (Doc. 37-1, pp.
government then obtained two orders under the Stored
Communications Act, 18 U.S.C. § 2703(d), directing
Verizon and eBay to disclose additional information related
to accounts associated with the alleged fraud. (Doc. 15-1,
18-2). Based on an affidavit provided by Agent Baxter, the
government then sought, and received, search warrants for
Lewis's Gmail account. (Doc. 15-2). The government used
information obtained from Lewis's Gmail account and other
sources to seek a search warrant for Lewis's home address
from this Court. (Doc. 16-1, 17-1). Following a search of
Lewis's home, the government identified several
electronic devices that it believed contained child
pornography. (Doc. 18-1, ¶¶4-6). The government
then received ten separate warrants to search each of these
devices and allegedly discovered evidence of child
pornography. (Doc. 18-1).
has filed a motion to suppress the evidence in this case
based on alleged material and intentional, or reckless,
misrepresentations made by law enforcement in their
affidavits seeking to establish probable cause. (Doc. 14).
Lewis challenged these same applications in his pending case
in the Northern District of Florida. The district judge there
found that Lewis failed to show that the applications
“contained material deliberate falsehood or reckless
disregards for the truth” and denied the motion to
suppress. United States v. Lewis, No. 1:18-cr-15,
slip op. at 13 (N.D. Fla. Jan. 9, 2019).
filed the same motion to suppress here and provided the
records from the previous proceeding, including the testimony
of Lewis and Agent Baxter. (Doc. 14, 37-1, 38-1). Lewis
supplemented the record with additional filings in this
Court. (Doc. 40-1, 41-1, 42-1). The parties agreed that the
Court can rely on the records from the Northern District in
making its factual findings and neither party made any
procedural objections to how the district judge in the
Northern District of Florida disposed of the order. (Doc.
Northern District, the judge held a
“pre-Franks” hearing where Lewis was
given a chance to expound on his argument while the
government was given the opportunity to explain the
discrepancies in its affidavit. See United States v.
McMurtrey, 704 F.3d 502, 509 (7th Cir. 2013). Lewis was
also given “a full opportunity to challenge or rebut
that evidence.” Id. The Court has considered
the district judge's opinion from the Northern District,
but is making its own independent findings based on the
record, including the supplemental records and the hearing
held here. See United States v. Harnage, 976 F.2d
633, 636 n.4 (11th Cir. 1992). At this hearing here, Lewis
provided additional testimony and commentary on the
supplemental exhibits provided to the Court. (Doc. 42, 44).
the Fourth Amendment, a search warrant must be supported by a
sworn affidavit containing information that ‘is
believed or appropriately accepted by the affiant as
true.'” United States v. Rocher, No.
2:17-cr-107, 2018 WL 1071892 (M.D. Fla. Feb. 26, 2018)
(quoting Franks v. Delaware, 438 U.S. 154, 165
(1978)). “Affidavits supporting warrants are
presumptively valid.” United States v.
Lebowitz, 676 F.3d 1000, 1010 (11th Cir. 2012).
Franks, a defendant may challenge the veracity of an
affidavit in support of a search warrant if he makes a
‘substantial preliminary showing' that (1) the
affiant deliberately or recklessly included false statements,
or failed to include material information, in the affidavit;
and (2) the challenged statement or omission was essential to
a finding of probable cause.” United States v.
Arbolaez, 450 F.3d 1283, 1293 (11th Cir. 2006). A
defendant who satisfies both prongs is entitled to an
evidentiary hearing. Id. If, at the hearing,
“perjury or reckless disregard for the truth is
established by a preponderance of the evidence, ” and
if after the false information is set aside and the remaining
facts are insufficient to support probable cause, then
“the search warrant must be voided and the fruits of
the search excluded.” Franks, 438 U.S. at 156.
the first prong, the defendant must point to specific
portions of the search warrant that are claimed to be false
and support those allegations “by an offer of proof,
including affidavits or sworn or otherwise reliable
statements of witnesses; conclusory allegations of negligence
or innocent mistakes are insufficient.” Leach,
498 Fed.Appx. at 917. While, as to the second prong,
“in order to be entitled to relief, a defendant must
show that the misrepresentations or omissions were material,
which means that, absent the misrepresentations or omissions,
probable cause would have been lacking.” Id.
initial matter, the Court notes that much of the supplemental
exhibits provided by Lewis are similar to Lewis's
testimony, mere commentary on issues in the case. (Doc. 42,
44). The exhibits aren't a supplement to the actual
issues raised in Lewis's motion to suppress, or to topics
raised in the proceedings in the Northern District. Rather,
they are new arguments embedded in what Lewis's counsel
refers to repeatedly as demonstrative aids.
example, in Doc. 44, Exhibit F-3, which is a
“demonstrative aid, ” Lewis himself annotates the
§ 2703(d) Verizon application and order by noting that
the application says Verizon is in Bedminster, New Jersey
while the order says its location is Bedford, New Jersey.
Defense counsel, in his briefs to the Court, doesn't
explain why this discrepancy matters, though.
not counsel in argument to the Court, then provides a legal
assessment of his interpretations of 18 U.S.C. § 2703.
Lewis's personal legal assessment then continues for the
remainder of the exhibit as he annotates the order nearly
line-by-line. Lewis does this for each order-even referring
to it, correctly, as “commentary.” See
(Doc. 44, Exh. F-3, L-3, P-3, & R-3). None of Lewis's
personal legal opinions or commentary change the evidence or
show that while Agent Baxter noted inaccuracies or typos,
they were at most the result of mere negligence not the
product of intentional or reckless acts. As Judge Walker
noted in his order, Lewis is objecting to misrepresentations
that are “at most the result of mere
negligence.” (No. 1:18-cv-15, Doc. 73 at 6).
Nevertheless, the Court will consider Lewis's allegations
as to each application and affidavit.
Verizon § 2703 Order
government obtained the Verizon order under §
2703(d). (Doc. 15-1). The order required Verizon to
produce records and information-excluding the contents of
communications not involving representatives and employees of
Verizon-associated with accounts for Lewis, Linda Maloney
(Lewis's mother), and three corporate ...