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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

UNITED STATES OF AMERICA : Crim. No. 4:14-CR-0254

:

v. : (Judge Brann)

:

CHRISTOPHER G. LEE, :

:

Defendant. :

MEMORANDUM

June 2, 2015

I. INTRODUCTION

On October 1, 2014, a federal grand jury returned an indictment charging 

Defendant Christopher G. Lee with coercion and enticement of a minor by means 

of interstate commerce in violation of 18 U.S.C. § 2422(a) (Count 1); transporting 

a minor with the intent to engage in sexual activity in violation of 18 U.S.C. § 

2423(a) (Count 2); receipt of child pornography in violation of 18 U.S.C. 

2252A(a)(2) (Count 3); and knowingly possessing child pornography in violation 

of 18 U.S.C. § 2252A(a)(5)(B). On March 18, 2015, a superseding indictment was 

returned amending Count 4 to include language relating to images of prepubescent 

minors and adding production of child pornography in violation of 18 U.S.C. § 

2251(a); and tampering with evidence in violation of 18 U.S.C. § 1512(c). 

On May 1, 2015, Defendant filed a motion to suppress evidence discovered 

after the execution of a search warrant obtained on July 24, 2014, which he asserts 

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was illegally obtained. He further seeks to suppress evidence obtained from the 

execution of several subsequent but unspecified search warrants as fruit of the 

poisonous tree of the illegally obtained search warrant. In accordance with the 

following analysis, the Defendant’s motion to suppress is denied.

II. BACKGROUND

On June 26, 2014, the State College, Pennsylvania Police Department

received a report of an indecent assault involving a 17 year old victim. On the 

basis of this report, the police department applied for and received five search 

warrants seeking evidence to corroborate the victim’s story including, among other 

things, computers, phones, and clothing that the Defendant was wearing on night in 

question. Following the execution of these search warrants, Special Agent Scott 

Koehle of the Office of the Attorney General of Pennsylvania’s Computer 

Forensics Unit examined the contents of the seized computers and computer 

hardware. On the seized laptop he discovered a video depicting a young male who 

appeared to be under the age of 18, naked and masturbating. 

Agent Koehle subsequently notified the State College Police of this find, and 

the department applied for and received a search warrant to search the contents of 

the computer specifically for child pornography and related files. The affidavit of 

probable cause attached to the application for this search warrant elaborates on 

Agent Koehle’s experience and credentials as a forensic examiner on other cases 

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involving child pornography. The affidavit described Agent Koehle’s opinion 

based on his experience that the male in the video was less than 18 years of age 

and therefore a minor. Further, the affidavit listed the opinions of the two affiants, 

who are both detectives with the State College Police Department, that the male in 

the video was under the age of 18, seemingly based upon the fact that they both 

have children. Finally, the affidavit described the opinion of Dr. Rachel Schwab, a 

pediatrician, who “indicated that the boy appeared to be under the age of 18 but 

she could not be 100% certain.” Attached to the affidavit of probable cause was a

screenshot of the male in the video, although the copy included with the present 

motion is too blurred and shadowy to reveal any images.

III. DISCUSSION

Defendant contends that this search warrant lacked substantial evidence 

supporting the magistrate’s determination of probable cause because the magistrate 

was presented with the flawed conclusion that the computer contained a video 

depicting an apparent minor involved in sexual activity. Specifically, he argues 

that the screenshot did not support the conclusion that the person in the video was a 

minor and that even Dr. Schwab was uncertain as to whether the male in the video 

was under the age of 18. The Government responds that the magistrate had a 

substantial basis for finding probable cause based on the statements of the three 

law enforcement officers and the pediatrician who reviewed the video and each 

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opined that the individual pictured was under the age of 18. Moreover, the 

Government further relies on the screen shot that was attached to the affidavit as

demonstrative of probable cause.

The test for probable cause in issuing a search warrant is whether, “given all 

the circumstances set forth in the affidavit before him . . . there is a fair probability 

that contraband or evidence of a crime will be found in a particular place.” Illinois 

v. Gates, 462 U.S. 213, 238 (1983). When a court reviews the issuance of a 

warrant, its only duty is to ensure that the magistrate judge had a “substantial 

basis” to determine that probable cause existed. See Jones v. U.S., 362 U.S. 257, 

271 (1960); see also Spinelli v. U.S., 393 U.S. 410, 419 (1969) (holding that a 

magistrate’s “determination of probable cause should be paid great deference by 

reviewing courts.”).

“When faced with a warrant application to search for child pornography, a 

magistrate must be able to independently evaluate whether the contents of the 

alleged images meet the legal definition of child pornography. . . . That can be 

accomplished in one of three ways: (1) the magistrate can personally view the 

images; (2) the search-warrant affidavit can provide a ‘sufficiently detailed 

description’ of the images; or (3) the search-warrant application can provide some 

other facts that tie the images’ contents to child pornography.” U.S. v. Pavulak, 

700 F.3d 651, 661 (3d Cir. 2012) (quoting U.S. v. Miknevich, 638 F.3d 178, 183 

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(3d Cir. 2011)). This means that the affidavit must contain more than a bare 

conclusion of the affiant that the images legally constitute child pornography. Id. 

(“The problem . . . is that identifying images as child pornography will almost 

always involve, to some degree, a subjective and conclusory determination on the 

part of the viewer, and such inherent subjectivity is precisely why the 

determination should be made by a judge, not the affiant.”); see also U.S. v. Doyle, 

650 F.3d 460, 474 (4th Cir. 2011) (holding a lack of probable cause because the 

affidavit did not provide “anything more than a description of the photographs as 

depicting ‘nude children’”); U.S. v. Burnette, 256 F.3d 14, 18 (1st Cir. 2001) 

(demonstrating a lack of probable cause where an affidavit of probable cause 

involved an affiant’s “legal conclusion parroting the statutory definition” of child 

pornography without “any descriptive support and without an independent review 

of the images” by a magistrate).

In the present case, the probable cause affidavit in support of the search 

warrant application provided a sufficient basis for the decision by the magistrate 

judge to issue the warrant on July 24, 2014. The affidavit described the allegedly 

pornographic video as “that of a young white male standing naked and 

masturbating.” Importantly, the affidavit detailed the opinion of Agent Koehle, a 

forensic examiner who has “conducted hundreds of forensic exams on computers 

and mobile devices and viewed thousands of images and videos of individuals 

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[who were] less than 19 years of age in varying stages of undress exposing their 

genitals or engaged in various sexual acts, commonly referred to as Child 

Pornography;” which opinion was that the video depicted a minor. Additionally, it 

conveyed the assessment of Dr. Schwab, a pediatrician, that the male in the video 

was under 18 years old.1This description of the pornographic video is sufficiently 

detailed and, along with the afore-mentioned expert opinions as to the subject’s 

age, allowed the magistrate judge to independently evaluate whether the contents 

of the video met the legal definition of child pornography. 2 Consequently, the 

Court finds that the affidavit in question provided the magistrate judge with a 

sufficient basis to conclude that probable cause existed.

IV. CONCLUSION

In accordance with the foregoing reasoning, Defendant’s motion to suppress 

the evidence obtained as a result of the July 24, 2014 search warrant is denied.

BY THE COURT: 

 

1 Despite Defendant’s assertion, even though Dr. Schwab stated that she could not be 100% certain that the male 

was under 18 years old, that did not make her opinion unreliable, nor did it deprive the application of probable 

cause. Rather, her statement first indicated her opinion that the boy was under 18 and then acknowledged a rational 

possibility that her assessment may be incorrect, as is always a distinct possibility with such a subjective 

determination.

2 The fact that the State College Police Department included a screenshot of the male in the video could have 

provided a basis on its own to rule against Defendant’s motion because it would have enabled the magistrate judge 

to personally view the image and make an independent determination. However, this Court is unable to view the 

image and the Court has no knowledge as to whether the magistrate judge was provided with a more-discernable 

copy. Consequently the Court cannot rely on this image as the basis for its decision.

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s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge 

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