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United States v. Ho

United States District Court, S.D. Ohio, Western Division

August 24, 2017

ERIC ZYN HO, Defendant.



         Defendant Eric Zyn Ho is charged with conspiracy to commit sex trafficking of children in violation of 18 U.S.C. §§ 1591(a)(1) and 1594(c) (Count One) and conspiracy to produce child pornography in violation of 18 U.S.C. § 2251(a), (e) (Count Two). (Doc. 18.)[1] This matter is before the Court on Defendant Ho's Motion to Suppress Evidence. (Doc. 29.) The United States filed a memorandum in opposition (Doc. 35), and, with leave of Court, Defendant Ho filed a reply (Doc. 38). Oral argument took place on August 3, 2017. Defendant Ho thereafter filed a Post Hearing Supplemental Memorandum to Correct a Matter of Law. (Doc. 39.) For the reasons that follow, Defendant Ho's Motion will be DENIED.

         I. BACKGROUND

         Defendant Ho asks the Court to suppress the evidence seized-from the residence at 758 Rue Center Court, Apt. J, Cincinnati, Ohio 45245-by the Union Township Police Department, on or about May 2, 2017, in the course of executing a search warrant. (Doc. 29 at PageID 115.) He claims the search warrant violated the Fourth Amendment because it was not supported by probable cause and because the good-faith rule, articulated in United States v. Leon, 468 U.S. 897 (1984), does not apply. (Id. at PageID 117, 123.)

         On May 2, 2017, affiant John Pavia, a detective with the Union Township Police Department, sought and received a search warrant from a Clermont County Municipal Court Judge. Detective Pavia identified three state felony criminal violations in connection with the warrant: sexual battery (in violation of Ohio Rev. Code § 2907.03), unlawful sexual conduct with a minor (in violation of Ohio Rev. Code § 2907.04), and interference with custody (in violation of Ohio Rev. Code § 2919.23). (Doc. 29-1, SEALED, PageID 131.) The salient facts within his supporting affidavit are as follows:

. On April 28, 2017, a fourteen-year-old minor (“MINOR VICTIM A”) was “discovered missing” from Griffith, Indiana and “a report was filed” with the Lake County, Indiana Sheriff. (Id.)
. On May 2, 2017, a Federal Bureau of Investigation (“FBI”) agent in Kansas learned that Ian Smith and MINOR VICTIM A met “over social media.” Smith stated that, on April 27, 2017, he picked up MINOR VICTIM A in Griffith and they proceeded to Fort Wayne, Indiana where they spent the night. On April 28, 2017, they drove to Franklin, Ohio where they stayed the night. (Id.)
. The next day, April 29, 2017, Smith and MINOR VICTIM A met “Erik Z. Ho” and “Bryan M. Otero” at a Family Dollar store located on State Route 125 in Clermont County, Ohio. Smith had made arrangements for MINOR VICTIM A to stay with them for “an unspecified period of time.” He introduced MINOR VICTIM A to Ho and Otero, gave her bags to them, and “provided her $250 in spending money.” Smith stated he would return for MINOR VICTIM A at a later date once “he obtained enough money for his own residence.” Smith told Ho and Otero that MINOR VICTIM A was fourteen years old and resided in a state other than Ohio. (Id.)
. On May 1, 2017, Smith received an email from Otero that read: “Things just need to simmer down and it will take more than a couple days for it to settle down. I don't mind letting her out early, but I also don't want to put you in financial risk/ruin. She is slightly excited learning the things I will be teaching her.” This email originated from the address with the display name “Kilo Hyte.” (Id.)
. On May 2, 2017, police officers from Union Township, along with two FBI agents, responded to 758 Rue Center Court, Apt. J, Cincinnati, Ohio 45245, for a welfare check on MINOR VICTIM A. They knocked on the door, and Otero answered. The officers entered the residence and found Ho and MINOR VICTIM A “in the closet of the back bedroom.” (Id.)
. Ho and Otero were transported to the Union Township Police Department to be interviewed. MINOR VICTIM A was transported to Cincinnati Children's Hospital “for the completion of a sexual assault evidence collection kit and to be forensically interviewed.” (Id. at PageID 131-32.)
. While in the residence, the FBI agents observed digital media and sex toys in plain view “in the rear left bedroom.” (Id. at PageID 132.)
. Detective Pavia is an eighteen-year veteran of Union Township Police Department, having served as a detective for more than 11 years. Through his prior training and experience, he knows “that DNA could still be on the victim of a sex offense as well as the bedding where the incident occurred.” (Id.)


         A. Probable Cause

         In determining whether a search warrant is supported by probable cause, a court may consider only the “four corners of the affidavit.” United States v. Frazier, 423 F.3d 526, 531 (6th Cir. 2005) (citing Whiteley v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 565 n.8 (1971)). Thus, “information known to the officer but not conveyed to the magistrate is irrelevant.” United States v. Abernathy, 843 F.3d 243, 249 (6th Cir. 2016) (quoting United States v. Brooks, 594 F.3d 488, 492 (6th Cir. 2010)).

         An affidavit must show a “likelihood of two things” to establish probable cause for a search. Id. (internal quotations and citations omitted). They are: “first, that the items sought are seizable by virtue of being connected with criminal activity; and second, that the items will be found in the place to be searched.” Id. (citing United States v. Church, 823 F.3d 351, 355 (6th Cir. 2016 (citing Zurcher v. Stanford Daily,436 U.S. 547, 555 n.6 (1978))) (internal quotations omitted). “[E]vidence of a crime” is a critical component of a search warrant. Armstrong v. City of Melvindale, 432 F.3d 695, 700 (6th Cir. 2006) (citing Zurcher). To this end, an applicant for a search warrant ...

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