ROY B. DALTON Jr., District Judge.
This cause is before the Court on the following:
On January 24, 2015, the National Center for Missing and Exploited Children ("
(Doc. 69, pp. 1-2.) NCMEC included the Information and the 14 Photos in the CyperTipline Report and referred it to the Brevard County Sheriff's Office ("
BCSO Agent Michael Spadafora, who was assigned to review the CyberTipline Report: (1) confirmed that the 14 Photos depicted child pornography under federal and state law; (2) determined that the IP Address was subscribed to "Brian Postmus"—the father of Defendant's girlfriend—at the Residence; (3) confirmed that the Phone Number was subscribed to Defendant's girlfriend; and (4) determined that Defendant, his girlfriend, and his girlfriends' parents all lived at the Residence. (Doc. 69, p. 3.)
On March 5, 2015, Agent Spadafora conducted surveillance at the Residence and confirmed that the IP Address was secured such that "only users with access to the internet service at the [Residence] could use the internet there." (Id.)
Based on the foregoing information, Agent Spadafora applied for and obtained a warrant to search the Residence and its curtilage for evidence of possession and distribution of child pornography ("
Subsequent surveillance on March 17, 2015, revealed Defendant and a young child exiting a vehicle parked at the Residence.
Later on March 17, 2015, Agent Spadafora knocked on the door to the Residence and, when an occupant opened the door, he observed Minor inside and asked to speak with Defendant.
The Government contends that, at the outset of the First Interview, "Defendant was deliberately evasive and misleading," exemplified by his denial of wrongdoing and association with the Google User email address and Phone Number. (Doc. 69, p. 4.) Defendant then admitted that he used the Google User email address and claimed that it had been "hacked" in the past year. (Id. at 5.) Defendant eventually admitted that: (1) he obtained child pornography from an adult website; (2) he used his old cell phone ("
At the conclusion of the First Interview, which lasted approximately thirty minutes, Agent Spadafora began executing the Search Warrant. (Doc. 69, p. 5; Doc. 58, p. 2.) Execution of the Search Warrant revealed the New Cell Phone in Defendant's pocket
After the Phone Discovery, Defendant agreed to talk with Agent Spadafora again, prompting a second interview in Defendant's bedroom ("
At the conclusion of the Second Interview, Agent Spadafora interviewed Defendant's girlfriend and, the following day, he interviewed the girlfriend's parents. (Id.) According to the Government, these interviews revealed that: (1) "although the Defendant had a low-functioning intellectual ability, the Defendant was capable of making every day decisions of consequence"; (2) Defendant "understood the difference between right from wrong"; and (3) they "trusted the Defendant to care for [Minor] based on their belief that he was a functional and competent person." (Id.)
On July 30, 2015, a Grand Jury returned an Indictment that charged Defendant with thirteen counts of various child pornography offenses, including receipt, possession, production, and enticement.
Upon motion by defense counsel (Doc. 19), on September 30, 2015, the Court ordered Defendant to the custody of the Attorney General for a psychiatric and psychological examination (Doc. 22).
After a series of continuances (see Docs. 25, 26, 28, 29) and a change in counsel (see Docs. 48, 50, 52), the Court found good cause to consider two untimely motions to suppress by the defense (Docs. 28, 29 ("
At the Hearing, Agent Spadafora corroborated the details of the investigation of the CyberTipline Report and Interviews. Agent Spadafora testified that he had no reason to believe that Defendant suffered from any intellectual disability preventing him from understanding what he was being asked or told. As to the First Interview, Agent Spadafora testified that Defendant was being deliberately dishonest about his lack of knowledge regarding the Google User and Cell Phones. Agent Spadafora also testified that, when administering Miranda warnings, if the person receiving the warnings appears not to understand what is said, he further explains the warnings, and—if the receiver still appears not to comprehend his or her rights—he terminates the interview. He testified that he had no reason to believe that Defendant did not understand or comprehend the warnings given.
Agent Spadafora testified that the Search Warrant authorized him to search "any electronic device that would collect and hold images of child pornography." He did not specifically request to search cell phones because he believed the authorization to search computers and "pocket computers" encompassed smartphones. He conceded on cross-examination that he has specifically requested to search cell phones in prior search warrant applications.
Finally, Agent Spadafora testified that he intended to interview Minor regardless of the Phone Discovery. He would have obtained a search warrant for the Cell Phones based on the First Interview Statements if they had not been covered by the Search Warrant that was issued.
Agent Ziccardi testified that the Search Warrant authorized him to search and examine the SD Card and the Cell Phones, which he viewed as modern day computers that "could contain the evidence [the Agents] were seeking."
The defense introduced expert testimony from Dr. Robert Elliot Kohen regarding Defendant's developmental history based on his: (1) four-hour evaluation of Defendant;
(2) evaluation of records of Defendant's past psychiatric and psychological evaluations and developmental history, medical records, and school records; and (3) review of the BOP Report. Dr. Kohen testified that Defendant suffered from a developmental delay— microcephaly—that prevented his brain from adequately forming as an infant. He further opined that Defendant: (1) has a low comprehension ability; (2) has a moderately low memory composite, which means that he can easily be confused when people speak quickly to him or give him a lot of information; (3) has a "severely low" ability to quickly and accurately process information; (4) is "intellectually deficient in the moderately impaired range," which causes him to have difficulty understanding and making good decisions; and (5) is easily manipulated.
On cross-examination, Dr. Kohen agreed that Defendant: (1) accurately recalled details regarding his history; (2) does not suffer from delusions or hallucinations;
(3) exhibits organized, rational, and concrete thought processes; and (4) understands what he did and that there are legal consequences for his actions. Dr. Kohen did not conduct a competency evaluation of Defendant, nor did he listen to the audio recordings of Defendant's interaction with the Agents at the scene.
The Court announced its findings of fact from the bench and advised the parties' of its intention to deny the Suppression Motions. This Order memorializes those findings.
The Fourth Amendment requires warrants to "particularly describ[e] the place to be searched, and the persons or things to be seized." U.S. Const. amend. IV. When a search exceeds the scope of a warrant, "evidence obtained in that search may be excluded." United States v. Hendrixson, 234 F.3d 494, 497 (11th Cir. 2000). However, "[o]nly the evidence seized while [law enforcement officers] are acting outside of the boundaries of the warrant is subject to suppression." Id. "Total suppression may be appropriate where the executing officer's conduct exceeds any reasonable interpretation of the warrant's provisions." United States v. Wuagneux, 683 F.2d 1343, 1354 (11th Cir. 1982.)
The Fifth Amendment provides that "no person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. As such, the U.S. Supreme Court has put in place protective measures to ensure that "custodial interrogation cannot occur before a suspect is warned of his or her rights against self-incrimination"—that is, a suspect must be warned of his Miranda rights at the outset of a custodial interrogation. Miranda v. Arizona, 382 U.S. 436, 445 (1966). "Under Miranda, the statement of a defendant who has not been warned cannot be used at trial if the statement was the product of interrogation conducted while the defendant was in custody." United States v. Rehaif, ___ F. Supp. 3d ___, 2016 WL 1337265, at *3 (M.D. Fla. Apr. 1, 2016).
Defendant moves to suppress: (1) the Phone Discovery (Doc. 59 ("
Defendant argues that the Agents exceeded the scope of the Search Warrant when they searched and seized the Cell Phones and SD Card and, therefore, moves for suppression of the Phone Discovery. (Doc. 59.) In support, Defendant maintains that the Search Warrant—which "only specified the search and seizure of certain child pornography images and `computers' and related material"—did not cover the search or seizure of cell phones. (Id.) Moreover, Defendant contends that the Search Warrant "provided too much discretion for law enforcement to determine for itself what could be searched and seized" ("
At the outset, the Court rejects the Discretion Argument based on its finding that the Search Warrant was sufficiently particularized and was not overbroad. Importantly, "the [Search Warrant] identified the types of property authorized to be seized and indicated the crimes involved for which evidence was sought." U.S. v. Conrad, No. 3:12-cr-134-J-34TEM, 2013 WL 4028273, at *9 (M.D. Fla. Aug. 7, 2013) (finding that a search warrant similar to the Search Warrant here satisfied the particularity requirement of the Fourth Amendment in that it "limited the search to computer equipment, digital storage devices, and accessories that could contain contraband and evidence linked to the child pornography offenses specified in the warrant").
Further, the Court finds that the language of the Search Warrant permitted the search and seizure of the Cell Phones and SD Card. Indeed, the terms "pocket computer" and "computer storage media" encompass cell phones, as modern cell phones are mini computers that have "immense" storage capacity. See Riley v. California, 134 S.Ct. 2473, 2489 (2014); United States v. Wurie, 728 F.3d 1, 8 (1st Cir. 2013); U.S. v. Flores-Lopez, 670 F.3d 803, 805 (7th Cir. 2012); United States v. Phillips, 9 F.Supp.3d 1130, 1141 (E.D. Cal. 2014).
In any event, the Court is persuaded that the search and seizure of the Cell Phones and SD Card were adequately protected by the good faith exception and the inevitable discovery doctrine. In the case of an overbroad search warrant, evidence obtained during execution of the search warrant will not be excluded when law enforcement officers "act in the `objectively reasonable belief that their conduct does not violate the Fourth Amendment'" ("
The Court is additionally persuaded that the Agents would have inevitably discovered the Phone Discovery. "[E]vidence that results from an illegal search or seizure is nonetheless admissible if `the information ultimately or inevitably would have been discovered by lawful means.'" Jefferson v. Fountain, 382 F.3d 1285, 1295 (11th Cir. 2004) (quoting Nix v. Williams, 467 U.S. 431, 449 (1984)). "In order for evidence to qualify for admission under [the Inevitable Discovery Doctrine], there must be a reasonable probability that the evidence in question would have been discovered by lawful means, and the prosecution must demonstrate that the lawful means which made discovery inevitable were being actively pursued prior to the occurrence of the illegal conduct." Jefferson, 382 F.3d at 1296 (citing United States v. Brookins, 6:14 F.2d 1037, 1042 n.2 (5th Cir. 1980)).
Defendant argues that the Second Interview was a custodial interrogation, implicating his Fifth Amendment right against self-incrimination and entitling him to Miranda warnings. (Doc. 58.) He argues that he did not make a knowing, intelligent, and voluntary waiver of his Miranda rights and, consequently, the Incriminating Statements must be suppressed. (Id.) The Government contests the custodial nature of the Second Interview and, alternatively, argues that Defendant knowingly, intelligently, and voluntarily waived his Miranda rights. (Doc. 69, pp. 9-11.)
It is undisputed that "the right to Miranda warnings attaches when custodial interrogation begins." U.S. v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006). To determine whether a suspect is "in custody," the Supreme Court has set out two distinct inquiries. "[F]irst, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave." Thompson v. Keohane, 516 U.S. 99, 112 (1995)). The "ultimate inquiry" is whether there was a "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Id.; see also Brown, 441 F.3d at 1347 (explaining that, whether a defendant was in custody "depends on whether[,] under the totality of the circumstances, a reasonable man in his position would feel a restraint on his freedom of movement to such extent that he would not feel free to leave"). "The test is objective: the actual, subjective beliefs of the defendant and the interviewing officer on whether the defendant was free to leave are irrelevant." Brown, 441 F.3d at 1347. Relevant factors to the "freedom of movement" inquiry include the location of questioning, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning. Howes v. Fields, 132 S.Ct. 1181, 1189 (2012). Not all restraints on freedom of movement amount to custody for purposes of Miranda; the inquiry is "whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda." Id.
The circumstances surrounding the Second Interview compel a finding that the Second Interview was custodial in nature. The Second Interview occurred after the Agents uncovered the Phone Discovery and located evidence that a sexual battery had occurred. The Court is persuaded that, at this point, a reasonable person would not have felt free to walk away.
The Government relies on Brown for the proposition that "courts are much less likely to find the circumstances custodial when the interrogation occurs in a familiar setting, such as the suspect's home." (Doc. 69, p. 10.) Indeed, "[c]ourts are much less likely to find the circumstances custodial when the interrogation occurs in a familiar or at least neutral surroundings." Brown, 441 F.3d at 1348 (collecting cases). However, while the Brown court considered the location of the interview—in the home of the defendant's girlfriend, where defendant often spent his time—and his freedom to move about the house as significant factors to its determination that the defendant was not in custody, see id. at 1348-49, the court explicitly indicated that the "most important" factor in its consideration was that the interviewing officers told the defendant three times that he was not under arrest, that he was not in custody, and that he was free to go at any time, id. at 1347 (explaining that such advisement will "generally lead to the conclusion that the defendant is not in custody"). Here, the Agents did not tell Defendant that he was free to leave or that he was not under arrest. In fact, they did just the opposite in that they recited the Miranda warnings, suggesting that Defendant was not free to leave and that he was subject to arrest. As such, the Court rejects the Government's argument and finds that Defendant was in custody during the Second Interview, thereby triggering his right to Miranda warnings.
It is undisputed that Agent Spadafora read Defendant his Miranda rights at the commencement of the Second Interview
Dunkins v. Thigpen, 854 F.2d 394, 398 (11th Cir. 1988) (quoting Moran v. Burbine, 475 U.S. 412, 421 (1986) (emphasis added)).
As to the first part of the inquiry, there is no evidence of intimidation, coercion, or deception on the part of the Agents; accordingly, the Court finds that Defendant voluntarily relinquished his Miranda rights when he continued to engage in the Second Interview after being read those rights. See Colorado v. Connelly, 479 U.S. 157, 168 (1986) (indicating that the voluntariness determination is focused on the presence of police coercion).
As to the second part of the inquiry, Defendant has the burden of establishing that, under the totality of the circumstances, he did not knowingly and intelligently waive his rights before speaking to the Agents. Dunkins, 854 F.2d at 298. As in Dunkins, while Defendant's intellectual impairment was established and is a relevant factor, the totality of the circumstances surrounding the confession indicate that Defendant did understand and knowingly and intelligently waive his rights. See id.
Dr. Kohen's testimony established that Defendant does indeed suffer from a mental disability or infirmity and a diminished IQ. However, "diminished mental capacity alone does not prevent a defendant from validly waiving his or her Miranda rights." Dunkins, 854 F.2d at 400; see also Garner v. Mitchell, 557 F.3d 257, 260-61 (6th Cir. 2009). Moreover, Dr. Kohen's testimony was undermined to some extent by the fact that he did not listen to the audio recordings of the interactions surrounding the First or Second Interview or the recitation of and response to the Miranda warnings.
The totality of the circumstances surrounding the delivery of the Miranda rights indicate that Defendant knowingly and intelligently waived those rights. This finding is supported by the following facts:
Ultimately, Defendant's conduct during and leading up to the Second Interview supports a finding that Defendant comprehended his Miranda rights and was capable of making a knowing and intelligent waiver of those rights.
Accordingly, it is hereby
