Wednesday, November 28, 2012

The FBI Candidate, the Interview and the Child Pornography

After being charged with one count of possessing child pornography in violation of 18 U.S. Code § 2252(a)(5)(B), Dominick Pelletier filed a motion to suppress certain evidence.  U.S. v. Pelletier, __ F.3d __, 2012 WL 5870728 (U.S. Court of Appeals for the 7th Circuit 2012). 

To understand how the motion to suppress, and the charge, came about, it is necessary to review what happened after Pelletier applied for a job with the Federal Bureau of Investigation. 

The FBI requires applicants to undergo a personnel security interview and to take a polygraph examination, and Pelletier scheduled his examination “for August 29, 2008, his birthday.”  U.S. v. Pelletier, supra. He arrived at the FBI office, presented his identification,

passed through a metal detector, and checked his cell phone at the front desk. At about 9:45 a.m., Special Agent Cherry met Pelletier and escorted him to a ten-foot-by-ten-foot polygraph suite. Cherry was unarmed and left the door . . . unlocked. At 9:49 a.m., Pelletier read and signed a `Consent to Interview with Polygraph’ form that provided, in part: `I understand that I am not in custody, that my participation in the polygraph examination is voluntary, and that I may leave at any time.’ 

Cherry explained that the polygraph would proceed in three parts: the `pre-test’ (when they would discuss the sorts of questions that would appear during the test); the `in-test’ (the actual administration of the polygraph); and the `post-test’ interview.

During the pre-test, Cherry gave Pelletier a list of questions. Pelletier read them over and said he was concerned about the section on sexual crimes. Pelletier explained that he had done `research’ in Indonesia on child pornography and sexual abuse and was worried it might lead him to fail the test. 

Cherry assured Pelletier everything would be fine so long as the research did not involve actual possession or distribution of child pornography. Pelletier assured Cherry it did not. Cherry then administered the polygraph examination. Pelletier failed.

U.S. v. Pelletier, supra.

That brings us to the post-test interview.  Cherry began it by asking Pelletier

how he thought he did, and Pelletier replied that he had `some trouble with one of the questions’ because of a set of files on his home computer. Pelletier [said] he had looked at images of young females as part of his `research.’ . . . Pelletier admitted he had images of naked children on his home computer. Cherry asked Pelletier to write a statement summarizing their discussion, and Pelletier complied.

The statement said that Pelletier believed he failed because (1) he had used pirated software as a student; and (2) had downloaded and stored child pornography and erotica as part of his research for a graduate school project. Pelletier and Cherry signed the statement at the bottom, and Pelletier remained friendly, cooperative, and interested in the job.

U.S. v. Pelletier, supra.

At this point, Cherry said he wanted “to invite a second agent who knew more about the subject matter to join the interview” and Pelletier agreed.  U.S. v. Pelletier, supra. Cherry contacted Agent Dempsey of the FBI's Cyber Squad, who arrived at the interview room wearing his badge and sidearm.  U.S. v. Pelletier, supra.  Privately, Cherry explained that Cherry had admitting to possessing child pornography. U.S. v. Pelletier, supra.

Dempsey decided to take a low-key, conversational approach when interviewing Pelletier . . . to make [him] believe their conversation was still part of the job interview. Dempsey did not read Pelletier his Miranda rights, although he did begin the interview by telling Pelletier that `you don't have to answer any questions with us, but any questions you do answer you have to tell the truth. You can't lie.’

U.S. v. Pelletier, supra.

Pelletier told Dempsey about his research, “saying it included . . . downloading child pornography.” U.S. v. Pelletier, supra. He said his “computer crashed after he completed his research, which Dempsey took to mean there was no longer any child pornography on Pelletier's computer.” U.S. v. Pelletier, supra. He asked if he could search his computer to make sure it did not contain child pornography, but Pelletier refused, saying

he was concerned there was `child erotica’ on his computer, including photos from the `LS Models’ series. Dempsey explained that parts of the LS Models series are child pornography and pressed Pelletier on his distinction between child erotica and child pornography. [He] read Pelletier the definition of child pornography, and Pelletier admitted that parts of the LS Models series were pornographic.

Dempsey again asked for permission to search Pelletier's home computer so [he] could recover the contraband, and Pelletier refused, [saying] he was afraid he had `hardcore’ child pornography on the computer. Pelletier also thought his girlfriend might be planning a surprise birthday party for him later that evening, and did not want his friends to see the FBI searching his house. . . . 

[N]ear the end of the interview, Pelletier admitted to `inadvertently’ creating child pornography by recording himself having sex with a girl he later learned was under the age of eighteen. It is unclear . . . whether he made this admission before or after Dempsey asked for consent to search [his] computer.

U.S. v. Pelletier, supra.

After “the first or the second refusal” Dempsey left the room “and directed another FBI agent to go to Pelletier's home and freeze the premises pending a search warrant or Pelletier's consent to search.” U.S. v. Pelletier, supra. He also contacted an Assistant U.S. Attorney about getting a federal search warrant and the DeKalb Police Department about getting a state search warrant. U.S. v. Pelletier, supra. Dempsey went back into the room and told Pelletier that if he did not consent to a search, Dempsey was going to try to get a search warrant. U.S. v. Pelletier, supra. Pelletier signed a written consent form, the interview ended and Pelletier left the field office.  U.S. v. Pelletier, supra.

The agents found “more than six hundred images of child pornography” on Pelletier’s computer, which led to the charge noted above.  U.S. v. Pelletier, supra. He moved to suppress (i) his statements to the agents on the grounds that he was not given Miranda warnings and (ii) the images on the grounds that “his consent was involuntary.”  U.S. v. Pelletier, supra. 

As Wikipedia explains, Miranda warnings are required whenever someone is in police “custody” and police interrogate them about a crime.  As Wikipedia also explains, police “custody” requires that the individual’s freedom of movement was restrained by police officers, such that he or she did not feel free to leave and/or decline the interview.  Unless someone is in custody, police are not required to give the warnings.

The district court judge held an evidentiary hearing on Pelletier’s Miranda argument and

asked Pelletier to specify precisely when he believed his job interview became objectively custodial. Pelletier answered that he was in custody `once Cherry ascertained that child pornography was likely on [Pelletier's] computer,’ or, “[i]n any event . . . no later than when Dempsey[ ] entered the polygraph suite brandishing his weapon and badge.’

U.S. v. Pelletier, supra.

In reviewing the district court judge’s denial of Pelletier’s motion to suppress for a Miranda violation, the Court of Appeals explained that the test for custody is whether a reasonable person would have felt she was not at liberty to terminate the interrogation and leave.  U.S. v. Pelletier, supra.  It noted, first, that the fact Pelletier was doing a job interview did not establish custody:  “The fact Pelletier wanted a job at the FBI office does not mean he was being held there against his will.” U.S. v. Pelletier, supra.  Pelletier also argued that other aspects of the interview made it custodial:

[He] was with the agents for a substantial amount of time -- from 9:49 a.m. until 3:20 p .m. . . . Dempsey was armed and wearing a badge during his portion of the interview. It would have been awkward for Pelletier to leave; he would have had to either wander out of an unfamiliar, secured building or ask for an escort back to the front door.

That said, Dempsey testified that he would have given Pelletier an escort and let him go if Pelletier had asked. Nevertheless, these circumstances might have weighed in favor of custody if Pelletier had come to the office for questioning as a suspect. But Pelletier did not come to the FBI as a suspect; he came as a job applicant. 

U.S. v. Pelletier, supra. 

The Court of Appeals noted that a reasonable applicant for a job with the FBI would expect to go through what Pelletier went through, and therefore did not find that a reasonable person in Pelletier’s situation would have thought the interview was custodial for Miranda purposes.  U.S. v. Pelletier, supra. 

In his motion to suppress, Pelletier argued that “the FBI involuntarily obtained consent to search his computer.”  U.S. v. Pelletier, supra.  The district court judge rejected this argument, “holding that (1) Pelletier voluntarily consented to the search; and (2) even if his consent was involuntary, the pornographic images would have been inevitably discovered.”  U.S. v. Pelletier, supra.  The Court of Appeals found that it only needed to address the second issue – the inevitable discovery doctrine.  Under this doctrine, illegally seized evidence need not

be suppressed if the government can prove by a preponderance of the evidence that [it] inevitably would have been discovered by lawful means. . . . To satisfy this burden, the government must show that (1) `it had, or would have obtained, an independent, legal justification for conducting a search that would have led to the discovery of the evidence’; and (2) `it would have conducted a lawful search absent the challenged conduct.’ U.S. v. Marrocco, 578 F.3d 627 (U.S. Court of Appeals for the 7th Circuit 2009). In other words, the government must show not only that it could have obtained a warrant, but also that it would have obtained a warrant. . . .

U.S. v. Pelletier, supra (emphasis in the original).

The Court of Appeals found that the government had established both requirements in this case.  As to the first, the court noted that Pelletier told two FBI agents he had

child pornography on his computer. Those statements obviously provided probable cause to believe [he] possessed child pornography. Pelletier counters that many of these statements should have been suppressed because he was not given his Miranda warnings, but we have already rejected that argument. Even if these statements were suppressed, it would not make a difference. Pelletier claimed in the district court that he was entitled to Miranda warnings immediately after `Agent Cherry ascertained that child pornography was likely on [Pelletier's] computer.’

If Agent Cherry knew there `likely’ was child pornography on Pelletier's computer, then Cherry had more than enough evidence to seek a search warrant. . . .Thus, the government would have had ample evidence for a search warrant even if Pelletier prevailed in his Miranda claim.

U.S. v. Pelletier, supra. 

As to the second requirement – the government’s demonstrating that it would have obtained a search warrant -- the Court of Appeals noted that the government did not have to show that it actually obtained a warrant.  U.S. v. Pelletier, supra.  Instead, it merely needs to show that it would be unreasonable to find that after discovering the information in question, the agents would not have sought a warrant.  U.S. v. Pelletier, supra.  It then explained that the government’s case on this point was “compelling”:

It is unreasonable to think that, after Pelletier admitted to two FBI agents that he had child pornography, the FBI would have failed to follow up and obtain a search warrant. That fact alone is enough for the inevitable discovery doctrine to apply. . . . Indeed, Dempsey testified [at the suppression hearing] that, during the interview, he called both state and federal law enforcement authorities to start pursuing a search warrant, should it become necessary later. . . . [T]here is ample evidence that the FBI inevitably would have discovered Pelletier's child pornography cache.

Pelletier's only response is that the agents declined to arrest him on the day of the interview. This, he contends,  `calls into question any claim that a warrant would have inevitably been obtained.’ We disagree.

The fact that police may deprive someone of their liberty does not mean that they should. . . . Here, the FBI agents easily could have decided that immediately arresting Pelletier was unnecessary because he still thought he was a job candidate and therefore was unlikely to flee. We think that act of discretion demonstrated sound judgment, not a weak case. 

U.S. v. Pelletier, supra (emphasis in the original).

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