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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