After Louis Colon–Gentile was charged “in a
seven-count indictment with distribution, receipt, and possession of child
pornography, in violation of Title 18, United States Code §§ 2252(a)(2), 2252(a)(4)(B), 2252(b)(1) and 2252(b)(2)”, he moved to
suppress “physical evidence and
statements he made, on the ground that they were obtained in violation of the 4th Amendment.” U.S. v. Colon-Gentile, 2014 WL 2157541 (U.S. District Court for the Eastern District of New York 2014).
The
U.S. District Court Judge who has the case held an evidentiary hearing, at
which both Colon-Gentile and the prosecution presented evidence and made
arguments. U.S. v. Colon-Gentile, supra.Three people testified at the evidentiary hearing: Special
Agent Thomas Thompson of the Federal Bureau of Investigation (FBI), Colon-Gentile
and his grandmother, Carmella Barchetta. U.S.
v. Colon-Gentile, supra. Based on
the evidence presented, the judge found that an FBI
investigation into communications between
two Yahoo users with the screen
names `Jackn_wm’ and `ready_2_snuff_u’ revealed private chats during which both
users expressed an interest in child pornography. . . . Information obtained in
response to subpoenas served on Yahoo and Verizon, along with information from
law enforcement databases, indicated the activity of user `ready_2_snuf_u’ was
originating from a single-family residence in Brooklyn, owed by Barchetta,
where Colon–Gentile also resides. . . .
On the evening of November 6,
2012, between 8:00 and 9:00 P.M., Agent Thompson and his partner, FBI Special
Agent Aaron Spiveck, went to the Barchetta residence to interview Colon-Gentile
about his online activities. . . . The agents stood on the front stoop, rang
the doorbell and knocked on the door. . . . When Barchetta came to the door and
opened it, the agents stepped into a foyer area between the outside entrance
and a glass door leading to the living room. . . . Thompson testified it was a
cold night, so Barchetta was standing back from the front door, and he had to
step into the foyer to show her his identification. . . .
Now standing in the
foyer, the agents told Barchetta they wanted to interview Colon–Gentile because
they believed he might be the victim of a computer crime. . . . Thompson . . .
did not tell Barchetta the real reason for their visit because he `didn't want
to upset her.’ . . .. Barchetta told the agents to wait and went further into
the house, shutting the interior glass door between the living room and the
foyer. . . . A short time later, she came back with Colon–Gentile.
After the agents [told him] they
wanted to speak with him about the Yahoo account `ready_2_snuff_u,’
Colon–Gentile told Barchetta he wanted to speak to the agents privately. .
. . Barchetta [said] she did not believe Thompson and Spiveck were
actually with the FBI, so Thompson handed her his business card and told her to
call his office to verify the agents' identities. . . . Barchetta went through
the interior glass door into the living room. After a few minutes, Barchetta
came back with a phone in her hand. . . .
She said she called the number on the card,
but no one answered. . . . Barchetta
eventually told the agents she was going to call the police. . . . She also [said]
she wanted the agents out of her house. . . . Thompson and Spiveck `began to
leave . . . when they were stopped by Colon–Gentile, who said `hold on . . . [l]et
me get your business card, I'll call your office.’ . . . The agents had exited
the house after being told to leave by Barchetta, and were now standing . . .
on the front stoop. Colon–Gentile went back into the house to call
the agents' office to verify their identities.
While [he] was inside, Thompson
received a phone call from his office asking him to confirm that he and Spiveck
were at the Barchetta residence in Brooklyn, which he did. . . . When
Colon–Gentile returned, he opened the front and storm doors leading to the
stoop . . . and said, `I called your office. They verif[ied] who you guys are,
but my grandma's still not letting you guys in.’ . . . [He] asked whether they could do the interview
outside the house, on the front stoop, and the agents agreed. . . .
Thompson told Colon–Gentile he
was not under arrest, and was free to discontinue the interview at any time.
. . . He also told him the FBI's `number one goal in these types of cases
is to find those people who are actually making [ ] child pornography and [his]
cooperation could maybe help in this area.’ . . . The agents then conducted an
interview with Colon–Gentile in which he admitted he was the user of the
‘ready_2_snuff_u’ Yahoo account, and had traded child pornography. . . . [He] also
[said] he had child pornography on his desktop computer. . . .
Thompson asked Colon–Gentile if he would be willing to give consent for the
agents to review his computer back at their office, and he agreed. . .
.
During the . . . conversation
with defendant, a NYPD patrol car showed up. . . . Spiveck went over to talk to
the two officers in the car. Following that conversation, Spiveck rejoined
Thompson and they continued interviewing Colon–Gentile. . . . Barchetta
came out of the house, went over to the NYPD officers and `started yelling at
them.’ . . . [T]he interview of
defendant by Thompson and Spiveck continued. During the interview,
Colon–Gentile said that he would go and get his computer. . . .
[
He] went into the house, got his
desktop computer, and brought it to the stoop where the agents were
standing. . . . [They] showed [him] a `Consent to Search
Computer(s)’ form . . . and Thompson explained it would give them written
consent to search the computer. . . . Thompson [said] Colon–Gentile did not
have to sign the form, but his cooperation would be appreciated. . . . [He]
signed the `Consent to Search Computer(s)’ form, as well as a `Consent to
Assume Online Presence’ form . . . and an FBI property voucher. . . . [He] read
and signed the forms without asking the agents any questions. . .
According to Thompson, he did not
appear to be upset, or mentally or physically disabled in any way. . . . [H]e
appeared `calm’ and was `cooperative’ throughout his interaction with the
agents. . . . The only time [he] appeared upset, according to Thompson, was at
the very end of the interview, after he had read and signed the documents, when
he asked the agents whether they were going to arrest him. . . . Thompson
told Colon–Gentile that he was not under arrest. . . .
At the close of the front stoop
interview, Thompson [said] he and Spiveck would take the computer back to FBI
offices, review it, and write a report for the prosecutor, who would make a
final decision about what would happen. . . . Charges were later filed, and an
arrest made. The motion seeks suppression of the evidence seized and of the
statements made by [Colon-Gentile] on the night of the November 6, 2012
interview.
U.S.
v. Colon-Gentile, supra.
As Wikipedia explains, the 4th Amendment
establishes a right for citizens to be free from “unreasonable” searches and
seizures, and defines a “reasonable” search and/or seizure as one conducted
pursuant to a warrant. As Wikipedia also
notes, the U.S. Supreme Court has recognized exceptions to the warrant requirement,
one of which is consent. Here,
Colon-Gentile argued that while he consented to the search of the computer, his
consent was not valid, for reasons we will get to.
The judge began his analysis of Colon-Gentile’s
argument by explaining that a
warrantless search or seizure . .
. does not offend the 4th Amendment `if the authorities have obtained the
voluntary consent of a person authorized to grant such consent.’ U.S. v.
Elliott, 50 F.3d 180 (U.S. Court of Appeals for the 2d Circuit 1995). `When the government seeks to justify a
search on the basis of the subject's consent, and the subject is not in
custody, the government must demonstrate that the consent “was in fact
voluntarily given, and not the result of duress or coercion, express or implied.’”
U.S. v. Schaefer, 859
F.Supp.2d 397, 406 (U.S. District Court for the Eastern District of New York 2012) (quoting
Schneckloth v. Bustamonte, 412 U.S. 218 (1973). . . . The
government bears the burden of proving by a preponderance of the evidence that consent
was freely and voluntarily given. See Bumper v. North Carolina, 391 U.S. 543 (1968).
Whether consent was voluntary `is
a question of fact determined by a totality of all the circumstances.’ U.S. v.
Isiofia, 370 F.3d 226 (U.S. Court of Appeals for the 2d Circuit 2004).
The `ultimate question presented is whether the officer had a reasonable basis
for believing there had been consent to the search. U.S. v. Garcia, 56
F.3d 418, (U.S. Court of Appeals for the 2d Circuit 1995). . . . In assessing the `totality of all the
surrounding circumstances-- the characteristics of the accused and the details
of the interrogation,’ courts have considered various factors. . . .
Relevant factors include `the
youth of the accused, his lack of education, or his low intelligence, . . . the
length of detention, the repeated and prolonged nature of the questioning, [ ]
the use of physical punishment such as deprivation of food or sleep . . . whether
the defendant was in custody and in handcuffs, whether there was a show of
force, whether the agents told the defendant a search warrant would be
obtained, whether the defendant had knowledge of the right to refuse consent,
and whether the defendant previously had refused consent.’ U.S. v. Schaefer, 859 F.Supp. 2d 397 (U.S. District Court for the
Eastern District of New York 2012) (quoting Schneckcloth
v. Bustamonte, supra). The
government has no affirmative obligation to advise the suspect of his right to
refuse consent to search. . . .
U.S.
v. Colon-Gentile, supra
The judge applied
these standards and found Colon-Gentile’s consent “to the seizure and
subsequent search of his computer was knowing and voluntary.” U.S. v. Colon-Gentile, supra. He explained that in this case, Colon-Gentile
stopped the agents as they were
leaving the
Barchetta residence and asked to speak with them outside on the front stoop; he
agreed to the interview after being told by Thompson that he was not under
arrest and could discontinue the conversation at any time; unaccompanied by the
agents, he retrieved his computer from inside the residence and brought it
outside to the stoop where the agents had remained; and he read and signed
consent forms that permitted law enforcement to search his desktop computer and
to assume his online identity.
With respect to other factors, [Colon-Gentile]
is a 26–year–old native English speaker who graduated magna cum laude from
college with a degree in business administration, the interview took place at
his home between 8:00 and 9:00 PM, he appeared calm and was cooperative
throughout, and the agents never placed him under arrest, handcuffed him, drew
their weapons, or threatened physical harm of any kind toward him or his
grandmother.
U.S.
v. Colon-Gentile, supra.
He then took up
Colon-Gentile’s argument that his consent was not voluntary.
Colon–Gentile
asserts that his consent was not voluntary because (1) agents misled him into
believing he was not in trouble; (2) he felt he had to consent due to the
agents' threat to tell his grandmother that he was involved in child pornography,
coupled with his concern for his grandmother's health; and (3) he believed he
had no choice but to consent because the agents told him they had a subpoena.
U.S.
v. Colon-Gentile, supra.
The judge rejected the first argument because he
found that Thomson
credibly testified he told
Colon–Gentile . . .his top priority was catching those responsible for making child
pornography. . . . As the government points out, , . . . this case is readily
distinguishable from the cases cited by defendant, in which law enforcement
agents . . . enticed a defendant to cooperate, through false pretenses. . . . .
Here, there were no false pretenses; rather, Thompson honestly communicated his
investigatory priorities to [Colon-Gentile]. . . . Nor, despite advising
Colon–Gentile that he was not in trouble, did the agents ever state or suggest
that the investigation they would conduct could never lead to criminal charges
being lodged against him.
U.S.
v. Colon-Gentile, supra.
The judge rejected Colon-Gentile’s second argument
because he found Colon-Gentile’s testimony that the agents threatened to tell
his grandmother
about his involvement in child
pornography as a means of exerting influence over him, simply, incredible. More
than that, any concerns [he]may have had about his grandmother's health do not
render his consent involuntary because they were never communicated by him to
the agents, nor were they readily apparent. . . . To bolster his
claims, [he] testified, but never told the agents at the time, that
he was worried about his grandmother's health because she had a heart attack
several years earlier, and, as a result, he felt he had no choice but to
consent to the seizure and search of his computer. . . .
All of this is belied . . . by
the fact the agents were leaving the residence at Barchetta's request before
any seizure or statement, and it was [Colon-Gentile] who asked them not to
leave. On the totality of the circumstances, the agents had no basis to believe
the voluntariness of [his] consent could have been impacted by his concern for
his grandmother's heart.
U.S.
v. Colon-Gentile, supra.
Finally, the judge
also rejected Colon-Gentile’s third argument because while
Thompson
acknowledged that he may have mentioned a `subpoena’ on the night of November
6th, that passing reference was immaterial to Colon–Gentile's consent. In
response to a question from Barchetta about how the agents found her house, Thompson
explained that `the IP address [obtained] through a subpoena came back to [the
Barchetta] residence.’ Contrary to [Colon-Gentile’s] recollection, Thompson
also testified that neither he nor Spiveck told Colon–Gentile they possessed a
subpoena, or any other legal process, that authorized them to question [him],
or seize and search his computer, without his consent. . . .
Thompson's
version is corroborated by the evidence that the agents left the residence at
Barchetta's request -- something they would be unlikely to do if they possessed
a legal document that authorized them to be there.
U.S.
v. Colon-Gentile, supra.
For all these
reasons, the judge denied Colon-Gentile’s motion to suppress the seizure of his
computer and its contents and the statements he made to the agents. U.S. v. Colon-Gentile, supra.
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