Monday, August 18, 2014

The Grandmother, Child Pornography and the 4th Amendment

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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