UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
United States of America
v. Crim. No. 16-91-01-JL
Opinion No. 2017 DNH 223
Brad Smith
ORDER ON MOTION TO SUPPRESS
The suppression issues in this criminal case involve a
United States Magistrate Judge’s authority to issue a search
warrant under the Stored Communications Act, 18 U.S.C. § 2703,
as well as law enforcement investigators’ entry onto a gated
farm property prior to questioning a suspect and conducting a
consent search of his home.
Defendant Brad Smith was charged with six counts of sexual
exploitation of children in violation of 18 U.S.C. § 2251(a).
Smith was accused of making six video recordings of himself
raping the three-year old daughter of his employer, at whose
home Smith was working when he committed the assault. Smith
moved to suppress evidence obtained, pursuant to a search
warrant issued by a federal Magistrate Judge in the Eastern
District of Michigan, from his email account that first put
investigators on his trail. He also sought suppression of
evidence seized during a consensual search from his residence in
Louisiana, including the computer and external hard drive upon
which the charged videos and other child pornography were
located, as well as clothing and other items which linked him to
the crime. Finally, Smith moved to suppress statements he made
to law enforcement agents contemporaneous with the search as
well as his video-recorded confession. He argues that: 1) the
Magistrate Judge did not have jurisdiction to issue the warrant;
2) his consent to enter his home and seize his property was not
knowingly, voluntarily, intelligently, or freely given and
resulted from officers’ illegal entry onto his property; 3) he
was in custody during the search of his residence and was not
given Miranda warnings before making any statements, and those
statements were the product of unlawful coercion; and 4) his
later pre-confession Miranda waiver was also unlawfully coerced,
and was the fruit of the poisonous tree.
After a two-day evidentiary hearing which included
testimony from three investigating officers and the defendant
himself, the court denied the motion. This details the basis
for that ruling. See, e.g., United States v. Joubert, 980 F.
Supp. 2d 53, 55 & n.1 aff'd,
778 F.3d 247 (1st Cir. 2015)
(citing In re Mosley,
494 F.3d 1320, 1328 (11th Cir. 2007))
(noting a district court’s authority to later reduce its prior
oral findings and rulings to writing). As fully explained
below, the Magistrate Judge had jurisdiction to issue the search
warrant, Smith’s consent to search was valid, and the
2
introduction of Smith’s statements did not violate the Fifth
Amendment.
I. BACKGROUND
Based upon the parties’ briefing and the testimony and
other evidence presented at the hearing, the court makes the
following factual findings. In early 2014, federal agents
located child pornography in an email account belonging to an
individual -- known by the initials “T.D.” -- living in Ann
Arbor, Michigan. A search of T.D.’s residence yielded child
pornography stored electronically. T.D. also admitted that he
used his email account to trade child pornography. Further
review of T.D.’s email account revealed that T.D. had received
two child pornography videos and an offer of 70 more from the
email address “[email protected].” The sender identified the
female minor in the video recordings as his daughter.
Based on this information, Special Agent Desvallons
Desmarets of Homeland Security Investigations (HSI)1 in Detroit,
Michigan, issued an administrative subpoena to Yahoo! in late
October 2015, for subscriber records pertaining to the e-mail
account [email protected]. Before Yahoo! responded to the
administrative subpoena, however, Magistrate Judge Elizabeth
1 Various officials testified that HSI is the agency responsible
for investigating child pornography in the United States.
3
Stafford of the Eastern District of Michigan issued a search
warrant, authorizing the search and seizure of the content of
the [email protected] account. Complying with the latter
subpoena, Yahoo! produced to law enforcement the content of the
[email protected] e-mail account, including subscriber
information and IP addresses related to the account’s user
logins. The e-mail account was registered to an individual
named Brad Smith of Concord, New Hampshire, with a birth date in
November 1983. In January 2016, law enforcement databases
tracked Smith to a pecan farm in Breaux Bridge, Louisiana,
familiar to members of local law enforcement. The investigation
was referred to Special Agents Lance Lopez and Erol Catalan of
HSI in Louisiana, and Investigator (now Trooper) Georgiana
Kibodeaux of the Louisiana State Police for further action.
On January 6 and 7, 2016, Agent Lopez conducted
surveillance of the pecan farm where authorities believed Smith
was located. The farm abuts Main Highway, with most of its
boundary demarcated by an open, see-through fence comprised of
metal poles set far enough apart for adults to step through. As
his surveillance could not confirm Smith’s presence, Agent Lopez
called a contact phone number posted adjacent to the driveway
and inquired about tours. Although the individual who answered
the phone said the farm was not currently offering tours, he
identified himself as Brad Smith.
4
A few days later, Agent Lopez spoke with an Assistant
United States Attorney about obtaining a search warrant. The
two determined that the information in Lopez’s possession --
Smith’s Yahoo! emails -– was probably too “stale” to support a
search warrant. Employing a different tack, Lopez, Catalan and
Kibodeaux returned to the pecan farm on January 14, 2016, to
conduct a “knock-and-talk,” interview,2 intending to make contact
with Smith. Although a see-through gate similar in design to
the perimeter fence blocked their vehicle from entering the
driveway, an adjacent sign provided a phone number for
deliveries and a key-pad for calling the number. When no one
answered, Lopez and Kibodeaux stepped through one of the many
openings in the gate. After stepping through the gate, Kibodeaux
realized the there was enough “give” in the gate’s two
overlapping sections that they could be parted enough to have
walked between them.3 The two then proceeded down the long
driveway that bisected large open fields of pecan trees.
2 A knock-and-talk is an investigative procedure where “officers
who have not yet secured a warrant go to investigate a suspected
crime and determine whether the suspect will cooperate.” United
States v. Paneto, 661 F.3d 709, 712 (1st Cir. 2011).
3 Def. Exh. E2. Smith disputed this claim when he later
testified, but the court credits Kibodeaux’s testimony on this
point based on her general credibility and the physical evidence
involved. See supra Part II.B.2.n.17.
5
Kibodeaux received no answer when she knocked on the door
of the main farmhouse.4 But immediately thereafter, she and
Lopez heard the sound of farm equipment behind a large, open,
carport-style garage further down the driveway. Walking toward
the sound, they saw a male sitting on a piece of heavy equipment
and a woman standing nearby with a shovel. Over the din of the
equipment, Lopez attracted the male’s attention by waving his
4 The defendant viewed this point as significant enough to
warrant his own directly contradictory testimony, attempting to
undermine Kibodeaux’s credibility by testifying that he “knew
for a fact” that the residents of the main house were home
because one of the home’s elderly residents was in the house
near the front door “all the time” and therefore that
Kibodeaux’s knock would not have gone unanswered. Suppression
Tr., doc. no. 43, at 21-22. Smith provided no affidavit or
testimony from the residents to support this assertion. Nor did
he swear in his own detailed affidavit that the residents were
home. Doc. no. 19-3. Without shifting the burden of proof on
suppression, it is reasonable to assume that the defense would
have provided such evidence if it was in a position to establish
that the main house residents were actually home at the time.
Cf., United States v. Savarese, 649 F.2d 83, 87 (1st Cir. 1987)
(noting that the government, in its response to a criminal
defendant’s theory of defense, has some leeway to comment on the
defendant’s failure to produce evidence supporting the
defendant’s stated theory). It is also reasonable to assume
that, if they were home, the main house residents would have at
some point inquired as to why the three investigators were on
the property in the driveway in front of the house. Given lack
of evidence to support defendant’s assertion, the court credits
the testimony of Lopez and Kibodeaux on this point. This
juxtaposition between credible testimony by the investigators
and less credible testimony by the defendant (similar to the
conflict regarding the gate), inter alia, has lead the court to
credit the investigators’ testimony, both in general and
especially where it conflicts with the defendant’s testimony.
6
arms. The male -- who turned out to be Smith -- got off the
equipment he was using, and walked toward the front of the
garage where Lopez and Kibodeaux were standing. Lopez
identified both he and Kibodeaux as law enforcement officials
and presented Smith with the “wallet” containing his badge and
credentials, which Smith examined before returning it to Lopez.
Kibodeaux was wearing official Louisiana State Police clothing
emblazoned with a badge and was wearing her official badge as
well.
Lopez engaged him in conversation by explaining that it was
part of his job with HSI to inquire about the possible
employment of immigrants on area farms and whether any were
currently working there.5 The male identified himself as Brad
Smith and showed the agents his New Hampshire driver’s license.
Acceding to the agents’ request, Smith then provided the agents
with the driveway gate’s access code so that Agent Catalan could
drive, rather than walk, up the driveway. As they stood in the
driveway while Catalan drove its length up to the house, Agent
Lopez asked Smith if he had a personal email account. Smith
5 Smith testified that the agents said they were investigating
illegal immigration, specifically, that they were “looking for
Mexicans.” The court credits the agents’ testimony on this
issue.
7
identified two -- one of which was the targeted account,
[email protected].
Agent Lopez informed Smith that there were other issues
that needed to be addressed. Given the sensitive nature of the
subject matter of the investigation (child pornography), Lopez
asked Smith if he was willing to speak with them privately
inside his home. The defendant agreed, and walked the
investigators across the property to his residence, which was a
bungalow behind the main farmhouse. Smith’s bungalow was almost
completely surrounded by a solid wood fence, which, unlike the
fence surrounding the entire farm, could neither be seen through
nor walked through. The adult woman initially observed with
Smith outside beyond the compound of buildings did not accompany
the defendant and the investigators into the bungalow.
Smith told the agents that he lived alone in the small,
three-room bungalow and that the former property owners were
still residing in the larger house until they secured a new
residence. Upon entering the bungalow with Smith, the
investigators immediately informed Smith that they were
investigating the possible possession and distribution of child
pornography. Lopez asked Smith if he owned any computers, and
if he used those computers to view pornography. Smith indicated
that his laptop computer was in his bedroom, the only room on
the home’s upper level. He acknowledged that he used that
8
computer to view pornography. When Lopez inquired further about
child pornography, Smith initially stated that he had
unintentionally encountered and accidentally downloaded child
pornography while seeking legal, adult pornography. He admitted
that there was child pornography stored in a file on his
computer, but said that he intended to remove the files with a
professional erasure program.
After being informed that there was child pornography on
Smith’s computer, Lopez requested Smith’s consent to seize and
search the computer. Smith inquired about the consequences if
he refused, and Kibodeaux explained that she believed that
Smith’s earlier admission about his electronic storage of child
pornography constituted sufficient probable cause to obtain a
search warrant to search the computer. She stated that she
would temporarily seize the device and apply for a search
warrant with a judge, explaining that the decision to issue a
warrant belonged to the judge.6 Kibodeaux told Smith that he had
the right to refuse his consent. Smith consented to the search.
Investigator Kibodeaux proceeded upstairs to Smith’s
bedroom -- the only upstairs room -- where she saw a laptop
6 Smith testified that the agents told him that they already had
a warrant and that they would “make his life miserable” if he
didn’t consent. The court credits the agents’ testimony that
that no such threats were made and that they would apply for a
warrant if he refused consent.
9
computer with an attached external hard drive, and a second
external hard drive resting nearby. She called down and asked
about the external hard drives. Smith stated that he had
previously used both external hard drives, but no longer used
the external hard drive that was unplugged from the laptop
computer. He nevertheless consented to the seizure of all three
devices -- the laptop and the two external drives -- and
Investigator Kibodeaux took possession of them.7
In response to Agent Catalan’s question about recent
exposure to child pornography, Smith said that he had used an
internet forum to view and download child pornography. He
further indicated that he was aware of other sources of child
pornography on the internet. Smith also told the agents that he
would never hurt anyone, and compared his interest in child
pornography to homosexuality in that it was a natural biological
urge. He then asked, perhaps rhetorically, whether he should be
speaking with the investigators. Agent Catalan reminded Smith
that he could end the interview at any time.
Agents Catalan and Lopez then asked the defendant if he
would be willing to travel to the HSI office to speak more about
his sources of child pornography. Smith raised the issue of the
7 Agent Catalan began making an audio recording of the encounter
beginning approximately at the time Investigator Kibodeaux
returned from Smith’s bedroom.
10
value of whatever information he provided as a “bargaining
chip.” Lopez explained that if the defendant retained an
attorney, the Assistant United States Attorney handling the
investigation would contact that attorney to discuss any
information that Smith could provide. Smith declined to travel
to the HSI office with the agents. Agent Catalan inquired where
the images of child pornography would be found, and Smith
indicated that they were on the laptop computer and provided
Catalan with his username and password.
Before leaving the farm, Lopez asked the defendant for his
consent to search the laptop computer and the two external hard
drives, and explained the consent process. Agent Lopez showed
the defendant a consent-to-search form, and read the form aloud.
He further informed Smith that he had a right to revoke his
consent at any time. Smith signed the form, indicating that:
1) he was doing so voluntarily; 2) authorized the seizure and
search of his computer and related hardware; and 3) confirming
his awareness of his right to refuse and/or withdraw his
consent. He relinquished the computer and hard drives, at which
time Lopez provided him with a property receipt.
At some point during the course of the interview, the
investigators noticed pictures of a young girl on the
defendant’s refrigerator. The defendant identified the girl
11
(the minor victim) by name, and explained that he was close with
her family.
Upon returning to his office, Agent Catalan initiated a
forensic review of one of the external hard drives, which
required entry of a password. Agent Lopez called Smith and he
provided the password during a brief conversation. Using the
password, Agent Catalan located videos of child pornography on
the drive, including videos which appeared to depict the rape of
the same child in the pictures on the defendant’s refrigerator.
Suspecting that the defendant had manufactured the videos, the
investigators decided to arrest him. Agent Lopez called Smith
and informed him that he could pick up his devices at the
Louisiana State Police Office. When the defendant arrived at
the State Police Office, he was met by four Louisiana state
troopers, including Investigator Kibodeaux. Only Investigator
Kibodeaux wore a visible firearm in the typical side-holster.
The remaining officers were carrying weapons underneath their
business-casual clothing.
Smith was placed in an interview room, which was being
audio-video recorded, and Investigator Kibodeaux immediately
informed the defendant that he was being detained and was not
free to leave. When read his Miranda warnings, Smith indicated
that he had questions about them. Investigator Kibodeaux then
walked through each of the defendant’s individual rights, and
12
asked him, one by one, whether he understood them. He indicated
that he did, and proceeded to engage in an audio-video recorded
interview. During that interview, Smith acknowledged that he
had consented to the seizure of his electronic devices, admitted
to possessing child pornography, and explained in detail why he
was drawn to the material. Investigator Kibodeaux then
confronted the defendant with a still image of the victim from
one of the charged child pornography videos, and Smith admitted
that he had videotaped himself raping her in New Hampshire the
previous May.
II. ANALYSIS
Smith makes several arguments in support of suppression.
First, he asserts that Magistrate Judge Stafford in the United
States District Court for the Eastern District of Michigan did
not have jurisdiction to issue a search warrant for information
located in the Northern District of California. He next argues
that the warrantless seizure of his laptop violated the Fourth
Amendment because the agents illegally walked up the driveway
through the gate at the end of the driveway and because his
consent was not voluntary due to the agents’ use of a ruse to
enter the property and thereafter by their show of force.
Finally, Smith claims that his Fifth Amendment rights were
violated because he was not given Miranda warnings prior to the
13
questioning at his home, and because his recorded confession was
impermissibly obtained by conditioning his ability to leave the
police station on his Miranda waiver. The court turns first to
the validity of the search warrant.
A. Jurisdiction to issue the search warrant
“vidence obtained during a search may be tainted by the
illegality of an earlier Fourth Amendment violation, so as to
render such evidence inadmissible as ‘fruit of the poisonous
tree.’” United States v. Camacho, 661 F.3d 718, 728 (1st Cir.
2011). Smith argues that the search warrant directed to Yahoo!
In California was void ab initio because the Magistrate Judge in
the Eastern District of Michigan lacked the legal authority to
issue a warrant pertaining to a search outside of that district.
Accordingly, he argues, all evidence seized from Smith’s
residence should be suppressed. He cites Fed. R. Crim. P. 41(b)8
8
Although amended in 2016 in ways not germane here, Fed. R. Crim.
P. 41(b), then captioned “Authority to Issue a Warrant,” stated
as follows during the relevant time period:
(1) a magistrate judge with authority in the district --
or if none is reasonably available, a judge of a state
court of record in the district -- has authority to
issue a warrant to search for and seize a person or
property located within the district;
(2) a magistrate judge with authority in the district
has authority to issue a warrant for a person or
property outside the district if the person or
property is located within the district when the
14
which, as the government concedes, ordinarily limits a
Magistrate Judge’s authority to issue warrants to search and
seize property located within the issuing district.
Here, as the government notes, the warrant was issued under
warrant is issued but might move or be moved outside
the district before the warrant is executed;
(3) a magistrate judge--in an investigation of
domestic terrorism or international terrorism--with
authority in any district in which activities related
to the terrorism may have occurred has authority to
issue a warrant for a person or property within or
outside that district;
(4) a magistrate judge with authority in the district
has authority to issue a warrant to install within the
district a tracking device; the warrant may authorize
use of the device to track the movement of a person or
property located within the district, outside the
district, or both; and
(5) a magistrate judge having authority in any
district where activities related to the crime may
have occurred, or in the District of Columbia, may
issue a warrant for property that is located outside
the jurisdiction of any state or district, but within
any of the following:
(A) a United States territory, possession, or
commonwealth;
(B) the premises--no matter who owns them--of a
United States diplomatic or consular mission in a
foreign state, including any appurtenant
building, part of a building, or land used for
the mission's purposes; or
(C) a residence and any appurtenant land owned or
leased by the United States and used by United
States personnel assigned to a United States
diplomatic or consular mission in a foreign state.
15
the Stored Communications Act, 18 U.S.C. § 2703, which provides:
A governmental entity may require the disclosure by a
provider of electronic communication service of the
contents of a wire or electronic communication, that
is in electronic storage in an electronic
communications system for one hundred and eighty days
or less, only pursuant to a warrant issued using the
procedures described in the Federal Rules of Criminal
Procedure (or, in the case of a State court, issued
using State warrant procedures) by a court of
competent jurisdiction.
18 U.S.C. § 2703(a). Sections 2703(b) and (c), in turn,
authorize “a court of competent jurisdiction” to issue warrants
to search and to seize electronic communications and remote
computing services. “Court of competent jurisdiction,” is then
defined to include “any district court of the United States
(including a magistrate judge of such a court) or any United
States court of appeals that ... has jurisdiction over the
offense being investigated.”
18 U.S.C. § 2711(3)(A)(i). The
statutory authorization contained in § 2703 is important because
Fed. R. Crim. P. 41(a)(1) defines the scope of Rule 41 as “not
modify[ing] any statute regulating search or seizure, or the
issuance and execution of a search warrant in special
circumstances.”
Here, the Eastern District of Michigan was indisputably a
“court of competent jurisdiction” because the warrant that led
to Smith’s arrest stemmed from federal law enforcement’s
investigation of violations of federal child pornography laws
16
occurring in, and committed by, an individual located in Ann
Arbor, Michigan.
Moreover, as defense counsel acknowledged during the
suppression hearing, while the First Circuit Court of Appeals
has not addressed the issue, other Circuit and District courts
have unanimously found that the jurisdictional strictures of
Rule 41(b) are substantive, rather than procedural, and
therefore do not apply to warrants issued under § 2703. See,
e.g., United States v. Bansal, 663 F.3d 634, 662 (3d Cir. 2011)
(holding that Magistrate Judge in the District of Pennsylvania
had authority to issue warrants for stored electronic
communications located in California, in part because Rule 41(b)
does not limit a magistrate’s jurisdiction pursuant to
§ 2703(a)); United States v. Berkos,
543 F.3d 392 (7th Cir.
2008) (“Rule 41(b) deals with substantive judicial authority -–
not procedure -- and thus does not apply to § 2703(a)”); United
States v. Bundy, 195 F. Supp 3d 1170, 1173 (D. Or. 2016)
(“[t]he territorial limitation in Rule 41 . . . does not limit
warrants issued pursuant to § 2703); United States v. Kanodia,
Crim. No. 15-10131-NMG,
2016 WL 3166370, at *3 (D. Mass. June 6,
2016) (holding that Magistrate Judge in the District of
Massachusetts had authority to issue federal search warrant for
stored electronic communications in another district, because
Rule 41(b)’s provisions do not apply to § 2703(a)); United
17
States v. Scully, 108 F. Supp. 3d 59 (E.D.N.Y. 2015) (finding
that Rule 41(b) does not limit a magistrate judge’s territorial
jurisdiction under § 2703(a)); United States v. Kernell, No.
3:08-CR-142,
2010 WL 1408437, at *4 (E.D. Tenn. April 2, 2010)
(“This Court . . . finds that Rule 41(b) is not a ‘procedural’
provision, but is a ‘substantive’ provision, and thus, it is not
incorporated under
18 U.S.C. § 2703(a).”); In re Search of
Yahoo, Inc., No. 07-3194-MB,
2007 WL 1539971, at *7 (D. Az. May
21, 2007) (“Rule 41(a) expresses Congress’ intent that Rule
41(b) does not limit a district court’s authority granted in
§ 2703(a).”); cf. United States v. Barber,
184 F. Supp. 3d 1013,
1017-18 (D. Kan. 2016) (finding lack of jurisdiction because
offense did not occur in issuing Magistrate’s District, but
noting that “[W]hen the [Stored Communications Act] applies, a
Magistrate Judge with jurisdiction over the offense being
investigated can issue a warrant to be executed outside of that
judge’s ordinary jurisdiction, using the procedures of Rule 41,
but not constrained by the jurisdictional limitation of Rule
41(b)).9
9
While Smith cites cases in which evidence was suppressed in
support of his argument that the warrant was void ab initio, all
those cases involve only Fed. R. Crim. P. 41(b), and not another
statute which would trigger Rule 41(a) and provide a source of
authority to issue an out-of-district warrant. See, e.g.,
United States v. Krueger,
809 F.3d 1109 (10th Cir. 2015); United
States v. Levin,
186 F. Supp. 3d 26 (D. Mass. 2016), appeal
18
Based on the language of both Rule 41 and § 2703, as well
as the unanimity of authority, the court finds that Magistrate
Judge Stafford did not exceed her jurisdiction when issuing the
search warrant targeting Yahoo! in California.10
B. Fourth Amendment
The Fourth Amendment protects “[t]he right of the people to
be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures,” and provides that “no
Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.” U.S. Const.
Am. IV. Generally, the Fourth Amendment “requires police
officers to secure a search warrant supported by probable cause
prior to effecting a search or seizure.” United States v.
docketed, No. 16-1567, (1st Cir. May 20, 2016). They are thus
inapposite.
Given the court’s finding that the Magistrate Judge acted
10
within her authority, the court does not reach either of the
government’s alternative arguments: 1) that the good faith
exception to the exclusionary rule set forth in United States v.
Leon, 468 U.S. 897 (1984) should apply; or 2) that suppression
is not required because the administrative subpoena would have
led to the knock-and-talk interview and the inevitable discovery
of the charged video recordings on Smith’s computer. See United
States v. Almeida,
434 F.3d 25, 28 (1st Cir. 2006) (“The
inevitable discovery exception recognizes that, if the evidence
would have been discovered lawfully, ‘the deterrence rationale
has so little basis that the evidence should be received.’”)
(citing Nix v. Williams,
467 U.S. 431, 444 (1984).
19
Gifford, 727 F.3d 92, 98 (1st Cir. 2013). It is a “‘basic
principle of Fourth Amendment law’ that searches and seizures
inside the home without a warrant are presumptively
unreasonable[.]” Groh v. Ramirez,
540 U.S. 551, 559 (2004)
(quoting Payton v. New York,
445 U.S. 573, 586 (1980) (footnote
omitted)).
Smith does not dispute the well-established proposition
that “[c]onsent is an ‘established exception[ ]’ to the Fourth
Amendment warrant requirement.” United States v. Casellas–Toro,
807 F.3d 380, 391 (1st Cir.2015) (quoting Schneckloth v.
Bustamonte,
412 U.S. 218, 219 (1973)). He argues instead that
his consent was invalid because Agent Lopez and Investigator
Kibodeaux first illegally trespassed onto the farm, and then,
along with Agent Catalan, improperly coerced his consent with
deception, trickery and an improper show of force. The
government bears the burden of proving by a preponderance of the
evidence that Smith voluntarily gave consent. United States v.
Diaz,
494 F.3d 221, 225 (1st Cir. 2007).
None of Smith’s claims withstand scrutiny. The driveway
where the agents entered the property was not part of the farm’s
curtilage, and thus not within the protection afforded by the
Fourth Amendment. Even if the driveway was part of the
curtilage, however, the gate at the driveway’s end did revoke
the implied license to enter the curtilage belonging to all
20
members of the public, including police officers seeking to
engage in a knock-and-talk interview. In addition, the evidence
presented at the suppression hearing unequivocally demonstrates
that the government met its burden to show that Smith’s oral
consent to enter the bungalow and search it, and his written
consent to seize and search his computer and related hardware
was voluntary and not the product of unlawful coercion.
1. Entrance onto the farm
Smith’s first argument is that the investigating agents
violated the Fourth Amendment by illegally entering the farm
through the gate at the end of the driveway. Smith’s brief
assumes, without analysis, that the driveway is protected by the
Fourth Amendment because it is part of the property’s
curtilage.11 The court does not make the same assumption. The
appropriate analysis demonstrates that the curtilage does not
extend to the end of the driveway.
“A search within the meaning of the Fourth Amendment
‘occurs when the government violates a subjective expectation of
privacy that society recognizes as reasonable.’” United States
v. D'Andrea, 648 F.3d 1, 5–6 (1st Cir. 2011) (quoting Kyllo v.
United States,
533 U.S. 27, 33 (2001)). Not all of an
individual’s property, however, is protected by the Fourth
11
Defendant’s Suppression Memo., doc. no. 19, at 17-18.
21
Amendment from warrantless searches. Florida v. Jardines, 133
S. Ct. 1409, 1414 (2013); Oliver v. United States,
466 U.S. 170,
176, 178 (1984). A person’s house, along with the area closely
associated with the house, known as the curtilage, are
protected. Open fields, including any unoccupied areas outside
of the curtilage, are not. Jardines, 133 S. Ct. at 1414–15;
United States v. Dunn,
480 U.S. 294, 304 (1987); Oliver,
466
U.S. at 180. In United States v. Jones,
565 U.S. 400 (2012),
the Court reiterated this “open field” doctrine, noting that the
Fourth Amendment is not concerned with “any technical trespass
that led to the gathering of evidence”; rather, it “protects
against trespassory searches only with regard to those items
(‘persons, houses, papers, and effects’) that it enumerates.”
Id. at 411 n.8 (emphasis in original) (internal quotations and
citation omitted); see Oliver,
466 U.S. at 173 (“The ‘open
fields’ doctrine, first enunciated . . . in Hester v. United
States, permits police officers to enter and search a field
without a warrant.”). Thus, the government’s information-
gathering intrusion in a space that “is not one of those
protected areas,” though technically trespass at common law, “is
of no Fourth Amendment significance.” Jones,
565 U.S. at 411.
“The protection afforded the curtilage is essentially a
protection of families and personal privacy in an area
intimately linked to the home, both physically and
22
psychologically, where privacy expectations are most
heightened.” California v. Ciraolo, 476 U.S. 207, 212–13
(1986); Jardines,
133 S. Ct. at 1415. Whether an area is part
of the home’s curtilage “should be resolved with particular
reference to four factors: the proximity of the area claimed to
be curtilage to the home, whether the area is included within an
enclosure surrounding the home, the nature of the uses to which
the area is put, and the steps taken by the resident to protect
the area from observation by people passing by.” Dunn,
480 U.S.
at 301; United States v. Diehl,
276 F.3d 32, 38-39 (1st Cir.
2002). In contrast, any area of private property outside the
curtilage is not part of the house and, therefore, is not
protected. Jones, 132 S. Ct. 958–59. Ultimately, however,
these factors do not constitute “a finely tuned formula that,
when mechanically applied, yields a ‘correct’ answer to all
extent-of-curtilage questions.” Dunn,
480 U.S. at 301. They
are instead “useful analytical tools only to the degree that, in
any given case, they bear upon the centrally relevant
consideration -- whether the area in question is so intimately
tied to the home itself that it should be placed under the
home’s ‘umbrella’ of Fourth Amendment protection.”
Id.
Here, considering both the Dunn factors and what the Dunn
Court described as the “centrally relevant question,” the court
23
concludes that the end of the farm’s driveway is not protected
curtilage.
While our Court of Appeals has noted that the curtilage
analysis “depends on the facts of the case,” Rosencranz v.
United States, 356 F.2d 310, 313 (1st Cir. 1966), and has
rejected the argument that driveways can never fall within a
home’s curtilage, Diehl,
276 F.3d at 39, it has described “a
number of general principles with respect to driveways.” United
States v. Brown,
510 F.3d 57, 65 (1st Cir. 2007). For example,
“[i]f the relevant part of the driveway is freely exposed to
public view, it does not fall within the curtilage.”
Id.
(citing United States v. Roccio,
981 F.2d 587, 591 (1st Cir.
1992) (footnote omitted)). The court in Brown further observed
that
in order for a part of a driveway to be considered
within the home’s curtilage, public viewing of it must
be, at most, very infrequent. The remoteness of the
relevant part of the driveway and steps taken by the
resident to discourage public entry or observation
militate toward a finding that it falls within the
curtilage.
Id. The court synthesized this observation from, inter alia,
its decision in Diehl, in which it found the relevant part of
the driveway to be within a property’s curtilage
where it was reached only by proceeding 700 feet along
discontinued town road and then 500 feet along the
driveway; residents had posted ‘no trespassing’ signs
at its entrance, had their mail delivered to a post
office box in town, and had instructed United Parcel
24
Service to leave parcels at a store; and members of
the public hardly ever entered.
Brown, 510 F.3d at 65 (citing Diehl,
276 F.3d at 41).
Here, while there was some divergent testimony at the
suppression hearing as to the precise distance, the testimony
established that the end of the driveway was 300-500 yards from
the house and “is freely exposed to public view” by virtue of
its proximity to Main Highway. While proximity, standing alone,
is not dispositive, id., this distance militates against finding
it within the curtilage. See Dunn,
480 U.S. at 302 (describing
as a “substantial distance” a barn 60 yards away from a house,
and finding that the distance “supports no inference” that it
should be treated as an adjunct of the house).
Looking to the second Dunn factor, the court notes that
while the entire property was circumscribed by a fence, even the
defendant agreed that the perimeter fence was not designed for
privacy, and that there were “no steps taken that prevented
anyone from looking into the property . . . .”12 Significantly,
Smith’s bungalow behind the primary farmhouse was surrounded by
a 6-foot high solid wood fence, which, according to aerial
photographs admitted into evidence at the hearing, clearly
delineates an area “intimately tied to the home.” Dunn, 480
U.S. at 301 (excluding barn from curtilage where house was
12
Suppression Tr., doc. no. 43, at 64.
25
surrounded by fence, but barn was not); cf. Brown, 510 F.3d at
65 (noting the unhelpfulness of the second Dunn factor because
there was no evidence “as to whether there was an enclosure
surrounding all or part of Brown’s property, or internal
enclosures around individual buildings or groups of
buildings.”). Here, the contrast between the solid barrier
surrounding the house and the open nature of the easily
surmountable perimeter fence strongly suggests that the latter
does not demarcate curtilage.
The final two Dunn factors also warrant exclusion of the
driveway from the curtilage. There has been no suggestion that
the driveway was being used for “intimate activities of the
home.” Dunn, 480 U.S. at 302. Finally, the nature and
construction of the see-through fence suggested that it was not
designed “to prevent persons from observing what lay inside the
enclosed areas.”
Id. The defendant’s own testimony confirmed
the latter point, as he agreed that “there were really no steps
taken that prevented anyone from looking into this property
except the [solid wood] privacy fence . . . . [around the rear
bungalow].”13
It is also noteworthy that while the curtilage analysis is
linked to those areas “where privacy expectations are most
13
Suppression Tr., doc. no 43, at 64.
26
heightened,” Ciraolo, 476 U.S. at 212–13, Smith himself
testified that the see-through fence around the farm reflected
the fact that “it would be kind of ridiculous to expect that you
could have privacy on a farm this humongous.” Suppression Tr.,
doc. no. 43, at 66. Given this one-sided record, the court has
little difficulty finding that the driveway, including the gate
at its entrance, was not part of the curtilage appurtenant to
Smith’s home, and thus the officers’ entry onto the property did
not implicate the Fourth Amendment.
2. Implied license to enter the property
Even if the court were to find that the end of the driveway
was part of the home’s curtilage, it would nevertheless find no
constitutional violation because Lopez and Kibodeaux had an
implied license to enter the property that was not, as Smith
argues, revoked by the presence of the delivery gate.
In Jardines, the Court recognized that a police officer,
like any member of the public, has an implied license to enter a
home’s curtilage to knock on the front door, seeking to speak
with the home’s occupants. It was precisely such a “knock-and-
talk” that the agents were engaged in here. Smith argues that
the closed gate and telephone instructions revoked their license
to enter the curtilage. The court disagrees.
27
The Jardines Court explained that the implied license
“typically permits the visitor to approach the home by the front
path, knock promptly, wait briefly to be received, and then
(absent invitation to linger longer) leave.” Id. at 1416. On
this basis, “‘a officer not armed with a warrant may approach a
home and knock, precisely because that is no more than any
private citizen might do.’” Id. (citing Kentucky v. King, 131
S. Ct. 1849, 1862 (2011)).14 The home’s occupant remains free to
terminate the conversation or even to avoid it altogether by not
opening the door. See King,
131 S. Ct. at 1862 (“[W]hether the
person who knocks on the door and requests the opportunity to
speak is a police officer or a private citizen, the occupant has
no obligation to open the door or to speak.”).
The necessarily fact-intensive inquiry focuses on what an
ordinary member of the public, under the circumstances
confronted by the investigators, would have objectively
perceived as reasonable conduct. United States v. Carloss, 818
In Jardines, the Court held that officers’ use of trained
14
police dogs to sniff the front porch of a house constituted a
search for the purposes of the Fourth Amendment. 133 S. Ct. at
1417–18. The Court reasoned that the porch fell within the
curtilage of the home, and the officers’ entry into the
curtilage to allow the dog’s investigation exceeded the implied
license to approach the front door for the limited purpose of
knocking. Id. at 1415–17. Thus, the Court concluded that the
officers’ actions constituted an unlicensed physical intrusion
on a constitutionally protected area (the curtilage of the home)
under the Fourth Amendment.
Id.28
F.3d 988, 994-95 (10th Cir. 2016). In other words, the question
is whether the gate communicated “that first responders, or Girl
Scouts, or even officious neighbors[,] were categorically
barred” from walking up the driveway and knocking on the door.
Id. at 1000 (Tymkovich, J., concurring). Here, the court finds
that the answer is “no.” At its most basic, the very
construction of the fence -- see-through and easily walked-
through -- suggests that such visitors were not “categorically
barred.” Further, the presence of a phone number “for
deliveries,” would suggest to a reasonable observer that the
gate’s purpose was to control deliveries, rather than bar the
public from knocking on the door. In addition, although not
dispositive, neither the gate, the adjacent fence nor any part
of the property the public might encounter contained “no
trespassing” signs or other privacy warnings. See United States
v. Hensel,
699 F.2d 18, 32 (1st Cir. 1983) (finding that
officers’ entry onto property did not violate 4th Amendment
despite chain crossing driveway and presence of multiple “no
trespassing” signs).
While the First Circuit Court of Appeals has yet to
delineate the contours of revocation, one federal district court
has stated that the implied license to enter property “extends
unless and until the homeowner provides express orders to the
contrary.” United States v. Holmes, 143 F. Supp. 3d 1252, 1259
29
(M.D. Fla. 2015) (internal quotation marks omitted). The
“express orders” sufficient to revoke the implied license “must
be by ‘clear demonstrations,’ ‘unambiguous,’ and ‘obvious to the
casual visitor.’” Id. 143 F. Supp.3d at 1262 (citing State v.
Grice,
767 S.E.2d 312, 319 (N.C. 2015). Here, there were no
such “express orders,” such as a “no trespassing” sign,15 guard
dogs, or a large, double-padlocked, chain link fence, see United
States v. Hambelton,
2009 WL 722284, at *1-2, 4 (N.D. Fla. Mar.
18, 2009). Indeed, plaintiff has not cited, nor can the court
locate, any cases where a see-through, easily bypassed gate
unaccompanied “no trespassing” signs or other warnings was found
to have revoked an officer’s implied license to walk up to a
front door and commence a knock-and-talk interview. Here, the
presence of directions for delivery persons to call in order to
drive through the gate does not convey a message to the casual
visitor that the homeowner has revoked the implied license to
enter the curtilage. This is especially true where, as Agent
Lopez and Inspector Kibodeaux testified, they -- or anyone else
While Smith testified that he had intended to, but had not yet,
15
put up “no trespassing” signs, it is not clear that even a “no
trespassing” sign, alone, would have been sufficient to revoke
the agents’ implied license to enter. As the Supreme Court of
Tennessee recently observed, the legal implications of “no
trespassing” signs on the validity of a knock-and-talk has
resulted in a wide variety decisions by both federal and state
courts. See State v. Christensen,
517 S.W.3d 60, 72 (Tenn.
2017) (and cases cited therein).
30
-- could have simply spread the two opposing gate sections apart
enough to walk through the gap.16 Accordingly, even if the
agents entered onto the property’s curtilage, they did not do so
unlawfully.
3. Consent
Smith next argues that various actions of the agents –
including dishonesty and force – undermined the voluntariness of
his consent to enter the bungalow and later to search it, and
thus tainted the statements he made to the agents in his home,
the seizure of his electronic equipment and his written consent
to search the equipment. The court finds that Smith’s version
of events is not credible, and thus his argument is without
evidentiary support.
Consent is a well-recognized exception to Fourth
Amendment’s search warrant requirement. See Schneckloth, 412
U.S. at 219; United States v. Laine,
270 F.3d 71, 74-75 (1st
Cir. 2001). The validity of a defendant’s consent must be
gauged under the totality of the circumstances. United States
Smith testified that the motors controlling that gate had no
16
“give” and that it was not possible to spread the gate sections
as Kibodeaux testified, and as he claimed was shown on the
photograph admitted into evidence. Suppression Tr., doc. no.
44, at 190-92. In the court’s view, the photographic evidence
which so directly contradicted Smith’s testimony on this issue
also undermined Smith’s overall credibility, and serves as
further support for the court’s choice to generally credit the
investigators’ testimony over Smith’s.
31
v. Stierhoff, 549 F.3d 19, 23 (1st Cir. 2008). When evaluating
the totality of the circumstances, an inquiring court “must look
for evidence of coercion, duress, confusion, and the like.”
United States v. Coombs,
857 F.3d 439, 449 (1st Cir. 2017). The
government must prove by a preponderance of the evidence that
Smith’s consent was voluntary. Diaz,
494 F.3d at 225.
First, as already noted, the court rejects defendant’s
assertion that the agents told him that they were “looking for
Mexicans” or “illegal aliens,” and that they were therefore
conducting a “workplace raid,” inside the bungalow with which he
had no choice but to comply.17 The court credits the agents’
testimony that they informed him that part of their job was to
identify potential opportunities for immigrant workers, and that
there were other issues they wished to discuss. The agents’
version, which candidly acknowledged their permissible
investigative ruse, follows logically from their knowledge that
child pornography was a sensitive subject and they were giving
Smith the courtesy of discussing it outside the presence of his
female companion or any other observers. While “deception and
trickery" are among the factors to be considered in the
“totality of the circumstances” test, “so long as manipulative
behavior does not cause us to question whether the
17
Defendant’s Mot. to Suppress, doc. no. 19, at 19.
32
relinquishment was in fact voluntary . . ., it is ‘reasonable’
within the meaning of the Fourth Amendment.” United States v.
Hornbecker, 316 F.3d 40, 49 (1st Cir. 2003) (citing Schneckloth,
412 U.S. at 222–27). Indeed, “insincere friendliness which
successfully induces a criminal suspect to willingly answer
questions and/or consent to a search does not, without more,
cause us to question whether the suspect’s response is
‘voluntary.’”
Id. The court finds that the “immigrant worker
ruse” falls comfortably within these legal boundaries.
Smith next argues that once inside his small home, the
agents blocked the exit and told him that they already had a
search warrant and would take his property with or without his
cooperation. Turning to the latter issue first, it is true that
an officer’s claim of lawful authority to search, i.e., that he
or she already possesses a search warrant, would likely
invalidate any subsequent consent. Bumper v. North Carolina,
391 U.S. 543 (1968). However, the court credits the agents’
testimony that they told Smith they intended to apply for a
search warrant based on Smith’s admission that his computer
contained images of child pornography.18 This is permissible.
See United States v. Marshall,
348 F.3d 281, 286 (1st Cir. 2003)
(noting that stated intent to get warrant is not inherently
18
Suppression Tr., doc. no. 42 at 44.
33
coercive where probable cause had been established and officers
had good faith belief that warrant would issue); see also,
United States v. White, 979 F.2d 539, 542 (7th Cir. 1992)
(“[W]hen the officer’s expressed intention to obtain a warrant
is genuine . . . and not merely a pretext to induce submission,
it does not vitiate consent to search.”). Nor was the agents’
threat to seize the laptop pending such a warrant impermissible,
given the ease with which such evidence could be erased, and
Smith’s comment that he had already used a “cleaner” to erase
computer files.19 See United States v. Bradley, 488 F. App’x. 99
(6th Cir. 2012) (finding that exigent circumstances justified
warrantless seizure of suspect’s laptop computer as part of
child pornography investigation where officer reasonably
concluded that evidence on suspect’s computer would be destroyed
if computer was not immediately seized); see also, United States
v. Henry,
827 F.3d 16, 28 (1st Cir. 2016) (holding that officer
was justified in warrantless seizure of cell phone to prevent
destruction of evidence, when immediately followed by
application for search warrant).
The court also rejects Smith’s claim that investigators
tricked him into signing the consent-to-search20 form by falsely
19
Id. at 44.
20
Gov’t Ex. 6(a).
34
representing that it was a property receipt. The agents
testified that Smith agreed to sign the form after receiving an
explanation of its content and ramifications, and after they
informed him that he could decline to sign it or revoke his
consent at any time.21 The court credits this testimony over the
defendant’s claim of outright trickery -- followed by a
perjurious coverup -- by the investigating agents.
As for blocking his exit, the court rejects Smith's
testimony that the agents blocked his attempts to leave during
the questioning inside his home and that they ignored his
attempts to stop the questioning. The court credits the agents’
testimony that Smith neither tried to exit nor even approached
the doorway, and that he never sought to stop their
questioning.22 Smith’s alleged scenario is belied by the relaxed
and conversational tone of the recorded portion of the
interview, during which Smith’s tone of voice evinced no
inclination that he wished to discontinue the discussion or that
he was in any way stressed.
Ultimately, the court finds that Smith voluntarily
consented to the investigators’ entry into his home. He further
Suppression Tr., doc. no. 42 at 63; Suppression Tr., doc. no.
21
44, at 15.
Id. at 80; Suppression Tr., doc. no. 44 at 61; Suppression Tr.,
22
doc. no. 44, at 125.
35
consented -- first orally, then in writing -- to the seizure and
search of his computer and associated equipment. None of the
agents’ words or actions that took place prior to their entrance
into his home or once inside vitiated that consent.
C. Fifth Amendment
1. Questioning at home
Law enforcement personnel must convey Miranda warnings to
suspects before subjecting them to “custodial interrogation” in
order to protect their Fifth Amendment privilege against self-
incrimination. United States v. Jackson, 544 F.3d 351, 356 (1st
Cir. 2008); see also U.S. Const. amend. V. (“No person ... shall
be compelled in any criminal case to be a witness against
himself.”). “Any statements obtained as a result of custodial
interrogation in the absence of Miranda warnings must be
suppressed.” Jackson,
544 F.3d at 356. The prosecution bears
the burden of proving by a preponderance of the evidence that
the suspect was given Miranda warnings and validly waived his
rights. Miranda,
384 U.S. 436, 475 (1966); United States v.
Rojas–Tapia,
446 F.3d 1, 4 (1st Cir. 2006).
In his final argument related to the questioning inside his
home, Smith argues that his admissions to possessing child
pornography as well as his oral and written consents to seize
36
and search his electronic equipment were not only obtained
through trickery and force -- an argument the court has rejected
-- but in the absence of Miranda warnings, allegedly in
violation of the Fifth Amendment rights. The court finds that
Smith was not in custody during the questioning at his home, and
thus that no Miranda warnings were necessary.
A court considering whether a defendant was subjected to
custodial interrogation must determine whether there was a
formal arrest or a restraint on freedom of movement to the
degree associated with a formal arrest. Id. In the absence of
a formal arrest (as here):
determining whether a person is in custody ordinarily
requires a nisi prius court to engage in a two-step
pavane. First, the court must ascertain the
circumstances surrounding the interrogation. Thompson
v. Keohane, 516 U.S. 99, 112,
116 S. Ct. 457,
133 L.
Ed. 2d 383 (1995). This assessment is factual in
nature and, as such, is reviewed for clear error. See
United States v. Ventura, 85 F.3d 708, 711 n.2 (1st
Cir. 1996). Second, the court must examine whether,
viewed objectively, the discerned circumstances
constitute the requisite ‘restraint on freedom of
movement of the degree associated with a formal
arrest.’ California v. Beheler, 463 U.S. 1121, 1125,
103 S. Ct. 3517,
77 L. Ed. 2d 1275 (1983) (per curiam)
(internal quotation omitted).
United States v. Hughes, 640 F.3d 428, 435 (1st Cir. 2011). The
First Circuit Court of Appeals has identified four factors
informing this analysis: “whether the suspect was questioned in
familiar or at least neutral surroundings, the number of law
enforcement officers present at the scene, the degree of
37
physical restraint placed upon the suspect, and the duration and
character of the interrogation.” Ventura, 85 F.3d at 711 (1st
Cir. 1996) (citing United States v. Masse,
816 F.2d 805, 809
(1st Cir. 1987)).
Here, the investigators questioned Smith in familiar
surroundings -- his home. And while the presence of three
officers in a kitchen might weigh slightly in favor of finding a
custodial situation under some circumstances, the fact that
Investigator Kibodeaux told Smith that he was free to leave
counterbalances that weight.23 In addition, the interview was
relatively short in duration, lasting under an hour.24 Moreover,
the court detected no hostility, threats or “menacing”25 behavior
by the agents in the taped portion of the kitchen conversation.
To the contrary, the entire conversation sounded relaxed, with
Smith both asking and answering questions. Smith’s version that
the portion of the interview prior to the recording would have
evinced the hostility and coercion of which he speaks, yet he
made no mention of it during the recorded portion strains
credulity and is rejected. Similarly, and as already noted, the
Suppression Tr., doc. no. 43, at 35 (“And Officer Kibodeaux
23
said, well, first of all, you're not being detained, you’re free
to go, and you can stop answering questions at any time.”).
24
Suppression Tr., doc no. 44, at 75.
25
Def. Supp. Mem., doc no. 19, at 23.
38
relaxed conversational tenor lends further support to the
court's rejection of Smith's contention that the investigators
physically blocked his attempts to leave. Absent indicia of
custodial interrogation, the court finds that Smith was not
entitled to Miranda warnings prior to the questioning in his
home.
2. Smith’s video-recorded confession
Unlike the questioning at his home, there is no dispute
that Smith’s recorded confession took place while he was in
custody. Nor is there any argument that Investigator Kibodeaux
read the familiar warnings to Smith at the outset of her
questioning and that Smith waived his rights. Nevertheless,
Smith argues that he was tricked into coming to the police
station and misled into believing he would be released once he
answered more questions thus rendering Miranda waiver
involuntary -- and thus the confession inadmissible. The court
rejects this argument.
A confession is involuntary if the police use coercive
means to undermine the suspect’s ability to exercise his free
will. See Colorado v. Connelly, 479 U.S. 157, 167 (1986). In
assessing whether a confession is voluntary, courts must inquire
“whether the will of the defendant had been overborne so that
39
the statement was not his free and voluntary act.” Bryant v.
Vose, 785 F.2d 364, 367-68 (1st Cir. 1986).
As for being “tricked into coming to the police station,”
it is true that Agent Lopez told Smith that he could pick up his
equipment at the station.26 However, as Investigator Kibodeaux
explained, once she and the other agents decided that they would
arrest Smith because they discovered pornographic images on his
computer involving the child whose picture was on his
refrigerator,27 they further determined that officer safety
considerations warranted drawing him to them, rather than the
officers taking another trip to the farm, which would present
more risk.28 Nothing about this very routine undertaking by
police -- arranging for a more secure, in-station arrest of a
suspect in a controlled environment -- suggests that Smith’s
will was overborne.
Next, the court credits Investigator Kibodeaux’s testimony
that she did not promise him freedom in exchange for
interrogation. Instead, she told him he was being detained as
soon as he entered the station.29
26
Suppression Tr., doc. no. 42, at 69-70.
27
Id.
28
Id.
29
Id. at 72.
40
Finally, any claim that Smith waived his Miranda rights
involuntarily is completely undermined by the video recording of
his waiver. After agreeing that he had already been told he was
not free to leave, Smith and Kibodeaux engaged in a lengthy
colloquy in which Smith asked intelligent, relevant questions
addressing nearly every aspect of the familiar warnings,
including multiple questions concerning his right to stop the
questioning at any time. He indicated his assent and
understanding as to every aspect of the Fifth Amendment
safeguard. His Miranda waiver was voluntary and valid.
III. CONCLUSION
Having found that the search warrant targeting Smith’s
email account was properly authorized, that his consent to
search his home and computer was given freely and voluntarily,
and that his pre-detention statements and recorded confession
was not obtained in violation of his Fifth Amendment rights,
defendant’s motion to suppress30 is DENIED.
SO ORDERED.
____________________________
Joseph N. Laplante
United States District Judge
Dated: October 18, 2017
30
Doc. no. 18.
41
cc: Jeffrey S. Levin, Esq.
Bjorn R. Lange, Esq.
Richard Guerriero, Esq.
Seth R. Aframe, AUSA
Georgiana L. Konesky, AUSA
42
