Summary: Defendant filed a motion to suppress arguing that his consent was not voluntary, and even if it was, the search exceeded the scope of his consent. The Court found that Defendant’s alcohol consumption did not affect his judgment, he was old enough to make his own decisions, and the officers did not use physical violence to gain his consent. The search did not exceed the scope of Defendant’s consent because a reasonable person would realize that the consent included a search of the computer.
Case Name: USA v. Blaine Morrison
Case Number: C3-03-43
Docket Number: 24
Date Filed: 8/27/03
Nature of Suit: 000
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
SOUTHEASTERN DIVISION
United States of America,
Blaine Morrison,
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) ) MEMORANDUM OPINION ) AND ORDER DENYING ) MOTIONS TO SUPPRESS ) AND TO DISMISS ) ) Criminal File No. C3-03-43 ) ) ) |
Before the Court is Defendant’s Motion to Suppress (doc. #13). The United States filed a brief in opposition (doc. #16). On July 7, 2003, the Court held a hearing.
STATEMENT OF FACTS
On February 28, 2003, West Fargo Police Officer Al Schmidt logged onto a Yahoo chat room and posed as a sixteen-year-old girl under the screen name “ndblondie2003.” Al received a message from someone using the screen name “singleguy581032002.” The Yahoo profile for singleguy581032002 contains a picture of Defendant. He told ndblondie2003 that his name was Blaine.
Singleguy581032002 asked ndblondie2003 if she would like to fool around and then discussed different sexual acts with her. Eventually singleguy581032002 asked ndblondie2003 to come over to his place. He gave her Defendant’s address and gave her directions to that address.
Officer Schmidt went to Defendant’s address in plain clothes, and Officer Brady Oberholtzer accompanied him in uniform. They knocked on the door to Defendant’s apartment and asked him for permission to enter, which he gave. The officers explained that he was being taken into custody for luring a minor by the internet, and Officer Schmidt read Defendant his Miranda rights. Defendant waived his Miranda rights and signed a waiver.
Then Officer Schmidt asked Defendant for his consent to search the apartment, and Defendant signed a consent to search form. Officer Schmidt explained that they would be looking for evidence of luring a minor by the internet, which would involve taking and searching computer hardware and software. The police did seize the computer hard drive, CDs, and floppy disks along with other items from the apartment.
ANALYSIS
I. Motion to Suppress
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures. United States v. Roggeman, 279 F.3d 573, 577 (8th Cir. 2002) (citing Terry v. Ohio, 392 U.S. 1, 9 (1967)). A search conducted without a warrant is presumptively unreasonable unless an exception to the warrant requirement applies. United States v. Kuenstler, 325 F.3d 1015, 1021 (8th Cir. 2003). When the government obtains evidence illegally, the exclusionary rule prohibits the admission of any physical or testimonial evidence gathered from that illegal search or seizure. United States v. Reinholz, 245 F.3d 765, 779 (8th Cir. 2001) (citing Wong Sun v. United States, 371 U.S. 471, 484-88 (1963)).
A. Voluntary Consent
One exception to the warrant requirement is a search pursuant to valid consent. United States v. Gipp, 147 F.3d 680, 685 (8th Cir. 1998) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)). Whether a defendant has given voluntary consent is based on the totality of the circumstances. Id. In analyzing the totality of the circumstances, a court should look at the characteristics of the accused and the details of the interrogation. Id. The characteristics of the accused include his age, educational level, and his knowledge of his Miranda rights. United States v. Becker, 333 F.3d 858, 861 (8th Cir. 2003). The details of the interrogation include the length of the accused’s detention, any evidence of intimidation or promises by police, and where the consent was given. Id.
The government must prove by a preponderance of the evidence that the defendant’s consent was voluntary. Id. A defendant’s knowledge of his right to refuse consent is not necessary for his consent to be voluntary. Id.
Defendant is a twenty-nine-year-old high school graduate. There is no allegation that he has less than average intelligence. He acknowledges that he was read his Miranda rights, and he signed an acknowledgment and waiver of those rights. Defendant drank a few beers that night before the police arrived, and Officer Schmidt testified that he found three or four empty beer bottles in the apartment. Defendant testified that he could “feel” that he’d had a few beers, but he wasn’t “hammered.” Officer Schmidt testified that Defendant did not slur his speech, and he was coordinated and coherent.
The waiver of the Miranda rights was signed at 11:50 p.m., and Officer Schmidt and Defendant testified that this form was signed shortly after police entered the apartment. Officer Schmidt testified that the police were not at the apartment any longer than forty-five minutes. Defendant testified that the police did not beat him or make any promises or threats. Defendant stated that he only felt intimidated because this was his first encounter with police, other than traffic violations.
Defendant is old enough that his age weighs in favor of the voluntariness of the consent. His intelligence makes him less susceptible to any coercive police tactics. He was read his Miranda rights, which weighs in favor of the consent being voluntary. While he did have a few beers, Defendant did not state that he was intoxicated. Even if he was intoxicated, that does not render consent involuntary. Gipp, 147 F.3d at 686 (quoting United States v. Rambo, 789 F.2d 1289, 1297 (8th Cir. 1986)).
The request for consent to search was given in Defendant’s own apartment, which would be a more familiar and comfortable environment for Defendant than a police station or squad car. The police did not cause Defendant any physical harm nor did they make any promises to him in exchange for his consent. The encounter lasted less than an hour. Under the totality of the circumstances, the Court finds that the consent was voluntary.
B. Scope of the Consent
A consensual search may not exceed the scope of the defendant’s consent. United States v. Rudolph, 970 F.2d 467, 468 (8th Cir. 1992). When the search exceeds the scope of the consent it becomes an unreasonable search. Honig v. United States, 208 F.2d 916, 919 (8th Cir. 1953). The standard for determining the scope of a defendant’s consent is one of “objective reasonableness.” United States v. Turner, 169 F.3d 84, 87 (1st Cir. 1999) (quoting Florida v. Jimeno, 500 U.S. 248, 251 (1991)). A court determines objective reasonableness by deciding what the typical reasonable person would have understood by the exchange between the officer and the defendant. Id. (quoting Jimeno, 500 U.S. at 251). A court must look beyond the language of the consent itself to the overall context of the exchange between the officer and the defendant, which necessarily encompasses contemporaneous police statements and actions. Id. “The scope of a [consensual] search is generally defined by its expressed object.” Id. (quoting Jimeno, 500 U.S. at 251) (emphasis in original).
In Turner, the police were investigating an assault. Id. at 85. When the police found evidence that the suspect may have entered a neighboring apartment, they asked the defendant, the resident of that apartment, for his consent to search for any signs that the suspect had been inside the apartment and any signs that the suspect had left behind. Turner, 169 F.3d at 87. While searching the apartment, an officer noticed a picture of a nude woman who resembled the victim on the screen of the defendant’s computer. Id. at 86. The officer proceeded to open other files on the defendant’s computer and discovered child pornography. Id. The court suppressed the computer files because an objectively reasonable person would have understood that the police intended to only search places in the apartment where an intruder might have hastily disposed of evidence relating to the crime in the neighboring apartment. Id. at 88. An objectively reasonable person would not believe that an intruder would dispose of evidence of the assault on the hard drive of the computer. Id.
In this case, Defendant signed a consent form that authorized the police to search his residence and seize any property that the police deemed pertinent to their investigation. See Government Ex. 3. However, the court must look beyond the language of the consent itself and consider the overall context of the encounter between Defendant and the police. Turner, 169 F.3d at 87. When the police initially encountered Defendant, they explained that they were there to investigate luring a minor by the computer. After Defendant acknowledged ownership of the computer in his apartment, Officer Schmidt asked Defendant if there was child pornography on it. Defendant answered that he did not know if there was or not, which Officer Schmidt noted was a “very suspicious” response. At the hearing, Officer Schmidt testified that he told Defendant that the police were primarily interested in Defendant’s computer and would be searching his hardware and software for evidence of luring and child pornography.
The primary focus of the search was for evidence of luring and child pornography. The police communicated this to Defendant during the encounter that night. The typical reasonable person would have understood that he consented to allow the police to search his computer for evidence of luring and child pornography.
This case is unlike Turner because in that case the police never discussed a search of the defendant’s computer and specifically stated that their search was for physical evidence that an intruder might have left behind. 169 F.3d at 88. This case is also distinguishable from United States v. Carey, 172 F.3d 1268, 1274 (10th Cir. 1999), because in that case the search warrant only authorized the police to search the computer for evidence of drug transactions, so the court suppressed the subsequent discovery of child pornography. Based on the overall context of the encounter with police in this case, the search did not exceed the scope of Defendant’s consent.
II. Motion to Dismiss
Defendant argues that the indictment should be dismissed because it is vague, the crime charged is one involving legal and factual impossibility because no minor victim was involved, and 18 U.S.C. § 2422(b) violates the First Amendment to the United States Constitution. The indictment is not vague because it sets forth the elements of the offense using the words of the statute itself. United States v. Powell, 1 F. Supp. 2d 1419, 1423 (N.D. Ala. 1998) (quoting Hamling v. United States, 418 U.S. 87, 117 (1974)). The legal and factual impossibility argument does not require dismissal of the indictment because an actual minor is not required for an attempt conviction under 18 U.S.C. § 2422(b). United States v. Root, 296 F.3d 1222, 1229 (11th Cir. 2002) (citing United States v. Farner, 251 F.3d 510 (5th Cir. 2001)). Since Defendant does not have a constitutionally protected right to attempt to persuade minors to engage in illegal sex acts, 18 U.S.C. § 2422(b) does not violate the First Amendment. United States v. Bailey, 228 F.2d 637, 639 (6th Cir. 2000).
DECISION
Based on the foregoing, Defendants’ Motion to Suppress is DENIED, and Defendant’s Motion to Dismiss is DENIED.
IT IS SO ORDERED.
Dated this 27th day of August, 2003.
__________________________
Ralph R. Erickson, District Judge
United States District Court