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United States v. Lowe

United States District Court, E.D. Michigan, Southern Division

January 15, 2015

ADAM LOWE, Defendant.


LINDA V. PARKER, District Judge.


This is a criminal case. Defendant Adam Lowe ("Defendant") is charged with: distribution of child pornography under 18 U.S.C. § 2252A(a)(2); receipt of child pornography under 18 U.S.C. § 225A(a)(2); and possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B). (ECF No. 14.) Now before the Court is Defendant's motion to suppress evidence. (ECF No. 18.) Defendant seeks to suppress the oral and written statements he made to officers during the execution of the search warrant at 1474 North Irish Road, Davison, Michigan; the computer Defendant delivered to officers the day after the search warrant was executed; and any derivative evidence. (Def.'s Mot., ECF No. 18 at Pg. ID 39.) In his motion, Defendant asserts that his statements were obtained in violation of his Miranda rights while he was in custody; and alternatively, that they were involuntary. ( Id. at Pg. ID 40.) Defendant also argues that the laptop and subsequent search of the laptop should be suppressed because seizure of the computer was derivative of the unlawful search conducted the previous day and alternatively, Defendant's conveyance did not constitute voluntary consent. ( Id. ) An evidentiary hearing was held on August 21, 2014. (ECF No. 24.) For the reasons that follow, Defendant's motion is DENIED.


On November 21, 2011, the Michigan State Police, Internet Crimes Against Children (ICAC) task force conducted an investigation in which it accessed a peerto-peer internet file-sharing network and observed that a computer with Internet Protocol address (IP address), was sharing files of child pornography. (Compl., ECF No. 2 at Pg. ID 3.) The internet provider, Charter Communications, Inc., revealed that the IP address was assigned to an individual at 1474 North Irish Road, Davison Michigan. ( Id. ) A check conducted through the Michigan Secretary of State connected four residents, including Defendant, to the address. ( Id. ) Consequently, a federal magistrate judge authorized a warrant to search the residence. ( Id. )

Eight (8) Internet Crimes Against Children (ICAC) task force officers executed the search warrant. (Mot. Hr'g Tr. 7, Aug. 21, 2014.) On February 8, 2012, Special Agent Richard Chandler; Special Agent Robert Kuykendall; Grand Blanc Township Police Officer Jason Whittey; and the other armed officers knocked on the door of the home, which was opened by Defendant. ( Id. at 9.) Agent Chandler informed Defendant that child sexual abusive material had been downloaded from an electronic device in Defendant's home, that the officers had a search warrant for the residence, and that the officers would be seizing any electronic storage devices. ( Id. at 10.) The officers conducted a security sweep of the home for officer safety, during which firearms were drawn by at least some officers, guns held at their sides. ( Id. at 39.) The protective sweep lasted approximately five to ten minutes. ( Id. at 40, 81.)

Agents Chandler and Kuykendall conducted the interrogation of the Defendant in Defendant's dining room. ( Id. at 12.) Agent Chandler told Defendant he was not under arrest, but did not tell Defendant that he did not need to respond to questioning or that he could leave at any time. ( Id. at 25.) He was not given Miranda warnings. ( Id. ) Although Defendant was not restrained, his movements were monitored by the officers. ( Id. at 14-15.) During the interview, Defendant admitted to viewing and sharing child pornography, and told the agents that he had sold the laptop he had used to download the child sexually abusive material. ( Id. at 17.) Agent Kuykendall stated that "[h]e needed that computer to make sure there was no manufacturing of child pornography, " and informed Defendant that the next step would be for the officers to search Defendant's place of employment to find the laptop and to see if he had access to computers at work. ( Id. at 53.) Defendant asked the agents if they would still visit his employer if he produced the laptop, to which Agent Kuykendall responded that he would not. ( Id. at 54, 147.) Defendant then informed the agents that he would contact them once he retrieved his laptop. ( Id. at 54.) Defendant also signed a sworn statement admitting that he downloaded images of child pornography using a computer. ( Id. at 31.)

The following day, Defendant turned his laptop over to Officer Whittey at the Davison Township Police Department. ( Id. at 89.) A preview of the laptop was conducted after Defendant gave consent. ( Id. at 90; Compl., ECF No. 2 at Pg. ID 4.) The preview revealed that it was the same computer that had downloaded the illicit material that prompted the investigation. (Compl., ECF No. 2 at Pg. ID 4.) Thereafter, a search warrant for a forensic examination of Defendant's laptop was executed. Fifty-six (56) digital videos and 11, 786 images of child pornography were found on the storage space of Defendant's laptop. ( Id. ) Subsequently, Defendant was arrested and filed his motion. (ECF No. 18.)


Defendant first argues that his oral and written statements must be suppressed because they were obtained in violation of Miranda rights. (Def.'s Supp. Br., ECF No. 25 at Pg. ID 253.) "The Fifth Amendment protects a criminal defendant from compelled self-incrimination, and the Supreme Court has required that a criminal defendant be apprised of certain rights prior to a custodial interrogation." United States v. Conder, 529 F.App'x 618, 621 (6th Cir. 2013) (citing United States v. Hinojosa, 606 F.3d 875, 883 (6th Cir. 2010)). Miranda requirements apply only when there has been such a restriction on a person's freedom as to render him in custody. Conder, 529 F.App'x 618, 621 (citation omitted) (emphasis added). "To differentiate between custodial and noncustodial encounters, courts consider the totality of the circumstances of the encounter, with the ultimate inquiry turning on whether a formal arrest occurred or whether there was a restraint on freedom of movement of the degree associated with a formal arrest." Id. (citing United States v. Panak, 552 F.3d 462, 465 (6th Cir. 2009)) (internal quotation marks omitted). "Courts focus on the objective circumstances of the interrogation to determine how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action." Id. (internal quotation marks omitted). Other factors guiding the inquiry include:

(1) the purpose of the questioning; (2) whether the place of the questioning was hostile or coercive; (3) the length of the questioning; and (4) other indicia of custody such as whether the suspect was informed at the time that the questioning was voluntary or that the suspect was free to leave or to request the officers to do so; whether the suspect possessed unrestrained freedom of movement during questioning; and whether the suspect initiated contact with the police or voluntarily admitted the officers to the residence and acquiesced to their requests to answer some questions.

Id. (citing United States v. Salvo, 133 F.3d 943, 950 (6th Cir. 1998)); Panak, 552 F.3d at 467.

Defendant points to several factors in support of his contention that he was in custody when he told the agents that he had downloaded child pornography on his laptop: (1) Defendant was never told that he could terminate the questioning or consult with counsel; (2) "the atmosphere was dominated by the officers"; (3) Defendant was isolated from his mother, their movements were monitored, and they were not able to maneuver freely around their home; and (4) the length of the interrogation (approximately 2-3 hours). (Def.'s Supp. Mot., ECF No. 25 at Pg. ID 254-55.)

Having considered the totality of the circumstances, the Court finds that Defendant unsuccessfully asserts that the government obtained the statements from him during a custodial interrogation. First, the fact that the agents did not tell Defendant that he could terminate the questioning or that he could confer with an attorney does not support his assertion that the interrogation was custodial. "It would be strange indeed, to say that a telltale sign of whether an individual must be Mirandized is whether the officer gave the individual one of the Miranda warnings..." Conder, 529 F.App'x at 623 (quoting Panak, 552 F.3d at 467). Defendant's argument is circular, and overemphasizes the importance of the fact that the agents did not tell him that he could refuse to answer ...

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