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United States v. Delano

October 15, 2007

UNITED STATES OF AMERICA PLAINTIFF
v.
TONY DELANO DEFENDANT



MEMORANDUM OPINION AND ORDER

This matter is before the Court on a motion by Defendant, Tony Delano, to suppress the search and seizure of several computers from his residence [DN 23]. On September 4, 2007, a suppression hearing was held. The parties filed supplemental briefs [DN 33, DN 34]. Fully briefed, this matter is ripe for decision.

Background

On May 10, 2006, United States Immigrations and Customs Enforcement ("ICE") Special Agents, Ron Crawford and Magin Sacasas, went to the residence of Tony Delano located in LaGrange, Kentucky, to conduct a "knock and talk"*fn1 after receiving information from the Newark, New Jersey ICE office that an individual using the email address TONY28@aol.com purchased a subscription to four websites linked to child pornography.

The ICE Agents did not have a search warrant or an arrest warrant.

Delano's residence was located in a residential subdivision of single-family homes. The Agents were dressed in casual clothing, jeans and t-shirts, with untucked, unbuttoned shirts over the t-shirts and concealing their weapons. On arrival at the residence, Delano answered the door and according to Agent Crawford, both himself and Agent Sacasas introduced themselves by showing Delano their government-issued ICE credentials. The agents asked permission to speak with Delano and Delano invited them into his residence. The interview was conducted in the home's living room, with the participants sitting on a sofa and chairs.

Delano spoke with the agents for approximately one hour and fifteen minutes. During the interview, Delano was asked if he would be willing to confirm two credit card numbers associated with the investigation, and Delano agreed and confirmed his possession of the two credit card numbers. Delano also advised the agents that he had recently purchased a Dell computer approximately six weeks prior to the interview and had purchased a laptop approximately one year prior to the interview. Delano confirmed that he had internet access provided by Insight Communications. Delano further provided the agents with his previous email address, TONY28@aol.com. Delano was asked if he had ever purchased child pornography. Delano replied by saying, "I would prefer not to answer." Agent Crawford testified that he then told Delano that it appeared he was not being totally candid and explained that his credit cards were involved in purchases from web sites that contained child pornography. Agent Crawford then asked Delano if he would be willing to grant consent for ICE agents to search his computers. Delano replied, "I guess you guys are going to take the computers anyway." Agent Crawford provided Delano with a copy of an ICE Consent to Search Computer/Electronic Equipment Form. According to Agent Crawford, Delano signed the consent to search form after reading the form and filling in the blanks.

After completing the form, Delano showed the agents the home office, where the computers were located. Agent Crawford testified that upon entering the office, Agent Sacasas noticed a child pornographic image on one of the computers. Agent Crawford stated that Delano helped the agents disconnect the computers and carry them to the agents' vehicle.

Defendant filed this motion to suppress the search and seizure of the three computers obtained from his residence. Defendant argues that he did not voluntarily consent to law enforcement searching his computers and as a result, the evidence obtained from the search of the computers should be suppressed.

Discussion

The Fourth Amendment prohibits searches without a warrant except in limited circumstances, such as when the search is conducted with consent. In order to justify a search by consent, "the government must prove by 'clear and positive testimony' that the asserted consent was 'voluntary' and 'unequivocally, specifically, and intelligently given.'" United States v. Buckingham, 433 F.3d 508, 514 (6th Cir. 2006)(quoting United States v. Worley, 193 F.3d 380, 385-86 (6th Cir.1999)). "The question of whether a consent to search is voluntary and knowing is a question of fact to be determined from the totality of all the circumstances." United States v. Abdullah, 162 F.3d 897, 902 (6th Cir.1998).

To evaluate the totality of the circumstances, the Court should consider several factors such as "the age, intelligence, and education of the individual; whether the individual understands the right to refuse to consent; and whether the individual understands his or her constitutional rights." United States v. Ivy, 165 F.3d 397, 402 (6th Cir.1998). In addition, the Court "should consider the details of the detention, including the length and nature of detention; the use of coercive or punishing conduct by the police, and indications of 'more subtle forms of coercion that might flaw [an individual's] judgment.'" Id. (quoting United States v. Watson, 423 U.S. 411, 424 (1976)) (citation omitted). No single factor is dispositive of the analysis. Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973).

United States v. Bradley, 163 Fed. Appx. 353, 356 (6th Cir. 2005), cert. denied, 547 U.S. 1105 (2006). Finally, voluntary and knowing consent does not require that a defendant be advised that he is entitled to refuse consent. United States v. Drayton, 536 U.S. 194, 206 (2002).

During the suppression hearing, the witnesses presented contradictory testimony regarding the location of the conversation related to the consent to search and the nature of Defendant's verbal response to the agents' request to look at the computers. Agent Crawford testified that while in the living room of Delano's residence, he and Agent Sacasas asked Delano if he would be willing to grant consent for ICE agents to search his computers. Delano replied with the statement, "I guess you guys are going to take them anyway." Agent Crawford responded by telling Delano that he and Agent Sacasas were asking for Delano's written consent to take the computers and provided Delano with a copy of an ICE Consent to Search Computer/Electronic Equipment Form.

According to Agent Crawford, Delano read the form and completed the blanks for: his name, by filling in "Tony Delano;" the individuals authorized, by filing in "ICE Agents;" the location, by filling in the address of his residence; and the language, by filling in "English. After reading the form and filing in the blanks, Delano signed and dated the form. Agents Crawford and Sacasas also signed the form as witnesses. After completing the form, Delano showed the agents the home office, where the computers were located. Agent Crawford testified that upon entering the office, Agent Sacasas noticed a child ...


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