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State v. Lewis

United States District Court, W.D. Kentucky, at Paducah Division

April 24, 2015

NITED STATES OF AMERICA, Plaintiff,
v.
KEVIN ALAN LEWIS, Defendant.

MEMORANDUM OPINION AND ORDER

THOMAS B. RUSSELL, Senior District Judge.

This matter comes before the Court on Defendant Kevin Alan Lewis two motions to suppress. (Docket #39, 40). The United States filed a response. (Docket #43). A suppression hearing was held on January 26, 2015. (Docket #45). Lewis has filed a brief in support of his motion to suppress. (Docket #51). The United States has filed a brief in response. (Docket #52).

In Lewis's first motion, he moves to suppress all statements that he made to law enforcement following his arrest on the grounds that he was not advised of his Miranda rights. (Docket #39). Lewis also moves to compel the United States to produce any audio or video recordings of his interrogations. (Docket #39). In Lewis' second motion he moves to suppress evidence derived from Lewis's iPhone on the grounds that it was seized without a warrant and in violation of Lewis's Fourth Amendment rights. (Docket #40).

For the following reasons, Lewis's motions to suppress (Docket #39, 40) are DENIED.

BACKGROUND

This motion arises out of the arrest of Kevin Alan Lewis in the early hours of March 12, 2014. On the evening of March 11, the FBI and Army CID received information that Lewis had engaged in illegal sexual activity at Fort Campbell with an 11-year-old boy. That night, FBI Special Agent Alfred Burney interviewed the victim, his mother, and his stepfather.

The victim's mother explained that the victim had an iPod Touch that could be used to send text messages. The victim's older brother had an iPhone. The iPod Touch and iPhone shared the same iCloud account. One night, the victim's older brother turned on his iPhone and it began to populate the conversation between the victim's iPod Touch and Lewis's phone. (Docket #45, p. 10). The conversation included pictures of the victim partially undressed, discussions about marriage, and other inappropriate conversations. The victim's mother was able to cross-reference the phone number against the number she had for Lewis. She confronted Lewis and Lewis denied any wrongdoing. (Docket #45, p. 12). When she confronted the victim, he said there had been "some kissing done" between him and Lewis but did not disclose any other sexual conduct. (Docket #45, p. 12). The victim's mother also stated that there were four children in Lewis's home, including three step-children. She also stated that Lewis's wife had been deployed to Afghanistan approximately two month prior. (Docket #45, pg. 14-15).

The victim's stepfather stated that when he confronted the victim, the victim admitted that he had engaged in sexual conduct with Lewis on three to four occasions. He also stated that the victim had occasionally brought gifts home and claimed they were from friends. (Docket #45, p. 16).

Burney inspected the iPhone and iPod Touch and confirmed they contained the alleged conversations between the victim and Lewis. Burney then interviewed the victim. The victim stated he had engaged in sexual conduct with Lewis on three to four occasions approximately one week prior to the interview. (Docket #45, p. 19). The victim claimed Lewis instructed him to delete all messages and send a smiley face to Lewis to confirm that messages had been deleted. (Docket #45, p. 22). Burney also reviewed Lewis's criminal history and learned Lewis had been charged with sexually molesting a child and was a registered sex offender. (Docket #18).

The interviews concluded shortly after midnight. Burney determined there was probable cause to arrest Lewis without a warrant. At 1:00 a.m. on March 12, 2014, FBI and CID agents arrived at Lewis's residence. The agents knocked and announced their presence. After a one to two minute wait, during which time the agents could see silhouettes moving in the house, a boy answered the door. (Docket #45, p. 27). The boy indicated Lewis was upstairs. Burney ascended the stairs and saw Lewis standing in his bedroom doorway holding his cellular phone. Burney instructed Lewis to put down the phone and then handcuffed Lewis. (Docket #45, p. 30).

Lewis' stepdaughter testified that after Lewis was removed from his bedroom, she entered his bedroom and picked up Lewis's phone, initially believing it was hers. A law enforcement agent entered the bedroom and ordered the stepdaughter to hand over the phone, which she did. (Docket #45, pg. 68-71).

Lewis was transported to CID office. At 1:51 a.m., Burney advised Lewis of his Miranda rights. Lewis waived his rights and denied all allegations. (Docket #45, p. 44). Lewis was interviewed a second time at 3:17 a.m., this time by Special Agent Joubert. (Docket #45, p. 45). Lewis was again advised of his Miranda rights. In both instances, Lewis signed a form waiving his rights. (Docket #45, p. 64). During the second interview, Lewis admitted to sexual conduct with the victim. (Docket #45, p. 75). Neither interview was recorded pursuant to FBI protocol in place at that time. (Docket #45, p. 84).

Lewis moves to suppress any statement he made following his arrest. Lewis also requests the production of any audio or visual recording of Lewis's interrogation. (Docket #39). Lewis also argues the seizure of his phone was done without a warrant and in violation of his Fourth Amendment rights. ...


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