An esteemed colleague has pointed me to the judgment by Kanne J in United States of America v Dominick Pelletier (US Court of Appeal, 7th Circuit, 12-1274; Posner, Kanne & Sykes JJ), an exemplary piece of legal writing.
Kanne states that
Federal investigative agents will tell you that some cases are hard to solve. Some cases require years of effort - chasing down false leads and reigning in flighty witnesses. Others require painstaking scientific analysis, or weeks of poring over financial records for a hidden clue. And some cases are never solved at all - the right witness never comes forward, the right lead never pans out, or the right clue never turns up.
This is not one of those cases. The defendant, Dominick Pelletier, admitted during a job interview with the FBI that he had pornographic pictures of children on his home computer. Instead of joining the FBI’s vaunted ranks, Pelletier was indicted for one count of possession of child pornography. After the district court denied two of his motions to suppress, Pelletier entered a conditional guilty plea and reserved the right to appeal the denial of the suppression motions. Finding no error, we affirm.Kanne goes on ...
Dominick Pelletier applied for a job with the FBI. As part of the application process, the FBI requires applicants to undergo a personnel security interview and to take a polygraph examination. Pelletier scheduled his examination for August 29, 2008, his birthday. Pelletier arrived at the FBI office, presented his identification, passed through a metal detector, and checked his cell phone at the front desk. At about 9:45 a.m., Special Agent Jay Cherry met Pelletier and escorted him to a ten-foot-by-ten-foot polygraph suite. Agent Cherry was unarmed and left the door to the room unlocked. At 9:49 a.m., Pelletier read and signed a “Consent to Interview with Polygraph” form that provided, in part: “I understand that I am not in custody, that my participation in the polygraph examination is voluntary, and that I may leave at any time.” Agent Cherry explained that the polygraph would proceed in three parts: the “pre-test” (when they would discuss the sorts of questions that would appear during the test); the “in-test” (the actual administration of the polygraph); and the “post-test” interview.
During the pre-test, Agent Cherry gave Pelletier a list of questions. Pelletier read them over and said that he was concerned about the section on sexual crimes. Pelletier explained that he had done “research” in Indonesia on child pornography and sexual abuse and was worried that it might lead him to fail the test. Agent Cherry assured Pelletier that everything would be fine so long as the research did not involve actual possession or distribution of child pornography. Pelletier assured Agent Cherry that it did not. Agent Cherry then administered the polygraph examination. Pelletier failed.
During the post-test interview, Agent Cherry asked Pelletier how he thought he did, and Pelletier replied that he had “some trouble with one of the questions” because of a set of files on his home computer. Pelletier explained that he had looked at images of young females as part of his “research.” As the interview progressed, Pelletier admitted that he had images of naked children on his home computer. Agent Cherry asked Pelletier to write a statement summarizing their discussion, and Pelletier complied. The statement said that Pelletier believed he had failed because (1) he had used pirated software as a student; and (2) he had downloaded and stored child pornography and erotica as part of his research for a graduate school project. Pelletier and Agent Cherry both signed the statement at the bottom, and Pelletier remained friendly, cooperative, and interested in the job. Agent Cherry then told Pelletier that he wanted to invite a second agent who knew more about the subject matter to join the interview. Pelletier agreed, and Agent Cherry contacted Agent Brent Dempsey of the FBI’s Cyber Squad.
Agent Dempsey got the call sometime in the early afternoon and walked over to the interview room. He was wearing his badge and sidearm. Agent Cherry explained (apparently outside of Pelletier’s hearing) that Pelletier had admitted to possessing child pornography. Agent Dempsey decided to take a low-key, conversational approach when interviewing Pelletier, rather than aggressively interrogating him, to make Pelletier believe that their conversation was still part of the job interview. Agent Dempsey did not read Pelletier his Miranda rights, although he did begin the interview by telling Pelletier that “you don’t have to answer any questions with us, but any questions you do answer you have to tell the truth. You can’t lie.”The situation got worse step by step ...
Pelletier told Agent Dempsey about his research project and explained that it included searching for and downloading child pornography from the internet. Pelletier also said that his computer crashed after he completed his research, which Agent Dempsey took to mean that there was no longer any child pornography on Pelletier’s computer. Accordingly, Agent Dempsey asked Pelletier if he could search his computer to make sure it did not contain child pornography.
Pelletier refused, saying he was concerned that there was “child erotica” on his computer, including photos from the “LS Models” series. Agent Dempsey explained that parts of the LS Models series are child pornography and pressed Pelletier on his distinction between child erotica and child pornography. Agent Dempsey read Pelletier the definition of child pornography, and Pelletier admitted that parts of the LS Models series were pornographic. Agent Dempsey again asked for permission to search Pelletier’s home computer so Agent Dempsey could recover the contraband, and again Pelletier refused, explaining that he was afraid that he had “hardcore” child pornography on the computer. Pelletier also thought that his girlfriend might be planning a surprise birthday party for him later that evening, and Pelletier did not want his friends to see the FBI searching his house. At some point near the end of the interview, Pelletier also admitted to “inadvertently” creating child pornography by recording himself having sex with a girl he later learned was under the age of eighteen. It is unclear, however, whether he made this admission before or after Agent Dempsey asked for consent to search Pelletier’s computer.
After either the first or the second refusal — the record is unclear on precisely when — Agent Dempsey stepped out of the room and directed another FBI agent to go to Pelletier’s home and freeze the premises pending a search warrant or Pelletier’s consent to search. Agent Dempsey also contacted an Assistant United States Attorney about obtaining a federal search warrant and the DeKalb Police Department about obtaining a state search warrant. Agent Dempsey stepped back into the room and told Pelletier that if Pelletier did not consent to a search, he was going to try to get a search warrant.
This time, Pelletier relented and signed a written consent form. The interview ended at approximately 3:20 p.m., and Pelletier left the field office. Pelletier never expressed discomfort, asked to leave, or asked for an attorney. He was offered snacks, sodas, and restroom breaks several times, and he remained amiable and talkative throughout the day. Indeed, it seems that Pelletier left the interview room believing he was still in the running for an FBI job. Pelletier told the agents that his research on child pornography would help him to track down criminals, and, just before leaving to go home, Pelletier asked if “this was going to slow down the application process.”
Obviously, Pelletier did not get the job. Instead, the FBI found more than six hundred images of children on his computer, and Pelletier was indicted for one count of possession of child pornography in violation of 18 U.S.C. § 2252(a)(5)(B). Pelletier moved to suppress, arguing that (1) the statements he made to the agents should be suppressed because he was entitled to Miranda warnings and did not receive them; and (2) the search of his computer should be suppressed because his consent was involuntary. After hearing both FBI agents testify, the district court found their testimony credible and denied both motions, holding that (1) Miranda warnings were unnecessary because Pelletier was never in custody; (2) Pelletier voluntarily consented to the search of his computer; and (3) even if he did not, the contents of the computer inevitably would have been discovered with a search warrant. Pelletier then conditionally pled guilty while reserving the right to appeal the district court’s denial of his suppression motions. He now exercises that right.
