United States v. Ofsink
2:19-cr-00290
| E.D.N.Y | Feb 8, 2021Background
- Undercover agents on Kik communicated with user “JoshJamie516,” who admitted sexual contact with his daughter and sent three non‑pornographic photos of girls aged ~8–13; Kik/Verizon subpoenas traced the account to the IP at 15 Mesa Road, Syosset (Ofsink’s residence).
- On May 31, 2019, two plainclothes agents conducted a knock‑and‑talk at ~6:00 a.m.; they spoke with Brett Ofsink in his driveway; he left briefly to take his son to school and returned voluntarily.
- During the conversation Ofsink admitted sharing the chat photos via Kik, unlocked his iPhone, and told agents he used BlueStacks (an Android emulator) and the JoshJamie account on his home computer.
- Ofsink handed his home computer and password to the agents, signed a written “CONSENT TO SEARCH COMPUTER(S)” form (which he reviewed briefly), and received a receipt; no threats or force were used.
- Forensic analysis later revealed extensive child pornography on a second hard drive; agents obtained an arrest warrant and arrested Ofsink, who then waived Miranda and gave inculpatory statements and written admissions.
- Magistrate Judge Lindsay held an evidentiary hearing and recommended denying suppression (finding consent voluntary); the district court reviewed objections de novo, adopted the Report, and denied the suppression motion.
Issues
| Issue | Government's Argument | Ofsink's Argument | Held |
|---|---|---|---|
| 1) Probable cause to seek a warrant before May 31 | No showing defendant preserved or proved pre‑May 31 probable cause; objection waived | Magistrate purportedly implied agents lacked probable cause and thus knock‑and‑talk improper | Court: defendant waived the new argument; in any event objection irrelevant to result; overruled |
| 2) Legality of knock‑and‑talk (timing, driveway parking) | Knock‑and‑talk permissible; agents acted non‑coercively and stayed in public areas | Visit at 6:00 a.m. and partial driveway obstruction were coercive and exceeded ordinary‑visitor scope | Court: de novo review found no constitutional defect; conduct not coercive; objection overruled |
| 3) Voluntariness of consent to search computer (and scope) | Consent was voluntary and knowing: Ofsink handed device, gave password, signed a clear consent form; objective‑reasonableness standard met | Consent was involuntary: Ofsink was shocked/intimidated, not told he could refuse, did not read form, did not know about forensic search | Court: defers to magistrate credibility findings; totality of circumstances shows voluntary consent; objection overruled |
| 4) Post‑arrest statements (fruit of poisonous tree) | Statements admissible because search and consent lawful | Statements tainted by illegal search/consent | Court: because consent and search were lawful, fruit‑of‑the‑poisonous‑tree claim fails; objection overruled |
Key Cases Cited
- Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (voluntariness of consent judged under totality of circumstances)
- Florida v. Jardines, 569 U.S. 1 (2013) (knock‑and‑talk principles; front‑door approach not a search per se)
- Kentucky v. King, 563 U.S. 452 (2011) (occupant need not speak or admit officers; limits on exigent‑circumstances rules)
- Florida v. Jimeno, 500 U.S. 248 (1991) (scope of consent measured by what a reasonable officer would understand the consent to permit)
- United States v. O’Brien, 926 F.3d 57 (2d Cir. 2019) (objective‑reasonableness standard for officers’ belief that consent was given)
- Thomas v. Arn, 474 U.S. 140 (1985) (standards for district court review of magistrate judge reports)