2012 WL 1514894
E.D.N.Y.2012Background
- Defendant Schaefer was indicted on one count of possession of child pornography under 18 U.S.C. 2252(a)(4)(B), 2252(b)(2).
- Schaefer moved to suppress statements and evidence from a search of his home on August 20, 2007, arguing non-voluntary consent due to denial of a telephone call to his brother, a Nassau County officer.
- He also moved to dismiss the indictment for pre-indictment delay, asserting Fifth Amendment due process rights due to arrest/indictment over two years after the search.
- A suppression evidentiary hearing was held in Nov. 2010 and Nov. 2012; the court orally denied suppression on Feb. 1, 2011, and denied pre-indictment-delay dismissal on Feb. 1, 2011.
- Findings of fact credited agents Lazzara and Mancini as fully credible; defendant’s testimony was not credible on key points regarding timing of consent.
- Key events: on Aug. 20, 2007, agents conducted a non-custodial knock-and-talk, obtained verbal and written consent to search Schaefer’s computer, and found images later confirmed as child pornography; arrest occurred Oct. 16, 2009 without a home search.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was consent to search voluntary? | Schaefer contends consent was involuntary due to coercion by denial of a phone call and custodial atmosphere. | Schaefer asserts denial of the call and sequence of events show coercion undermining voluntariness. | Consent deemed voluntary; suppression denied. |
| Was there pre-indictment delay that violates due process? | Delay over two years prejudiced defense and served improper governmental purpose. | Delay caused prejudice or improper motive; warrants dismissal. | No actual prejudice shown; dismissal denied. |
Key Cases Cited
- Schneckloth v. Bustamonte, 412 U.S. 218 (Supreme Court 1973) (consent to search must be voluntary under totality of circumstances)
- Florida v. Jimeno, 500 U.S. 248 (Supreme Court 1991) (objective reasonableness standard for consent searches)
- Calvente, 722 F.2d 1019 (2d Cir.1983) (consent burden on government by preponderance of the evidence)
- Snype, 441 F.3d 119 (2d Cir.2006) (consent validity considerations in Fourth Amendment searches)
- Lavan, 10 F.Supp.2d 377 (S.D.N.Y.1998) (factors in voluntariness of consent including custody and rights awareness)
- Crespo, 834 F.2d 267 (2d Cir.1987) (custody does not automatically negate voluntariness of consent)
- Vasquez-Santiago, 602 F.2d 1069 (2d Cir.1979) (custody alone not enough to show involuntary consent)