Opinion and Order
This matter comes before the Court on Defendant Gene Parson’s Motion to Suppress (Doc. No. 42). On June 18, 2008, the Court heard testimony and admitted evidence during a hearing on Defendant’s Motion (“Hearing” or “Hr’g”). The foremost issue is whether Parson’s consent to search was involuntary due to law enforcement’s misrepresentations to Parson that he was a victim of identity theft. The Court makes the following Findings of Fact, based upon the evidence and testimony presented at the Hearing. Analyzing these facts in light of Fourth Amendment jurisprudence regarding the effect of law enforcement ruses upon voluntariness of consent, the Court concludes that Defendant’s Motion shall be granted.
FINDINGS OF FACT
1. In November, 2004, the National Center for Missing and Exploited Children provided information to the Immigration and Customs and Enforcement Center (“ICE”) Cyber Crimes Center regarding several websites that were suspected of hosting and offering child pornography. See Collateral Request, Doc. No. 42, Ex. I. 1
2. ICE Special Agent Michele Dowling, with assistance from forensic computer experts, determined that the suspect websites hosted and offered child pornography. Collateral Request, Doc. No. 42, Ex. 1. 6 Agent Dowling, posing as an interested subscriber to the suspect website, was charged $79.00 or $80.00 for access to the illegal site. Hr’g Tr., p. 14.
3. Agent Dowling and computer forensic experts determined Verio, Inc. hosted some of the websites. Collateral Request, Doc. No. 42, Ex. 1. Search warrants were executed at Verio, Inc., and other locations. Investigators discovered identifying information for users of the child pornography websites, including IP addresses and home addresses. Collateral Request, Doc. No. 42, Ex. 1.
4. ICE issued a Collateral Request to various ICE authorities in districts where the suspects lived, including the Pittsburgh district. The Request stated: “ICE/CE requests that the above listed offices review the information contained in this Report of Investigation and CD-R and attempt to use the information as the foundation for obtaining a search warrant for the computers and associated removable media
5. On or about June 24, 2005, Pittsburgh ICE Special Agent James Stitzel received the Collateral Request. Hr’g Tr., p. 5. Agent Stitzel consulted Assistant United States Attorney Tina Miller on matters relating to this investigation. Hr’g Tr., p. 9; September 13, 2005 ICE Report, Doc. No. 42, Ex. 5.
6. The Collateral Request identified targets, and provided a database for purposes of generating specific reports on each identified subscriber. 2 Collateral Request, Doc. No. 42, Ex. 1.
7. Agent Stitzel received a CD-R along with the Collateral Request, which contained a database with information about the targets. Hr’g Tr., pp. 6-7. This database, Government Exhibit 1, contains the name of the website visited, the date of the transaction, the name of the subscriber in the website, the subscriber’s address and telephone number, the Internet Protocol (IP) address of the computer that accessed the site, and the credit card type, number, security code, and expiration date. Database, Doc. No. 42, ex. 3.
8. Government Exhibit 2 contains a summary sheet of all 43 database entries dealing with Parson. Each entry represents a visit by Parson’s computer and e-mail address, “ehtweety@mail. com,” to a child pornography website, using a credit card with Parson’s name. Summary of database, Doc. No. 42, Ex. 2. This summary sheet contains Parson’s email address, name, credit card number, and address. Hr’g Tr., pp. 10-11.
9. After reviewing Government Exhibit 1, Agent Stitzel performed further investigation, utilizing public sources to discover Parson’s birth date, driver’s license record, address, and photograph. Hr’g Tr., p. 8.
10. Agent Stitzel also performed a query for Gene Parson’s IP address. Hr’g Tr., p. 8.
11. Agent Stitzel then sought grand jury subpoenas of Verizon to see if Parson still had Internet access through Verizon. Hr’g Tr., p. 51. Agent Stitzel received information from Verizon that Parson or someone living at the residence in Tyrone, PA had current internet access. Hr’g Tr., p. 14.
12. Two credit cards (the '517 card and the '545 card), bearing the name of Gene Parson, were used to access the websites. Hr’g Tr., pp. 12-13.
13. Having obtained information from the U.S. Postal Service task force that the '517 credit card was a Capital One card, Agent Stitzel sent a subpoena to Capital One to obtain further information on the use of the '517 card. Hr’g Tr., pp. 9-10.
14. The government only sought a subpoena for the records of the '517
15. Having received the '517 credit card records from Capital One, Agent Stit-zel failed to find $79 or $80 purchases as anticipated. Hr’g Tr., pp. 15-16. However, while Agent Stitzel was concerned as to why there was not a charge of $79.00 or $80.00 on Mr. Parson’s '517 card, he was also aware, based on his experience, that individuals who display an interest in child pornography usually download it, collect it, share it, and store it quite frequently. Hr’g Tr., pp. 17-18.
16. The records from Capital One regarding the '517 credit card revealed frequent and consistent monthly online purchases of $40-50. Doc. No. 42, ex. 7.
17. The credit card was paid on-line and on time; charges were modest and consistent. Doc. No. 42, ex. 7. As acknowledged by Agent Stitzel, the bills contained no evidence of identity theft. Hr’g Tr., p. 57.
18. When asked whether he had any other concerns about the use of the '517 card, Agent Stitzel responded: “Sure. There is always a chance that someone had accessed that without Parson’s knowledge.” Hr’g Tr., p. 19. However, he acknowledged that this scenario was a “remote possibility.” Hr’g Tr., p. 62.
19. Agent Stitzel acknowledged that the Collateral Request did not suggest any of the suspects were victims of identity theft. Hr’g Tr., p. 31.
20. The Court concludes that Agent Stit-zel himself did not believe that Parson was a victim of identity theft. The Court also concludes that no objective evidence exists that suggests the possibility of identity theft.
21. During Agent Stitzel’s ten years in law enforcement, he has prepared one or two search warrants relating to child pornography violations, while participating in seven to ten “knock- and-talks.” Hr’g Tr., pp. 31-32. During Agent Stitzel’s five years as an ICE agent, he has conducted or been involved with fifteen to twenty child exploitation investigations. Hr’g Tr., p. 7. In each knock-and-talk conducted, Agent Stitzel brought up the possibility of identity theft. Hr’g Tr., p. 32.
22. Based on the evidence gathered, and his suspicion that Parson possessed electronically stored child pornography, Agent Stitzel planned to conduct an interview of Parson at his residence to investigate the “possibility that [a] credit card belonging to Parson had accessed an international website that allowed child pornography for a fee.” Hr’g Tr., p. 19. It appears that Agent Stitzel was hesitant to seek a warrant because the information obtained relative to Mr. Parson in the “Project Watchdog” report showed access to the suspect website in January of 2005, and the investigation was now into the early months of 2006. Hr’g Tr., p. 19.
23. Agent Stitzel contacted Pennsylvania State Police Trooper Charles Schae-fer to verify Parson’s address and ask “if he had any information [regarding Parson].” Hr’g Tr., 19. Agent Stit-zel told Pennsylvania State Police Trooper Chuck Schaefer that he was investigating a child pornography case. Hr’g Tr., pp. 102-03.
25. At this time, Parson was 65 years old. He collected Social Security benefits of $725 per month. While living in a small trailer on his brother’s land, Parson worked part time as a repairman at his brother’s used car lot. Parson is hard of hearing. He does not see well due to cataracts, and has a history of taking medication for depression. Hr’g Tr., pp. 126-27.
26. Parson did not have wireless Internet access. Hr’g Tr., p. 134.
27. The time of arrival was likely in the afternoon. Hr’g Tr., p. 20. Parson had just laid down to take a nap prior to the agents’ knock. Hr’g Tr., p. 131.
28. The ICE agents and Trooper Schae-fer were all in plain clothes; they introduced themselves and showed their badges to Parson. Hr’g Tr., pp. 20,181,133,148.
29. Agent Stitzel advised Mr. Parson that “there was a chance he could be a victim of identify theft.” Hr’g Tr., pp. 20, 93.
30. It appears unlikely 3 that the agents specifically informed Parson on the doorstep that they were investigating child pornography. Agent Stitzel testified that he advised Parson that he was “investigating this international website that’s allowing access to child pornography for a fee.” However, Trooper Schaefer testified that “They [the ICE agents] talked to him about a credit card that was his and they mentioned that there was a possibility of some identity theft regarding an international website.” Hr’g Tr., p. 93 (emphasis added). Also, Agent O’Neill testified that Agent Stitzel advised Parson “that we were there concerning a possible identity theft involving his credit card accessing I believe it was an international website.” Hr’g Tr., 113. The Court finds that the weight of the evidence indicates that the agents emphasized identity theft, while only briefly and casually mentioning the context of an international website. 4
31.Agent Stitzel asked if Parson had the '517 credit card. Parson responded affirmatively, and took the credit card out of his wallet to show it to Agent Stitzel. Hr’g Tr., p. 22. Agent Stit-zel told Parson that “Capital One was being hit very hard for identity theft.” Hr’g Tr., p. 132.
33. Parson allowed the men entry into his home, because he was in “shock” and “thought they were there to help [him]” with the identity theft problem. Hr’g Tr., 133. After receiving this notification of potential identity theft problems, Parson was “shook up”, and wondered “what am I going todo?” Hr’g Tr., 132.
34. Agent Stitzel asked Parson if had any problems with that card. Parson responded no, but offered that he previously had problems with another card. Hr’g Tr., p. 22. Agent Stitzel asked Parson if he ever used his credit card to make on-line purchases. Parson responded yes. Hr’g Tr., p. 134.
35. The parties disagree as to what happened subsequent to this question. The agents claimed that the conversation shifted directly to child pornography; Parson testified that he could not recall any discussion about child pornography at this point. Hr’g Tr., p. 23. The Court finds that the evidence is ambivalent regarding the subject of conversation at tins point. While this conversation, and the possible discussion of images of children, especially if raised by Parson, is relevant to the issue of consent, it is not dispositive and thus does not require firm resolution. Importantly, when considering such divided factual accounts, the Court notes that the burden of proving voluntariness of consent rests with the government.
36. The agents asked to look at his computer following a discussion that was “basically about identity theft problems.” Hr’g Tr., pp. 34, 134. Parson thought that the men were there to help him with his identity theft problems, so he turned on the computer. Hr’g Tr., p. 134. Parson began to feel that something was not right, and that these men possibly were actually criminals posing as law enforcement. Parson was afraid to refuse the three men’s request to allow them on his computer. Hr’g Tr., p. 134. Agent Stitzel characterized Parson as “very cooperative” throughout this process. Hr’g Tr, p. 25.
37. Agent Stitzel directed Parson to open a “folder lock” icon on his computer. Parson appeared to be “very versed and very knowledgeable on computers and how [they] operate[ ].” Hr’g Tr., p. 25. Parson typed the password “bologna” to open the folder lock. Agent Stitzel asked Parson for the password and Parson provided it to him. Hr’g Tr., p. 142. This password was written down on the top of the consent to search form. Hr’g Tr., p. 142.
38. The men began looking at a list of files. Agent Stitzel directed Parson to open a file labeled “stick out,” which opened to a picture of a nude girl, nine to twelve years old, with her genitals exposed. Hr’g Tr., pp. 24-25, 97-98,115,136-137.
39. Agent Stitzel asked where this picture came from. Parson told him that the picture came from a website called Lolita portal.net. Hr’g Tr., p. 139.
40. Parson asked whether the picture of the young girl was child pornography, and whether he could be arrested for having that type of picture. Hr’g Tr., pp. 25, 116, 139. Agent Stitzel replied that they were “not the ones who determined that.” Hr’g Tr., p. 139. Agent Stitzel also told Parson:
41. Parson testified that these exchanges caused him to question whether the men were law enforcement at all. Parson thought the men themselves may be criminals trying to obtain his identity. Hr’g Tr., p. 138
42. The agents subsequently prepared to take the computer for forensic examination. Parson testified that Agent Stitzel announced “we’re going to take this stuff’ while beginning to unhook the computers. Hr’g Tr., p. 140. Agent Stitzel testified that he advised Parson that he did not have to sign the form; however, Parson claims he was never told that he did not have to consent. Hr’g Tr., pp. 142-43. This factual issue regarding knowledge of ability to refuse consent, while relevant, is not dispositive. Parson felt as if he were instructed to sign the form along with two other forms. Hr’g Tr., pp. 142-43.
43. Parson did not read the form because he has difficulty reading due to cataracts. Also, he was afraid and just wanted the men out of his home. At this point, he was convinced that the men were simply trying to steal his computer and identity. Hr’g Tr., p. 142. He was “still thinking about the identity theft and what I have to do to take care of it.” Hr’g Tr., p. 144. Parson asked no questions about the consent form or the seizure of his computer. Hr’g Tr., p. 28.
44. Parson signed a blanket consent form permitting the agents to conduct a complete search of his computer and “to take any letters, papers, materials, or other items/property which they may desire.” Consent Form, Doc. No. 42, ex. 8; Hr’g Tr., pp. 26-27, 88, 99,117.
45. The Consent Form did not include any of the following: the purpose for such a search, any specific items for which the agents were searching, or that Parson could refuse to consent to the search and seizure of his computer. Consent Form, Doc. No. 42, Ex. 8.
46. The Consent Form identified the agents as “Officers of the Department of Treasury, United States Customs Service.” Consent Form, Doc. No. 42, Ex. 8.
47. The agents seized one computer, one hard drive, CDs and videotapes, and other materials. Hr’g Tr., p. 28. Parson assisted the agents in preparing the computer equipment for transport. Hr’g Tr., p. 28.
48. The total time the agents spent within the trailer was less than one hour. Hr’g Tr., p. 29. The interactions were never confrontational. Hr’g Tr., p. 29.
49. The government conducted a forensic examination of two computers, one hard drive, and 33 CD-ROMs. The government found approximately 13,-000 images and 128 videos of suspected child pornography. Hr’g Tr., p. 29.
50. After the agents left, Parson went “straight down to [his] bank” to attempt to protect his assets. He spoke with a bank employee about his situation. That bank employee called Agent Stitzel’s phone number. The bank employee changed Parson’s account numbers. Parson stopped his credit card, and contacted Social Security to place a fraud warning and
51. Agent Stitzel acknowledged receiving a call from someone at Parson’s bank, although he remembered little about the conversation. Hr’g Tr., pp. 85-86.
52. Agent Stitzel called Parson later that same day to tell him that he found out that Parson had been to the bank. Agent Stitzel advised Parson that Parson would hear from them soon. Hr’g Tr., p. 146. Agent Stitzel also explained to Parson that he did not believe that Parson was a victim of identity theft. Hr’g Tr., p. 86.
53. During the in-home visit, the agents never informed Parson that he was being investigated for possession of child pornography. Hr’g Tr., pp. 146-47.
54. On June 17, 2007, Agent Stitzel telephoned Parson and told him to be at home at a certain time to accept a package. The agents then arrested Parson at his home at the appointed time. Hr’g Tr., pp. 87,146.
CONCLUSIONS OF LAW
I. Introduction
Defendant Parson moves this Court to suppress evidence and statements obtained as a result of law enforcement’s entry of his home, and search and seizure of his computer. Parson argues that this search and seizure was conducted without a search warrant as required by the Fourth Amendment. The government argues that Parson voluntarily consented to the search, thus removing the need for a warrant. Parson responds that any such consent was invalid in that it was not voluntary, but rather the product of a deliberate and manipulative ruse. Thus, the parties dispute the validity and scope of this consent.
II. Whether the Images Obtained from the Computer Equipment Should be Suppressed
A. Fourth Amendment Protects Vital Personal Liberties
The Fourth Amendment is perhaps a citizen’s most substantial defense against oppressive and unjust government intrusions. It provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. Const, amend IV.
The Fourth Amendment has been interpreted to broadly prohibit police from entering a home to conduct a search or make an arrest without a warrant.
Steagald v. United States,
In short, within an individual’s residence, privacy interests reach their apex. The mechanism of warrants serves to balance those weighty privacy interests against society’s interest in the proper enforcement of laws. Where, as here, law enforcement inexplicably chooses to forgo the warrant process, while nonetheless executing a plot to encroach upon the sanctity of a citizen’s privacy, such actions will be subjected to careful judicial scrutiny.
The government bears the burden of proving by a preponderance of the evidence that exigent circumstances existed for its warrantless actions.
See Sharrar v. Felsing,
B. Voluntariness of Consent to Entry and Search
To meet this burden, the government asserts that a search warrant was not required because Mr. Parson consented to the entry of his home and the search of his computer equipment. A validly obtained and voluntary consent renders a search or seizure reasonable, thus eliminating the need for a warrant.
Katz v. United States,
In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police officers act in full accord with the law when they ask citizens for consent. It reinforces the rule of law for the citizen to advise the police of his or her wishes and for the police to act in reliance on that understanding. When this exchange takes place, it dispels inferences of coercion.
Courts carefully consider the circumstances under which consent is obtained; in particular, such consent must be given voluntarily, rather than being the result of duress. Consent is voluntary if it is “the product of an essentially free and unconstrained choice by its maker.”
See Schneckloth,
The Supreme Court characterized consent as a “jealously and carefully drawn exception” to “the Fourth Amendment rule ordinarily prohibiting the warrantless entry of a person’s house as unreasonable
per
se.”
Georgia v. Randolph,
The government has the burden of proving, by a preponderance of evidence,
Voluntariness “is a question of fact to be determined from the totality of all the circumstances.”
Id.
at 227,
Thus, this Court examines the effect of the totality of the circumstances upon the will of the defendant.
See Miller v. Fenton,
1. Analysis of the Agents’ Misrepresentation Regarding an Identity Theft Investigation
This Court finds that the most significant factor in the voluntariness analysis is the extent to which the agents’ emphasis on identity theft influenced Parson’s supposed consent.
a. Substantial Misrepresentation is Analogous to Physical Coercion
In numerous contexts, such as guilty pleas and confessions, voluntariness re
For instance, in
Bumper v. North Carolina,
police falsely claimed they had a warrant.
The agents’ in the case
sub judice
may not have utilized direct coercion in terms of the application of physical force; however, as shown in
Bumper,
misrepresentations can essentially accomplish the same malevolent purpose as coercion, and thus the consent obtained thereby should be similarly invalidated.
See Blackburn v. Alabama,
b. The Agents’ Misrepresentations Contributed to Overcoming Parson’s Will
In this matter, the agents informed Parson that he may be a victim of identity theft, thus presenting themselves as being focused upon an identity theft problem. The government defends the agents’ statements and actions by downplaying the significance or falsity of their statements. Doc. No. 151, p. 10. However, the facts of the encounter show that the agents’ statements about identity theft were constantly on the mind of Parson, and this fear played an integral role in obtaining his consent. The evidence conclusively shows that the agents did not suspect any identity theft in Parson’s situation. Additionally, no objective evidence suggests any possibility of identity theft. 6
At the outset of the encounter, immediately following introductions, the agents informed Parson that he “may be a victim of identity theft.” This identity theft warning functioned to facilitate Parson’s trust, and enable entry into his home. Importantly, identity theft was the first matter communicated by Agent Stitzel. Comments subsidiary to the Agents’ initial identity theft warning likely sounded like filler to someone worried about the initial headline of identity theft. Additionally, Agent Stitzel did not warn Parson that he
The government claims that the identity theft introduction is defensible in that it was literally truthful and accurate. The Court disagrees, and disapproves of this “literal truth” defense. Given the function and purpose of verbally expressed language, a communicative phrase such as that uttered by Agent Stitzel simply cannot be defined absent its context. In this matter, the phrase was uttered by an ICE agent on the doorstep of a poor and intimidated senior citizen. Yet the government somehow claims that the phrase was not misleading because it is literally true. In essence, the government argues “who knows, after all, whether Parson was a victim of identity theft — we all might be?” This venture into abstraction is inappropriate.
Rather, the Court finds that this language must be assessed in its context, including its speaker, the setting, and the listener. Agent Stitzel spoke the phrase for one purpose: to convey to Parson that he was a victim of identity theft. Agent Stitzel did not convey to Parson that it was only a remote possibility that he was a victim of identity theft. Imagine a conversation in front of a soda machine, wherein Officer A asks Officer B: “Hey, do you have an extra quarter?” Under the government’s reasoning, Officer B would interpret the phrase literally, respond “yes”, and walk off. However, the remainder of society, and this Court, if responding for Officer B, would intuit from shared norms and the circumstances of the situation that Officer A, despite the literal meaning of the words within his query, is in fact asking to borrow a quarter.
In short, this Court concludes that the language used by the agents on the doorstep was deceptive and deliberately misleading. Hence, the visit became problematic from a Fourth Amendment perspective the moment that the agents misled Parson into believing that he was a victim of identity theft. Parson invited the officers into his home as a direct consequence of the representation that he was a victim of a crime. This invitation to entry, then, was certainly not the voluntary act of someone knowingly agreeing to concede privacy interests.
Furthermore, the agents prolonged their deception regarding identity theft in order to facilitate first access to, and then seizure of, Parson’s computer. Parson claims that under the guise of assisting him to resolve his identity theft problems, the agents instructed him to turn on his computer, insisted that he open a file marked “folder lock”, and provide them with the password to this file. The agents claim that Parson initiated the inquiry and offered to show the supposedly legal pictures to the officers. While a complete and accurate knowledge of this particular sequence of events would obviously be helpful to the Court’s determination, resolving this factual issue one way or another would not materially change the Court’s conclusion.
Upon the joint viewing of the image, Parson indicated where he obtained the picture, and his belief that it was not file-
[W]hen the police misrepresentation of purpose is so extreme that it deprives the individual of the ability to make a fair assessment of the need to surrender his privacy, as in People v. Jefferson, where police gained entry to defendant’s apartment on the false claim they were investigating a gas leak, the consent should not be considered valid. Also, it is one thing for the police to conceal the true purpose underlying the seeking of consent, but quite another to state (even truthfully) the purpose of the contemplated search and then add to it a strong indication that evidence of some other type, if found, would be ignored. Concealment of the true purpose is also likely to be deemed unfair where, absent any consent, the search could be lawfully made for the purported purpose but not for the concealed purpose.
2 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure § 3.10(c) (3d ed. 2007) (footnotes omitted).
In pretending to be investigating identity theft, the agents in this matter are easily analogized to
Jefferson’s
policemen, who posed as utility workers and claimed to offer assistance with a possible gas leak.
People v. Jefferson,
Following their disavowment of interest or expertise in child pornography, the agents informed Parson that they would be taking his computer. Having been expressly told that the men were not looking for child pornography, Parson could only assume that the men meant to aid him with his newly realized identity theft problem. He signed the forms they handed him without reading them.
The most compelling evidence in this matter is Parson’s behavior following the agents’ exit. Parson immediately rushed to his bank, changed account numbers, and changed his social security direct deposit information. Throwing aside competing stories of precisely what was said, and in what order, this action objectively illustrates that as a result of the agents’ visit, Parson believed he was a victim of identity theft. His state of mind was rushed and panicked. His immediate move to protect his identity illustrates that the agents’ words and actions inculcated Parson with an honest fear of a stolen identity. Such fear interferes with any supposed intelligent or voluntary agreement with the police to search his computer. Rather, Parson was intimidated into submission by the specter of financial ruin; such a context, created and calculated by the agents, strongly indicates that voluntarily consent was not possible.
c. The Agents’ Misrepresentations Violated Widely Shared Social Expectations
The agents’ lies and trickery in this matter violated widely shared social expectations. The Supreme Court instructed that in assessing consent for Fourth Amendment purposes, great significance should be given to “widely shared social expectations.”
Georgia v. Randolph,
In this situation, the agents lied about their purpose and claimed to be on alternative government business. Lies such as this, if condoned, would obliterate citizens’ widely shared social expectations that they may place some modicum of trust in the words of government officials acting as such. Society expects that law enforcement officers who present themselves and show badges will be honest and forthright with the community that they serve. 8 The catastrophic consequences for a society which loses trust in its constables may be conjured without even the exercise of any creative effort.
In the context of assessing an agency’s failure to obtain proper administrative subpoenas, and consequently lying to obtain consent, the Fifth Circuit explained:
We believe that a private person has the right to expect that the government, when acting in its own name, will behave honorably. When a government agent presents himself to a private individual, and seeks that individual's cooperation based on his status as a government
agent, the individual should be able to rely on the agent’s representations. We think it clearly improper for a government agent to gain access to records which would otherwise be unavailable to him by invoking the private individual’s trust in his government, only to betray that trust.
Sec. and Exch. Comm’n v. ESM Gov’t Sec., Inc.,
While troubled by the agents’ deception regarding the theft of Parson’s identity, the Court acknowledges that one single factor is not dispositive in this matter; rather, the Court considers all additional aspects of the interaction.
See United States v. Andrews,
2. Agents’ Ruse Tactics Succeeded in their Design to Intimidate Parson
The Court further finds that the agents’ misrepresentations were particularly designed to intimidate Parson; this intimidation factor further weighs against voluntary consent.
See Alexander v. United States,
In this matter, three agents entered the small trailer of a 65-year-old man. Speaking from the likely perspective of a public citizen, two agents seem to constitute a necessary and proper investigatory team; however, three agents seem an intimidating force. Parson testified: “I was afraid to refuse doing anything they asked because there’s three men there.... ” Hr’g Tr., p. 143. In a particularly apt description of the coercion inherent in this situation, Parson explained why he allowed the men to walk away with his computer equipment: “And what am I going to do? I’m an old man against three men. What am I going to do?” Hr’g Tr., p. 155.
More importantly, the specter of identity theft added additional coercion and intimidation to the situation. Identity theft is a threat for everyone in our society, from senior citizens to small children. Such attacks occur from around the world and are quickly increasing in number; while most victims likely recover much of the stolen money, or are not held responsible for it, it still takes substantial time and resources to resolve the concerns. See Chris Jay Hoofnagle, Identity Theft: Making the Known Unknowns Known, 21 Harv. J.L. & Tech 97, 97 (2007). Frankly, anyone approached by a federal officer and told that she may be a victim of identity theft would find such information both believable and concerning.
The government’s argument as to intimidation correctly points out there was no “physical punishment” or “deprivation of food or sleep.” Doc. No. 51, p. 10. The agents did not display weapons, touch Parson, or make threats or promises. While torture is a subject for another day, this Court affirms that absence of direct physical torture is not strong evidence supporting voluntariness of consent.
3. Parson’s Personal Characteristics Reveal Particular Vulnerability to Agents’ Ruse
Mr. Parson’s personal characteristics are highly relevant to the totality of the circumstances analysis as to whether his consent was voluntary.
Schneckloth,
At the time of the knock-and-talk, Parson was sixty-five years old. His medical history includes frequent bouts with depressive mood disorders, for which he has been medicated. He lived alone, subsiding primarily on a low fixed income provided by the Social Security Administration. His cataracts interfered greatly with his ability to see.
In short, Parson was a particularly vulnerable target for a ploy regarding identity theft. The government rightly raises the issue that Parson has previous experience with the criminal justice system. This Court does not imagine that Parson at no point in the encounter suspected he may be getting into trouble for what he possessed on his computer. Furthermore,
4. Vague Consent Form Does Not Establish Voluntariness
The United States suggests that the consent form ought to be dispositive of this matter; however, as discussed above, the Court finds numerous problems with the situation under which the form was signed.
9
Additionally, the form itself is generic and vague.
10
In
Ferguson,
the Court held that women who signed consent to treatment forms had not voluntarily consented to searches because the women had not been informed the results would be provided to law enforcement.
Ferguson v. City of Charleston,
5. Conclusion: Government Has Not Met its Burden in Demonstrating that Parson Voluntarily Gave Consent to Agents’ Entry, Search and Seizure
In conclusion, the government has not met its burden to show that Parson voluntarily consented to the entry of his home, and the search and seizure of his computer and other personal items. In particular, the Court finds that the agents’ tactics violated any fair understanding of the privileges of privacy established by the Constitution of the United States. Such tactics, in this instance, served to confuse and frighten Parson, leaving him in a state incapable of consenting to anything, much less the surrender of his Constitutional rights.
Despite this firm conclusion regarding a violation, the question of remedy remains. Where appropriate, the exclusionary rule prevents the use of improperly obtained evidence.
See, e.g., Weeks v. United States,
In this matter, the law enforcement officers’ actions were culpable and flagrant violations that directly resulted in obtaining the evidence at issue. Furthermore, this Court believes that suppression of this evidence will deter future use of this oppressive and misleading identity theft ruse. Therefore, the Court concludes that the evidence obtained from violations of Parson’s Fourth Amendment rights should be suppressed in order to deter law enforcement from future brazen misrepresentations, and abuses of the consent exception.
See Wong Sun v. United States,
C. Even if Parson Voluntarily Consented to a Search, the Scope of this Consent Was Limited to Information that Facilitated an Identity Theft Investigation.
While the Court finds Parson’s consent involuntary, an alternative method of looking at this scenario, and one that ends with the same result, is that Parson consented only to a search and seizure of his property so as to facilitate an investigation into identity theft.
Having obtained a voluntary consent from a private citizen, law enforcement is obligated not to exceed the scope of that consent. In
Florida v. Jimeno,
the Court held that in determining the scope of a valid search based upon consent, the Court should inquire as to what would a reasonable person have interpreted the scope to include.
Upon analysis of the situation in the case sub judice, the Court finds that a reasonable person would have understood that the conversation established only that Parson consented to allowing investigation into alleged identity theft. In particular, the Court finds the agents’ disclaimer regarding their interest or expertise in child pornography sets boundaries upon any obtained consent. The agents gained admission to Mr. Parson’s home by falsely representing that Mr. Parson was the victim of identity thief, and later obtained consent to take Parson’s computer by indicating they were only investigating identity theft crime. As discussed supra, such deceptions accrue a particular musk in that the agents had no reasonable basis to suspect any identity theft.
In
United States v. Dichiarinte,
the Seventh Circuit held that where a defendant gave narcotics officers consent to search only for narcotics, search and seizure of documents was beyond scope of consent.
In conclusion, whether because the consent was involuntary, or because the search exceeded the scope of consent, the resolution is the same: the evidence was taken in violation of Parson’s Fourth Amendment rights, and should be suppressed in accordance with the Court’s weighing of the costs and benefits.
See Herring v. United States,
— U.S. -, -,
III. Whether Statements Should be Suppressed.
Defendant argues that any incriminating statements made during the unlawful entry should be suppressed. The Court agrees for the following reasons.
A. Law Enforcement’s Ruse Taints Parson’s Statements
Defendant alleges that Parson’s statements should be suppressed because they were tainted by close connection to an illegal search and seizure. The exclusionary rule extends to indirect products of an unlawful search.
Wong Sun,
Professor Lafave helpfully comments:
Although the Supreme Court has never confronted, except obliquely, a situation in which it was seriously contended that a confession was the fruit of a prior illegal search, in most such cases there is little doubt as to what the result should be. In the typical case in which the defendant was present when incriminating evidence was found in an illegal search or in which the defendant was confronted by the police with evidence they had illegally seized, it is apparent that there has been an “exploitation of that illegality” when the police subsequently question the defendant about that evidence or the crime to which it relates. Because “the realization that the ‘cat is out of the bag’ plays a significant role in encouraging the suspect to speak,” the more fine-tuned assessment used in Brown for determining when a confession is the fruit of an illegal arrest is ordinarily unnecessary when the “poisonous tree” is instead an illegal search.
3 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure § 9.4(a) (3d ed. 2007) (footnotes omitted).
In this matter, any attenuation between Parson’s statements and the Fourth Amendment violation is limited. First, Parson likely made any incriminating statements only because he allowed the agents into his home under the pretense that they would help him with an identity theft problem. In other words, the agents utilized a ruse and misrepresentations to gain Parson’s trust. The Court finds that this misconduct is particularly flagrant. This is not a matter of excusable neglect, simple mistakes, or mere negligent conduct.
See Herring v. United States,
— U.S.-,
In short, exclusion of the obtained images without exclusion of Parson’s related statements would frustrate the purposes of the Fourth Amendment. Suppression of these statements serves the purposes of the Fourth Amendment by protecting the privacy interests of Parson in his home, and judicially refusing to condone this specific unethical ruse program in order to, hopefully, cultivate a law enforcement system in which citizens may rely upon and trust.
Because the Court finds that Parson’s statements should be suppressed due to close connection to a Fourth Amendment violation, the Court finds it unnecessary to analyze whether the statements were obtained in violation of Parson’s Miranda rights.
IV. Conclusion
This Court echoes Cardozo’s reticence in allowing potentially criminal behavior to go unadjudicated simply “because the constable has blundered.”
People v. Defore,
Parson possesses a Fourth Amendment right to be free of an unreasonable search and seizure. Our culture is based upon the good faith of citizens, and citizens should be able to expect the same from the government in its law enforcement activities. Mowing government agents to ignore laws while purporting to enforce them would steadily lead to the dissolution of the rule of law. The facts of this fall well within the Supreme Court’s theory of exclusion as recently reiterated in
Herring. See Herring,
at-,
AND NOW, this 25th Day of February, 2009, in consideration of Defendant’s Motion to Suppress (Doc. No. 42) and after a related hearing, IT IS HEREBY ORDERED that the Motion is granted, and such evidence as referenced therein shall be excluded at the time of trial.
Notes
. This exhibit, like others discussed in this opinion, was introduced at the Hearing. Where Hearing exhibits are also attached to motions on this Case’s Docket, they will be referenced to by their location on the Docket so as to facilitate ease of reference. See Hr’g Tr., p. 6
. The Collateral Request stated: "The instant investigation is a joint project between C3, SAC/DC, SAC/Baltimore, and DOJ/CEOS. To date, several thousand subscribers have been identified. This collateral request documents 127 subscriber leads. A package will be forwarded to the affected field offices. The package will contain a spreadsheet identifying the 127 subscribers, copies of the teaser and payment sites the identified subscribers visited, a database containing all relevant subscriber information, a go-by search warrant drafted in conjunction with DOC/CEOS, and a Power Point presentation detailing the investigation. Each office will be able to query the database provided and generate specific reports on each identified subscriber, including site access pages.” Collateral Request, Doc. No. 42, Ex. 1, at 11.
. As is perhaps inevitable given the substantial time gap between the date of the visit and the date of the Hearing, Agent Stitzel presented uncertain recollections of the precise progression of conversation on the doorstep. For instance, at the Hearing, Agent Stitzel explained that he did not mention a credit card on the doorstep. Hr'g Tr., 22. However, in grand jury testimony, he stated: “we asked if we could come in and speak to him with reference to his credit card that was used. Parson pulled out the credit card and showed us the credit card and verified the number, which was same as that had accessed child pornography sites.” Hr’g Tr., p. 83. Furthermore, when asked by a prosecutor in June, 2007 to prepare a supplemental report, Agent Stitzel refused to do so because he could not recall the words spoken at the doorstep sufficient to create a report. Hr'g Tr., pp. 18, 73.
. Given the equivocal testimony from the three law enforcement officers regarding statements made on the doorway, the Court • cannot find that law enforcement notified Parson at the outset that they were conducting an investigation of an international child pornography website.
.
See, e.g., United States v. Chaidez,
. The government did not present any legitimate evidence that identity theft had occurred, or was a concern; it was simply not a plausible scenario.
.
See United States v. Bosse,
. Notably, this matter differs substantially from instances where law enforcement acts in an undercover capacity. Analysis of undercover operations requires a different balancing of privacy expectations, and society’s interests.
See Hoffa v. United States,
. In this matter, the agents simply announced they were taking the computer and that Mr. Parson needed to sign the form. Mr. Parson could not read the form due to his cataracts. Hr'g Tr., p. 159. The government claims that Parson was told he did not have to consent; however, this option, while important to the issue of voluntariness, is not dispositive.
. The form is disturbingly bare, failing to even state such essentials as the purpose of the search. Furthermore, the form could be classified as misleading, due to its indication that the agents are officers of the Department of the Treasury. Doc. No. 42, ex. 8.