HomeMy WebLinkAboutCP-21-CR-0000831-2007
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGES: (2) SEXUAL ABUSE OF CHILDREN
: (29 COUNTS)
: (3) CRIMINAL USE OF
: COMMUNICATION FACILITY
JEFFREY WAYNE :
BAKER :
OTN: K597411-3 : CP-21-CR-0831-2007
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., January 22, 2010.
In this criminal case, Defendant was found guilty following a jury trial of
29 counts of sexual abuse of children, each a felony of the second degree, and one
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count of criminal use of a communication facility, a felony of the third degree. An
aggregate sentence in accordance with the mandatory minimum sentences required
2
by law was imposed by the trial judge, the Honorable M.L. Ebert, Jr.
From the judgment of sentence, Defendant has filed an appeal to the
3
Pennsylvania Superior Court. Among the issues raised in Defendant’s statement
of errors complained of on appeal is the following:
1. The lower court erred when it denied Defendant’s Suppression
Motion, in that:
a.) The affidavit of probable cause [in a certain search
warrant] contained an intentional material misstatement of
fact; and
b.) Defendant was in custody, or the equivalent
thereof, and in severe bodily pain, when he made his
4
statement, with no Miranda warnings having been given.
This opinion in support of the denial of Defendant’s motion to suppress is
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written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a).
1
N.T. 219-21, Trial, July 14-15, 2008.
2
Order of Court, May 12, 2009.
3
Defendant’s Notice of Appeal, filed December 14, 2009.
4
Defendant’s Concise Statement of the Errors Complained of on Appeal, filed January 4, 2010.
STATEMENT OF FACTS
Several weeks after the execution of a search warrant at his residence on
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February 6 2007, Defendant was charged with numerous counts of sexual abuse
7
of children in the form of possession of child pornography and criminal use of a
89
communication facility, inter alia. Defendant filed an omnibus pretrial motion
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for relief in the form of a Motion To Suppress on October 22, 2007.
Defendant’s motion, in relation to the above-quoted grounds for appeal,
stated as follows:
9. The affidavit [of probable cause supporting the application for a
search warrant] states that on January 19, 2007, analyst Brian Hunt of the
Delaware County’s District Attorney’s office, after review of connection
accessed
logs provided by AOL, found that “BAKER [i.e., Defendant]
(emphasis supplied) his AOL account……on December 26, 2006, between
01:25:44 EST and 02:37:43 EST.”. The account was accessed via Internet
Protocol (IP) Address 68.82154.254 which is owned and maintained by
Comcast Cable Communications.
* * * *
14. A crucial piece of information contained in the affidavit [of
probable cause supporting the application for a search warrant] is at best
an overly broad assumption, misleading in nature, and speculative; it may
in fact be inaccurate, and false. Given the extensive training and
extraordinary experience of [the affiant], same should have been known to
him, and the inclusion of such false information was for the sole purpose
of influencing the MDJ by attempting to connect defendant to an
electronic fingerprint. See paragraph 9, supra. In considering the
sufficiency of the information in the affidavit, this statement should be
redacted.
15. No Miranda warnings were given to defendant at the time of the
search/questioning, and defendant was in the functional equivalent of
custody/arrest at that time. Custodial interrogation occurs when a suspect
is placed in a situation in which he reasonably believes that his freedom of
action of movement is restricted by such interrogation. Long has it been
5
The writer of this opinion presided over Defendant’s suppression hearing and entered the order
complained of in this part of Defendant’s statement of errors complained of on appeal.
6
N.T. 52-53, Suppression Hearing, January 2, 2008 (hereinafter N.T. __, Suppression Hearing).
7
Act of October 26, 1977, P.L. 212, §1, as amended, 18 Pa. C.S. §6312(d) (2009 Supp.).
8
Act of December 21, 1998, P.L. 1240, §3, as amended, 18 Pa. C.S. §7512(a).
9
Criminal Complaint, filed March 9, 2007.
10
Defendant’s Motion To Suppress, filed October 22, 2007.
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held that the test for determining custodial interrogation does not depend
on the subjective intent of the police officer. Rather, the test focuses on
whether the individual being interrogated reasonably believes his freedom
11
of movement is being restricted.
A hearing was held on Defendant's motion on January 2, 2008. At the
hearing, the Commonwealth presented the testimony of (a) the affiant in the case,
Earl Bock, a detective sergeant with the Criminal Investigations Division of the
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Cumberland County District Attorney’s Office, (b) Brian Hunt, an investigative
13
analyst for the Delaware County Criminal Investigation Division, and (c)
Lieutenant David C. Peifer, an employee of the Delaware County District
Attorney’s Office in charge of the Child Abuse Unit and Internet Crimes Task
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Force. The Commonwealth also secured the admission of three exhibits, in the
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form of the aforesaid search warrant and two Delaware County court orders with
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the applications that precipitated them. Defendant, Jeffrey Wayne Baker,
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testified on his own behalf.
The application for the search warrant requested authorization to search a
single-story structure at 115 South Enola Drive, Enola, Pennsylvania, having a
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sign above the front door reading “115 Baker Murray.” Items to be seized from
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the residence included computers and computer hardware and software. The
affidavit of probable cause read as follows:
I, Detective Sergeant Earl Bock of the Cumberland County District
Attorney’s Office, Criminal Investigations Division, Badge Number #5,
11
Defendant’s Motion To Suppress, ¶¶9, 14-15, filed October 22, 2007.
12
N.T. 50-75, Suppression Hearing.
13
N.T. 6-39, Suppression Hearing.
14
N.T. 39-50, Suppression Hearing.
15
Commonwealth’s Ex. 1, Suppression Hearing, January 2, 2008 (hereinafter Commonwealth’s
Ex. __, Suppression Hearing).
16
Commonwealth’s Ex’s. 2-3, Suppression Hearing.
17
N.T. 77-99, Suppression Hearing.
18
Commonwealth’s Ex. 1, Suppression Hearing.
19
Commonwealth’s Ex. 1, Suppression Hearing.
3
have been a sworn member of the Criminal Investigations Division for
over 3 year currently assigned to work criminal investigations case, to
include Computer Crimes Investigations. I am presently assigned from the
District Attorney’s Office to the Pennsylvania Computer Crimes Task
Force (Area 1), and have been so assigned for approximately one year. I
am also assigned to the Pennsylvania Electronic Crimes Task Force,
managed through the united States Secret Service Office in Philadelphia,
PA. I am also a member of the Internet Crimes Against Children Task
Force for Pennsylvania, managed through the Delaware County District
Attorney’s office. I was formerly a detective with the Mechanicsburg
Police Department and have been a police officer for over 23 years. In my
current assignment, I conduct investigations/undercover investigations into
crimes where computers are used to facilitate that particular crime.
Further, I have been involved with investigations requiring the interdiction
of individuals and groups engaged in criminal activity and have utilized
confidential informants to ascertain the techniques and methods of
operation employed in the furtherance of these criminal activities. I have
conducted and participated in criminal investigations involving court-
authorized wiretaps, search warrants and arrest warrants. Additionally I
have testified in various prosecutions within the State of Pennsylvania
resulting in convictions of defendants for violations of the Pennsylvania
Consolidated Statutes (Title 18.) I am familiar with the techniques and
methods of operation utilized by individuals involved in criminal activity
to conceal their activities from detection by law enforcement authorities. I
have participated with investigations into the activities of individuals and
groups involved in criminal enterprises including narcotics trafficking and
distribution, conspiracy, theft, and money laundering, and other crimes in
which computers were used. I have received training through the
Pennsylvania State Police Computer Crimes Task Force in conducting and
analyzing computer based crimes using specialized equipment and
software. I have received training through the United States Department
of Justice OJJDP for Child Abuse & Exploitation Investigative
Techniques. I have also completed training offer[ed] by the PA Municipal
Police Officers Education & Training Commission on “CyberCrimes” and
have been involved in several investigations where computers and the
Internet were used to commit crimes. I have successfully completed the
basic investigators course for Internet Crimes Against Children, offered
through the National Center for Missing & Exploited Children & Fox
Valley Technical College. I have attended numerous workshops offered
during the 2005 and 2006 Internet Crimes Against Children National
Conference in Dallas, Texas. I have also received training in conducting
on-line undercover chats and conducting investigations using Peer
Precision software for Internet Crimes. In my years of law enforcement
experience I have also investigated and prosecuted numerous cases
involving child pornography and Pedophilia. I have received a great deal
of training in the areas of child abuse, pornography and child sexual
assault.
DEFINITIONS
The World Wide Web, generally referred to as simply, The Web, is
comprised of a subset of the computers on the Internet. You can visualize
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the World Wide Web as a giant magazine stand with a vast web of strings
connecting various words pictures and ideas. Like a magazine rack, you
may quickly select a chosen magazine, or you may browse, following the
strings from magazine to magazine. More formally, the Web is vast
multimedia “document” distributed among a large number of the
computers on the Internet. There is no central hierarchy that organized the
web. Instead, the information is distributed among many “web Sites”
created and used by the many people on the Internet. Each Web Site is
much like a magazine in that it has a Cover Page, called the Home Page,
and other pages of related information that can be connected in whatever
way the author wishes. This “document” is in a format called “hypertext”
which allows information in the web to be linked by words or pictures
viewed on the computer. The Web is broken up into a large set of pages,
called “Web Pages”, of information connected by hypertext “links” which
let you clock on a highlighted work or picture to call up a page of related
information. This is what differentiates hypertext from “normal” text. In
“normal” text, each idea, sentence or paragraph is connected in a sequence
of “train of thought”, from beginning to end. In hypertext however, tracks
of ideas branch out through “Links”, so that each idea may be connected to
many different “trains of thought”. This ability to follow an idea to many
different destinations allows you to read hypertext documents in a way
more naturally resembling human thought.
IP Number (Internet Protocol Number) – Sometimes called a dotted quad.
A unique number consisting of 4 parts separated by dots, e.g.
165.113.245.2. Every machine that is on the Internet has a unique IP
number – if a machine does not have an IP number, it is not really on the
Internet. Most machines also have one or more Domain Names that are
easier for people to remember.
Domain Name - The unique name that identifies an Internet site. Domain
Names always have 2 or more parties, separated by dots. The part on the
left is the most specific, and the part on the right is the most general. A
given machine may have more than one Domain Name but a given
Domain Name points to only one machine. For example, the domain
names:
example.net
mail.example.net
workshop. example.net
can all refer to the same machine, but each domain name can refer to no
more than one machine.
Internet Relay Chat (IRC); IRC stands for Internet relay chat. IRC is a
multi-user chat system, (program) where people meet on Channels (rooms,
virtual places, usually based on certain topics of conversation) to talk in
groups or talk privately via typing text messages to one another in “real
time”.
FSERVE File Server: The IRC file server is a program, which allows
other users to access files from your computer. In other words, if a person
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is running an FSERVE, other users could access and download designated
files from that person’s computer.
WHOIS: This is a command used within IRC. This command is used to
find information on specific user. The information that can be obtained is:
- The Domain Name or IP address of a specific user
- IRC channels this user is currently in
- The IRC server the user is connected to
Based on my knowledge, training, and experience, I know that computer
files or remmants of such files can be recovered months or even years after
they have been downloaded or saved onto a hard drive, deleted or viewed
via the Internet. Electronic files downloaded to a hard drive can be stored
for years at little or no cost. Even when such files have been deleted, they
can be recovered months or years later using readily available forensics
tools. When a person “deletes” a file on a home computer, the data
contained in the file does not actually disappear; rather, that data remains
on the hard drive until it is overwritten by new data. Therefore, deleted
files, or remmants of deleted files, may reside in computed hard disc drive
free space or slack space – that is, in space on the hard drive that is not
allocated to an active file or that is unused after a file has been allocated to
a set block of storage space – for long periods of time before they are
overwritten. In addition, a computer’s operating system may also keep a
record of deleted data in a “swap” or “recovery” file. Thus, the ability to
retrieve residue of an electronic file from a hard drive depends less on
when the file was downloaded or viewed than on a particular user’s
operating system, storage capacity, and computer habits.
I also know that computed hardware, software, and electronic files may be
important to a criminal investigation in two distinct ways: (1) the objects
themselves may be contraband, evidence, instrumentalities, or fruits of
crime, and/or (2) the objects may be used as storage devices that contain
contraband, evidence, instrumentalities, or fruits of crime in the form of
electronic data. In this case, the warrant application requests permission to
search and seize images of child pornography, as defined in Title 18
§6312, including those that may be stored on a computer, or any associated
storage device capable of being read by a computer system. These images
constitute both evidence of crime and are contraband. This affidavit also
requests permission to seize the computer hardware that may contain the
images of child pornography and conduct a search off-site. I believe that,
in this case, the computer hardware is a container for evidence, and also
itself as instrumentality of the crime under investigation.
Usually, all of the machines on a given Network will have the same name
as the right-hand portion of their Domain Names (example.net in the
examples above). It is also possible for a Domain Name to exist but not be
connected to an actual machine. This is often done so that a group or
business can have an Internet e-mail address without having to establish a
real Internet site. In these cases, some real Internet machine must handle
the mail on behalf of the listed Domain Name.
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The American Registry for Internet Numbers (ARIN), lists, issues, and
maintains I.P. address and maintains information of which organization
particular addresses are issued to. On their web page there is a Whois
program, which searches ARIN’s database to locate information on
computer networks.
The facts tending to establish the grounds for this search warrant and the
probable cause are as follows:
On January 4, 2007 analyst Brian Hunt of the Delaware County District
Attorney’s Office, Internet Crimes Against Children Task Force accessed
the National Center for Missing & Exploited Children’s Cybertip Line
after being notified by them concerning a subject that appears to be from
Pennsylvania uploading Child Pornography over the Internet.
The America Online (AOL) Legal Department reported that a person
utilizing the e-mail address ‘jumpurboneson3@aol.com” sent an image of
a child, who appears to be under the age of 18 years, exposing their
genitals while in a sexual act and/or pose. This image was sent, via e-mail
and discovered by AOL on December 26, 2006 at 0222 hours EST. This
case was reported as Cybertip #442786. There was an additional Cybertip,
#442781, reported to e-mail the same image of child pornography on
December 23, 2006 at 0644 hours EST.
After receiving these Cytertips, Lt. David Peifer of the Delaware County
DA’s Office, Internet Crimes Against Children Task Force viewed the
image and assessed that it appears to be of a child under the age of 18
years.
On January 8, 2007 Lt. Peifer requested and received a court order, signed
by Honorable Frank T. Hazel, directing America Online Legal Department
to disclose the identify of the individual using/assigned the e-mail address
“jumpurboneson3@aol.com.
On January 18, 2007 America Online responded to the court order and
produced subscriber as requested. According to documents supplied by
AOL the above noted e-mail address is assigned to Jeff BAKER, 115 S.
Enola Dr. Enola, PA 17025, phone 717-421-9585. The information further
indicates that BAKER has been a member since 10/08/06 and his account
was terminated 12/27/06. AOL identified two (2) other screen names
utilized by BAKER as OhThisChicRules and Whtbimalepa.
Analyst Hunt accessed JNET PennDOT records and conducted a driver’s
license search on the name Jeffrey BAKER in Enola, PA. This search
yielded one match, that being Jeffrey W. BAKER, 115 S. Enola Drive,
Enola, PA 17025, DOB: 12/05/1975, OLN: 23763419 – Expires
12/06/2007. Hunt then ran BAKER through CLEAN/NCIC database and
found a previous arrest and conviction for BAKER in Cumberland County
from 2001. Hunt found that in 2001 BAKER was charged with two (2)
counts of Sexual Abuse of Children – Possession of Child Pornography.
BAKER was on probation in Cumberland County from 09/01/01 to
09/01/06.
On January 19, 2007 Analyst Hunt reviewed the connection logs provided
by America Online in their response to the previous mentioned court order.
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Hunt found that BAKER accessed his AOL account via Internet Protocol
(IP) Address 68.82.154.254 on December 26, 2006 between 01:25:44 EST
and 02:37:43 EST. Hunt then conducted a WHOIS search using
http://centralops.net for the IP Address 68.82.154.254 and found it to be
owned and maintained by Comcast Cable Communications.
On January 19, 2007 Lt. David Peifer submitted a preservation order to
Comcast Cable Communications regarding the IP Address 68.82.154.254
for the date of December 26, 2006 between 01:25:44 EST and 02:37:43
EST.
On January 31, 2007 Comcast Cable Communications responded to the
court order and provided subscriber information for the above noted IP
Address as: Ruth Murray, 115 S. Enola Drive Enola, PA 17025, phone
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717-732-9141, account #09547-192433-01.
At the hearing, it appeared that the material misrepresentation asserted by
Defendant consisted of the averment in the probable cause affidavit that “Hunt
found that BAKER accessed his AOL account via Internet Protocol (IP) Address
68.82.154.254 on December 26, 2006 between 01:255:44 EST and 02:37:43
21
EST.” In particular, Defendant’s counsel argued that it could not definitely be
said that Defendant, as opposed to someone else, had been the person who
22
accessed Defendant’s AOL account at that time. This position may also have
been supported by a view that the averment that “[e]very machine that is on the
23
Internet has a unique IP number” was misleading.
The evidence pertaining to this point tended to show that the identified
source of the affiant’s information, the aforesaid Brian Hunt, at the beginning of
January, 2007, received reports and supporting documentation from a provider of
electronic communications services known as America Online (AOL) that two e-
mails containing pictures constituting child pornography had been sent over the
internet by a person with an e-mail address of jumpurboneson3@aol.com on
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December 23, 2006, and December 26, 2006, at certain specified times. Pursuant
20
Commonwealth’s Ex. 1, Suppression Hearing.
21
N.T. 102, Suppression Hearing; Commonwealth’s Ex. 1, Suppression Hearing.
22
N.T. 102, Suppression Hearing.
23
See Commonwealth’s Ex. 1, Suppression Hearing; N.T. 22-25, Suppression Hearing.
24
N.T. 14-16, 20-23, 45, Suppression Hearing.
8
to a court order, AOL on January 18, 2007, disclosed that the identity of the
25
person assigned this e-mail address was one Jeffrey W. Baker, of a certain zip
26
code, and that the Internet Protocol (IP) address—i.e., the “address” in the form
of a unique number utilized by the offending computer at the time the e-mails
27
were sent—was 68.82.154.254.
This numerical “address” was one in the system of a provider of electronic
communications services known as Comcast Cable Communications (Comcast). It
contained encoded information which enabled Comcast, pursuant to a second
court order, to disclose on January 31, 2007, that this IP address was assigned to
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one Ruth Murray at 115 South Enola Drive, Enola, Pennsylvania.
These and other facts, such as the residential address of Defendant at 115
South Enola Drive, Enola, Pennsylvania, and his prior record of convictions for
possession of child pornography, were reported by Mr. Hunt to the affiant on
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January 31, 2007. In his report, Mr. Hunt apparently referenced the person
sending the offending e-mails as the “suspect,” intending the term to mean the
30
“perpetrator” rather than Defendant in particular. However, in his affidavit of
probable cause in support of the search warrant, Detective Bock construed this
reference to be specific to Defendant, and included the sentence complained of by
Defendant: “Hunt found that BAKER accessed his AOL account via Internet
Protocol (IP) Address 68.82.154.254 on December 26, 2006 between 01:25:44
31
EST and 02:37:43 EST.”
25
N.T. 15-18, Suppression Hearing.
26
N.T. 14, Suppression Hearing.
27
N.T. 19-21, Suppression Hearing.
28
N.T. 21-22, Suppression Hearing.
29
N.T. 22, Suppression Hearing.
30
N.T. 33-38, Suppression Hearing.
31
Commonwealth’s Ex. 1, Suppression Hearing.
9
In addition, it appeared from the testimony at the hearing that, although an
IP address was unique to the physical location of a computer utilizing it, it was not
exclusive in the sense that another computer at the same location might not also
32
utilize it. In this regard, the statement in the affidavit of probable cause that
“[e]very machine that is on the Internet has a unique IP number” could be argued
to be susceptible to an incorrect construction.
During the execution of the search warrant on February 6, 2007, which
commenced about 2:00 p.m., Defendant was advised numerous times that he was
33
not under arrest, was told that he could leave without being asked any
34
questions, was told that he could stay so long as he did not interfere with the
35
execution of the search warrant, and was told that he would not under any
36
circumstances be arrested at that time. Notwithstanding this advice, Defendant
volunteered to respond to questions if the officers promised not to remove his
37
father’s computer from the residence, a condition to which they agreed. He then
38
spoke to police for 15-20 minutes in his dining room. Defendant was in fact not
39
arrested until several weeks later.
40
The court denied Defendant’s motion to suppress on March 24, 2008.
DISCUSSION
Misrepresentations in search warrant applications. “[T]he mere presence
of an error in [a] probable cause affidavit [supporting an application for a search
32
N.T. 24-28, Suppression Hearing.
33
N.T. 52, 59-60, 63, Suppression Hearing.
34
N.T. 60-63, Suppression Hearing.
35
N.T. 59-60, Suppression Hearing.
36
N.T. 63, Suppression Hearing.
37
N.T. 60-66. The court did not find credible Defendant’s testimony to the effect that the police
led him to believe that he was under arrest.
38
N.T. 69, 72-74, Suppression Hearing.
39
N.T. 75, Suppression Hearing.
40
Order of Court, dated March 24, 2008.
10
warrant] does not invalidate [the] search warrant.” Commonwealth v. Menginie,
312 Pa. Super. 293, 300, 458 A.2d 966, 969 (1983). However,
misstatements of fact will invalidate a search warrant and require
suppression of the fruits of the search . . . if the misstatements of fact are
deliberate and material. A material fact is one without which probable
cause to search would not exist.
Commonwealth v. Zimmerman, 282 Pa. Super. 286, 295-96, 422 A.2d 1119, 1124
(1980) (emphasis omitted).
In a determination of whether a misstatement is material, the test is not
whether the misstatement strengthens the application, but rather whether it is
essential to it. Commonwealth v. Yucknevage, 257 Pa. Super. 19, 24, 390 A.2d
225, 227 (1978). The issue of essentiality is resolved by deleting the misstatement
from the affidavit and then seeing whether the affidavit still states enough
information to give rise to probable cause. Id. at 24, 390 A.2d at 227.
In the present case, the court did not believe that the affiant deliberately
made a misstatement of fact in the affidavit of probable cause in support of the
search warrant application. More significantly, however, the deletion of a specific
reference to Defendant as the individual who utilized the computer on the
occasions in question and of any implication that an IP address was permanently
unique to a specific computer from the affidavit, left intact averments to the effect
that (a) in December, 2006, material constituting child pornography was sent from
a device with an IP address at the time of mailing specific to 115 South Enola
Drive, Enola, Pennsylvania, (b) the e-mail was sent through an internet account
maintained by Defendant, (c) Defendant resided at the said address, and (d)
Defendant had a criminal history of convictions for possession of child
pornography. The affidavit in its entirety, redacted to exclude a reference to
Defendant as the person who was utilizing the computer at the time in question
and any implication that computers are assigned a permanent, unique IP address,
was more than sufficient, in the court’s view, to support a belief, based upon
11
reasonable cause, that contraband in the form of child pornography would be
found in a computer search of the said residence.
Miranda warnings. A person is not to be subjected to custodial
interrogation by police in the absence of Miranda warnings. Commonwealth v.
Ford, 539 Pa. 85, 98, 650 A.2d 433, 439 (1994). In this context, custody means
under formal arrest or subject to the functional equivalent of formal arrest.
Commonwealth v. Smith, 575 Pa. 203, 224, 836 A.2d 5, 18 (2003). “[T]he ultimate
inquiry is simply whether there is a formal arrest or restraint on freedom of
movement of the degree associated with a formal arrest.” California v. Beheler,
463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520, 77 L. Ed. 2d 1275 (1983).
“The standard for determining whether an encounter with the police is
deemed ‘custodial’ or police have initiated a custodial interrogation is an objective
one based on a totality of the circumstances, with due consideration given to the
reasonable impression conveyed to the person interrogated.” Commonwealth v.
Schwing, 2008 PA Super 292, ¶6, 964 A.2d 8, 11.
The factors a court utilizes to determine, under the totality of the
circumstances, whether a detention has become so coercive as to constitute
the functional equivalent of arrest include: the basis for the detention; its
length; its location; whether the suspect was transported against his or her
will, how far, and why; whether restraints were used; whether the law
enforcement officer showed, threatened or used force; and the
investigative methods employed to confirm or dispel suspicions. The fact
that a police investigation has focused on a particular individual does not
automatically trigger “custody,” thus requiring Miranda warnings.
Id., ¶6, 964 A.2d 11-12.
In the present case, Defendant was not formally under arrest at the time he
spoke with police, nor, in the court’s view, was he subjected to conduct on the part
of the police that could be objectively construed as constituting a restraint upon his
freedom equivalent to a formal arrest. Defendant was told that he was not under
arrest, that he was not going to be arrested on the occasion in question, and that he
was free to leave; he was not handcuffed or transported away from his residence;
and his interrogation was bargained for by him and not prolonged.
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For the foregoing reasons, the court was unable to agree with Defendant’s
position that evidence against him should be suppressed on the ground that the
search of his premises was based upon an invalid search warrant arising out of
material misrepresentations in the supporting affidavit of probable cause or on the
ground that he was entitled to the administration of Miranda warnings prior to
being questioned by police.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
Charles P. Mackin, Esq.
Senior Assistant Public Defender
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