United States v. Philip Emanuel ( 2011 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14764 ELEVENTH CIRCUIT
Non-Argument Calendar SEPTEMBER 21, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 1:09-cr-00393-CAP-LTW-1
UNITED STATES OF AMERICA,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellee,
versus
PHILIP EMANUEL,
llllllllllllllllllllllllllllllllllllllll Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 21, 2011)
Before TJOFLAT, CARNES and ANDERSON, Circuit Judges.
PER CURIAM:
Philip Emanuel appeals his conviction after he conditionally pleaded guilty
to one count of receiving child pornography, in violation of 18 U.S.C. §
2252(a)(2) and (b). Specifically, Emanuel challenges the district court’s denial of
his motions to suppress all evidence obtained from him–primarily depictions from
his computer, written statements, and oral admissions–during police officers’
interview with Emanuel at his home. On appeal, Emanuel first argues that his
consent was not voluntary, and in any event, the computer was retained by the
police for a unreasonable period of time, and this retention exceeded the scope of
the consent. Emanuel also argues that the delays of the police violated his
constitutional possessory rights in the computer. He finally argues that his
statements to police were inadmissible because he was in custody and did not
receive the Miranda1 warnings, and also because the statements were not
voluntary.
At the interview, Emanuel told the police that the computer contained
images of minors similar to a pornographic picture that his ex-wife had found in
her home. According to the officers, whose testimony the district court found
credible, the tone of the interview was “cordial and conversational” and “very laid
back.” Emanuel allowed the police to take his computer, and he wrote a consent
statement in which he authorized the release of the computer for analysis, asked
for help with his problems, and asked that the computer be returned “sooner than
1
Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
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later.” Emanuel did not revoke this consent or later speak to the officers about
retrieving his computer. As a result of administrative and departmental delays, the
officer obtained a search warrant for the computer 34 days after it was taken, and
the analysis of the computer was completed approximately ten months after the
warrant was obtained.
We review a district court’s denial of a defendant’s motion to suppress
under a mixed standard of review, reviewing the district court’s findings of fact for
clear error and the district court’s application of law to those facts de novo.
United States v. Ramirez, 476 F.3d 1231, 1235 (11th Cir. 2007). The court’s
factual findings are construed in the light most favorable to the prevailing party.
Id. at 1235-36.
1. Credibility
Where there is conflicting testimony, we defer to a magistrate judge’s
credibility determinations “unless [the judge’s] understanding of the facts appears
to be unbelievable.” United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir.
2002) (quotation omitted). Additionally, the district court, as factfinder, is entitled
to substantial deference in reaching credibility determinations with respect to
witness testimony. United States v. McPhee, 336 F.3d 1269, 1275 (11th Cir.
2003).
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As to the issue of credibility in the instant case, the testimony of the
officers, Allen and Molnar, conflicted with Emanuel’s testimony with respect to
many aspects of the interview, specifically, the tone of the interview, the behavior
of the officers, and statements attributed to the officers. Given the substantial
level of deference to the factfinder, we defer to the magistrate’s credibility
determination, because the magistrate’s understanding of the facts of the interview
does not appear to be unbelievable. See Ramirez-Chilel, 289 F.3d at 749; McPhee,
336 F.3d at 1275. Emanuel has failed to show that the magistrate’s understanding
of the facts is not plausible or permissible, and therefore the officers’ testimony as
to the facts of the interview should provide the basis for the determination of
voluntariness. See id.
2. Free and Voluntary Consent; Scope of Consent
Emanuel argues that he did not voluntarily give the officers consent to seize
and search his computer or to possess the computer for 11 months, but instead
contends that his consent and his written statement were “the result of coercion
and threats” by the officers. He also asserts that he specifically limited the time
for the police to hold the computer by stating that he wanted it returned “sooner
than later,” and he contends that he made attempts to retrieve his computer from
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the police.
The Fourth Amendment, which is applicable to the states through the
Fourteenth Amendment, protects individuals from unreasonable searches and
seizures by law enforcement officers. United States v. Davis, 313 F.3d 1300, 1302
(11th Cir. 2002). Under these amendments, “a search conducted without a warrant
issued upon probable cause is per se unreasonable subject only to a few
specifically established and well-delineated exceptions.” United States v. Garcia,
890 F.2d 355, 360 (11th Cir. 1989) (quotations and ellipsis omitted). “One of the
well-established exceptions to the probable cause and warrant requirements is a
search which is conducted pursuant to voluntary consent.” Id. “A consensual
search is constitutional if it is voluntary; if it is the product of an essentially free
and unconstrained choice.” United States v. Acosta, 363 F.3d 1141, 1151 (11th
Cir. 2004) (quotations omitted). “Voluntariness is a question of fact based on the
totality of the circumstances,” and the government bears the burden of proving the
existence and voluntariness of the consent. Id.Relevant factors in the determination of voluntariness include the presence
of coercive police procedures, the extent of the person’s cooperation with the
officers, the person’s awareness of his right to refuse consent, the person’s
education and intelligence, and the person’s belief that no incriminating evidence
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will be found. United States v. Purcell, 236 F.3d 1274, 1281 (11th Cir. 2001).
“While knowledge of the right to refuse consent is one factor to be taken into
account, the government need not establish such knowledge as the sine qua non of
an effective consent.” Id. at 1281-82 (quotation omitted). In most cases, we will
accord the district court “a great deal of deference regarding a finding of
voluntariness, and we will disturb the ruling only if we are left with the definite
and firm conviction that the trial judge erred.” Garcia, 890 F.2d at 359. Because
the trial court usually bases its findings on credibility choices resulting from
conflicting testimony, relying on the demeanor of witnesses, we “will not overturn
the trial judge’s finding that [the] consent was voluntary, unless it is clearly
erroneous.” Id.“A consensual search is confined to the terms of its authorization. The
scope of the actual consent restricts the permissible boundaries of a search in the
same manner as the specifications in a warrant.” United States v. Strickland, 902
F.2d 937, 941 (11th Cir. 1990) (citations omitted). Further, “[w]hen an individual
gives a general statement of consent without express limitations, the scope of a
permissible search is not limitless. Rather it is constrained by the bounds of
reasonableness: what a police officer could reasonably interpret the consent to
encompass.” Id. As this Court has held,
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whether there were any limitations placed on the consent given and
whether the search conformed to those limitations is to be determined
by the totality of the circumstances. The trial court’s factual
determinations as to these two issues are also due deference on appeal
and will not be overturned unless clearly erroneous.
United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989) (citation omitted).
The record supports the magistrate’s conclusion that Emanuel voluntarily
consented to the seizure and search of his computer. Accepting the magistrate’s
findings that the officers, and not Emanuel, testified credibly, the interview
occurred in Emanuel's home, Emanuel was not prevented from leaving, and
Emanuel did not ask to leave or ask the officers to leave. Emanuel invited the
officers inside and cooperatively responded to their questions and requests.
Emanuel was not threatened, coerced, restrained, handcuffed, patted down,
required to answer questions, physically intimidated, or promised leniency.
Although the officers were armed, they never removed their weapons from the
holsters. The overall tone of the interview was “cordial,” “conversational,” and
“very laid back.” Even though Emanuel exhibited signs of anxiety, he complied
with the officers’ request for consent to release the computer by composing his
own consent statement. Emanuel acknowledged that he had a problem, verbally
asked for help, and reiterated in his consent statement that he was asking for help
by releasing the computer. Even though the officers did not appear to inform
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Emanuel of his right to refuse the search, his level of education, intelligence, and
work experience diminish the importance of this factor. Emanuel knew there was
child pornography on his computer, yet he admitted this to the officers, and
nevertheless indicated that he wanted to release the computer to obtain help with
his problems. Considering the totality of the circumstances, the relevant factors,
and the magistrate’s credibility determination, the district court did not clearly err
in finding that Emanuel freely and voluntarily consented to the seizure and search
of the computer. See Acosta, 363 F.3d at 1151; Purcell, 236 F.3d at 1281.
In addition, the record supports the finding that the retention of the
computer by the police and the overall timing for the completion of the
examination was within the scope of Emanuel’s voluntary consent. Although in
his written consent, Emanuel requested that the computer be returned “sooner than
later,” he did not place any specific time limit for the completion of the forensic
examination. Also, the evidence showed that neither Emanuel nor his attorney
revoked, limited, or modified the consent. Emanuel’s testimony that he did not
contact Allen because he did not have Allen’s card, and that he attempted to
contact Molnar by telephone, even though he actually saw Molnar in person, is
unconvincing to show an attempt to revoke, especially given Emanuel’s level of
education and intelligence. Also, Emanuel’s attorney did not revoke or limit the
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consent, even though he spoke to Molnar after the interview. Although the scope
of Emanuel’s consent was not limitless, given the absence of a specific time limit
or a revocation, the police officers could reasonably interpret the original consent
to encompass the administrative delays encountered both before and after the
warrant was obtained. See Strickland, 902 F.2d at 941. It does appear that the
administrative confusion between Allen and Molnar, and the technical weakness
of the APD forensics department, did not reflect favorably on the APD and did
delay the investigation both before and after the warrant. However, these delays
were unexpected and unintended, and there is no showing that the officers
intentionally delayed the investigation or acted in bad faith, which might negate
the reasonableness of the delays. Further, Sheikh testified that the average
turnaround time for a forensic computer examination was three to six months.
Despite the problems, the officers could still reasonably assume that the original
voluntary consent, which had not been limited or revoked, encompassed such
unexpected and unintended administrative and departmental delays.
3. Violation of Possessory Interest
Emanuel argues that the delays in obtaining the warrant and in completing
the examination of the computer were unreasonable and infringed on his
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possessory interests under the Fourth Amendment.
In United States v. Mitchell, we explained that an otherwise lawful seizure
can violate the Fourth Amendment and infringe upon an owner’s possessory
interests if the police act with unreasonable delay in securing a search warrant.
565 F.3d 1347, 1350 (11th Cir. 2009). “The reasonableness of the delay is
determined in light of all the facts and circumstances, and on a case-by-case
basis.” Id. at 1351 (quotations omitted). The reviewing court must carefully
balance the government’s interests against the defendant’s possessory interest in
the item. Id. In Mitchell, police officers seized the hard drive from the
defendant’s computer, without obtaining his consent. Id. at 1349.
Because Emanuel gave his voluntary consent to the seizure and search of his
computer, Mitchell is inapposite, and the delay before obtaining the warrant did
not violate Emanuel’s constitutional possessory rights. Similarly, the detention of
the computer after the warrant was obtained was based on Emanuel’s consent, and
did not violate Emanuel’s possessory rights.
4. Custody Determination and Voluntariness of Oral Statements
Emanuel argues that during the interview, he was under sufficient restraint
to think that he was in custody and his oral statements should be suppressed
because he was not given the Miranda warnings. He also contends that, even if he
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was not in custody, the coercive actions of the officers and the totality of the
interview resulted in statements that were not voluntary and should be suppressed.
The Fifth Amendment provides that “[n]o person . . . shall be compelled in
any criminal case to be a witness against himself.” U.S. Const. amend. V. The
Supreme Court in Miranda “established that custodial interrogation cannot occur
before a suspect is warned of [his] rights against self-incrimination.” United
States v. Newsome, 475 F.3d 1221, 1224 (11th Cir. 2007). Statements made in
violation of Miranda are not admissible at trial. Miranda, 384 U.S. at 444-45, 86
S.Ct. at 1612. We have described the test for determining custody as follows:
A defendant is in custody for the purposes of Miranda when there has
been a formal arrest or restraint on freedom of movement of the
degree associated with a formal arrest. Whether [a defendant] was in
custody prior to his formal arrest depends on whether under the
totality of the circumstances, a reasonable man in his position would
feel a restraint on his freedom of movement to such extent that he
would not feel free to leave. The test is objective: the actual,
subjective beliefs of the defendant and the interviewing officer on
whether the defendant was free to leave are irrelevant. Under the
objective standard, the reasonable person from whose perspective
‘custody’ is defined is a reasonable innocent person.
United States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006) (quotations, citations,
alteration, and emphasis omitted). We are to consider several factors in determining
custody, “including whether the officers brandished weapons, touched the suspect,
or used language or a tone that indicated that compliance with the officers could be
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compelled.” United States v. Street, 472 F.3d 1298, 1309 (11th Cir. 2006) (quotation
omitted).
If a court determines that the requirements of Miranda have been met, it must
then determine that any confessions or incriminatory statements made by a defendant
were voluntary in order to admit such statements at trial. United States v. Bernal-
Benitez, 594 F.3d 1303, 1317-18 (11th Cir.), cert. denied, 130 S. Ct. 2123 (2010).
There are “two constitutional bases for the requirement that a confession be voluntary
to be admitted into evidence: the Fifth Amendment right against self-incrimination
and the Due Process Clause of the Fourteenth Amendment.” Dickerson v. United
States, 530 U.S. 428, 433, 120 S. Ct. 2326, 2330 (2000). With respect to the
admissibility of incriminatory statements and confessions made by a defendant to
police, we consider
the totality of the circumstances, including the details of the
interrogation and the defendant’s characteristics, when deciding whether
a confession was voluntary. [This Court] focus[es] on whether the
police overreached, considering factors such as the accused’s lack of
education, or his low intelligence, the lack of any advice to the accused
of his constitutional rights, the length of detention, the repeated and
prolonged nature of the questioning, and the use of physical punishment
such as the deprivation of food or sleep.
Bernal-Benitez, 594 F.3d at 1319 (citation, quotations, and alteration omitted).
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After a review of the record and considering the totality of the
circumstances, we conclude that the interview was not a custodial interrogation,
Emanuel was not entitled to the Miranda warnings, and any statements made by
Emanuel were voluntary.
In conclusion, the district court did not err in denying Emanuel’s motions to
suppress, and we affirm.
AFFIRMED.2
2
Emanuel’s request for oral argument is denied.
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