United States v. Dominick Pelletier , 700 F.3d 1109 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1274
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
D OMINICK P ELLETIER,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 10 cr 50076—Frederick J. Kapala, Judge.
A RGUED S EPTEMBER 21, 2012—D ECIDED N OVEMBER 21, 2012
Before P OSNER, K ANNE, and SYKES, Circuit Judges.
K ANNE , Circuit Judge. Federal investigative agents will
tell you that some cases are hard to solve. Some cases
require years of effort—chasing down false leads and
reigning in flighty witnesses. Others require painstaking
scientific analysis, or weeks of poring over financial
records for a hidden clue. And some cases are never
solved at all—the right witness never comes forward, the
right lead never pans out, or the right clue never turns up.
2 No. 12-1274
This is not one of those cases. The defendant, Dominick
Pelletier, admitted during a job interview with the FBI
that he had pornographic pictures of children on his
home computer. Instead of joining the FBI’s vaunted
ranks, Pelletier was indicted for one count of possession
of child pornography. After the district court denied two
of his motions to suppress, Pelletier entered a con-
ditional guilty plea and reserved the right to appeal the
denial of the suppression motions. Finding no error,
we affirm.
I. B ACKGROUND1
Dominick Pelletier applied for a job with the FBI. As part
of the application process, the FBI requires applicants
to undergo a personnel security interview and to take a
polygraph examination. Pelletier scheduled his exam-
ination for August 29, 2008, his birthday. Pelletier
arrived at the FBI office, presented his identification,
passed through a metal detector, and checked his cell
phone at the front desk. At about 9:45 a.m., Special Agent
Jay Cherry met Pelletier and escorted him to a ten-foot- by-
ten-foot polygraph suite. Agent Cherry was unarmed
and left the door to the room unlocked. At 9:49 a.m.,
Pelletier read and signed a “Consent to Interview with
Polygraph” form that provided, in part: “I understand
1
The following factual summary is based on the district
court’s findings of fact. We defer to those findings unless they
are clearly erroneous, see United States v. Stadfeld, 689 F.3d 705,
709 (7th Cir. 2012), and Pelletier has not argued that they are.
No. 12-1274 3
that I am not in custody, that my participation in the
polygraph examination is voluntary, and that I may
leave at any time.” Agent Cherry explained that the
polygraph would proceed in three parts: the “pre-test”
(when they would discuss the sorts of questions that
would appear during the test); the “in-test” (the actual
administration of the polygraph); and the “post-test”
interview.
During the pre-test, Agent Cherry gave Pelletier a list
of questions. Pelletier read them over and said that he
was concerned about the section on sexual crimes.
Pelletier explained that he had done “research” in In-
donesia on child pornography and sexual abuse and
was worried that it might lead him to fail the test.
Agent Cherry assured Pelletier that everything
would be fine so long as the research did not involve
actual possession or distribution of child pornography.
Pelletier assured Agent Cherry that it did not. Agent
Cherry then administered the polygraph examination.
Pelletier failed.
During the post-test interview, Agent Cherry asked
Pelletier how he thought he did, and Pelletier replied
that he had “some trouble with one of the questions”
because of a set of files on his home computer. Pelletier
explained that he had looked at images of young females
as part of his “research.” As the interview progressed,
Pelletier admitted that he had images of naked children
on his home computer. Agent Cherry asked Pelletier
to write a statement summarizing their discussion, and
Pelletier complied. The statement said that Pelletier
4 No. 12-1274
believed he had failed because (1) he had used pirated
software as a student; and (2) he had downloaded and
stored child pornography and erotica as part of his re-
search for a graduate school project. Pelletier and
Agent Cherry both signed the statement at the bottom,
and Pelletier remained friendly, cooperative, and inter-
ested in the job. Agent Cherry then told Pelletier that
he wanted to invite a second agent who knew more
about the subject matter to join the interview. Pelletier
agreed, and Agent Cherry contacted Agent Brent
Dempsey of the FBI’s Cyber Squad.
Agent Dempsey got the call sometime in the early
afternoon and walked over to the interview room. He
was wearing his badge and sidearm. Agent Cherry ex-
plained (apparently outside of Pelletier’s hearing)
that Pelletier had admitted to possessing child pornogra-
phy. Agent Dempsey decided to take a low-key, conversa-
tional approach when interviewing Pelletier, rather
than aggressively interrogating him, to make Pelletier
believe that their conversation was still part of the job
interview. Agent Dempsey did not read Pelletier his
Miranda rights, although he did begin the interview by
telling Pelletier that “you don’t have to answer any ques-
tions with us, but any questions you do answer you have
to tell the truth. You can’t lie.”
Pelletier told Agent Dempsey about his research project
and explained that it included searching for and down-
loading child pornography from the internet. Pelletier
also said that his computer crashed after he completed
his research, which Agent Dempsey took to mean that
No. 12-1274 5
there was no longer any child pornography on Pelletier’s
computer. Accordingly, Agent Dempsey asked Pelletier if
he could search his computer to make sure it did not
contain child pornography.
Pelletier refused, saying he was concerned that there
was “child erotica” on his computer, including photos
from the “LS Models” series. Agent Dempsey explained
that parts of the LS Models series are child pornography
and pressed Pelletier on his distinction between child
erotica and child pornography. Agent Dempsey read
Pelletier the definition of child pornography, and
Pelletier admitted that parts of the LS Models series
were pornographic. Agent Dempsey again asked
for permission to search Pelletier’s home computer so
Agent Dempsey could recover the contraband, and
again Pelletier refused, explaining that he was afraid that
he had “hardcore” child pornography on the computer.
Pelletier also thought that his girlfriend might be
planning a surprise birthday party for him later that
evening, and Pelletier did not want his friends to see
the FBI searching his house. At some point near the end
of the interview, Pelletier also admitted to “inadvertently”
creating child pornography by recording himself
having sex with a girl he later learned was under the
age of eighteen. It is unclear, however, whether he
made this admission before or after Agent Dempsey
asked for consent to search Pelletier’s computer.
After either the first or the second refusal—the record
is unclear on precisely when—Agent Dempsey stepped
out of the room and directed another FBI agent to go
6 No. 12-1274
to Pelletier’s home and freeze the premises pending a
search warrant or Pelletier’s consent to search. Agent
Dempsey also contacted an Assistant United States Attor-
ney about obtaining a federal search warrant and the
DeKalb Police Department about obtaining a state
search warrant. Agent Dempsey stepped back into the
room and told Pelletier that if Pelletier did not consent
to a search, he was going to try to get a search warrant.
This time, Pelletier relented and signed a written
consent form. The interview ended at approximately
3:20 p.m., and Pelletier left the field office.
Pelletier never expressed discomfort, asked to leave,
or asked for an attorney. He was offered snacks, sodas,
and restroom breaks several times, and he remained
amiable and talkative throughout the day. Indeed, it
seems that Pelletier left the interview room believing
he was still in the running for an FBI job. Pelletier told
the agents that his research on child pornography
would help him to track down criminals, and, just
before leaving to go home, Pelletier asked if “this was
going to slow down the application process.”
Obviously, Pelletier did not get the job. Instead, the
FBI found more than six hundred images of children on
his computer, and Pelletier was indicted for one count
of possession of child pornography in violation of
18 U.S.C. § 2252(a)(5)(B). Pelletier moved to suppress,
arguing that (1) the statements he made to the agents
should be suppressed because he was entitled to Miranda
warnings and did not receive them; and (2) the search
of his computer should be suppressed because his con-
No. 12-1274 7
sent was involuntary. After hearing both FBI agents
testify, the district court found their testimony credible
and denied both motions, holding that (1) Miranda warn-
ings were unnecessary because Pelletier was never in
custody; (2) Pelletier voluntarily consented to the search
of his computer; and (3) even if he did not, the contents
of the computer inevitably would have been dis-
covered with a search warrant. Pelletier then con-
ditionally pled guilty while reserving the right to appeal
the district court’s denial of his suppression motions.
He now exercises that right. We review the district
court’s factual conclusions for clear error and its legal
conclusions de novo. United States v. Figueroa-Espana,
511 F.3d 696, 701 (7th Cir. 2007).
II. A NALYSIS
A. Failure to Give Miranda Warnings
Pelletier first claims that several of his statements to
the agents should have been suppressed because he
never received Miranda warnings. Miranda v. Arizona
requires police to read a series of warnings to suspects
before putting them through custodial interrogation.
384 U.S. 436, 444 (1966). However, “[b]ecause these mea-
sures protect the individual against the coercive nature
of custodial interrogation, they are required only
where there has been such a restriction on a person’s
freedom as to render him ‘in custody.’ ” J.D.B. v. North
Carolina, 131 S. Ct. 2394, 2402 (2011) (internal quotation
marks omitted). At the close of the evidentiary hearing,
the district court asked Pelletier to specify precisely
8 No. 12-1274
when he believed his job interview became objectivley
custodial. Pelletier answered that he was in custody “once
Agent Cherry ascertained that child pornography was
likely on [Pelletier’s] computer,” or, “[i]n any event . . . no
later than when Agent Dempsey[ ] entered the poly-
graph suite brandishing his weapon and badge.” Accord-
ingly, we start our analysis there.
“Custody” is a “term of art that specifies circumstances
that are thought generally to present a serious danger
of coercion.” Howes v. Fields, 132 S. Ct. 1181, 1189 (2012).
To determine whether someone is in custody, “the
initial step is to ascertain whether, in light of the objec-
tive circumstances of the interrogation, a reasonable
person would have felt he or she was not at liberty
to terminate the interrogation and leave.” Id. (internal
citations, brackets and quotation marks omitted). But
this is only the first step in the custody analysis. As
the Supreme Court recently reiterated, “[n]ot all
restraints on freedom of movement amount to custody
for purposes of Miranda.” Id. Even if the subject would not
have felt free to leave, we must still ask an additional
question: “whether the relevant environment presents the
same inherently coercive pressures as the type of station
house questioning at issue in Miranda.” Id. at 1190. For
example, few would feel comfortable speeding away from
a traffic stop while the officer was writing a ticket. Still,
a traffic stop is “temporary and relatively nonthreatening”
and does not have the same inherently coercive
character as a station house interrogation. Maryland v.
Shatzer, 130 S. Ct. 1213, 1224 (2010). As a result, it does
No. 12-1274 9
not amount to “custody” under Miranda, even though it
undoubtedly restrains the subject’s movement. Id.Determining whether an environment is coercive
enough to be custodial requires an objective inquiry
into “all of the circumstances surrounding the in-
terrogation.” Howes, 132 S. Ct. at 1189; see also id.(listing various factors bearing on custody analysis);
United States v. Snodgrass, 635 F.3d 324, 327 (7th Cir. 2011)
(listing additional factors). Here, Pelletier contends
that “any reasonable person would have felt compelled
to continue the ‘interview,’ especially in pursuit of em-
ployment.” (Appellant’s Br. at 11.) Perhaps this is true;
surely a smart applicant would not end a job interview
early if he or she wanted to be hired. But our concern
is whether Pelletier faced “inherently coercive pressures
as the type of station house questioning at issue in
Miranda,” Howes, 132 S. Ct. at 1190, not whether Pelletier
experienced social pressure to stay in the room. Job
interviews are stressful, of course, but there is nothing
inherently coercive about them. The fact that Pelletier
wanted a job at the FBI office does not mean he was
being held there against his will.
Pelletier points to several other circumstances of the
interview that he also argues rendered it custodial.
Pelletier was with the agents for a substantial amount
of time—from 9:49 a.m. until 3:20 p.m. Furthermore,
Agent Dempsey was armed and wearing a badge
during his portion of the interview. It would have been
awkward for Pelletier to leave; he would have had to
either wander out of an unfamiliar, secured building or
10 No. 12-1274
ask for an escort back to the front door. That said,
Agent Dempsey testified that he would have given
Pelletier an escort and let him go if Pelletier had
asked. Nevertheless, these circumstances might have
weighed in favor of custody if Pelletier had come to the
office for questioning as a suspect. But Pelletier did not
come to the FBI as a suspect; he came as a job applicant.
A reasonable applicant for an FBI job would expect to
go through what Pelletier experienced: lengthy inter-
views in an FBI office, encounters with armed FBI
agents, and security measures limiting free movement
through the building. Thus, we do not think that a rea-
sonable person in Pelletier’s position would have
thought the interview was custodial.
Indeed, Pelletier’s own behavior suggests as much.
Miranda requires an objective inquiry into how a reason-
able person would have understood the encounter. See
Berkemer v. McCarty, 468 U.S. 420, 442 (1984). As a result, a
suspect’s subjective views are not directly relevant to
whether he or she was in custody. See, e.g., United States
v. Ambrose, 668 F.3d 943, 954 (7th Cir. 2012); United States v.
Johnson, 680 F.3d 966, 975 (7th Cir. 2012). That said,
a suspect’s subjective views may be considered as cir-
cumstantial evidence of “the atmosphere and how
that would impact a reasonable person’s perception” of
the questioning. Ambrose, 668 F.3d at 959. In Ambrose,
for instance, the defendant, a Deputy U.S. Marshal,
was brought into an FBI office for a meeting and con-
fronted with evidence that he had been cooperating
with the mob. Id. at 950-52. During the interview,
No. 12-1274 11
Ambrose asked how long the process would take
because he had to go to a parent-teacher conference
that night. Id. at 959. We considered Ambrose’s question
as “evidence that the atmosphere was not intimidating”
because it suggested that he expected to go home later
that night and thus did not consider himself in custody.
Id. Similarly, Pelletier was friendly and talkative through-
out the day, discussed his birthday plans for later
that night, and asked at the end of the interview whether
his possession of child pornography would slow his job
application process. While not dispositive on their own,2
Pelletier’s statements further suggest that a reasonable
2
Custody is determined by an objective, reasonable person test
for two reasons: (1) to avoid relying entirely on self-serving
declarations (by the police or by the suspect); and (2) to avoid
placing on police the burden “ ‘of anticipating the frailties or
idiosyncracies of every person whom they question.’ ” Berkemer,
468 U.S. at 442 n.35 (quoting People v. P., 233 N.E.2d 255, 260
(N.Y. 1967)); see also 2 Wayne R. LaFave et al., Criminal Procedure
§ 6.6(c) (3d ed. 2007). Interestingly, neither of these rationales
applies here. In most cases, a self-serving defendant will assert
that he subjectively believed he was in custody. But Pelletier
suggested the opposite; his statements indicated that he sub-
jectively believed he was in a job interview, not in custody. As
for the second rationale, it would be odd to suppress a confes-
sion because of an abstract risk of coercion when the subject
himself did not actually feel coerced. Perhaps, then, Pelletier’s
statements should dispose of this case. But we can set these
questions aside for now; for our purposes, it is enough to
hold that a reasonable person in Pelletier’s position would not
have felt himself to be in custody and leave this twist
of subjective intent for another day.
12 No. 12-1274
person in his situation would not have thought himself
in custody. As a result, Pelletier was not entitled to
Miranda warnings, and the district court did not err in
denying Pelletier’s motion to suppress under Miranda.
B. Consent to Search Pelletier’s Computer
Pelletier next argues that the FBI involuntarily obtained
consent to search his computer. The district court rejected
this argument, holding that (1) Pelletier voluntarily
consented to the search; and (2) even if his consent was
involuntary, the pornographic images would have
been inevitably discovered. Because we believe that the
inevitable discovery doctrine is more straightforward,
we will address only that issue and assume, without
deciding, that Pelletier’s consent was involuntary.
Under the inevitable discovery doctrine, illegally
seized evidence need not be suppressed if the govern-
ment can prove by a preponderance of the evidence
that the evidence inevitably would have been discovered
by lawful means. See Nix v. Williams, 467 U.S. 431, 442-44
(1984); United States v. Stotler, 591 F.3d 935, 940 (7th
Cir. 2010). To satisfy this burden, the government
must show (1) “that it had, or would have obtained, an
independent, legal justification for conducting a search
that would have led to the discovery of the evidence”;
and (2) “that it would have conducted a lawful search
absent the challenged conduct.” United States v. Marrocco,
578 F.3d 627, 637-38 (7th Cir. 2009). In other words,
the government must show not only that it could have
No. 12-1274 13
obtained a warrant, but also that it would have obtained
a warrant. See id. at 638 (quoting United States v. Brown, 64
F.3d 1083, 1085 (7th Cir. 1995)) (“ ‘What makes a dis-
covery ‘inevitable’ is not probable cause alone but
probable cause plus a chain of events that would have
led to a warrant independent of the search.’ ”) (internal
brackets and ellipses omitted).
The government satisfied both of these requirements
here. The first requirement—that the government had
legal justification for a warrant—cannot seriously be
disputed. Pelletier told two FBI agents that he had
child pornography on his computer. Those statements
obviously provided probable cause to believe Pelletier
possessed child pornography. Pelletier counters that
many of these statements should have been suppressed
because he was not given his Miranda warnings, but we
have already rejected that argument. And even if these
statements were suppressed, it would not make a differ-
ence. Pelletier claimed in the district court that he was
entitled to Miranda warnings immediately after “Agent
Cherry ascertained that child pornography was likely
on [Pelletier’s] computer.” If Agent Cherry knew that
there “likely” was child pornography on Pelletier’s com-
puter, then Cherry had more than enough evidence to
seek a search warrant. See Mucha v. Vill. of Oak Brook,
650 F.3d 1053, 1056-57 (7th Cir. 2011) (“Probable cause
requires only that a probability or substantial chance
of criminal activity exists; it does not require the ex-
istence of criminal activity to be more likely true than not
true.”); cf. United States v. Norris, 640 F.3d 295, 300 (7th
Cir. 2011) (search warrant properly issued where
14 No. 12-1274
evidence showed that defendant “likely had cocaine in
his home and on his person”). Thus, the government
would have had ample evidence for a search warrant
even if Pelletier prevailed in his Miranda claim.
The government also satisfied the second requirement
of the inevitable discovery doctrine—demonstrating
that it actually would have obtained a warrant. “Our case
law establishes that the inevitable discovery rule
applies . . . where investigating officers undoubtedly
would have followed routine, established steps resulting
in the issuance of a warrant.” Marrocco, 578 F.3d at 639.
The government “is not required to show that in-
vestigators in fact obtained or sought a warrant in order
to prove that they inevitably would have done so.” Id. at
640 n.21. Rather, the government need only show that
“[i]t would be unreasonable to conclude that, after dis-
covering all of [the] information, the officers would
have failed to seek a warrant.” Id. at 640; see also United
States v. Buchanan, 910 F.2d 1571, 1573 (7th Cir. 1990)
(holding that police inevitably would have sought a
warrant to search defendant’s hotel room because “it
would have been foolish not to want to look for the
gun there”).
The government’s case on this point was compelling. It
is unreasonable to think that, after Pelletier admitted
to two FBI agents that he had child pornography, the
FBI would have failed to follow up and obtain a
search warrant. That fact alone is enough for the in-
evitable discovery doctrine to apply. See Marrocco, 578
F.3d at 639-40. Moreover, Agent Dempsey specifically
No. 12-1274 15
testified that he would have secured a warrant if
Pelletier refused consent. Indeed, Agent Dempsey also
testified that, during the interview, he called both state
and federal law enforcement authorities to start pur-
suing a search warrant, should it become necessary later.
As a result, we think there is ample evidence that the
FBI inevitably would have discovered Pelletier’s child
pornography cache.
Pelletier’s only response is that the agents declined
to arrest him on the day of the interview. This, he
contends, “calls into question any claim that a warrant
would have inevitably been obtained.” (Appellant’s Br.
at 25-26.) We disagree. The fact that police may deprive
someone of their liberty does not mean that they
should. “It is within the discretion of law enforcement
to decide whether delaying the arrest of the suspect
will help ensnare co-conspirators, give the law enforce-
ment greater understanding of the nature of the criminal
enterprise, or allow the suspect enough rope to hang
himself. ” United States v. Wagner, 467 F.3d 1085, 1090
(7th Cir. 2006) (internal quotation marks omitted).
Here, the FBI agents easily could have decided that im-
mediately arresting Pelletier was unnecessary because
Pelletier still thought he was a job candidate and there-
fore was unlikely to flee. We think that act of discretion
demonstrated sound judgment, not a weak case. Accord-
ingly, it does not undermine our conclusion that the FBI
inevitably would have discovered the child pornography
on Pelletier’s computer.
16 No. 12-1274
III. C ONCLUSION
We A FFIRM Pelletier’s conviction.
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