USA v. Noel CR-92-25-B 12/30/92

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 92-25-01-B

Daniel Noel

O R D E R

Defendant Daniel Noel has been charged with having knowingly

received materials through the mail containing visual depictions

of minors engaged in sexually explicit conduct in violation of

(a)(2) (West 1990 & Supp. 1992). The court held a

hearing on December 17, 1992, on defendant's motions to suppress.

FACTS

After discovering that Noel was a customer of Donald B.

Sherin, a convicted distributor of child pornography, agents of

the United States Postal Service, through their undercover firm,

"Globe-Tex Specialties," sent a letter to Noel to determine if he

still wished to receive such material through the mail. Noel

responded by dispatching a letter to Globe-Tex Specialties in

which he indicated his preference for male models age 8 - 17, requested shipment of a sample videotape detailing the types of

films available for purchase, and enclosed a signed copy of a

customer information form indicating he was aware that the

materials he was about to receive were considered illegal under

current law. The agents mailed Noel the sample videotape on

November 26, 1991, and Noel responded eight days later by sending

a money order for two magazines and eight films. The agents then

placed the eight films on a videotape and mailed the magazine and

the videotape to Noel's home.

Before the magazine and the videotape arrived. United States

Postal Agent, William W. Ricker, sought and obtained a warrant to

search Noel's home. The warrant authorized the seizure of the

following items: (1) the package containing the two magazines

and the videotape of the eight films; (2) papers indicating Noel

resided at the place to be searched; (3) materials documenting

Noel's connection with Globe-Tex Specialties; (4) items relating

to Noel's contact with Sherin; (5) the sample videotape; and (6)

any videotape players and monitors or televisions.

Agent Ricker observed the mailman unsuccessfully attempt to

deliver the package containing the magazine and the videotape.

Agent Ricker later observed Noel take possession of the package

at the post office, place it on the front seat of his car and

drive away. Agent Ricker and his colleague. Agent Harold Frost,

then set out after Noel in separate cars. Both agents expected

Noel to return to his home. However, after Noel unexpectedly

turned down a dirt road, the agents became concerned and decided

- 2 - to stop Noel's car.

After stopping the car. Agent Ricker approached Noel,

displayed his identification, and told Noel he had reason to

believe Noel possessed child pornography. Agent Frost also

approached Noel's car and displayed his identification card.

Agent Ricker noticed the package on the seat, informed Noel that

he was not under arrest but that the agents had a federal warrant

to search his home. Agent Ricker then asked Noel if he knew that

the package he had received contained child pornography. Noel

replied that he was so aware, but that the FBI had informed him

that it was permissible to receive such material if he agreed to

use it only for himself. Noel added that the FBI had actually

provided him with the initial offering material.

At one point during the stop, Noel asked the agents if they

would wait until he finished work to execute their search

warrant. Agent Ricker declined Noel's reguest and instead

offered him the choice of either accompanying the agents to his

home or returning to work while the agents searched his

residence. Noel agreed to go with the agents, but stated that he

needed to inform his employer that he would be leaving work early

that day. At this point. Agent Ricker reguested and received the

package from Noel.

The stop and search of the car occurred a little after 2:00

p.m., and lasted approximately 3 - 5 minutes. Noel then notified

his employer that he would not be returning to work and led the

agents back to his home.

- 3 - Upon arriving at his home, Noel stated, in response to a

question by the agents, that he did not possess any weapons.

Noel was given a copy of the warrant, and he sat in the front

room of his home with Agent Ricker while Agent Frost began the

search. Agent Ricker then questioned Noel about his personal

history. At one point, Noel was asked where he kept his child

pornography. He responded that he did not own such material

anymore. Agent Ricker asked Noel if he had ever molested

children. Noel stated that he did not remember because he used

to drink. Agent Ricker then inquired whether Noel would take a

lie detector test. Noel replied that he would like to talk to a

lawyer first.

At some point during the search. Agent Frost and Noel were

in the same room. Agent Frost asked Noel were he might find the

material he had received from Sherin, and Noel stated it was in

his closet. Agent Frost then questioned Noel about his service

as a "Big Brother," and Noel responded by talking about his

personal history, including the fact that he was once under

psychiatric care. Noel added that he was happy to have received

the materials from Globe-Tex Specialties.

While at the house, the agents continued to tell Noel that

he was not under arrest. They allowed Noel to walk freely about

the house, but asked Noel to refrain from entering any room that

was being searched. During the search, a local police officer

arrived at Noel's home to assist the agents.

While the search was underway, the agents discovered several

- 4 - items they considered to be child erotica. After informing Noel

that these items were not listed in the original warrant, they

told him that they could either seize this material with his

permission or attempt to obtain a new search warrant. Noel

agreed to their seizure and signed a statement indicating that

his consent was voluntary. The search of Noel's residence, which

had begun around 2:30 p.m., was finally terminated at

approximately 5:15 p.m.

DISCUSSION

Noel seeks to suppress (1) the evidence seized during the

search of his car because the agents lacked probable cause and a

warrant to search the car; (2) all statements he made during the

search of his car and home because the agents failed to inform

him of his rights under Miranda v. Arizona; (3) all evidence

seized pursuant to the search warrant because the warrant was

overbroad and the search warrant application contained material

omissions; and (4) all evidence obtained during the "consent"

search of his home because his "consent" was involuntary. For

the reasons stated below, the court denies defendant's motions.

IMPROPER STOP AND EXECUTION OF WARRANT

Noel moved to suppress the evidence acguired during the stop

of his vehicle on the grounds that, while the agents may have had

probable cause to stop and search his car, their actions were

improper because they possessed a warrant to search his home, not

- 5 - his car. The court does not find this argument persuasive.

When government agents have probable cause to believe that a

vehicle contains contraband or other evidence of criminal

activity, they may stop and search the vehicle without a warrant.

California v. Acevedo, 111 S. C t . 1982, 1991 (1991); United

States v. Ross,

(1982); United States v.

Panitz,

(1st Cir. 1990). Possession of a

warrant to search Noel's residence did not take his vehicle

outside the scope of these cases. Thus, the only inguiry is

whether the agents had probable cause, which Noel apparently

concedes, to believe contraband could be found in his vehicle.

Probable cause to search exists when the facts and

circumstances warrant a reasonable belief that criminal activity

has occurred and that a particular search will produce evidence

of its commission. See United States v. Santana,

(1st Cir. 1990); United States v. Melvin,

, 495-

96 (1st Cir.), cert. denied,

(1979). Moreover,

probable cause to conduct a warrantless search of a vehicle may

be based upon police observation. See United States v. Maguire,

(1st Cir. 1990), cert, denied. 111 S. C t . 1421

(1991) .

In the instant case, the agents who stopped Noel were aware

of the nature and content of the package he had received through

the mail. Furthermore, the agents knew Noel had ordered the

material and they saw Noel take possession of the package and

place it in his car. Accordingly, the agents had probable cause

- 6 - to believe both that the package contained evidence of a crime

and that the package could be found in Noel's vehicle.

Noel suggests that the evidence obtained in the vehicle stop

should be suppressed because the agents had time to obtain a

warrant to search his car. This argument fails because the First

Circuit Court of Appeals has held that the fact that government

agents may have had adeguate time to secure an anticipatory

warrant does not mean that they must obtain such a warrant before

conducting an automobile search. Panitz,

- 71

n.3. Therefore, the search of Noel's vehicle and seizure of the

package containing the child pornography remains justified as an

automobile search supported by probable cause.

MOTION TO SUPPRESS/STATEMENTS OF THE DEFENDANT

Noel claims that the statements he made to the agents

during the searches of his car and house must be suppressed

because he was not given Miranda warnings. Because the

uncontroverted evidence indicates that Noel was not in police

custody when he made his statements to Agent Ricker and Agent

Frost, the court denies Noel's motion to suppress.

In assessing whether a person is in custody for Miranda

purposes, the court, applying objective standards, must determine

"whether there was a manifestation of significant deprivation of

or restraint on the suspect's freedom of movement . . . ."

United States v. Lanni,

(1st Cir. 1991). The

central precondition triggering Miranda is coerciveness.

- 7 - Irrespective of the presence of probable cause, until a

government agent exerts some type of coercion, the suspect cannot

reasonably believe his freedom is restrained. Berkemer v.

McCarty,

(1984); United States v. McDowell,

(1st Cir. 1990). Factors to consider include

"'whether the suspect was guestioned in familiar or at least

neutral surroundings, the number of law enforcement officers

present at the scene, the degree of physical restraint placed

upon the suspect, and the duration and character of the

interrogation.'" United States v. Masse,

(1st

Cir. 1987) (guoting United States v. Streifel,

, 961

n.13 (1st Cir. 1986)).

The Supreme Court has determined that guestioning of a

defendant at a brief traffic stop prior to his arrest does not

reguire Miranda warnings. Berkemer,

. Similarly,

the First Circuit Court of Appeals has held that Miranda warnings

were not reguired during a 20-25 minute investigative detention

of suspects authorized under Terry v. Ohio,

(1968).

United States v. Quinn,

(1st Cir. 1987).

In the present case, the undisputed evidence reveals that

Noel was stopped for a brief period of time, approximately 3 - 5

minutes, and was immediately informed that he was not under

arrest. Both Agent Ricker and Agent Frost were dressed in plain

clothes and neither agent either displayed a weapon or physically

restrained Noel. After guickly discussing the contents of the

package, the agents told Noel that they had a warrant to search his home and gave him the choice as to whether he wished to

attend its execution. The duration of the stop and the absence

of restraint, combined with the straightforward nature of the

guestioning, makes this case more analogous to a Terry stop or a

traffic stop than a formal arrest.

As to statements made while Noel was at his house, the

evidence demonstrating Noel's freedom of movement while he was at

the house clearly outweighs Noel's current claim that he was in

custody. Despite being informed that he was not under arrest,

Noel voluntarily chose to follow the agents to his home. During

the search, Noel wandered about his house and used his phone.

The agents never did anything to restrain Noel during the search

except to tell him he could not be in any room while that room

was being searched. Moreover, they guestioned Noel in a routine,

non-threatening manner. At no time was Noel subjected to

conditions comparable to a formal arrest. Accordingly, his

statements will not be suppressed.

DEFECTIVE WARRANT

Noel suggests that the warrant was defective because it was

overbroad in that it authorized the seizure of certain documents

indicating residence and items, such as videotape players and

television monitors, which are not contraband. The court rejects

Noel's argument.

Evidence showing that Noel resided at the place where the

contraband had been mailed may be properly seized. See United States v. Tabares,

(1st Cir. 1991). Moreover,

Noel's possession of a videotape player and television monitor

demonstrated that he had the capacity to view videotapes.

Accordingly, they were properly subject to seizure as evidence

tending to show that Noel had ordered the videotape.

MISLEADING AFFIDAVIT

Noel seeks to suppress evidence obtained pursuant to the

warrant to search his home by arguing that the "illusion created

by . . . misleading extraneous and omitted facts, which comprise

the majority of the affidavit, amount to reckless disregard for

the truth." Specifically, Noel alleges that the affidavit

discusses, at great length, his dealings with Sherin without

mentioning that his purchases from Sherin predated the enactment

of

(a)(2). Noel claims that had the agents

informed the Magistrate of the "legal" status of his earlier

conduct, a warrant would not have been issued. The court rejects

this line of reasoning.

A search warrant issued on the basis of an affidavit which,

on its face, is sufficient to establish probable cause will be

invalidated if the challenger makes a substantial preliminary

showing that (1) a false statement was intentionally or

recklessly included, or a true statement intentionally or

recklessly omitted, from the affidavit and (2) that the false

statement was necessary for the finding of probable cause, or the

inclusion of the omitted statement would have negated the finding

- 10 - of probable cause. See Franks v. Delaware,

, 171 -

72 (1978); United States v. Spinosa, No. 91 - 2125, slip op. at

12 (1st Cir. Dec. 15, 1992); United States v. Paradis,

(1986).

In the present case, the court finds that Noel fails to meet

his burden on both counts. First, despite being given the

opportunity, Noel did not produce any evidence at the suppression

hearing that the alleged omission was excluded recklessly or

intentionally. Second, while the discussion of Noel's dealings

with Sherin tended to establish that his continued receipt of

similar material was knowing, the inclusion of the omitted

information would not have negated the Magistrate's finding of

probable cause. Even if the affidavit had expressly noted the

effective date of

(a)(2), the affidavit taken as a

whole would have supplied the Magistrate with a basis for

determining that there was a fair probability that evidence of a

crime would be discovered in Noel's home. See Illinois v. Gates,

(1983). Accordingly, the court will not

suppress the evidence obtained pursuant to the execution of the

search warrant.

CONSENT SEARCH

Noel argues that the items seized from his house which were

not listed in the warrant should be suppressed because his

consent was involuntary in that it was elicited while he was in

custody and subjected to a coercive environment. Based upon the

- 11 - uncontroverted evidence presented at the hearing, Noel's motion

is denied.

If consent is properly obtained, government agents may

conduct a search without showing cause or suspicion. Instead,

they need only demonstrate that the consent was voluntary and was

not the product of duress or coercion. See Schneckloth v.

Bustamonte,

(1972); United States v.

Patrpne,

(1st Cir. 1991), cert. denied, 112 S.

C t . 2953 (1992). Whether consent is voluntary is a guestion of

fact to be determined by the totality of the circumstances.

Patrpne,

- 16 (citing Schneckloth,

). While the suspect's knowledge of the right to refuse

consent is a factor to consider, the government need not

demonstrate such knowledge as "a prereguisite to establishing

voluntary consent." Schneckloth,

. Additional

factors to consider include "the consenting party's possibly

vulnerable subjective state; and evidence of inherently coercive

tactics, either in the nature of police guestioning or in the

environment in which the guestioning took place." United States

v. Twomev,

(1st Cir. 1989), cert. denied,

(1990) .

At the hearing. Agents Ricker and Foster both testified that

Noel was told on several occasions that he was not under arrest

and that it was his choice as to whether or not he wished to

attend the execution of the search warrant. After voluntarily

following the agents to his home, Noel was again informed that he

- 12 - was not under arrest, and he was permitted to wander freely about

the premises. When the agents discovered items they wished to

seize which were not listed in the original warrant, they told

Noel that he could reguire them to attempt to secure an

additional warrant or he could consent to their seizure. Rather

than pursuing the former option, Noel agreed that the items could

be seized and signed a statement attesting that his consent was

"voluntar[y ]" and "without threat or coercion." This fact,

coupled with the candor of the agents in informing Noel that they

would need a warrant if he did not consent and the absence of any

threats, demonstrates that Noel's consent was voluntarily

obtained. Accordingly, the items seized during the consent

search of Noel's home will not be suppressed.

CONCLUSION

For the reasons set forth herein, Noel's motions to suppress

(doc. nos. 13, 14, 15, 16, 17) are denied.

SO ORDERED.

Paul Barbadoro United States District Judge

December 30, 1992

cc: United States Attorney United States Marshal United States Probation Howard Gross, Esg.

- 13 -