UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States

v. Case No. 19-cr-76-1-PB Opinion No.

Robert Corleto

MEMORANDUM AND ORDER

Roberto Corleto has been indicted by a grand jury for one

count of sexual exploitation of a minor under

(a) and (e) and one count of transportation of child

pornography under 18 U.S.C. §§ 2252A(a)(1) and (b)(1). In his

motion to suppress (Doc. No. 30), Corleto seeks to suppress all

evidence seized by FBI agents when they executed a search

warrant on March 19, 2019 for the residence located at and

vehicles registered to 315 Elmwood Drive, Hudson, New Hampshire.

He also seeks to suppress statements he made to law enforcement

agents during the execution of the search warrant and later that

evening at the Hudson Police Department. For the reasons that

follow, I deny Corleto’s motion to suppress. I. BACKGROUND

A. Relevant Facts

The facts in question are drawn from FBI Special Agent

(“SA”) Timothy DeMann’s affidavit in support of the application

for a search warrant, his affidavit in support of a complaint

and arrest warrant, Corleto’s affidavit in support of the motion

to suppress, and testimony provided by SA DeMann, Corleto, and

Corleto’s wife, Nicole (“Ms. Corleto”) at a motion hearing held

on December 19, 2019. After reviewing the affidavits and the

hearing testimony, I find SA DeMann’s testimony to be credible

and accept as true his version of events where they differ from

those of other witnesses.

1. Search Warrant

On March 19, 2019, Magistrate Judge Andrea Johnstone

granted SA DeMann’s request for a warrant to search 315 Elmwood

Drive, which included not only the residence but also two

vehicles registered to the address. Search and Seizure Warrant,

Gov’t Ex. 2, Attach. A, Doc. No. 36. In his affidavit in support

of the search warrant, SA DeMann explained that an undercover

FBI agent (“UC”) communicated with an individual (“the target”)

on the messaging application KIK Messenger (“KIK”) and that the

UC witnessed the target engage in sexually explicit interactions

with a minor he referred to as his “12-year-old slave” who “does

2 whatever he asks her to do.” DeMann Aff. in Supp. of Appl. for

Search Warrant, Gov’t Ex. 1, Doc. No. 35 at 7–9 ¶¶ 22–27.

After sending “an emergency disclosure request to KIK for

subscriber identification and IP access logs associated with”

the target, the FBI determined that the target had engaged in

the incriminating exchanges with the UC by using an iPhone on a

Comcast IP address. Doc. No. 35 at 9 ¶ 29. Further investigation

established that the Comcast IP address was assigned to the

account of Ms. Corleto at 315 Elmwood Drive, where Corleto also

resides. Doc. No. 35 at 9 ¶¶ 30–31. Two vehicles are registered

to this address: “a 2016 blue Chevy Equinox” to Ms. Corleto and

“a 2001 white Ford F150 pickup” to Corleto. Doc. No. 35 at 9 ¶

31. In support of his request to search the vehicles, SA DeMann

averred that, based on his professional experience and training,

“[t]hose who distribute, transport, receive, or possess child

pornography” tend to keep the evidence of their crime in a

variety of secure locations, “including in outbuildings and

motor vehicles.” Doc. No. 35 at 11–12, 14 ¶¶ 34b–c, 36.

The search warrant for the residence and vehicles

authorized the search and seizure of all computers and

electronic records “that were or may have been used as a means

to commit the offenses” of production, possession, and

distribution of child pornography. Attach. B, Doc. No. 36. The

warrant defined the term “computer” broadly, to include not just

3 traditional laptop or notebook computers but also tablets and

smart phones, among other items. Attach. B, Doc. No. 36. The FBI

executed the search warrant on March 19, 2019 at 6:30 pm and

seized multiple cell phones and other electronic devices. Doc.

No. 36.

2. Seizure of the iPhone

As the FBI arrived at the condominium complex to execute

the search warrant, SA DeMann stopped the Corletos in the Chevy

Equinox as they were about to exit the complex’s parking lot.

Tr. of Suppression Hr’g (“Tr.”) 16:1–4. Ms. Corleto was in the

driver’s seat and Corleto in the front passenger seat. Tr. at

17:7–8. SA DeMann identified himself and “asked . . . Corleto to

exit the vehicle[,]” Tr. 18:1–2, although Corleto was already in

the process of exiting the Equinox, 1 Tr. 63:1–3, 20–21. He then

“asked [Corleto] if he had a cell phone on him,” 2 Tr. 18:4.

Corleto responded that he did, Tr. 18:16, and he produced an

1 Corleto asserted that SA DeMann “motioned to [him] to get out of the vehicle” while the agent approached, and that is what prompted him to begin to exit the Equinox. Tr. 94:21–24; accord Tr. 113:10–12 (“As [SA DeMann] was walking toward the vehicle, he signaled me to get out of the vehicle. So as I started getting out of the vehicle, he met me at the door . . . .”).

2 Corleto claimed that SA DeMann “did not ask [him] if [he] had a phone” because “it was in [his] hand[,] meaning the agent could see it and had no need to ask. Tr. 113:18–114:1. SA DeMann recalled asking Corleto if he had a cell phone while Corleto was getting out of the Equinox but before he spotted the phone in Corleto’s hand. Tr. 157:17–20.

4 iPhone, which was in his hand. 3 He then proceeded to “open” his

phone, compare Tr. 31:13–15 (according to SA DeMann, Corleto

used his thumbprint) with Tr. 95:12–18 (according to Corleto,

his phone did not need to be unlocked to give SA DeMann “access

to it”), which lacked any “pin, passcode, or fingerprint . . .

3 SA DeMann struggled throughout the hearing to recall exactly where Corleto’s phone was located when Corleto stepped out of the Equinox and when SA DeMann asked whether Corleto had a phone on his person. See Tr. 30:21–24 (“I don’t know on his person whether he had it – I can’t remember if he had it on, in a pocket or – he did not reach into his vehicle.”); Tr. 64:23–24 (“Again, I don’t know if he had it in his pocket or if he had it in his hand. He had it on his person.”). SA DeMann’s original position was that, after he asked Corleto about his cell phone, Corleto removed the phone from his pocket. Redacted Interview Report, Gov’t Ex. 3, Doc. No. 34-1 at 1; accord Tr. 67:1–4 (refreshing his memory on cross-examination by reviewing his contemporaneous report). In his testimony at the motion hearing, however, SA DeMann changed his position, stating that Corleto “may have actually had [the cell phone] in his hand when he was in the vehicle . . . .” Tr. 29:11–12; accord Tr. 29:19–20 (“My best memory [is] that [Corleto] had [the cell phone] . . . in his hand.”) At one point during his testimony, SA DeMann said he did not recall Corleto reaching into a pocket or removing the phone from the Equinox as he stepped out of the vehicle. Tr. 29:21–22; 30:8–11, 22–24. Corleto testified that his phone was in his left hand while he was in the Equinox and that it remained in his hand as he stepped out of the vehicle until SA DeMann took it from his hand. Tr. 95:9–96:8. Corleto has been consistent on this point, stating the phone was in his hand in his affidavit accompanying the motion. Def’s Aff. in Supp. of Mot. to Suppress Evid. Seized Pursuant to Search Warrant and to Suppress Statements Made at Time of Seizure and Thereafter, Doc. No. 31 at 1 ¶ 5. SA DeMann ultimately testified that the phone was in Corleto’s hand as Corleto got out of the Equinox, and he admitted that he was mistaken in his report. Tr. 157:11–14, 21– 24; 158:2–3, 20–24.

5 to ‘unlock’ the device.” 4 United States’s Notice Regarding the

Def.’s Cell Phone, Doc. No. 43 at 1. This sequence of events —

from stopping the car to opening the iPhone — happened in a

matter of seconds. Tr. 18:19. Once Corleto opened his phone, SA

DeMann seized it pursuant to the warrant. Tr. 31:22–23; 82:3–6,

18–20.

3. Corleto’s Statements

Corleto made statements to law enforcement agents on two

occasions: first, at the scene as officers seized the car and

searched the residence, and second, at the Hudson Police

Station.

a. Statement at the Scene

Immediately after seizing the iPhone, SA DeMann took

Corleto aside, Tr. 34:7–12, and “explained to him that [the FBI]

had a search warrant for the [Equinox] and his other vehicle and

his house related to child pornography,” Tr. 32:2–6. Agents

4 In his testimony, SA DeMann first recalled asking Corleto to unlock his cell phone, followed by Corleto replying that his phone did not have a passcode, but “he could [unlock] it with his thumbprint. Tr. 18:7–9. Then, SA DeMann recalled that Corleto unlocked the phone at the same time SA DeMann asked him to do so. Tr. 31:5–15. By contrast, Corleto testified that his “phone did not have a password,” Tr. 95:13, and that he did not need to use his thumbprint to unlock it for the agent, Tr. 106:8–10; see Tr. 95:16–18; 96:15–16. The government has since confirmed that Corleto’s phone was not equipped with any locking feature, meaning anyone who picked up the phone could activate and open it by “depress[ing] the ‘home’ button.” Doc. No. 43 at 1.

6 prepared to search the Equinox while SA DeMann and Corleto

spoke. Tr. 32:15–17. “No one was in uniform except for” the

local law enforcement officers in a marked police cruiser. Tr.

28:5–6. Instead, the agents were wearing “FBI raid jackets” to

identify themselves. Tr. 28:7, 12–14. “[N]o one had guns drawn.”

Tr. 28:17. As the search process got underway, no one handcuffed

Corleto or restrained him in any way. 5 Tr. 35:1–2. Meanwhile, Ms.

Corleto was speaking with an agent near “the front driver’s side

. . . of the vehicle . . . .” Tr. 35:14–16.

After SA DeMann “stepped away for a few moments, back to

the vehicle, . . . Corleto motioned [him] over,” Tr. 33:7–8, 12,

and “told [SA DeMann] that everything [the agent] was looking

for was on his phone,” 6 Tr. 36:6–7. Shortly thereafter, agents

5 Corleto asserted that he was “told . . . to go stand at the back of the [Equinox],” Tr. 97:10–11, and then did not move for about “ten or fifteen minutes” until agents “told [him and his wife] to go into the house,” Tr. 98:5–8. Although he testified that SA DeMann only told him that he was not under arrest between seizing the phone and going to search the condominium, Tr. 115:1–13, he stated in his affidavit that he “was told repeatedly that [he] was not in custody,” Doc. No. 31 at 2 ¶ 9 (internal quotation marks omitted); accord Tr. 116:22–25 (pointing out the discrepancy between Corleto’s testimony and his affidavit on cross-examination). Regardless, he felt that “the circumstances were such that [he] was not free to leave.” Doc. No. 31 at 2 ¶ 9. SA DeMann did not recall discussing with the Corletos at that time whether the Corletos were in custody or free to leave. Tr. 75:15–19.

6 No one denies that these words left Corleto’s mouth. Corleto merely challenges the admissibility of a statement he made while a stressful and upsetting scene unfolded before him and his

7 began searching the condominium. Tr. 39:6–16. During the search

of his residence, Corleto voluntarily reiterated this statement

to SA DeMann multiple times. Tr. 39:21–40:10; 120:9–10, 13–14.

Given Corleto’s admissions, the sensitive nature of the

investigation, and the crowding in the small condominium, Tr.

41:16–25; accord Tr. 76:12–14 (“[T]hroughout the time that we

were in [the condominium, Corleto] kept wanting to reiterate to

me that . . . it was all on the phone, and I’ll tell you

everything . . . .”), SA DeMann asked Corleto, “[W]ould it be

okay if we went down to the Hudson Police Department and spoke

there,” 7 Tr. 42:7–8; accord Tr. 76:7–11 (“I don’t remember word

for word . . . but . . . I asked [Corleto] if he would come down

wife. See Doc. No. 31 at 2 ¶ 10 (“We were frantic and confused.”); see also Doc. No. 31 at 2 ¶ 13 (“There were statements illegally elicited from me and my wife during interviews after the unlawful seizure of the motor vehicle and our persons.”). To that end, he testified that he “just got nervous . . . and said . . . what you’re looking for is on the phone,” Tr. 99:5–7, because agents at the scene had his wife over the hood of a law enforcement vehicle to frisk her, Tr. 99:4–5, 14–17, and he “wanted it to stop,” Tr. 100:7–8. Ms. Corleto did not testify to such a search of her person when she was on the stand, Tr. 100:9–13, and I do not find Corleto’s version of events credible on this point.

7 Corleto testified that SA DeMann “told” him that they were going to the station, Tr. 108:23–25; 109:3–4, not that he was asked to go, Tr. 108:8–9. He claimed that he “asked if [he] had to go, and [he] was told that [he] did have to go.” Tr. 109:13– 14.

8 to the Hudson Police Department to talk further.”), to which

Corleto “said that would be fine,” Tr. 42:10.

When Corleto asked whether “he could take his truck,” Tr.

42:12, SA DeMann said no, because the truck needed to be

searched pursuant to the warrant, Tr. 42:13–14. Instead, he

asked Corleto, “[W]ould it be okay if you rode with me in my

vehicle?” to which Corleto replied, “[O]kay.” Tr. 42:14–15.

Then, SA DeMann drove his vehicle to the station, with Corleto

“in the front seat next to [SA DeMann],” Tr. 42:21, and “the

other interviewing agent . . . in the backseat,” Tr. 42:22–23.

Corleto “was not handcuffed” during the trip, Tr. 42:21–22;

accord Tr. 110:17–18, and he voluntarily rode in SA DeMann’s

vehicle, 8 see Tr. 43:2–17.

b. Statements at the Station

At the police station, SA DeMann made a video recording of

the interview. See Tr. 44:4–5, 16–17. He later testified under

oath that the video was not stopped “at any point during the

interview[.]” Tr. 45:21–22.

Based upon the timestamp in the video recording, Corleto

remained in the interview room at the Hudson police station for

8 Corleto claimed he had no other choice but to go in SA DeMann’s vehicle, “[b]ecause that’s how they told [him he] was getting” to the station. Tr. 110:6–7.

9 just over one hour. 9 Gov’t’s Obj. to Def.’s Mot. to Suppress,

Gov’t Ex. 5, Doc. No. 34-3. During this time, Corleto spoke with

Agent DeMann and three other law enforcement officers: Special

Agent Kim Blackwood (“SA Blackwood”), Hudson Police Department

Detective Adam Lischinsky (“Lischinsky”), and Special Agent Jill

Laroe (“SA Laroe”). Tr. 44:10—13.

At the start of the interview, Corleto entered the room and

sat in a chair facing the video recording device. Doc. No. 34-3

at 7:12:06 pm. SA DeMann then entered the room with SA

Blackwood, and they both sat across the table from Corleto with

their backs to the camera. Doc. No. 34-3 at 7:14:35 pm. SA

DeMann and SA Blackwood wore casual clothing (i.e., not

uniforms), and neither displayed a weapon. Doc. No. 34-3 at

7:14:35 pm. After they entered the room, SA DeMann and SA

Blackwood left the door open. Doc. No. 34-3 at 7:14:35 pm.

Throughout the entirety of the interview, none of the

interviewers raised their voices, nor did any interviewer speak

aggressively or adopt an aggressive physical posture.

9 Although the record reflects that this interview took place on March 19, 2019, the timestamp on the video recording identifies the date as March 20, 2019. Considering this discrepancy, I use the times displayed in the video solely for the purpose of identifying events in the video for citation purposes, without making any specific findings of fact as to the date or the precise time of day that those events occurred.

10 After introducing SA Blackwood, SA DeMann told Corleto, “As

we explained before, and as the detective explained to you, this

is audio-video recorded, okay? You are not under arrest. You are

not in custody. At any point, if you want to leave, you’re more

than welcome. 10 I’ll drive you back to your house. No problem.

Okay?” Doc. No. 34-3 at 7:14:45–7:15:05 pm. SA DeMann testified

that, had Corleto ended the interview or tried to leave the

interview room and station, he would have been free to do so.

Tr. 48:17–25.

The two agents questioned Corleto for roughly twenty

minutes, during which time Corleto made numerous self-

incriminating statements, which are the subject of this motion.

Doc. No. 34-3 at 7:15:05–7:34:49 pm. During this questioning,

Corleto made reference to “sitting in the police station,” and

SA DeMann again told him, “You’re not in custody and you’re free

to go at any point, as we have explained.” Doc. No. 34-3 at

7:31:30. At a break in his questioning, SA DeMann exited the

room, leaving the door open. Doc. No. 34-3 at 7:34:53 pm. SA

Blackwood remained in the room with Corleto. Doc. No. 34-3 at

7:34:53 pm. Although SA Blackwood asked Corleto a few questions

10Corleto testified that he was neither told he was free to leave the station nor under the impression he could leave or refuse any order from law enforcement. Tr. 110:19–21; 111:3–22; 112:1–4, 13–17. He did, however, understand that he was not under arrest. Tr. 111:19–25; 121:16–18.

11 during the time she was alone in the room with Corleto, the

majority of their conversation centered around Corleto’s

questions to SA Blackwood about the next steps in the

investigation and small talk about Corleto’s experience as an

EMT. Doc. No. 34-3 at 7:34:53-7:38:50 pm.

Det. Lischinsky then entered the room, leaving the door

open, and took the chair previously occupied by SA DeMann. Doc.

No. 34-3 at 7:38:50 pm. He wore a uniform polo shirt with his

name and a badge printed on it, as well as a belt with a badge,

handcuffs, and other equipment attached to it. Doc. No. 34-3 at

7:38:50 pm. Although the video is not entirely clear, he does

not appear to be carrying a weapon. Doc. No. 34-3 at 7:38:50 pm.

Det. Lischinsky asked Corleto why he had previously changed his

last name and posed several additional questions about Corleto’s

activities on KIK, leading Corleto to make additional self-

incriminating statements (for example, Corleto discussed

knowingly soliciting sexual photographs from a twelve-year-old

girl and admitted to having similar interactions with a

“handful” of others). Doc. No. 34-3 at 7:38:50-7:43:19 pm.

SA DeMann later returned to the room and took his earlier

seat. Doc. No. 34-3 at 7:43:19 pm. Det. Lischinsky then moved to

stand in the doorway, partially obstructing it as he leaned

against the doorframe. Doc. No. 34-3 at 7:43:31 pm. Det.

Lischinsky remained in the doorway for approximately one minute

12 while Corleto discussed his name change and military service.

Doc. No. 34-3 at 7:43:31-7:44:20 pm. During this time, the

conversation was relatively lighthearted and both Det.

Lischinsky and SA Blackwood laughed. Doc. No. 34-3 at 7:44:03

pm. As Det. Lischinsky left the room, he closed the door behind

him. Doc. No. 34-3 at 7:44:20 pm.

The door remained closed with Corleto, SA DeMann, and SA

Blackwood in the room, for approximately five minutes. Doc. No.

34-3 at 7:44:20-7:49:13 pm. During this time, the conversation

centered around Corleto’s questions to the agents about what

would happen next. Doc. No. 34-3 at 7:44:20-7:49:13 pm. SA

DeMann once again told Corleto, “Like I said, you can leave at

any time. Any time you want to stop asking, or we want to stop

asking, that’s it. Go home. I’ll give you a ride.” Doc. No. 34-3

at 7:46:20-7:46:36 pm. Additionally, in response to SA DeMann

stating, “If there’s anything else you need to let us know,

please let us know,” Corleto replied, “It’s all right there on

the phone.” Doc. No. 34-3 at 7:48:32-7:48:40 pm. SA DeMann and

SA Blackwood then exited the room, leaving Corleto alone with

the door closed for approximately twenty minutes. Doc. No. 34-3

at 7:49:13-8:07:55 pm.

SA DeMann returned to the room with SA Laroe to explain the

next steps in the investigation and prepare to bring Corleto

home. Doc. No. 34-3 at 8:07:55-8:14:29 pm. During this

13 discussion, the door remained open. Doc. No. 34-3 at 8:07:55-

8:14:29 pm. SA DeMann again told Corleto, “Depending upon what

happens with me and the prosecutor, that could prompt an arrest

down the road. OK? So, just so you’re prepared for that, it’s

not happening tonight. You’re not - You're going home.” Doc. No.

34-3 at 8:08:50-8:09:00 pm. With that, the interview ended, and

SA DeMann offered to drive Corleto “to a friend’s house or a

family member’s” house, Tr. 46:6–9, but Corleto “said he wanted

to go home . . . .” Tr. 46:21–22. So, SA DeMann drove him home,

Tr. 46:24–25, again, with Corleto in the front seat, Tr. 47:2.

B. Motion to Suppress

On November 25, 2019, Corleto moved “to suppress all things

seized pursuant to a search warrant covering . . . the

residential property located at 315 Elmwood Drive, Hudson, New

Hampshire, as well as any vehicles registered to that address .

. . any items intended to be utilized as evidence, and evidence

derived” from the search. Mot. to Suppress Evid. Seized Pursuant

to Search Warrant and to Suppress Statements Made at Time of

Seizure and Thereafter with Incorporated Mem. of Law (“Motion to

Suppress”), Doc. No. 30 at 1. The motion included all electronic

devices seized during the execution of the warrant and all

statements made by the Corletos. Doc. No. 30 at 2. A hearing on

the motion was held on December 19, 2019.

14 Corleto has presented three grounds for suppressing a wide

range of evidence: two under the Fourth Amendment and one under

the Fifth Amendment. First, he argues that the warrant is

invalid because it fails to meet the Fourth Amendment’s nexus

and particularity requirements. Tr. 4:7–5:20; see also Doc. No.

30 at 4–10. Second, even if the warrant is valid, Corleto argues

that SA DeMann exceeded the scope of the warrant when he seized

Corleto’s iPhone. Tr. 6:1–7; see also Doc. No. 30 at 10.

Corleto’s Fifth Amendment argument centers on two sets of

statements: first, those made at his residence during the

execution of the search warrant, and second, those made at the

station immediately afterward. Tr. 8:6–14. He maintains that he

was in custody at all relevant times and should have been given

Miranda warnings, and so any statements he made were not

voluntarily given and must be suppressed as “fruit of the

poisonous tree.” Doc. No. 30 at 17 ¶¶ 18–19; 21 ¶ 25.

Objecting to Corleto’s motion, the government maintains

that the warrant was valid and that all searches and seizures

fell within the scope of the valid warrant. United States’s Obj.

to Def.’s Mot. to Suppress Evid., Doc. No. 34 at 1–2, 7–12. The

government also asserts that, even if the seizure of Corleto’s

iPhone exceeded the warrant’s scope, the seizure was still valid

because Corleto consented to handing it over to SA DeMann. Tr.

6:13–21; see also Doc. No. 34 at 12. Finally, the government

15 maintains that, because Corleto was never in custody, agents

were not required to read him his Miranda rights and any

statements Corleto gave were voluntary. Doc. No. 34 at 2, 13–15.

II. ANALYSIS

A. Fourth Amendment

The Fourth Amendment provides that “no Warrants shall

issue, but upon probable cause . . . and particularly describing

the place to be searched, and the persons or things to be

seized.” U.S. Const. amend. IV. Probable cause is a

“nontechnical conception” that relies on “common-sense

conclusions about human behavior” and “the factual and practical

considerations of everyday life on which reasonable and prudent

[people], not legal technicians, act.” Illinois v. Gates,

,

,

(1983)

(citations omitted). “Probable cause exists whenever the

circumstances alleged in a supporting affidavit, viewed as a

whole and from an objective vantage, suggest a ‘fair

probability’ that evidence of a crime will be found in the place

to be searched.” United States v. Clark,

(1st

Cir. 2012) (citing Gates,

). “All that is needed

is a ‘reasonable likelihood’ that incriminating evidence will

turn up during a proposed search.”

(citing Valente v.

Wallace,

(1st Cir. 2003)). “The inquiry is not

16 whether ‘the owner of the property is suspected of crime’ but

rather whether ‘there is reasonable cause to believe that the

specific things to be searched for and seized are located on the

property to which entry is sought.’” United States v. Roman,

(1st Cir. 2019) (quoting Zurcher v. Stanford Daily,

,

,

(1978)). In

determining whether such a reasonable likelihood exists, the

statements of a law enforcement agent about how persons engaging

in a particular form of criminal activity often serve as “a

factor” that the magistrate judge may “weigh in the balance.”

See United States v. Rivera,

(1st Cir. 2016)

(citing United States v. Hoffman,

(1st Cir.

1987)).

1. Validity of Warrant

Corleto challenges the validity of the search warrant on

two grounds. First, he alleges that SA DeMann’s affidavit does

not support a finding of probable cause that evidence of the

alleged offense would be found in the Chevy Equinox registered

to Ms. Corleto (the “nexus” argument). Next, he alleges that

there was not probable cause to support a search of all the

devices encompassed by the warrant’s broad definition of

“computer” and “records” (the “particularity” argument). For the

reasons that follow, neither argument provides grounds for

invalidating the warrant.

17 a. Standard of Review

A district court “must give ‘considerable deference to

reasonable inferences the issuing magistrate may have drawn’

from the facts set out in the affidavit supporting the . . .

application for the search warrant, reversing only if the

affidavit contained no ‘substantial basis for concluding that

probable cause existed.’” United States v. Gonzalez-Arias, ___

F.3d ___, No. 18-1085,

, at *2 (1st Cir. Dec. 20,

2019) (quoting United States v. Zayas-Diaz,

(1st Cir. 1996)). “In a doubtful or marginal case, the court

defers to the issuing magistrate’s determination of probable

cause.” United States v. Greenberg,

, 67 (1st Cir.

2002) (quoting United States v. Barnard,

, 92–93 (1st

Cir. 2002)).

b. The Nexus Argument

The analysis of the validity of a warrant can be divided

into two steps: inquiring whether there was probable cause to

establish “that (1) a crime has been committed — the

‘commission’ element, and (2) enumerated evidence of the offense

will be found at the place to be searched — the so-called

‘nexus’ element.” United States v. Feliz,

(1st

Cir. 1999) (citing Zayas-Diaz,

). In the nexus

inquiry, “common sense says that a connection with the search

site can be deduced ‘from the type of crime, the nature of the

18 items sought,’ plus ‘normal inferences as to where a criminal

would hide’ evidence of his crime.” Rivera,

(quoting Feliz,

); accord United States v. Wilder,

(1st Cir. 2008) (including law enforcement

“affidavit’s information about the habits of child pornography

collectors” in the probable cause analysis).

Corleto does not dispute that there was probable cause to

suggest that a crime had been committed. Tr. 4:3–4. Rather, he

argues that the agent’s affidavit did not provide probable cause

to suggest a reasonable likelihood that evidence of the crime

would be found in a vehicle registered to Ms. Corleto. Tr. 4:7–

15. It is not entirely clear whether the defendant objects to

the inclusion of any vehicles in the warrant, or merely that the

inclusion of Ms. Corleto’s vehicle was overbroad. Tr. 128:16–

134:10. Neither argument, however, provides grounds to

invalidate the warrant.

SA DeMann’s affidavit establishes an unambiguous link

between the alleged offender’s KIK username and a particular IP

address. Aff. in Support of a Compl. and Arrest Warrant, Doc.

No. 1-1 at 9. The affidavit links the IP address with a Comcast

account registered to Ms. Corleto at the defendant’s physical

address. Doc. No. 1-1 at 9. It also establishes that the target

used an iPhone to communicate with the UC. Finally, the

affidavit identifies two vehicles that are registered to that

19 physical address: a Ford F150 pickup registered to Corleto and a

Chevy Equinox registered to Ms. Corleto. Doc. No. 1-1 at 9. The

agent supplemented these factual links with this statement: “In

my training and experience, I know it is not uncommon for

individuals to keep [child pornography] in multiple locations

within their premises, including in outbuildings and motor

vehicles.” Doc. No. 1-1 at 14.

Taken together, the statements in the affidavit provide

more than enough evidence to justify the issuance of the search

warrant for Corleto’s residence and his and Ms. Corleto’s motor

vehicles. The chain connecting the KIK account to a Comcast IP

address and the IP address to Corleto’s residence could hardly

be clearer. See United States v. Grant,

(1st

Cir. 2000) (upholding the validity of a warrant to search the

defendant’s home based on parallel evidentiary chain). Because

at the time the warrant was issued it was not clear which

occupant of the Corleto’s residence used the suspect KIK

account, it was permissible for the warrant to authorize a

search of all of the occupants’ devices. See United States v.

McLellan,

, 213–14 (1st Cir. 2015) (upholding

validity of warrant to search electronic devices of three

roommates living in a single-family dwelling where evidence of

child pornography was linked to an IP address and “every

20 internet connection established from any of the occupants’

computers would trace back to the same IP address”).

The magistrate judge was also entitled to rely on SA

DeMann’s statements to support her probable cause determination.

See Rivera,

(“[T]he Federal Reporter is teeming

with First[ ]Circuit opinions . . . saying that ‘a law

enforcement officer’s training and experience may yield insights

that support a probable cause determination.’”) Specifically, SA

DeMann’s statement that it is not uncommon for users of child

pornography to keep their collections in motor vehicles is

consistent with common sense and supplies probable cause to

include the Corleto’s vehicles in the warrant. See United States

v. Clark, Crim. No. 10-62-P-S,

, at *12 (D. Me.

Oct. 27, 2010) (upholding the validity of a warrant to search

all vehicles registered to a family residence where there was

probable cause to believe the crime of animal cruelty had been

committed at that residence and the supporting affidavit alleged

that “live or dead animals or records related to animals might

have been housed in vehicles kept on the property”), adopted by

(D. Me. Dec. 2, 2010), aff’d on other grounds,

(1st Cir. 2012); United States v. Wilder, Crim. No.

04-10217-GAO,

, at *5 (D. Mass. May 6, 2005)

(upholding validity of warrant to search residence and vehicle

registered thereto where there was probable cause to believe

21 defendant had accessed child pornography in the residence and

the supporting affidavit provided details about the general

habits of child pornography collectors), aff’d on other grounds,

(1st Cir. 2008). There was, therefore, a reasonable

likelihood that the iPhone used to commit the alleged offense,

or some other electronic device containing evidence of the

offense, would be found in Ms. Corleto’s Equinox.

C. The Particularity Argument

“The Fourth Amendment . . . does not set forth some general

‘particularity requirement.’ It specifies only two matters that

must be ‘particularly describe[ed]’ in the warrant: ‘the place

to be searched’ and ‘the person or things to be seized.’” United

States v. Grubbs,

,

,

(2006) (alteration in original). The First Circuit has

recognized two categories of cases on “particularity,” cases

concerned with “whether the warrant supplies enough information

to guide and control the agent’s judgment in selecting what to

take,” United States v. Upham,

(1st Cir. 1999)

(citation omitted), and those concerned with “whether the

category as specified is too broad in the sense that it includes

items that should not be seized,”

(citation omitted).

Corleto’s argument that the warrant’s definitions of “computer”

and “records” are overbroad falls into the latter category and

22 is precisely the argument that the First Circuit rejected in

United States v. Upham.

The warrant in Upham authorized the seizure of “[a]ny and

all computer software and hardware, . . . computer disks, [and]

disk drives” to search for and seize “[a]ny and all visual

depictions, in any format or media, of minors engaging in

sexually explicit conduct . . . .”

(alteration in original).

The court observed that the seizure and off-site search of this

broad category of items was

[a]s a practical matter . . . about the narrowest definable search and seizure reasonably likely to obtain the images. A sufficient chance of finding some needles in the computer haystack was established by the probable-cause showing in the warrant application; and a search of a computer and co-located disks is not inherently more intrusive than the physical search of an entire house for a weapon or drugs.

To the extent that the warrant in this case differs from the

warrant in Upham, it does so by defining “computer” and

“records” in greater detail and includes, in its definition,

items such as flash drives, smartphones, and tablets, which

either did not exist or were not in common use when the Upham

warrant was issued in 1997. While the warrant in this case

enumerates more searchable devices than the Upham warrant, it is

still (considering technological developments of the past two

decades) “about the narrowest definable search and seizure

reasonably likely to obtain the images.” See

Other district

23 courts in this circuit have applied Upham and reached the same

conclusion. See, e.g., United States v. Farlow, Crim. No. 09-38-

B-W,

, at *7 (D. Me. Sept. 29, 2009) (“In the

First Circuit, Upham remains the law.”), aff’d,

(1st

Cir. 2012); United States v. Crespo-Rios,

,

202–03 (D.P.R. 2009) (examining a warrant authorizing the search

of “computer equipment, digital, and magnetic storage devices,

and other digital media” and concluding that “[s]ince the

warrant suggested that the digital media to be seized was

related to a specific criminal activity, it cannot be classified

as a generic classification that would go against the

particularity requirement of the Fourth Amendment”), rev’d on

other grounds,

(1st Cir. 2011); United States v.

Habershaw, No. CR. 01-10195-PBS,

, at *7 (D.

Mass. May 13, 2002) (upholding, under Upham, validity of warrant

authorizing search of “any and all computer hardware, software,

files, data, photographs, to include but not limited to; all

floppy disks, hard drives, photo imaging drives, for any and all

computer directories, subdirectories, files, information,

records, data contained on all floppy disks, hard drives, data

banks and all other magnetic, or optical computer media”).

Corleto has provided no authority suggesting that I should

deviate from Upham. Because I see no reason to do so, I conclude

24 that the warrant was sufficiently particularized and valid under

the Fourth Amendment. 11

2. Seizure of iPhone from Corleto

Corleto next argues that SA DeMann exceeded the warrant’s

scope when he seized the iPhone from Corleto’s hand as he

emerged from the vehicle. Corleto bases his argument on case law

suggesting that a warrant authorizing a search of a particular

place ordinarily does not authorize the search of persons found

at the place to be searched. See Ybarra v. Illinois,

, 94–95,

,

(1979) (holding that

a search warrant for a tavern and its bartender did not extend

to a search of one of the bar’s patrons present at the time the

warrant was executed, even if “the police have a ‘reasonable

belief’ that such persons . . . ‘may be concealing or carrying

away the contraband’”); United States v. Di Re,

,

11Even if I were to find the warrant invalid, the seizure of Corleto’s iPhone would still be proper under the Leon good faith exception. United States v. Leon,

,

,

(1984) (holding that exclusion does “not further the ends of the exclusionary rule . . . when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope”). Corleto’s iPhone plainly is a seizable device under the warrant. Moreover, the warrant is neither “so lacking in indicia of probable cause as to render official belief in its existence unreasonable,” nor “so facially deficient . . . that the executing officers cannot presume it to be valid.” United States v. Woodbury,

(1st Cir. 2007) (internal quotation marks omitted) (quoting United States v. Owens,

(1st Cir. 1999)).

25 587,

,

(1948) (noting that a search

warrant for a home or a car does not extend to a search of all

persons found in the home or car).

Although I accept the case law Corleto cites, I am

ultimately unpersuaded by his argument for two independent

reasons. First, the seizure of the iPhone was lawful because SA

DeMann was able to determine that Corleto was holding an item

the warrant authorized him to seize without having to conduct a

search of his person. Thus, the case law he cites is simply

inapplicable. Alternatively, even if SA DeMann’s actions could

be viewed as a search of Corleto’s person, the search was the

result of a valid consent to search because Corleto produced the

phone in response to SA DeMann’s request, and the totality of

relevant circumstances makes it clear that his consent was

freely given. See United States v. Coombs,

(1st Cir. 2017) (describing consent to search standard).

B. Fifth Amendment

Corleto also contends that his statements to SA DeMann and

the other agents, both at his home and at the Hudson Police

Station, should be suppressed because he was not administered

Miranda warnings. There is no dispute that Miranda warnings were

not administered. The government contends, however, that

warnings were not required under the circumstances in which

Corleto made the statements in question.

26 The Fifth Amendment to the United States Constitution

provides that “[n]o person . . . shall be compelled in any

criminal case to be a witness against himself . . . .” U.S.

Const. amend. V. Based on this constitutional prohibition on

compelled self-incrimination, “‘[t]he Supreme Court developed

the Miranda rules as a prophylactic measure to dissipate the

coercion inherent in the custodial interrogation setting, with a

goal of ensuring that any statements made by a suspect are

‘truly the product of free choice’ and consistent with the Fifth

Amendment . . . .” United States v. Molina-Gomez,

(1st Cir. 2015) (internal quotation marks omitted) (quoting

United States v. Vazquez,

(1st Cir. 1988)).

“It is well established that Miranda warnings must be

communicated to a suspect before he is subjected to ‘custodial

interrogation.’” United States v. Li,

, 83 (1st Cir.

2000) (citing United States v. Ventura,

(1st

Cir. 1996)). This means that “[b]oth ‘custody’ and

‘interrogation’ must be present to require Miranda warnings.”

Molina-Gomez,

.

As to the “interrogation” prong, Miranda does not cover

“[g]eneral on-the-scene questioning as to facts surrounding a

crime or other general questioning of citizens in the fact-

finding process . . . .” Miranda v. Arizona,

,

,

(1966). Moreover,

27 “[v]olunteered statements of any kind are not barred . . . .”

. Thus, no interrogation occurs “[i]f an individual

simply walks into a police station and announces that he just

robbed a bank . . . .” United States v. Diaz-Rosado,

(1st Cir. 2017) (citing Miranda,

).

“Miranda safeguards come into play whenever a person in custody

is subjected to either express questioning or its functional

equivalent.” Rhode Island v. Innis,

, 300–01,

,

(1980). “The ‘functional equivalent’ of

questioning is ‘any words or action on the part of the police .

. . that the police should know are reasonably likely to elicit

an incriminating response from the suspect.’” United States v.

Davis,

(1st Cir. 2014) (omission in original)

(quoting Innis,

). “[T]he mere fact that a police

officer may be aware that there is a possibility that a suspect

may make an incriminating statement is insufficient to establish

the functional equivalent of interrogation.”

(alteration in

original) (internal quotation marks omitted) (quoting United

States v. Taylor,

(1st Cir. 1993)).

The “custody” prong is satisfied when an individual is

“taken into custody or otherwise deprived of his freedom of

action in any significant way.” Stansbury v. California,

,

,

(1994) (per

curiam) (internal quotation marks omitted) (quoting Miranda, 384

28 U.S. at 444). “Determinations about Miranda custody begin by

examining all of the ‘circumstances surrounding the

interrogation’ and asking whether ‘a reasonable person [would]

have felt he or she was not at liberty to terminate the

interrogation and leave.’” United States v. Ellison,

(1st Cir. 2010) (alteration in original) (quoting

Thompson v. Keohane,

,

,

(1995)). The First Circuit Court of Appeals has

identified four factors that, among others, guide whether a set

of circumstances amounts to custody: “whether the suspect was

questioned 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.

Hughes,

(1st Cir. 2011) (internal quotation

marks omitted) (quoting Ventura,

).

1. Statements at the Scene

As an initial matter, Corleto’s statement that what the

agents were looking for was “all on [his] phone” is clearly a

volunteered statement that is not subject to Miranda. By

Corleto’s own admission, this statement was not made in response

to any question by SA DeMann or any other agent. Tr. 117:13-19.

In fact, Corleto testified that he beckoned SA DeMann over to

him in order to make this statement. Tr. 117:5-16. This

29 statement is plainly admissible as it is not the product of

interrogation.

Because Corleto’s motion is otherwise imprecise as to what

statements at his home he seeks to suppress, it is not clear

whether any additional statements made at his residence were the

product of an interrogation. It is, however, quite clear that

Corleto was not in custody. Corleto’s own driveway, parking lot,

and home, are clearly “familiar or at least neutral

surroundings.” Hughes,

. Although there were

roughly twelve agents present, Tr. 60:16-19, nothing in the

record suggests that anyone other than SA DeMann spoke with

Corleto at this time. Corleto was even left alone at times. Tr.

117:1-3. He was never in handcuffs, nor did any agent display a

weapon at any point. Tr. 119:19-22. He was told, “shortly after

[the agents] were searching through the vehicle,” that he was

not under arrest. Tr. 114:14-115:12. Corleto was not in custody

during any conversations he had with SA DeMann at the car or in

his home. Any statements he made at that point are, therefore,

not suppressible for a failure to administer Miranda warnings.

2. Statements at the Station

Although Corleto was no longer on familiar or neutral

ground for his interview at the police station, the evidence

still clearly shows that he was not in custody for Miranda

purposes. Corleto was driven to the station in the front seat of

30 SA DeMann’s car, and was not in handcuffs or locked in. Despite

Corleto’s testimony that throughout his entire interaction with

law enforcement, he was only told once (as the vehicle search

was conducted) that he was not under arrest, the video of the

interview shows that he was told on at least four additional

occasions that he was not under arrest, not in custody, and free

to leave at any time. See Doc. No. 34-3 at 7:14:45–7:15:05 pm,

7:31:30 pm, 7:46:20-7:46:36 pm, 8:08:50-8:09:00 pm. Corleto was

not in handcuffs or otherwise restrained. The door remained open

and no agent obstructed Corleto’s path to the door throughout

the vast majority of questioning by the agents. Although there

were, at times, three agents in the room, this never occurred

until after Corleto made the self-incriminating statements he

seeks to suppress. When the interview was over, SA DeMann drove

him home. Taken together, these factors clearly demonstrate that

Corleto was not in custody for Miranda purposes during this

interview. See United States v. Hinkley,

(1st

Cir. 2015) (holding that defendant was not in custody where he

“arrived at police station voluntarily[,] . . . . was

interviewed by only one police officer[,]” and was told twice

during “the interview that he was ‘free to leave’”). The cordial

nature and relatively brief duration of the interview also

support the conclusion that this interrogation was non-

custodial. See United States v. Guerrier,

(1st

31 Cir. 2011) (holding that suspect was not in custody where the

atmosphere was “relatively calm and nonthreatening” and the

interview lasted “a relatively short time.”). Whether Corleto

subjectively believed he was free to leave is immaterial, as the

determination of whether custody exists “depends on the

objective circumstances of the interrogation, not on the

subjective views harbored by . . . the person being questioned.”

Stansbury,

. The interrogation of Corleto was

objectively not custodial, and the agents were under no

obligation to administer Miranda warnings to him. That they did

not do so is, therefore, not a reason to suppress Corleto’s

statements.

III. CONCLUSION

For the reasons explained above, I deny the motion to

suppress (Doc. No. 30).

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

January 23, 2020

cc: Elliot M. Weinstein, Esq. Mark G. Miliotis, Esq. Paul J. Garrity, Esq. Anna Z. Krasinski, Esq.

32