Eighth Circuit Rules Suspect Not in Custody When He Confessed to Child Porn Crimes – U.S. v. Perrin

November 14, 2011 by David S. Seltzer

I often hear from clients who felt compelled to answer questions or allow searches by law enforcement officers before they were legally required to. This is a common mistake for people accused of crimes, and it’s one the police love because they can exploit it to get an easy confession or conviction. It is basically never in your best interests to talk to the police; if they believe you committed a crime, they will use everything you say to bolster that theory. That’s why your best choice is always to stay quiet until you have a Fort Lauderdale cyber crime defense attorney by your side. That could have helped the defendant in United States v. Perrin, a recent Eighth U.S. Circuit Court of Appeals case involving a child pornography possession conviction for Walter Perrin of Sioux Falls, South Dakota.

Perrin, who is of below-average intelligence and had been in special education classes, shared a home with six other people, including his mother, and multiple computers. State authorities traced child pornography downloads to the home, and federal agents got a warrant to raid the home. They stopped one resident on the way to work and had him sit in the living room with Perrin and three other people, while officers “swept” the house. An agent told the residents they were free to leave, but must stay in the living room if they stayed in the house; and that he would ask questions but no one had to answer. During questioning, Perrin showed signs of nervousness, so the agent took him into his own bedroom for private questioning. The agent did not repeat the admonition that Perrin did not have to answer questions and was free to go. A detective searched the room while they talked. The Eighth said the agent’s gun was visible, but he did not raise his voice, threaten or make promises.

Nonetheless, Perrin confessed to possessing child pornography during this interview. At trial, he moved to suppress this confession, arguing that he was in custody at the time but had not been Mirandized, as required. The trial court denied this motion and Perrin pleaded guilty, but reserved his right to appeal the suppression issue. If Perrin is right, the Eighth said, the confession must be thrown out as tainted. However, the court found that Perrin was not in custody, legally speaking, at the time. When Perrin confessed, he had been advised about ten minutes earlier that he didn’t have to answer any questions and was free to leave the house. Perrin voluntarily agreed with the agent’s request go to the bedroom, the court said. Perrin’s bedroom door was not shut and no evidence suggests the officers were blocking him from leaving. Perrin emphasized that his intelligence was below average, but the court said this was undercut by his apparent lack of problems answering the questions. Thus, it upheld his conviction.

As a south Florida child pornography criminal defense lawyer, I wonder whether another court would have looked more deeply into the issue of Perrin’s intelligence. Knowing how to answer questions is a low threshold for mental competence. The opinion notes that Perrin had been in special education all through school and had held jobs as a dishwasher and fry cook at a restaurant. Both the jobs and the schooling would have given Perrin practice in answering questions — but it’s doubtful that they taught him much about interacting with the police. The test for whether defendants were in custody is whether reasonable people in their position would have felt free to leave. As a Miami child pornography criminal defense attorney, I’d be interested in a closer examination of Perrin’s circumstances.

Seltzer Law, P.A., represents clients across the United States who are accused of serious online or technology crimes. Our lead attorney, David Seltzer, is an experienced former cyber crime prosecutor. To set up a free consultation or learn more, call anytime at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

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