Seventh Circuit Affirms Denial of Motion of Suppress Evidence in Child Porn Case – U.S. v. Pelletier

November 27, 2012 by David S. Seltzer

Like all criminal defense attorneys, I frequently tell my clients to say as little as possible to the police. Even when you are not guilty and have nothing to hide, talking to the police may not benefit you because the police’s job is to make an arrest; anything you say will likely be evaluated for use as proof that you are guilty. That’s why the smartest thing to do is almost always to politely refuse to talk without your attorney present. A lawyer may still be able to help later in the case, but he or she can’t take back damaging statements made in the beginning—as the defendant found in U.S. v. Pelletier. Dominick Pelletier was at a job interview with the FBI when he admitted to possessing child pornography. His motion to later suppress that evidence failed, the Seventh U.S. Circuit Court of Appeals said, because Pelletier was not under coercion and would have been searched anyway.

At his job interview with the FBI, Pelletier signed a consent form for the polygraph test, explaining that it was voluntary. The room was unlocked and the agent doing the interview was unarmed. Pelletier failed the test. At the post-test interview, Pelletier admitted that he had pictures of naked children on his computer at home, though he said it was for research for a graduate school project; he produced a written statement to this effect. The agent invited another agent from the cyber squad to join them, leading Pelletier to believe that this was part of the job interview. In the ensuing discussion, Pelletier admitted to having child porn on his computer but refused twice to consent to a search, though he consented after learning there would soon be a search warrant. The search turned up more than 600 illegal images and he was eventually charged with possession of child pornography. At trial, he unsuccessfully moved to suppress his statements and the search, arguing that he was not Mirandized and consent was involuntary.

After a conditional guilty plea and sentencing, Pelletier repeated his arguments on appeal. The Seventh Circuit disagreed. Miranda warnings are not required when the defendant is not “in custody.” In this case, the appeals court said, the situation did not meet the high standard required to show custody because Pelletier was not held against his will. Though he may have felt it unwise to leave while being “interviewed for a job,” the court said, that’s not enough to make the situation “inherently coercive.” Furthermore, because Pelletier came to the building for a job interview, it would not be reasonable for him to feel coerced by meeting an armed agent or needing an escort to find his way out. The Seventh also dismissed Pelletier’s argument that consent to search his computer was coerced. Even assuming the consent was involuntary, the court said, the computer would have been searched anyway because the agents would have obtained a search warrant based on his statements. Thus, the court affirmed his conviction.

As I wrote above, it’s not a good idea to speak to the police, especially if you are disclosing information that may incriminate you. Though it may seem smart to explain why the information is not actually incriminating, as this case shows, it usually just gives them a reason to suspect you and search you. This is especially true in cases like child pornography crimes, because these crimes are so emotional and so harshly punished. And because they are cyber crimes, it’s vital to have an advocate who understands how the law treats technology and technological crimes.

Seltzer Law, P.A., focuses its practice on defense of criminal charges involving the Internet and technology. Lead attorney David Seltzer is a former cyber crime prosecutor in Miami-Dade County and understands how prosecutors build cyber crime cases. To learn more or set up a free confidential consultation, call us toll-free, 24 hours a day and seven days a week, at 1-888-THE-DEFENSE (1-888-843-3333) or send us an email.

Similar blog posts:

Defendant May Not Be Convicted for Both Receipt and Possession, Eighth Circuit Rules – U.S. v. Huether

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

Missouri Supreme Court Declines to Suppress Evidence in Solicitation of a Minor Case – State v. Faruqi