United States v. Fonseca

UNITED STATES OF AMERICA v. CARMELO FONSECA JR.

No. 19-cr-00936

United States District Court, N.D. Illinois, Eastern Division

April 15, 2022

MEMORANDUM OPINION AND ORDER

ANDREA R. WOOD, UNITED STATES DISTRICT JUDGE

Early one morning in June 2019, Defendant Carmelo Fonseca Jr. was asleep in his bedroom when a team of federal and local law enforcement officers executed a search warrant at the apartment where Fonseca lived with members of his family. After informing Fonseca that he was not under arrest and was free to leave, officers interviewed Fonseca-first in the kitchen, then outside by the building's parking lot, and finally, in a police vehicle. The entire interview lasted a little under two and a half hours. Now, Fonseca seeks suppression of the statements he made to officers during that interview, arguing that the officers failed to provide Miranda warnings in violation of the Fifth Amendment. (Dkt. No. 66.) Additionally, Fonseca asks the Court to quash the search warrant for his home and suppress all evidence seized from its execution, contending that the warrant incorrectly described where the apartment was located. (Dkt. No. 72.) For the reasons stated below, both motions are denied.

BACKGROUND

In considering Fonseca's motions, the Court has relied upon evidence presented at an in-person evidentiary hearing held on October 13, 2021. At the evidentiary hearing, the Government called two witnesses: (1) Federal Bureau of Investigation (“FBI”) Special Agent Shannon McDaniel and (2) FBI Special Agent Kassandra Hulliberger. Fonseca called one witness: Officer Veronica Rohman, who at the relevant time was a detective with the Elk Grove Police Department. Additionally, the Government submitted into the record copies of the application and affidavit for a search warrant (Dkt. No. 74-1) and the consent to assume online identity authorization form Fonseca signed at the end of his interview. (Dkt. No. 74-2.) The following summarizes the evidence relevant to the issues presently before the Court.

On May 29, 2019, a federal magistrate judge issued a warrant to search “the condominium unit located at 107 Boardwalk Street, Unit 1W, Elk Grove Village, Illinois, further described in Attachment A.” (Gov.'s Resp. to Mot to Quash, Ex. 1, Search Warrant Application at 1, Dkt. No 74-1.) Attachment A includes a description of the premises as well as two photos, one showing the main entrance and one of the exterior. (Search Warrant Application at Attach. A.) The description states:

The Subject Premises is the condominium unit with the address 107 Boardwalk Street, Unit 1W, Elk Grove Village, Illinois. The building, depicted in the images below, is a three-level brick structure. The Subject Premises is a unit located on the lower level, at the west end of the building.

(Id.) In the affidavit supporting the search warrant, Agent McDaniel explains that an individual used an IP address owned by Comcast Communications to send the messages and images subject to the investigation. (Id. at 7.) According to Comcast records, the user of the IP address at the relevant times was the Subject Subscriber, with a service address of the Subject Premises. (Id.) The affidavit itself does not list the name of the Subject Subscriber, although Agent McDaniel testified at the evidentiary hearing that the Comcast records list “Carmelo Fonseca” as the subject subscriber.^[1] Before requesting the search warrant Agent McDaniel conducted surveillance of the Subject Premises. (Id. at 8.) Through that surveillance, she confirmed that mail had been delivered to the Subject Premises for an individual with the last name “Fonseca” and observed that the building entry had a buzzer labeled “Fonseca.” (Id.)

On the morning of June 4, 2019, a team composed of approximately eleven FBI agents and Elk Grove Village police officers arrived at 107 Boardwalk Street. Agent McDaniel and Agent Hulliberger were dressed in plain clothes but wore FBI vests and had their duty weapons holstered on their duty belts. Other officers were dressed in law enforcement gear. To gain access to the building (and thus be able to knock on Unit 1W's door), Agent McDaniel rang all of the buzzers with the exception of the one labeled “Fonseca.” A resident from the lower level of the building answered the door and directed the agents to the middle floor, where Unit 1W was located. At 6:03 a.m., the agents knocked on Unit 1W's door. Fonseca's sister opened the door and let the team in. Fonseca was asleep in his bedroom. Fonseca was escorted from his bedroom to the kitchen.

Approximately seven minutes after entering Unit 1W, at around 6:10 a.m., Agent McDaniel began to interview Fonseca in the kitchen while the rest of the team searched the house. Agent Hulliberger and Officer Rohman were present for the questioning. Agent McDaniel testified that they began the interview by telling Fonseca that the officers were there to execute a search warrant for the premises, they would like to speak to him about the basis for the search warrant, and he was not under any obligation to speak with them. Agent McDaniel could not recall if she ever informed Fonseca that he was not under arrest, but Agent Hulliberger testified that Fonseca was told that he was not under arrest and that he was free to leave.^[2] Agent McDaniel took the lead on the interrogation-throughout the questioning, she kept the tone friendly and conversational. Agent Hulliberger testified that at no point was Agent McDaniel threatening or aggressive and that, in fact, Agent McDaniel was patient with Fonseca.

Fonseca, Agent McDaniel, Agent Hulliberger, and Officer Rohman started the interview in the kitchen. All three witnesses agreed that the kitchen was very small, with Agent Hulliberger explaining that there were only two chairs and no table. Fonseca and Agent McDaniel were both seated, while Agent Hulliberger and Officer Rohman were standing nearby. While Agent McDaniel was questioning Fonseca, he asked for water. In response, an officer brought over a glass of water-Fonseca did not get it himself. According to Agent Hulliberger, Fonseca would not have been free to get his own glass. Over the course of the interview, Fonseca was eventually informed about the nature of the investigation and the basis for the search warrant. At that point, Fonseca indicated concern that his nephew would overhear discussions of child pornography and child sex abuse and asked if the interview could be moved from the apartment. The questioning agents agreed, and another officer brought over shoes for Fonseca to wear. According to Agent Hulliberger, for safety reasons, the FBI would not tell Fonseca to go to his bedroom and to get his own shoes but would, instead, ask him where the shoes are located and bring them to him. The agents then moved outside, going out the back entrance of the building, near the parking lot to continue the interview. After a few minutes, Fonseca again asked if they could move somewhere more private, as other people were in the area. The officers again agreed and moved the interview to Agent Hulliberger's vehicle, a Chevy Impala issued by the FBI.

Agent Hulliberger's car was a standard four-door sedan, with no barrier, cage, or other modification for law enforcement use. Fonseca sat in the back seat next to Agent McDaniel (who continued to take the lead in the interview) and behind Agent Hulliberger, who was seated in the driver's seat. Officer Rohman sat next to Agent Hulliberger in the front passenger seat. The car engine was running during the interview and the windows were up, with the air conditioning on. Fonseca claims in in his briefing that the doors of the car were locked during the interview, although none of the witnesses at the evidentiary hearing could clearly recall whether that was the case.^[3]

During the interview, Fonseca answered other questions about his social media and internet use, eventually admitting to receiving and distributing some pictures. The tone throughout the interview was conversational. In his briefing, Fonseca claims that when he would ask the officers if they were done questioning him, they would reply that they still had more questions. There is no testimony to support this assertion, however, and Agent McDaniel actually testified that Fonseca never asked “are we done here.” Additionally, both she and Agent Hulliberger testified that they did not recall Fonseca ever asking to end the interview. In fact, according to Agent McDaniel, the interview was terminated once Fonseca decided that he wished to end it.

At 8:25 a.m., towards the end of the interview, Fonseca signed a form authorizing the agents to assume his online identity. Fonseca then opened the door and exited the vehicle on his own accord, heading back to his apartment. By that point, the other officers had concluded their search. The law enforcement team left the premises at 8:36 a.m. Months later, on December 18, 2019, Fonseca was arrested and Mirandized.

DISCUSSION

I. Motion to Quash

Fonseca first moves to quash the search warrant on the basis that it failed to satisfy the particularity requirement of the Fourth Amendment. The Fourth Amendment requires that a search warrant “particularly describ[e] the place to be searched, and the persons or things to be seized.” U.S. Const. Amend. IV. The “manifest purpose” of the particularity requirement is to prevent “the wide-ranging exploratory searches” the constitutional framers feared. Maryland v. Garrison, 480 U.S. 79, 84 (1987). Accordingly, this requirement “is satisfied if ‘the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.'” United States v. McMillian, 786 F.3d 630, 639 (7th Cir. 2015) (quoting ...