United States v. Morgan

UNITED STATES OF AMERICA, v. JAMES MORGAN, Defendant.

CRIMINAL ACTION NO. 12-23

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

November 13, 2012

OPINION

Slomsky, J.

I. INTRODUCTION

In the fall of 2011, an adult male from Pennsylvania had sexually explicit conversations over the Internet with an undercover law enforcement agent posing as a thirteen year old girl from Texas. The Federal Bureau of Investigation ("FBI") traced the source of these communications to a home in Hatfield, Pennsylvania occupied by Defendant James Morgan. On December 20, 2011, the FBI executed a search warrant at the residence and interviewed Defendant at the nearby Costco where he was working. During the interview, he confessed to the illegal activity and gave federal agents consent to search his e-mail account. He was not advised of his Miranda rights prior to being interviewed. On January 5, 2012, despite already having received the consent to search, the FBI obtained a warrant for the e-mail account.

Presently before the Court is Defendant's Motion to Suppress the statement he gave to federal agents allegedly taken in violation of his Fifth Amendment rights. (Doc. No. 22.) He also filed a Motion to Suppress evidence seized from the search of his home and e-mail account claiming that the search warrants amount to general warrants and that the probable cause to support the search of his home was stale. (Doc. No. 23.) Moreover, to the extent the warrant for his e-mail account relied on statements he made during his interview with the agents, which hecontends was conducted in violation of his Miranda rights, the evidence seized from the e-mail account should be suppressed as fruit of the poisonous tree. For reasons that follow, the Court will deny Defendant's suppression motions. ¹

II. FACTUAL BACKGROUND

On December 20, 2011, Defendant James Morgan was arrested and charged in a Criminal Complaint with transporting twenty-three images of child pornography in interstate commerce in violation of 18 U.S.C. § 2252(a)(1), and using the Internet in an attempt to engage in sexual activity with a minor in violation of 18 U.S.C. § 2422(b).² (Doc. No. 1 at 1.) The following is a summary of the facts set forth in FBI Agent James Zajac's supporting affidavit to search Defendant's residence.

On September 14, 2011, an undercover employee ("UCE") working for the Somervell County Sheriff's Office in Glen Rose, Texas, logged into a Yahoo chat room posing as a thirteen year old female. (Doc. No. 23-1 at 18.) In the late afternoon, a chat conversation took place between the UCE and Yahoo user "WOOK_INKY101." (Id.) The UCE identified herself as athirteen year old female from Glen Rose, Texas; WOOK_INKY101 said he was a dad from Pennsylvania. (Id.) After introductions, WOOK_INKY101 turned on his webcam, took off his pants, and proceeded to masturbate for thirty minutes while chatting with the UCE. (Id.) During their conversation, WOOK_INKY1001 made several sexually explicit comments. (Id. at 19.) WOOK_INKY101 also sent the UCE fifteen images that appeared to be child pornography. (Id. at 18-19.)

Over the next several months, similar conversations took place in the Yahoo chat room between WOOK_INKY101 and the UCE. WOOK_INKY101 sent the UCE six more images and two videos that appeared to be child pornography on September 16, September 19, October 3, and October 20, 2011. (Id. at 19-22.) The webcam transmissions of masturbation were repeated on September 19, October 3, and October 17, 2011. (Id. at 20-21.) WOOK_INKY101 made numerous sexually graphic comments to the UCE on September 16, September 19, October 3, October 17, October 20, November 10, November 22, and December 2, 2011. Id. at 19-22.) Included among the many conversations were these statements from WOOK_INKY101: "so would u really like to meet in real life," "so i can take a road trip," "but you have to really be ready to learn about sex," and "would u go naked with me on cam." (Id. at 19-20.)

In an effort to identify WOOK_INKY101, a federal grand jury subpoena was issued to Yahoo. (Id. at 24.) The results showed that WOOK_INKY101 was connected to an IP address provided by Verizon. (Id.) A subpoena was then issued to Verizon, which identified the subscriber as James A. Morgan, 474 Edgewood Drive, Hatfield Boro, PA 19440. (Id.) The U.S. Postal Service confirmed that a James Morgan was currently receiving mail at the address. (Id.) Based upon this information, a federal search warrant was issued for the Hatfield residence on December 16, 2011 by U.S. Magistrate Judge Jacob P. Hart. (Id. at 1.)

The search warrant affidavit, in addition to the investigative facts noted above, contained a three page introduction: "Background Regarding Computers, The Internet, and E-Mail," which stated, among other things, the following:

a. Computers and computer technology have revolutionized the way in which child pornography is produced, distributed, and utilized. . . .

. . . .

b. The development of computers has added to the methods used by child pornography collectors to interact with and sexually exploit children. Computers serve four functions in connection with child pornography. These are production, communication, distribution, and storage.

. . . .

d. The computer's ability to store images in digital form makes the computer itself an ideal repository for child pornography. The size of the electronic storage media (commonly referred to as the hard drive) used in home computers has grown tremendously within the last several years. These drives can store hundreds of thousands of images at very high resolution.

. . . .

f. Collectors and distributors of child pornography also use online resources to retrieve and store child pornography, including services offered by Internet Portals such as Yahoo! and Hotmail, among others. The online services allow a user to set up an account with a remote computing service that provides e-mail services as well as electronic storage of computer files in any variety of formats. A user can set up an online storage account from any computer with access to the Internet. Even in cases where online storage is used, however, evidence of child pornography can be found on the user's computer in most cases.

g. As is the case with most digital technology, communications by way of computer can be saved or stored on the computer used for these purposes. Storing this information can be intentional, i.e., by saving an e-mail as a file on the computer or saving the location of one's favorite websites in, for example, "bookmarked" files. Digital information can also be retained unintentionally, e.g., traces of the path of an electronic communication may be automatically stored in many places (e.g., temporary files or ISP client software, among others). In addition to electronic communications, a computer user's Internet activities generally leave traces or "footprints" in the web cache and history files of the browser used. A forensic examiner often can recoverevidence suggesting whether a computer contains peer to peer software, when the computer was sharing files, and some of the files which were upload or downloaded. Such information is often maintained indefinitely until overwritten by other data.

(Id. at 13-15.) The affidavit also contained four pages describing "Characteristics of Child Pornography Collector[s]," which included citations to social science publications and the observation that the "majority of individuals who collect child pornography rarely, if ever, dispose of their sexually explicit materials and may go to great lengths to conceal and protect their collection of illicit materials from discovery, theft, and damage." (Id. at 17.) Agent Zajac also provided extensive detail on the "Specifics of Search and Seizure of Computer Systems," the FBI's "Search Methodology To Be Employed," and its "Ability to Retrieve Deleted Files." (Id. at 25-28.) Based on all this information, Magistrate Judge Hart issued the warrant for Defendant's Hatfield residence, which authorized the seizure of numerous computer and computer-related items in the search for evidence of child pornography. (Id. at 1, 31-33.)

On December 20, 2011, the FBI executed the search warrant at 474 Edgewood Drive, Hatfield, Pennsylvania.³ Nine FBI agents, including Agent Zajac, knocked on the door of the Hatfield house a little after 6 a.m. (Doc. No. 39 at 21, 51.) Defendant Morgan's mother, Emma Morgan, answered the door and told the agents that her son was already at work at a nearby Costco warehouse. (Id. at 22.) Agents then began a search of the residence with a brief walk-through of the entire house. (Id.) During the walk-through, Agent Zajac went into an upstairs bedroom that was similar in shape and decor to the one he had seen in the WOOK_INKY101webcam videos. (Id. at 22-23.) Not long after the search began, he left the site in an attempt to interview Defendant at Costco. (Id. at 23-24.)

Agents Zajac, Michael Dzielak, and Michael Ruibal drove to Costco in North Wales. (Id. at 24.) They told the first employee they met, "We're with the FBI. Does Jim Morgan work here? We'd like to speak with him." (Id. at 25, 39.) The agents were dressed in normal street clothes. (Id.) An assistant manager was then sent to help them. Again, Agent Zajac said "We're with the FBI. We'd like to speak to Jim Morgan, if — if — if he's here today." (Id. at 26.) Neither Costco employee was told why the FBI was interested in talking to Defendant Morgan. (Id. at 26.)

The assistant manager proceeded to lead the agents to a room near the auto shop. (Id. at 26.) The room had two unlocked doors, one in front and one in back. (Id. at 27, 30.) The agents were left alone in the room while the assistant manager went to retrieve Defendant. (Id.) Agent Zajac described his initial encounter with Defendant as follows:⁴

Agent: Immediately, Mr. Morgan referenced, you know, "It's the FBI. It must be important if the FBI is here."

AUSA: Can you

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