Reply Brief – Child Pornography
SUMMARY OF THE ARGUMENT
Issue I – The Government incorrectly claims that the independent source doctrine mandates a remand for additional fact finding on the question of whether Detective E.(the officer investigating the Appellant for child pornography) “would have” sought a search warrant absent his knowledge of the fruit of the illegal search. This claim is barred, as waived. Additionally, it is an impossibility, is factually incorrect, and an inaccurate statement of the law. Detective E. is deceased. Additionally, since the undisputed evidence is that the agents took no action to seek the warrant until consent to search was withdrawn (which prompted the decision to seek the warrant), some two months [after the seizure of the Appellant’s computers, no steps to obtain a search warrant had been taken at the time of the unlawful search. The independent source doctrine does not operate to validate a warrant under such circumstances.
Issue II – Because of the Appellant’s refusal to permit a warrantless search of anything on his computers, other than the two programs the children had used, his wife’s alleged consent to an unlimited search is invalid, under Georgia v. Randolph, 126 S.Ct. 1515 (2006). There is no rationale for not applying the same principles to the Appellant’s limited refusal as to Mr. R.’s full refusal.
Issue III – The trial court’s decision, over defense objections, not to reopen testimony to allow it to make an accurate finding of credibility was an abuse of discretion, and its adoption of the magistrate’s credibility determination was clearly erroneous.
ARGUMENT AND CITATIONS OF AUTHORITY
In its Answer Brief, the Government, for the first time, claims that remand for suppression is not mandated. This argument is procedurally barred and waived, as the trial court, in granting the Appellant’s Motion for Release Pending Appeal (Doc. 109), found that the issues raised in this appeal are dispositive, and if “decided favorably to the Appellant, his conviction would surely be reversed.” Doc. 120 at 4. Far from objecting to this finding (either in its Answer Brief, or in the trial court), the Government essentially admitted it was correct.
In addition to being barred, it is incorrect, impossible, and misstated. First, it is clear that there was not, absent the fruit of the illegal search, probable cause sufficient to obtain a search warrant. The trial court asked this very question at oral argument, during the hearing on the Appellant’s objections to the amended report and recommendation.
THE COURT: All the government had to do once he said that [that he had, at one time, looked at and deleted child pornography] was go get a warrant, right? I mean, they had plenty of probable cause. Mr. Watkins had told them, right?
DEFENSE: Well, Your Honor, there’s some limitations on that ability. From my recollection of the interview, he never said when he had looked at that stuff [the child pornography], whether he still possessed it, whether he even still possessed the computer that he had used. So there would be some staleness and some nexus problems with the government getting a warrant.
Doc. 127 at 8.
The staleness and nexus issues alone are sufficient to preclude probable cause, and this is only reinforced by the undisputed fact (borne out by the Government’s forensic analysis) that the Appellant stated he had deleted all such files, at the time they were viewed, as a matter of practice.
The Government’s Answer brief suggests that a Franks-type process would be undertaken to analyze probable cause. This is technically correct (albeit inapplicable), but the Government fails to mention that, in addition to removing the references to the fruit of the illegal search, that process also requires inclusion of the following omitted facts: (1) that the Government has no proof of when the matters in question were downloaded; (2) that there is no evidence that the computer still contained any child pornography, as the files were deleted; and (3) there is no evidence that said computer was still at the Appellant’s residence. The undisputed fact that the subject evidence consists solely of fragments of deleted files is, in fact, not a mere impediment to state court prosecution, but an absolute bar. See Strouse v. State, 932 So.2d 326 (Fla. 4th DCA 2006)(affirming trial court dismissal of 6 counts of possession of child pornography where the files were mere temporary internet files, and not saved on the subject computer). No state court judge could have issued a warrant for files as described by the Appellant. In fact, absent the Appellant’s confession, there is considerable doubt as to the viability of a federal prosecution. See, e.g., United States v. Flyer, 633 F.3d 911 (9th Cir. 2011)(evidence of child pornography images located in “unallocated space” on defendant’s computer was insufficient to show defendant “possessed” such images, as required to support conviction of possession of child pornography, absent evidence that defendant knew of the presence of the files or that he had the forensic software required to see or access the files).
The Government cites United States v. Noriega, 678 F.3d 1252 (11th Cir. 2012) to support its claim that such an examination of the warrant is appropriate here, under the independent source doctrine. This is incorrect, as Noriega clearly states that the test is used “[w]hen a government agent makes an initial warrantless entry that arguably violates the Fourth Amendment and then relies in part on what he saw during that entry to get a search warrant.” Id. at 1260. Unlike Noriega (and Murray v. United States, 108 S.Ct. 2529 (1988), the case from whence the Noriega test is derived), the instant case involves a search based on an illegally obtained or invalid consent, and not an illegal entry onto real property.
More significantly, even if the Noriega two-part test is applicable, the instant case fails both parts. First, the Franks type analysis, as discussed above, does not provide probable cause, absent the included fruit of the illegal search. Secondly, in order to apply the independent source rule, the court must “determine whether an officer’s decision to seek a warrant is prompted by what he saw during the illegal entry [and] ask whether the officer would have sought the warrant even if he had not entered [the property].” Id. at 1260-61. The answer to that question is not in the record (as the Government concedes), it cannot properly be asked (since there was no entry onto property), and it cannot ever be asked, since Det. E. is unavailable.
It is clear that the Appellant’s child pornography investigation was, at all times relevant, a state investigation, being conducted by Det. E., for the Clay County Sheriff’s office. Agent E. testified that once the Appellant made the disclosure about child pornography, “they [his department] wanted me to get involved at that portion to start up an investigation and continue it from that point.” Dkt. 45, p. 62. See Initial Brief of Appellee at 9. Any federal prosecution (or investigation) would have been left to the State under the Petit policy. The fact that it was Det. E.’s case is further demonstrated by the fact that, after his investigation confirmed, following forensic analysis that the subject files were deleted – inaccessible by the Appellant – and only found in fragments in “deleted or unallocated space” on the computer, “they [the sheriff’s office] were unable to go forward in state court.” Doc 45 at 74-75. Det. E. further testified that because “charges could not be brought against the Appellant in [state] court,” it was the “recommendation” of the assigned Assistant State Attorney that Det. E. “make contact with federal prosecutors and see if it was something they wanted to take a look at.” Doc. 45 at 76. It was only at that point that point the case was referred for federal prosecution.
Finally, and perhaps most significantly, the only evidence on Noriega test two is that the decision to obtain the warrant was based solely on the withdrawal of consent by the Appellant’s counsel. Agent M. was quite specific on this point, under direct examination by the Government, about what happened after he was contacted by counsel, who told him he was “retained to represent the Appellant and that any and all consents had been revoked for the computer.” Doc. 45 at 34. He was thereupon asked, “[a]nd after that did you make a determination to obtain a federal search warrant?” to which he replied, “[y]es, I did.” Id.(emphasis added). As the evidence is clear on this point, and further inquiry impossible, both parts of the Noriega test are answered in the negative.
In fact, as stated above, this test is inapplicable. The appropriate analysis for this is under the inevitable discovery doctrine. In order for the fruit of the instant warrant to be admissible the Government must show the process of actively seeking a search warrant was already under way at the time of the illegal search. This doctrine has its modern genesis in Nix v. Williams, 104 S.Ct. 2501 (1984), a case cited by Noriega. In Nix, a grid search for a missing child’s body was already under way, and the searchers were nearing the location where the body could be found, when an illegally obtained confession hastened the process. Id. at 2511-12. The Nix court held that the inevitable discovery of the body, based on the search that was already under way, made application of the exclusionary rule unnecessary. Id. at 2511.
In the instant case, the burden is on the Government to show a warrant was already being sought, but the process was halted when the invalid consent was obtained, or the search exceeding its scope commenced. Then, and only then, would the question of whether the warrant, with the illegal fruit of the search removed, was sufficient to state probable cause. This, the Government cannot do.
Under the inevitable discovery exception, if the prosecution can establish by a preponderance of the evidence that the information would have ultimately been recovered by lawful means, the evidence will be admissible. Nix, 467 U.S. at 434, 104 S.Ct. at 2509. However, the mere assertion by law enforcement that the information would have been inevitably discovered is not enough. United States v. Brookins, 614 F.2d 1037, 1048 (5th Cir.1980)(Decisions of the Fifth Circuit rendered on or before September 30, 1981 are binding precedent in the Eleventh Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc)). This circuit also requires the prosecution to show that “the lawful means which made discovery inevitable were being actively pursued prior to the occurrence of the illegal conduct.” Jefferson [v. Fountain], 382 F.3d  at 1296 [11th Cir. 2004] (emphasis added). This second requirement is especially important. Any other rule would effectively eviscerate the exclusionary rule, because in most illegal search situations the government could have obtained a valid search warrant had they waited or obtained the evidence through some lawful means had they taken another course of action. United States v. Hernandez–Cano, 808 F.2d 779, 784 (11th Cir.1987).
United States v. Virden, 488 F.3d 1317 (11th Cir. 2007).
In the instant case, it cannot be gainsaid that no effort whatsoever had been made to seek a search warrant until after the illegal search. Thus the claim the evidence is admissible under a warrant application cleansed of the taint of the illegal search, merely because the police already had the Appellant’s statement that he had been looking at and deleting child pornography, is incorrect. “To qualify for admissibility, there must be a reasonable probability that the evidence in question would have been discovered by lawful means, and the prosecution must demonstrate that the lawful means which made discovery inevitable … were being actively pursued prior to the occurrence of the illegal conduct.” United States v. Satterfield, 743 F.2d 827, 846 (11th Cir. 1984). Since the lawful means were not being actively pursued, the exclusionary rule applies, and, in the event this Court holds either that the Appellant’s consent was limited in the same manner as her husband’s, or her consent is invalid to override her husband’s limited consent, then the exclusionary rule properly bars the admission of the evidence obtained from the Appellant’s computer. The trial court and the Government below were correct, the suppression motion is dispositive.
The Government, in attempting to deny the Appellant the protections of the Fourth Amendment as outlined in Georgia v. Randolph, 126 S.Ct. 1515 (2006), attempts to persuade this Court not to focus on the protected liberty interests and accompanying widely shared social expectations that guided and informed the Randolph court, but instead on narrow, pointless formalism, claiming the holding is inapplicable to the instant search of personality. In doing so they vastly overstate the significance of some language in Randolph, which was merely the proper effort of the Supreme Court to decide only the controversy before it, namely the search of a dwelling. The rule the Randolph court enunciated is broader, and applies here, which is “the rule that a physically present inhabitant’s express refusal of consent is dispositive as to him, regardless of the consent of a fellow occupant.” Id. at 1528. “Disputed permission is no match for this central value of Fourth Amendment.” Id. at 1524.
The logical and practical application of Randolph, both generally, and as applied to the instant case, are best explicated in United States v. Murphy, 516 F.3d 1117 (9th Cir. 2012). Murphy involved two searches, the first a protective sweep, which was held valid, and the second, which was conducted pursuant to third-party consent, following a refusal by Murphy. Id. at 1121. This third party was a co-tenant. The rule enunciated Murphy is that, “[o]nce a co-tenant has registered his objection, his refusal to grant consent remains effective barring some objective manifestation that he has changed his position and no longer objects.” Id. at 1125(emphasis added). It is undisputed that the Appellant, like the defendant in Murphy, “exercised sufficient control over [the subject property] to possess the authority to grant or withhold consent to a search.” Id. at 1122. The property in question in the instant case is the Appellant’s computer. Properly ignoring the question of property rights, the Murphy court cited Randolph, and found that the “important question is not who possesses a property right, but rather what are the dictates of ‘widely shared social expectations.’” Murphy, supra at 1124(citation omitted). The Murphy court found that “there is no reason that the rule in Randolph should be limited to residences. Randolph is rooted in the idea of common authority and the Supreme Court has extended the principle of common authority well beyond residences.” Id. at 1124. Thus, the Government’s argument, that the search and seizure of items found in a residence, is outside the scope of Randolph, is also unpersuasive.
Having dealt with the fundamental principles underlying the application of Randolph to the instant case, an examination of the specific case law cited by the Government follows. It is important to note at the outset that it is undisputed that the Appellant was physically present when his wife gave her consent to search the computers. This is the only relevant proximity requirement in Randolph. Randolph did not renew his objection after his wife consented to the subject search. Randolph at 1519.
The Governments claims that United States v. Cooke, 674 F.3d 491(11th Cir. 2012), should persuade this Court to reject the Appellant’s well-founded argument for application of Randolph to the instant case. Cooke is neither binding on this Court, nor persuasive, as it holds that a defendant who was not present at the residence when his mother consented to a search cannot invoke the protection of Randolph. Since the Appellant was present when his wife gave consent, Cooke is inapplicable. Turning now to the Third Circuit Court of Appeals, the Government directs the Court’s attention to United States v. King, 604 F.3d 125 (3rd Cir. 2010). Although the Government points out that the King court opined that Randolph did not address personality, the actual question of law before that court concerned the search of a computer owned by the consenting party, in which the objecting party had installed a hard drive. “These facts present a novel question of law: when an owner of a computer consents to its seizure, does that consent include the computer’s hard drive even when it was installed by another who claims ownership of it and objects to its seizure?” Id. at 135.
The King court ignores entirely the social expectations consideration which Randolph held paramount. It is clear from the facts in King that the hard drive in question was given to the computer owner, for her personal use. A computer is entirely worthless – except as a paperweight – without a hard drive. The hard drive contains the operating programs which make it possible for the computer to function, as well as the memory, on which any work done on the computer is stored. It is analogous to the engine in an automobile. By giving the hard drive to his girlfriend, King lost the sole expectation of privacy, and indeed the right of ownership, in the hard drive.
Because “the majority opinion in Randolph did not address personality,” the King court began its analysis, focusing primarily on the dissent. Id. at 136. It is from this that the above analysis flows, and upon which this case is distinguishable from the instant case. Justice Roberts, dissenting in Randolph, said that “the act of sharing property frustrates the owner’s reasonable expectation of privacy with regard to the co-user … [and] once an owner shares personality or a secret, he assumes the risk that his confidant will share it with police.” King at 136. Justice R. specifically discussed the concept of a computer, stating that where “two roommates share a computer and one keeps pirated software on a hard drive, he might assume that his roommate will not inform the government. But that person is giving up his privacy with respect to his roommate by saving this software on their shared computer.” King, id, quoting Randolph, 104 S.Ct 1652.
Thus, the so-called rule for personality, as highlighted in the dissent in Randolph focuses on the lack of expectation of privacy. The King court notes that Justice S. never disagreed with the dissent of the Chief Justice, which, while true, does not support the King court’s decision to call this a “rule for personality.” King at 136. The King court instead, overstates the importance of the Randolph majority’s use of “terms that apply solely to dwellings.” Id. This is not because of any intent to distinguish personality, a distinction which the King court appears to have invented, but, rather, because the Randolph court was deciding only the case before it, and attempting to preserve earlier precedent. Thus, the false distinction in King – between a dwelling and personality – although it is used to justify the holding, loses its persuasive force in the instant case, because the subject computer was all the Appellant’s. King turned on an individual’s loss of expectation of privacy in a component which he had given to his girlfriend, not one which he maintained separately, for his own use.
The next case cited by the Government as persuasive in the instant case is United States v. Reed, 539 F.3d 595 (7th Cir. 2008). The Government is correct, but for the wrong reason. Reed held that Randolph does not make the denial of suppression erroneous, where third-party consent was used to overcome the objection of a defendant who was not present at the scene where the search took place. Reed at 599. So, Reed, like Cooke, is factually distinguishable. What is significant, and persuasive, about Reed, is the fact that the police were not searching Reed’s dwelling, but, instead, searching for Reed’s guns. Reed was arrested following a traffic stop leading to the discovery of crack cocaine. Id. at 597. The arresting officer “told Reed that the police had information that Reed had guns” at a house he shared with his girlfriend, and asked Reed for consent to search. Id. When Reed refused consent, consent was obtained from the girlfriend, and the guns recovered (Reed was charged as a felon in possession). Id. Although almost half of the majority opinion in Reed analyzes Randolph, that discussion neither mentions nor conceives of the idea that personality is excluded from the protection of the Fourth Amendment under Randolph, when the very subject of the subject search, and the consent, was a search for personality.
Finally, the Government also cites United States v. Hudspeth, 518 F.3d 954 (8th Cir. 2008). Although Hudspeth is a rehearing en banc on the issue of the applicability of Randolph to a warrantless seizure, the panel primarily focused on United States v. Matlock, 94 S.Ct. 988 (1974), in deciding that Hudspeth’s wife’s consent to search, given following her husband’s – who was not present at the home – objection, and already under arrest, was legally proper under Matlock. Hudspeth at 960-61.
Hudspeth does inform our analysis here, for several reasons. First, Hudspeth was arrested at his place of employment, for possession of child pornography, following an unrelated search. Id. at 955. He was questioned at the scene, and under the totality of the circumstances, the investigating officer had reason “to believe Hudspeth’s home computer also probably contained child pornography.” Id. The officers went to Hudspeth’s home, where Hudspeth’s wife “gave the officers permission to take the home computer.” Id. at 956.
Significantly, the computers were never searched pursuant to Hudspeth’s consent. To the contrary, the officers thereupon obtained a search warrant to search the computers and CDs taken from the Hudspeth residence. Id. Thus, the actual search at issue in Hudspeth was not based on consent, but instead on probable cause, determined by a judge. That same probable cause already existed, based on the results of the initial search, leading to Hudspeth’s first arrest. Thus, a neutral magistrate – the preferred method – was allowed to actually make the determination of whether probable cause existed. In the instant case, perhaps rightly concerned about their ability to get a search warrant, given the incomplete and insufficient information in their possession, the police instead relied upon trickery and chicanery for both the seizure of the Appellant’s computers, and for the search itself. This Court should not countenance this police misconduct, or their end-run around the Fourth Amendment.
Finally, the Hudspeth court does assist us, in our review of the instant case, by reminding us that Randolph, like the Appellant, “was not ‘absent’ from the colloquy [with the wife] on which the police relied for consent to make the search.” Id. at 958-59(internal quotations and citations omitted). It also cited the Georgia Supreme Court’s opinion in Randolph – which the Randolph court affirmed – that “the consent to conduct a warrantless search of a residence given by one occupant is not valid in the face of the refusal of another occupant who is physically present at the scene to permit a warrantless search.” Randolph, 126 S.Ct. at 1519, quoting State v. Randolph, 605 S.E.2d 834, 836 (Ga. 2003). The Appellant was physically present at the scene, and had already refused to permit a warrantless search of anything on his computers, other than the two programs the children had used. The rationale, reasoning, and holding in Randolph clearly applies to the instant case, and its application is necessary to deter the clear police misconduct, without which the Appellant would not be a convicted federal felon, faced with the prospect of spending a significant portion of his remaining years in federal prison and on controlled release thereafter.
In his initial brief, the Appellant provided ample reasons why this Court should either find the trial court committed clear error by adopting the magistrate judge’s finding that Det. E. was more credible than the Appellant’s wife, and/or abused its discretion by twice denying the Appellant’s request that it reopen the suppression hearing, to take additional testimony to decide the close call on the issue of credibility.
The magistrate, the trial court, and the Government’s Brief, all place a great deal of emphasis the recorded half of a telephone call the Appellant made to his wife, during a break in his first interview at the Clay County Sheriff’s Office. It is upon the contents of this phone call, in large part, that many credibility determinations and arguments have been made. First, this reliance is perhaps misplaced. It is undisputed that, prior to that interview, and prior to that phone call, the Appellant and his wife were both interviewed by Agent M., who was accompanied by FDLE Special Agent W. See, Doc. 40 at Ex. B. It is undisputed that, during that interview, the police first learned that the missing child used to play on the Appellant’s computers, and, believing that to be an important piece of potentially vital intelligence, for that reason, and that reason only, asked to search the Appellant’s computers. Thus, the clear evidence is that the Appellant’s wife – and a reasonable person in the Appellant’s position – would have already understood the scope of the search of the computers to be limited to the information relevant to the child’s disappearance, which is the websites the child visited. It is undisputed that the Appellant’s wife knew exactly what those websites were.
Consideration of the Appellant’s wife’s credibility on the pivotal issue of the basis for her objectively reasonable belief as to the scope of the search must begin with that event, and not with half of a telephone call hours later. However, when viewed completely, and properly, the telephone call underscores both the Appellant’s wife’s credibility, and demonstrates her objectively reasonable belief as to the limited scope of the search.
In fact, the Report and Recommendation failed to reproduce the conversation in its entirety, omitting the following portion, which is highly relevant to the scope of the consent given by the Appellant’s wife.
APPELLANT: I’m at the Sheriff’s Office up here. They are questioning me. Yeah, right. They seem to be concentrating on the – on the computer, and, you know, the kids access to it, you know, that kind of thing.
Doc. 45, Def. Ex. 1, at 99-100(emphasis added). That was the last thing the Appellant’s wife was told about the object and scope of the search, prior to the officers arriving at her house to take the computers, pursuant to the Appellant’s consent. According to Det. E., when he arrived, he introduced himself, and “explained the reason why we were there, what we were – what we needed to do.” Doc. 45 at 68(emphasis added). He further testified that he told the Appellant’s wife that the Appellant had already “given signed consent to search the computers, and we would have to take those [computers] in order to do those [searches].” Id.
The Government’s Brief, addresses two other portions of the Appellant’s wife’s testimony concerning her recollection of that telephone call. The first point is the Appellant’s wife said she believed her husband told her that the officers were coming to get his computer to check the websites the children had been on. This is an imperfect recollection, but one with a significant basis in fact. The Appellant was telling his wife about the subject matter of the questioning, and told her that the questioning was “concentrating on the – on the computer, and you know, the kids’ access to it.” Doc. 45, Def-Ex. 1 at 99-100. That directly correlates with the Appellant’s wife’s recollection that the police were going to be checking websites that the children had been on.
The second portion of the call discussed by the Government is, when asked about the Appellant’s references, during the telephone conversation, to “LimeWire,” “nasty stuff, or about him feeling like a deviant,” the Appellant’s wife truthfully testified that she did not recall that. Doc. 45 at 140-41. She was specifically asked if she was saying that did not happen, or just that she did not recall it, and she truthfully answered that she did not recall it. Id. at 141.
The cross examination at that point in the hearing, and the Government’s Brief, naturally segue into the Appellant’s wife’s testimony about when she first learned about her husband’s child pornography viewing. She made a mistake, and, under cross examination, incorrectly stated that she had learned of the viewing the night before the computers were seized. On redirect, she corrected her mistake, and accurately testified that it was the following night – after the police had left with the computers – that the Appellant made a clean breast of things. Finally, the Government Brief references an FBI Form 302, memorializing the Appellant’s wife’s interview the day after the computers were seized, to bolster its claim that the Appellant’s wife knew about the child pornography the day before the computers were seized, not later on the day that they actually were. In fact, it proves the opposite.
The 302 reports the Appellant’s wife’s opinion that “the only reason [her husband] was admitting he had visited pornographic sites was because he was meeting with authorities the following day.” Doc. 40, Ex. 2, at 2. This is a true statement, but it does not mean what the Government argues. The Appellant’s wife was clearly referring to the fact that her husband first informed her of his child pornographic viewing on the evening that the computers were seized – after their seizure – because both she and the Appellant knew that he was going to go back to the police station, for further questioning, the following day (the day of her interview). What the Government fails to inform this Court is the 302 specifically says during this interview of the Appellant’s wife, the day after the computers were seized, she stated she “was informed by [her husband] one day ago, that he had visited pornographic sites on his computer.” Id. Thus, the uncontroverted evidence is that the Appellant’s wife’s statement about when she actually first learned of her husband’s viewing, as made on redirect, was entirely truthful, and credible, and any credibility finding to the contrary is clear error.
The Government next confuses the chronology of the Appellant’s child pornographic viewing, and, as a result of that unfortunate confusion, attempts to further impugn his wife’s credibility. The Appellant, in his interview with detectives, said that he first discovered child pornography on the internet as an accidental consequence of a Limewire search for music. This was, in fact, what the Appellant’s wife testified to. It was then his statement to police in the interview, and hers in the 302, that he continued to visit the child pornography sites, “to see if he recognized the children as missing children and to better understand the mentality of a predator.” Doc. 40 at Ex. B.
Finally, the Government, at page 37-38 of their Initial Brief, discusses the Appellant’s report on what his wife said after her told her – following the consent seizure of the computers – about his illicit activities. His paraphrase of her reaction was, essentially, that after a search of the computer, the police would believe that “a suspect [in the child’s abduction] is downloading child porn.” Doc. 45, Def. Ex. 2 at 105. First, this is more clear evidence that the Appellant’s wife did not learn of her husband’s viewing of child pornography until after the seizure. This shows that her subjective belief as to the object of the search changed, after the consent seizure, in light of the new information she received. This is irrelevant to the scope question, since the examination is what a reasonable person in her position would have believed at the time of the consent, not some hours later.
In retrospect, it is clear that the Appellant’s wife was absolutely credible, and as consistent as could be expected, given the time lapse between the events and the suppression hearing, as well as her status as a lay person, unused to cross-examination. Her testimony is unequivocal on the primary issue, that, at the time of her consent, she believed the subject of the search to be limited to the two websites the children had visited, which delineates the scope of her consent, and clearly shows a reasonable person in her position would have the same belief.
On the other hand, Det. E. was the consummate professional witness, both with the court, as with the Appellant and his wife, when concluding the artifice begun earlier with the Appellant by his colleague. The detective had a clear agenda – the acquisition of the Appellant’s computers, and the legitimization thereof – and fit his testimony, as needed, to further that agenda, and his clear interest in the outcome of the case. If this Court finds that the trial court committed clear error in its conclusion as to the credibility of the witnesses, it is permitted to substitute its judgment for that of the trial court, find the trial court committed error in crediting Det. E. over the Appellant’s wife, and, finding her to be credible, based on her testimony as to the limitations placed on the scope of the search, reverse the trial court’s decision to deny suppression, and grant the dispositive suppression motion. Alternatively, if this Court is still unsure about the ultimate question of credibility, then it should do what the trial court should have done, and remand for reopening of the suppression hearing, to take additional testimony.
It is undisputed that the Appellant was lied to and tricked into signing an unlimited consent to search his computers. The trial court and the Government below were right, his suppression motion was dispositive. If this Court finds that Randolph nullifies the Appellant’s wife’s consent, it should reverse and remand for dismissal. Any claim to the contrary was waived, and not properly preserved. Even if the Court chooses to apply the independent source exception, the evidence is clear that it does not require remand, as the record cannot be supplemented by the investigating officer, and Agent M. only sought the warrant because consent was withdrawn. Randolph does control, the limited consent is a partial refusal, from a person who was present when his spouse allegedly gave an unlimited consent to search. There is no rationale for not applying the same principles to the Appellant’s limited refusal as to Randolph’s full refusal. Finally, this Court can still right this injustice without adopting this reading of Randolph, by making the appropriate determination of credibility, by either overruling the trial court for clear error and remanding for dismissal, or finding an abuse of discretion, and remanding to re-open the suppression hearing.