State of Connecticut v. John M. Spence (2013)

MEMORANDUM OF DECISION RE MOTION TO SUPPRESS

On June 13, 2012, the defendant, John M. Spence (hereinafter “Spence” or “defendant”), was arrested and charged with possession of child pornography in the first degree in violation of General Statutes § 53a–196d(a)(1).   The defendant moved to suppress a written signed statement that he made to police on the ground that the statement was not knowing, intelligent, and voluntary and, thus, its admission would constitute a violation of due process.   On September 6 and 10, 2013, the court conducted an evidentiary hearing on the defendant's motion to suppress.   The court heard testimony from Detective David Aresco and State Trooper Adam Rosenberg, who were both present when the defendant signed the statement.   The court also heard oral argument from both parties on September 11, 2013.   On September 13, 2013, the court denied the defendant's motion to suppress subject to issuing a written decision.

FINDINGS OF FACT

The court finds the following facts by a fair preponderance of the evidence.   On June 13, 2013, officers of the Connecticut State Police in collaboration with the Fairfield police department executed a search and seizure warrant looking for suspected child pornography at 34 May Street in Fairfield, Connecticut.   The team consisted of approximately six to eight state police officers and two Fairfield police officers who executed the warrant shortly after 6:00 a.m. The state police officers were dressed in civilian clothing but with shirts that clearly identified them as state police.   The Fairfield officers were in uniform.   While all of the officers carried weapons, they did not pull them or use them at any point during the execution of the warrant.

At the time the officers executed the warrant, they did not know the identity of all of the residents of the premises or of the specific individual(s) suspected of possessing child pornography.   In executing the warrant, the officers knocked on the front door and advised the occupants of the warrant.   They entered the premises at approximately 6:10 a.m. and immediately canvassed the entire residence in order to secure the premises.   The defendant was sleeping on the second floor.   In addition to the defendant, officers found two adult females, defendant's wife and her mother, and three children.   In order to ensure that the premises remained secure during the search, all of the residents, including the defendant, were gathered in the kitchen or dining area.

Detective Aresco explained that the officers were there on a computer-related investigation about inappropriate material involving minors.   Without issuing a Miranda warning, Detective Aresco asked the defendant if he could explain law enforcement's presence at the residence.   At that point, the defendant asked if he could speak with Detective Aresco in private.   Detective Aresco, the defendant, and trooper Adam Rosenberg, exited the residence and entered Detective Aresco's unmarked police vehicle which was parked on the street in front of the residence.

After entering the vehicle and prior to obtaining any statement from the defendant, Detective Aresco advised the defendant of his rights prescribed in Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).   The defendant not only signed a waiver of notice and rights form, he also initialed the rights that he understood he was waiving.   The notice and waiver of rights form was signed at 6:21 a.m. in the presence of Detective Aresco and Trooper Rosenberg.   Detective Aresco then interviewed the defendant about his activities on the computer and in peer to peer (p2p) networks, which enable users to share files by accessing the network and downloading files from other members' computers.   During the interview, which started at approximately 6:30 a.m. and ended at 7:57 a.m., the defendant provided specific and detailed information about his computer use, his passwords, and his use of peer to peer networks such as Shareza, Ares Galaxy, Limewire, and Frostwire to access and download child pornography.   He made additional admissions as to his exclusive use of the computer and the estimated volume of child pornography video files he currently possessed, which he stated was one hundred and fifty and some involving children as young as two years of age.

Throughout this process, the defendant was calm and cooperative.   He remained alert and coherent.   He did not have any difficulty communicating with the officers and did not appear to be under the influence of drugs or alcohol.   At his request, the defendant took a break to smoke a cigarette during the interview.   The defendant was not under arrest, and he was advised at the outset that he had the right to stop answering questions at any time.   While the defendant spoke, Detective Aresco took notes and prepared a written statement based on those notes and the information provided by the defendant.

At the conclusion of the interview, Detective Aresco read the three-page hand written statement to the defendant.   He also gave him an opportunity to read it to himself and to correct any inaccuracies within the statement prior to signing it.   After reviewing the statement, the defendant signed each page of the handwritten statement and also initialed corrections thereto.   Throughout the interview, the defendant did not indicate that he wanted to stop answering questions or to speak with an attorney.

DISCUSSION

Our Supreme Court has recently reiterated the well established principle that “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self incrimination.”  Miranda v. Arizona, [supra, 384 U.S. 444].  (Citations omitted);  State v. Edwards, 299 Conn. 419, 426, 11 A.3d 116 (2011).   To invoke the Miranda warnings, the defendant must be in custody and subject to interrogation.  State v. Canady, 297 Conn. 322, 335, 998 A.2d 1135 (2010).

The defendant argues that the presence of multiple officers and Detective Aresco's inquiry suggest that he was not free to leave and, accordingly, that his statement was not voluntary.   Nevertheless, our Appellate Court and other courts have held that “a defendant is normally not in custody, and the Miranda warnings are not required, when he or she is detained during the execution of a search warrant.”  (Citations omitted.)  State v. Mangual, 129 Conn.App, 638, 648, 21 A.3d 510 (2011).   There is absolutely no evidence to suggest the defendant was not free to leave or “subject to greater constraints on [his] freedom of movement than those normally occurring during the execution of a search and seizure warrant.”  Id. Further, the defendant was advised of his Miranda rights and he expressly waived those rights.   Thus, the defendant was not in custody when he made his statement.

Next, in claiming that his statement was not voluntary, knowing and intelligent, the defendant does not argue that officers failed to advise him of his Miranda rights.   Rather, he claims that he did not review the handwritten statement before he signed it and that the statement contains information that the officers fabricated.

To establish a valid waiver, the state must prove the voluntariness of the challenged statement by a preponderance of the evidence.  State v. Lawrence, 282 Conn. 141, 177, 920 A.2d 236 (2007);  see also State v. James, 237 Conn. 390, 412–26, 678 A.2d 1338 (1996);  State v. Gonzalez, 206 Conn. 213, 217, 537 A.2d 460 (1988);  and State v. Perry, 195 Conn. 505, 516, 488 A.2d 1256 (1985).  “The test of voluntariness is whether an examination of all the circumstances shows that the conduct of police was such as to overbear the defendant's will to resist and bring about a confession, not freely self determined.”  State v. Perry, supra at 516.   There are several factors the court can consider in determining the voluntariness of the statement, including:  the defendant's age, level of education, intelligence, experience with police, familiarity with the warnings, vocabulary and ability to read or write, level of intoxication and the conditions under which the defendant was questioned.   See State v. Edwards, supra at 442 n.19;  State v. Chung, 202 Conn. 39, 49, 519 A.2d 1175 (1987).

Applying these factors to the circumstances of this case, leads this court to the conclusion that the state has proven by a fair preponderance of the evidence that the defendant knowingly, intelligently, and voluntarily waived his Miranda rights.   The defendant, who was forty years old at the time, was questioned for approximately one and one-half hours.   He was interviewed based upon his request to meet with the officers in private.   Prior to being questioned, he was given the Miranda warnings and advised that he was not obligated to speak to law enforcement and could request the presence of an attorney.   Nevertheless, he signed and initialed the waiver form.   There is no indication that he misunderstood or could not read English.   In fact, the evidence establishes that he read the statement and initialed each correction made to the handwritten statement.   All the while, he remained calm, coherent, cooperative and he did not appear to be under the influence of drugs or alcohol.

In sum, the defendant's motion to suppress lacks merit and is denied.

BY THE COURT

MARIA ARAUJO KAHN, Judge

Kahn, Maria Araujo, J.