Posted on April 23, 2009 by Thomas Withers

A Rare Eleventh Circuit Reversal

Yesterday the Eleventh Circuit reversed the trial court’s denial of a motion to suppress in an internet child porn case. As we all know, reversals in the Eleventh Circuit are as rare as hen’s teeth. This case United States v. Mitchell, No. 09-10791, here, arises out of Savannah and was handled by our good friend Steve Beauvais of Zipperer, Lorberbaum and Beauvais. Mitchell entered a guilty plea, was sentenced to 78 months in prison, but preserved his right to appeal the denial of the motion to suppress.

On February 27, 2007 an ICE agent and FBI agent went to Mitchell’s house to conduct a knock and talk related to a child porn investigation. The agents asked Mitchell if he had purchased any subscriptions to porn websites and he said yes. When they asked him if any of his computers contained contraband, he said “yes, probably.” When they asked Mitchell if his computer contained child pornography, he said, “yes, probably.” The agents, had Mitchell execute a “Consent to Search” form, examined his computer, then seized it.

The seizing agent took Mitchell’s computer back to his office, then departed on a 2 week ICE training course. Twenty one days after the seizure, he presented an application for a search warrant to search the seized computer to the magistrate judge who issued the warrant. Child pornography was found on the computer during a forensic exam.

Mitchell moved to suppress based in part on the unreasonable delay in obtaining a search warrant. The magistrate denied the motion to suppress. Beauvais then appealed to the district judge, who adopted the magistrate’s report and recommendation. The appeal to the Eleventh Circuit followed.

In a fairly narrow holding, the Eleventh Circuit reversed the district court finding that the 21 day delay in obtaining the search warrant under the circumstances presented, was not reasonable and ordered that the evidence seized be suppressed.

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Posted on April 10, 2009 by Thomas Withers

Corley Proves That There is Some Joy in Mudville

One of my hopes since establishing this blog over a year ago, has been that we can help the criminal practitioner be a better, more efficient counsel to his clients. Therefore, in addressing confessions in your practices, if you encounter the fact pattern of a detention of more than six hours before the defendant is taken before a magistrate, you should be thinking suppression. Attached is a sample suppression motion that we have crafted around the Supreme Court’s holding this week in United States v. Corley, -- S.Ct. -- , 2009 WL 901513 (U.S.). On Monday, April 6, the Supreme Court finally considered the issue of whether Congress intended § 3501 to eliminate the McNabb/Mallory exclusionary rule, or whether it merely intended § 3501(c) to immunize confessions given within 6 hours of a person’s arrest. 

In a powerfully written opinion, Justice Souter wrote that,

"In a world without McNabb- Mallory, federal agents would be free to question suspects for extended periods before bringing them out in the open, and we have always known what custodial secrecy leads to. See McNabb, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. No one with any smattering of the history of 20th-century dictatorships needs a lecture on the subject, and we understand the need even within our own system to take care against going too far. [C]ustodial police interrogation, by its very nature, isolates and pressures the individual, Dickerson, 530 U.S., at 435, 120 S.Ct. 2326, and there is mounting empirical evidence that these pressures can induce a frighteningly high percentage of people to confess to crimes they never committed, see, e.g., Drizin & Leo, The Problem of False Confessions in the Post-DNA World, 82 N.C.L.Rev. 891, 906-907 (2004)." Id. at 11.

The majority reversed Corley’s conviction and remanded, holding that:

"a district court with a suppression claim must find whether the defendant confessed within six hours of arrest  . . . If the confession came within that period, it is admissible, subject to the other Rules of Evidence, so long as it was “made voluntarily and . . . the weight to be given [it] is left to the jury.” If the confession occurred before presentment and beyond six hours, however, the court must decide whether delaying that long was unreasonable or unnecessary under the McNabb-Mallory cases, and if it was, the confession is to be suppressed. Id. at *12.

We hope that the attached motion makes each of our readers better practitioners.

 

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