133 F.3d 943 (6th Cir. 1998), 97-3214, United States v. Salvo

Docket Nº:97-3214.
Citation:133 F.3d 943
Party Name:UNITED STATES of America, Plaintiff-Appellant, v. Aaron L. SALVO, Defendant-Appellee.
Case Date:January 15, 1998
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 943

133 F.3d 943 (6th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellant,

v.

Aaron L. SALVO, Defendant-Appellee.

No. 97-3214.

United States Court of Appeals, Sixth Circuit

January 15, 1998

Argued Aug. 6, 1997.

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[Copyrighted Material Omitted]

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Nina Goodman (argued and briefed), U.S. Department of Justice, Criminal Division, Washington, DC, Nancy L. Kelley and Nancy A. Vecchiarelli (briefed), Nancy A. Vecchiarelli, Office of the U.S. Attorney, Cleveland, OH, for Plaintiff-Appellant.

George Glavinos, Jr. (argued and briefed), Westlake, OH, for Defendant-Appellee.

Before: KEITH and SUHRHEINRICH Circuit Judges; ROSEN, District Judge. [*]

OPINION

ROSEN, District Judge.

I. INTRODUCTION

On November 6, 1996, a grand jury in the Northern District of Ohio returned a two-count indictment charging Aaron L. Salvo with possessing and receiving child pornography. Defendant Salvo moved to suppress statements he made to FBI agents and evidence obtained during a search of his residence, claiming that the agents held him in custody without first reading him his Miranda rights, and that he was coerced into consenting to a search of his residence. After an evidentiary hearing, the District Court ordered both the statements and the seized evidence suppressed. The Government now appeals the District Court's ruling. For the reasons set forth below, we REVERSE.

II. FACTS

Defendant Aaron Salvo first came to the attention of law enforcement when officials at Ashland College, where Salvo was a student, discovered several suspicious e-mail messages. In these messages, Salvo, an Eagle Scout who had been a Boy Scout leader, stated he was a lifeguard at a Boy Scout camp and requested advice about how to seduce one of the boys at the camp. Ashland College reported this to the Ashland County Sheriff's Department, who in turn contacted the FBI.

In August of 1995, FBI Special Agent Joseph Williamson contacted Boy Scouts' administrator Barry Norris concerning Salvo's conduct. When Agent Williamson determined that Salvo posed no immediate danger to the boys at the camp, he postponed his investigation until October. Norris later informed Williamson that he would be meeting with Salvo on October 27, 1995 at a Friendly's Restaurant to confront Salvo about the e-mail messages, and to discharge him from the Boy Scouts. Agent Williamson observed the meeting from another table (without identifying himself) because he wanted to "take any necessary steps in the best interest of the investigation" in the event that Salvo attempted to destroy evidence.

Salvo came into the restaurant, where there were about a half-dozen customers, at the agreed upon time of 7:30 a.m. He sat down with Norris, and Norris asked him if he knew about anything strange or unusual happening at the camp. When Salvo replied that he did not know what Norris was talking about, Norris told him to "stop lying" because he knew what was going on. Norris then told Salvo he was discharged from the Boy Scouts and should no longer associate with the group.

After Salvo left the restaurant, Agent Williamson followed him to his dormitory. Upon reaching the dorm, Agent Williamson identified himself to Salvo, told him that he was conducting an investigation, and asked to speak with him. At this point, the testimony of Agent Williamson and Aaron Salvo differ somewhat.

A. Agent Williamson's testimony

According to Agent Williamson, Salvo seemed nervous, but had a fairly normal demeanor. Agent Williamson radioed two other agents who were waiting nearby to assist him. After FBI Special Agents Hayden and Marshall arrived, Agent Williamson asked where they could speak in private, suggesting Salvo's dorm room. However, Salvo replied that his roommate was asleep and he did not want to get anyone else

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involved. Salvo instead suggested the computer room, which he asked a custodian to unlock. 1 Agent Williamson testified that the agents told Salvo at the beginning of the interview that he was not under arrest, that he was free to leave at any time, and that he did not have to talk to them. Agents Williamson and Hayden questioned Salvo, while Agent Marshall, a probationary agent in training, stood off to the side and took notes. Salvo eventually admitted to possessing child pornography on his computer. Agent Williamson asked if he could search Salvo's room, but Salvo said he did not want to wake his roommate. Instead, Salvo offered to go to his room himself and retrieve the information from his computer.

When Salvo returned with a disk containing some pictures, he volunteered that his roommate was no longer in the room. Agent Williamson again asked to search the room, and Salvo agreed and signed a Consent to Search form. 2 When the agents searched the room, they found that Salvo had "formatted" his computer hard drive when he returned to his room to retrieve the disk. In doing this, Salvo put the information into a file which was difficult to access by ordinary means. Salvo admitted to the Agents that he had formatted the hard drive, and the computer was taken to FBI headquarters in Washington D.C., where the information on the hard drive was retrieved.

While the agents searched the room, Salvo asked them about the nature and extent of the problems he might be facing. Agent Williamson responded that it was possible that he could face some jail time, but could possibly "skate," or receive no jail time.

Agent Williamson testified that he next met Salvo at a Burger King more than three months later, in February, 1996. Agent Williamson met Salvo inside the Burger King, but told him that it would be more appropriate to discuss matters outside the restaurant. Again, Williamson informed Salvo he was not under arrest, that he would not be placed under arrest at the conclusion of the interview, and that he was free to leave at any time. The two went to Agent Williamson's car, where Agent Williamson showed Salvo the pictures seized from Salvo's computer and told him that he faced prosecution. Agent Williamson then asked Salvo if he had told his parents about what had happened, and Salvo responded that he had not. Williamson recommended that Salvo tell his parents, form a "support group," and consult an attorney.

B. Aaron Salvo's testimony

According to Salvo, when the agents first confronted him with the accusations in October 1995, he put his hands on his head and got sick to his stomach. He said that after they entered the computer room, Agent Williamson confronted him with evidence of the e-mail messages. Another agent said "we think you've been led astray and we are here to help you, find out what's going on." Salvo said he was an emotional wreck and claimed he repeatedly told the agents that he wanted his life back and did not want to go to prison. Agent Hayden said, "whoa, whoa, whoa. Nobody's talking about prison. Don't worry about it." Salvo said the agents replied that they expected him to skate. They then told Salvo to retrieve the photographs on disk, and everything would work out.

After Salvo returned with the disk, Agent Williamson again requested to search the room. Salvo testified that Agent Williamson said, "we can do it discreetly or go to the Courthouse and talk to the Ashland County Prosecutor, get a warrant and be back with uniformed police to conduct the search and he [Salvo] would be excluded from the room." 3 Salvo testified that when the other two agents left the room, Agent Hayden told Salvo that Agent Williamson was not playing games, and would search his room whether Salvo let him or not. Salvo testified that he felt he had no choice, so he signed the consent

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form. He further said that although he had formatted the hard drive, he had offered to retrieve the information once the agents had discovered it.

Salvo testified that in November, 1995, Agent Williamson told him that there would be no prosecution. However, in February, 1996, Agent Williamson called Salvo to tell him that he would be prosecuted, so it would be necessary to have another interview. When Agent Williamson and Salvo met in the Burger King parking lot, Salvo entered the FBI car to examine the pictures taken from his computer.

III. DISTRICT COURT'S RULING AND ISSUES PRESENTED

The District Court ruled that Salvo's October 1995 statements to the FBI agents should be suppressed because of the agents' failure to give Salvo his Miranda warnings before questioning him. The Court explained its ruling as follows:

A reasonable person in the suspect's shoes would believe that he was in custody when these statements were made, that he was being accused of committing a crime and was not free to go. This is so even if the Defendant was told that he was free to go and would not be arrested at the end of the interview. Here, the agents had substantial information that this Defendant was engaged in illegal activity and had some evidence of it for significant period of time--first from the Ashland County Prosecutor and the Ashland County Sheriff and then from Ashland College officials. They coordinated with the Boy Scout leader who terminated him on the morning of October 27, 1995, for conduct related to the alleged illegal activity so that they could approach the Defendant immediately after receiving what to him was devastating news. This situation, together with agents telling him that they knew about some of his alleged illegal activity and that he should cooperate with them could lead him to reasonably believe that he was indeed not free to go despite the possible assertions by the officers to the contrary. Their conduct spoke otherwise.

(Joint Appendix, p. 18-19). The District Court ruled likewise regarding the February 1996 interview:

Here he was told that the Assistant U.S. Attorney would be prosecuting the case. The Defendant was asked to meet with the agents and give another statement. He was also told, according...

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