State v. Richards, 072117 MESUP, CR-16-4438

Docket Nº:CR-16-4438
Party Name:STATE OF MAINE, Plaintiff, v. MICHAEL RICHARDS, Defendant.
Case Date:July 21, 2017
Court:Superior Court of Maine
 
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STATE OF MAINE, Plaintiff,

v.

MICHAEL RICHARDS, Defendant.

No. CR-16-4438

Superior Court of Maine, Penobscot

July 21, 2017

          ORDER ON MOTION TO SUPPRESS

         The Defendant, Michael Richards, is charged in a three-count indictment with the offenses of Possession of Sexually Explicit Materials (Class C) and Possession of Sexually Explicit Materials (Class D), Mr. Richards, through his counsel, Hunter J. Tzovarras, Esq., filed a Motion to Suppress, dated March 23, 2017. The motion seeks "to suppress the search of the computers taken from [the Defendant's] home on April 12, 2012, " on the grounds that "Mr. Richards never gave consent to search his computers." Hearing was held on the Defendant's Motion on May 15, 2017.1 At the hearing, the State of Maine was represented by Assistant District Attorney Suzanne Russell, Esq., The Defendant was represented by Attorney Tzovarras. The hearing featured extensive testimony from Detective David Armstrong of the Maine State Police, In addition, the parties presented the audiotape of a lengthy interview of Mr. Richards conducted by Detective Armstrong, which occurred in April 2012[2] and took place at Mr. Richards' apartment. The audiotape, which runs to nearly an hour in length, consists almost exclusively of a discussion between Detective Armstrong and Mr. Richards. It was identified as State's Exhibit 5, and was admitted without objection. The audiotape was played to completion during the May 15 hearing, and the court has since reviewed it carefully to confirm both the details and the context of Detective Armstrong's interactions with Mr, Richards. Based upon the audiotape, and as set forth more fully below, the court disagrees with the Defendant's assertion that he did not consent to the removal and search of his computers. The court therefore denies the Defendant's Motion to Suppress.

         FINDINGS OF FACT

         Detective Armstrong testified that he has been employed by the Maine State Police for 32 years, the last 17 of which have been as a detective. His "primary responsibility" is "child pornography investigation." Detective Armstrong explained the technical process through which computers "share information through downloaded programs, " which "creates a direct connection from one person's computer to another." In many "early" child pornography investigations, the program most frequently used to connect computers was "Limewire, " More recently, there are "many programs" upon which consumers of child pornography rely. Detective Armstrong further explained the mechanics of investigations of this nature, and characterized his work as "proactive, " rather than "referral-based." Detective Armstrong testified to the process through which individual images were located) through the creation of "digital fingerprints" that directed his attention to "specific files of interest." He ultimately identified 32 images and, although he did not view every one of them, he personally viewed four and identified two as containing images of child pornography. Detective Armstrong conceded that he is "an investigator and not a forensic analyst." The court does not believe this distinction compromises the foundation upon which Detective Armstrong approached Mr. Richards on April 12, 2012.

         More generally, the court found Detective Armstrong to be a credible witness. He exhibited candor, was responsive to the questions he was asked both by the State and by defense counsel, and did not appear to be exaggerating or overreaching in his testimony. Detective Armstrong did not attempt to evade or quibble with questions he faced on cross-examination. In particular, he agreed under cross-examination that he "could have obtained a search warrant" but "chose not to." He explained that the reason for this was that it was necessary first to determine whether the occupant of the physical address at which the computers were located corresponded to the individual identified by the Internet service provider as maintaining the account that generated the electronic fingerprints. This is particularly true in the case of the multi-unit apartment dwellings of the type involved in this investigation. Detective Armstrong also acknowledged that he used an "improvised consent form" to "inventory" the computers taken from Mr. Richards that was not in fact the form typically used when such property is seized. Detective...

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