U.S. v. O'Brien
| Decision Date | 01 August 2007 |
| Docket Number | No. 1:06-CR-165 (GLS).,1:06-CR-165 (GLS). |
| Citation | 498 F.Supp.2d 520 |
| Parties | UNITED STATES of America v. Todd O'BRIEN, Defendant. |
| Court | U.S. District Court — Northern District of New York |
Hon. Glenn T. Suddaby, United States Attorney, Thomas Spina, Jr., Assistant U.S. Attorney, of Counsel, Albany, NY, for the United States.
Kindlon, Shanks Law Firm, Kent B. Sprotbery, Esq., of Counsel, Albany, NY, for the Defendant.
Following his indictment for possession of child pornography, see 18 U.S.C. §§ 2252A(a)(5)(B), 2256(8), Todd O'Brien moved to suppress three statements he made to police officers and evidence seized during three searches. See Dkt. No. 18; FED. R.CRIM. P. 12(b)(3)(C). Following the government's response, see Dkt. No. 19, and a suppression hearing, the parties supplemented their initial submissions. See Dkt. Nos. 20, 22-3. For the following reasons, the motion is denied in its entirety.
The facts are based on the court's evaluation of the following: the applicable burden of production and proof; testimony of Police Officers Schatzel and Sheeley; hearing exhibits; O'Brien's non-testimonial affidavit and a transcript of his State suppression hearing testimony; a State appellate decision, see People v. O'Brien, 2 A.D.3d 1222, 769 N.Y.S.2d 654 (3d Dep't 2003); the parties' submissions; and the resolution of credibility issues. See FED. R.CRIM. P. 12(d); see also U.S. v. Miller, 382 F.Supp.2d 350, 361-363 (N.D.N.Y. 2005) ().
Todd O'Brien is a college-educated music teacher who taught at the Kingston High School. On May 4, 2001, S.S., a seventeen-year-old female student, gave Assistant Vice-Principal Stoutenberg a letter, and spoke with him about its content. From the letter and the conversation, Stoutenberg learned that S.S. met O'Brien through an online chat room, and the two engaged in repetitive internet and telephone sexual conversations. O'Brien was at his residence during these conversations. At O'Brien's urging, they mutually masturbated over the internet and O'Brien suggested future sexual relations. S.S. also disclosed that at least two other female students, M.D. and A.S., had similar experiences with O'Brien during the preceding two years. It is reasonable to conclude from S.S.'s disclosures that she may have been sixteen when her relationship with O'Brien began. See 12/20/06 Hearing Gov't Ex. 1.
After Stoutenberg received the letter and spoke with S.S., he asked O'Brien to come to the school's administrative offices. There, O'Brien was questioned about S.S.'s letter by other school officials. He denied any sexual conversations, including conversations about mutual masturbation.
Contemporaneously Stoutenberg reported S.S.'s allegations to the Kingston Police Department. Detective Schatzel was sent to the school to begin an investigation. Dressed in civilian clothing, he drove there in an unmarked police car. When he arrived, he was briefed by Stoutenberg and given S.S.'s letter.
Having read the letter and spoken with both his assigning supervisor and Stoutenberg, Schatzel understood that his investigative focus was whether O'Brien had engaged in inappropriate sexual conversations with under-aged students, both by telephone and over the internet. Because he knew that S.S. had emotional difficulties, he decided investigate discretely to avoid unnecessary damage to O'Brien's reputation.
After O'Brien finished his conversation with school officials, Schatzel introduced himself, and asked if O'Brien would accompany him to the police station to further discuss the allegations. O'Brien agreed, and rode in Schatzel's unmarked car. O'Brien sat in the front seat, he was not restrained in any way, and there was no verbal or physical suggestion that he was under arrest. There was no conversation in the car. According to O'Brien, Schatzel intimidated him, and required him to ride in the police car. See O'Brien State Testimony, Ex. 13; .Aff., Dkt. No. 18. The court discredits O'Brien's non-testimonial assertion. See Miller, 382 F.Supp.2d at 362-63 ().
When the two arrived at the station, they went to an office located within the confines of the Detective Division. Schatzel used an office instead of a formal interview room out of respect for O'Brien's professional position and because O'Brien was neither a threat nor under arrest. At 3:30 P.M., sitting at a desk across from one another, O'Brien and Schatzel began to discuss the content of S.S.'s letter.
After Schatzel revealed S.S.'s allegations, O'Brien admitted that he frequently spoke with S.S. and other students, including M.D., on the telephone and over the internet from his home computer, a Compaq USA ("Comp"). He admitted that he spoke with S.S. a couple of times a week including earlier that week, and that he communicated with M.D. online two days earlier. He admitted that during the preceding two years he engaged in sexually suggestive conversations with students in person and online, but claimed that the conversations were "joking in nature."
During the interview, O'Brien told Schatzel that the Comp and its monitor were located in his bedroom. However, there was no discussion about a Gateway computer ("Gateway") subsequently found in O'Brien's bedroom, nor was there any conversation about computer-related items such as peripheral equipment (other than the Comp monitor), storage devices such as disks or CD's, or computer-generated materials such as hard copies of documents or photographs typically stored on a computer.
At the end of the conversation, Schatzel asked O'Brien if he would allow the police to take his computer and monitor for inspection, and O'Brien agreed. Schatzel retrieved a standard consent to search form and filled it out in O'Brien's presence. See Gov't Consent to Search Form; Dkt No. 19, Ex. C. Signed by Schatzel and O'Brien at 5:35 P.M., it authorized the police to seize O'Brien's Comp and monitor located in his bedroom at home. The form fully advised O'Brien of his constitutional rights regarding the search. As relevant, it provided:
I, Todd Obrien (sic.) 115 Arnold Drive, Kingston, NY, having been requested to consent to a search of my Comp USA Computer/Monitor located at 115 Arnold Drive my 1 st Fir (sic.) Bedroom and having been duly advised of my constitutional rights to (1) refuse such consent, (2) to require that a search warrant be obtained prior to any search, (3) that if I do consent to a search, any evidence found as a result of such search, can and will be used against me in any civil or criminal proceedings, (4) that I may consult with an attorney of my choosing before or during the search and (5) that I may withdraw my consent to search at any time prior to its conclusion. After having been advised of my constitutional rights, I hereby knowingly, intelligently and voluntarily waive my rights and consent to a search and authorize Detective G. Schatzel and Detectives Reynolds/Sheeley of the Kingston Police Department, to conduct a search of the above described computer.
When Schatzel asked for permission to retrieve the computer, he also asked whether there was anything on it that would hurt O'Brien. After first responding "no," O'Brien then told Schatzel that there was a single photograph of a thirteen or fourteen-year-old naked girl that had been e-mailed to him by a chat room acquaintance. O'Brien told Schatzel that he had ceased further communications with the acquaintance once he received the photograph. Schatzel asked whether that was all that was on the computer, and O'Brien responded, "yes." Based on this conversation, Schatzel reasonably believed that the photograph was still on O'Brien's computer. Although Schatzel did not tell O'Brien why he wanted to see the computer, his purpose was to locate evidence of inappropriate behavior between O'Brien and the students and to retrieve the image of the naked girl.
The station house conversation lasted approximately two hours. It was entirely cordial; O'Brien was cooperative; and both men behaved professionally. At various times during the conversation, O'Brien used the bathroom and retrieved food and drink from vending machines. Since the office was located in a non-public, secure area, he was escorted when he did so. The escort was necessary because he needed directions and because the office was located in a non-public, secure area. Security was essential because confidential investigative materials were located throughout the area. O'Brien was never Mirandized.
Questioning did not consume the entire two hours. In addition to the food and bathroom breaks, Schatzel periodically left the room to advise his supervisors about O'Brien's disclosures and his consent to search. O'Brien never asked to terminate the interview or leave, Schatzel never told him he had to stay, and O'Brien was not formally arrested. Schatzel never threatened O'Brien or promised him anything, nor did he ever raise his voice or make any threatening gestures. O'Brien never requested an attorney.
When testifying about the conversation in State court, O'Brien added that he spoke to his father by telephone and told him not to worry because he would be home soon. He also testified that he read the consent to search form, discussed it with Schatzel, and subjectively felt that he had no choice but to sign the form because Schatzel told him he would get a warrant if he refused. However, he admitted that Schatzel never actually told him he had no choice. In his affidavit, O'Brien asserted that he was intimidated by the police and felt that he was not free to leave the station until he told them what they...
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