U.S. v. Gilkeson

• Decision Date: 09 May 2006
• Docket Number: No. 5:05-CR-399.,5:05-CR-399.
• Citation: 431 F.Supp.2d 270
• Parties: UNITED STATES of America, v. James GILKESON, Defendant.
• Court: U.S. District Court — Northern District of New York

431 F.Supp.2d 270

UNITED STATES of America, v. James GILKESON, Defendant.

No. 5:05-CR-399.

United States District Court, N.D. New York.

May 9, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Frank Policelli, Esq., Utica, NY, for Defendant.

Hon. Glenn T. Suddaby, United States Attorney, Syracuse, NY (John G. Duncan, Assistant U.S. Attorney, of Counsel), for Government.

MEMORANDUM DECISION and ORDER

HURD, District Judge.

I. INTRODUCTION

Defendant James Gilkeson ("defendant" or "Gilkeson") was arrested by the Syracuse Police for endangering the welfare of a child in violation of New York Penal Law § 260.10. During the course of interrogation he signed a consent form permitting the search of his computer. The results of the search resulted in a federal indictment listing charges related to child pornography under 18 U.S.C. § 2252A(a)(2) and 2256(8)(A).

Defendant moves to suppress the physical evidence seized under the auspices of the consent to search. Defendant also appeals the decision issued by Magistrate Judge George H. Lowe ("Judge Lowe") ordering his detention pending trial. The Government opposes both motions. A suppression hearing was held in Utica, New York, on December 16, 2005, and continued on January 4, 2006. Decision was reserved.

At the suppression hearing, the government offered the testimony of four Syracuse police officers: Bruce Terry ("Officer Terry"), Brendan Finnerty ("Detective Finnerty"), Rickey S. Williams¹ and Christopher DeJoseph ("Detective DeJoseph"). The defendant testified on his own behalf and offered the testimony of Syracuse police officers Rebecca E. Thompson ("Lt.Thompson") and Chad Monroe ("Officer Monroe").

The defendant argues that the Syracuse Police lacked probable cause to arrest him and that his illegal arrest prevents admission of derivative evidence seized as a result. The defendant also raises the issue of the violation of his Miranda rights. He argues that his requests for counsel were ignored. Finally, the defendant contends that his signing of the Search and Seizure Waiver form ("consent form") was not voluntary.

The factual determinations required in the instant case are primarily based on credibility assessments of the various witnesses; credibility assessments are explained where such determinations are made as to disputed material facts. Fact finding does not require that all non-material issues of fact be determined, thus some issues are simply related as disputed or as explained during testimony.

II. FINDINGS OF FACT

A. Suppression Hearing Testimony

Gilkeson is an educated and self-employed forty-nine-year-old white male.² On August 13, 2005, he drove on Interstate Route 81 from his home in Kirkwood, New York, to Syracuse, New York. The defendant explained that the 75-mile drive to his intended destination at the Carousel Mall seemed like a good test-drive considering that he had just put his car on the road. However, he left Route 81 before reaching the Carousel Mall and at approximately 10:00 that morning entered a convenience store on S. Salina St. in Syracuse. He purchased some crackers and a soft drink. Inside, he encountered a nine-year-old African-American girl with a large burn on her leg. When the defendant asked her about it she told him she was burned by an iron. He commented that she would always have a scar. The defendant left the store but remained outside eating his crackers.

As the girl left the store and proceeded to walk home, Gilkeson claims she was struggling with her packages. The defendant pulled his car up beside her, opened the car door, told her to get in and he would give her a ride home. Monique Williams ("Williams"), a woman who happened to be nearby, witnessed the girl getting into the defendant's car and became suspicious. She approached and asked the defendant if he knew the girl, and he answered that he did. Williams asked the girl, who reportedly looked nervous, if she knew the defendant and she answered that she did not. Williams shouted at the girl to get out of the defendant's car and scolded her. The girl began to cry, and Williams called the police. The defendant remained at his car, which Williams blocked in with her own, until they arrived.

Officer Terry arrived at the scene and questioned Gilkeson. He asked the defendant for identification and questioned what he was doing in the area. The defendant stated that he was headed to Carousel Mall. When asked why he exited Route 81 before the mall exit defendant explained that he wanted to go the Dunkin Donuts and that he was familiar with the area. That seemed strange to the officer since the defendant had just purchased a snack at the convenience store. Officer Terry also thought it was unusual for the defendant, a caucasian, to be in that particular Syracuse neighborhood.

Officer Terry then spoke with two witnesses. Williams related her account of the events and Mr. Jerry Searight "basically related the same story." (Docket No. 26, Suppression Hearing Transcript ("Tr.___".) p. 13.) Officer Terry took the defendant into custody and delivered him to the Criminal Investigation Unit ("CIU") at the Syracuse Police Station. The defendant claims he waited for a few hours, handcuffed to a floor rail, before he was questioned. He twice asked for a lawyer and described the officer's response as, "So what, you know, is their attitude. I don't know what to do in a situation when you ask somebody for a lawyer and they don't get you one. I've never been in trouble before." (Tr. 103.)

Around 1:00 or 1:30 p.m., Detective Finnerty, a detective with the Abused Persons Unit ("ABU"), took the defendant next door to the ABU and began the interview by reviewing a Miranda form. He claims that he read each portion of the form out loud to the defendant, asked him if he understood what was read, and had him initial the appropriate part of the form. Gilkeson contends that he was never walked to a room at ABU, but signed and initialed the form while handcuffed in the first room where he was held.³

Gilkeson claims that he didn't talk to Detective Finnerty about a lawyer and didn't read the waiver, but signed the form because he was frustrated that he was tied down to a floor rail: "I would have done anything to get the hell out of there. I was just fit to be tied. Nobody has ever tied me down before." (Tr. 126.) The defendant initialed after each one of five sentences on a standardized form and signed at the bottom. He also signed consent forms permitting DNA testing and the search of his car.

The questioning continued for a few hours, with breaks, as the information came in to the station. According to the testifying detectives Gilkeson was not handcuffed and was offered something to drink and bathroom breaks. After this round of questioning he was returned to the blue room — so named for the color of its carpeting — in CIU, where the remainder of the questioning took place. The blue room is approximately twelve-by-twelve feet in dimension, contains a table and chairs, a two-way mirror, and sound capabilities. The questioning continued for a few more hours with more breaks and offers of food and drink. At one point the defendant was provided with some food from Burger King, but he declined to eat it.

During his interview with Detective Finnerty, Gilkeson revealed that he regularly viewed pornography on his computer. Thus, at some point in the evening, detectives drove to Kirkland to visit the defendant's mother and gather information regarding the computer at the mother's house where the defendant lived. Detective Finnerty presented the defendant with a consent to search form as to that residence, which the defendant refused to sign. The defendant maintains that he refused, at least in part, because he didn't know if he could sign it for his mother's house and again asked for a lawyer. (Tr. 109.) Detective Finnerty concluded his interview with the defendant around 8:30 p.m., at which time Detective DeJoseph took over.

Detective DeJoseph interviewed the defendant for approximately seven and one-half hours from 8:30 p.m. Saturday evening until 4:00 a.m. Sunday morning. According to the detective, the interview was continuous for about three or four hours and then there were breaks every hour or so after that, during which the defendant was offered bathroom breaks and food. Detective DeJoseph describes the defendant as cooperative, inquisitive and talkative. On cross-examination he described the interview as follows:

Q: Did [the defendant] ever say he didn't want to talk to you any longer or he wanted an attorney?

A: No, sir, he didn't.

Q: Did you ever yell and scream at him during this interview? A: No, I did not.

. . . . .

Q: Was he ever uncooperative with you during the interview?

A: I think towards the later portions of the interview.

Q: Give us a time.

A: About four in the morning when I ceased the interview. I think he became tired and distracted and didn't want to speak to me anymore. Q: Did he ever ask for a lawyer?

A: No.

Q: At any time during your interview, did he ever ask for a lawyer? A: Not during my interview.

(Tr. 67, 77.)

Gilkeson describes the interview differently. He claims that Detective DeJoseph screamed at him throughout the interview, at one point directly in his face. He added:

A: [DeJoseph] came in with the paperwork that Finnerty had and ripped it up, and said you are not going anywhere, and I said I want to talk to a lawyer. And then he walked out of the room again. Then he came back in, and we just kept going on as if I never said a thing.

Q: What did he say and what did you say?

A: That's pretty much it. I mean, what else — that was the stage that was set. Finnerty brought in this, I believe to be, my charge which I had never been told up until that point yet, and he brought it in. DeJoseph — Finnerty brought it in to DeJoseph, and DeJoseph just tore it up and said you are not going anywhere.

(Tr. 107.)

As the interview...