U.S. v. Knope

• Decision Date: 22 August 2011
• Docket Number: No. 10–2824.,10–2824.
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Randall Joseph KNOPE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

655 F.3d 647

UNITED STATES of America, Plaintiff–Appellee,

v.Randall Joseph KNOPE, Defendant–Appellant.

No. 10–2824.

United States Court of Appeals, Seventh Circuit.

Argued April 15, 2011.Decided Aug. 22, 2011.

Jonathan H. Koenig (argued), Attorney, Office of the United States Attorney, Milwaukee, WI, for Plaintiff–Appellee.Raymond M. Dall'Osto, Jason D. Luczak (argued), Attorneys, Gimbel, Reilly, Guerin & Brown, Milwaukee, WI, for Defendant–Appellant.Before POSNER and MANION, Circuit Judges, and LEFKOW, District Judge. ^*

LEFKOW, District Judge.

Randall Joseph Knope was convicted of possession of child pornography and attempting to persuade or entice a minor to engage in a sexual act. Knope argues that the trial court committed reversible error by (1) denying his motion to suppress statements to the police and evidence seized from his home, (2) admitting evidence regarding his prior online chats with individuals who purported to be minors, and (3) denying certain requested jury instructions. We affirm Knope's conviction.

I. Facts

On June 28, 2008, Knope logged on to the adult Yahoo! Romance, Wisconsin chat room using the screen name “ilovethecock83.” He sent a private message to “mariachickaletta.” Milwaukee Police Department Detective Doreen DuCharme was using that screen name and the alias “Maria.” Knope wrote, “[W]anna show a guy what its like to take it up the ass? ill get a strap-on to use.” Maria responded, “Oh, my God, for real?” and Knope replied, “Is that a yes?” Maria wrote back, “Yeah, that's cool with me.”

Knope then asked Maria for her “ASL,” or age, sex, and location. Maria stated that she was fifteen years old, female, and lived in Milwaukee. Knope responded, “Really?” and asked her to send a photograph. Maria shared two photos of a police officer taken at the age of fourteen or fifteen. Knope then wrote, “When and where can you meet?” Maria responded that she could meet after 2:00 p.m. “[be]cause I'm baby-sitting for my sisters right now.” Knope asked Maria where she lived and then stated, “Once we hook up I can get us a room somewhere if you're cool with that.” Maria also asked Knope how old he was. When Knope stated that he was forty-one,¹ she wrote, “I can't walk in with you.... There's no way me and you can walk in anywhere together and act like we're chilling then.” Knope told Maria, “We can walk in separate.”

Knope then asked Maria several questions about her clothing size so he could determine what size strap-on to bring for her. Maria asked, “[D]oes it matter if I'm not like that big or anything? I mean, I'm kind of a skinny but I'm not a wimp.” Knope responded, “Think you can wear a strap-on and fuck me like you're a girl—a guy or girl getting revenge on a guy for sticking his dick in her ass?” Maria responded, “OMG, yes, I want to big time.” Knope then asked Maria whether she had previously had anal sex and whether she enjoyed watching pornography.

Knope also asked Maria if she had a web camera that she could use. Maria wrote, “No, just a mic.... And I got a phone. But I don't got a cam. ‘Cause my mom thinks my sis would use it. And she can't chat.” Knope wrote, “May I hear your voice PLS,” and asked for Maria's phone number “to call you when I'm near you later.” DuCharme then spoke to Knope using a microphone, adopting the voice and mannerisms of a teenage girl.² Knope provided written responses to Maria's questions. He wrote that he was six feet tall, about 275 pounds, and had “more of a muscular build.” Maria asked, “[A]ll right, so is this even going to work then?” Knope responded, “Yeah.”

Knope and Maria planned to meet that afternoon at a Walgreens store on the south side of Milwaukee. During the voice chat, Knope asked Maria how long she could be away from home. She stated that she had to be home by 11:00 p.m., which is the City of Milwaukee curfew. Towards the end of the chat, Knope asked Maria, “You excited?” Maria responded, “Yeah, this is gonna rock. Way random. LOL.” Knope wrote, “Random can be a lot of fun.” He then asked her to describe what she would be wearing so he could find her easily. Before Knope ended the chat, he wrote, “If I ask you to prove you aint the cops can you?” Maria responded, “Yeah.”

Later that day, Knope called Maria on her cell phone and told her that he would arrive at the Walgreens in about half an hour or forty-five minutes. He called twice more while on his way. In the meantime, DuCharme went to the Walgreens parking lot and waited for Knope in an unmarked police car with Detective Richard McQuown. When Knope arrived, Detectives DuCharme and McQuown observed him park and walk into the store. The officers arrested him while he was walking back to his car. They recovered a strap-on dildo from Knope's car as well as a cell phone that had DuCharme's number saved as “Maria Chick.” It was later determined that Knope had purchased condoms at the Walgreens.

Knope was indicted for violations of 18 U.S.C. §§ 2252(a)(4)(B) and 2422(b). A jury found Knope guilty of both counts after a week-long trial.

II. Analysis

A. Motion to Suppress Statements and Evidence

Knope argues that the district court erred in admitting (1) post-arrest statements he made to the detectives and (2) computer equipment seized from his residence. A magistrate judge heard Knope's motion and issued a report and recommendation that the motion be denied, which the district court adopted in a separate written opinion. Because the district court adopted the report and recommendation, we review the magistrate judge's factual findings for clear error and her legal conclusions de novo. United States v. Hendrix, 509 F.3d 362, 373 (7th Cir.2007). We give deference to the credibility determinations of the court that had the opportunity to hear the testimony and observe the demeanor of the witnesses. Id.

1. Post–Arrest Statements

The evidence presented at the suppression hearing showed that Knope began to talk immediately after the officers approached him in the Walgreens parking lot. He stated, “I'm so stupid. Curiosity killed the cat.” Knope was then arrested and placed in the back seat of the unmarked police car.³ DuCharme sat in the front seat, which was not separated from the back seat by a cage. Knope continued to talk to DuCharme while she set up the recording equipment for their interview. Knope stated he was upset and angry with himself, and DuCharme initially told him, “All right. I can't talk to you about it until after my partner gets here.” Knope responded, “I know, I know, I'm just I'm ready to cry seriously. I can't believe I even did it. I just ... and there's no way. I'm going to get charged with it and that's all there is to it.... I can't believe I did this. I can't.” DuCharme explained that she and McQuown worked for the Milwaukee Police Department and that they appreciated Knope's cooperation with the arrest. Knope continued, “When you know you're stupid, you know you're stupid ... you screwed up. You should just realize you did something you should have slapped yourself in the head for. Somebody else shouldn't have to.”

After McQuown joined her in the front seat of the car, DuCharme told Knope that he had been arrested for using a computer to facilitate a child sex crime. She said that she would need to obtain preliminary information and then asked Knope to state his first and last name, age, date of birth, address, and phone number. Knope stated that he was 31 years old and that he lived at “109 Randolph” in Burlington, Wisconsin. He also expressed concern about being detained at the police station and repeatedly asked whether there was any way to make the case “go away.” After DuCharme obtained Knope's information, she notified him of his Miranda rights. The interview continued after Knope stated that he was willing to answer questions.

Knope argues that the statements he made while he was seated in the back of the unmarked police car were admitted in error because they were the result of a custodial interrogation. Under Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) and Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the test for whether Knope was subject to interrogation is “whether a reasonable objective observer would have believed that the ... question[ ] claimed by [the defendant] to have been unlawful interrogation [was] in fact ‘reasonably likely to elicit’ an incriminating response.” United States v. Abdulla, 294 F.3d 830, 834 (7th Cir.2002) (quoting United States v. Westbrook, 125 F.3d 996, 1002 (7th Cir.1997)). “Volunteered statements of any kind are not barred by the Fifth Amendment.” Miranda, 384 U.S. at 478, 86 S.Ct. 1602. The focus of Knope's objection is the admission of biographical information that was later used to execute a search of his residence. Knope argues that the question “Where do you live?” was a form of interrogation because his answer provided the likely location of the computer that he had used for the online chats. “[R]outine booking questions” asked before Miranda warnings are given are not usually grounds for suppression of a defendant's statements revealing his identity and residence. Pennsylvania v. Muniz, 496 U.S. 582, 601, 110 S.Ct. 2638, 110 L.Ed.2d 528 (1990) (questions reasonably related to the police's administrative concerns do not constitute interrogation under Miranda ); United States v. Edwards, 885 F.2d 377, 385 (7th Cir.1989). Although a suspect's home is a likely place for this type of illicit activity, DuCharme did not then know the location of the computer Knope used. (It could have been at work or anywhere a laptop could be linked to the Internet.) There is no evidence that DuCharme was seeking an admission when she asked where he lived. Knope cites no precedent where revealing one's place of residence during booking, thereby identifying a place to search, was found sufficient to invoke Miranda. Although we do not foreclose the possibility...