U.S. v. Mathis

• Decision Date: 08 July 2005
• Docket Number: No. 3:05-00042.,3:05-00042.
• Citation: 377 F.Supp.2d 640
• Parties: UNITED STATES of America, Plaintiff, v. Harold MATHIS, Defendant.
• Court: U.S. District Court — Middle District of Tennessee

377 F.Supp.2d 640

UNITED STATES of America, Plaintiff, v. Harold MATHIS, Defendant.

No. 3:05-00042.

United States District Court, M.D. Tennessee, Nashville Division.

July 8, 2005.

Ellen Bowden McIntyre, Office of the United States Attorney, Nashville, TN, for USA, Plaintiff.

J. Robin McKinney, Jr., Kweller, McKinney, Warden & Hayes, Karl D. Warden, Jackson, TN, Kweller, McKinney, Warden & Hayes, Nashville, TN, for Harold Mathis (1), Defendant.

MEMORANDUM

ECHOLS, District Judge.

Pending before the Court are Defendant Harold Mathis' Motion to Suppress (Docket Entry No. 20), and his Amended and Supplemental Motion to Suppress (Docket Entry No. 29), to which the Government responded in opposition. At the conclusion of the suppression hearing held on June 30, 2005, the Court denied both Motions. The Court now sets forth the reasoning for its decision.

The grand jury indicted Defendant Mathis on one count of knowingly receiving or attempting to receive child pornography that had been transported in interstate or foreign commerce, in violation of 18 U.S.C. §§ 2252A(a)(2)(A) and 2252A(b)(1).

I. FINDINGS OF FACT

The Defendant's sixteen-year old son disclosed to his psychotherapist, Johanna Shadoin, that he saw pornographic images of children on his father's computer at home and that he had witnessed his father sitting naked at his computer in front of a webcam. Two of the graphic images depicted sexual penetration of an infant and a young child performing oral sex on an adult male. Ms. Shadoin reported the disclosure to the treating psychiatrist and the office's coordinator for the Health Insurance Portability and Accountability Act ("HIPAA").¹ The three of them discussed their concerns about the psychological effect the graphic images could have on Defendant's son, about the child sexual abuse depicted in the images, and the danger to other potential victims. Defendant's son had given no indication that Defendant had sexually abused him. After considering the Tennessee reporting law, HIPAA, and the ethical codes applicable to their conduct, the treatment professionals decided to report the allegations to law enforcement authorities. The psychiatrist contacted her brother, who is a homicide detective in Texas, for advice. He consulted with a Texas District Attorney, who advised making a report to the FBI, which was done. The Texas FBI then contacted Bret Curtis, Special Agent with the FBI in Nashville, Tennessee, on March 1, 2005, and relayed the information received.

On March 1, Agent Curtis interviewed Ms. Shadoin to confirm the substance of the allegations. Ms. Shadoin repeated to Agent Curtis what Defendant's son had told her about the graphic computer images. She also told Agent Curtis that Defendant's son disclosed his girlfriend received a photo of the Defendant, nude from the waist up, via the Internet, and that Defendant had engaged in an inappropriate telephone conversation with his son's girlfriend. Ms. Shadoin did not disclose to Agent Curtis any medical information or medical or billing records concerning treatment of Defendant's son. At Agent Curtis' request, Ms. Shadoin tried to reach Defendant by telephone to obtain permission for Agent Curtis to interview Defendant's son, but Defendant did not answer.

Late in the afternoon of March 1, Agent Curtis went to Defendant's home at 424 Nesbitt Lane in Madison, Tennessee. Defendant, who is approximately 45 years of age and divorced, lives on the main floor of the home with his sixteen-year old son. An older son lives in the basement with his girlfriend. Agent Curtis asked a Nashville police officer who is affiliated with the sex crimes unit to accompany him because he did not know at that time if a child sexual abuse investigation would ensue.

Defendant's sixteen-year old son answered Agent Curtis' knock on the door and invited them in after they identified themselves as law enforcement officers.² He stated he had been expecting them, and thought they were there about his truancy. Agent Curtis clarified that they were present to talk with him about the information he provided to Ms. Shadoin. Agent Curtis then interviewed Defendant's son about the matters he had disclosed.

During or after the interview, Agent Curtis contacted FBI Special Agent Brandon Harcum and asked him to obtain a federal search warrant for a computer located in the front room of the residence, including hard drives and software such as compact discs, diskettes, and other magnetic storage media, and all images, photographs, and/or video with child pornography or children in sexual situations. Agent Curtis provided Agent Harcum with the information needed to prepare the search warrant application. Agent Curtis also contacted task force officers and asked them to come to the house in anticipation of a search. Agent Curtis asked Defendant's son to disconnect the power to Defendant's computer to preserve any evidence that might be on it, but neither he nor the other officers searched the computer or any other part of the house at that time.

While Agent Curtis was present at the house, Defendant called and spoke to his son. Agent Curtis asked to speak to the Defendant, identified himself as a law enforcement officer, and asked when Defendant would be home because he wanted to talk with him. Defendant stated he was on his way, and he arrived at the residence shortly before 5:00 p.m. Defendant testified Agent Curtis asked if he was coming home and did not command him to come to the residence.

Six law enforcement officers were present at the house when Defendant arrived, although not all of them were inside the house. Agent Curtis identified himself as an FBI Agent and showed Defendant his credentials. He immediately advised Defendant of his Miranda rights and asked Defendant if he understood his rights. Defendant stated that he did understand his rights. Defendant voluntarily signed an "Advice of Rights" form in the presence of Agent Curtis and another witness at 5:03 p.m. (Government Ex. 1.) Defendant told Agent Curtis that he had child pornography on his computer. Agent Curtis disclosed that another agent was in the process of obtaining a search warrant and asked Defendant if he would provide his permission to allow the officers to begin the search before the search warrant arrived. Believing that a search warrant was on its way, Defendant signed a "Consent to Search" form permitting a search of "computers, computer equipment, photographs of children in sexual poses, CDs used to store photographs (any and all storage media) in the house 424 Nesbitt Lane" and "(All e-mail accounts operated by Harold Mathis) and Instant Message Accounts." (Government Ex. 2.) Defendant also signed a "Consent to Assume Identity of Screen Names on the Internet" form to permit Agent Curtis to use Defendant's screen names, passwords and identity on the Internet. (Government Ex. 3.) Defendant told Agent Curtis he could show him where on the computer the pornographic material was located. Although Defendant felt the presence of so many officers was intimidating, he was not coerced to sign the forms or give his consent and he did so voluntarily. Agent Curtis continued to interview the Defendant while other agents conducted the search.

The Magistrate Judge signed the search warrant for 424 Nesbitt Lane, excluding the basement apartment, at 5:48 p.m., on March 1, 2005. (Government Ex. 4.) Agent Harcum arrived at the residence with the search warrant at approximately 6:30 p.m., after the consent search had begun. The search concluded at approximately 7:30 p.m., with the seizure of a computer, several hard drives, tapes, and compact, floppy and zip discs. Although Defendant stated he did not see the search warrant until around 8:00 p.m., Defendant did not attempt to stop the search at any time nor did he request an attorney.

II. CONCLUSIONS OF LAW

The Defendant contends the physical evidence seized from his residence and the statements he made to law enforcement should be suppressed because (1) his sixteen-year old son lacked authority to admit Agent Curtis and other officers into the residence at 424 Nesbitt Lane and (2) in violation of HIPAA Ms. Shadoin revealed information she obtained from Defendant's son in the course of providing psychotherapy to him, and but for her illegal disclosure, none of the subsequent events would have occurred.

A. Minor's authority to admit law enforcement to the house

A minor who has common authority over the premises may give third-party consent to search the premises. United States v. Clutter, 914 F.2d 775, 778 (6th Cir.1990) (upholding search where fourteen-and twelve-year old children routinely left in exclusive control of house enjoyed degree of access and control that afforded them right to permit inspection of any room in house); Lenz v. Winburn, 51 F.3d 1540, 1548-1549 (11th Cir.1995) (holding that minors may give third-party consent to search a residence). Defendant did not dispute that his sixteen-year old son shared with him the living quarters on the main floor of the residence at 424 Nesbitt Lane and that his son was routinely left in exclusive control of the house. Defendant stated only that he instructed his son not to admit strangers to the house without his permission. Agent Curtis and the other officers were justified in believing, however, that Defendant's son had apparent, if not actual, authority, to admit them to the premises on request. See Illinois v. Rodriguez, 497 U.S. 177, 186-188, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990) (holding Fourth Amendment is not violated when officers enter without a warrant when they reasonably, though erroneously, believe the person who consents to their entry has authority to consent); United States v. Gillis, 358 F.3d 386, 390 (6th Cir.2004) ("Even if a third party does not possess actual common authority over the area that was searched, the Fourth Amendment is not violated if the police relied in good faith on a...