United States v. Michalik

• Decision Date: 15 July 2021
• Docket Number: No. 20-50244,20-50244
• Citation: 5 F.4th 583
• Parties: UNITED STATES of America, Plaintiff—Appellee, v. Jeffrey Clinton MICHALIK, Defendant—Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

5 F.4th 583

UNITED STATES of America, Plaintiff—Appellee,

v.Jeffrey Clinton MICHALIK, Defendant—Appellant.

No. 20-50244

United States Court of Appeals, Fifth Circuit.

FILED July 15, 2021

Joseph H. Gay, Jr., Assistant U.S. Attorney, Neeraj Kumar Gupta, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff—Appellee.

Richard A. Bartolomei, Bartolomei & Lange, P.L.C., Des Moines, IA, Edward A. Bartolomei, Law Offices of Edward A. Bartolomei, San Antonio, TX, Richard A. Bartolomei, II, Attorney, Oak Park, IL, for Defendant—Appellant.

Before Smith, Stewart, and Ho, Circuit Judges.

Jerry E. Smith, Circuit Judge:

A jury convicted Jeffrey Michalik of possessing child pornography. Michalik contends that the district court erred in denying his motion to suppress evidence and by admitting various pieces of evidence and testimony at trial, and he also asserts that the evidence was insufficient to sustain his conviction. Finding no reversible error, we affirm.

I.

Agents from the Department of Homeland Security, Homeland Security Investigations ("HSI"), executed a warrant at Michalik's house. They did so because someone using an IP address associated with the house had accessed and downloaded child pornography from a website called "Amateur Lovers."

The HSI agents testified that they arrived early in the morning as Michalik was leaving for work.¹ They approached Michalik as he was getting into his car, informed him that he was not under arrest, and asked for his assistance entering the house pursuant to their warrant. The agents say that they swept the house and informed Michalik and his family that they were free to leave.

The agents then interviewed Michalik in one of their cars on the street near his house. During the interview, the agents asked Michalik whether he had viewed child pornography, and they assert that he admitted to having done so on his work laptop and that he said he used the same laptop to view pornography at home. The agents showed him images of child pornography, and he conceded that he recognized some of them. The agents testified that Michalik then drove to his office in his own car with agents in tow, stopping along the way at a McDonalds so an agent could use the restroom. At the office, Michalik led the agents to his laptop and signed a form consenting to its search. On the laptop, agents found child pornography.

Michalik's version of the events differs. He asserts that the agents gave him the ultimatum that either he lead them to the office and retrieve the laptop, or they would take him to jail. Michalik also contends the agents told him that they already had a warrant to search his laptop. Michalik doesn't contest that he signed the consent form but avers that the agents failed to tell him what he was signing or give him a choice whether to do so.

Michalik moved to suppress the evidence from his interview with the agents and the evidence from his laptop; the district court denied the motion. The jury convicted Michalik of possessing child pornography under 18 U.S.C. § 2252A(a)(5)(B). He appeals the denial of his motion to suppress, several admissions of evidence at trial, and the sufficiency of the evidence in support of his conviction.

II.

Michalik appeals the denial of his motion to suppress the evidence of his statements to HSI agents and the evidence from his laptop. He contends that the government's failure to recite his Miranda rights necessitates the exclusion of his statements to the agents, and he avers that his consent to search his office laptop was not voluntary.

A.

In reviewing the denial of a motion to suppress, we review findings of fact for clear error and legal conclusions de novo . See United States v. Nelson , 990 F.3d 947, 952 (5th Cir. 2021). We view "the evidence in the light most favorable to the party that prevailed in the district court," United States v. Chavez , 281 F.3d 479, 483 (5th Cir. 2002), and we will uphold the district court's ruling on the motion "if there is any reasonable view of the evidence to support it," see, e.g. , United States v. Michelletti , 13 F.3d 838, 841 (5th Cir. 1994) (en banc) (quotation marks and citation omitted). "Our review is particularly deferential where denial of the suppression motion is based on live oral testimony because the judge had the opportunity to observe the demeanor of the witnesses." United States v. Aguirre , 664 F.3d 606, 612 (5th Cir. 2011) (cleaned up).

In general, "a suspect's incriminating statements during a custodial interrogation are inadmissible if he has not first received Miranda warnings." Nelson , 990 F.3d at 955. A suspect is in custody "when placed under formal arrest or when a reasonable person in the suspect's position would have understood the situation to constitute a restraint on freedom of movement of the degree which the law associates with formal arrest." United States v. Wright , 777 F.3d 769, 774 (5th Cir. 2015) (quoting United States v. Bengivenga , 845 F.2d 593, 596 (5th Cir. 1988) (en banc)). A suspect's custodial status "is an objective inquiry ... that depends on the totality of the circumstances." Id. (cleaned up). Five factors are relevant: "(1) the length of the questioning; (2) the location of the questioning; (3) the accusatory, or non-accusatory, nature of the questioning; (4) the amount of restraint on the individual's physical movement; and (5) statements made by officers regarding the individual's freedom to move or leave." Nelson , 990 F.3d at 955.

B.

Regarding the first factor, the length of questioning, the HSI agents testified that Michalik's interview lasted from forty-five minutes to just over an hour. That's roughly consistent with Michalik's contention that the interview lasted "at least an hour." Although an interview length of one hour "weighs in favor of finding that it was custodial," Wright , 777 F.3d at 777, an hour-long interview, alone, doesn't render the questioning custodial. Indeed, "[w]e have previously rejected the broad proposition that an hour-long interview constitutes a per se custodial interrogation." United States v. Gonzalez , 814 F. App'x 838, 844 (5th Cir. 2020) (per curiam) (cleaned up).

The second factor—the location of the questioning—suggests that the interview was not custodial. Michalik sat in the passenger-side front seat of a police car on the street near his house. As in Wright , 777 F.3d at 777, the interview "took place close to the [suspect's] home, in a car subject to public scrutiny."

The third factor—whether the questioning was accusatory—indicates that the interview was not custodial. The district court found HSI agents DePaola and Juarez credible when they testified that the conversation was "cordial" and Michalik was "cooperative." As the district court noted, Michalik contested those characterizations, asserting that the agents called him a liar and made "disparaging and accusatory statements" about his family. The district court did not clearly err in its credibility determination in favor of the agents, and the third factor thus indicates that the interview was not custodial.

The fourth factor—the amount of restraint on the suspect's physical movement—also suggests that the interview was not custodial. Michalik contends that the presence of six to eight armed agents indicates that he was physically restrained. He also notes that agents escorted him outside to the car. The presence of armed agents, however, does not necessarily render an interview custodial.² The agents never handcuffed or otherwise physically restrained Michalik's movement.³ Indeed, the district court found that the interview ended when Michalik "became frustrated with the agents’ questioning." Moreover, the fact that Michalik's mother-in-law left to take his stepdaughter to school while agents were searching the house suggests that a reasonable person would have felt free to leave.

The fifth factor—whether officers informed the suspect of his freedom to leave—also supports a finding that Michalik was not in custody. Michalik contends now, as at his suppression hearing, that the agents failed to tell him he was free to leave. He also asserts that the other occupants of his house confirmed that the agents didn't inform Michalik that he could leave. On that contention, there is a dispute of fact. Agents DePaola and Juarez testified that they told Michalik "repeatedly" that he was not under arrest and was free to leave before the interview. The agents testified that both Michalik and his family appeared to understand what they were saying. Considering the divergent accounts, the district court made an explicit credibility determination that the agents’ testimony was credible and reliable. The district court did not clearly err in its determination; thus, the fifth factor indicates that the interview was not custodial. Weighing the totality of the circumstances, the district court did not err in concluding that Michalik was not in custody.

C.

Michalik also appeals the admission of evidence from his office laptop, averring that he did not voluntarily consent to its search. "A search conducted pursuant to consent ... remains one of the well-settled exceptions to the Fourth Amendment's warrant and probable-cause requirements." United States v. Rounds , 749 F.3d 326, 338 (5th Cir. 2014). The government must show by a preponderance of the evidence that the suspect voluntarily consented to the search, and whether the consent was voluntary is a factual finding, reviewed for clear error. Id.

To determine the voluntariness of consent, the court assesses six factors: "(1) the voluntariness of the defendant's custodial status; (2) the presence of coercive police procedures; (3) the extent and level of the defendant's cooperation with the police; (4) the defendant's awareness of his right to refuse consent; (5) the defendant's education and intelligence; and (6) the defendant's belief that no incriminating evidence will be found." United States v. Glenn , 931 F.3d...