United States v. Ofsink
| Decision Date | 08 February 2021 |
| Docket Number | 19-CR-0290 (SJF)(ARL) |
| Parties | UNITED STATES OF AMERICA, v. BRETT OFSINK, Defendant. |
| Court | U.S. District Court — Eastern District of New York |
On April 17, 2020, the defendant, Brett Ofsink ("Defendant" or "Ofsink"), moved to suppress evidence obtained from a computer seized by law enforcement. See Docket Entry ("DE") [18]. The motion was referred to Magistrate Judge Arlene R. Lindsay, who presided over an evidentiary hearing on November 9, 2020, and, after the submission of post-hearing memoranda, issued her findings on the record at a proceeding held on December 22, 2020.1 Transcript ("Report"), DE [45]. Currently before the Court are Defendant's objections to Magistrate Judge Lindsay's recommendation that Defendant's motion to suppress be denied. See Defendant's Objections to Report ("Def. Obj."), DE [48]. The Government has submitted a response to Defendant's objections. Government's Response ("Govt. Resp.") DE [50]. For thereasons set forth below, the objections are overruled, the Report is adopted, and the motion to suppress is denied.
Three witnesses testified at the hearing in November 2020: Detective Daniel Fandrey ("Detective Fandrey"), Special Agent Cindy Wolff ("Agent Wolff") (Detective Fandrey and Agent Wolff together, the "Agents"), and Defendant Ofsink. The facts are taken from the parties' post-hearing submissions, see Defendant's Memorandum of Law in Support ("Def. Post-Hearing MOL"), DE [41], Government's Memorandum of Law in Opposition, DE [42], and are not disputed unless otherwise indicated.2
Detective Fandrey is a Suffolk County Detective and a member of an FBI task force that investigates homicides and crimes against children; Agent Wolff is Detective Fandrey's partner on the task force. In April 2019, the task force received a lead regarding an individual with the screen name "JoshJamie516" who was using a messaging application called "Kik" and was posting and exchanging messages in a chat room with an undercover agent. (Tr. at 6-7). On or about April 26, 2019, the JoshJamie516 user, while communicating with the undercover agent, indicated that he was engaging in sexual contact with his daughter, (Id. at 7, 169), and sent theundercover agent non-pornographic photographs of girls between the ages of 8 to 13. (Id. at 7). The messages represented that the photographs were of his daughter and her friends.
Subpoenas were issued to Kik and Verizon to determine the owner of the JoshJamie516 account and to locate the IP address used at the time of the exchanges with the undercover agent. They learned from Kik that the user had been using an android cell phone. (Tr. at 24). The investigation traced the account owner as Defendant Brett Ofsink residing at 15 Mesa Road, Syosset, New York (the "Residence"). (Id. at 8-9). Although there was an IP address traced to that street address, there is no way to identify a specific person using that IP address. The Agents suspected that the JoshJamie516 user was most likely Defendant, (Id. at 133), but thought it could have been his son. (Id. at 124). Agent Wolff testified that conversations between the undercover agent and the computer user were not enough to secure a search warrant for the Residence. (Id. at 170). The three photographs sent were not pornographic, and the Agents testified that they did not have probable cause to believe that anyone at the Residence had downloaded or possessed child pornography. (Id. at 78, 134, 142-143, 169-170).
On May 31, 2019, at approximately 6:00 a.m., the Agents went to the Residence to conduct a "knock-and-talk" with Defendant. (Tr. at 11). They went early in the morning as they planned to speak with Defendant before he left for work in Manhattan. (Id. at 10-11, 14). Detective Fandrey testified that given the subject matter of the crimes he investigates, "people are more open to talk about when others aren't around," because of embarrassment or some other reason. (Id. at 11).
It was light out when the Agents arrived, (Tr. at 12), and the Agents parked their unmarked car a few houses away from the Residence. Approximately 10 to 15 minutes after their arrival, they observed the garage door open and Defendant walking to a car parked in the driveway. The Agents moved their car, traveling at 5 to 10 miles per hour, into a position in front of the Residence partially blocking the driveway. The Agents, dressed in plainclothes, exited their car and approached Defendant in his driveway, identifying themselves by name as agents from the FBI. (Id. at 16, 148).
Defendant testified that he exited the Residence through the garage door at approximately 6:20 a.m. to take his son to school He observed the car "aggressively pull up in front of my house, blocking my driveway." (Tr. at 174). As he saw two individuals exit the car and walk towards him, he was "quite scared and a little bit, you know, in shock." (Id. at 175). At Defendant's request, the Agents displayed their credentials to him. (Id.). After identifying themselves, the Agents told Defendant that they were investigating issues with internet traffic from his home.
As the Agents approached Defendant, his son emerged from the garage. Defendant told the Agents that he "need[ed] to take my son to school," (Tr. at 177), and asked if they could finish the conversation upon his return. The Agents told him they would wait, but they did not direct Defendant that he had to return. (Id. at 18, 154-55). The Agents moved their car; Defendant left with his son and returned alone about 10 minutes later. Although Defendant testified that (Id. at 177), he conceded on cross-examination that he could havedriven somewhere else, there was nothing to stop him from leaving at that point, and that he voluntarily chose to return home. (Id. at 212). Defendant had his phone with him, but did not call anyone. (Id. at 213).
Upon Defendant's return home, the Agents, who had been waiting in their car parked on the street, exited their vehicle; they did not move the car to block the driveway. Defendant parked in the driveway, and the parties resumed their conversation while standing at the bottom of the driveway near the sidewalk. Defendant acknowledged that he voluntarily consented to the rest of the conversation. (Tr. at 212).
When the Agents resumed their conversation with Defendant, Detective Fandrey said that they were "investigating some things that happened online" and that "perhaps someone in the home had clicked on the wrong link or been in the wrong place and the wrong time," to which Defendant responded that he "had clicked on some things, got to some questionable rooms on this application called Kik." (Tr. at 21). When he was shown the three photographs of underage girls sent to the undercover agent, (GX 3), Defendant admitted sharing them in a chat room using the using the Kik application, (Tr. at 205; GX 3), but denied that the photographs were pictures of his daughter and her friends. (Tr. at 22-23, 205).
After Defendant said he had photographs of his daughter, he took out his iPhone and used facial recognition to unlock it. The testimony differs on how the photographs on the phone were reviewed. Defendant testified that he handed the phone to the Agents at their request and they scrolled through the photographs. Detective Fandrey initially testified that he didn't touch the phone, (Tr. at 23), but later stated that while he never held the phone, he didnot remember if he scrolled through it with his finger. (Id. at 95). Agent Wolff testified that Defendant held his phone while Detective Fandrey was looking at it, but was uncertain who did the "scrolling." (Id. at 158). In any event, it is undisputed that no pictures of child pornography were seen on Defendant's phone.3
After Defendant displayed his iPhone, Detective Fandrey became curious as to why Kik had indicated he had used an android phone and asked Defendant if he used any other phone or devices. (Tr. at 24). According to Detective Fandrey, Defendant replied that he used an application called BlueStacks, which enables a computer to emulate a phone, on his home computer. (Id.). Defendant further admitted that he used the JoshJames user name on the home computer. (Id.). The Agents then asked to see Defendant's computer. (Id. at 24-25, 158-159); see also id. at 25 (). Defendant replied "yes," and walked into the garage. (Id. at 25, 161). Detective Fandrey asked if he could come into the house with Defendant, and after Defendant indicated he would prefer that they stayed outside, the Agents waited in the garage. (Id. at 25-26). Defendant returned to the garage and handed the computer to the Agents. (Id. at 26, 179).
Defendant testified that the Agents stated that they "needed to see" his computer. (Tr. at 178, 202), but did not explain that they intended to search the hard drive; nor did they tell himthat he had a right to say no. (Id. at 229). He further testified that "[i]n my view I believe I was being directed to do something by the FBI and had no choice." (Id. at 229). Defendant did not object, and "[n]othing was said from the point where they asked for my computer to the point that I handed them the computer." (Id. at 179).
Detective Fandrey read off the computer's serial number to Agent Wolff, who recorded it on a general receipt form ("Receipt"), (GX 4), and a Consent to Search Computer(s) form (the "Consent Form"), (GX 2). Defendant gave the Agents the password to the computer, which Agent Wolff noted on the consent form. (Tr. at 29-30).
The Consent Form, with underlined...
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