United States v. Restitullo, 15-cr-00394 (WHW)
| Decision Date | 18 October 2016 |
| Docket Number | No. 15-cr-00394 (WHW),15-cr-00394 (WHW) |
| Citation | 215 F.Supp.3d 343 |
| Parties | UNITED STATES of America, Plaintiff, v. Felix RESTITULLO, Defendant. |
| Court | U.S. District Court — District of New Jersey |
Melissa Mary Wangenheim, Office of the U.S. Attorney, Newark, NJ, for Plaintiff.
Mario M. Blanch, West New York, NJ, for Defendant.
Defendant Felix Restitullo ("Restitullo") has been indicted on one count of production of child pornography, in violation of 18 U.S.C. §§ 2251(a) and 2, and one count of possession of child pornography, in violation of 18 U.S.C. §§ 2252(a)(5)(B) and 2. Restitullo now moves to suppress statements and evidence on the basis that they were obtained from him in violation of the Fourth and Fifth Amendments of the United States Constitution. This Court held a hearing on August 23, 2016. Defendant's motion is granted as to the statements he made to detectives on March 13, 2014 and denied as to the evidence obtained from the search of his residence.
Unless otherwise noted, the Court finds the following facts, based upon the court records and evidence submitted on this motion. Conflicts in the evidence are noted and resolved based upon the Court's evaluation of credibility.
According to the criminal complaint filed in this Court on July 23, 2015, ECF No. 1, Defendant Felix Restitullo lived in Jersey City, New Jersey with his mother, Maria Restitullo, on March 13, 2014. Id. at 3; see also Aff. Maria Lucilla Restitullo, ECF No. 16-3 ¶ 7. Maria Restitullo acted as caregiver to minor children in her home, including "a minor child who is a member of Restitullo's family" ("Victim 1"), identified by Defendant as his niece. ECF No. 1 at 3; Pl's Br. Supp. Mot. Suppress, ECF No. 16-1 at 3. Restitullo had previously been convicted in the Hudson County Superior Court of possession of child pornography. ECF No. 1 at 3.
In March 2014, after receiving reports that a seven-year-old girl ("Victim 2") had told friends at school that her "uncle" was having "S-E-X" with her, law enforcement officers with the Hudson County Prosecutor's Office, Special Victims Unit ("SVU") conducted an interview with Victim 2. March 13, 2014 Supp. Report Det. Joanne Son, Decl. Melissa Wagenheim in Supp. Opp. Def. Mot. Suppress ("Wagenheim Decl."), ECF No. 23-1 Ex. A, at 1. Victim 2 identified the "uncle" as "Felix," the son of her babysitter, and told officers that she had also seen "Felix" touch her friend, Victim 1. Id. On March 13, 2014, SVU law enforcement officers conducted an interview with Victim 1, who told them that Restitullo had engaged in sexual acts with her on multiple occasions and had taken photos of her with a silver camera. Id. at 1–2; ECF No. 1 at 3. Shortly after the interview ended, officers obtained a warrant for Restitullo's arrest. ECF No. 23 at 7; see also Arrest Report, ECF No. 23-1 Ex. E.
a. Initial interview and invocation of Miranda rights
On March 13, 2014, Restitullo was arrested at his place of employment in Lyndhurst, New Jersey by the Hudson County Prosecutor's Office for charges that included aggravated sexual assault and endangering the welfare of Victim 1. ECF No. 23-1 Ex. E. Restitullo was taken to the SVU headquarters in Jersey City, New Jersey. Mot. Suppress Hr'g Tr. (Hr'g Tr.) 122:18–24; ECF No. 16-1 at 3. At approximately 9:50 pm, in an interview room at the SVU headquarters, Restitullo was interviewed by Detective Joanne Son of the SVU. Hr'g Tr. 39:19–21; see also ECF No. 16-1 at 3; March 14, 2014 Supp. Report Det. Joanne Son, Wagenheim Decl., ECF No. 23-1 Ex. B, at 3. The Government has submitted a video recording of the interview. Hr'g Ex. 4-1, 4-2. Detective Son read Restitullo his Miranda rights, and Restitullo signed a Miranda waiver form. Id. ; ECF No. 23-1 Ex. B, at 3. As Detective Son began preparing a form granting the SVU consent to search Restitullo's dwelling, Restitullo said he did not want to speak or sign forms and invoked his right to counsel. Hr'g Ex. 4-2; ECF No. 23-1 Ex. B, at 3; see also Aff. Felix Restitullo, ECF No. 16-2 ¶ 6. Detective Son stopped the interview and escorted Restitullo out of the room and into a hallway toward a holding cell. Hr'g Ex. 4-2; ECF No. 23-1 Ex. B, at 3; ECF No. 16-2 ¶ 7.
b. The hallway exchange
The parties dispute what happened next and video surveillance is not available. Restitullo claims that, in the hallway outside the interview room, Detective Son told him that "last time you confessed without a lawyer," and that another officer, Sergeant Peter DeCarlo, approached him, stood "about an inch" from his face, and began "screaming" and "yelling" at him. ECF No. 16-2 ¶¶ 7–9. Sargent DeCarlo allegedly told Restitullo, ECF No. 16-2 ¶ 8. Restitullo then agreed to waive his Miranda rights and consent to the search of his home. He was escorted back into the interview room by Detective Son. ECF No. 16-2 ¶¶ 10–11.
The Government claims that Restitullo, not Detective Son or Sargent DeCarlo, initiated conversation on the hallway walk. Opp. Mot. Suppress, ECF No. 23 at 12. According to the Government, Restitullo asked the officers if Victim 1 was okay, and Sargent DeCarlo replied, "in sum and substance," that if Defendant really cared about his niece and wanted to know if she was okay, he would speak with the officers. Id. At this point, Restitullo agreed to waive his Miranda rights and was escorted back to the interview room by Detective Son. Id. at 9–10; ECF No. 23-1 Ex. B, at 3.
At the suppression hearing, Detective Son, Sargent DeCarlo, and Defendant Felix Restitullo each testified about the events that took place over the approximately three-minute period that the group was in the hallway outside the interview room. Detective Son testified that she and Sargent DeCarlo began to escort Mr. Restitullo back to the holding cell. Hr'g Tr. 46:18–47:6. When questioned about the specifics of the hallway exchange, Detective Son was unable to provide any details about what happened, who spoke first, or what was said, testifying only: "I don't remember the specific conversation that happened in the hallway" and "I don't recall him speaking with Sargent DeCarlo." Id. at 48:20–22, 50:11–12. She also failed to recall how she knew Restitullo had changed his mind and was interested in making a statement. Id. at 51:7–16.
Sargent DeCarlo testified that he was observing Detective Son's initial interview with Restitullo until Restitullo invoked his Miranda rights and the interview ceased. Hr'g Tr. 101:14–102:3. At that point, he joined Detective Son to assist in escorting Restitullo back to the holding cell. Id. at 102:16–18. According to Sargent DeCarlo, Restitullo then made a statement along the lines of "he hopes his niece is okay and he wants his niece to be all right." Id. at 103:13–16. Sargent DeCarlo testified that he responded to Defendant's statement by saying: "you should just be honest," which prompted Restitullo to change his mind regarding his Miranda rights. Id. at 103:17–104:1.
Restitullo testified that, upon leaving the interview room, Detective Son immediately engaged him in conversation by commenting that he confessed without talking to a lawyer the last time he was arrested. Id. at 127:13–128:7. Then, Sargent DeCarlo approached Restitullo from behind and aggressively pointed his finger at him, saying: Hr'g Tr. 128:1–7. Restitullo stated that, as a result of Sargent DeCarlo's unsolicited statement, he agreed to return to the interview room and sign various Miranda waivers. Hr'g Tr. 134:17–20.
c. Second interview and Miranda waiver
The United States has submitted a video recording of Detective Son's second interview with Restitullo. Hr'g Ex. 4-3. This video, taken immediately after the exchange in the hallway, provides a brief contemporaneous account as to what occurred during the three unrecorded minutes. Detective Son explicitly asks Restitullo why he changed his mind and decided to return to the interview room only a few minutes after invoking his Miranda rights. Hr'g Ex. 4-3. Restitullo's response, which the Court relies on to determine the credibility of each witness's recollection of the hallway exchange, see infra Discussion I.B.1, makes clear that he agreed to return to the interview room because of "the one statement he [Sargent DeCarlo] made that if I wanted, if I really care about my niece and find out what's going on then I'll talk to you guys." Hr'g Ex. 4-3. Detective Son also asked Restitullo if anyone had threatened him or made promises to him to convince him to speak, and he replied "No" to both questions. Id. Restitullo did not mention that Sargent DeCarlo had allegedly threatened to have his mother arrested, but he did ask if his mother was okay. Id. at 4-3, 4-4.
At approximately 10:12 pm, Restitullo signed documents consenting to the search of his home. ECF No. 16 at 4; ECF No. 23 at 16. After signing the form, Defendant spoke with Detective Son and Sergeant Chonda Rosario of the SVU for approximately three hours, making several inculpatory statements. ECF No. 16-1 at 4; ECF No. 23 at 17–18.
According to the Government, law enforcement officers spoke with Maria Restitullo at the SVU headquarters on the afternoon of March 13, 2014, before Felix Restitullo was arrested. ECF No. 23 at 7; ECF No. 23-1 Ex. B, at 2. According to Ms. Restitullo, the officers threatened to "break down the door" of her home if she did not give them her house key....
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