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United States v. Albertson

December 11, 2006

UNITED STATES OF AMERICA, PLAINTIFF,
v.
RANDY ALBERTSON, DEFENDANT.



The opinion of the court was delivered by: Judge Jones

ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Pending before the Court is a Motion to Suppress ("the Motion") (doc. 23) filed by Defendant, Randy Albertson ("Defendant" or "Albertson"), on July 12, 2006. For the reasons that follow, the Motion will be denied.

PROCEDURAL HISTORY

On May 11, 2006, the Grand Jury for the Middle District of Pennsylvania returned a two-count Indictment against Randy Albertson. (See Rec. Doc. 1). In Count One, he was charged with Knowingly Receiving Material Containing Child Pornography, as Defined in 18 U.S.C. § 2256(8), That Had Been Transported in Interstate or Foreign Commerce by a Computer, in violation of 18 U.S.C. § 2252A(a)(2)(B), and in Count Two, he was charged with Knowingly Possessing Child Pornography, Having Reason to Know That It Had Been Transported in Interstate and Foreign Commerce by a Computer, in violation of 18 U.S.C. § 2252A(a)(5)(B). (Rec. Doc. 1). On October 12, 2005, the Grand Jury returned a Superseding Indictment charging Albertson with the same, but expanding the dates in which Defendant allegedly possessed child pornography to January 1, 2003, through January 27, 2006. (Rec. Doc. 58). We note that Defendant has been detained since May 15, 2005 (see docs. 11, 18, 35, 72), and Defendant has pleaded not guilty to the charges (see doc. 70).

On July 12, 2006, Defendant filed the instant Motion to Suppress (doc. 23), which has been briefed by the parties. On September 5, 2006, this Court conducted an evidentiary hearing on the Motion. (See Hearing Transcript, Sept. 5, 2006 ("H.T.")). At the conclusion of the proceedings, the Court permitted counsel to file supplemental briefs, which will be referred to in our analysis. Having received those supplements (docs. 55, 64), the record is now closed and the matter is ripe for our review.

At the evidentiary hearing, the Government called Defendant's estranged wife Trudy Albertson ("Mrs. Albertson") and Joseph Wondoloski, a criminal investigator with the Bloomsburg Police Department, as its witnesses. (See H.T.). Defendant called Scott Sotack, a Pennsylvania State Police Trooper, as his witness.

(See H.T.).

FACTUAL BACKGROUND

Prior to Defendant and Mrs. Albertson's marriage in August of 2003, they lived together. (H.T. 5:7-20, 18:1-1-3). Two of Mrs. Albertson's daughters from a prior relationship, Britney and Deserae, lived with the Albertsons in Bloomsburg, Pennsylvania. (H.T. 6:1-11). Defendant's three sons from a prior relationship did not live with them. (H.T. 8:21-25, 9:1-4).

In or about February of 2003, Defendant and Mrs. Albertson decided to purchase a computer that "the kids" could use to do schoolwork. (H.T. 6:16-24, 15:13-19). Accordingly, on February 12, 2003, Defendant purchased a Gateway computer ("the Gateway" or "the computer") using his MBNA credit card. (H.T. 7:1-12, 17:2-8; Ex. D-1). Upon receipt of the credit card bill, Defendant paid it. (H.T. 7:15-18).

After the Gateway arrived, it was set up in the dining room of the soon-to-be Albertsons' home. (H.T. 8:16-18). It was also set up for Internet access. (H.T. 7:19-21). Internet access through AOL was free for the first year that the Albertsons had the Gateway, and after that, Mrs. Albertson paid for Internet service through a cable company. (H.T. 7:22-25, 8:1-6). Thus, from approximately 2004 until at least September 5, 2006, the date of the evidentiary hearing, Mrs. Albertson paid for the Albertsons to have Internet access via the Gateway. (H.T. 8:1-13). Initially, the Internet was available to everyone in the house, and they all had passwords that they used to access it. (H.T. 9:5-8, 21:11-15).

Throughout the years that the Albertsons have had the Gateway, the entire family has had access to it. (H.T. 8:19-20). Indeed, Defendant now concedes that the Gateway "was kept in the dining room of the Albertson home and was accessible by the entire family . . . ." (Rec. Doc. 55 at 2).

Mrs. Albertson's daughters Britney and Deserae used the computer for school work, and Defendant's sons used the Gateway when they visited the Albertsons' home. (H.T. 9:2-20, 11:4-7). Over the years, Mrs. Albertson personally observed at least Defendant, herself, her daughters, and two of Defendant's sons using the Gateway. (H.T. 9:9-17). The testimony is clear and consistent: Mrs. Albertson, among many others, used the Gateway. (H.T. 9:9-17, 11:4-7, 23:4-5).

In April or May of 2005, Britney and Deserae told Mrs. Albertson that Defendant had been viewing adult pornography on the Gateway. (H.T. 19:18-22, 20:2-14). Also around that time, Mrs. Albertson also found a picture, in Defendant's dresser, of a naked girl whom Mrs. Albertson approximated to be thirteen (13) or fourteen (14) years old. (H.T. 27:25, 28:1-6, 29:4-10). The picture had been printed from the computer. (H.T. 28:1). Mrs. Albertson knew that the picture and the computer were connected because written at the top and bottom of the paper was information about the website from which the picture had been taken. (H.T. 31:11-24).

In response to her daughters' report and her own observation of the picture in Defendant's drawer, Mrs. Albertson talked with Defendant about the situation and then denied Defendant access to the computer, or at least the Internet. (H.T. 9:21-25, 10:1-9). Mrs. Albertson, Britney, and Britney's boyfriend effectively terminated the password-protected account that Defendant had used to access the Internet. (H.T. 10:2-6, 21:16-20).

At or about the end of October of 2005, the Albertsons moved, but remained in Bloomsburg. (H.T. 10:17-21). Defendant, Mrs. Albertson, and her two youngest daughters, Britney and Deserae, continued their residence together. (H.T. 9:11-14, 10:23-25). As they had in their prior home, the Albertsons set up the Gateway in the dining room area of their new home. (H.T. 11:2-3).

However, after the Albertsons' October 2005 move, Mrs. Albertson saw not only herself, her two daughters, and two of Defendant's sons using the computer, but also Defendant, because at some point, Defendant was once again permitted access to the Internet. (H.T. 11:4-7, 12:17-20). Defendant's account was not reinstated. Rather, family members signed onto the Internet using their own user name and password and then allowed Defendant to use the computer. (H.T. 12:21-22). Once in a while, Mrs. Albertson signed onto the ...


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