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United States v. Smith

April 24, 2008

UNITED STATES OF AMERICA
v.
JAMES SMITH



The opinion of the court was delivered by: Arthur J. Schwab United States District Judge

FINDINGS OF FACT AND CONCLUSIONS OF LAW ON DEFENDANT'S MOTION TO SUPPRESS

I. PROCEDURAL HISTORY

A federal grand jury indicted defendant, James Smith, in a two-count indictment that alleges violations of Title 18, United States Code, Section 2252(a)(2). The indictment alleges that defendant distributed visual depictions of minors engaging in sexually explicit conduct on or about January 29, 2007, and that on or about January 29, 2007, defendant knowingly received visual depictions of minors engaging in sexually explicit conduct. On April 29, 2007, defendant filed a Motion to Suppress (Document No. 38), alleging that his statements should be suppressed because at the time of the interrogation defendant was "in a custodial situation," and thus, the questioning was in violation of his Fourth and Fifth Amendment rights. A Suppression Hearing was held before this Court on January 9, 2008, during which the government called United States Postal Inspector Joseph Bellissimo (hereinafter "Bellissimo") as its sole witness. The defendant offered no evidence.

After hearing the testimony of Bellissimo, and after careful consideration of the government's Proposed Findings of Fact and Conclusions of Law, as well as the defendant's Proposed Findings of Fact and Conclusions of Law, this Court will deny defendant's Motion to Suppress (Document No. 38).

II. FINDINGS OF FACT

1. Bellissimo has been a United States Postal Inspector for 17 years, and as a postal inspector he investigates crimes against children, including child pornography, child abduction, and child pornography. Prior to becoming a postal inspector, Bellissimo worked for the Federal Bureau of Investigation. (Transcript of Suppression Hearing ("S.H.") January 9, 2008 (Document No. 48) at 4).

2. Bellissimo became involved in the investigation defendant in October of 2006. The case involved an undercover computer-based investigation relating to an individual (later determined to be defendant), who was corresponding in chat groups related to incest and sex with children (S.H. at 5).

3. The discussions between an undercover inspector and defendant progressed to specific discussions and plans for defendant to have sex with the undercover inspector's alleged 7 year-old daughter. On January 18, 2007, defendant directed the undercover inspector to take photographs of the girl in specific positions in order to teach or prepare the daughter to have sex with defendant. The photos were then to be mailed to defendant's residence. (S.H. at 6 -- 7).

4. A plan was devised to conduct a controlled delivery of 10 photographs containing child pornography, similar to those requested by defendant, by priority mail, to defendant's residence. (S.H. at 7, 19).

5. Bellissimo has engaged in "hundreds" of search warrants and the standard operating procedures for the instant search and the number of personnel present at the controlled delivery was consistent with prior searches. (S.H. at 8).

6. On January 29, 2007, at approximately 1:35 p.m, Bellissimo, along with five others, executed the controlled delivery at the defendant's residence at 1939 Dartmore Street, Pittsburgh, Pennsylvania, 15210. Defendant received the package and, pursuant to the plan, the surveillance team waited three to four minutes before approaching the residence. (S.H. at 9).

7. Bellissimo and a uniformed Pittsburgh police officer then approached the house and knocked on the door. Defendant voluntarily opened the door, and Bellissimo observed defendant holding the opened child pornography package. (S.H. at 10).

8. After Bellissimo identified himself, he told defendant that he had a search warrant, that the team needed to clear the residence for everyone's safety, and that they needed to talk to him about the contents of the priority mail package. During the execution of the search warrant, no weapons were drawn. (S.H. at 11-12).

9. After the residence was cleared, Bellissimo and Agent Denise Holtz (hereinafter "Holtz") asked defendant if there was a place where they could sit down and talk. Defendant chose an upstairs bedroom, and once in the bedroom, Bellissimo and Holtz told defendant repeatedly that "he was not under arrest, he wouldn't be arrested today, that he was free to leave at any point and that he didn't have to answer our questions." (S.H. at 12).

10. Bellissimo told defendant that if he chose to leave the residence, the search warrant would continue being executed and that he may walk around the home so long as a law enforcement agent accompanied him. (S.H. at 12-13).

11. Defendant responded to Bellissimo and Holtz's statements that he was not under arrest, and that he need not speak to them, by agreeing to talk and proceeding to make statements. Bellissimo did not Mirandize defendant because Bellissimo ...


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