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United States v. Barefoot

August 5, 2008

UNITED STATES OF AMERICA
v.
MICHAEL BAREFOOT, DEFENDANT.



The opinion of the court was delivered by: Bloch, District J.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Defendant, Michael Barefoot, was indicted by a Grand Jury on November 27, 2007 and charged with two counts of possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2). Currently before the Court is defendant's Motion to Suppress Evidence and Statements (Doc. #24).

Defendant seeks to suppress evidence and statements, starting with a computer that Allegheny County detectives took from an apartment at 1010 Broadway Avenue in Pitcairn. The Government argues that defendant abandoned his apartment and its contents. In the alternative, the Government argues that Allegheny County detectives reasonably relied on the apparent authority of the landlord to consent to the seizure of the computer.

On July 9, 2008, the Court conducted an evidentiary hearing. Detectives Gregory Matthews and Timothy Haney testified on behalf of the government. Aileen Lacivita, Elizabeth Painter and Connie Acosta testified on behalf of the defendant. At the conclusion of the hearing, the Court took the matter under advisement. After obtaining the hearing transcript, the parties submitted additional briefs (Docs. #36 and #37). There appear to be no disputes of material fact.

AND NOW, this 5th day of August, 2008, after a careful review of the Court's notes, hearing exhibits and the facts and law set forth in the parties' briefs, the Court enters the following Findings of Fact and Conclusions of Law pursuant to Federal Rule of Criminal Procedure 12(d):

FINDINGS OF FACT

1. On January 1, 2005, defendant entered into a one-year lease of an apartment at 1010 Broadway Avenue in Pitcairn, Pennsylvania.

2. Defendant's mother, Elizabeth Painter, also signed the lease and provided her home telephone number for contact purposes.

3. At the end of this initial period, the lease was automatically renewed on a month-to-month basis.

4. Either party could have terminated the lease by giving written notice of sixty days, but there is no record evidence that this occurred.

5. At some point early in 2007, the defendant fell behind in his rent payments. 6. The landlord, Gregory Beley, called Painter about the matter, and Painter met with Beley to make a payment.

7. On May 24, 2007, Beley filed a Landlord and Tenant Complaint against defendant and his mother, claiming that defendant was three months behind in his rent payments.

8. A hearing was held on June 4, 2007, at which Beley, the defendant and Painter appeared.

9. On this date, judgment was entered against the defendant and Painter for $1,254.50, which included overdue rent payments, water utility fees and judgment costs.

10. After the hearing, the defendant and Beley discussed the matter outside the courtroom. Defendant expressed his intention to pay his debt.

11. On June 6, 2007, the court issued a Notice of Judgment, which was served on the defendant and Painter. The Notice of Judgment stated: "Possession granted if money judgment is not satisfied by time of eviction."

12. Sometime later, defendant made a "good faith payment" of $125 to Beley.

13. After a landlord obtains a judgment and it remains unsatisfied, a landlord must submit a "Request for Order of Possession" to start the eviction process. Deft. Ex. B.

14. Beley never requested an Order of Possession with regard to defendant's apartment at 1010 Broadway.

15. Sometime prior to the May 24 hearing and continuing thereafter, defendant began sleeping on a couch in his mother's apartment in North Versailles. The only items he brought to his mother's apartment were a few items of clothing and a toothbrush.

16. According to Painter's cell phone and home phone records, Beley never attempted to contact defendant by telephone after the June 4 hearing to discuss rent payments or to instruct him to retrieve his personal belongings from the apartment. Deft. Ex. D and E.

17. On or about August 25, 2007, a maintenance worker hired by Beley, Andre Lukotich, was working in the apartment.

18. Lukotich accessed defendant's desktop Compaq computer and found what he thought were images of child pornography.

19. On August 28, 2007, Lukotich reported what he had seen to the Pitcairn police, who relayed the information to the Allegheny County Police Department.

20. Later that day, County Detectives Daniel Mayer and Gregory Matthews met the landlord, Gregory Beley, at the apartment building.

21. Beley told them that he had obtained a "judgment for eviction" in May.

22. Beley showed them a copy of the Landlord and Tenant complaint that he had filed against defendant and his mother.

23. He did not show them a copy of the Notice of Judgment or any document establishing that an eviction had been effected.

24. He told detectives that he had attempted to contact defendant several times and that the utilities had been turned off until he turned them back on two weeks before.

25. There was a "for rent" sign in the front yard and a sign for Beley's construction company.

26. On the porch of the apartment building were a number of boxes and bags, which contained defendant's belongings that the landlord had removed from the apartment.

27. Beley opened the door to the apartment with a key and told detectives that the locks had not been changed.

28. According to Detective Matthews, the living room was "sparse," and the floor was covered with tarps and plastic sheeting, which indicated that renovations were underway. A Compaq desktop computer and related equipment were sitting on a table. Detectives found a dresser in the bedroom containing a pay stub and three personal photographs. Detective Matthews did not observe a bed, bedding or any couches or chairs.

29. Beley told the detectives that he was in the process of "getting rid of the possessions."

30. The detectives then took possession of the Compaq computer.

31. On August 29, 2007, Detective Matthews went to the office of the magistrate district judge and obtained a copy of the Notice of Judgment that Beley had obtained against the defendant. Govt. Ex. #1.

32. In the evening of August 29, 2007, the detectives interviewed Andre Lukotich. He confirmed what he had originally told the Pitcairn police. He stated that he was in defendant's apartment on August 25, 2007, and he turned on defendant's computer. Lukotich told detectives that while he was looking for music files, he found video and still images that he described as showing young children between the ages of 5 and 7 performing sex acts ...


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