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United States of America v. Austin Ayers Winther

November 18, 2011

UNITED STATES OF AMERICA
v.
AUSTIN AYERS WINTHER



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

MEMORANDUM

I. INTRODUCTION

Defendant Austin Ayers Winther is charged with one count of enticing interstate travel for illegal sexual activity in violation of 18 U.S.C. § 2422(a), one count of using means of interstate commerce to entice a minor to engage in illegal sexual activity in violation of 18 U.S.C. § 2422(b), and four counts of attempted transfer of obscenity to a minor in violation of 18 U.S.C. § 1470. Presently before the Court are Defendant's Motion to Suppress Statement and Defendant's Motion to Suppress Physical Evidence. The Court conducted an evidentiary hearing and heard oral argument on the motions on November 4, 2011. For the reasons set forth below, the Court denies both motions.

II. BACKGROUND

Federal Bureau of Investigation ("FBI") agents arrested defendant at Philadelphia International Airport on March 14, 2011, following an undercover investigation that lasted approximately six months. From October 20, 2010, until March 2011, defendant allegedly engaged in extensive, sexually charged communication over the Internet with an undercover police officer in Boise, Idaho, believing the undercover officer to be a mother and her thirteen- year-old daughter ("Jill" and "Jen," respectively). The government contends that defendant went to the airport because he believed "Jill" and "Jen" were traveling to Philadelphia to visit him and engage in sexual acts with him. Defendant moves to suppress a statement he made to FBI agents after his arrest on March 14, 2011, and evidence from a computer that agents recovered from defendant's home pursuant to a search warrant.

A.Facts

1. Arrest and FBI Interview

FBI Special Agent Andrea Manning arrested defendant at Philadelphia International Airport on March 14, 2011, around 11:30 a.m. (Nov. 4, 2011, Suppression Hearing Tr. ("Tr.") 6-7.) FBI agents Andrew Braybender, Brian Coglin, and Brett Bonine were also present. (Id. at 7.) At that time, the agents told defendant that he was under arrest for enticing a minor for sexual purposes but did not question him. (Id. at 8, 26.) Agents Braybender and Bonine transported defendant to the FBI Field Office in Philadelphia. (Id. at 9.) No questioning took place during the transport. (Id. at 28.)

At the FBI Field Office, defendant was processed and fingerprinted. (Id. at 9.) Thereafter, the United States Pretrial Services Office interviewed him ("the Pretrial Services interview"). (Id. at 9, 32-33.) As part of the Pretrial Services interview, defendant answered questions about his "age, background . . . mental health status . . . and personal information." (Id.) Agents Manning and Bonine began an interview ("the FBI interview") with defendant around 1:00 p.m. (Id. at 9-10, 33.) After she and Agent Bonine introduced themselves, Agent Manning told defendant something to the effect of "this was his one chance to tell the truth and be cooperative." (Id. at 34.) Manning only made this one statement about defendant's opportunity to cooperate before advising defendant of his Miranda rights; she did not make "any promises or offers" to defendant and did not ask him any questions before the Miranda rights were given. (Id. at 35.)

At 1:06 p.m., Agent Manning reviewed an "Advice of Rights" form with defendant and advised him of his Miranda rights: "We went over [the form], the main points . . . he doesn't have to talk to us if he doesn't want to, he can contact his attorney. We made sure he understood that, asked him if he had any questions." (Id. at 10-14.) Defendant read the form, stated that he understood his rights, and, at 1:07 p.m., signed the form below a line that read: "I have read this statement of my rights and I understand what my rights are. At this time, I am willing to answer questions without a lawyer present." (Id.) Agents Manning and Bonine then interviewed defendant, who "gave an inculpatory statement regarding his online communications." (Def.'s Mot. Suppress Statement ("Mot. Supp. Statement") 1.) About forty minutes later, defendant said he was "getting tired and didn't feel like he could really focus," and the agents stopped the interview. (Tr. 15.) U.S. Marshals took custody of defendant at 2:15 p.m. (Id. at 40.)

2. Seizure and Forensic Analysis of Defendant's Computer

United States Magistrate Judge Restrepo approved a search warrant for defendant's house on March 11, 2011. (Search Warrant, Def.'s Mot. Suppress Phys. Evid. ("Mot. Supp. Phys. Evid.") Ex. A; Tr. 16-17.) The warrant was supported by Agent Manning's thirty-five-page affidavit in support of probable cause, which recounted the details of the undercover investigation.*fn1 (Andrea Manning Aff. ("Manning Aff."), Search Warrant Attach.; Tr. 17.) The affidavit included a section on "Specifics Regarding the Seizure and Searching of Computer Systems" that requested authorization "to search, copy, image and seize the computer hardware. . . and to conduct an offsite search," citing the complexity of computer searches. (Id. at 33-34.) The affidavit explained the search methodology that the FBI would employ if permitted to do an offsite search. (Id. at 34-35.)

The warrant stated that the search was to be executed "on or before March 24, 2011." (Search Warrant 1.) Attachment B to the warrant, incorporated by reference, was a list of "Items to be Searched for, Seized, and Examined" ("the Item List"). The Item List included:

3. All documents (in documentary or electronic form), including correspondence, records, e mails, chat logs, and internet history, pertaining to violations of Title 18, United States Code, Sections 2242(a), 2422(b) and 1470 or pertaining to an interest in the sexual abuse of children whether transmitted or received. . . .

4. All . . . records bearing on the production, reproduction, receipt, shipment, orders, requests, trades, purchases, or transactions of any kind involving the transmission through interstate or foreign commerce including . . . by computer evidencing a sexual interest in minors.

5. All records which evidence operation or ownership or use of computer equipment found in the above residence . . . .

9. All computer passwords, keywords and other data security devices designed to restrict access to or hide computer software, documentation, or data. . . .

10. Evidence of logs and files on a computer or storage device . . . which describes the history and use of the device, including but not limited to files indicating when files were written, were opened, were saved, or were deleted. . . . .

11. The following may be seized and searched for all items listed above, and for any items specifically noted in the paragraphs below:

a. Computer hardware . . .

b. Computer software, meaning any and all data, information, instructions, programs or program codes . . . .

c. Computer related documentation . . . .

d. Data security devices . . . .

e. All storage media . . . .

The above seizure of computer and computer related hardware related to such computer related items as being the instrumentalities of crime and also to allow for analysis/search for evidence of crime in an appropriate forensic setting. Upon a determination that such examination would be more appropriately made in a controlled environment, the storage media may be removed and examined in a laboratory location. (Item List 2-4.)

FBI agents searched defendant's house on March 14, 2011, and seized defendant's computer, which they gave to Agent Manning that same day. (Tr. 18.) She brought it to the FBI regional forensic laboratory in Radnor, Pennsylvania, on March 22, 2011. (Id. at 19.) On May 11, 2011, Manning received the lab's forensic report and "work product" that agents recovered from defendant's computer. (Id. at 19-20.) The work product included the fifty-eight pages of documents (hereinafter the "logs and records") that are the subject of defendant's motion to suppress physical evidence. (Id. at 20-21.) The logs and records include some of defendant's Internet search and usage history and e-mail exchanges and logs of Internet Relay Chat conversations with individuals whom defendant believed to be underage girls or their mothers. Some of ...


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