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United States of America v. William Mcfall

January 19, 2012

UNITED STATES OF AMERICA,
v.
WILLIAM MCFALL, DEFENDANT.



The opinion of the court was delivered by: Conti, District Judge.

MEMORANDUM OPINION AND ORDER

Pending before the court is a motion to suppress evidence and statements (ECF No. 83) filed by Defendant William McFall ("Defendant" or "McFall") in the above-captioned case. On November 27, 2007, a federal grand jury in the Western District of Pennsylvania returned a one-count indictment charging Defendant with possession of child pornography in violation of 18 U.S.C. § 2252(a)(4)(B). (ECF No. 1.) On September 14, 2010, the court held a competency hearing as to Defendant, and in a memorandum opinion issued on February 4, 2011 found Defendant competent to stand trial. (ECF No. 76.)

On June 8, 2011, Defendant filed a motion to suppress evidence and statements (ECF No. 83) and a motion to produce evidence under Federal Rules of Evidence 404(b) and 609 (ECF No. 84). The court held a hearing on those pretrial motions on October 17, 2011. During the hearing, the court denied as moot Defendant's motion for production of evidence (ECF No. 84.) The court also denied portions of Defendant's motion to suppress evidence. Specifically, the court denied Defendant's motion to suppress with respect to Defendant's argument that the warrant was not supported by probable cause, and denied Defendant's motion for a Franks hearing. The court heard testimony from McFall, as well as from two government witnesses:

Special Agent Kenneth Rochford ("Rochford") of Immigration and Customs Enforcement ("ICE"); and Detective Lynn Havelka ("Havelka") of the Allegheny County District Attorney's Office. The parties filed proposed findings of fact and conclusions of law with respect to the two grounds raised in the motion to suppress which were not ruled upon during the suppression hearing: (1) alleged violations of the Miranda requirements; and (2) the voluntariness of Defendant's confessions. Defendant filed his proposed findings of fact and conclusions of law on December 19, 2011 (ECF No. 99), and the government filed its proposed findings and conclusions on December 20, 2011 (ECF No. 100). Upon consideration of the parties' submissions and the evidence and testimony presented at the suppression hearing, the court makes the following findings of fact and conclusions of law:

I. Findings of Fact

1. Federal agents and local police officers (collectively, the "agents") executed a search warrant at Defendant's residence on the morning of May 7, 2007. (Hr'g Tr. Oct. 17, 2011 ("Suppression Transcript") (ECF No. 98) at 93-94.) The team executing the warrant was comprised of five ICE agents, including Rochford, as well as Havelka and Pennsylvania State Trooper Tyler ("Tyler"). (Id. at 110.)

2. Defendant's aunt, Vivian Consuelo ("Consuelo"), was the owner of the residence, a trailer home. (Id. at 94.) Defendant lived in the residence with his aunt. (Hr'g Tr. Oct.6, 2010 ("Competency Transcript") (ECF No. 70) at 109.)

3. Consuelo was present at the residence when the agents arrived. (Suppression Transcript (ECF No. 98) at 95.)

4. Defendant was not at the residence when the search began; he was working as a janitor at the Lawrence County Courthouse. (Id. at 94-95.)

5. Defendant has worked as a janitor at the Lawrence County Courthouse for thirty-five years. (Id. at 175.) He has no hearing in his left ear and has lost eighty percent of his hearing in his right ear. (Id. at 176.) He graduated from high school in a special education program. (Id. at 175.) The court previously found, in connection with Defendant's competency hearing, that Defendant "has a bilateral hearing loss, and is borderline mentally retarded." United States v. McFall, No. 07-411, 2011 WL 465718, at *13 (W.D. Pa. Feb. 4, 2011). In preparation for his prior competency hearing, Defendant underwent intelligence testing by Dr. Joel D. Grover, a psychologist employed by the Western School for the Deaf, who tested him with instruments designed for deaf individuals, and found that he has an IQ of 65, identifying him as a "Deaf Individual with a Mild Intellectual Disability." Id. at *8.

6. After the agents began the search, Tyler, accompanied by a local police officer, was sent to retrieve Defendant from his place of work, advise him about the search warrant, and convince him to return home. (Suppression Transcript (ECF No. 98) at 95.) Police officers are usually not sent to retrieve suspects during the execution of search warrants, but Tyler was sent because he "knew Mr. McFall from prior interactions." (Id. at 112, 131.) Defendant, however, did not know Tyler. (Id. at 191.)

7. Defendant was cleaning state magistrate judges' offices the morning of the search and was in his truck driving between locations when he received a phone call from a state trooper. (Id. at 177-78.) The trooper told Defendant to return to the courthouse. Defendant believed he was required to return to the courthouse. (Id. at 178.)

8. When Defendant returned to the courthouse, he was met by the two armed, uniformed police officers, one of whom was Tyler. (Id. at170.) Tyler told Defendant, "I'm not here to arrest you; get your stuff, punch out and go home." (Id. at 180.) Tyler did not say anything about a search warrant. (Id. at 181.)

9. Defendant was worried his aunt had been harmed, returned to his truck and drove his truck home, followed by Tyler. (Id.)

10. When Defendant arrived at his residence, he was patted down by Rochford outside the house. (Id. at 181.) Defendant testified Rochford disarmed him of a penknife, but Rochford does not recall that happening. (Id. at 181, 113.) Tyler and the other police officer who met McFall at the courthouse were also outside with Rochford and McFall during the pat down. (Id. at 114.) Several neighbors were watching from a nearby home. (Id. at 183.)

11. When Defendant entered the house, he found approximately five agents moving from room to room and searching the home. (Id. at 184.) He saw Consuelo standing in the living room, crying. (Id. at 183.) As they entered the house, Rochford, who was armed but not in uniform, presented Defendant with the search warrant, told Defendant that the agents were at the residence to execute a search warrant and question him, and told Defendant he was free to leave the residence if he did not want to be questioned. (Id. at 159.) McFall did not remember hearing Rochford tell him that he was free to leave the house. (Id. at 184.) Rochford told McFall that he should sit at the kitchen table if he wanted to talk to the agents, but to sit in the living room if he did not want to say anything; Defendant did hear Rochford give him these two options. (Id.) Defendant heard that he was not required to speak to the agents. (Id.)

12. Defendant decided to sit at the kitchen table for questioning and was willing to speak to the agents. (Id. at 194.)

13. The kitchen is immediately adjacent to the living room. (Id. at 189.)

14. The questioning in the kitchen began at approximately 11:00 a.m. and concluded between thirty and forty minutes later. (Id. at 100, 106.) Rochford, Havelka and Defendant were all seated at the kitchen table during the interview, within a few feet of each other. (Id. at 96, 135.)

15. Defendant was not given complete Miranda warnings, either written or oral. (Id. at 130, 156.) At the beginning of the questioning Rochford told Defendant he could have an attorney present, did not have to answer any questions, was not under arrest, and could leave. (Id. at 98, 99, 143, 146-47, 158-60.) Rochford asked McFall if he understood that advice, and he said he did. (Id. ...


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