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United States of America v. Jeremy T. Brashear

October 12, 2012

UNITED STATES OF AMERICA
v.
JEREMY T. BRASHEAR



The opinion of the court was delivered by: (Judge Conner)

MEMORANDUM

Presently before the court is defendant Jeremy T. Brashear's ("Brashear") motion to suppress. (Doc. 51). The court held an evidentiary hearing on the motion on September 20, 2012. The parties have fully briefed the issues, and the motion is ripe for disposition. For the reasons that follow, the court will deny Brashear's motion.

I. Findings of Fact*fn1

In late 2010, Trooper Matt Powell of the Pennsylvania State Police advised Corporal Thomas Trusal that he had uncovered evidence of child pornography originating from the IP address 174.60.89.228.*fn2 (Doc. 68, Suppression Hearing Transcript, Sept. 20, 2012, at 6:3-10). Comcast Cable Communications ("Comcast") controlled the subject IP address. (Id. at 7:12-15). Accordingly, Corporal Trusal obtained a subpoena to retrieve from Comcast the subscriber and billing information for this IP address. (Id. at 14:23-24). Based upon an aggregate of investigative materials, including the identification of the registered account holder,*fn3 Corporal Trusal secured a search warrant for 1651 Kaiser Avenue, South Williamsport, Pennsylvania, 17702. (Id.)

On December 16, 2010, shortly after 10 a.m., Corporal Trusal, along with Special Agent Scott Earl from the Federal Bureau of Investigation, Trooper Mike Gownley, and South Williamsport Police Department Detective James Taylor and Officer Devin Thompson, arrived at the Kaiser Avenue residence to execute the search warrant. (Id. at 15:9, 19, 25, 16:1, 2, 5). Doris Wachter, her son E.W., and another individual, R.H., were located in the residence. (Id. at 19:3-5). Corporal Trusal explained who he was and why he was there while the other officers conducted a brief security sweep to account for all of the occupants of the residence. (Id. 19:9-11). The residents advised Trusal that the property contained several computers, but they insisted that no one had downloaded female child pornography onto those computers. (Id. at 19:19). They provided Trusel with a reasonable explanation for their adamant denial of child pornography which involved the sexual orientation of the computer operators. (Id. at 19:25). Thereafter, E.W. informed Trusel that defendant Jeremy Brashear, an employee of his child entertainment business, lived in a trailer on his property, owned a laptop which he frequently utilized, and had access and permission to use the household's wireless internet. (Id. at 20:8-15). Trusal immediately advised his fellow officers that there may be an additional resident living in a trailer behind the house and that this individual may possess computer equipment. (Id. at 20:23-25). The officers, believing the place to be secure and assuming all residents had been accounted for, had left their mobile forensic vehicle ("mobile unit") and squad cars unlocked. (Id. at 119:2-4). Significantly, over one-half hour passed before the officers were alerted to the presence of this additional individual who purportedly resided on the premises. (Id. at 118:24-25).

Special Agent Earl, Trooper Gownley, and Detective Taylor immediately left the residence to locate the trailer and to determine whether Brashear was occupying it. (Id. at 42:19). When they arrived at the trailer, Detective Taylor knocked but received no response. Detective Taylor knocked again, louder, and heard a male voice but no one came to the door. Eventually, after repeated knocking, Brashear answered. (Id. at 42:24-25, 43:1, 89:17-24). Detective Taylor advised Brashear to step outside while Taylor walked inside the trailer to make certain that no one else was present. (Id. at 43:9, 14). Because the trailer was so small, this security sweep lasted only a few seconds.*fn4 (Id. at 43:16-17). From his vantage point at the front door, Trooper Gownley observed a laptop computer sitting on a table. (Id. at 44:8-9). When Brashear exited the trailer he wore sweatpants, a sweatshirt, and some form of footwear. (Id. at 44:19-21, 125:8-9). Due to the extremely cold weather conditions that day, Detective Taylor returned to the trailer shortly thereafter to provide Brashear with a cold weather jacket.*fn5 (Id. at 44:18).
Trooper Gownley explained to Brashear who the officers were and why they were there. (Id. at 45:12-18). He explained that they were investigating information involving the possible downloading of child pornography to the IP address associated with the wireless connection at the Wachter residence. (Id. at 45:16). Trooper Gownley asked Brashear who he was and why he was there, information which Brashear provided. (Id. 46:2-3). Due to the cold weather, Trooper Gownley asked Brashear if he would be willing to step into the heated mobile unit.*fn6 (Id. 46:14-18). Brashear agreed and proceeded into the mobile unit with Trooper Gownley and Detective Taylor.*fn7 (Id. at 46:19). The mobile unit had two chairs and Trooper Gownley and Brashear both sat down. (Id. 46:24-25, 47:1). Because of space limitations, Detective Taylor stood in a corner of the van near the back door. which caused him to be situated behind Brashear. (Id. 64:15, 93:1-4). According to Detective Taylor, Taylor explicitly advised Brashear that he was not trying to impede Brashear from exiting the van should Brashear feel as though he no longer wished to remain in the vehicle.*fn8 (Id. 96:3-9). Both officers testified credibly that they advised Brashear he was free to leave at any time. (Id. at 74:1, 77:24, 96:1, 96:9, 96:12).

Gownley asked Brashear for his full name, his social security number, his place of employment, his address, and the length of time he had resided at that address. (Id. at 47:3-5). Gownley did not provide Brashear with Miranda warnings because Brashear was not in custody and Gownley sought only biographical and background information in the typical fashion of an initial encounter, see United States v. Valentine, 232 F.3d 350, 356 (3d Cir. 2000) (acknowledging that "it is well established that officers are allowed to ask questions of anyone [] without having any evidence creating suspicion."). (Id. 47:6-10). Trooper Gownley reiterated to Brashear that he was involved in an investigation into child pornography. (Id. 45:12-18). Gownley explained to Brashear that a computer operator was using a file share program to receive, store, and disseminate child pornography and that the subject computer was linked to the IP address assigned to the Kaiser Avenue residence. (Id. 45:16). In response, Brashear volunteered that he had a laptop, accessed the internet using the Wachter's unsecured wireless, and used file share programs. (Id. at 47:16-19). Brashear also volunteered that when he was searching for images of the celebrity Daisy Fuentes, he inadvertently happened upon a picture of a nude thirteen year-old girl. (Id. at 48:15-17). Trooper Gownley asked Brashear for consent to search Brashear's computer, but Brashear did not respond directly to Trooper Gownley's requested; instead, Brashear voiced concern about what might be found in his temporary files folder. (Id. at 48:21-25).

At this juncture, Gownley abruptly stopped the interview, because Brashear was now a suspect. (Id. at 49:4-8). Brashear asked if he could smoke and stepped outside with Detective Taylor. (Id. at 49:14, 108:10-13). During this smoke break, Trooper Gownley went to the house to inform Corporal Trusal of the status of his discussions with Brashear. (Id. at 49:15). Corporal Trusal advised Gownley that an initial search of the household computers revealed no evidence of child pornography. (Id. at 49:20-21).

Gownley, Taylor, and Brashear returned to the heated mobile unit. Before proceeding any further with the interview, Gownley read Brashear his Miranda warnings. (Id. at 51:1-2). Gownley informed Brashear that he was not under arrest, and that he was free to leave and free to not answer any questions. (Id. at 51:11-16). Brashear remained seated and did not seek to leave the mobile unit. (Id. at 51-17-18). Gownley asked Brashear for consent to audiotape their conversation, and Brashear agreed. (Id. at 51:20-22).

The recorded conversation can be summarized as follows: Brashear states that he is a thirty-eight year old male, originally from Biloxi, Mississippi, but currently residing in the trailer on E.W.'s property. (Id.) Brashear is employed by E.W. at Puppet Master Productions, and he performs sporadically as a puppeteer. (Id.) He states he has lived in Pennsylvania approximately a year and a half and has been living on the property since August 2010. (Id.) Brashear confirms that he has been read his Miranda rights and voluntarily waives them with his signature. (Id.) Brashear acknowledges that he is concerned about child pornography in his temporary files, to wit, the picture of the thirteen year-old female mentioned supra. (Id.) He further explains that, based on his work experience at various carnivals, he is able to identify different age ranges of children. (Id.) Brashear further explained that he has a penchant for "small breasted women" and "delicate chests" and, therefore, when searching for such depictions he would occasionally stumble across images of girls who looked under eighteen and that he would immediately delete these images. (Id.) When further questioned regarding files that would "pop up" or accidentally get downloaded using file share programs, the following exchange took place:

Gownley: Ok, right, so you start the process, right? So you look at the file name, right? So if you look, if I'm looking for a song, I type in the song, you know, whatever, what's the name of a song?

Brashear: I usually look up by artists like you pull up-

Gownley: Alright well I only listen to talk radio so I don't even know a ...


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