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United States v. Plugh

June 11, 2007

UNITED STATES OF AMERICA,
v.
GORDON PLUGH, DEFENDANT.



The opinion of the court was delivered by: Charles J. Siragusa United States District Court

DECISION AND ORDER

INTRODUCTION

The defendant, Gordon Plugh, stands accused in a nine-count superseding indictment charging him with crimes relating to child pornography. In the defendant's omnibus motion, he moved to suppress physical evidence seized, as well as statements made on July 14, 2005. He also moved to suppress statements given following his arrest on September 28, 2005.

In regard to the defendant's application, an evidentiary hearing was held on April 23, 2007. Special Agents James McCaffrey and Joseph McArdle of the Federal Bureau of Investigation testified as witnesses for the government, and April Field, John Plugh and the defendant himself, Gordon Plugh, testified as witnesses for the defense.

The Court having considered the testimony presented and exhibits received into evidence at the hearing, and the Court having made evaluations regarding credibility, makes the following findings of fact and conclusions of law, and grants in part and denies in part, the defendant's motion to suppress physical evidence and statements.

FINDINGS OF FACT

Joseph McArdle ("McArdle") is employed as special agent with Federal Bureau of Investigation ("FBI") and has been so employed since September of 2004. James McCaffrey ("McCaffrey") is also employed as special agent with the FBI, and he has been so employed since September of 2004. On July 14, 2005, McArdle and McCaffrey, in connection with their duties with the FBI went to the residence at 480 North Landing Road, Rochester, New York. More specifically, the FBI office in Rochester had received a lead from the Oklahoma City Division of the FBI about a possible computer hacking occurrence from that location, in which a website had been hacked into and used as a repository for child pornography images. The FBI in Oklahoma City observed log files on the hacked web site indicating the Internet Protocol ("IP") addresses which had visited the section of the site containing the child pornography and which had subsequently downloaded child pornography images. One of the IP addresses identified as downloading child pornography related to the residence at 480 North Landing Road.

McArdle and McCaffrey drove together, arriving at 480 North Landing Road between 11:30 a.m. and 12:00 p.m. on July 14, 2005. They were both dressed in plain clothes, and, while they were armed, their firearms were concealed by their clothing. McArdle and McCaffrey exited their vehicle, proceeded to the side door of 480 North Landing Road, and knocked on it. April Field ("Field"), then the defendant's fiancée and now his wife, opened the door and within moments was joined by the defendant, Gordon Plugh, who was approximately thirty-three years old at the time.*fn1 McArdle identified himself and McCaffrey as FBI agents, and both McArdle and McCaffrey showed the defendant and Field their credentials. After the defendant and Field identified themselves, McArdle, who was doing the talking, indicated that he and McCaffrey were investigating a matter out of the Oklahoma Division that involved computers and child pornography. McArdle then asked the defendant and Field if he and McCaffrey could come inside and speak to them regarding the investigation. The defendant and Field responding by inviting McArdle and McCaffrey inside of 480 North Landing Road. Once inside the residence in the foyer area, McArdle reiterated that he and McCaffrey were working a lead or investigation out of Oklahoma City. He further explained that there was a website that was hacked into that was found to be a repository for child pornography, and that the reason he and McCaffrey were there was because an IP address involved in the investigation came back to 480 North Landing Road.

The defendant and Field indicated in response that they were against child pornography, that they did not believe in that type of thing, and they didn't know anything about it. They added that they didn't know how their computer would have been identified as downloading from that site. The defendant then indicated that he did in fact have a couple of computers in the house, one in the dining room/living room, which, from their vantage point in the foyer, McArdle and McCaffrey could observe, and another one on the second floor. The defendant explained that the computers worked on a wireless network and that he employed security measures on the network to provide a fire wall.

McArdle indicated to the defendant that the specific time period involved in the downloads was November 2004. The defendant stated that, during that time frame, he recalled having a Trojan, which is a virus, on his computer, causing it to work improperly and sporadically, and, as a result, he said he threw his hard drive away in the garbage and purchased a new one. However, he stated that, after purchasing the new hard drive, the computer still did not work very well, and, as a result, he was vigilant about having anti-spyware software on the computer. While the defendant and Field were, as of July 14, 2005, the only residents of 480 North Landing Road, the defendant informed McArdle and McCaffrey that previously, until October of 2004, he and Field had a female roommate, whom he did not identify.

McArdle then asked the defendant if he and McCaffrey could speak to him privately away from Field. The defendant agreed and the three of them went outside. Once outside, McArdle asked the defendant if he could explain how an IP address with an account in Field's name and associated with 480 North Landing Road was identified as downloading child pornography. The defendant said that he had no answer for that, and then, when asked if he could have downloaded child pornography accidently, he replied no. McArdle indicated to the defendant that, in the past, the FBI had found IP information to be fairly credible, and that the only way to be certain as to whether the correct IP address had been obtained was to have the computers in the residence forensically examined by FBI experts in Buffalo. In that regard, McArdle stated to the defendant, "You have a choice. You can let us take them or not let us take them. You can resolve the matter by letting us take them. If you don't allow us to take them, the investigation will continue." At first the defendant was hesitant. He indicated that he did not want to be without computers and Internet access at the house. He indicated that he was using the computer to search for work and that Field used the Internet to play games. However, he then indicated that he would let McArdle and McCaffrey take the computer from upstairs but not the one from downstairs.

The defendant, McArdle, and McCaffrey went back inside the house, after which the defendant and McCaffrey proceeded upstairs, while McArdle waited downstairs with Field. Using a tool, the defendant unscrewed two hard drives from the computer on the second floor and handed them to McCaffrey. The defendant and McCaffrey then went back downstairs. About five minutes had elapsed from the time they went upstairs until the time they returned downstairs. When the defendant and McCaffrey were back downstairs, McArdle produced a form, received into evidence as Exhibit #1 and captioned "Consent to Search Computer(s)." The form consisted of two pages, but only page one was applicable to the situation at hand. After McArdle read page one of the form to the defendant and showed it to him, the defendant signed page one of the form in the presence of McArdle and McCaffrey, who witnessed his signature. Before the defendant signed page one of the form, McArdle asked him if he had any questions and the defendant answered that he did not. By its plain reading, in signing page one of the form, the defendant gave the FBI permission to search the two hard drives that he had handed to McCaffrey. Significantly, page one of the form includes the following language: "I have been advised of my right to refuse to consent to this search, and I give permission for this search, freely and voluntarily, and not as the result of threats or promises of any kind." In fact no threats or promises were made by McArdle or McCaffrey to the defendant to get him to sign the form, and at no time prior to signing the form did the defendant ever indicate that he wanted to consult with a lawyer. Further, the defendant was never restrained in any fashion. Moreover, the defendant did not exhibit any signs that he was under the influence of alcohol, but rather was coherent. After the defendant signed the consent form, McArdle provided him with a receipt for the two hard drives, which was received into evidence as Exhibit #2 and which was signed both by McArdle and the defendant. After providing the defendant with the receipt, McArdle and McCaffrey left 480 North Landing Road with the two hard drives. The total time that McArdle and McCaffrey were at 480 North Landing Road on July 14, 2005, was less than an hour.

Subsequently, on September 28, 2005, after a criminal complaint had been filed and an arrest warrant issued, McArdle along with FBI Special Agents Robert Kocher ("Kocher"), Doug Soika, Casey Cardi, and John Neal, went to 3 Hillside Drive, Wayland, New York, the residence of John Plugh, the defendant's father, to arrest the defendant. They arrived at 3 Hillside Drive at about 11:30 a.m. After arriving, McArdle and the other agents approached the door to the residence. They were wearing protective vests with the letters "FBI" on the vests. McArdle knocked on the door, which was answered by John Plugh. McArdle explained to the defendant's father that he needed to know where "Gordon was." In response, John Plugh indicated the other room. McArdle proceeded to walk past the defendant's father, and he arrested and hancufffed the defendant in the family room of the residence. The defendant, who had just gotten out of the shower, was allowed to get dressed and directed to take a seat in the family room.

McArdle, using an FBI Advice of Rights form, received into evidence as Exhibit #3, advised the defendant of his Miranda*fn2 rights at approximately 11:47 a.m. McArdle read the form verbatim to the defendant. The first part of the form lists the Miranda warnings as follows:

YOUR RIGHTS

Before we ask you any questions, you must understand your rights.

You have the right to remain silent.

Anything you say can be used against you in court.

You have the right to talk to a lawyer for advice before we ask you any questions.

You have the right to have a lawyer with you during questioning.

If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.

If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.

The second part of the form contains the following language, followed ...


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