The opinion of the court was delivered by: Charles J. Siragusa United States District Court Judge
The defendant, Dalton Wilke, stands accused in a four-count indictment of crimes relating to the sexual exploitation of children. In the defendant's omnibus motion, he moved to suppress any statements he purportedly made on the day of his arrest, August 8, 2008, as well as tangible property seized in connection with his arrest.
In regard to the defendant's application, a hearing was held on December 2 and 9, 2009. Detective Todd Crossett ("Crossett") of the Batavia Police Department and Special Agent Matthew Braverman ("Braverman") of the Federal Bureau of Investigation ("FBI"), as well as the defendant, testified at the hearing.
The Court, having considered the testimony presented and exhibits received into evidence at the hearing, and having made evaluations regarding credibility, makes the following findings of fact and conclusions of law.
Crossett is currently a detective with the Batavia Police Department, and Braverman is currently a special agent with the FBI. In August of 2008, both were involved in a child exploitation investigation regarding the defendant, Dalton Wilke. On August 8, 2008, Crossett and Braverman were present at DeWitt Park on Cedar Street in the city of Batavia when the defendant was arrested. Prior to the defendant's arrest, members of law enforcement learned that he had a New York State pistol permit for a .357 caliber handgun. At about 9:00 a.m. on August 8, 2008, after first assembling at the Batavia Police Department, about twelve to fifteen law enforcement officers in approximately five police vehicles, including Crossett and Braverman, who drove together, set up surveillance at DeWitt Park. Most of the officers were in plain clothes, although a couple of uniformed officers were present. With the exception of one Batavia Police car, all of the police vehicles were unmarked. The majority of officers present at the park wore bulletproof vests, which identified them as either "Police" or "FBI."
At about 9:03 a.m. on August 8, 2005, a red GMC pick-up truck, driven by the defendant, pulled into the parking lot of DeWitt Park and proceeded to the back of the lot before stopping. At that point, the defendant flashed his headlights in the direction of a pavilion located within the park, where a decoy officer was positioned. In that regard, Crossett, who was pretending to be a fifteen year old boy,*fn1 and the defendant had previously communicated on-line and a meeting had been arranged at DeWitt Park.
After flashing his lights, the defendant started to open the truck door, at which time Braverman called out the signal to arrest him. Upon receiving Braverman's signal, police personnel converged on the defendant's vehicle. The defendant was ordered out of his truck, and he exited with his hands raised. At the time the defendant was arrested, many of the officers involved had their guns drawn. The defendant was handcuffed behind his back, searched to make sure that he did not have any weapons, and placed into an FBI vehicle with Braverman and another FBI special agent, Michael Shaver ("Shaver"). Braverman and Shaver identified themselves and told the defendant that he was being transported to the Batavia Police Department. During the drive to the Batavia Police Department, which took about five minutes, Braverman and Shaver did not have any conversation with the Defendant.
Upon arriving at the Batavia Police Department, the defendant was taken into what is referred to as the victims' room. The room was utilized for victims of domestic violence, as well as for suspects, like the defendant, who were not causing a problem and who had not been involved in violent crimes. Approximately seven to ten minutes elapsed from the time the defendant was arrested until he was placed into the victim's room. Crossett was already present at the Batavia Police Department when Braverman, Shaver, and the defendant arrived, and it was Crossett who directed Braverman, Shaver, and the defendant to the victims' room.
Crossett and Braverman accompanied the defendant into the victims' room, which is fairly depicted in Exhibits ## 2-A, 2-B, 2-C, and 2-D in evidence. Once inside, after asking the defendant if he was going to be any sort of trouble, Braverman removed the defendant's handcuffs. Crossett then asked the defendant if he wanted anything to eat or drink or if he needed to use the restroom. In response, the defendant asked for water, and Crossett got him a bottle of water. The defendant took a seat on a chair located directly in front of the fireplace in the victims' room. Braverman sat on the couch inside the room, and Crossett pulled up a desk chair, so that he was closer to Braverman. Both Braverman and Crossett had removed the bullet-proof vests each had been wearing at the time the defendant was arrested. Further, while both Braverman's and Crossett's holstered weapons were visible in the victims' room, neither Braverman nor Crossett ever drew his weapon.
After the defendant's handcuffs were removed and he was provided with water, Braverman asked the defendant if he had any trouble understanding him, to which the defendant replied that he did not. Braverman also asked the defendant if he could read and write, and the defendant replied "yes." Braverman further asked the defendant his educational level, and the defendant responded that he had completed high school. Braverman next proceeded to advise the defendant of his Miranda*fn2 warnings, using a waiver form, Exhibit # 3, in evidence. Braverman first showed the defendant the form and asked him if he had any problems reading the words, and the defendant replied "no." Braverman then read the defendant his Miranda warnings exactly as they appear on Exhibit # 3. After doing so, Braverman asked the defendant if he had any questions, to which the defendant responded "no," adding he was only going to answer questions until he was no longer comfortable doing so. The defendant then signed the Exhibit # 3 immediately under the following two sentences: "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." Crossett and Braverman then signed the form as well, witnessing the defendant's signature. As indicated on Exhibit # 3, Braverman started advising the defendant of his rights at 9:24 a.m. and the defendant signed the form, acknowledging that he understood his rights and agreed to waive them and speak to the Braverman and Crossett, at 9:25 a.m. After the defendant signed the rights form, Braverman and Crossett proceed to interview him, although Braverman did the majority of the questioning. While the defendant appeared somewhat nervous, he was fairly calm and not overly agitated. He never cried, never raised his voice, nor was he sweating or shaking. The interview was conducted by question and answer. The defendant responded to the questions asked, and his responses were coherent.
The defendant informed Braverman and Crossett that he was an IT administrator for the Automobile Club of America. As such, he was in charge of the telecommunications and computer-related infrastructure for the organization and had approximately twenty subordinates reporting to him. The defendant was asked by Braverman and Crossett why he came to the park in Batavia that morning, to which he responded to meet a friend, whom he had met on-line, and go fishing. The defendant said the friend was an eighteen year old male. When asked why there was no fishing gear in his car, the defendant replied that his friend was supposed to bring all of the fishing gear. The defendant was also asked why he was going fishing on a day when it was raining fairly hard and he could not really answer that question. At that point, Braverman and Crossett left the victims' room because they thought the defendant was not being truthful, and Shaver came in to watch the defendant.
Outside of the victims' room, Braverman and Crossett discussed showing the defendant some of the computer chats in which he had been involved in the course of the investigation and which had been printed out. They then went back inside the victims' room, told the defendant that they didn't believe him, and explained to him that they were in possession of on-line chats, in which they believed he was a participant, and that the chats involved discussions of a sexual nature with a purportedly fifteen year old boy. They proceeded to show the chats to the defendant and gave him the opportunity to read them. Braverman and Crossett also pointed out that, in the chats, the participant, with whom the defendant was communicating, indicated several times that he was fifteen and that there was discussion about meeting that morning to have sex--not to go fishing. Upon being confronted with the chats, the defendant admitted that he was aware that the male had said that he was fifteen, although he thought that in some other chats the male had said that he was eighteen. Braverman gave the defendant the opportunity to show him the chats in which the male said he was eighteen, but the defendant declined to do so. Braverman asked the defendant to sign the chats, acknowledging that he was a party to the conversations. However, the defendant again declined to do so, indicating that he did not want to sign, and said "you have me, you have all the evidence you need."
As the interview continued, the defendant acknowledged that the screen name, "lakeboi35," used in the chats was his and that he also used Yahoo messenger to chat under a different screen name. During the interview, the defendant further indicated that he brought a web cam to give to the person he was meeting in the park. The defendant also related to Braverman and Crossett that he used his work laptop computer for all of the chats, and that he engaged in almost all the chats from home.
At that time in the interview, Braverman asked the defendant for permission to go into his residence and search for the laptop. The defendant responded that would be fine, and Braverman told him that, with respect to the laptop, a consent to search form would be needed. Braverman started to complete the form, and as he was doing so, the defendant indicated that his two young daughters were home alone, and that, since his house was going to be searched, he asked if he could, at some time, notify his daughters or contact his wife to notify them. Braverman and Crossett agreed to the defendant's request, and told the defendant that he could call his wife or his daughters once the interview was completed. Subsequently, Braverman presented the defendant with the "Consent to Search" form, introduced into evidence as Exhibit # 4, to review and sign. Braverman also presented the defendant with a "Consent to Search Computer(s)" form, introduced into evidence as Exhibit # 5, as well as a "Consent to Assume Online Presence" form, introduced into evidence as Exhibit # 6.
With respect to Exhibits ## 4, 5 and 6 Braverman placed each form, in turn, in front of the defendant, and gave him time to read and review each and to determine if he had any questions. Prior to providing the defendant Exhibit # 4, Braverman hand printed the places and things to be searched: "-My residence at 5860 West Lake Road, Conesus, New York; -All vehicles present at 5860 West Lake Road, Conesus, New York; -GMC Sierra 2004." Prior to presenting the defendant Exhibit # 5, Braverman hand printed the defendant's name, "Dalton Wilke," the computer to be searched, "Hewlett Packard Laptop," the location of the computer, "5860 West Lake Road, Conesus, New York," and the required passwords, "Username: dwilke, pw: Buffalo002," which the defendant provided. Prior to presenting the defendant Exhibit # 6, Braverman hand printed the defendant's name, "Dalton Wilke," the individuals to whom authorization to assume the online presence was being given, "SA Matthew I. Braverman and other FBI personnel," the account, "Lakeboi35 (AIM)," password "ilmj " and the account Brian-W-1988 (Yahoo password "ilmj"). The defendant provided the account information and passwords. Exhibits ## 4, 5 and 6 each contain language to the effect that the defendant had the right to refuse consent, and Braverman advised the defendant as to each that he did not need to ...