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United States v. Rogozin

November 16, 2010

UNITED STATES OF AMERICA,
v.
ALEXAI ROGOZIN, DEFENDANT.



The opinion of the court was delivered by: Jeremiah J. Mccarthy United States Magistrate Judge

REPORT AND RECOMMENDATION

This case was referred to me by Hon. William M. Skretny for supervision of all pretrial proceedings [2].*fn1 Defendant is charged in an indictment with possession and transportation of child pornography [1], and has moved for various forms of relief, including suppression of physical evidence and statements [21].*fn2

An evidentiary hearing was held on May 25 and July 28, 2010 [33, 48], at which the government offered the testimony of Customs and Border Protection ("CBP") field inspector Kevin Janiszeski, CBP officer Brian LaRosa and supervisor Daniel Pelczynski, and Immigration and Customs Enforcement ("ICE") special agent Matthew Meyer. Defendant called no witnesses. Following the hearing, the parties filed post-hearing submissions [39, 42, 43], and oral argument was held on October 28, 2010 [49].

For the following reasons, I recommend that the motion be granted in part and denied in part.

BACKGROUND

Officer Janiszeski encountered defendant entering the United States at the Lewiston, New York port of entry on the morning of August 30, 2009 ([33], pp. 11-12). Defendant was alone in his vehicle (id., p. 12). He asked defendant's citizenship, and defendant did not respond right away, possibly due to language barriers (id.). Defendant eventually stated that he was a citizen of Germany, produced a lawful U.S. permanent resident card, and said that he resided in Brooklyn (id.). In response to further questioning, he stated that he had visited Niagara Falls, Canada overnight as a tourist, and was not bringing anything back (id., p. 13). He stated that he did not know or visit anyone in Canada (id.).

During the initial interview, which lasted approximately a minute and a half, Officer Janiszeski noted that defendant's responses were hesitant, and he did not maintain eye contact (id., p. 14). Due to the lack of details in defendant's answers, his lack of eye contact, and the short length of his stay in Canada, which appeared curious, given that defendant had come all the way from Brooklyn, officer Janiszeski referred defendant to a secondary inspection (id., pp. 15-16). He explained to officer Brian LaRosa, who was conducting the secondary inspection, why he was sending defendant for that inspection (id., p. 18). At that time, he did not suspect defendant of possessing child pornography (id., p. 29).

Officer LaRosa conducted the secondary inspection of defendant's vehicle after defendant was escorted into the main building (id., p. 40). He stated that one of his duties is to prevent contraband from coming into the United States, and that he routinely searches cameras, electronic devices, and luggage (id., pp. 43-44). He conducted a "seven-point inspection" of the vehicle itself as well as its contents (id.). He looked at a digital camera and noticed that it contained photos of small children in sexually suggestive positions (id., pp. 40-41). He then viewed another camera, a laptop computer and a cell phone, all of which had similar photos (id., p. 41). He either turned on the computer or it was already on, and stated that to his knowledge, no password was required to view the photos (id., pp. 43, 57, 66).*fn3

He also viewed the video camera, which had similar images (id., p. 55). He did not see anything which would constitute child pornography on either the camera or the video camera (id., pp. 56, 62). The children in the photos he viewed were in sexually suggestive positions, but not naked (id., p. 58).

He contacted his supervisor (Daniel Pelczynski), who ended the search and authorized a patdown search of defendant, and contacted ICE (id., pp. 42, 44). Defendant underwent a full body patdown after he had been placed in a cell and removed his belt, shoes, and emptied his pockets (id., p. 45). Defendant was not free to leave (id., pp. 69, 77, 92, 134). He was not given Miranda warnings (id., pp. 69, 92, 134). Although he was not told why he was being detained (id., pp. 69-70, 92), he was detained because he was suspected of criminal activity (id., p. 78).

When ICE agents Meyer and Braisted arrived, Officer LaRosa told them about the images which he had found (id., p. 71), and turned the electronic devices over to them (id., p. 73). Agents Meyer and Braisted reviewed photos on defendant's laptop before questioning him (id., p. 94). They saw some images of naked children, and others in provocative poses (id., p. 108). They began to interview defendant in the holding cell, then took him to an office where they continued the interview with the assistance of an interpreter by speakerphone (id., p. 111).

Agent Meyer stated that the purpose of the interview was to establish defendant's admissibility into the United States, and to prevent the entry of contraband such as child pornography (id., pp.112-13). They asked him whether he had seen child pornography on the computer and who had access to the computer. He told them that he owned the computer, that no one else had access, and that he had seen child pornography on it (id., p. 113). They also asked him whether there was a password (id., p. 125). He told them the password (id., p. 134). He did not ask to stop the interview, nor did he request an attorney (id., p. 114). They did not threaten or coerce him, nor did they promise anything (id.).

Once the interview concluded, they decided to retain the laptop and other electronic devices for a forensic search (id., pp. 114-15), and defendant was allowed to enter the United States (id., p. 115). The August 30 inspection did not reveal any images that could definitely be characterized as child pornography ([48], p. 40). Agent Meyer testified that although he did not have probable cause on August 30 to believe that the laptop contained child pornography, he did have reasonable suspicion ([33], p. 140).

The forensic inspection of the laptop at the ICE office on September 3, 2009 revealed photos of "pretty obvious" child pornography, which led them to apply for a search warrant on September 23 ([48], pp. 6-7). The photos observed on September 3 were "more obvious" than those previously observed, and depicted acts of fellatio and intercourse between young children and adults (id., p. 8). They "flagged"approximately 185 images of child pornography during that inspection (id., p. 9).

They eventually applied for a search warrant on the computer, but not the camera, video recorder, or I-phone (id., p. 22). Although no pornography was observed on the video recorder, they seized or detained it (id., pp. 24-25).*fn4 He explained that an item is detained for inspection, and then seized if contraband is found on it (id., p. 29).

Following the full computer search, defendant was arrested at his home in Brooklyn on November 16, 2009 (id., pp. 120-21). He was taken to the ICE office where, after Miranda warnings were ...


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