United States District Court, S.D. California
ORDER DENYING MOTION TO SUPPRESS
Roger T. Benitez, United States District Judge
before the Court is Defendant’s motion to suppress.
Defendant seeks to suppress statements and computer evidence.
The motion is denied.
Scott Victor Waguespack was arrested on a two-count complaint
alleging violations of 18 U.S.C. § 2252(a)(2),
Distribution of Child Pornography, and 18 U.S.C. §
2252(a)(4)(B), Possession of Child Pornography. Waguespack is
suspected of distributing images using email addresses
“firstname.lastname@example.org” and an Internet Protocol
(IP) address of 126.96.36.199 with a listed service address
of 610 Flintridge Place, Escondido, California.
Homeland Security law enforcement officers went to the
Escondido address on January 28, 2015 to investigate. They
used a technique known as a knock and talk. They talked with
Defendant. They carried away two Dell computers alleged to
belong to Defendant. Approximately nine months later, ten
officers dressed in tactical gear returned to the address and
placed Defendant under arrest.
has provided a sworn declaration in support of his
motion.Defendant argues that his Fourth and Fifth
Amendment rights were violated during the January encounter.
Specifically, he argues that he did not freely and knowingly
consent to talk with officers and he did not freely consent
to the search of his two Dell computers. An evidentiary
hearing was held at which two officers testified. These were
two of the three officers that went to Defendant’s home
in January and conducted the knock and talk. Defendant did
not testify. Additionally, an audio recording of the
questioning of Defendant at the January knock and talk was
offered into evidence.
now heard all of the evidence, the Court finds that Defendant
freely, voluntarily, and intelligently consented to have the
officers enter his house and talk and freely, voluntarily,
and intelligently consented to the seizure and search of his
two Dell computers and email accounts. Miranda
warnings were given and Defendant indicated he understood his
rights. He was neither physically nor psychologically coerced
or threatened. The officers wore plain clothes and though
armed, their firearms were covered. They did not shout or
threaten with loud commands. The officers reminded Defendant
that he was not under arrest and could leave if he wanted.
The Defendant acknowledged that he had computers and that he
had child pornography on the computers. The Defendant
voluntarily showed officers where his bedroom was located
(which was in the garage). There was no evidence suggesting
the two Dell computers that were seized were anywhere other
than in plain sight of the officers viewing the bedroom area.
He was not deprived of sleep or sustenance. There is nothing
to indicate that Defendant’s will was overborne or that
he was especially vulnerable. His Miranda waiver was
voluntary; his statements were voluntary; his consent to
search the computers and use his email was voluntary. The
motion to suppress is denied.
warrantless search is unconstitutional unless the government
demonstrates that it falls within an exception to the warrant
clause. Consent is one such exception. “[A warrantless]
search conducted pursuant to a valid consent is
constitutionally permissible.” Schneckloth v.
Bustamonte, 412 U.S. 218, 222 (1973). Whether consent to
search was voluntarily given is determined from the totality
of the circumstances. Schneckloth, 412 U.S. at 227.
The government bears the burden of proving that consent was
voluntary. United States v. Brown, 563 F.3d 410, 415
(9th Cir. 2009) (citation omitted). To decide whether a
consent to search was voluntary, the Ninth Circuit uses five
factors as “guideposts” (rather than as a
mechanized formula) where no one factor is determinative.
Id. (citations omitted). These factors are: (1)
whether the consenting individual was in custody; (2) whether
the arresting officers had their guns drawn; (3) whether
Miranda warnings were given; (4) whether the
individual was notified that he had a right to withhold
consent; and (5) whether the individual had been told a
search warrant could be obtained. Id. In addition to
these five factors, “a court must look at the
‘possibly vulnerable subjective state of the person who
consents.’” United States v. Soriano,
361 F.3d 494, 502 (9th Cir. 2003).
respect to the first factor, a seizure occurs when, taking
into account all of the circumstances surrounding the
encounter, the police conduct would have communicated to a
reasonable person that he was not at liberty to ignore the
police presence and go about his business.”
Brown, 563 F.3d at 415 (citations omitted). In
Brown, the individual giving consent was approached
by five or six officers with guns drawn and was ordered to
the ground, handcuffed, and patted down for weapons in a
public setting. Id. After the individual was
uncuffed, she was told that she was not under arrest. She
then consented to a search of her residence. Brown
concluded she was not in custody. Id.
was approached by three officers in plain clothes knocking on
his door. No guns were drawn. No guns were even visible.
Waguespack was not ordered to take any position. He was not
patted down. He was not handcuffed. Instead, Waguespack
consented to have the three officers enter his living room
and answer questions. He was told that he was not under
arrest and was free to leave. The officers used a calm voice
rather than a loud command voice when speaking. The first and
second factors point to a finding of voluntary consent.
the third and fourth factors, Waguespack was given
Miranda warnings midway through the encounter and he
was told numerous times that he was not under arrest and was
free to leave. These factors also point to a finding of
the fifth factor, nothing was said about most aspects of the
interaction, i.e., the initial entry into the house,
the questioning of Waguespack, or the walk through the house
to Waguespack’s bedroom area in the garage. The knock
and talk with Waguespack was predominantly, if not entirely,
consensual. It was similar in all relevant respects to the
knock and talk investigation described and approved in
United States v. Cormier, 220 F.3d 1103, 1110 (9th
Cir. 2000) (“Several factors support the district
court’s finding that the encounter was entirely
consensual. First, Cormier was confronted by only Peters when
he opened the door and she was dressed in plain clothes. In
addition, Peters never displayed her weapon during the entire
encounter, further illustrating that she did not employ
physical force or official authority to gain entry into the
room. Third, Peters never spoke to Cormier in an
authoritative tone or led him to believe that he had no
choice other than to answer her questions. Furthermore,
Cormier failed to present any evidence that he ever attempted
to terminate the encounter with Peters or that he was not
entitled to do so. Finally, there was no testimony to
indicate that Cormier was not at liberty to ignore the police
presence and go about his business. These factors combined
with the amicable nature of the encounter support the
district court's finding that Cormier was not
seized.”) (citations omitted). Once Waguespack told the
officer that he had exchanged child pornography and that he
used the two computers in his bedroom area to do it, the
officer did tell Waguespack that his computers and email
accounts would be searched regardless of whether he
consented. Nevertheless, Waguespack signed a written consent
to search his computers. And while he did not sign the form
to use his email, he did express a desire that the officers
use his email to catch the producers of the pornography.
regarding whether Waguespack was in a “possibly
vulnerable subjective state, ” Soriano, 361
F.3d at 502, there is no evidence that he would have been
placed in an especially difficult position had he withheld
consent. In Soriano, the officers threatened to
arrest the defendant’s girlfriend and remove her two
small children to protective custody, yet ...