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United States v. Cordero

United States District Court, D. Delaware

March 26, 2014

UNITED STATES OF AMERICA, Plaintiff,
v.
ROGELIO A. CORDERO, Defendant

Page 642

For Rogelio A Cordero, also known as Roger Cordero, Defendant: Luis A. Ortiz, LEAD ATTORNEY, Law Offices of Luis Ortiz, Philadelphia, PA.

For USA, Plaintiff: Edward J. McAndrew, LEAD ATTORNEY, U.S. Attorney's Office, Wilmington, DE.

Page 643

MEMORANDUM

SUE L. ROBINSON, United States District Judge.

At Wilmington this 26th day of March, 2013, having conducted an evidentiary hearing on defendant's motion to suppress and having considered the papers submitted in connection therewith, the court will deny the motion based on the following reasoning:

1. Introduction.

On June 13, 2013, a federal grand jury returned a five-count indictment charging defendant with: (1) production/attempted production of child pornography, in violation of 18 U.S.C. § 2251; (2) transportation of child pornography,

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in violation of 18 U.S.C. § 2252A(a)(1); (3) receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2); (4) possession of child pornography, in violation of 18 U.S.C. § 2252A(a)(5)(B); and (5) enhanced penalty for registered sex offenders, in violation of 18 U.S.C. § 2260A. (D.I. 3)

2. Defendant has moved to suppress statements that he made to law enforcement officers during a December 20, 2013 video-recorded interview conducted at the New Castle County Police Department (" NCCPD" ). (D.I. 22) Defendant claims that his statements were given in violation of the Fifth Amendment because he invoked his right to counsel and any subsequent waiver of the right to counsel was involuntary. He further contends that law enforcement officers employed coercive tactics to extract the second statement. Defendant seeks to exclude those statements, as well as any evidence derived from the statements.

3. An evidentiary hearing was held on March 10, 2014, with the plaintiff presenting two law enforcement witnesses [1] and defendant testifying on his own behalf. (D.I. 30) Although the audio-video recording of defendant's interview was admitted into evidence, it was not played at the hearing. (D.I. 31, ex.3)[2] The matter is fully briefed and the evidence reviewed. (D.I. 22, 25, 26, 27, 28) The court has jurisdiction pursuant to 18 U.S.C. § 3231.

4. Findings of fact.[3]

On October 10, 2013, the Delaware Internet Crimes Against Children Task Force received a report of suspected criminal activity in Delaware. (D.I. 29, ex.2 at 81) The report indicted that a user of the America Online, Inc. (" AOL" ) network was uploading files of suspected child pornography to an AOL account. AOL reported that the originating IP address of the email with the attached files of suspected child pornography was identified as 71.162.218.38 (" the IP address" ). ( Id. at 81-82)

5. On October 17, 2012, a Delaware Department of Justice subpoena was served on Verizon Internet Services (" Verizon" ) for information and records related to the IP address. On the same date, Verizon responded with business records indicating that the IP address was assigned to the Verizon Internet account of defendant, at his residence in New Castle, Delaware (" defendant's residence" ). ( Id. at 82)

6. After conducting surveillance on defendant's residence and running several background investigations, Detective Purse[4]  discovered that defendant had prior convictions for sex offenses against minors. (D.I. 30 at 5-7; D.I. 29 ex.7)

7. At approximately 6:30 a.m. on December 20, 2013, a search warrant was executed at defendant's residence. (D.I. 30 at 5) Detective Purse and SI Campbell [5]

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were present for the search, along with several other law enforcement officers. ( Id. at 7) Defendant's wife was at home and told officers that defendant had left for work earlier that morning. ( Id. at 8)

8. Detective Purse obtained defendant's cell phone number and called him. Detective Purse told defendant that law enforcement officers were at his residence with a search warrant. He asked defendant to come to NCCPD headquarters (" headquarters" ) to speak with him about the investigation. Detective Pursue did not tell defendant that he was required to appear at headquarters or that he had been, or was about to be, charged with any crime. ( Id. at 8-9, 25) Defendant agreed to meet Detective Purse at headquarters. ( Id. at 9) After the call ended, Detective Purse and SI Campbell left defendant's residence to await defendant's arrival. ( Id. at 11) Several law enforcement officers remained at defendant's residence to complete the search.[6]

9. Defendant drove and parked his Jeep in the front parking lot of headquarters. ( Id. at 12) He walked through the parking lot, up the stairs, through an unsecured door into the main lobby of headquarters. Upon observing defendant's arrival, Detective Purse walked into the main lobby to greet him. As soon as Detective Purse approached him, defendant said " you got me, the computers are mine." ( Id. at 13) In response, Detective Purse introduced himself and asked to speak with defendant. Defendant agreed to an interview.[7]

10. Detective Purse led defendant [8] from the main lobby through a secured door into a hallway that branched off to a waiting area and three " soft interview rooms" (" interview room" )[9] ( Id. at 14, 28) They entered an interview room and were joined immediately by SI Campbell. The interview room was equipped with video and audio recording devices that were activated and captured the interview. (D.I. 29 ex.3; D.I. 30 at 14)

11. Defendant sat in a chair situated closest to the door, with his back facing the door. (D.I. 29, ex.3) Detective Purse sat directly across the table from defendant. SI Campbell was seated to the right of defendant. Defendant was not handcuffed or otherwise restrained. At the evidentiary hearing, defendant testified that because Detective Purse and SI Campbell were very tall, he felt trapped and compelled to answer questions. (D.I. 30 at 69)

12. SI Campbell started the interview by introducing himself and explaining that they were investigating a crime over the Internet and that was the reason for the search of defendant's residence, as well as the reason they asked defendant to come to headquarters. (D.I. 28 at 2-3) SI Campbell thanked defendant for agreeing to speak with them. He explained that, although defendant was not under arrest, he was going to administer Miranda warnings

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to let him " know what his rights" were. ( Id. at 3)

13. Before SI Campbell could issue the Miranda warnings, defendant stated " I'm an ex-cop." [10] ( Id. ) Defendant explained that, in 1987, he was a NCCPD police officer and identified his badge number. ( Id. at 3-4) In response, SI Campbell and Detective Purse provided their badge numbers. Defendant stated that he was on the police force for only one year, leaving because he is " not politically minded" and " speaks [his] mind." ( Id. at 4) The three, also, discussed their prior miliary service. ( Id. at 4-5)

14. SI Campbell directed the conversation back to the subject of the interview. SI Campbell stated " we know that there's two people living in the house, and we've, we've got - it's either- because it's either you or your wife, okay?" ( Id. at 5) Defendant replied, " it's me." ( Id. ) SI Campbell turned to the written Miranda form and asked defendant his full name. ( Id. at 6) As SI Campbell read each Miranda warning, he asked defendant if he understood. When SI Campbell recited the right to counsel, defendant stated:

DEFENDANT: Yeah, I choose that.
SI CAMPBELL Okay. If you cannot afford to hire a lawyer, one will be appointed to represent you before any ...

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