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United States v. Boshoff

United States District Court, D. Maine

July 17, 2019

UNITED STATES OF AMERICA
v.
GARY BOSHOFF, Defendant.

          ORDER ON MOTION TO SUPPRESS

          George Z. Singal United States District Judge

         Before the Court is Defendant's Motion to Suppress (ECF No. 99). The Court held an evidentiary hearing on the Motion on June 26, 2019. For the reasons explained herein, the Court now DENIES the Motion.

         I. FACTUAL FINDINGS

         The following material facts are drawn from the preponderance of the evidence based upon the Court's consideration of the testimony of Special Agent David Fife, Detective Frank Stepnick, and Elizabeth Anderson, as well as all of the exhibits admitted at the hearing on Defendant's Motion:

         In 2016, the Maine Computer Crimes Unit, which included federal and state law enforcement agents, were investigating the sharing of child pornography on BitTorrent, a peer-to-peer network. By September 30, 2016, their investigation focused on child pornography emanating from an IP address assigned to a residence in Topsham, Maine. As a result, on that day, they obtained a federal search warrant for computer equipment located at this residence, a split-level, single-family home.

         A team of agents and officers executed the search warrant on the morning of October 3, 2016. The team consisted of approximately eight or nine law enforcement officers from four different agencies.[1] They arrived in four or five vehicles. At approximately 6:30 AM, Special Agent Fife, dressed in khaki pants, a ballistic vest, and a clearly marked “Homeland Security Investigations” jacket, did a knock-and-announce. Elizabeth Anderson, the adult daughter of Defendant Gary Boshoff, opened the door. At the time, she was the only adult present at the residence. Anderson lived at the residence with her parents and her infant daughter, who was then asleep in a lower-level bedroom of the residence. Anderson recalled giving the officers permission to enter the home and being shown a copy of the search warrant. As part of the initial securing of the house, some of the agents and officers did have firearms drawn. However, the agents holstered any firearms once they completed the clearing process and confirmed that only Anderson and her daughter were present in the residence. Agent Fife testified that effort was taken to clear the house in a “low-key” manner given the presence of a sleeping baby.

         Once the house was secure, Anderson assisted the agents and officers in locating computer equipment used by Boshoff. She recalled feeling nervous and asking for permission to move about the residence on one or more occasions while the search was being conducted. However, any request she made was granted and Anderson was permitted to step outside the house during the search. She was also able to use her phone.

         During this initial stage of the execution of the search warrant, Boshoff was at Bath Iron Works, where he worked as a naval officer. Anderson recalled at least one police officer, who knew Boshoff's commanding officer, making some phone calls in an attempt to get Boshoff to return to the residence. While no one directed her to call her father, Anderson did call him at least ten times without success. She finally reached Boshoff around 8:00 AM, explained what was happening at the house, and asked him to come home. Boshoff arrived home in response to this call at approximately 8:30 AM.

         Shortly after Boshoff arrived inside the residence, Agent Fife and Detective Stepnick proceeded to interview Boshoff. While the interview began in the landing area of the house between the living room and the kitchen, it ultimately took place in various locations within the upper level of the house. Stepnick made an audio recording of that interview. The recording begins shortly after Boshoff enters the home and ends approximately forty minutes later when Boshoff is handcuffed and placed in a police vehicle. (See Gov't Exs. 1 (audio recording) & 2 (transcript excerpt of audio recording)).

         Upon his initial encounter with Boshoff, Fife told him that they had “found child pornography” and gave Boshoff the option of talking “a little more in depth” in a location of Boshoff's choosing. (Gov't Ex. 2 at 1.) By default, the interview proceeded inside the upper level of the house with Fife asking Boshoff questions about his use of BitTorrent. Stepnick joined in this questioning a few minutes later. In response to these questions, Boshoff acknowledged having viewed child pornography on his computer, but denied actively sharing child pornography. During this initial eleven minutes of the recorded interview, Boshoff was not physically restrained. He was allowed to stand and move about his home. However, agents did accompany him as he moved to different rooms in his home out of concern for the safety of the agents participating in the search. Specifically, approximately ten minutes after arriving home and encountering the search team, Boshoff asked to get some water from the kitchen. While Boshoff was allowed to get water, officers accompanied him noting that there were knives in the kitchen.

         Approximately eleven minutes in to the audio recording, Fife tells Boshoff that he is planning to put Boshoff under arrest for possession of child pornography.[2] (Gov't Ex. 2 at 10.) In the following ten minutes, Boshoff continues to engage in conversation with Fife and Stepnick asking and answering questions as well as mulling the logistics and impact of his arrest. Then, approximately nineteen minutes into the audio recording, Boshoff asked to speak with his daughter, who was then outside.

         Detective Stepnick alerted Anderson to Boshoff's request. At the moment Anderson re-entered the house, Boshoff was actually on the phone contacting his command staff to update them on his status. Anderson proceeded to ask questions to Stepnick and then Boshoff and both responded to her various inquiries. Stepnick remained present for the duration of Anderson's conversation with Boshoff and kept his audio recorder running.[3] By that time, Stepnick understood that Boshoff was being placed under arrest, but he did not know whether Boshoff had been administered any Miranda warning. In any event, Stepnick did not direct Anderson to pose questions to Boshoff, nor did he intend to ask any questions of Boshoff at that point.

         The questions Anderson posed to her father were prompted by her own desire for answers. In part, Anderson directly asked Boshoff: “But, like you were intentionally downloading child pornography?” To which Boshoff responded: “Yes. Yeah.” (Gov't Ex. 2 at 19 & Gov't Ex. 1.) Anderson recalled Stepnick standing nearby when she directed questions at her father, but was unaware that the conversation was being recorded. All told, this father-daughter dialogue lasted less than five minutes. Thereafter, Boshoff was allowed to change his clothes and briefly spoke with his wife, who was out of state, via cell phone.

         The recording ends at the moment Boshoff is placed in handcuffs and loaded into a police vehicle, which occurs less than 40 minutes after the recording began. Throughout the recording, Boshoff retained a compliant and respectful demeanor. For their ...


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