Opinion
CRIMINAL ACTION NO. 05-10355-GAO.
December 21, 2006
MEMORANDUM AND ORDER
Richard Sheltman stands indicted for receipt and possession of child pornography in violation of 18 U.S.C. § 2252(a)(2) and 18 U.S.C. § 2252(A)(4)(B). He has moved to suppress statements he made to federal agents during a search of his apartment on November 4, 2004, as well as the fruits of those statements.
I. Findings of Fact
After consideration of the parties' submissions and the testimony offered at an evidentiary hearing, I make the following findings of fact:
At approximately 7:00 a.m. on November 4, 2004, five federal agents executed a search warrant at Sheltman's apartment at 56 Eliot Street in Natick, Massachusetts. Sheltman's landlord unlocked the external entrance to the building for the agents, who proceeded to the door of Sheltman's third floor apartment. The agents, who were armed but all had their weapons holstered, knocked loudly on the door and announced their presence, awakening Sheltman, who answered the door dressed only his underwear. The agents informed Sheltman that they had a warrant to search his apartment.
While the search was in progress, Sheltman was not allowed to move freely and independently about his apartment, although he was permitted to get dressed, use the bathroom and check on his pet bird, all under the supervision of an agent. For the bulk of the time the apartment was being searched, however, Sheltman remained seated with one or two agents.
Soon after the search began, Agents Lamoreaux and Grady asked Sheltman if he would be willing to speak with them. He was advised that he was not under arrest, but nevertheless was read his Miranda rights from the Federal Bureau of Investigation form FD-395, "Advice of Rights." Sheltman acknowledged that he understood his rights, agreed to speak to the agents, and signed the "Advice of Rights" form. During the ensuing questioning, Sheltman and the two agents sat at his kitchen table.
On the evidence presented, I find that the tone of the interview, which lasted for approximately thirty minutes, was civil. The agents did not raise their voices or attempt to deceive or trick the defendant, and they never displayed their firearms or threatened Sheltman in any other manner. Agent Lamoreaux began his questioning by asking Sheltman questions about his personal background and employment situation, which Sheltman answered. He also answered questions about his computer, his password, and various email addresses he used. Lamoreaux then asked Sheltman whether he had any images of child pornography on his computer. In response, Sheltman stated that he "did not want to answer that question". (Suppression Hr'g Tr. 16:16, Oct. 25, 2006.) Lamoreaux continued, without pause, asking Sheltman a series of questions regarding his ownership of a digital camera and use of file sharing programs such as Grokster and Kazaa, all of which Sheltman answered. The questioning then again turned to the existence of images of child pornography on Sheltman's personal computer. Sheltman continued to talk with the agents and allegedly made a series of incriminating admissions. For example, when Lamoreaux showed him various images of child pornography, Sheltman indicated that they looked "familiar" and might be found on his computer.
II. Discussion
In their briefs and during oral argument, both parties focused a great deal on whether Sheltman was in custody and therefore entitled to Miranda protections at the time of his questioning. It is not necessary, however, to decide that question in order to decide Sheltman's motion to suppress. Even assuming, arguendo, that Sheltman was in custody, there would still be no cause to suppress the statements he made to the agents interviewing him.
Prior to questioning, Agent Lamoreaux read Sheltman his Miranda rights. Sheltman stated that he understood those rights and signed and dated a form to that effect. He then voluntarily agreed to speak with the agents. Indeed, the evidence demonstrates that he answered all but one of the questions put to him without registering any unwillingness to do so. His argument in favor of suppression therefore hinges on his refusal to answer a single question. It is essentially his claim that his refusal to answer that one question should have been understood by the agents as an unwillingness to answer any further questions. He argues by analogy to the rule established in Edwards v. Arizona, 451 U.S. 477, 484-85 (1981), where the Court held that when a suspect in custodial interrogation asks to have counsel, he may not be questioned further until counsel is present. Sheltman urges the rule should apply equally to situations where a person being questioned indicates that he does not want to answer a question — once Sheltman said that he "did not want to answer that question," the argument goes, the agents should have stopped all questioning.
The argument is not persuasive. In Davis v. United States, the Supreme Court held that a suspect in custody must unambiguously request counsel in order to invoke his right to have counsel present during his interrogation. See 512 U.S. 452, 459 (1994). While the Supreme Court has not addressed whether the same rigorous standard applies to a defendant's invocation of the right to remain silent, every circuit to have reached the issue appears to have employed the Davis standard. See Simmons v. Bowersox, 235 F.3d 1124, 1131 (8th Cir. 2001); United States v. Hurst, 228 F.3d 751, 759-60 (6th Cir. 2000); United States v. Banks, 78 F.3d 1190, 1197 (7th Cir. 1996), Coleman v. Singletary, 30 F.3d 1420, 1424 (11th Cir. 1994). For example, in Coleman the Eleventh Circuit, concluding that the rationale of Davis was equally applicable to the right to silence as to the right to counsel, held that "[a] suspect must articulate his desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be a assertion of the right to remain silent. If the statement is ambiguous or equivocal, then the police have no duty to clarify the suspect's intent, and they may proceed with the interrogation." 30 F.3d at 1424.
Although the First Circuit has not yet found it necessary to decide the question, it has not taken issue with those district courts that applied Davis in the right to silence context, see, e.g., Bui v. Dipaolo, 170 F.3d 232, 239-40 (1st Cir. 1999), and has stated that "the similarity of the analyses requisite for assessing claims anent Miranda's right to counsel and its right to remain silent suggests that Davis constitutes strong evidence of how the Supreme Court likely would decide this right to remain silent question." Id.
Sheltman's refusal to answer one question was not an unambiguous statement that he did not want to answer any other questions, either by its own terms or by inference from the context. He was asked if child pornography would be found on his computer, and he responded, "I don't want to answer that question." His words suggest that his objection was to the particular question and not to any further questions at all. Moreover, when Agent Lamoreaux asked another question on a different topic, Sheltman did not demur but answered without hesitation. Considered in this context, Sheltman's refusal to answer a single question cannot be construed as an unequivocal invocation of the right to remain silent; his actions are more aptly characterized as a narrow refusal to respond to a specific question, coupled with a demonstrated willingness to continue answering others. Under the Davis rule, Agent Lamoreaux had no duty to clarify Sheltman's intent, and it was entirely proper for him to proceed with his questioning.
In any event, Sheltman's motion to suppress may also be denied under the authority of North Carolina v. Butler 441 U.S. 369 (1979). Butler and its progeny established that an express statement is not necessary in order to find that a defendant has waived his right to remain silent. Rather, the determination of whether there was a valid waiver of the right depends on "whether the waiver was knowing and intelligent, given the totality of the circumstances and the facts surrounding the particular case."United States v. Garcia, 983 F.2d 1160, 1169 (1st Cir. 1993). Specifically, courts have routinely indicated that a defendant may waive his right to remain silent by responding selectively to questions posed to him. See Bui, 170 F.3d 240-41; see also United States v. Soliz, 129 F.3d 499, 503-04 (9th Cir. 1997); United States v. Ramirez, 79 F.3d 298, 304-305 (2d Cir. 1996); United States v. Chong, 829 F.2d 1572, 1574 (11th Cir. 1987). In this case, there is no question that Sheltman was given his Miranda warnings and indicated that he understood his rights. The undisputed evidence also demonstrates that Sheltman then voluntarily began answering Agent Lamoreaux's questions, electing to respond to all but one of them. His refusal to answer a single, specific question clearly indicates that he understood his right to remain silent when he so chose; his demonstrated willingness to answer the remainder is indicative of his waiver of the right with respect to those questions.
III. Conclusion
Prior to being questioned, Sheltman was read his Miranda rights and acknowledged in written form that he understood them. Thereafter, without coercion, he answered all but one of the questions put to him by the agents. Whether analyzed under the rubric of Davis or Butler, his conduct demonstrates that his statements to the agents were voluntary, and that the agents' continued questioning did not violate his right to remain silent. Sheltman's motion to suppress is therefore DENIED.
It is SO ORDERED.