The opinion of the court was delivered by: Hon. Jerome B. Simandle
On March 23, 2004, Defendant Robert Pelle consented to a search of his computer hard drive in connection with an investigation into his alleged involvement with an organization and web site called "BoyLoversUnited." In September, 2004, agents from the Department of Homeland Security, Immigration and Customs Enforcement conducted the search of Pelle's computer which revealed child pornographic images. That same month, several law enforcement officers arrived at Pelle's home to question him. At the close of the interview, Defendant was asked by Investigator Amy Jewusiak how he was treated by the officers who conducted the interview. Defendant replied that he was not threatened, and that the officers were "very cordial, very nice."
Defendant now argues, however, that the officers actually threatened him during the interview, and that they repeatedly declined his requests for counsel. Defendant has thus moved to suppress statements made during that interview. For reasons explained in this Opinion, the Court will credit Defendant's earlier, contemporaneous version of the events. The Court also finds that Defendant's Fifth Amendment rights were voluntarily waived, and were not otherwise violated. Accordingly, the instant motion will be denied.
On March 23, 2004, members of the Camden County Prosecutor's
Office met with Defendant Robert G. Pelle to investigate his alleged involvement with "BoyLoversUnited." At that meeting, Defendant executed consent to search forms for his home and computer hard drive, and his computer was seized. The next day, Investigator Jewusiak contacted Pelle and informed him that the internal policy of the New Jersey State Police required his presence during the search. Pelle responded that he would first contact his attorney and then "get back to her." By March 26, 2004, Defendant had not contacted Jewusiak. Jewusiak again contacted Pelle and, for the second time, Pelle told her that he would contact his attorney and make the appropriate arrangements. No lawyer contacted Jewusiak, though, and whatever qualms she had about the prospect of Pelle or his lawyer withdrawing consent or demanding the return of his computer dissipated over time when Pelle took no such action.
Accordingly, in September, 2004, after not hearing from Pelle or any lawyer for months, the Camden County Prosecutor's Office enlisted the aid of the federal customs authorities, who did not require Pelle's presence for the search. The search of Pelle's computer hard drive was conducted by agents from the Department of Homeland Security, Immigration and Customs Enforcement, who then seized evidence related to the charged crimes.*fn1
Later that month, on September 20th, four law enforcement officers, including Jewusiak, arrived unannounced at Pelle's home, after meeting each other in the vicinity. The other officers were Agent Lisa Franchini, also of the Camden County Prosecutor's Office, Agent Matthew Brodman of the Department of Treasury, United States Customs Service, and Jim Lynch. At the time, Lynch was employed by the County of Essex County Sheriff's
Office, but had been assigned to the Pelle Investigation by the U.S. Customs Task Force.*fn2
Pelle claims he returned home from work that day at about 3:20 P.M., and went to the backyard to perform some maintenance on the pool "skimmer." (Tr.A*fn3 at 123:22-124:3.) By the time he returned to the front yard, the four officers had arrived at his house. (Id. at 124:4-11.) Pelle permitted them entry and was initially told to "secure" his dog in a safe place.*fn4 (Id. at 125:1-17.) Pelle then brought the dog to the backyard, and came back inside.
When he returned, Pelle observed Matt Brodman conducting a protective sweep of the upstairs. (Id. at 125:17-22.) Brodman then returned to the foyer, at which point Jewusiak immediately began advising Pelle of his Miranda rights. (Id. at 126:1-15; 127:15-18.) The officers explained that they were reading Pelle his rights because they had found child pornographic images on his computer.*fn5 (Id. at 127:19-128:2.) After Pelle was read his rights he was presented with a waiver of rights form. (Id. at 128:9-18.)
At that point, Pelle, who was now sitting on the living room sofa, went to answer the phone which had been "ringing off the hook." (Tr.B at 20-21.) According to Defendant, though, Lynch requested that he not answer the phone, instead asking him again to sign the form. Pelle maintains that he then said: "I don't want to sign anything right now. I think you people should leave until I consult with my attorney." (Tr.A at 129:6-8.) Lynch then responded, according to Defendant's version of the events, by threatening to return at 5:00 the next morning with three warrants, one for him, his wife, and mother, and bring them all in for questioning. (Id. at 129:10-14.) Lynch denies making that statement.
Shortly thereafter, at 3:55 P.M., Pelle executed a Miranda waiver of rights form (Ex. S-4) and the officers proceeded to question him. At approximately 4:55 P.M., Lynch switched the focus of the questioning from the images allegedly found on Pelle's computer to Defendant's relationship with his adopted son.*fn6 According to Pelle, once Lynch intimated that he and Brandon were having improper relations, Pelle "started getting vocal." (Id. at 133:10.) Pelle then raised his hands and said in a loud tone, "Jim, I don't know what you're talking about." (Id. at 133:9-19.) Lynch then asked Pelle to "please put [his] hands down," which Defendant did. (Id. at 133:18-25.)
Between approximately 4:45 and 5:00 P.M., Defendant's adopted son, wife, and mother all arrived home separately.*fn7
According to the testimony of the three family members, Brodman was waiting outside when Anna Pelle (Defendant's wife) and Delores Pelle (Defendant's mother) arrived home. Anna arrived first, at approximately 4:45 P.M., and went inside to use the bathroom.*fn8 While inside, she saw Defendant seated on the livingroom couch with Lynch and Jewusiak. She claims that Brodman then told her to leave the house, which she did. She then proceeded to her neighbor's house to place several phone calls, including one to her friend, Tina Terregino. Ms. Pelle did not herself try to call home.
Delores arrived home soon after Anna. According to the testimony of Anna and Delores, which was corroborated by Brandon, Brodman told Delores that she was not permitted to enter the home, and physically restrained her when she attempted to do so. (Id. at 54:9-20; 56:4-8; 68:24-25; 70:21-25; 106:13-107:2.)
Meanwhile, the phone inside began to "ring off the hook." (Id. at 134:3-4.) But, Defendant maintains, the officers asked him not to answer it. Instead, after asking Pelle to lower the volume of the ring, which Pelle was unable to do, Brodman allegedly placed the receiver off the hook onto the table. According to her testimony, Tina Terregino was the caller on the other end of the line.
Ms. Terregino testified that she was at her home when she received a phone call from Pelle's wife Anna at approximately 5:00 P.M., informing her that officers were at Pelle's home and that "something was wrong." (Id. at 75:10-12.) She then immediately proceeded to call Defendant's home and, according to her testimony, the receiver was picked up but nobody answered. Ms. Terregino claims that she did not hang up the receiver, but instead listened to the conversation on the other end of the line.
Defendant's adopted son, wife, and mother also testified to hearing the same conversation through an open window as they waited on the front porch. With remarkable consistency, the three family members and Ms. Terregino repeated essentially verbatim Defendant's account of certain exchanges between Pelle and the officers. The first allegedly occurred at approximately 5:20 P.M., when Detective Lynch allegedly said, "God damn it, something happened in this house and I'm not leaving until I find out what it is." (Id. at 57:3-6; 71:14-16; 88:15-19; 109:2-5.) Lynch denies making this statement.*fn9
Next, according to Defendant and the other defense witnesses, Detective Lynch threatened to arrest Pelle's mother, stating: "How old is your grandmother [sic], 73, 74? You wouldn't like to see her go out of the house in handcuffs, would you?" (Id. at 57:10-13.) According to Defendant, Lynch continued:
And what about your wife, you and your mother didn't do anything, what about your wife? Now don't get me wrong, your wife, she seems like a really nice person, but is she slow, is she on medication, how would you feel if I had to take her out in handcuffs and take her out of here for questioning? But with your wife, maybe her mind would crack, we would have to put her somewhere to get her treatment because she would have some kind of breakdown. How would you feel about that? And as far as your son, I could put him in foster care faster than you can blink and eye. I'm going to tell you something, Mr. Pelle, it's not my job to break up families, but, God damn it, I'll break up this one if I have to. (Id. at 135:13-136:1.)
Immediately following Lynch's comments, Pelle testified, Pelle requested counsel, but the officers denied that request.*fn10
(Id. at 109:2-9.) Specifically, Pelle maintains that he told the officers that his attorney's phone number was on the refrigerator and asked if he could get it to call.*fn11 Agent Lynch testified that at no time did Mr. Pelle request counsel. (Id. at 40:12-24.)
Subsequently, Ms. Terregino claims she hung up the phone. The other witnesses testified that they heard no other statements for the duration of the ...