Opinion
8:21-CR-85
2021-10-21
The UNITED STATES of America, v. Kaleb PECORARO, Defendant.
HON. ANTOINETTE T. BACON, Acting United States Attorney for The Northern District of New York, OF COUNSEL: SHIRA HOFFMAN, ESQ., 14 Durkee Street Room 340, Plattsburgh, New York 12901. HON. ANTOINETTE T. BACON, Acting United States Attorney for The Northern District of New York, OF COUNSEL: CARINA HYATT, SCHOENBERGER, ESQ., 100 South Clinton Street, Room 900, Syracuse, New York 13261. HON. ANTOINETTE T. BACON, Acting United States Attorney for The Northern District of New York, OF COUNSEL: EMILY C. POWERS, ESQ., 445 Broadway Room 218, Albany, New York 12207. OF COUNSEL: THOMAS A. CAPEZZA, ESQ., CAPEZZA, HILL LLP, Attorneys for Defendant, 30 South Pearl Street Suite P-110, Albany, New York 12207. LORI A. CANTWELL, OF COUNSEL: LORI A. CANTWELL, ESQ., Attorneys for Defendant, 334 Cornelia Street #288, Plattsburgh, New York 12901.
HON. ANTOINETTE T. BACON, Acting United States Attorney for The Northern District of New York, OF COUNSEL: SHIRA HOFFMAN, ESQ., 14 Durkee Street Room 340, Plattsburgh, New York 12901.
HON. ANTOINETTE T. BACON, Acting United States Attorney for The Northern District of New York, OF COUNSEL: CARINA HYATT, SCHOENBERGER, ESQ., 100 South Clinton Street, Room 900, Syracuse, New York 13261.
HON. ANTOINETTE T. BACON, Acting United States Attorney for The Northern District of New York, OF COUNSEL: EMILY C. POWERS, ESQ., 445 Broadway Room 218, Albany, New York 12207.
OF COUNSEL: THOMAS A. CAPEZZA, ESQ., CAPEZZA, HILL LLP, Attorneys for Defendant, 30 South Pearl Street Suite P-110, Albany, New York 12207.
LORI A. CANTWELL, OF COUNSEL: LORI A. CANTWELL, ESQ., Attorneys for Defendant, 334 Cornelia Street #288, Plattsburgh, New York 12901.
MEMORANDUM-DECISION and ORDER
DAVID N. HURD, United States District Judge I. INTRODUCTION
On March 17, 2021, a grand jury in the Northern District of New York returned a one-count indictment against defendant Kaleb Pecoraro ("Pecoraro" or "defendant") for receipt of child pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). The indictment principally relied on three sources of evidence: (1) an interview with defendant and his mother in defendant's home on June 5, 2019; (2) a search of defendant's two computers and digital camera allegedly based on his consent; and (3) a second interview at the Plattsburgh Police Station on June 9, 2019.
On July 22, 2021, Pecoraro filed an omnibus motion launching a five-pronged attack on the United States of America (the "Government")’s investigative efforts. Defendant's motion, having been fully briefed, will now be decided on the parties’ submissions and without oral argument.
II. BACKGROUND
On April 23, 2020, the National Center for Missing and Exploited Children received a message from Interpol pointing it to photographs on IMGSRC.RU, a file sharing website out of Russia. Dkt. 30-1 ("Marciniak Aff."), ¶ 4. Apparently, that website has a reputation in law enforcement circles as a popular space for viewing and trading child pornography. Id.
The material on IMGSRC.RU that concerned Interpol involved several non-pornographic pictures of children playing in their front yard, including some in which they were bent over. Marciniak Aff. ¶ 4. The photographs were uploaded between August of 2019 and March of 2020 by an IMGSRC.RU user going by the screenname "Gudman5." Id.
The pictures were not devoid of context clues. An embroidered golf bag and a visible New York license plate both steered investigators toward Plattsburgh, New York. Marciniak Aff. ¶ 5.
Ultimately, investigators found the house featured in the photographs, which was home to four children. Marciniak Aff. ¶ 5. The oldest was a girl aged somewhere between thirteen and fifteen. Id. ¶ 6. She also had twin sisters, of an estimated age of eleven to thirteen. Id. The youngest was a five-year-old boy. Id.
Pecoraro was eighteen years old in the spring of 2020 and lived across the street from the subjects of the photographs. Marciniak Aff. ¶¶ 9, 11. From the beginning, three clues pointed investigators in defendant's direction. First, some of the names of the uploaded files referred to "[t]he twins across the street." Id. ¶ 6. Second, the camera angles and the window frames visible in the photographs both matched defendant's house. Id. ¶ 7. Third, defendant's Facebook profile contained a picture of an unknown twelve-to-fourteen-year-old girl wearing a tube top and shorts, which was also Gudman5's profile picture, albeit briefly. Id. ¶ 8.
Armed with that information, New York State Police Investigator Robert Marciniak ("Marciniak") and Homeland Security Investigations Special Agent Jason Young ("Young" together the "investigators") went to Pecoraro's home on June 5, 2020, to talk to him. Marciniak Aff. ¶¶ 1, 10; Dkt. 34-2 ("Mother Aff."), ¶ 36. Apparently, defendant was not home, but plaintiff's mother, Diane Pecoraro ("defendant's mother"), greeted them all the same. Marciniak Aff. ¶ 11; Mother Aff. ¶ 36. Defendant's mother denied any knowledge about the photographs of the children across the street, but nevertheless promised to let the investigators know when defendant returned so that they could speak to him. Marciniak Aff. ¶ 11.
According to defendant's mother, she promptly told Pecoraro to come home. Mother Aff. ¶ 36. Defendant returned shortly, and Marciniak and Young came back not long after. Id. ¶¶ 36-37; Marciniak Aff. ¶ 12. Both investigators wore plainclothes, and though both were armed, according to the Government only Marciniak's weapon was visible. Marciniak Aff. ¶¶ 10, 12. By contrast, defendant claims simply that "the police had firearms displayed." Mother Aff. ¶ 45.
In any event, Pecoraro, his mother, Marciniak, and Young sat down in defendant's living room. Marciniak Aff. ¶ 13. Apparently, the conversation began with defendant's mother recounting that she had asked for advice from a retired computer crime investigator, who had advised her to cooperate. Id. Defendant's mother also told the investigators that she had asked defendant if he had taken the pictures of his neighbors, and he had admitted to her that he had. Id.
Marciniak and Young then pivoted to asking Pecoraro questions directly. Marciniak Aff. ¶ 14. But before they did, defendant's mother alerted them that defendant is not entirely neurotypical, although the Government and defendant disagree as to what, precisely, she said. See id. According to the Government, defendant's mother told the investigators that defendant "got very nervous," and the Government also acknowledges the possibility that she mentioned to them that defendant is "on the spectrum." Id. ¶¶ 14, 28. In defendant's version, his mother told the investigators that defendant "has a language processing disorder and high anxiety." Mother Aff. ¶ 38.
Apparently, Marciniak and Young noticed that Pecoraro was anxious during the interview. Marciniak Aff. ¶ 14. As a consequence, the investigators spoke "in a low passive tone," allowed defendant's mother to be present for the entire interview, and gave defendant time to explain. Id. Defendant does not dispute that the investigators took this approach.
Despite Marciniak and Young's attempted precautions, defendant's mother claims Pecoraro was terrified during the questioning, and turned to her when he was uncertain of how to proceed. Mother Aff. ¶ 37. Defendant's mother further claims that she asked Marciniak and Young whether defendant needed an attorney right at the start, but that the investigators said no. Id. However, Marciniak denies ever telling defendant or his mother that they did not need a lawyer. Marciniak Aff. ¶ 15. But he acknowledges that he told them that the investigators were only there to ask questions and that defendant was not under arrest. Id.
From there, Marciniak and Young began to ask Pecoraro about the pictures of the children across the street. Marciniak Aff. ¶ 14. Defendant's mother, apparently believing that defendant's silence would lead to a bad outcome, told him to answer truthfully. Mother Aff. ¶ 40. Defendant then admitted to uploading the pictures of his neighbors. Marciniak Aff. ¶ 14.
Marciniak and Young asked to see Pecoraro's electronic devices to confirm that he had not taken any naked pictures of his neighbors. Marciniak Aff. ¶ 16; Mother Aff. ¶ 41. To memorialize their request for his consent to search defendant's devices, the investigators gave defendant a consent form, and explained that he could sign if he wanted to, but did not need to. Marciniak Aff. ¶ 16. However, defendant's mother took the form instead and read it herself. Mother Aff. ¶ 42. She then told defendant to sign it, which he did. Id. ¶ 43; Dkt. 30-2, pp. 2-3.
After getting Pecoraro's signature, Marciniak and Young went with defendant and his mother to defendant's room. Marciniak Aff. ¶ 18. In the room were three devices: (1) a laptop; (2) a digital camera; and (3) a custom computer tower. Dkt. 30-2, pp. 2-3. Defendant gave the investigators the passcode to the laptop and confirmed that no one else had access to any of the three devices. Marciniak Aff. ¶¶ 17-18.
Once Young had access to Pecoraro's devices, he did a "forensic preview." Marciniak Aff. ¶ 19. That preview turned up child pornography on defendant's laptop and desktop. Id. The investigators did not arrest defendant, but they did seize the computers. Id. ¶ 20. After a more complete examination, the investigators found thirty-two pornographic pictures involving underaged subjects on the laptop and twenty-two pictures and thirty videos of children below the age of consent on defendant's desktop. Id. ¶ 21. Many of the videos were deleted from defendant's devices, and many involved pubescent girls. See id. ¶ 22. At least two videos, however, depict graphic sexual contact with—and between—younger children. Id. ¶¶ 22-23.
Armed with this evidence, Marciniak and Young got a search warrant for Pecoraro's home for other electronic devices on June 9, 2020. See Marciniak Aff. ¶ 24; Dkt. 30-3, pp. 11-12. The investigators executed that warrant the same day. Marciniak Aff. ¶ 26; see Mother Aff. ¶ 51. They found no new devices containing child pornography. Marciniak Aff. ¶ 25. But they also wanted to question defendant. See id. ¶ 26.
At this point, defendant's mother claims that she reiterated that Pecoraro has "a language processing disorder and high anxiety," but Marciniak and Young apparently tried to placate her by claiming that they knew "how to handle" people like that. Mother Aff. ¶¶ 52-53. Defendant's mother also claims that she asked if defendant needed a lawyer, but the investigators responded that he did not because he was not being arrested. Id. ¶ 54.
Defendant's mother elaborates that when Pecoraro came downstairs, he "collapsed." Mother Aff. ¶ 55. Marciniak's account does not mention any collapse by defendant, but he does acknowledge that defendant "began shaking and appeared weak in the knees" once he was placed in handcuffs. Marciniak Aff. ¶ 26. Marciniak and Young invited defendant to sit on the porch to calm himself, and he took them up on the suggestion. Id.
Once Pecoraro had calmed down, he walked to a waiting patrol vehicle, which drove him to the police station. Marciniak Aff. ¶ 27. When he arrived there, he was ushered into an interview room, which featured a camera that recorded the entire series of events. Id.
The Court has reviewed the entire surveillance video for defendant's interrogation in great detail.
At 5:58 p.m., the footage captured by the surveillance camera shows Pecoraro huddled under the desk in the interview room. Dkt. 30-4 ("Interview"), 5:58:48 p.m. Defendant was breathing quickly and heavily while a New York State Trooper gently asked defendant to "give [him his] hand, buddy," because the Trooper had to "get this handcuff off [him], okay?" Interview, 5:58:48-58 p.m. After a few minutes, and without defendant getting up from the floor, the trooper managed to remove defendant's handcuffs. Id. 5:58:58-6:00:13 p.m.
The same Trooper then asked Pecoraro to get off the floor. Interview, 6:00:20-27 p.m. With more coaxing from the Trooper, defendant sat up of his own volition. Id. at 6:00:30-50 p.m. The three Troopers in the interview room then convinced defendant to transition to a chair. Id. at 6:00:50-01:07 p.m. Once defendant was seated, the Troopers briefly frisked defendant, which caused him to tremor and recoil, but the Troopers patted him on the shoulder and reassured him that he was "okay." Id. at 6:01:07-16 p.m. Throughout, every speaker used a calm voice. See id. 6:00:15-01:17 p.m.
After frisking Pecoraro, one of the Troopers asked him if he would like something to drink. Interview, 6:01:22-24 p.m. The Troopers continually told defendant to take deep breaths and called him "buddy." Id. 6:01:35-02:10 p.m. One of the Troopers tried to coach defendant through breathing, and told him that he "know[s] it's a lot [he's] going through." Id. at 6:02:05-10 p.m. Defendant then put his head between his knees and continued to breathe heavily despite the Troopers’ efforts to calm him. Id. at 6:02:05 p.m. Eventually, one of the Troopers sent another to get defendant two bottles of water. Id. at 6:04:25-30 p.m. A few minutes later, the Troopers asked defendant if he needed anything else. Id. at 6:10:15-22 p.m.
For the next forty-five minutes, Pecoraro refused to look at the two Troopers who remained in the room, instead alternating between keeping his head between his knees or resting it in the corner of the room. Interview, 6:10:22-55:27 p.m. One of the Troopers occasionally tried to soothe defendant all the same, opening a bottle of water for him and offering him some, while telling him "I'm right here with you, man." Id. at 6:30:00-10 p.m.
At 6:55 p.m., Marciniak and Young entered the room, at which point Marciniak said to Pecoraro "did you get some water, buddy?" Interview, 6:55:26-34 p.m. Defendant looked up and sat up when the investigators arrived and seemed to compose himself, if only slightly. Id. Marciniak then asked if he could get defendant a candy bar or anything else that would help him feel at ease. Id. at 6:56:55-57:03 p.m. After receiving no response, Marciniak asked defendant if he was able to talk to them. Id. at 6:56:11-13 p.m. He nodded yes. Id. at 6:56:13-15 p.m.
Eventually, Marciniak read Pecoraro his Miranda rights. Interview, 6:57:40-58:04 p.m. He also asked whether defendant understood them. Id. at 6:58:02-04 p.m. Defendant responded that he did. Id. at 6:58:04-09 p.m. Marciniak then asked if defendant still wanted to talk to them, and he responded "I don't know." Id. at 6:58:05-19 p.m. Young then advised defendant to "take some time and think about it." Id. at 6:58:19-21 p.m. After a momentary pause, Marciniak began questioning Pecoraro again. Interview, 6:58:25-29 p.m. Defendant still seemed hesitant, so Marciniak told him: "I want to put you at calm. I want you to be calm, I want you to relax. We're not here trying to get you spun up or have any issues with you at all. Is [sic] there any medical conditions we need to know about?" Id. at 6:59:45-59 p.m. Defendant responded by mentioning the conditions that his mother had already told them about at his house. Id. at 7:00:05-12 p.m. Marciniak asked defendant what that meant exactly, and defendant responded "anxiety." Id. at 7:00:18-19 p.m. Marciniak responded by asking "what [could he] do to help that?" Id. at 7:00:20-22 p.m.
After Marciniak's question, Pecoraro put his head back between his knees. Interview, 7:00:23-47 p.m. Defendant then sat up, shrugging, and asked "do I need a, like, a lawyer?" Id. at 7:00:47-52 p.m. Marciniak responded that it was not his place to say, but that it was defendant's right to have a lawyer and he could have one if he wanted one. Id. at 7:00:52-59 p.m. Defendant responded that he did not know if he would need a lawyer, and that while he was aware that he had a right to an attorney, he was unsure if he would want one without knowing what questions Marciniak and Young would ask. Id. at 7:01:00-15 p.m.
Marciniak responded that if he and Young asked a question that Pecoraro did not want to answer, he did not have to answer it. Interview, 7:01:15-21 p.m. But defendant was still concerned that if he asked for a lawyer he would seem to be untruthful, and said he would not feel comfortable talking to a lawyer in any case. Id. at 7:01:21-36 p.m. In fact, he claimed he was only comfortable speaking to the investigators because he already knew them. Id.
From there, Marciniak and Young started to steer their questions toward the pictures Pecoraro took and the files he downloaded. The questioning went on for another hour. Interview, 7:01:36-8:03:32 p.m. Defendant did not add much beyond what the investigators already knew. See generally id. Throughout the interview, defendant at times showed tics such as pressing his hands against his head and rocking back and forth, and at times he would shake and tremor. See generally id. He would also periodically bury his face in his hands. See generally id. For their part, the investigators maintained a calm tone. See generally id.
As far as the content of the interview itself, Pecoraro's answers to Marciniak and Young's questions only added a few extra pieces to the puzzle. The first of these was that defendant insisted that he had had a moral epiphany that child pornography is wrong and deleted the material from his computer. Interview, 7:27:20-28 p.m. The second was defendant's claimed motive for downloading the pornography: namely that he said he wanted to look at pornography involving people roughly his age. Id. at 7:40:57-59. Third, and notwithstanding the first two points, defendant admitted that he had downloaded and watched a video of an adult man having intercourse with an eight-year-old girl. Id. at 7:42:23-44:42 p.m.
After the interview, Marciniak and Young arrested Pecoraro. Interview, 8:20:48-55 p.m. Even so, the police released defendant to his mother that same night. Mother Aff. ¶ 61. Defendant was ultimately charged under New York law with unlawful surveillance, possession of a sexual performance by a child and promotion of a sexual performance by a child. Interview, 8:20:45-21:15 p.m. On the federal side, defendant was indicted by a Grand Jury on March 17, 2021 with Receipt of Child Pornography in violation of 18 U.S.C. § 2252A(a)(2)(A). Dkt. 1.
On July 22, 2021, Pecoraro moved to suppress essentially the entirety of the Government's evidence. Dkt. 23. Principally, defendant argues that his free will was overborne in every interaction with police, and that neither his confessions nor his consents to search were voluntary. The Government has opposed defendant's motion. This decision follows.
III. DISCUSSION
Pecoraro's omnibus motion calls for suppression of the Government's evidence on five argued grounds: (1) defendant's consent to the June 5, 2019 search was not voluntary; (2) neither were defendant's incriminating statements on June 5; (3) defendant was improperly arrested on June 9, 2019; (4) defendant's June 9, 2019 statements were obtained in violation of Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) ; and (5) the fruit of the poisonous tree doctrine requires that all evidence tainted by these alleged violations be suppressed.
A. Voluntariness of June 5 Statements
When a defendant moves to suppress non-custodial statements made to law enforcement authorities, the only question for a court to resolve is whether those statements were voluntary on the one hand, or "coerced by police activity in violation of constitutional rights not to incriminate oneself and due process" on the other. United States v. Haak , 884 F.3d 400, 409 (2d Cir. 2018). In the abstract, a statement is voluntary if it was "the product of an essentially free and unconstrained choice by [its] maker." Id.
Defendant does not appear to be arguing that he was in custody on June 5, 2020. Even if he were, that argument would fail. A reasonable person in defendant's position would have believed that he was free to terminate a police encounter in his own home with only two police officers present. See United States v. Faux , 828 F.3d 130, 135 (2d Cir. 2016) (noting that defendant is in custody when reasonable person would not believe he was free to terminate encounter).
But from a functional standpoint, the test for voluntariness is a binary one, and the alternative of voluntary—coerced—requires that the police put some improper pressure on the defendant. See Haak , 884 F.3d at 409 (noting that " ‘coercive police activity’ is a ‘necessary predicate’ to holding a confession constitutionally involuntary" (citing Colorado v. Connelly , 479 U.S. 157, 167, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) )). That is to say, "absent police conduct causally related to [a] confession, there is simply no basis for concluding that any state actor" has violated a defendant's rights by coercing him into making an involuntary statement. See United States v. Hamilton , 487 F. Supp. 3d 140, 149 (E.D.N.Y. 2020) (citing Connelly , 479 U.S. at 164, 107 S.Ct. 515 ).
However, even if police conduct that is "false, misleading, or intended to trick and cajole the defendant into confessing" led to a confession, that alone does not make the defendant's statement involuntary. Haak , 884 F.3d at 409. Instead, the court must make "specific findings that under the totality of the circumstances the defendant's will was overborne by the police conduct." Id. (cleaned up). That totality is generally split into three subsets of factors for courts to consider: "(1) the characteristics of the accused[;] (2) the conditions of interrogation[;] and (3) the conduct of law enforcement officials." Id. (citing Green v. Scully , 850 F.2d 894, 901-02 (2d Cir. 1988) ). Pecoraro principally argues that his statements to Marciniak and Young on June 5, 2020 were not voluntary. The foundation that argument rests on is an affidavit from Lindsey L. Wilner, PsyD ("Dr. Wilner"), a psychologist specializing in Clinical and Forensic Psychology. Dkt. 34-1 ("Wilner Aff."), ¶ 1. Dr. Wilner opines that defendant's capacity to understand what is being said to him "is that of approximately a [five]-year-old." Wilner Aff. p. 29. She also asserts that his verbal expression is closer to that of a five-to-six-year-old than that of a twenty-year-old. Id.
Pagination Corresponds with CM/ECF.
Pecoraro's written expression scored slightly better, however, putting him by Dr. Wilner's estimation at a ten-to-eleven-year-old range. Wilner Aff., p. 29. Similarly, Dr. Wilner estimates defendant's ability to cope, ask for help, and accept changes in his routine is somewhat closer to a seven-to-eight-year-old level. Id. at 30. In terms of selfcare, community-based tasks, and leisure, however, defendant ranges in capability from that of a fifteen-year-old to that of a twenty-two-year-old. Id. at 29-30. As a consequence, Dr. Wilner diagnosed defendant with autism spectrum disorder ("ASD") with deficits in social communication but without intellectual impairment. Id. at 40-41.
Dr. Wilner recommends that law enforcement officers employ four practices in interviewing people with ASD. Wilner Aff., p. 52. First, she recommends allowing the interviewee to engage in self-soothing behaviors such as Pecoraro's tics. Id. Second, she recommends using unambiguous, clear language, and even offering to use an intermediary, such as a parent, to help in communication where possible. Id. Third, Dr. Wilner suggests maintaining a calm demeanor, speaking in a soft voice, and generally cutting down on sensory stimuli. Id. Finally, she recommends that investigators ask the person with ASD about any conditions they may have to make it easier to talk to them. Id.
According to Pecoraro and Dr. Wilner, defendant's confession on June 5, 2020 was not voluntary, but a reflexive deference to authority. But as the Government correctly notes, defendant has not pointed to anything that Marciniak, Young, or any other state actor did on June 5, 2020 that amounted to coercion. In the absence of coercion, defendant's argument fails.
Even assuming that every fact Pecoraro alleges is accurate, he does not identify anything that Marciniak and Young did to compel him to confess. Instead, defendant only reiterates his own limitations and claims that because the investigators and his mother were "authority figures," he felt powerless to resist their questions. Notwithstanding defendant's limitations, his attempt to suppress his confession absent the "necessary predicate" of police coercion cannot warrant suppression. See Haak , 884 F.3d at 409. Pecoraro nevertheless counters that the conduct of law enforcement is only one sort of factor courts consider in assessing the voluntariness of a confession. Although defendant is correct that courts look to other factors in determining whether police coercion overbore a defendant's will, those factors are designed to gauge the severity of that coercion in light of the totality of the circumstances, not as a freestanding test in the absence of any coercion at all. See Haak , 884 F.3d at 409 (holding that after police misconduct has been established court must still make findings under totality that defendant's will was overborne by that misconduct).
To the extent that defendant argues that the lack of a New York State Police policy on questioning suspects with ASD amounts to coercion, that argument is similarly unavailing. Whether the lack of a formal policy or training to handle suspects with ASD makes it more likely in theory that police would coerce a defendant does not alleviate defendant of his burden to prove that he was actually coerced in this case. Haak , 884 F.3d at 409. Defendant has still failed to carry that burden. Similarly, defendant's possible argument that his concern that the police were not wearing facemasks in his home during the COVID-19 pandemic might have played a role is unavailing because defendant never suggests that the police used their lack of masking to coerce him into confessing. Hamilton , 487 F. Supp. 3d at 149 (requiring that police coercion cause confession).
While Pecoraro's arguments concerning his own communicative difficulties may have played a role in determining if his will had been overborne had he provided any evidence of police misconduct, his failure to do so in the first place forecloses relief.
To the extent that Pecoraro argues that his will was overborne by his mother's order that he "tell the truth," that argument is similarly flawed. After all, the Fourth Amendment does not concern itself with coercion generally, but with police coercion. See Hamilton , 487 F. Supp. 3d at 149. As a result, though defendant may have felt compelled to obey his mother's directions, that still does not entitle him to suppression in the absence of any misconduct by police. See Connelly , 479 U.S. at 167, 107 S.Ct. 515 (holding that "coercive police activity is a necessary predicate to the finding that a confession is not ‘voluntary’ " (emphasis added)).
Finally, Pecoraro's argument that the police were apprised that defendant had some mental conditions is irrelevant, for many of the same reasons. If defendant had provided any evidence that Marciniak and Young had taken advantage of defendant's condition, that would have been one thing. And certainly, some courts have found that police knowledge of a defendant's mental impairment may reduce the amount of coercion necessary to render a confession involuntary. See Nickel v. Hannigan , 97 F.3d 403, 410 (10th Cir. 1996).
But no court has ever held that knowledge of a defendant's mental condition can outright alleviate the need to find police coercion before granting suppression. In fact, the Supreme Court itself has held the opposite. Connelly , 479 U.S. at 164, 107 S.Ct. 515 (holding that "a defendant's mental condition, by itself and apart from its relation to official coercion, should [n]ever dispose of the inquiry into constitutional ‘voluntariness’ "). As a consequence, whatever Marciniak or Young actually knew about Pecoraro's mental condition, their mere knowledge without any evidence of coercion whatsoever cannot warrant suppression.
In any case, Marciniak and Young employed many of the exact tactics that Dr. Wilner recommends for interviewing a defendant with ASD in their interview with Pecoraro. It is unchallenged on this record that the investigators used a calm voice in speaking with defendant and gave him time to explain himself. Marciniak Aff. ¶ 14; Wilner Aff. p. 52. They also allowed defendant's mother to be present as an intermediary between themselves and defendant, much like Dr. Wilner suggested. Marciniak Aff. ¶ 15; Wilner Aff. p. 52.
In other words, not only has Pecoraro failed to point out anything that Marciniak and Young did wrong, even the evidence that defendant marshals in an attempt to prove coercion shows that they if anything acted appropriately to effectively communicate with him notwithstanding his ASD. Accordingly, defendant's arguments that his confession on June 5, 2020 should be suppressed all fail, and that motion must be denied. See, e.g. , United States v. Parker , 116 F. Supp. 3d 159, 177-78 (W.D.N.Y. 2015) (upholding confession despite defendant suffering from schizophrenic hallucinations in hospital because no government actor took advantage of defendant's diminished mental state).
B. Voluntariness of June 5 Consent Search
Pecoraro next argues that the evidence the Government found from searching his devices violated the Fourth Amendment in the absence of a valid search warrant. To defendant's point, the general rule under the Fourth Amendment is that private property cannot be searched without a warrant supported by probable cause. See United States v. O'Brien , 926 F.3d 57, 75 (2d Cir. 2019). However, police may lawfully search property even without a warrant as long as they first receive the defendant's consent. Id.
But when the Government tries to establish that it searched property on the basis of consent, it "has the burden of proving, by a preponderance of the evidence, that a consent to search was voluntary." United States v. Gandia , 424 F.3d 255, 265 (2d Cir. 2005). The same binary question controls the voluntariness of a consent to search as the one that governed the voluntariness of a non-custodial interrogation: was the consent truly voluntary, or was it "the product of duress or coercion, express or implied"? O'Brien , 926 F.3d at 76. In answering that question, courts do not "deviate from the traditional definition of ‘voluntariness.’ " Id. (internal citations and quotation marks omitted).
In fact, some courts have treated voluntariness for a consent search the same way they have interpreted the voluntariness inquiry in other contexts. See, e.g. , United States v. Amery , 2002 WL 31027514, at *1 (S.D.N.Y. Sept. 10, 2002) (treating voluntariness the same for Miranda and consent search).
Accordingly, the voluntariness inquiry for a consent search once again boils down to a review of the "totality of the circumstances." O'Brien , 926 F.3d at 76. Although it is not dispositive, one factor that courts consider is whether the defendant knew he had the right not to consent. Id. Some other relevant factors include the defendant's age, education, intelligence, whether he was detained before consenting to the search, the repetition and duration of questioning leading up to the search, or the use of any physical punishment in questioning him. See Schneckloth v. Bustamonte , 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
The "ultimate question" at issue in determining whether consent to a search was voluntary is whether "the officer had a reasonable basis for believing that there had been consent to the search." United States v. Garcia , 56 F.3d 418, 423 (2d Cir. 1995).
Under the totality of the circumstances, there is no basis to support Pecoraro's argument that he did not voluntarily consent to the June 5, 2020 search. But first, the Court makes the following findings of fact to clarify what circumstances it will be considering. In doing so, the Court relies entirely on undisputed facts, and where there are disputes, it will assume the facts to be in defendant's favor.
First, Pecoraro was eighteen years old on June 5, 2020. Marciniak Aff. ¶ 9. Second, defendant could speak, read, and understand English, although his ASD presented significant difficulties for him in understanding written and verbal communication. Wilner Aff. pp. 29-30. Third, Marciniak and Young wore plainclothes, and the Court will assume—as defendant seems to argue—that both investigators’ weapons were visible. Marciniak Aff. ¶¶ 10-12; Mother Aff. ¶ 45. Fourth, the Court will also assume that defendant's mother is an authority figure in his life which he "always obeys." Id. ¶ 48.
Fifth, Marciniak and Young calmly explained to Pecoraro the nature of their investigation before asking for consent to search. Marciniak Aff. ¶¶ 14. Sixth, the investigators allowed defendant's mother to be present to act as an intermediary. Id. Seventh, the investigators interviewed plaintiff in his own home. Id. ¶ 13; Mother Aff. ¶¶ 36-37. Eighth, the investigators told defendant that he did not need to consent to the search. Marciniak Aff. ¶ 16. Ninth, defendant took the investigators to his room so that they could examine the three searched devices. Marciniak Aff. ¶ 18; Dkt. 30-2, pp. 2-3. And tenth, defendant also gave the passcode to his laptop so the investigators could access it. Marciniak Aff. ¶¶ 16-17.
Taking the totality of the circumstances together, the only evidence that Pecoraro uses to try to establish that his consent was not voluntary was his own communicative difficulties due to his ASD, his mother's influence over him, and the fact that Marciniak and Young were visibly armed. Taking all three factors into consideration, the Government has still more than met its burden of showing that reasonable officers in the investigators’ position would have believed that they had defendant's consent. Garcia , 56 F.3d at 423.
From the start, the closest that Pecoraro comes to providing evidence of police coercion is that Marciniak and Young were armed when they asked for his consent. But a search based on consent is not unreasonable in the absence of evidence that the police coerced that consent. See United States v. Hernandez , 85 F.3d 1023, 1028 (2d Cir. 1996) (noting that "[s]o long as the police do not coerce consent, a search conducted on the basis of consent is not an unreasonable search"). Without any indication that the police used their armament to coerce defendant into consenting to the search, the inquiry reaches its end, and the Court need go no further in probing defendant's consent to the June 5, 2020 search.
Even assuming that Pecoraro could overcome the Government's showing of consent even without showing police coercion, though, the totality of the circumstances would still establish that defendant consented to the search. Much as defendant may make of his mother's direction that he sign the consent to search form, that argument does not undermine the Government's showing of voluntary consent.
After all, "[i]n order to make a finding of involuntariness, ... coercive governmental activity must overbear the defendant's will." Amery , 2002 WL 31027514, at *1 (emphasis added). Defendant's mother is a private citizen, not an agent for the government. Nothing that she did implicates the constitutional protections at issue in ensuring that a consent to a search was voluntary. Cf. Parker , 116 F. Supp. 3d at 174 (W.D.N.Y. 2015) (noting in confession context that constitution "does not protect against conduct by private parties, nor does it protect a defendant from his own compulsions or internally-applied pressures which are not the product of police action" (cleaned up)).
In any case, and even assuming that Pecoraro would comply with his mother's directives as a matter of course, Marciniak and Young had no way of knowing at the time of the search that defendant's relationship with his mother carried that much weight. Taking the facts in the light most favorable to defendant, all that the investigators knew about his mental state was that he had communicative difficulties and high anxiety. Mother Aff. ¶ 38. Without any direct evidence of the contours of defendant's and his mother's relationship, the simple fact that defendant's mother directed him to sign the consent form would not have put a reasonable officer on notice that defendant was not consenting to the search, especially after the investigators explained to him what it was and that he did not need to sign it. Garcia , 56 F.3d at 423.
The remainder of Pecoraro's argument seems to cash out to a claim that his mental condition made him incapable of consenting to the search. But there is nothing in the record to support defendant's position, nor has his evidentiary showing presented questions of fact that would require a hearing.
Even keeping Pecoraro's communicative difficulties in mind, it is undisputed that Marciniak and Young spoke to defendant in a calm tone and allowed defendant's mother to be present for the entire interview to act as an intermediary. Both facts are, once again, tactics that Dr. Wilner herself recommends to help ensure successful communication during interviews with defendants with ASD. Wilner Aff. p. 52. It is also undisputed that the investigators explained to defendant that he did not need to consent to the search.
In addition, and notwithstanding defendant's youth and communicative difficulties, Pecoraro plainly knew what the search would entail, because he helped Marciniak and Young access his devices. Given defendant's capacity to meaningfully facilitate the search, the Court is unmoved by his argument that he was incapable of understanding what, precisely, he was consenting to.
Accordingly, even if Pecoraro's mental state were relevant despite the dearth of evidence of police coercion, defendant has failed to produce a question of disputed fact requiring a hearing as to whether he voluntarily consented to the search. Defendant's motion to suppress the fruits of the search of his electronic devices must be denied. See, e.g. , Brewster v. New York , 2010 WL 92884, at *7 (E.D.N.Y. Jan. 6, 2010) (finding that whether criminal defendant suffered from mental disease or defect at time of search is irrelevant where defendant was lucid and cooperative because relevant question is whether reasonable officer would have believed defendant to be capable of consenting).
C. June 9 Arrest
For his third argument, Pecoraro claims that Marciniak and Young violated his Fourth Amendment rights by handcuffing him and extracting him from his home on June 9, 2020.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. CONST. amend. IV. Arresting a person in their home requires law enforcement to show either: (1) a warrant; or (2) probable cause and an exception to the warrant requirement, to survive a Fourth Amendment challenge. Dockery v. Tucker , 2006 WL 5893295, at *17 (E.D.N.Y. Sept. 6, 2006). The rationale behind requiring a warrant is to protect the sanctity of the home from state intrusion unless a judicial officer is satisfied that the intrusion is justified. See Payton v. New York , 445 U.S. 573, 601-03, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980).
But Payton ’s requirement that a warrant issue before police can enter a defendant's home does not, standing alone, appreciably help this Court navigate the waters ahead of it in this case, where Marciniak and Young acquired a search warrant—not an arrest warrant. 445 U.S. at 601-03, 100 S.Ct. 1371. Still, Payton provided some clues, which later courts have fleshed out.
Payton itself attempted to mollify prosecutors’ concerns as to the impracticality of providing enough evidence to support a search warrant before every arrest of a defendant in his home. 445 U.S. at 602, 100 S.Ct. 1371. In fact, the Supreme Court expressly held that "[i]t is true that an arrest warrant requirement may afford less protection than a search warrant requirement, but it will suffice ...." Id.
Several Circuit Courts of Appeals have taken the Supreme Court at its word and held that once the Government takes the further step of getting a search warrant for a defendant's home, it does not violate the Fourth Amendment for the Government to arrest him while he is there without getting an arrest warrant as well. See, e.g. , Russell v. Harms , 397 F.3d 458, 466 (7th Cir. 2005) (collecting authorities for proposition that police may arrest defendant at home if they have probable cause and are lawfully on premises in executing search warrant). Although to this Court's knowledge no binding panel opinion of the Second Circuit has held as much, that court has approved home arrests supported by search warrants in summary orders. See, e.g. , United States v. Russell , 501 F. App'x 67, 69 (2d Cir. 2012) (summary order).
The rationale is not hard to grasp. In Payton , the Supreme Court set out to protect the home from unsupported intrusion by state actors. 445 U.S. at 601-03, 100 S.Ct. 1371. If state actors are already entitled to intrude upon the defendant's home under a search warrant, the need for an arrest warrant evaporates. See Harms , 397 F.3d at 466. All the more so because a search warrant affords defendants greater protection than an arrest warrant, suggesting that the police have gone further than they strictly needed to in justifying the in-home arrest. See id. ("If anything, Payton suggests that officers in possession of a search warrant have gone above and beyond what the Fourth Amendment requires before they may arrest a resident in h[is] home.").
The Court cannot depart from the sheer weight of this persuasive authority, especially given the Second Circuit's apparent inclination to agree with it. In acquiring a search warrant, Marciniak and Young established probable cause that Pecoraro had additional evidence of child pornography in his home. Marciniak Aff. ¶ 24. On top of that, the images already recovered from defendant's devices were also more than enough to afford them probable cause to arrest defendant. Id. ¶¶ 22-23. The June 9, 2020 arrest was therefore lawful even assuming as true any facts that defendant would dispute. See, e.g. , Russell , 501 F. App'x at 69-70 (upholding arrest notwithstanding lack of arrest warrant because police entered home under lawful search warrant).
D. Propriety of the June 9 Miranda Waiver
Next, Pecoraro argues that he did not validly waive his Miranda rights during the custodial interrogation on June 9, 2020. It hardly bears repeating that under Miranda , a defendant's in-custody statements must be suppressed if he was interrogated without first being advised: (1) of his right to remain silent; (2) that any statements he makes may be used against him; (3) that he has a right to counsel; and (4) that an attorney will be appointed for him if he cannot afford one. 384 U.S. at 467-71, 86 S.Ct. 1602.
The Government does not dispute that defendant was in custody for the June 9, 2020 interrogation.
Once properly warned of them, a defendant may validly waive his Miranda rights. See Berghuis v. Thompkins , 560 U.S. 370, 385, 130 S.Ct. 2250, 176 L.Ed.2d 1098 (2010). The mechanisms for bringing a waiver about are not particularly formal, due to the "practical constraints and necessities of interrogation and the fact that Miranda ’s main protection lies in advising defendants of their rights[.]" Id.
In fact, "the law can presume that an individual who, with a full understanding of his or her rights, acts in a manner inconsistent with their exercise has made a deliberate choice to relinquish the protection those rights afford." Berghuis , 560 U.S. at 385, 130 S.Ct. 2250. In practical terms, "[w]here the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused's uncoerced statement establishes an implied waiver of the right to remain silent." United States v. Plugh , 648 F.3d 118, 127 (2d Cir. 2011) (citing Berghuis , 560 U.S. at 385, 130 S.Ct. 2250 ).
To be both "understood" and "uncoerced," a defendant's waiver of his Miranda rights must be knowing and voluntary. United States v. Taylor , 745 F.3d 15, 23 (2d Cir. 2014). A waiver is "knowing" if it was "made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it." Plugh , 648 F.3d at 127. And a waiver is voluntary, for a third time, if it "was the product of a free and deliberate choice rather than intimidation, coercion, or deception." Id.
Considering whether a waiver was adequate considers "the particular facts and circumstances surrounding the case, including the background, experience, and conduct of the accused." Plugh , 648 F.3d at 127 (cleaned up). This totality of the circumstances inquiry also considers "the conditions of interrogation[ ] and the conduct of law enforcement officials." United States v. Anderson , 929 F.2d 96, 99 (2d Cir. 1991). The burden of proof that a defendant's waiver was both knowing and voluntary falls to the Government. Plugh , 648 F.3d at 127.
However, although a defendant may waive his Miranda rights, he may also, of course, invoke them. See United States v. Gonzalez , 764 F.3d 159, 165 (2d Cir. 2014). Once he does so, "interrogation must stop and the invocation must be scrupulously honored." Id. (internal citations and quotation marks omitted). That said, a defendant's invocation of his Miranda rights must be "clear, unambiguous[, and] affirmative." Plugh , 648 F.3d at 124. In other words, "[i]f an accused makes a statement ... that is ambiguous or equivocal or makes no statement, the police are not required to end the interrogation, or ask questions to clarify whether the accused wants to invoke his or her Miranda rights." Berghuis , 560 U.S. at 381, 130 S.Ct. 2250 (internal citations and quotation marks omitted).
Pecoraro claims four infirmities in Marciniak and Young's interrogation of him at the Plattsburgh police station on June 9, 2020. First, defendant argues that he invoked both his right to counsel and his right to silence, and that the investigators’ continued interrogation after that point violated his Fifth Amendment rights. Specifically, defendant points to his shaking his head and saying "I don't know" when asked whether he wanted to keep talking to the police and his asking "do I need a, like, a lawyer" later in the interrogation. Interview, 6:58:05-19 p.m., 7:00:47-52 p.m.
The problem for Pecoraro is that neither professed invocation of his Miranda rights was clear, unambiguous, or affirmative. In fact, the two statements defendant references line up squarely with a pair of statements the Second Circuit rejected as ambiguous in Plugh . 648 F.3d at 124. In that case, the defendant said "I am not sure if I should be talking to you" and "I don't know if I need a lawyer," and those statements—alone or together—were not enough to satisfy the Second Circuit that the defendant had clearly invoked his rights. Id. Accordingly, defendant's statements hinting at his Miranda rights were similarly ambiguous, and Marciniak and Young were not obligated to stop questioning defendant. See, e.g. , United States v. Green , 2020 WL 9459171, at *12 (W.D.N.Y. Apr. 13, 2020) (finding that "can I try to call my lawyer" or "can I call my lawyer" were not unambiguous or unequivocal requests to invoke right to counsel).
Second, Pecoraro contends that he did not waive his Miranda rights on June 9, 2020. Defendant is mistaken. Under the law of both the Second Circuit and the Supreme Court, a defendant waives his Miranda rights simply by making an uncoerced statement to the police after being warned of them. Plugh , 648 F.3d at 127 (citing Berghuis , 560 U.S. at 384, 130 S.Ct. 2250 ). Of course, that waiver must still be knowing and voluntary to be valid, but as far as the act of waiving his rights goes, defendant's speaking to police is enough to establish the fact of waiver. See Plugh , 648 F.3d at 128.
Third, Pecoraro argues that his waiver was not "knowing," both because of his communicative difficulties and because defendant claims his fingers were in his ears while his Miranda rights were being read to him.
Even assuming that Pecoraro's fingers were in his ears, defendant nodded to acknowledge that Marciniak was about to read him his rights, and then nodded again and verbally acknowledged that he had heard and understood his rights. Interview, 6:57:40-58:09 p.m. This contextually appropriate response both before and after Marciniak read him his Miranda rights demonstrates that whether his fingers were in his ears or not, he listened to Marciniak and processed what he was being told.
This assumption is dubious, and the Court only indulges it to further illustrate why an evidentiary hearing in this case would be unnecessary. The video clearly shows defendant's fingers at or below the level of his earlobes while Marciniak is reading him his rights. Interview, 6:57:40-58:09 p.m. In other words, his fingers were in no way interfering with his ability to hear.
As to Pecoraro's second point, whether his flagging communication skills prevented him from understanding his rights presents a somewhat closer question. After all, Dr. Wilner's opinion that defendant's verbal communication skills approximate those of a five-to-six-year-old does suggest that defendant's own characteristics got in the way of his ability to understand the nature of the rights the Government claims he waived. Wilner Aff. p. 29; see Plugh , 648 F.3d at 127 (noting that characteristics of accused must be considered as part of knowing waiver of Miranda rights).
Even so, Pecoraro's conduct and the conduct of the police both cut deeply against a finding that defendant did not understand the rights he was potentially relinquishing. When defendant asked whether he needed an attorney, he coherently explained that he did not want to seem to be untruthful by asking for a lawyer. Interview, 7:00:47-01:36 p.m. Although practical wisdom makes it clear that defendant's approach was mistaken, the fact remains that his mistake is not uncommon, and he approached the interrogation actively thinking about his culpability and how calling an attorney would factor into that equation.
Pecoraro also explained that he was unsure if he would need an attorney because he was in the dark about what questions Marciniak and Young would ask, which reinforces that he understood that his right to an attorney was tied at the hip to his criminal culpability. See Interview, 7:00:47-01:36 p.m. Both points establish that defendant had a grasp of the nature of his rights and the circumstances he found himself in, his idiosyncrasies notwithstanding.
Similarly, Marciniak and Young took pains to ensure that Pecoraro understood his rights. In fact, the investigators checked off three of the four boxes that Dr. Wilner herself recommended for effectively communicating with a defendant with ASD. Wilner Aff. p. 52. The investigators never stopped defendant from employing his self-soothing behaviors, which Dr. Wilner specifically identified as important in facilitating communication. Id. ; see generally Interview, 7:01:36-8:03:32 p.m.
Marciniak and Young also maintained a calm tone throughout the entire interrogation, again in line with Dr. Wilner's recommendations. Wilner Aff. p. 52; see generally Interview, 7:01:36-8:03:32 p.m. The investigators even specifically asked Pecoraro about his condition and if there was anything they could do to help him. Wilner Aff. p. 52; Interview, 7:00:20-22 p.m.
Additionally, Marciniak asked Pecoraro if he understood his rights, and defendant acknowledged that he did. Interview, 6:58:04-09 p.m. He also reiterated to defendant that he did not need to answer any questions that he did not want to. Id. at 7:01:15-21 p.m.
Put together, Marciniak and Young went to substantial lengths to explain to Pecoraro the sum and substance of his Miranda rights in a way that would allow for effective communication despite defendant's communicative difficulties. Defendant's own conduct does not betray a hint of confusion about the nature and function of his rights, and in fact demonstrate some typical concerns of suspects being interrogated.
Against the Government's showing, Pecoraro's general difficulties in understanding and processing information communicated to him through speech do not meaningfully change the fact that by all appearances he did understand the nature of his Miranda rights on June 9, 2020. The Court therefore finds that, under the totality of the circumstances, defendant's waiver of his Miranda rights was knowingly done.
Fourth, Pecoraro argues for a final time that his waiver of his Miranda rights was not voluntary. Once again, defendant relies chiefly on his communicative difficulties to try to undermine the Government's showing of voluntariness. Once again, the Court remains unconvinced. After all, intellectual disadvantages do not, standing alone, make a Miranda waiver involuntary. See United States v. Male Juvenile (95-CR-1074) , 121 F.3d 34, 40-41 (2d Cir. 1997) (holding that intellectual disabilities alone are not enough to render Miranda waiver involuntary so long as defendant was aware "both of the nature of the right being abandoned and the consequences of the decision to abandon it"). And Pecoraro has still failed to point to anything that Marciniak and Young did which amounted to coercion. Perhaps, under certain sets of circumstances, defendant's being handcuffed and taken to the police station could have pointed towards coercion, but not in the circumstances of this case. The investigators simply did too much to dispel the psychological hardships the experience imposed on defendant.
When Marciniak and Young noticed that Pecoraro was shaking once they placed him in handcuffs, they allowed him to sit down and calm himself to make him more at ease. Marciniak Aff. ¶ 26. Then, at the station where defendant was clearly in distress, Troopers spent roughly an hour coaxing defendant into a chair, offering to get him water, coaching him through breathing, and generally offering support. Interview, 5:58:55-6:55:27 p.m. The investigators also made sure that defendant had been given water, offered to get him a candy bar, and asked what they could do to help him feel more at ease. Id. at 6:56:26-57:03, 6:59:45-7:00:22.
In short, Marciniak and Young had Pecoraro off balance in the early goings of the June 9, 2020 interview. Rather than taking advantage of defendant's condition, the investigators worked to restore defendant to a state of calm. Regardless of defendant's communicative difficulties, the investigators’ conduct was simply not coercive, and thus neither defendant's waiver of his Miranda rights—nor any of his subsequent statements—were involuntary. Plugh , 648 F.3d at 127 (requiring intimidation, coercion, or deception to make statements to police involuntary).
Accordingly, the Court finds that Pecoraro's waiver of his Miranda rights on June 9, 2020 was both knowing and voluntary, even taking the facts squarely as defendant alleges them. Defendant's motion to suppress his confession during the June 9 interrogation must be denied. See, e.g. , Male Juvenile (95-CR-1074) , 121 F.3d at 40-42 (finding Miranda waiver voluntary and knowing despite defendant's attentional and learning disabilities where police twice warned defendant about rights which defendant said he understood).
E. Fruit of the Poisonous Tree
As a final matter, Pecoraro argues that the Government's evidence must be suppressed as fruit of the poisonous tree. Under that doctrine, evidence obtained by the police through exploiting other, earlier police misconduct is inadmissible. Wong Sun v. United States , 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, as discussed above Pecoraro has failed to point to any unconstitutional misconduct by the police in investigating him. There is therefore no basis for suppression, and defendant's omnibus motion must be denied in its entirety.
Defendant requested a hearing if the Court found his support for relief wanting. However, as discussed above, there are no facts even in his version of events that would support the relief he requests. As a consequence, a hearing would be unnecessary. See Gentile v. Cty. of Suffolk , 926 F.2d 142, 148 (2d Cir. 1991) ("[I]f facts urged in support of a hearing would not entitle the moving party to relief as a matter of law, no evidentiary hearing is required." (citing United States v. Irwin , 612 F.2d 1182 (9th Cir. 1980) )).
IV. CONCLUSION
Pecoraro raised a number of challenges to the methods Marciniak and Young used to investigate him. Those challenges were worthy, and given defendant's unique condition and his youth, the Government's case merited scrutiny. However, that scrutiny revealed that the investigators approached their investigation carefully, showing all due caution given defendant's unique characteristics. Defendant's suppression motion must be denied in its entirety.
Therefore, it is
ORDERED that
1. Defendant Kaleb Pecoraro's omnibus motion to suppress the Government's evidence is DENIED; and
2. Defendant Kaleb Pecoraro's request for an evidentiary hearing to test the propriety of the Government's investigation is DENIED because no facts to which defendant points would entitle him to relief even if proven true.
IT IS SO ORDERED.