Pending is Defendant's motion to suppress. (Docket # 37). Following briefing by the parties, the Court held a hearing on July 30, 2007 which continued on August 8, 2007. From a review of the evidence, which included exhibits and testimony, the Court makes the following findings of fact and conclusions of law:
Defendant is charged with 13 counts of possession of child pornography and one count of transmitting child pornography in interstate commerce. The defendant filed this motion alleging that the consent to search allegedly given by his wife, Stephanie Foster, in two of the searches, was not voluntary and that the search warrant executed in the third search to access the computers is invalid due to a Franks' violation. Foster also claims that Stephanie Foster's written statement and his oral and written statements should be suppressed as neither was voluntary nor true.
Defendant asserts that his due process rights under the United States Constitution were violated when police officers elected not to videotape his statements made during his interrogation at the police station. In the alternative, Defendant argues that the officers' failure to tape the conversation by video or audio so seriously impugns their credibility to compel a finding that the government has not met its burden of showing that the statement was voluntary and not the product of coercion.
The Court has never found the position of various federal law enforcement agencies on tape recording statements to be very reassuring. Notwithstanding this Court's personal skepticism about the practice, the Eighth Circuit Court of Appeals has ruled that the failure to tape a suspect's interrogation is not a violation of his constitutional rights. See United States v. Wright, 2007 WL 1629912 (8th Cir. 2007) and United States v. Williams, 429 F. 3d 767, 772 (8th Cir. 2005).
As to Defendant's alternative argument, the Court finds that there was ample corroborative evidence of Keith Foster's admission to downloading child pornography. It starts with his sworn in court admission that he downloaded child pornography by accident and then erased it. This was followed by statements to Major Joe Taylor that Foster felt compelled to download pornography on a daily basis. Foster also made statements to Detective Jim Barrett that he had downloaded illegal images but had erased them. Finally, there were numerous statements by Stephanie Foster that she had witnessed her husband downloading child pornography.
The Court is aware that both Stephanie Foster and Keith Foster now take the position that all references to pornography were to legal adult pornography and not illegal child pornography.
Of course, the Court had the opportunity to observe all of the witnesses and found the law enforcement officers and agents far more credible than the defendant and his wife.
Search of premises and storage unit
1. The search of the premises occurred on October 18, 2005 in the afternoon. Police were called by representatives of the women's shelter and came as back up to assist Stephanie Foster in a domestic abuse case.
2. Stephanie Foster is 33 years old, married and just short of a college degree, she worked outside the home and was not under the influence of drugs or alcohol at any relevant time.
3. Stephanie Foster had reported to the women's shelter that for some time she had regularly been emotionally abused by her husband.
4. Stephanie Foster had also reported to Missa Hatfield with the women's shelter that her husband had a problem with child pornography and she wanted out of the home.
5. Hatfield was present at the home at the time of Stephanie's initial encounter with the police and she saw no indication of coercion.
6. Stephanie Foster met Major Joe Taylor outside her home and outside the presence of her husband, Keith Foster.
7. Taylor did not suspect any criminal activity until Stephanie volunteered to him that Keith had child pornography on his computer.
8. Stephanie was not under suspicion of any criminal activity and was never placed in custody.
9. Taylor is fully aware that adult pornography is legal and child pornography is not and would not have investigated a report of adult pornography.
10. Because of the report of child pornography, Taylor called Detective Jim Barrett who would normally investigate such matters.
11. When Barrett arrived Stephanie Foster told him that Keith Foster was downloading child pornography on his computers and had been abusive to her. She appeared to Barrett to be in need of help.
12. Stephanie Foster also volunteered to Taylor that Keith Foster kept child pornography on CD's in a closet.
13. The CD's were removed from the closet inside the house with Stephanie Foster's ...