United States District Court, N.D. Georgia, Atlanta Division
TIMOTHY C. BATTEN, Sr., District Judge.
This case comes before the Court on Magistrate Judge Baverman's Final Report and Recommendation (the "R&R") , which recommends denying Defendant William Kimbrell's motions to suppress evidence [12 (preliminary), 27 (amended)] and statements [13 (preliminary), 37 (amended)]. Kimbrell has filed objections to the R&R .
I. Factual Overview
Kimbrell is charged with one count of receiving child pornography and one count of accessing child pornography with intent to view. The motions to suppress at issue arise from the execution of two search warrants at Kimbrell's residence and statements made by Kimbrell to law enforcement officers before and during those searches.
A. The First Search of Kimbrell's Residence
The first search warrant was executed on March 13, 2014. That afternoon, Anthony Scott and Michael Ashley, both special agents with Homeland Security Investigations/Immigration and Customs Enforcement ("HSI/ICE"), went to the school in Winder, Georgia where Kimbrell was employed. They arrived after the school day had ended and approached Kimbrell in the parking lot. Although Kimbrell was accompanied by a colleague, the agents told him, in a conversational tone, that they were there pertaining to a matter about computers and asked him if he wanted to speak with them away from his coworker. Kimbrell asked his colleague to excuse him and spoke with the agents privately, for about twenty or thirty minutes. Kimbrell denied knowledge of any child pornography on any computer to which he had access, consented to the agents' search of his vehicle for computer devices, and volunteered that he had computer devices in his classroom and escorted the agents to retrieve them.
Scott and Ashley told Kimbrell that other agents were searching his residence pursuant to a search warrant. Kimbrell was not instructed to proceed to the residence, but when Scott arrived at the residence after speaking with Kimbrell at the school, Kimbrell was already there and was seated in the living room with his parents, who also lived there.
Shortly after Scott arrived, he asked Kimbrell if he would like to speak with him further, and when Kimbrell responded affirmatively, Scott asked if he would like to speak in a more private area or remain where he was. Kimbrell opted for a more private location and led Scott and two other law enforcement officers to his parents' bedroom. Kimbrell sat on the right side of the bed, one of the agents stood near that side of the bed, and Scott and the other agent were on the left side of the bedroom. The door to the bedroom was closed.
The conversation that ensued lasted fewer than eighty minutes, was partially recorded by the agents, and remained conversational and respectful in tone. Kimbrell denied viewing child pornography purposefully, but he admitted that while using a peer-to-peer ("P2P") file-sharing network to download music while in college, he received and then deleted "a couple hundred" child-pornography images and videos contained in a zip file. He further stated that if he did inadvertently download files containing child pornography, he would delete them as soon as he realized what they were, which could explain any "sporadic" deleted files other than the one zip file he mentioned earlier. During this initial part of the conversation, which lasted about forty-two minutes, Kimbrell accused the agents of trying to get him to incriminate himself for something he had not done and otherwise generally maintained his innocence. Believing that he was not making any headway in light of Kimbrell's denials, Scott turned off the recorder, believing the interview was complete.
The conversation between Kimbrell and law enforcement resumed after Detective Woodall with the Liberty County Sheriff's Office told Scott that their search had revealed "some artifacts"-i.e., bits of data stored on a computer using P2P software-on computers at the residence. Scott left the room for approximately two minutes, and when he returned, Woodall was questioning Kimbrell about what had been found on the computers, so Scott resumed recording the interview. Kimbrell admitted that he had been curious and his relatively small physical size had fueled that curiosity, but he stated that "it wasn't a sustained thing." At this point, Woodall left the room and Scott resumed the questioning after instructing Kimbrell to "be straight" with him. Kimbrell maintained that his initial downloads had been inadvertent but admitted that he downloaded "a couple hundred" images, looked at them for approximately one minute, recognized them to be child pornography, and deleted them. Kimbrell also described the search terms he used to find the images, and he claimed to have downloaded the child pornography in an effort to view or download adult pornography.
Ultimately, the first search of Kimbrell's residence did not reveal any files containing child pornography, the agents did not seize any computer devices from the home, and Kimbrell was not arrested.
B. The Second Search of Kimbrell's Residence
On March 14, 2014, the day after the execution of the first warrant, a second search warrant was applied for and issued. Scott provided the supporting affidavit, just as he had for the first search warrant. In it he stated, among other things, that the first warrant had been executed; that a preview of one computer at the residence showed that child pornography images had been accessed but deleted; that Kimbrell "stated he had previously downloaded approximately 200 files containing child pornography, but the agent conducting the preview could find only 23 file names"; and that he believed probable cause existed for the warrant to issue. [27-2].
The second search warrant was executed on March 14, 2014 (the same day it was issued), and agents seized all the computers and storage devices located within Kimbrell's residence, ...