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United States v. Diaz

United States District Court, S.D. Florida

April 25, 2018

United States of America, Plaintiff,
Jonathan Diaz, Defendant.


          Robert N. Scola, Jr., United States District Judge

         Defendant Jonathan Diaz is charged with access with intent to view child pornography and possession of child pornography. (ECF No. 26.) This matter is before the Court on the Defendant's motion to suppress based upon violation of his Fourth and Fifth Amendment rights (ECF No. 23). The Defendant argues that any evidence and statements obtained from him on October 5, 2017 should be suppressed because his home was unlawfully searched and he was unlawfully interrogated by Homeland Security Investigations (“HSI”) agents.

         The Court held an evidentiary hearing on the Defendant's motion on April 9, 2018. At the hearing, the Court heard the testimony of Government witness Michael Bentolila, and the Defendant, Jonathan Diaz. The Court also reviewed Government exhibits 1 through 5. After considering the credible evidence and testimony and the relevant legal authorities, and for the reasons more particularly set forth below, the motion to suppress (ECF No. 23) is denied.

         1. Summary of testimony

         a. Michael Bentolila

         In August 2017, HSI received information that an IP address at 15950 SW 304th Street was receiving, and possibly distributing, child pornography. An individual named Jonathan Diaz resided at that address. Upon review, Diaz's Facebook page showed images of Diaz with a young boy, though not child pornography.

         Bentolila has been working for Homeland Security Investigations for fifteen years and is a computer forensic special agent in the cybercrimes division. He sometimes accompanies other agents in the field. On October 5, 2017, Bentolila accompanied agents to the residence on 304th Street. It was their intent to obtain consent to view any computers in the house, as they did not have a warrant.

         The four agents arrived at the residence at 6:15 a.m. in three to four unmarked SUV vehicles and parked outside the chain-link fence surrounding the house, in the swale area. Bentolila and the other agents were wearing t-shirts underneath vests with “HSI Police” on the back and a badge emblem on the front. The agents carried sidearms, but none of the officers brandished or took a gun out of its holster. The agents went through the unlocked pedestrian gate and knocked on the front door. A younger female answered the door and said that no one else was in the house. The agents asked to speak to Jonathan Diaz, and she responded that he was at work but that she would call him. She went into the house to make the call and then told the agents that Diaz was on his way. Bentolila does not recall if any agents spoke to Diaz on the phone.

         Diaz arrived 20 minutes later, and was told by S.A. Nicole Mederos that the agents had information that there was child pornography in the house, and they wanted to check to make sure there was no child pornography on his computers. Mederos told him that he was not under arrest and was free to leave at any time. Diaz was calm and forthcoming. Diaz told the agents that he was fine with them looking at the computers. Agents Daniel Dargan, Mederos and Bentolila entered the home with Diaz.

         Upon entering the home, Diaz was given a form to sign consenting to the search by agents of any electronic media, including phones, computers, CDs and electronic storage devices. Diaz signed the form, which was witnessed by Dargan and Mederos. Bentolila was not present with Diaz when the form was signed, but Diaz had orally given Bentolila consent to search the laptop.

         After Diaz signed the form, Bentolila asked Diaz if he had a computer, and Diaz said that he had a laptop. Diaz went to his bedroom and unlocked the door. Bentolila followed him to make sure he did not grab any weapons. Inside the bedroom, Diaz reached down by the side of the bed and grabbed a laptop computer and handed it to Bentolila. Bentolila set his forensic equipment up on the kitchen counter to analyze and retrieve data while maintaining the integrity of the evidence.

         Bentolila asked Diaz to turn on the laptop so he could look quickly to see if there was any contraband on it. Diaz turned on the laptop and entered his password. At the time, Mederos and Agent Lopez were outside the home, but Dargan and Agent Amy Shu were in the house. At some point, Diaz's mother came to the house. While Bentolila was looking through the laptop, Diaz made a phone call to a Customs and Border Patrol Agent he knew and that agent agreed to speak briefly with Mederos.

         Bentolila offered to take the laptop to his office to conduct the examination, but Diaz wanted the examination to be done in the house. Bentolila hit the “recently played” button on the RealPlayer and saw files indicative of child pornography files. Bentolila notified Mederos that he had found links to child pornography and the agents decided to interview Diaz. Mederos asked Diaz where he would like to conduct the interview and suggested interviewing Diaz in her vehicle for privacy.

         Bentolila was in the back seat, Mederos in the driver's seat and Diaz was in the front passenger seat. Once inside the vehicle, Diaz was told that the agents needed to read him his Miranda rights. He was told he was not under arrest. Mederos read the rights one at a time and asked Diaz to acknowledge that he understood those rights by initialing each right. Diaz initialed each right, and signed the ...

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