Talk Nice, Think Mean, Seize Child Pornography, Secure Conviction

by | July 29, 2021

United States v. Michalik, 2021 WL 2980703 (5th Cir. 2021)

Someone with an IP address appearing at Jeffrey Michalik’s house was downloading child pornography. Agents went to Michalik’s home one morning just as he was leaving to go to work. The agents explained to Michalik they had a warrant to search his house and asked for his cooperation. The agents made a protective sweep and told Michalik and his family they were free to leave.

The agents then interviewed Michalik in one of their cars on the street near his house. When they asked Michalik whether he had viewed child pornography, he admitted to having done so on his work laptop and said that he used the same laptop to view pornography at home. The agents showed him images of child pornography, and he admitted he recognized some of them.

According to the agents, Michalik then drove to his office in his own car with agents following in their cars. Once at the office, Michalik showed the agents to his laptop and signed a form consenting to its search. Agents found child pornography on the laptop.

Michalik told a slightly different story, claiming the agents told him he had to lead them to the office to retrieve the laptop or they would take him to jail. He also claimed the agents told him they already had a warrant to search his laptop. Michalik acknowledged signing the consent form but said the agents didn’t explain what he was signing or give him a choice of whether to sign.

The court also reviewed the trial court’s finding that Michalik’s consent to search the laptop was voluntary.

The court of appeals affirmed Michalik’s conviction for possessing child pornography. The appellate court held that Michalik was not in custody at the time he made the statements. Therefore, no Miranda warnings were necessary. First, the court noted that the interview lasting 45 minutes to an hour “weighs in favor of finding that it was custodial,” but was not determinative. Second, the location of the questioning suggests the interview was not custodial. Michalik sat in the passenger-side front seat of a police car on the street near his house in public view. Third, the questioning was not accusatory. The agents “talked nice, thought mean.” Though Michalik asserted the agents called him a liar and insulted him, the trial court found that the conversation was “cordial” and Michalik was “cooperative.” The appellate court held that the trial court did not clearly err in its credibility determination in favor of the agents. Fourth, Michalik claimed he was effectively restrained by the presence of six to eight armed agents. However, the agents never handcuffed or otherwise physically restrained Michalik’s movement. They allowed his mother-in-law to leave the house and take the kids to school. The agents stopped the interview when Michalik “became frustrated with the agents’ questioning.” Fifth, though Michalik sharply contests it, the agents testified they told Michalik “repeatedly” that he was not under arrest and was free to leave before the interview.

The court also reviewed the trial court’s finding that Michalik’s consent to search the laptop was voluntary and easily concluded that the trial court did not err in determining his consent to the search of the laptop was voluntary. The court credited the agents’ statements that the trip to the office to retrieve the laptop was “completely up to him,” and that an agent “thanked him for his cooperation.” One of the agents testified that they told Michalik “he could say no” to cooperating.

At the end of the day, the case remains a perfect example of “talk nice, think mean.”

This blog was featured in our Xiphos newsletter, a monthly legal-focused law enforcement newsletter authored by Ken Wallentine. Subscriptions are free for public safety officers, educators and public attorneys.

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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