US Court of Appeals finds extreme police conduct, circumstances of search and length of interview place suspect in custody and trigger Miranda
Child pornography is one of the most demonized crimes in our criminal justice system. The popular public perception is that there is a nexus between child pornography and child molestation. The U.S. Supreme Court in its 1982 decision, New York v. Ferber,—a decision that criminalized child pornography—lent credence to this nexus when it said child pornography “is intrinsically related to the sexual abuse of children” because “the materials produced are a permanent record of the children’s participation and the harm to the child is exacerbated by their circulation.” This observation notwithstanding, the court would only describe the nexus as a “casual link” because there was, and remains, no convincing empirical evidence to support it. In 2002, law professor Alan M. Dershowitz said the nexus had not been proven “convincingly,” believing that “the vast majority of people who watch child pornography never act on it, and a considerable number of people who are child molesters do not watch child pornography.”
While a number of controversial studies have over the past decade supported the nexus theory between child pornography and child sexual abuse, each have recognized that the nexus involves a “complex interaction” between the two. But these studies have nonetheless provided sufficient energy for law enforcement, child advocacy groups, and lawmakers to fuel the misperception that there is a “definite link” between the two sex crimes. For example, the Bureau of Immigration and Customs’ Homeland Security Investigations unit (HSI) believes that “countless children around the world fall prey to sexual predators” involved in the production, trade, and possession of child pornography. HIS established “Operator Predator” to not only apprehend child pornographers but others involved in sex trafficking of children and overseas travel for sex with minors. HSI now works closely with 61 other Internet Crimes Against Children Task Forces led by state and local law enforcement agencies.
HSI’s active involvement in child sex crimes investigations places those crimes on equal footing with terrorism-related crimes. And perhaps that explains the highly questionable police conduct in the case of Faisal Hashime whose child pornography conviction was overturned by the Fourth Circuit Court of Appeals on October 29, 2013.
The case began in November 2010 when HSI was monitoring a child pornography website and came across the picture of a naked minor boy with an accompanying email address. Eight months later, July 2011, a HSI agent sent an email to the naked boy’s email address suggesting a trade in child pornography. The agent subsequently received two dozen explicit photos of a naked boy, allowing HSI to trace the naked boy’s account to an IP address associated with someone at the Hashime family home in suburban Virginia.
HIS then waited ten months before it secured search warrants for both the email account and the Hashime residence. We suspect that the significant delays in this case occurred because HSI was trying to link Faisal Hashime to other criminal activity. Be that as it may, a team of 15 to 30 state and federal agents descended on the Hashime home on May 18, 2012. Armed with a battering ram, the agents began to scream “open the door,” knowing that Hashmine, a 19-year-old college student, lived at the residence with his parents.
After the agents were admitted into the residence by Hashime’s aunt, they barged past her with their guns drawn. One agent raced to Hashime bedroom where the college student was naked and asleep having gone to bed at 5:00 a.m. that morning. The agent pointed his weapon at the teenager, ordering him to “Get up … Get out of bed” and show his hands. Even as Hashime was putting on a pair of boxer shorts, the agent continued to bark orders at him as he held the suspect’s arm. The agent then marched Hashime out into the front yard where the other agents had corralled family members. Despite it being a chilly morning, the agents kept the family members in the front yard, some dressed only in their nightclothes.
The agents eventually permitted the Hashimes to reenter their home only to be herded into the living room while the agents completed their search. Faisal Hashime was not allowed to “go to the bathroom” during the search, and while he was given some clothes to put on, the gesture did not include socks or shoes. Hashime’s mother, who was recovering from brain surgery, was not permitted to lie down. Other family members were not permitted to be alone and had to be accompanied by an agent at all times. As soon as the search was completed, the agents launched into an interrogation of each family member, including the ill mother.
Two agents took Hashime into the basement for questioning. Although the basement itself had recently been refurbished, the officers elected to take Hashime into a room used as a storage area. The interrogation lasted three hours, during which time other family members were not allowed to see or speak to him. During the interrogation, Hashime’s mother asked the agents three times to have an attorney represent him but was told she could not see him “or otherwise interrupt the interrogation.” The agents informed Hashime’s mother that her son was “under arrest.” The Fourth Circuit explained what happened next:
“The officers secretly recorded the interrogation. When Hashime asked them if they were recording it, the lead interrogator, who was not carrying the recording device, told Hashime, ‘I can tell you I don’t have a recorder on …’ During the interrogation, Hashime admitted to having child pornography on his computer and told the officers in great detail about how he had obtained the photographs. Hashime also gave the officers the password to his computer and told them where the child pornography images were located on the hard drive.
“At the beginning of the interview, the officers told Hashime that he did not have to answer their questions and could leave at any time. However, at one point in the interrogation, one of the officers told Hashime, ‘I need to know, and I need you to be completely honest with me here even if you’re afraid, I don’t care if you say I don’t want to answer that or I’m afraid to answer it, but I need to know the truth.’ In addition, when one of the interrogators left Hashime to go upstairs, he told Hashime, ‘[L]ike I said at the beginning, the search warrant we got to kind of keep an eye on you … I can’t leave you here with nobody here.’
“The officers did not read Hashime his Miranda rights until over two hours into the interrogation.”
Hashime was arrested three days after the interrogation. A federal grand jury indicted him on seven counts of production, distribution, receipt and possession of child pornography. He was convicted at a bench trial. The Government requested a thirty-year sentence which was rejected by the district judge as “way more than would be appropriate” because of Hashime’s “youth and immaturity.” Handcuffed by a 15-year-mandatory minimum on the production charge, the judge imposed the mandatory minimum on that offense and a combination of “mandatory and non-mandatory five-year sentences” on the remaining offenses, all of which were ordered to be served concurrently.
The primary issue before the Fourth Circuit was whether Hashime’s conviction should be reversed because the agents did not timely advise him of his Miranda rights. The Government argued that such a warning was not required because the interrogation was “non-custodial.” That argument fared as well as the Titanic on its maiden voyage. Finding, based on the totality of the circumstances, that Hashime was in custody for purposes of Miranda, the appeals court concluded that “law enforcement’s failure to read [Hashime] his Miranda rights makes his testimony inadmissible and requires that his conviction be reversed.”
We applaud the Fourth Circuit for not letting the police-state conduct of the law enforcement officials involved in the Hashime search/interrogation prevail. Their conduct was shameful, especially the draconian behavior exhibited toward the Hashime family members. We strongly feel that HSI’s involvement in the case triggered the agency’s ingrained terrorism paranoia resulting in a totally unnecessary and offensive police reaction. A violent drug cartel leader and his family would have been accorded more respect and humane treatment.