U.S. v. TYKARSKY

HARVEY BARTLE, III, District Judge

Defendant Todd Tykarsky has moved to suppress evidence obtained by the government subsequent to his arrest on May 21, 2003. The court thereafter held an evidentiary hearing.

Tykarsky is charged with two offenses in the pending indictment. Count One charges him with traveling in interstate commerce for the purpose of engaging in, and attempting to engage in illicit sexual conduct, in violation of Title 18, United States Code, § 2423(b) and (e). Count Two charges him with using a facility of interstate commerce "to attempt to knowingly persuade, induce, entice and coerce a person under eighteen years of age to engage in sexual activity for which the defendant could be charged with a criminal offense," in violation of Title 18, United States Code, § 2422(b).

The evidence which defendant seeks to suppress includes (1) items seized during the search of his person; (2) items seized during the search of his automobile, including a cell phone; (3) statements he made subsequent to the arrest; (4) items obtained from the search of his residence and (5)information. retrieved from the search and seizure of his home computer. In support of the motion to suppress this evidence, Tykarsky argues that (1) there was no probable cause to justify an arrest; (2) his waiver of Miranda rights was not voluntary; (3) the government did not obtain his valid consent to conduct a search of his home and computer; (4) search warrants were unlawfully obtained by the government; (5) search warrants were unlawfully executed; and (6) some evidence must be excluded because it is the "fruit of a poison tree." The court now makes the following findings of fact and conclusions of law.

Tykarsky is a resident of Trenton, New Jersey. On April 22, 2003, he entered an America On-Line chatroom entitled "Iloveoldermen2," using the screen name "Toddty63." An undercover police agent who was using the screen name "HeatherJet14" was also in the same chatroom, posing as a fourteen-year old girl. Tykarsky initiated an Instant Messaging dialogue with the undercover police agent. In this initial communication, he told the undercover agent that he wanted to make love to her.

Subsequently, on various dates from April 24, 2003 to May 20, 2003, Tykarsky communicated with the agent using Instant Messaging over the Internet. In these communications, he used the screen names "toddty63" and "golpher 12345." The undercover agent used the screen name "HeatherJet14" and continually presented herself as a fourteen-year old girl. In the various Instant Messaging communications from April 24, 2003 to May 20, 2003, Tykarsky communicated, in explicit detail, the sexual acts that he hoped to perform with the undercover agent.

On May 8, 2003 and May 9, 2003, he further communicated by Instant Messaging with the undercover agent and requested that the undercover agent provide him with a picture of herself. On May 15, 2003, he communicated with the undercover agent by Instant Messaging. He said that he was "a little scared" because the undercover agent was so young. He also commented that he could get into trouble and go to jail if they were discovered. The two parties arranged to meet on May 20, 2003 at the Holiday Inn on Packer Avenue in Philadelphia. Tykarsky noted that he would wear jeans and a white shirt and drive a blue Explorer vehicle.

On or about May 19, 2003, defendant again communicated by Instant Messaging with the undercover agent. The two parties made tentative arrangements, subject to confirmation, to meet on May 21, 2003 at the Holiday Inn. Once more he stated that he would wear jeans to the rendezvous. On May 20, 2003, he communicated by Instant Messaging with the undercover agent. He again described in explicit detail the sexual acts that he planned to engage in with the undercover agent. The two parties made arrangements to meet at 9:00 a.m. on May 21, 2003.

On the morning of May 21, 2003, Tykarsky wearing a white shirt and jeans, drove his car, a blue 2002 Ford Explorer, with a New Jersey license plate, to the designated Holiday Inn on Packer Avenue in Philadelphia. He arrived at approximately 9:15 a.m., parked and locked the car, and entered the motel. Once inside, he was arrested and then searched by FBI agents.

Tykarsky was thereafter taken to the FBI office at 6th and Arch Streets in Philadelphia where he was fingerprinted and photographed. After being taken to an interview room, he was advised of his Miranda rights by the FBI agents and asked to review an "Advice of Rights" form. See Miranda v. Arizona, 384 U.S. 436 (1966). The form contains the following statements: "Before we ask you any questions, you must understand your rights"; "You have the right to remain silent"; "Anything you say can be used against you in court"; "You have the right to talk to a lawyer for advice before we ask you any questions"; "You have a right to have a lawyer with you during the questioning"; "If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish"; and "If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time." Tykarsky placed his initials next to each of these statements. He also signed his name on the same form after the words, "I have read this statement of my rights and I understand what my rights are. At this time, I am willing to answer questions without a lawyer present." Based on the evidence before us, we find that defendant's waiver of Miranda protections was knowing and voluntary.

After he signed the "Advice of Rights" form, Tykarsky also signed a form consenting to the search of his residence in Trenton, New Jersey as well as a separate form consenting to the search of his "PC Bell Desktop" computer located at this residence. The form entitled "Consent to Search Computer(s)" authorized federal agents to "take any evidence discovered during this search, together with the medium in/on which it is stored, and any associated data, hardware, software, and computer peripherals." (emphasis supplied). Again, the Government has established by a preponderance of the evidence that Tykarsky's consent to the search of his residence and to the search and seizure of his computer was knowing and voluntary.

After Tykarsky's arrest, the FBI agents transported his blue 2002 Ford Explorer to the FBI's Philadelphia garage. The FBI conducted a search of the vehicle and retrieved, among other things, a Motorola cellular telephone. Before searching Tykarsky's home and the contents of the cellular telephone, the FBI obtained a search warrant for each from a federal magistrate judge. Tykarsky argues that these search warrants were obtained, and possibly executed, in a constitutionally invalid manner.

The arrest of Todd Tykarsky was clearly based on probable cause and no arrest warrant was required. Atwater v. City of Lago Vista, 532 U.S. 318 (2001). The FBI agents had probable cause to believe that he was acting with intent to engage in illicit sexual activity with a fourteen-year old girl, in violation of 18 U.S.C. § 2423 (b) and (e). Notably, this statute does not require that the defendant be communicating with an actual minor to be found guilty. U.S. v. Root, 296 F.3d 1222 (11th Cir. 2002).

The evidence before us demonstrates that Tykarsky had engaged in sexually explicit and repeated communications with an undercover agent who was posing as a fourteen year old girl and that he traveled from New Jersey to Pennsylvania with what reasonably appeared to FBI agents to be an intent to engage in statutory rape. He had arranged a time and place to meet the undercover agent, and he arrived at the appointed rendezvous point wearing the clothing and driving the automobile he described in his Instant Messaging communications. This evidence, viewed in its totality, created sufficient probable cause for the agents to believe that Tykarsky had committed a federal offense when they arrested him. Since Tykarsky's arrest was based on probable cause, the search of his person at that time was a valid search incident to arrest. U.S. v. Robinson, 414 U.S. 218, 235 (1973).

The issue with respect to the search of Tykarsky's car and the search of the cell phone found within the car is now moot. At the suppression hearing, the government advised the court that it does not intend to introduce any evidence obtained in its search of the contents of the car or any evidence derived thereof.

Tykarsky knowingly and voluntarily waived his Miranda rights at the initiation of his interview by FBI agents on May 21, 2003. Therefore, the statements made by Tykarsky after he was advised of and waived hisMiranda rights are not in violation of the Constitution.

The search of Tykarsky's residence was constitutionally valid because he provided knowing and voluntary consent to this search. Likewise, the search and seizure of Tykarsky's home computer and the data held on it were lawful because he gave knowing and voluntary consent. It is clear that the consent granted by Tykarsky extended not only to the actual computer but also to any data contained on it.

Tykarsky's objections to the manner in which search warrants for Tykarsky's residence and computer were obtained and executed are moot. His consent provides an independent basis for upholding the search of the residence and the search and seizure of the computer.

Finally, since none of the evidence that the government plans to present in this case was obtained through unconstitutional means, no evidence shall be excluded on grounds that it is the "fruit" of an unlawful arrest or search. See Wong Sun v. United States, 371 U.S. 471, 485-86 (1963).

ORDER

AND NOW, this day of January, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that the motion of defendant Todd Tykarsky to suppress evidence obtained by the government subsequent to his arrest on May 21, 2003 is DENIED.