Tuesday, December 11, 2012

FBI job applicant fails polygraph, admits to CP possession, and asks if it would slow his application. It did.

Working for the Federal Bureau of Investigation is a dream of many Americans. The famed agency has - rather understandably - a difficult hiring process including a polygraph. I'm assuming questions concern possible crimes the job candidate has committed as well as generally making sure they are not a threat to national security.

When Dominick Pelletier appeared for a job interview with the FBI, he was escorted to the polygraph room where the types of questions were explained to him. Pelletier became nervous about the potential for questions about sex crimes as he had done research on child pornography in a different country. He was assured that the questions would only concern whether he possessed or distributed child pornography, and the test was administered.

Much to his dismay, he failed the polygraph. Explaining the situation, he said that he had seen child pornography images as part of his research. The FBI agent remained calm, and Pelletier continued to think he was in consideration for the position. FBI agents continued to ask him questions, and he admitted to possession of "child erotica" at home.

After refusing to allow FBI to accompany him to his home, Pelletier ultimately signed a consent form after being told they would just get a search warrant anyway. He remained at the office, never asked to leave or to speak with an attorney, and apparently still thought he would be considered for the job. Unfortunately for him, he didn't get the job, and more than 600 images of child pornography were found on his computer.

Pelletier was ultimately convicted of possession, and he appealed, arguing that "he was entitled to Miranda warnings and did not receive them" and that his consent to search was involuntary.

The Seventh Circuit held that Miranda rights were not necessary as Pelletier was not in custody. The lengthy time at the office, encounters with armed agents, and security measures were all a part of the job application process - and were not a result of his suspected criminal activity. "Pelletier was friendly and talkative throughout the day ... and asked at the end of the interview whether his possession of child pornography would slow his job application process."

The court also did not address the consent issue as they determined probable cause allowed for a search warrant which protects the evidence under the inevitable discovery doctrine.

As a side note, it is always a pleasure to read a Seventh Circuit opinion. Judge Kanne began the opinion:
Federal investigative agents will tell you that some cases are hard to solve. Some cases require years of effort—chasing down false leads and reigning in flighty witnesses. Others require painstaking scientific analysis, or weeks of poring over financial records for a hidden clue. And some cases are never solved at all—the right witness never comes forward, the right lead never pans out, or the right clue never turns up.
This is not one of those cases.
I'm always a little appreciative of a judge (and a clerk, of course) willing to be a little creative with their legal writing.

The case is United States v. Pelletier, No. 12-1274 (7th Cir. 2012).


  1. I've never liked rulings like this regardless of their legality. You want people to tell the truth during national security related background investigations for counterintelligence reasons and mixing counterintelligence with law enforcement undermine trust in the counterintelligence mission. It is the same reason the Posse Comitatus Act was passed, to prevent the identical undermining of faith in the military by domestic policing. The information given should always be given in temporary immunity for the context of the national security investigation (and be used to determine if it’s a valid threat to national security hence a reason to deny the applicant but then destroyed) no matter HOW EGREGIOIUS the crime. Always felt Congress should pass STRONG laws that state intelligence information, no matter HOW damning, will ever be turned over or used in law enforcement period. I also think this solves some of the privacy fears about NSA/CIA wiretapping, internet vacuuming, etc. It’s not that the general public doesn’t see a CI need for it but they rightly understand this information will be used against them by LEO contrary to public statements otherwise.

    1. The case does explain the FBI's process. They don't just spring questions on the applicant during the polygraph. They first tell them all of the subjects the polygraph will cover, let them know they can leave at any point, and then begin asking questions. Thus, the defendant here could have just left prior to the polygraph beginning once he realized the types of questions he'd be asked.

      Of course, your the importance of the issue you raise is seen with this case. Even after admitting to possession of child pornography, this defendant thought he was still in the running for the job.

  2. True but that could be because he didn't see why it would have any relevance to denying him a job / disqualify him. Now maybe he should have known better but having gone through one of these every five years since 1990 myself the impression is you are supposed to always tell the truth and that truth will ONLY be used in the context of determining your trustworthiness. Not once do they state “Answers given can and will be used to criminally prosecute you “. If investigators ran out and reported every crime reported during these interviews you would have no candidates left given the prevalence of yes answers (especially among new candidates) about historic drug use (often still well within the statute of limitations). I.e. a large number of eighteen year old candidates report “yes” to using any drug in the past “three years” yet we don’t’ round them all up and arrest them. People also acknowledge other illegal behavior such as speeding, domestic abuse, etc. The question is being asked to determine future susceptibility to blackmail (with the more egregious the crime the easier the blackmail), it’s NOT being asked to prosecute you. This guy’s main mistake it seems was believing what he was being told / the process [i.e. stupid/naïve] by the background investigators which, while grounds to deny him a job, shouldn’t be used to prosecute him. If you (a policeman) tell me it’s legal to cross the street right now and then arrest me for doing so and I’m naïve enough to believe you that naivety/entrapment (yes I know police are legally allowed to lie to you) shouldn’t hold up in court under jurisprudence regardless of the law itself. I think the fact this case involves material the investigate probably found reprehensible colors the issue.

    Once again I’m not saying the legal reasoning isn’t sound, it’s just bad law and undermining to the trustworthiness process.