AMY TOTENBERG, District Judge.
Defendant's timely objections [Doc. 37] to the Magistrate Judge's Final Report and Recommendation ("R & R") [Doc. 34] regarding Defendant's Motion to Suppress Statements are currently before the Court.
Pursuant to 28 U.S.C. § 636(b)(1), the Court reviews any portion of the R & R that is the subject of a proper objection on a de novo basis and any non-objected portion on a "clearly erroneous" standard. Defendant objected on numerous evidentiary and legal grounds to the Magistrate Judge's Report and Recommendation with respect to the motion to suppress. Accordingly, the Court has reviewed the record in this case on a de novo basis, including among other items, the audio recording of the Plaintiff's interview, photographs, and other exhibits introduced at the motion to suppress hearing before Magistrate Judge Alan Baverman, and the transcript of that hearing.
The Court has conducted a thorough, independent review of the evidence and the parties' respective arguments in connection with Defendant's Motion to Suppress. Based upon this review, the Court finds the Magistrate Judge's findings and legal analysis are thorough and in all material respects correct. The Court recognizes the psychologically intimidating impact of the arrival of a squad of ICE officers at the doorstep of Defendant's home at dawn in combination with ICE officer Westall's restraint of Defendant's hands behind his back for four to five minutes prior to the squad's clearing of the house and the agents (other than Westfall) holding their weapons in a drawn position at the doorstep. If the coercive circumstances and treatment manifested in the first five minutes of the ICE squad's execution of the search warrant had continued, the Court would be inclined to grant Defendant's motion to suppress. However, the tenor of the agents' search and control of the house substantively eased once the house had been cleared for any dangers and Defendant and his family were seated in their living room approximately ten minutes later. After the initial five minutes of contact with Agent Westfall on the doorstep, Mr. Peck was not touched again by the agents. The display of drawn guns ceased. The agents maintained control of the home premises while executing the search and conducting the Defendant's interview. However, the totality of the evidence indicates that Defendant voluntarily agreed to be interviewed and voluntarily acquiesced to the interview questioning by Officer Westfall. Westfall's interview of the Defendant, while conducted in a small bedroom and in the presence of another agent,
ALAN J. BAVERMAN, United States Magistrate Judge.
Before the Court are two pretrial motions filed by Defendant Michael Alan Peck: (1) Defendant's Motion to Suppress Statements, [Doc. 14]; and (2) Defendant's Motion For Return of Seized Property, [Doc. 16]. For the following reasons, the undersigned
On May 15, 2012, Department of Homeland Security (DHS) Special Agent David Westall was the lead case agent in a child pornography investigation of Defendant, and in connection with that investigation, Westall led the execution of a federal search warrant at Defendant's home. [Doc. 24 (hereinafter "T ____") at 9-10]. The warrant was executed at 6:15 a.m. by nine DHS agents, a GBI agent, and a uniformed City of Duluth police officer, each of whom arrived in a separate vehicle. T10, 31, 32. It was just starting to get light outside. T11. Most of the agents were wearing raid gear, such as khaki pants, t-shirts that had "ICE" written on them, and vests identifying them as law enforcement agents, and were armed, although some of the DHS personnel were analysts (and thus may not have been armed). T36.
Peck's residence was located in a cul-desac in a suburban neighborhood in Duluth, Georgia. T33, 81. Initially, the executing officers parked their vehicles up the street from Peck's home and approached the house on foot, and they only brought the vehicles closer to Defendant's home after the house was cleared. T34, 36. At that point, the flashing lights of the police vehicles were visible inside the house. T85. A police car was parked at the foot of the driveway. T91.
Westall was first in a line of agents (referred to at the hearing as a "stack") that approached the front door of the residence. T 10. DHS Special Agent Michael Ashley was directly behind Westall with a door ram. T60. The stacked agents, but not Westall, had their weapons drawn. T11, 61. Westall banged loudly on the door, announcing "Police," stating that they had a search warrant, and directing the occupants to open the door. T11, 83, 86.
Defendant answered the door. He was wearing a bathrobe (with underwear underneath) but no shoes, and it appeared he had just woken up. T43, 67, 83, 90. He
Westall explained to Peck that they were there to execute a search warrant for child pornography because an IP address led them to his house. T11, 14. He further explained that the search would take a few hours and that Westall knew who he was from a photograph. T14. Peck told Westall that his wife and children were also in the home. T15-16. Peck's request to enter the house and get his daughter, who had sprained her ankle, was refused. T89. Peck's wife, Danita — who was dressed in pajamas and a bathrobe and was coming down the stairs as her husband was taken outside — and their two children (a boy, age eleven at the time, and a girl, age fourteen at the time, T108) were located and also brought outside. T39-40, 81, 87. Ms. Peck and the children stood by her car in the driveway, with an agent about four feet away from them. T88, 89.
Westall also told Defendant that he was not required to stay at the house if he did not want to stay, nor did he have to come back into the house. T14, 43-44.
Peck elected to stay, and once the house was cleared by the entry team, DHS Special Agent Ashley escorted Defendant into the house. T16, 61. Like Defendant, Ms. Peck was directed into the house but not touched by the agents. T91. Defendant, his wife, and their two children were directed to the living room, which contained a large brown sofa, an arm chair, and a television, and they were told to be seated. T45, 91, 92; Deft. Exs. 7-9. The living room was the most comfortable room in the house for seating more than a few people. T102. The television was turned on for the children, and ari agent stood by the door leading to the backyard patio. T93. None of the Pecks asked to sit elsewhere in the home. T102. Although Ms. Peck described the agents' knocking on the door as "forceful," she also testified that the agents were "very respectful at all times." T104. Defendant was not searched or patted down. T104. Although the agents possessed "raid gear," they never used it. T104.
Approximately ten minutes after the agents arrived, while Defendant was seated
They entered Defendant's son's bedroom, which was standard-size room with a bed, dresser, and closet. T19, 50-51. The agents may have removed their raid vests by this time. T76. Westall did not go into the master bedroom because it contained computer equipment and was going to be searched. T49. Defendant sat on the bed, and Westall sat down next to him. T51, 63. Ashley came in, closed the door for privacy (but did not lock it), and stood to the left of the door. T19, 51-52, 63. The doorway was not blocked. T20, 63. The agents' weapons were holstered. T63.
Westall described Defendant as compliant and very respectful. T53, 54. Westall knew that he had been in the military for some time. T53.
At the start of the recording, Westall told Defendant that "disturbing images" were transmitted from a computer that was traced from his house to an agent's computer and that the agents were tasked with seeing whether any children at the location were abused or in danger. DVD at 00:31-56; T55.
Defendant denied searching for child pornography on his computer, instead stating that he would search for files using other sexual terms (e.g., "blow jobs"), to which Westall responded that the analyst would be able to search for the terms he used, recalling the Casey Anthony case in Florida where the forensic examiner found that she searched the Internet for "chloroform." Id. at 5:02. Westall sought Defendant's assistance in determining the search terms he used. Id. at 5:14. Defendant denied he was part of a conspiracy to use children as sex slaves. Id. at 5:25.
Westall then summarized one of the videos that came from Defendant's computer, describing the contents as depicting sex acts with and between children. Defendant responded that the video might still be on his computer, but that the girls depicted did not include his daughter. Id. at 6:58. He stated he received the video from the P2P program, but did not know anything else about the source of the video. Id. at 7:10. In response to Westall's question whether he would help in locating the source, Defendant stated he would do what he could. Id. at 7:21. He denied that anyone else in his house was looking at child pornography. Id. at 9:03. He also denied using children's ages (specifically, five, twelve, or thirteen years of age) as search terms. Id. at 10:00.
Westall then stated that they were trying to find who made these videos and that to lie to or mislead him was a felony under federal law. Id. at 10:10-28. He also told Defendant that his lack of cooperation in helping to "rescue these children" would be brought to the attention of the prosecutor, concluding, "God help you if they are American children." Id. at 10:30-11:02. Defendant then stated he would help as much as he could, acknowledging that he probably searched for videos using age terms. Id. at 11:25.
Defendant then described how the program worked, adding that most of his searches occurred late at night. Id. at 15:30. He did not know which search terms he used to download the video depicting thirteen-year-old girls that the agents then received from Defendant's computer. Id. at 16:30-17:03. He again denied that the girl on the video was his daughter. Id. at 17:40. He guessed that the video ended up on the agent's computer because the P2P program was running. Id. at 18:10. He claimed to have deleted what he thought was child pornography when it appeared on his computer, but there might be some child pornography on his computer because he had not gone through all of the downloaded files. Id. at 20:10, 21:50. Although Defendant denied
Westall said that there were at least two videos the agents downloaded and at least 86 more videos that the agents did not download that came from his computer and that contained child pornography. Id. at 24:50. He further stated that the discovery of videos depicting children who were unknown to the agents was what motivated the search warrant at the residence. Id. at 26:12. Defendant again denied involving his children in videos or touching his children in an inappropriate way, id. at 26:26, and he also denied having contact with any children in an inappropriate manner. Id. at 26:36.
Westall then told Defendant that he thought his answers about his own children and contact with other children were definite and thus appeared truthful to him, but that some of his other answers about how child pornography got onto his computer were less than forthright. Id. at 27:25.
Defendant then acknowledged he was only person in the household who had downloaded pornography. Id. at 27:41. In response to further questioning, id. at 28:30, he stated he used search terms "young," "16," and "17." Id. at 29:05-12. He admitted being addicted to pornography. Id. at 29:33. He also stated that the use of the search term "PTHC" returned results containing young nudes (meaning ages sixteen-to-seventeen) and "some sex." Id. at 31:40.
Defendant stated that he was familiar with computers since he worked as a computer programmer. Id. at 31:50. He recognized that most of the videos on the P2P program were not labeled properly. Id. at 32:30. He grudgingly conceded that his search for sixteen-to-seventeen-year-olds amounted to a search for child pornography. Id. at 32:50-33:00.
Peck again denied having sex with his fourteen-year-old daughter. Id. at 33:43. He had discussions with the agents about his relationship with his wife, id. at 35:00, what he did while watching pornography, id. at 36:40, and the password for and who has access to his computer. Id. at 37:30.
In response to being asked whether he had any questions for the agents, id. at 38:22, Defendant asked whether there was anything he could do to try to help them, id. at 38:33.
Defendant asked the agents whether they were seizing his computer and asked them to be careful with it because it had home movies and such on it. T23; DVD at 41:40-42:00. He also gave the agents search terms to more easily locate specific child pornography on the computer. T24; DVD at 41:15.
Toward the conclusion of the interview, Westall asked Defendant his opinion of the agents' job that day, and Defendant responded, "Well, if you're going for shock and awe this morning, you did a good job," adding, "I think you've done just fine." T24; DVD at 42:08. Although Defendant stated that he felt "very intimidated" initially when the agents came to the door and again in being brought into the bedroom, he stated that he did not feel intimidated at the end of the interview, nor did he feel threatened. T25, 41; DVD at 42:38-42:42. Defendant stated that he did not feel threatened to give any statements and that he gave those statements freely and voluntarily. T26; DVD at 42:50-54.
After turning off the recording device, Westall asked Defendant if he would write a statement. T27. Defendant agreed to
Westall described, and the audio confirms, that the tone of the conversation was conversational and Defendant's demeanor was calm. T21; see also T64. The agents did not raise their voices during the interview. T21, 64. Defendant was not advised of his Miranda warnings because the Westall did not believe he was in custody. T21. Peck did not ask to terminate the interview, to have a lawyer present, or to consult with anyone. T21, 64. Although there were no discussions about criminal charges, as noted, during the interview, Defendant made incriminating admissions about child pornography. T24, 66.
Once they went back downstairs, Westall advised Defendant that he was free to leave and did not have to stay, but Defendant stayed and watched TV with his wife. T29.
At issue in this case is whether Defendant was in custody such that the agents' failure to advise him of his Miranda rights renders his statements inadmissible. Initially, Defendant argues that the Court was wrong in assigning him the burden of proving that he was in custody for purposes of Miranda. He argues that the case that placed that burden of proof upon the defendant, United States v. de la Fuente, 548 F.2d 528 (5th Cir.1977), (1) has "not aged well," since it has not been cited by the Eleventh Circuit for that principle, (2) should not be the law of this Circuit, and (3) was wrongly decided because it requires a defendant to prove the merits of a Miranda claim in order to raise it. [Doc. 28 at 12-14]. Despite these arguments, Defendant did not cite to contrary Eleventh Circuit opinions, nor did he cite to any case law in support of his argument. Although the government recognized that Defendant had the burden, at the evidentiary hearing, it volunteered to put up evidence first. T8.
The former Fifth Circuit held in de la Fuente that the defendant bears the burden of establishing that he was in custody and that his statements were made in response to government questioning. See
In any event, other courts have followed de la Fuente, its progeny, or similar reasoning and have assigned the burden of proof to the defendant seeking to challenge the admissibility of statements in the absence of a formal arrest. See United States v. Charles, 738 F.2d 686, 692 (5th Cir.1984) (citing de la Fuente, 548 F.2d at 533, for the proposition that generally both the burden of production and the burden of persuasion rest upon the party seeking suppression), overruled on other grounds, United States v. Bengivenga, 845 F.2d 593 (5th Cir.1988); United States v. Davis, 792 F.2d 1299, 1309 (5th Cir.1986) (holding defendant "had the burden of proving that he was under arrest or in custody" when seeking suppression of statements); United States v. Jorgensen, 871 F.2d 725, 729 (8th Cir.1989) (affirming district court's dismissal of defendant's Miranda claim because defendant "failed to demonstrate that he was subjected to custodial interrogation"); United States v. Lawrence, 892 F.2d 80, 1989 WL 153161 at *5 (6th Cir. 1989) (unpublished Table decision) (quoting Charles, 738 F.2d at 692); see also United States v. Shteyman, No. 10 CR 347(SJ), 2011 WL 2006291, at *14 (E.D.N.Y. May 23, 2011) ("The Court notes that on a motion to suppress statements, it is the defendant who bears the burden of demonstrating that he was subject to custodial interrogation."); United States v. Artis, No. 5:10-cr-15-01, 2010 WL 3767723, at *4 (D.Vt. Sept. 16, 2010) ("The weight of authority appears to hold that a defendant bears the burden of establishing that he or she was subjected to custodial interrogation in order to establish a constitutional violation as the basis for suppression of evidence."); United States v. Sciolino, No. 2:09-CR-0070 FCD, 2009 WL 2914570, at *3 (E.D.Cal. Sept. 9, 2009) ("The Fifth Circuit, Eighth Circuit, and numerous district courts have also explicitly held that a defendant bears the burden of proving he was in custody at the time incriminating statements were made." (collecting cases)).
Defendant additionally argues that the de la Fuente holding was not based on any reasoning. That is incorrect, however. In fact, the de la Fuente Court noted "that the burdens of production and persuasion generally rest upon the movant in a suppression hearing," notwithstanding that in
Also, the Court rejects Defendant's argument that by assigning him the burden to demonstrate that he was in custody, it has required him to prove the merits of the underlying Miranda claim. The protections of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), apply only in the context of a custodial interrogation. Montejo v. Louisiana, 556 U.S. 778, 795, 129 S.Ct. 2079, 173 L.Ed.2d 955 (2009); see also United States v. Parr, 716 F.2d 796, 817 (11th Cir.1983) (holding that under Miranda, "evidence obtained as a result of a custodial interrogation is inadmissible unless the defendant had first been warned of his rights and knowingly waived those rights"). Before admitting a custodial interrogation, inter alia, the government must prove by a preponderance of the evidence that the defendant waived his rights knowingly and voluntarily. United States v. Glover, 431 F.3d 744, 748 (11th Cir.2005). Thus, the elements of a Miranda claim are the recitation of the Miranda warnings, United States v. Street, 472 F.3d 1298, 1311 (11th Cir.2006), and that the defendant waived his rights "voluntarily, knowingly, and intelligently." Colorado v. Spring, 479 U.S. 564, 572-73, 107 S.Ct. 851, 93 L.Ed.2d 954 (1987); Hart v. Attorney General, 323 F.3d 884, 892-93 (11th Cir.2003); United States v. Farris, 77 F.3d 391, 396 (11th Cir.1996). Miranda's protections do not come into play until a suspect is in custody. United States v. Carson, 520 Fed.Appx. 874, 886 (11th Cir. May 31, 2013) ("[T]he trigger for Miranda protections is custody."). Requiring the defendant to establish the entitlement to Miranda's protections does not require the defendant to prove the underlying Miranda violation, but only to demonstrate that he is entitled to Miranda's protections in the first place.
As a result, the Court rejects Defendant's challenge to the assignment of burdens in this case. Defendant carries the burden of first showing that he was in custody and that Miranda warnings were therefore necessary. However, the Court's recommendation would be the same if the government shouldered the burden of demonstrating that Defendant was not in custody and Miranda warnings were not necessary.
Defendant argues that the totality of the circumstances compels the conclusion that he was in custody and entitled to Miranda advice before questioning because, although the questioning occurred at his home, "the home was overrun with agents who thoroughly dominated him and his family." [Doc. 28 at 15-16 (citing, inter alia, United States v. Craighead, 539 F.3d 1073, 1083 (9th Cir.2008))].
In support, he points to the following facts. First, while recognizing case law disfavoring a finding of custody when the interrogation occurs in the suspect's own home, he argues that in his case, the home interview was rendered custodial because he was subjected to a police-dominated environment where he was cut off from his family and the outside world. [Id. at 17-18]. He argues that because his home was invaded by a dozen law enforcement officers, he had no place else to go, and his
Second, he argues that Westall's advice that he was free to leave was meaningless lip service, since at the time, his home was flooded with law enforcement officers there to search his house. [Id. at 21]. He also submits that the large number of police officers in his home (who initially brandished their weapons) left him no realistic place to which he might retreat in the event that he wished to terminate the interview. [Id. at 22].
Third, Defendant argues that the officers had physical control or restraint over him the entire time because (1) he was physically restrained at the beginning of the encounter, [id. at 23]; (2) the officers used non-physical intimidation to induce him to participate in the interrogation, including directing him to sit on the couch and prohibiting free movement within his home; (3) the officers directed him where to go to be questioned; (4) there were sentries posted at the doors, and a police vehicle blocked the driveway; (5) the tone and nature of the questioning amounted to "thinly-veiled threats of the most horrible varieties of criminal behavior," [id. at 23-24]; (6) the interrogation occurred in a closed room where he was isolated from his family, with an agent standing next to the door, [id. at 25-27]; and (7) Westall's accusatory questioning, particularly as to whether Defendant's own daughter was depicted in the video images, combined with Defendant's obedient nature developed by years in the military, made it more likely that he would endure the inquisition than terminate the interview and leave. [Id. at 29].
Finally, Defendant attempts to distinguish his case from the undersigned's recommendation in United States v. Asher, No. 1:09-cr-414-JOF-AJB, 2010 WL 4192883 (N.D.Ga. Feb. 25, 2010) (R & R), adopted 2010 WL 4237579 (N.D.Ga. Oct. 21, 2010) (Duffey, J.), where the undersigned found that the defendant was not in custody for purposes of Miranda under circumstances Peck describes as much less coercive than present here. Among other differences between Asher and the case at hand, Defendant points out that Asher was not physically held prior to questioning, he was told he was not under arrest, no weapons were drawn, Asher and his wife were not restricted to a certain room of the house, the questioning did not begin accusingly, and the questioning occurred at the dining room table. [Id. at 30-31 (citing Doc. 33 in No. 1:09-cr-414-WSD)].
In response, the government argues that Defendant was not in custody and thus was not entitled to Miranda warnings. It argues that the questioning took place at Defendant's home, where courts are less likely to find custody, and that Westall told him at the outset of the search warrant execution that he was free to leave (a fact that Defendant concedes in his brief). [Doc. 30 at 9-10 & n. 6 (citing Doc. 28 at 21)]. It also points out that Defendant never asked to leave. [Id. at 11]. The government further contends that Defendant was with his family in the living room until Westall asked him if the agents could question him, to which he responded affirmatively and voluntarily accompanied the agents upstairs. [Id.]. It also contends that at the beginning the interview, Westall told Defendant that he was free to leave, the agents did not prohibit anyone from coming or going during the interview, Defendant was not handcuffed nor restrained in any way, no weapons were brandished during the interview, and there was no mention of arrest, custody, or likely criminal charges. [Id.]. It also points out that while the bedroom door was closed, it was not locked, nor was it blocked. [Id.]. The government further submits that the
The government also contends that the Court should not rely on Craighead, since it is not binding authority in this Circuit and, in any event, it is substantially distinguishable from this case. [Id. at 12-13]. It differentiates Craighead by pointing out that the defendant there was an Air Force employee whose residence was on an Air Force base, and the law enforcement agents brought the defendant's supervisor to the search warrant execution. The defendant there was directed to and interviewed in an unfinished storage room in his home, where he sat on a box while the agent squatted, and another agent stood with his back to the closed door. Craighead, 539 F.3d at 1077-78, 1086, 1089. The government also points out that the Craighead court was concerned about the interview location, noting that it occurred in the storage room instead of "`a suspect's kitchen, living room, or bedroom [which] might allow the suspect to take comfort in the familiar surroundings of the home and decrease the sensation of being isolated in a police-dominated atmosphere.'" [Doc. 30 at 13 (quoting Craighead, 539 F.3d at 1088)]. It also points to the Craighead court being troubled by Craighead's supervisor not being allowed in the storage room, which to the court made it appear unlikely that the defendant was free to leave since he could not invite others into the storage room. [Id. (quoting Craighead, 539 F.3d at 1087)].
The government then contends that unlike Craighead, the interview in this case was recorded, and the recording demonstrates that although Defendant stated he was initially intimidated, he was not threatened to make a statement, and his statement was freely and voluntarily given. [Id. at 15]. It also submits that Ms. Peck's testimony supports the proposition that Defendant was not in custody. [Id.].
Finally, the government argues that while Peck relied on Craighead, he ignored the Eleventh Circuit's most recent (although unpublished) decision on the incustody issue, United States v. Matcovich, 522 Fed.Appx. 850 (11th Cir.2013), where the court found that the defendant was not in custody based on facts strikingly similar to those in the instant case. [Doc. 30 at 16-17].
In reply, Defendant argues that Westall's belief (as well as Ms. Peck's) as to Defendant's custodial status is irrelevant because the test is based on objective considerations, and in any event, Westall never communicated his intentions to Defendant. [Doc. 32 at 1-2 & n. 1]. Defendant next argues that his offer of assistance to the agents is not proof of his belief that he was not in custody, since that offer of assistance demonstrates a truism that an incarcerated subject is more likely to cooperate. [Id. at 2-3].
He also contends that since Ms. Peck and the Peck children were required to sit in the living room, contrary to the government's argument, there is evidence that others were prevented from joining Defendant in the bedroom during the interview. [Id. at 3]. He also argues that the fact that he was not physically restrained in the bedroom ignores the obvious fact that there was no need to restrain him because he already had submitted to the police authority. [Id.]. He also faults the government's
The right to Miranda warnings attaches when custodial interrogation begins. United States v. Acosta, 363 F.3d 1141, 1148 (11th Cir.2004). Miranda itself held that pre-interrogation warnings are required in the context of custodial interrogations given "the compulsion inherent in custodial surroundings." Miranda, 384 U.S. at 458, 86 S.Ct. 1602. The Court explained that "custodial interrogation" meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 444, 86 S.Ct. 1602. However, as the Court noted in Yarborough v. Alvarado, 541 U.S. 652, 661, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004), the Miranda decision did not provide the Court with an opportunity to apply that test to a set of facts. As those opportunities arose, the Court defined custody for the purposes of Miranda as a "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (quotation marks omitted); see also Stansbury v. California, 511 U.S. 318, 322, 114 S.Ct. 1526, 128 L.Ed.2d 293 (1994) (per curiam); New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984); United States v. McDowell, 250 F.3d 1354, 1362 (11th Cir.2001).
"[W]hether a suspect is `in custody' is an objective inquiry." J.D.B. v. North Carolina, ___ U.S. ___, 131 S.Ct. 2394, 2402, 180 L.Ed.2d 310 (2011); see also Yarborough, 541 U.S. at 663, 124 S.Ct. 2140 (same). Thus, the actual, subjective beliefs of the defendant and the interviewing officer on whether the defendant was free to leave are irrelevant, and the reasonable person from whose perspective "custody" is defined is a reasonable innocent person. United States v. Brown, 441 F.3d 1330, 1347 (11th Cir.2006) (quotations, citations, alteration, and emphasis omitted). Therefore, "[a] policeman's unarticulated plan has no bearing on the question whether a suspect was `in custody' at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation." Berkemer, 468 U.S. at 442, 104 S.Ct. 3138.
The Supreme Court has recently addressed the issue of custody for purposes of requiring the Miranda warnings and provided a non-exhaustive list of factors courts should consider:
Howes v. Fields, ___ U.S. ___, 132 S.Ct. 1181, 1189-90, 182 L.Ed.2d 17 (2012); see also United States v. Luna-Encinas, 603 F.3d 876, 881 (11th Cir.2010) (explaining that "although a reasonable person in the defendant's position may feel constrained not to leave the scene of a police encounter at a particular moment — and thus may be deemed to have been `seized' by law enforcement — he will not necessarily be considered in `custody' for Fifth Amendment purposes.... Rather, `a free-to-leave inquiry reveals only whether the person questioned was seized.' ... While `seizure is a necessary prerequisite to Miranda,... a court must [also] ask whether ... a reasonable person would have understood his freedom of action to have been curtailed to a degree associated with formal arrest.'") (citations omitted).
In Howes, the Court rejected the Sixth Circuit's categorical rule that questioning an incarcerated prisoner in private outside the presence of his fellow inmates created a custodial interrogation necessitating Miranda warnings, but in so doing, it indicated that in some circumstances, isolating a non-prisoner subjected to police questioning is a factor to consider in determining whether the person is in custody for Miranda purposes:
Howes, 132 S.Ct. at 1191.
In addition to the factors set forth in Howes, the Eleventh Circuit directs courts
A weighing of the totality of the circumstances leads to a conclusion that Defendant was not in custody for Miranda purposes. Initially, since the Court considers only objective facts in determining whether Defendant was in custody, it does not consider the agents' testimony that they did not believe that Defendant was in custody, Defendant's military background and subjective feelings of intimidation ("shock and awe"), or Ms. Peck's conclusions that no one in the house was in custody.
As for the objective factors, first, Defendant was questioned in his home. As the Eleventh Circuit has noted, although questioning in one's home is not dispositive, Brown, 441 F.3d at 1348, "`courts are much less likely to find the circumstances custodial when the interrogation occurs in familiar or at least neutral surroundings, such as the suspect's home." United States v. Gomes, 279 Fed.Appx. 861, 868 (11th Cir.2008) (quoting Brown, 441 F.3d at 1348) (quotation and alteration omitted); see also United States v. Newton, 369 F.3d 659, 675 (2d Cir.2004) (noting that "absent an arrest, interrogation in the familiar surroundings of one's own home is generally not deemed custodial").
Moreover, the Court concludes that interviewing Defendant in his son's bedroom with the door closed does not weigh in favor of custody. The record is not completely clear as to how that room was chosen as the interview room, but this environment is clearly distinguishable from the unfinished storage room in Craighead and the unfinished basement storage area in United States v. Hashime, 734 F.3d 278, 281-83 (4th Cir.2013). Unlike in Craighead, the bedroom door in this case was not blocked by an agent, and the sound of other agents walking outside the room, and to a lesser extent, their voices, could be heard, T76-77, so that Defendant was not in total isolation. The evidence shows that Defendant chose to sit on the bed, as opposed to being directed to sit there. While it is true that the environment
The Court recognizes the Supreme Court's suggestion that isolation from one's family may contribute to a coercive atmosphere by preventing family members, friends, and others who may be sympathetic from providing either advice or emotional support, and without any such assistance, the person who is questioned may feel overwhelming pressure to speak and to refrain from asking that the interview be terminated. Howes, 132 S.Ct. at 1191. Other courts have held that separation from one's family is a factor in favor of finding custody. Hashime, 734 F.3d at 284-86 (child pornography investigation); United States v. Cavazos, 668 F.3d 190, 194 (5th Cir.2012) (same); United States v. Griffin, 7 F.3d 1512, 1519 (10th Cir.1993) (drug investigation). However, Defendant did not establish that his going upstairs was coerced, nor do the objective facts demonstrate that it was: given the subject matter of the anticipated questioning, of which Defendant was aware since he was told the search warrant was issued for child pornography coming from an IP address associated with him, T14, a reasonable innocent person would not conclude that being questioned behind closed doors when there were children in the house was tantamount to being arrested. See Berkemer, 468 U.S. at 441, 104 S.Ct. 3138 (describing the in-custody test as whether a reasonable person in the defendant's position would have understood himself to be "subjected to restraints comparable to those associated with a formal arrest").
Second, the duration of Peck's detention prior to and during the questioning was approximately one hour. The Eleventh Circuit has found even longer periods of questioning to not constitute custody for Miranda purposes. McDowell, 250 F.3d at 1362 (four hours); Muegge, 225 F.3d at 1269-71 (defendant interviewed for about two and a half hours); Tukes v. Dugger, 911 F.2d 508, 515-16 (11th Cir.1990) (one hour); Bank of America v. United States, 230 Ct.Cl. 679, 680 F.2d 142, 143 (1982) (same); see also Yarborough, 541 U.S. at 655-58, 124 S.Ct. 2140 (suspect not in custody when his parents brought him to station at detective's request, he was interviewed in small room for two hours by one detective, interview was recorded, and detective pressed suspect to reveal details of crime by appealing to his "sense of honesty"); United States v. Bassignani, 575 F.3d 879, 884 (9th Cir.2009) (interview of two-and-a-half hours was not custodial); United States v. Manta-Carillo, Criminal No. 11-00103-CB, 2011 WL 3235757, at *2, *4 (S.D.Ala. July 28, 2011) (finding no custody where, among other things, the interview lasted about an hour and a half); Trantham v. Province, No. CIV 07-156-JHPKEW,
Third, there are no statements to Defendant which communicated that he was not free to leave or terminate the interview. Defendant does not dispute that after Westall initially grabbed him and took him outside, he was advised that he was free to leave and that he did not have to stay. [See Doc. 28 at 5]. "Unambiguously advising a defendant that he is free to leave and is not in custody is a powerful factor in the mix, and generally will lead to the conclusion that the defendant is not in custody absent a finding of restraints that are `so extensive that telling the suspect he was free to leave could not cure the custodial aspect of the interview.'" Brown, 441 F.3d at 1347 (quoting United States v. Muegge, 225 F.3d 1267, 1271 (11th Cir. 2000)); but see United States v. Colonna, 511 F.3d 431, 436 (4th Cir.2007) (reasoning that advice to defendant that he is not under arrest is only a factor to consider in order that police not be afforded a "complete `end run'" around Miranda). Although Defendant argues that Westall's statement was an illusory option given that Defendant was wearing only underwear and a bathrobe and did not have shoes on or have his keys or wallet, he never asked to either get dressed or leave, and in fact, agreed to reenter the house within a short period of time of being so advised. Cf. Brown, 441 F.3d at 1349 ("While Brown was not free to wear his sneakers, he did have other options (albeit imperfect ones) for leaving the house. He could have gone outside barefoot, he could have worn the other pair of sneakers that belonged to someone else, he could have walked the short distance to [his girlfriend's] car, or he could have called a friend for a ride. Although he was plainly and repeatedly told he was free to go, he never tried any of those options; indeed, he never even told anyone he wanted to leave.").
Fourth, Defendant was not handcuffed, searched, or patted down, nor was he required to get on the ground. It is true that when the agents first encountered him, Defendant was grabbed and taken outside and his hands were held behind him for approximately five minutes while the house was being secured. However, there is no evidence that these actions
As for other restrictions, the Court recognizes that Defendant was told by Westall that if he chose to re-enter the house, he would not have free run of it (during the search, which would last a number of hours), and he was directed to be seated in the living room. T14, 45, 92. These limitations make the issue much closer, but the limitations on Defendant's freedom of movement were tempered by the fact that they would only last for the time it took to search the residence and thus had an expected endpoint, unlike the more openended prospect of a formal arrest, which is followed by book-in at a jail and presentment to a judge for the (potential) setting of a bond. Moreover, the Eleventh Circuit has found that the requirement that a subject sit while the house was being searched does not amount to custody. See Luna-Encinas, 603 F.3d at 881-82 (no custody where defendant told to sit down outside while house was secured and later was taken to front of house and told to sit and not speak). While the search in Luna-Encinas (for drugs and weapons) likely was less time-consuming than a search of computers for child pornography, and thus a defendant detained for a computer/child pornography search might have an expectation that his detention might be lengthy, the actual time prior to questioning that Defendant was required to sit in the living room with his family was about ten minutes. Being required to sit with family members in the living room of one's home for ten minutes does not amount to the type of coercion associated with a formal arrest.
In addition, the restrictions placed upon Defendant and his family members were less than those found to amount to custody in other cases. See Hashime, 734 F.3d at 280-81 (defendant and family kept in living room during sweep and not allowed to go to bathroom; defendant given his clothes but not shoes or socks; defendant's mother who was recovering from brain surgery was not allowed to go and lie down; and his family was not allowed to see defendant during the three-hour interrogation); Colonna, 511 F.3d at 436 (agent instructed defendant's mother in defendant's presence that she could not smoke in her own house and if she chose to go outside to smoke, she could not reenter the home); United States v. Mittel-Carey, 493 F.3d 36, 38 (1st Cir.2007) (defendant ordered to get dressed, go downstairs, and told where to sit; he was physically separated from his girlfriend and not allowed to speak with her alone; and he was escorted by agents when he moved, including going to the bathroom). Although Ms. Peck was at some point advised to stop straightening papers (which, to a reasonable officer, could interfere with the search being conducted) and to sit down, that direction came after Defendant was upstairs being questioned. T113. In addition, the children evidently were allowed to get dressed for school, T76, albeit without Ms. Peck's assistance and under agent supervision,
Fifth, although most of the law enforcement officers had their firearms out when entering and clearing the house, there is no evidence that any firearms were unholstered after the first few minutes of their entry. Similarly, while Ashley came prepared to use a battering ram, it was not deployed, nor was there any evidence that it was observed by Defendant. Westall, who was the sole questioner according to the recording, did not brandish his firearm at any time during the entry, search, or questioning. Also, although the police were equipped with "raid gear," none of it was used. No firearms were brandished while Defendant was questioned. T27, 63.
Sixth, as to the questioning itself, the record reflects that Westall advised Defendant that he would like to speak with him and asked him if he would speak with them, as opposed to demanding that Defendant speak with them. T16-17, 62; see also T106 (Ms. Peck testifying, "They asked to ask some questions. They asked me the same thing.").
While Westall did accuse Defendant of downloading and distributing child pornography and questioned whether Defendant had sex with his fourteen-year-old daughter, these accusations were not, in either language or tone employed, made in a coercive or heavy-handed manner such that they indicated that Defendant's cooperation with the agents was compelled. Westall's comments that "God help" Defendant if the children in the downloaded videos were Americans, and his admonition that a false statement to a federal law enforcement officer is a crime, certainly were accusatory, but accusatory questioning alone has been held to be insufficient to render the interrogation custodial. Stansbury, 511 U.S. at 325, 114 S.Ct. 1526 ("Even a clear statement from an officer that the person under interrogation is a prime suspect is not, in itself, dispositive of the custody issue, for some suspects are free to come and go until the police decide to make an arrest."); Mathiason, 429 U.S. at 495, 97 S.Ct. 711 ("Nor is the requirement of warnings to be imposed simply because ... the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him `in custody.'"); Beckwith v. United States, 425 U.S. 341, 346-47, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976) (noting that it "was the compulsive aspect of custodial interrogation, and not the strength or content of the government's suspicions at the time the questioning was conducted, which led the Court to impose the Miranda requirements with regard to custodial questioning"); United States v. Jayyousi, 657 F.3d 1085, 1111-12 (11th Cir.2011) (holding that accusing suspect of lying did not make interview custodial); United States v. Manor, 936 F.2d 1238, 1241 (11th Cir.1991) ("Miranda is not implicated simply because an individual is the subject or target of an investigation.") (citing Minnesota v. Murphy, 465 U.S. 420, 431, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984)). Pointed questioning, however, does not necessarily convert a non-custodial interview into a custodial interrogation, as the Supreme Court held in Mathiason,
Mathiason, 429 U.S. at 495, 97 S.Ct. 711; see also Muegge, 225 F.3d at 1270 (stating that "the `coercive environment' that exists in virtually every interview by a police officer of a crime suspect" does not automatically create a custodial situation).
Seventh, the Court notes that at the conclusion of the interview, Defendant was not formally arrested, and he was not charged with a crime until nearly a year later. As a result, the Court concludes that the totality of the circumstances demonstrates that Defendant was not in custody during the interview and therefore was not entitled to Miranda warnings while questioned.
The Court recognizes that Peck's case is factually distinguishable from Asher in a number of respects, such as no weapons were drawn, the defendant was allowed to change into clothes from his pajamas (because he asked), and the interview was conducted in his dining room while his wife remained in the adjoining living room. Asher, 2010 WL 4192883, at *1. However, while Asher might be an "easier" case, the facts of the present case as outlined above to not compel a different result.
Nor does Craighead. Of course, case law from other circuits are not binding on this Court. McGinley v. Houston, 361 F.3d 1328, 1331 (11th Cir.2004); Generali v. D'Amico, 766 F.2d 485, 489 (11th Cir. 1985). In any event, as noted above, in Craighead, among other reasons, the court found the defendant was in custody when
Accordingly, for all the above reasons, the undersigned concludes that Defendant was not in custody for purposes of Miranda and that as a result, his motion to suppress statements, [Doc. 14], should be
At the evidentiary hearing, the parties announced that they were reaching an accommodation
For all the above and foregoing reasons, the undersigned
The Court now has ruled on all pretrial matters referred to it and has not been advised of any impediments to the scheduling of a trial. Accordingly, the case is
Gov't Ex. 3; T29.
The Fourth Circuit considers (1) the time, place, and purpose of the encounter, (2) the words used by the officer, (3) the officer's tone of voice and general demeanor, (4) the presence of multiple officers, (5) the potential display of a weapon by an officer, (6) whether there was any physical contact between the officer and the defendant, (7) the suspect's isolation and separation from family, and (8) physical restrictions. United States v. Hashime, 734 F.3d 278, 281-84 (4th Cir.2013).
At the same time, the Court does not find that Westall advised Defendant at the beginning of the questioning that he was free to leave and his questioning was voluntary, since the recording discloses no such advice and Westall took back his initial testimony that Defendant was so warned. T20.
The focus of the voluntariness inquiry is on whether the defendant was coerced by the government into making the statement: "The relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion or deception." Colorado v. Connelly, 479 U.S. 157, 170, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (citation omitted). The Court must consider the totality of the circumstances in assessing whether police conduct was "causally related" to the confession. Miller v. Dugger, 838 F.2d 1530, 1536 (11th Cir.1988). This totality-of-the-circumstances test directs the Court ultimately to determine whether a defendant's statement was the product of "an essentially free and unconstrained choice." United States v. Garcia, 890 F.2d 355, 360 (11th Cir.1989). Among the factors the Court must consider are the defendant's intelligence, the length of his detention, the nature of the interrogation, the use of any physical force against him, or the use of any promises or inducements by police. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); United States v. Gonzalez, 71 F.3d 819, 828 (11th Cir.1996). However, while the Eleventh Circuit has "enumerated a number of (non-exclusive) factors that may bear on the issue of voluntariness, the absence of official coercion is a sine qua non of effective consent ...." Gonzalez, 71 F.3d at 828 (citations omitted). Sufficiently coercive conduct normally involves subjecting the accused to an exhaustingly long interrogation, the application of physical force or the threat to do so, or the making of a promise that induces a confession. See Connelly, 479 U.S. at 163 n. 1, 107 S.Ct. 515; Miller, 838 F.2d at 1536; United States v. Castaneda-Castaneda, 729 F.2d 1360, 1362-63 (11th Cir.1984). Isolated incidents of police deception, id.; Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969); and discussions of realistic penalties for cooperative and non-cooperative defendants, see United States v. Mendoza-Cecelia, 963 F.2d 1467, 1475 (11th Cir.1992); United States v. Nash, 910 F.2d 749, 753 (11th Cir.1990), are normally insufficient to preclude free choice.
The Court concludes Defendant's statements were voluntary. Although Defendant's educational level is not disclosed, his employment in computers for a large domestic company demonstrates his intelligence for voluntariness purposes. Next, the total length of his detention was under one hour, which does not qualify as an exceedingly long interrogation. While the subject matter of the interrogation was exceptionally serious since Defendant was being questioned about having sex with his daughter, and on at least one occasion, Westall criticized Defendant's answers as not appearing to be truthful, the nature and tone of the interrogation did not arise to the level where the Court can conclude that Defendant had no choice in answering Westall's questions. Further, as noted in the text, the physical force against Defendant was limited to grabbing him outside and holding his hands behind him while the house was secured, and no physical touching of Defendant occurred during the questioning. Finally, the record is silent as to any promises or inducements by the agents to get Defendant to talk and answer questions.
