KELLY K.E. MAHONEY, Chief Magistrate Judge.
Defendant Diego Felipe Juan moves to suppress statements he made during the execution of a search warrant for his residence and while being transported from state custody to his initial appearance in federal court, arguing that he was subject to custodial interrogation without being read his Miranda rights. Doc. 19. He also argues that the search warrant for his residence was not supported by probable cause and that the two-day delay in executing the search warrant requires suppression of the evidence seized under the warrant. Id.
I held an evidentiary hearing on the motion to suppress on August 14, 2019, at which the following witnesses testified:
Doc. 28. I also admitted the following exhibits into evidence:
I recommend
Law enforcement received information from the National Center for Missing and Exploited Children (NCMEC) that Facebook user Diego Juan had uploaded a child pornography video and sent it via private message to another user on November 1, 2018 (NCMEC had received this information through a tip from Facebook). Doc. 27-1 at 10. Facebook identified the internet protocol (IP) address used to upload the file and access the Diego Juan account, which belonged to Premier Communications and was used in the Doon, Iowa, area. Id. Through a subpoena to Premier Communications, law enforcement learned that the IP address was issued to Catarina Pablo at a particular residential address in Doon, Iowa, and that Diego Juan was listed as an "authorized user" of the IP address. Id. The Doon residential address associated with Pablo's Premier Communications account matched the address listed in a public-records search of the name Diego Felipe Juan. Id. Law enforcement conducted surveillance at this address and observed several cars registered to Pablo. Agent Burger also viewed the video flagged by Facebook and confirmed it constituted child pornography.
A state magistrate judge signed a search warrant for the address on January 16, 2019, which stated that law enforcement "[we]re hereby commanded to make immediate search of the described place." Doc. 27-1 at 20. The residence was not searched until two days later. Agent Burger testified that agents needed multiple days to plan execution of the search warrant for logistical planning, operational planning, officer safety, and ensuring that the right resources were available on the scene at the time of the execution, especially given that DCI's agents are spread out across the state, and DCI is not a centrally located agency like a local police department. Agent Burger also testified that during the planning period, he instructed the agents participating in execution of the search warrant not to park their vehicles in a manner blocking in cars at the residence, because he wanted the cars parked at the residence to be able to leave.
Agent Burger testified that because Juan's Facebook posts were in Spanish, Agent Burger contacted Homeland Security Investigations (HSI) (part of the Department of Homeland Security), and two HSI special agents participated in the execution of the search warrant. All in all, eight law enforcement officers were on the scene during the execution of the search warrant—five DCI agents (including Agent Burger); two HSI agents; and a local sheriff's deputy, who arrived sometime during the search (but was not there to begin with). All the law enforcement officers were visibly armed.
Law enforcement arrived at the residence on January 18 sometime before 8:00 a.m. Agents surrounded both the front and back doors to the house and knocked and announced their presence loudly, in English and in Spanish, and the agents at the front door used a battering ram to breach the door. No testimony established how long the officers waited after announcing their presence before resorting to force. When agents entered the house with their weapons drawn, Juan was present, as well as many other family members (adults and children). Agent Burger testified that he encountered Juan near the back door to the house and explained that he was not under arrest and that they were executing a search warrant. Agent Burger testified that HSI Special Agent Ricardo Rocha, who spoke Spanish, translated what Agent Burger had said to Juan. Agent Burger told Juan that he could explain why they were executing a search warrant and answer any questions Juan had in a more private setting, suggesting they go to his car to talk if Juan preferred (most of Juan's family was in the living room at the front of the house). Juan nodded in agreement and asked if he could change clothes first. Juan went into his bedroom, changed, grabbed his coat, and then Juan, Agent Burger, and Agent Rocha went out the back door to Agent Burger's unmarked squad car parked in the alley behind the house. Agent Burger testified that he did not remember whether Juan asked to take his cell phone but that he would not have allowed him to take the phone under standard procedure as it was evidence to be seized under the search warrant.
The interview started around 7:50 a.m. Agent Burger sat in the driver's seat; Juan sat in the front passenger's seat; and Agent Rocha sat in the back middle seat to translate if needed. The doors were unlocked.
Before Agent Burger asked any questions, Juan started talking about a prior encounter with immigration officials in 2013. Agent Burger interrupted, saying "before we get into that," he needed identifying information from Juan. He asked Juan his name and date of birth. Agent Burger then stated he wanted to remind Juan again, as he had said inside, that Juan was not under arrest and that he was free to go. He asked if Juan understood, and when Juan did not say anything, he asked Agent Rocha to translate. Agent Rocha asked Juan in Spanish if he understood, and Juan said no. Doc. 27-2 at 1. Agent Rocha explained to Juan in Spanish that he was not under arrest and that he could "get out of the car or go into [his] house whenever [he] want[s]." Id. Juan indicated (in Spanish) that he understood. Id. at 2. Agent Burger said that what he had said inside still applied and explained that they were talking in the car for privacy.
Agent Burger asked Juan about his Facebook account and email address under the guise of asking for contact information. When Juan denied ever uploading a video to Facebook or having his Facebook account shut down, Agent Burger said that it was important for Juan to be honest and stated that the search warrant did not relate to his immigration status. After that, Juan admitted that he had sent the child pornography video to his cousin and answered Agent Burger's questions about the video. Some of Agent Burger's questions and Juan's responses were translated informally by Agent Rocha—Agent Rocha conveyed the general meaning of what each person was saying without translating the question or response word-for-word. When Agent Burger finished questioning Juan, he asked if Agent Rocha had any questions for Juan related to immigration, and Agent Rocha said that he did not. Agent Burger told Juan that they were finished questioning him and that he could go back inside. The interview lasted about thirty minutes. Both Agent Burger and Agent Rocha used a conversational tone during the interview.
After the interview, Juan went back into his residence with the agents, remaining near the back entry while the agents went into the basement to discuss next steps. Ten minutes later, Juan was handcuffed by HSI agents and taken into custody pursuant to a civil immigration detainer. Agent Burger testified that the entire time Juan was in the residence during the execution of the search warrant, an agent was always nearby so as to prevent him from destroying evidence or obtaining a weapon. He also testified that agents remained near Juan's family members at all times.
Six days later, on January 24, 2019, Juan was transferred from immigration detention to state custody on state child pornography charges. The federal grand jury indicted Juan on federal charges on April 25, 2019. Doc. 1. His state charges were dismissed on May 9, 2019.
During the drive, Juan talked with Agent Burger about his criminal charges. The conversation started when Agent Burger commented on the weather, asked if Juan liked the music playing, and asked if he had eaten, and Juan gave one- or two-word responses. Agent Burger then told Juan that they were driving to Sioux City, which would take about an hour and twenty minutes. After about a six-second period of silence, Juan stated that he had a problem and he needed to fix it. Agent Burger asked what he meant, and Juan began discussing his pending charges. Agent Burger commented that it was in the court's hands now and that Juan had good attorneys. Juan continued to discuss his charges, and Agent Burger occasionally asked follow-up questions, some of which appeared to be due to the language barrier and needing Juan to repeat himself to understand what he had said. In addition, when Juan stated that someone had sent him pictures, Agent Burger asked, "what pictures?"; when Juan mentioned the "WhatsApp application" (the phone application from which he had previously told Agent Burger he obtained the child pornography video), Agent Burger asked, "what about it?"; when Juan said something about showing his wife the video, Agent Burger said, "So you showed your wife the video?"; and when Juan said that he had been waiting for people to come to his house after his Facebook account locked because he had sent something bad, Agent Burger asked if Juan had been expecting the officers to come and search his house because his Facebook account locked, and also, "why did the Facebook lock?" Agent Burger testified that originally, he asked questions because he did not understand what Juan was saying, but eventually, he understood Juan to be talking about his pending charges and he began asking follow-up questions aimed at gaining information.
After they had been talking for about four minutes, Agent Burger told Juan that he did not have to talk to him about the charges if he did not want to and that he was not asking him to talk about it. Govt. Ex. 3, 5:03. Juan continued to talk about the video and made a comment about the people who had sent him the video and created it, and Agent Burger replied, "You could always help us with that. . . . Do you know those people? Who added you to the group?" Id., 5:29. When Juan said, "I don't know," Agent Burger said, "You don't get randomly added to that." Juan said something about cleaning his cell phone and people coming up to him (it is hard to understand what Juan said, but he did not seem to mention watching the videos at that point in time), and Agent Burger responded, "Yeah, but you watched the videos too." Id., 5:45. Juan said, "No, not too much," and Agent Burger asked, "How many times?" Juan said something about a lot of videos, and Agent Burger interrupted him to say again that he did not have to talk, and that Agent Burger was not going to ask him any questions but would not prevent him from discussing his case. Agent Burger explained to Juan that the state charges had been dropped and that they were going to Sioux City because there were now similar federal charges pending against him. After a period of silence, Agent Burger asked Juan how long he had lived in Doon, and the pair began talking about Juan's family. For the rest of the recorded conversation, Juan's criminal charges are not discussed. The conversation about Juan's pending charges lasted about six minutes.
Juan argues that the statements he made during the execution of the search warrant and during the drive to his initial appearance must be suppressed, since he was not read his Miranda rights on either occasion. He also argues that the evidence seized from his residence during the execution of the search warrant must be suppressed because the warrant was not supported by probable cause and because it was not executed "immediate[ly]."
Under Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), a suspect subject to custodial interrogation must first be advised that he has the right to remain silent and the right to an attorney, and he must waive these rights before the interrogation can proceed. The Government concedes that the questioning during the execution of the search warrant amounted to an interrogation but argues that Juan was not in custody. The Government also argues that Juan was neither in custody nor interrogated during his transport to his initial appearance. Thus, the Government argues that no Miranda violation occurred here. "The government bears the burden of proving by a preponderance of the evidence that a defendant's statements were not the product of a custodial interrogation."
A suspect is in custody for purposes of Miranda upon "formal arrest, or restraint on freedom of movement of the degree associated with a formal arrest."
Juan was clearly in custody on May 9, 2019, while being transported to his initial appearance. His state charges had been dismissed; he had been formally arrested on federal charges pursuant to a federal warrant; and he was being transported, handcuffed and with a belly chain, in a police vehicle to his initial appearance in federal court. Juan was not free to leave—he could not have declined to go to his initial appearance or have arranged his own transportation to it—nor would a reasonable person have felt free to do so. At the hearing, I expressed incredulity with the Government's argument otherwise, and the Government stood fast, stating there is an "argument to be made" that although Juan was in custody, he was not in custody for purposes of Miranda, citing the Supreme Court's decision in Howes v. Fields, 565 U.S. 499 (2012). The Supreme Court's decision in Howes relied on the fact that the prisoner in that case was told he was free to leave the room where questioning took place and return to his cell,
Whether Juan was in custody during the interrogation on January 18, 2019, is a closer issue, but I ultimately determine he was not in custody. The execution of the search warrant resulted in a police-dominated environment—seven to eight law enforcement officers were on the scene, surrounding all exits of the residence, and they breached the front door through use of a battering ram and entered the residence with their weapons drawn. But the interview took place in the car with only two officers present, and Juan sat in the front seat with the doors unlocked. The Eighth Circuit has recognized that "[a]ny warrant search is inherently police dominated," but "there is nothing untoward about that circumstance."
Juan's freedom of movement was somewhat limited during the execution of the search warrant, but he could have left the car during questioning and returned to the house if he wished. When Agent Burger first encountered Juan in his residence and told him he could explain what was going on in his car, Juan asked if he could change clothes first, which he was allowed to do. No testimony specifically established whether Juan went unaccompanied into his bedroom, but Agent Burger testified that during the execution of the warrant generally, an agent was always near Juan as well as his family members to ensure that they did not destroy any evidence or access a weapon. In addition, Agent Burger did not allow Juan to take his cell phone with him to the car (but the warrant permitted seizure of Juan's cell phone). Once in the unmarked car, Juan sat in the front passenger seat with the doors unlocked, while Agent Burger sat in the driver's seat and Agent Rocha sat in the back middle seat. At the conclusion of the interview, Juan and the agents went back into the house, and Agent Burger went into the basement to talk with other agents, while Juan stayed near the back door to the house. The limitations to Juan's freedom were reasonable given that the officers were executing a search warrant and wanted to prevent Juan from destroying evidence, and a reasonable person would not have felt unable to leave the car, where questioning occurred.
When Agent Burger first encountered Juan in the residence, he explained that he was not under arrest, that they were executing a search warrant, and that he could explain more and answer any questions in his car if Juan wanted. Agent Rocha translated some of this and relayed it to Juan in Spanish. Once in the car, Agent Burger again reminded Juan that he did not have to speak with him and that he was free to leave. When Juan indicated he did not understand, Agent Rocha told Juan in Spanish that he was not under arrest and that he could "get out of the car or go into [his] house whenever [he] want[s]." Doc. 27-2 at 1. Juan indicated he understood. Id. at 2. Even though Agent Rocha did not specifically say in Spanish that Juan did not have to answer Agent Burger's questions or that he was free to leave, a reasonable person would have understood that by being free to leave the car and go back to the house at any time, the interview could be terminated at any time.
Juan did not initiate conversation with the officers but voluntarily acquiesced. The agents used a conversational tone of voice, and at the end of questioning, Juan returned to the house for ten minutes before being handcuffed (Juan was taken into custody on a civil immigration detainer and not arrested on criminal charges, but I do not find that a reasonable person would understand this distinction to have an effect on the custody analysis). Here, I ultimately find that the totality of circumstances support that a reasonable person would have felt free to leave the car and refuse to answer Agent Burger's questions. See
"Interrogation in the [Miranda] context refers to express questioning and to words or conduct that officers should know is `reasonably likely to elicit an incriminating response from the suspect.'"
The Eighth Circuit has held that no interrogation occurred when the defendant stated that tribal police had previously told him about the existence of a federal arrest warrant, and the officer "request[ed] . . . clarification" by asking when the defendant knew about the warrant.
Here, during the transport to his initial appearance, Agent Burger spoke first, but it amounted to "polite conversation"—about the weather, the music, and whether Juan had eaten—and to a statement informing Juan about where Agent Burger was taking him; it did not constitute an interrogation. See
The one exception involved Agent Burger's statement and question toward the end of the discussion, when Agent Burger commented that Juan "watched the videos too" (Govt. Ex. 3, 5:45) and then asked how many times he had watched the videos (id., 5:49). Juan had made statements earlier in the discussion suggesting that he had viewed the video (although he did not say so outright). Agent Burger's later statement that Juan had "watched the video too" was in response to Juan seemingly suggesting the video was sent to him out of the blue and by people he could not have prevented from doing so. Although close, I find this statement amounted to interrogation. When Juan responded that he had not watched the video "too much," Agent Burger followed up by asking how many times he had watched the video. Because Juan's statement before that question was in response to interrogation, I find the follow-up question to Juan's answer is inadmissible (although the response was largely not understandable). Following that brief exchange, Agent Burger again told Juan he did not need to talk about the case and any subsequent statements should not be suppressed (although no incriminating statements appear to have been made thereafter). Accordingly, I recommend that the district court find no Miranda violation occurred, except for the statement about watching the video and follow-up question about the number of times.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and provides that "no [w]arrants shall issue, but upon probable cause." U.S. Const. amend. IV. In accordance with "[t]he Fourth Amendment's strong preference for searches conducted pursuant to a warrant," "after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review"; "the duty of a reviewing court is simply to ensure that the [issuing judge] had a `substantial basis for . . . conclud[ing]' that probable cause existed."
Here, the affidavit in support of the warrant provided probable cause to search Juan's residence and electronics for child pornography. Juan's only argument against a finding of probable cause appears to be that some of the information in the warrant "had passed through two prior parties (Facebook and NCMEC)." Doc. 19-1 at 7. Juan does not cite any case law to support his argument, and he fails to recognize that a tip from a third party can establish probable cause if there is evidence of reliability or corroboration (as here). See
Juan also argues that the execution of the search warrant violated the Fourth Amendment, because the warrant "commanded . . . immediate search" of the residence, but law enforcement did not search Juan's residence until two days after the warrant was signed. See Doc. 27-1 at 20. Under Federal Rule of Criminal Procedure 41(e)(2)(A)(i), "[t]he warrant must command the officer to . . . execute the warrant within a specified time no longer than 14 days." Although the warrant here specified it was to be executed immediately, law enforcement waited two days because they were planning execution of the search warrant amongst DCI agents spread across the state and involving another agency as well (HSI). The Eighth Circuit has held that a search and seizure is not rendered "warrantless" such that the Fourth Amendment is violated merely because the seizure occurs outside the time specified by the warrant and a minor violation of Rule 41 occurs. See
I respectfully recommend that the district court
Objections to this Report and Recommendation, in accordance with 28 U.S.C. § 636(b)(1), Federal Rule of Criminal Procedure 59(b), and Local Criminal Rule 59, must be filed within fourteen days of the service of a copy of this Report and Recommendation; any response to the objections must be filed within seven days after service of the objections. A party asserting such objections must arrange promptly for the transcription of all portions of the record that the district court judge will need to rule on the objections.
