United States District Court, W.D. Missouri, Central Division
BRIAN C. WIMES, District Judge.
Before the Court is Magistrate Judge Matt W. Whitworth's Report and Recommendation (Doc. #69) denying Defendant's Motion to Suppress Statements (Doc. #57). Neither party has filed an objection. After an independent review of the record, the applicable law, and the parties' arguments, the Court adopts Magistrate Judge Whitworth's findings of fact and conclusions of law. Accordingly, it is hereby
ORDERED for the reasons stated in the Report and Recommendation (Doc. #69), Defendant's Motion to Suppress Statements (Doc. #57) is DENIED. It is further
ORDERED that Magistrate Judge Whitworth's Report and Recommendation be attached to and made part of this Order.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
On November 3, 2011, the Grand Jury returned a two-count indictment charging defendant Dominic J. Veit with possession and distribution of child pornography. Pending before the Court is Defendant's Motion to Suppress Statements (Doc. 57). In his motion, Defendant argues that certain statements made by him in an interview with FBI agents during the execution of a search warrant at his residence on March 3, 2011, violated his privilege against self-incrimination and right to counsel under the Fifth Amendment. Defendant argues that the FBI agents should have given him Miranda warnings prior to his interview. Defendant also contends the agents failed to cease the interview after he invoked his right to counsel. In its response in opposition to Defendant's motion, the Government states that Defendant was never in custody to trigger protection under Miranda. The Government further argues that Defendant never made a clear and unequivocal request for counsel.
On August 14, 2014, the Court held a hearing on Defendant's motion to suppress and heard testimony from FBI Special Agent (SA) Mike Daniels, one of the two FBI agents who conducted the audio-recorded interview of Defendant. The testimony related to the events that occurred leading up to the interview as well as the circumstances surrounding the interview of Defendant on March 3, 2011.
I. Factual Background
Upon receiving information that beginning on or about January 14, 2011, someone had obtained child pornography from an IP address located at the Defendant's residence, law enforcement obtained a search warrant for the residence, which was located in Jefferson City, Missouri. The search warrant authorized a search of the residence and computers for evidence of child pornography. According to SA Daniels, FBI agents arrived at the home in the early morning of March 3, 2011. Defendant's parents were the only occupants of the residence when the agents arrived. SA Daniels testified that consistent with FBI protocol when executing a search warrant such as this, there were about eight to ten armed officers in uniform and equipped with bullet-proof vests at the residence. After making a sweep of the home and interviewing Defendant's parents, SA Daniels stated the agents learned Defendant lived in the basement of the residence and he was currently at work. The agents did not find child pornography when previewing the computer used by Defendant's parents. The computer used by Defendant's parents was located in the kitchen of the residence. Defendant's computer was located in another area of the house. According to SA Daniels, another agent called Defendant at work and requested his presence at the residence so they could talk to him. SA Daniels testified the agents did not go to Defendant's place of business because they did not want to embarrass Defendant if it turned out he was not responsible for the child pornography. Defendant voluntarily returned to the house following the phone call.
In describing the residence at the time Defendant arrived, SA Daniels stated that the residence was secured by the agents and that Defendant's parents were asked to stay within the living room area unless accompanied by an officer. The agents' firearms were holstered at all times. SA Daniels further testified that he and FBI Agent Enlow approached Defendant when he arrived at the residence and told him they wanted to talk with him. SA Daniels testified that he advised Defendant there were no charges filed, no one was going to be arrested on that day, and any statements he made were voluntary. SA Daniels further testified that when Defendant was asked if there was a location that would be more comfortable where they could talk, the decision to proceed to a sunroom off the main room was a joint decision made by SA Daniels, Agent Enlow, and Defendant.
Before the interview at issue began, SA Daniels testified that the three men proceeded to the sunroom separated from Defendant's parents and other officers still at the residence after a protective sweep by other agents was performed. As depicted in the photograph of Government's Exhibit 1, there is one entrance into the sunroom. A couch was positioned on one wall facing the interior of the room, where Defendant sat. SA Daniels sat facing Defendant in a chair brought in from another room opposite one end of the couch that was closest to the entrance. SA Daniels testified that Agent Enlow stood facing Defendant opposite the end of the couch furthest from the entrance.
SA Daniels further testified that he placed a recording device in between himself and Defendant, who was seated on the couch. SA Daniels testified he did not advise Defendant of his Miranda rights because he did not consider Defendant to be in custody and he had advised Defendant any statements he made would be considered voluntary. He had further informed Defendant that he was not under arrest and would not be arrested that day even if he confessed. Near the beginning of the recorded interview, Defendant stated, "I don't really know whether I should be talking to you guys, I should probably talk to a lawyer". At this point, SA Daniels stated again to Defendant that any statements he chooses to make are voluntary and explained the benefits of cooperating with the agents at this stage. SA Daniels also testified that he made it clear to Defendant that if he wanted a lawyer, all questioning would cease.
The agents then resumed questioning the Defendant until he again made an indication that he was not sure whether he should be talking to an attorney. At this point, the agents repeated the benefits of cooperating and added that should he decide not to talk with them, Defendant's window to cooperate would no longer be available. Specifically, SA Daniels informed Defendant that it is his decision and stated, "you have every right... and it's totally up to you... to talk to an attorney." He repeated that it was the Defendant's decision and stated, "we'll make this last choice crystal clear... this is your thing... do you want to speak with an attorney before talking to us or do you want to talk to us... and if you want to talk to an attorney... we're done... your call, right now." Defendant then stated to the agents that he "may likely be making a big mistake", but continued to talk to the agents. After confirming that he wanted to continue speaking ...