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United States v. Hoeffener

United States District Court, E.D. Missouri, Eastern Division

March 12, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
ROLAND HOEFFENER, Defendant.

          REPORT AND RECOMMENDATION

          PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Defendant's Motion to Suppress Statements, Admissions and Confessions [ECF No. 28]. The Court held an evidentiary hearing on Defendant's motion. Based upon the arguments of the parties and the evidence adduced at the hearing, the Court recommends denial of Defendant's motion.[1]

         Background

         The Government charged Defendant with violating 18 U.S.C. § 2252A(a)(2) by “knowingly receiving” over the internet videos and images of child pornography (Count I); and violating 18 U.S.C. § 2252A(a)(5)(B) by “knowingly possess[ing]” two storage devices containing videos and images of child pornography (Counts II and III) [ECF Nos. 56 and 57]. Each count includes a list identifying four visual depictions of a minor allegedly engaging in sexually explicit conduct. Id. Defendant filed a motion to suppress statements, admissions and confessions [ECF No. 28]. As grounds for the motion, Defendant contends that a St. Louis County Police Department detective, Sergeant Adam Kavanaugh, used “coercion and false promises to induce” Defendant to make a statement. Defendant also argues that he invoked his right to counsel during questioning by Sergeant Kavanaugh. Finally, Defendant asserts that police officers failed to provide a Miranda warning to Defendant at the time he was placed in custody. In his post-hearing memorandum, Defendant focuses on Defendant's custodial status at the time of his statements and the absence of a timely Miranda warning.

         Findings of Fact

         Adam Kavanaugh, a sergeant with the St. Louis County Police Department, assisted Dustin Partney, a detective whom Sergeant Kavanaugh supervised in the St. Louis County Police Department's Special Investigations Unit, with the execution of a search warrant at Defendant's home. Others involved in the search at various times included officers from St. Louis County's Tactical Operations Unit (referred to as the “SWAT team”), St. Louis County Police Department Detective Jeff Roediger, and two United States Secret Service agents, Bradley Beeler and Bryan Hushack. The execution of the warrant took place between 7 and 8:00 pm. Upon arrival at Defendant's home, the search participants learned that neither Defendant nor his wife were present. Sergeant Kavanaugh, using a previously-obtained telephone number, called Defendant and advised him that police officers were at his residence and requested that Defendant return. Defendant and his wife arrived at their home between approximately 8:00 and 8:30 p.m., not more than twenty minutes after Sergeant Kavanaugh's call.

         At the time Defendant arrived, the SWAT team had departed, leaving a uniformed detective to collect evidence, the two Secret Service agents, Sergeant Kavanaugh, and Detective Partney. Sergeant Kavanaugh spoke with Defendant in front of Defendant's home, informing Defendant that the officers executed a search warrant and requesting that Defendant “sit down in [Sargeant Kavanaugh's] vehicle and discuss that further with him.”[2] Defendant voluntarily entered Sergeant Kavanaugh's unmarked vehicle and sat in the front seat. Defendant was not handcuffed while in the closed vehicle or otherwise restrained.

         Sergeant Kavanaugh recorded the conversation with Defendant that occurred in the vehicle.[3] He described Defendant as inquisitive but polite and cooperative.[4] Sergeant Kavanaugh denied that Defendant was a suspect, under arrest, or in custody at the time the conversation commenced. Sergeant Kavanaugh discussed with Defendant the reason that police executed the search warrant and specifically informed him, he “was there for the file sharing of child pornography.”[5]

         Prior to Defendant entering the car, Sergeant Kavanaugh did not read Defendant his Miranda rights. While in Sergeant Kavanaugh's vehicle, Defendant confessed that for the past four or five years he had used uTorrent to download pictures and movies of child “porn[ography] . . . [involving] everything from five” years old and up, which he viewed.[6] Defendant's statements occurred approximately five minutes after he started talking with Sergeant Kavanaugh.[7] Following Defendant's statement that he had downloaded child pornography, Sergeant Kavanaugh decided he would arrest Defendant.[8] At no time, while Sergeant Kavanaugh and Defendant were in Sergeant Kavanaugh's vehicle did Sergeant Kavanaugh read Defendant his Miranda rights. Sergeant Kavanaugh testified that Defendant was free to leave during the “car conversation” but Defendant did not ask to “get out of the car.”[9] Further elaborating on cross-examination, Sergeant Kavanaugh stated that after Defendant admitted to downloading child pornography, Defendant was not restrained but “he would not be free to leave.”[10]

         Towards the end of the in-vehicle conversation, Sergeant Kavanaugh asked Defendant if there had ever been accusations that he touched a child. Defendant acknowledged that there had been an accusation involving a neighbor child, however Defendant denied touching any child. In response, Sergeant Kavanaugh asked if Defendant would agree to a polygraph test. Defendant replied, “[n]o problem.”[11] Thereafter, Sergeant Kavanaugh drove with Defendant to the St. Louis County Police Department in Clayton. After some random conversation while enroute to Clayton, Defendant stated, “so you guys gonna arrest me?”[12] Sergeant Kavanaugh responded, “[w]ell, probably.”[13] Defendant replied, “[o]kay.”[14]

         Following Defendant's transport to the St. Louis County Police Department, Agent Beeler administered a polygraph. Prior to administering the polygraph, Agent Beeler provided Defendant with a “warning of rights and consent to speak” form (“form”).[15] Agent Beeler read the following warning contained in the form to Defendant:

         Before I 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 a Court, or other proceedings.

         You have the right to talk to a lawyer for advice before I question you and to have him with you during questioning.

         If you cannot afford a lawyer and want one, a lawyer will be appointed for you by the Court.

         If you decide to answer questions now without a lawyer present, you will still have the right to stop the questioning at any time.[16]

         (Footnote added.) Agent Beeler then had Defendant state out-loud the following, which was printed on the form immediately after the above statements: “I have read this statement of my rights and it has been read to me, and I understand what my rights are. I voluntarily waive my rights and I am willing to answer any questions at this time.”[17] Agent Beeler also starred and underlined the line on the form that advised Defendant he had the right to stop questioning at any time.[18] Thereafter, Defendant signed the form.[19]

         During the post-warning polygraph pre-test, which was not recorded, Defendant stated, among other things, that he had downloaded approximately 10, 000 images and/or movies of child pornography.[20] During the actual polygraph, which was also not recorded, Agent Beeler asked Defendant whether he had any “undisclosed sexual contact with a minor.” The results of the polygraph were inconclusive.[21]

         At the conclusion of the polygraph examination, Sergeant Kavanaugh videotaped Defendant answering questions. Prior to questioning, Sergeant Kavanaugh reminded Defendant that Agent Beeler read Defendant Miranda rights and stated “[i]t all still applies.”[22] The transcript of the videotaped interview demonstrates the following exchange:

Kavanaugh: . . . Now we talked at the house, you know, and I explained to you um, you know, what was going on. You weren't under arrest. I didn't take you out in handcuffs, right. I didn't threaten you, right.
Defendant: Um hm.
Kavanaugh: I didn't drag you into the car and tell you, you had to go with me, right. You came down here voluntarily with me, right?
. . . Um so um, we uh we know that you, you admitted that you have ...

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