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United States v. Smith

United States District Court, Ninth Circuit

October 16, 2013

United States of America, Plaintiff,
Gordon Sloan Smith, Defendant.


G. MURRAY SNOW, District Judge.

Pending before the Court are Defendant's three Motions to Suppress; Because of Illegal Search and Seizure Without Warrant and to Smith's Great Harm, (Doc. 43), for Failure to Afford Smith his Miranda Rights, (Doc. 45), and Because of FBI Use of Smith's Religion to Intimidate Him, (Doc. 42). For the reasons discussed below, Defendant's Motions are denied.


On July 10, 2012, a grand jury indicted Gordon Sloan Smith on five counts related to fraud and bankruptcy. (Doc. 1.) These charges arose out of Smith's allegedly fraudulent sale of a partnership in a gold mine that he could not legally sell because it was part of a bankruptcy estate. ( Id. at 1-6.) On July 20, FBI agents arrested Smith. (Doc. 7.)

On August 16, 2013, Smith filed three motions to suppress related to his arrest and interrogation. (Docs. 42, 43, 45.) The Court held an evidentiary hearing on October 1, 2013. The general sequence of events is not in dispute. Seven FBI agents and a local police officer arrested Smith at his home in Carson City, Nevada, at approximately 8:30 a.m. Two agents then drove Smith to Reno, and one of them interviewed him during the trip. The agents continued to interview him at the FBI office in Reno until it was time to turn him over to the United States Marshalls, sometime before 11:00. At 11:45 a.m., Smith signed an Assertion of His Fifth and Sixth Amendment Rights. (Ex. 4.)

Although Smith was arrested on his doorstep, it appears that an FBI agent and a local police officer entered the home for several reasons. Initially, they may have looked around to be sure that no one else was present in the home. Later, they retrieved a pair of shoes and possibly socks for Smith to wear. They also retrieved Smith's cell phone to contact his daughter. Finally, they made sure the doors and windows were secure before locking the home when they left.

At 8:44 a.m., FBI Agent Tyler Woods read Smith his Miranda rights from a form. (Mot. Hr'g, Ex. 1.) Smith signed the form indicating that he understood and was waiving his rights, and at 8:50 a.m. Agent Woods signed the form as a witness. ( Id. ) Smith disputes whether he signed the form at the doorstep or after he was placed in the vehicle, but the interview did not begin until after he signed the form and was in the vehicle. Agent Woods began the interview in the car because there was limited time to interview Smith before he needed to be turned over to the Marshalls. The interview in the car focused on the business transactions related to the mine and the history of the mine and Smith's bankruptcy proceedings.

FBI Agent Erron Terry drove the car and joined Agent Woods in interviewing Smith after they arrived in Reno. In Reno, the agents began to confront Smith with bank and financial records indicating the fraud. In connection with this, they informed Smith that Agent Woods had a degree in accounting from Brigham Young University. Smith is a member of The Church of Jesus Christ of Latter-day Saints. Because Brigham Young University is owned by the Church, the mention of the school may have indicated to Smith that Agent Woods was also a member of the Church, which he was.

The night before the interview, Agent Woods looked up the name of Smith's church leader in preparation for the interview. As Agent Woods continued to review the financial records with Smith during the interview, he noted that Smith had paid tithing to his church using the fraudulently obtained money. Agent Woods challenged Smith on the integrity of this action and questioned how his actions would reflect on Smith to his fellow church members. Agent Woods mentioned Smith's church leader by name and asked whether Smith had recently told his church leaders that he was honest in his dealings.

The exact length of each portion of the interrogation is not clearly established, but Smith and the agents agree that the references to religion were the last things discussed during the interview at the FBI office in Reno. Agent Woods characterized his actions as a final appeal to Smith's highest moral ideals in an attempt to induce greater honesty and a confession. No confession was made, and both the agents and Smith agree that Smith said nothing of substance after the references to his religion.

Defendant now brings three motions to suppress based on allegations that the search was illegal, the Miranda warnings were ineffective, and the references to religion were intimidating.


1. Search of Smith's Home

The warrant requirement of 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." U.S. Const. amend. IV. There are exceptions to the warrant requirement. Police are permitted to perform a quick and limited search, or "protective sweep, " incident to arrest, but only if the officers have a reasonable belief supported by "specific and articulable facts" that a home "harbored an individual posing a danger to the officers or others." Maryland v. Buie, 494 U.S. 325, 327 (1990). A warrantless search is also lawful if valid consent is given and the search remains within the scope of that consent. Florida v. Jimeno, 500 ...

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