United States v. Herran

          REPORT AND RECOMMENDATION

          HONORABLE JACQUELINE M. RATEAU UNITED STATES MAGISTRATE JUDGE.

         On April 22, 2019, Defendant Sergio Herran filed a Motion to Suppress Statements (Doc. 59). The government filed a response on May 6, 2019 (Doc. 66). The matter was heard by Magistrate Judge Rateau on May 22, 2019 (Doc. 68). Herran was present and represented by counsel. The government presented three witnesses (Doc. 69). Fifteen exhibits were admitted at the hearing (Doc. 70). Having considered the matter, the Magistrate Judge submits the following Findings of Fact and Conclusions of Law and recommends that Herran's Motion to Suppress Statements be denied.^[1]

         I. FINDINGS OF FACT

         Andrew Cooper, a Special Agent with Department of Homeland Security Investigations, obtained a federal warrant to search Defendant Sergio Herran's residence for evidence of child pornography. Tr. 6-7. Herran's residence is located in Tucson, Arizona and is a mobile home located on a large fenced lot in a rural neighborhood. Tr. 7, 46; Govt. Exs. 7 (photograph of residence); 8 (aerial photograph of residence). Between eight and eleven law enforcement officers were involved in the execution of the warrant including Agent Cooper, who was the case agent. Tr. 7, 30, 47. Agent Cooper recorded all the conversations between the agents and Herran. Tr. 23-24; Def. Ex. 1 (transcript of interview).

         Agents executed the warrant beginning at about 8:15 a.m. on March 15, 2017. Tr. 7, 10. When the agents arrived at the residence, Agents Cooper and Bah, who were wearing civilian clothes and carrying concealed weapons, walked up to the front door and knocked. Tr. 10-11, 13. After nobody answered, and hearing sounds from inside, the agents tried knocking on the wall and a window of the trailer. Tr. 11; Govt. Ex. 10 (photograph of window). Eventually, a young girl, approximately 11-years-old, answered the door and told the agents that her mom was in the shower, and that her dad had been up all night and had just gone to sleep. Tr. 11-12, 25-26; Def. Ex. 1, p. 2. The agents told the girl that they need to come in and talk to her parents and they entered the front door and went down the hallway. Tr. 12.

         The agents first contacted Herran, who was sleeping in bed and a little disoriented and surprised, and then the young girl stepped into the bathroom and her mom eventually came out. Tr. 12, 25. Then other children came out of their bedrooms. Tr. 12. The computer in Herran's bedroom was playing “really loud” and several dogs were barking. Tr. 13, 41; Def. Ex. 1, pp. 2-3. Herran's initial reaction to the agents' presence was confusion, and he recalled that that he was sick with a 105-degree fever at the time and had been up all night. Tr. 17, 54-56. Herran testified that he had taken two doses of a prescribed codeine cough syrup and was groggy and “just kind of out of it, ” but he was then able to answer Agents Cooper and Bah's questions. Tr. 17, 55, 67. The agents did not recall, and the transcript of their conversation does not reflect, that Herran told them about his fever or the medication. Tr. 96.

         The agents asked Herran how to turn down the computer. Tr. 13, 57; Def. Ex. 1, pp. 3-4. Agent Cooper asked Herran if he wanted to smoke or wanted coffee and offered to get him shoes. Tr. 36. The agents then cleared the house and brought Herran outside where Agents Cooper and Bah proceeded to speak with him while Agents Quiri and Nichols interviewed Herran's wife. Tr. 14, 23, 28-29, 39. Normally, after a house is secured, the agents conduct interviews inside the house while sitting at a kitchen table or on a couch. Tr. 14. However, Herran's house was in disarray. Tr. 14-15, 29, 48; Govt. Ex. 11 (photograph of Herran's bedroom); Govt. Ex. 12 (photograph of living room); Govt. Ex. 13 (photograph of dining room table). Initially, the agents and Herran were just outside the house on the front porch near the front door. Tr. 16-17, 58; Govt. Ex. 9 (photograph of front porch).

         While he was being questioned, Herran was trying to calm his barking dogs by calling their names and the situation became distracting. Tr. 18-19. After about 10 minutes on the porch, the agents and Herran moved to get away from the noise of Herran's barking dogs. Tr. 18, 29; Def. Ex. 1, p. 8. They moved 50 to 100 yards away from the trailer to Agent Cooper's Ford Explorer SUV which was parked near the mailboxes just outside the fence around the property. Tr. 18, 30; Govt. Ex. 7 (photograph of gate to the property). Agent Cooper opened the passenger door to the vehicle and Herran sat on the seat with the door open. Tr. 19. Agents Cooper and Bah stood outside the door of the vehicle. Tr. 30. Herran was better able to hear the agents after they moved to the vehicle. Tr. 59.

         Shortly after they had moved to Agent Cooper's vehicle, and while Herran was sitting in the car, Agent Bah informed Herran:

So just to let you know, you're not under arrest, ok. So if you . . . you're free to go if you want. If you want to go get something to eat, you can let us know, get something to drink. Um, you're free to smoke but unfortunately you can't do it inside the car. Um, so we, we just have a couple of questions, trying to figure out what's, what's going on.

Def. Ex. 1, p. 9; see also Tr. 21, 31. During questioning, Herran told the agents that his “mind is really screwed up first thing . . . in the morning.” Def. Ex. 1, pp. 10, 28. However, Agent Cooper told him to take his time and described Herran as cooperative, coherent and appropriately responding to questions. Tr. 20; Def. Ex. 1, p. 10, 28. He was able to discuss technical matters with the agents such as the functioning of peer-to-peer and computer file deletion software. Tr. 20, 68-69; Def. Ex. 1, p. 21, 33. He was also able to provide names of people who had visited his house. Tr. 69; Def. Ex. 1, pp. 9-10.

         Herran was only inside Agent Cooper's vehicle for a few minutes before agents asked if he wanted a cigarette or coffee. Tr. 64, Def. Ex. 1, p. 28. While he was standing outside the vehicle smoking, Herran's dogs attacked and bit Agents Quiri and Biringer. Tr. 21-22, 42, 51-52, 64; Def. Ex. 1, pp. 33-34. Herran recalls seeing one of the agents kicking at the dogs. Tr. 63. Herran responded to the attack by yelling at the dogs and running to secure them. Tr. 21-22. Along with Agent Cooper, Herran was able to secure the dogs in a pen behind Herran's trailer. Tr. 22. After securing the dogs, the agents and Herran continued their conversation at a third location in front of the trailer under a tree. Tr. 23; Def. Ex. 1, p. 35.

         II. CONCLUSIONS OF LAW

         A. ...