United States District Court, D. Arizona
REPORT AND RECOMMENDATION
HONORABLE JACQUELINE M. RATEAU UNITED STATES MAGISTRATE
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.
FINDINGS OF FACT
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).
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.
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.
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).
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.
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.
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.
CONCLUSIONS OF LAW