United States District Court, D. Arizona
G. Campbell Senior United States District Judge.
Franklin Eller is charged with various counts relating to the
production and receipt of child pornography. He has filed
several pretrial motions to which the government has
responded. The Court decided some of the motions in a
previous order (Docs. 160, 162), and held an evidentiary
hearing on the remaining motions on December 20, 2019. This
order resolves the remaining motions. The Court will not
repeat the factual background contained in its previous
Motion to Suppress Custodial Statements (Doc. 124).
moves to suppress statements made during his initial
interview with FBI agents on February 27, 2015. Defendant
alleges that his statements were elicited in violation of the
Fifth and Sixth Amendments as defined in Miranda v.
Arizona, 384 U.S. 436 (1966). Doc. 124 at 5. The Court
heard testimony at the December 20, 2019 hearing from FBI
Special Agents Jim Kraus and Dawn Martin, who interviewed
Defendant on February 27, 2015. For the reasons stated below,
the Court will deny Defendant's motion.
warnings must be given only when a suspect is in custody and
subject to government interrogation. See Illinois v.
Perkins, 496 U.S. 292, 297 (1990). In United
States v. Craighead, 539 F.3d 1073 (9th Cir. 2008), the
Ninth Circuit addressed a question of first impression in
this Circuit: “Under what circumstances under the Fifth
Amendment does an interrogation by law enforcement officers
in the suspect's own home turn the home into such a
police-dominated atmosphere that the interrogation becomes
custodial in nature and requires Miranda
warnings?” Id. at 1077. Craighead
noted that a suspect is in custody for purposes of
Miranda “if the suspect has been
‘deprived of his freedom of action in any significant
way.'” Id. at 1082 (quoting
Miranda, 384 U.S. at 444). “To determine
whether the suspect was in custody, we first examine the
totality of the circumstances surrounding the interrogation.
We then ask whether a reasonable person in those
circumstances would have felt he or she was not at liberty to
terminate the interrogation and leave.” Id. at
1082 (citations and quotations omitted).
distinguish custodial from non-custodial interrogations,
Craighead considered “the extent to which the
circumstances of the interrogation turned the otherwise
comfortable and familiar surroundings of a home into a
‘police-dominated atmosphere.'” Id.
at 1083. Craighead identified several relevant
factors: “(1) the number of law enforcement personnel
and whether they were armed; (2) whether the suspect was at
any point restrained, either by physical force or by threats;
(3) whether the suspect was isolated from others; and (4)
whether the suspect was informed that he was free to leave or
terminate the interview, and the context in which any such
statements were made.” Id. at 1085. This list
is not exhaustive. Id. The Ninth Circuit has
identified several additional factors: “(1) the
language used to summon the individual; (2) the extent to
which the defendant is confronted with evidence of guilt; (3)
the physical surroundings of the interrogation; (4) the
duration of the detention; and (5) the degree of pressure
applied to detain the individual.” United States v.
Kim, 292 F.3d 969, 974 (9th Cir. 2002) (quoting
United States v. Hayden, 260 F.3d 1062, 1066 (9th
Cir. 2001)); see United States v. Salabye, 623
F.Supp.2d 1010, 1013 (D. Ariz. 2009).
the totality of the circumstances, the Court concludes that a
reasonable person in Defendant's position would not have
felt free to leave or terminate the questioning. The Court
will review each of the factors identified above.
The number of law enforcement personnel and whether they
law enforcement officers appeared at Defendant's door
shortly after 6:30 a.m. on the morning of February 27, 2015.
All were armed, and the entry team officers had their guns
drawn as they entered Defendant's residence. Doc. 124 at
2. The officers remained at Defendant's home throughout
the search and interrogation.
Ninth Circuit noted in Craighead that “the
presence of a large number of visibly armed law enforcement
officers goes a long way towards making the suspect's
home a police-dominated atmosphere, ” and cited cases
involving eight, seven, and five officers. See 539
F.3d at 1085. The seventeen armed officers in this case
clearly contributed to such an atmosphere.
Whether the suspect was at any point restrained.
being awakened, Defendant and his roommate were immediately
handcuffed while officers secured the apartment. Doc. 145 at
2. The handcuffs were removed after five to ten minutes.
Whether the suspect was isolated from others.
was questioned for nearly an hour and a half by Agents Martin
and Kraus in their unmarked FBI vehicle. During this time he
was separated from his roommate and the officers who were
searching his apartment. In Salabye, this Court
concluded that a defendant who was interviewed in a police
vehicle outside his home was isolated from others. 623
F.Supp.2d at 1014.
Whether the suspect was informed that he was free to
leave or terminate the interview, and the context in which
any such statements were made.
not clear whether Defendant was told that he was free to
leave. Agent Kraus testified that he did not tell Defendant
this (Court's LiveNote Transcript (“Tr.”)
9:15-24), and Agent Martin testified that it is her practice
to say this, but she did not testify that she did so in this
case (Id. at 38:6-12). In any event, the Court
doubts that any such statement by the agents would have
provided a reasonable alternative for Defendant when it was
very early in the morning, Defendant was told he could not
return to his apartment during the search, Defendant had no
vehicle, and it was cold outside. As the Ninth Circuit said
in Craighead, “an agent's statement that a
suspect is free to leave may have more or less resonance with
the suspect depending on whether he can leave the
interrogation site and retreat to the safety of his home or
whether his home is in fact the locus of police
activity.” 539 F.3d at 1088.
The language used to summon the individual.
was asked by the agents if he would be willing to speak with
them in an SUV vehicle outside. Doc. 145 at 2. Defendant
agreed. Id. In general, when a suspect voluntarily
agrees to accompany police with an understanding that
questioning would ensue, this factor weighs against a finding
of custody. See Kim, 292 F.3d at 974.
The extent to which the defendant was confronted with
evidence of guilt.
agents confronted Defendant with evidence of his guilt. Agent
Martin told Defendant that the evidence against him was
“overwhelming.” Doc. 126-1 at 37. Agent Kraus
reiterated this point several times, stating “we have a
ton of evidence, ” “more than I've ever seen
in a case like this, ” and that it was
“incredible how much evidence [they] had.”
Id. at 37-38. The Ninth Circuit found similar
tactics to be relevant in United States v. Lee, 699
F.2d 466 (9th Cir. 1982), where “[t]he agents allowed
[defendant] to repeat his exculpatory story, then for 15
minutes confronted him with evidence of his guilt, and told
him it was time to tell the truth[.]” Id. at
The physical surroundings of the interrogation.
was interrogated in an FBI vehicle with the doors closed;
Agents Martin and Kraus wore vests or jackets with FBI
lettering and logos; both agents were armed; and Defendant
sat in the front passenger seat, with Agent Kraus next to him
in the driver's seat and Agent Martin behind him in the
backseat. The Ninth Circuit held in Lee that an
interrogation was custodial when a suspect “was
questioned in a closed FBI car with two officers for well
over an hour while police investigators were in and around
his house.” Id. This Court reached the same
conclusion in Salabye, 623 F.Supp.2d at 1015.
The duration of the detention.
was questioned for 85 minutes. As in Kim, this was
“a full-fledged interrogation, not a brief
inquiry.” 292 F.3d at 977 (suspect detained for
“some time” before questioning began, then for at
least 30 minutes before an interpreter arrived and for
another 20 minutes with the interpreter).
The degree of pressure applied to detain the
than the initial show of force and handcuffing, the agents do
not appear to have applied any pressure to detain Defendant.
all of these factors are considered, the Court concludes that
the interrogation of Defendant was custodial. He was awakened
early in the morning by seventeen armed officers, handcuffed
for five to ten minutes, interrogated for 85 minutes in a
closed FBI vehicle with two uniformed FBI agents, unable to
return to his apartment, and repeatedly confronted with
evidence of his guilt. A reasonable person in Defendant's
position would not have felt free to leave or terminate the
Adequacy of the Miranda Warnings.
argues that his Miranda warning was fatally
defective. Doc. 124 at 6. “Miranda requires
that a suspect be told, before questioning, that ‘he
has the right to remain silent, that anything he says can be
used against him in a court of law, that he has the right to
the presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any
questioning if he so desires.'” United States
v. Loucious, 847 F.3d 1146, 1149 (9th Cir. 2017)
(quoting Miranda, 384 U.S. at 479).
Once in the vehicle, Agent Kraus made these statements to
Yeah. So before - so I wanted to tell you kind of what - why
we're here. Okay?
Before we do that, since we came to your house, and
there's a bunch of people there, typically you know, we
don't want to make you feel like you have to talk to us.
But like I said, what we like to do is - we'll tell you
exactly what's going on. And if you want to talk to us,
But before we ask any questions, you must understand your
rights. You have the right to remain silent. Anything you say
can be used against you in court. You have the right to talk
to a lawyer for advice before we ask you any questions. You
have the right to have a lawyer with you during questioning.
If you can't afford a lawyer, one will be appointed for
you before any questioning, if you wish. If you decide to
answer questions now without a lawyer present, you have the
right to stop answering at any time.
And, the consent, it says, I've read the statement of my
rights. I understand what my rights are. At this time,
I'm willing to answer questions without a lawyer present.
MR. ELLER: Okay.
Doc. 124-1 at 11-12.
addition, Defendant was shown a written copy of the
Miranda warning and read it as Agent Kraus stated
Defendant's rights. The form said:
You have the right to remain silent.
Anything you say can be used against you in court.
You have the right to talk to a lawyer for advice before we
ask you any questions.
You have the right to have the lawyer with you during
If you cannot afford a lawyer, one will be appointed for you
before any questioning, if you wish.
If you decide to answer questions now without a lawyer
present, you have the right to stop ...