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United States v. Eller

United States District Court, D. Arizona

January 3, 2020

United States of America, Plaintiff,
v.
Franklin Paul Eller, Jr., Defendant.

          ORDER

          David G. Campbell Senior United States District Judge.

         Defendant 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 order. Id.

         I. Motion to Suppress Custodial Statements (Doc. 124).

         Defendant 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.

         A. Custody.

         Miranda 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).[1] 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).

         To 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).

         Considering 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.

         1. The number of law enforcement personnel and whether they were armed.

         Seventeen 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.

         The 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.

         2. Whether the suspect was at any point restrained.

         After 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. Id.

         3. Whether the suspect was isolated from others.

         Defendant 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.

         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.

         It is 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.

         5. The language used to summon the individual.

         Defendant 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.

         6. The extent to which the defendant was confronted with evidence of guilt.

         The 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 468.

         7. The physical surroundings of the interrogation.

         Defendant 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.

         8. The duration of the detention.

         Defendant 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).

         9. The degree of pressure applied to detain the individual.

         Other than the initial show of force and handcuffing, the agents do not appear to have applied any pressure to detain Defendant.

         When 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 questioning.

         B. Adequacy of the Miranda Warnings.

         Defendant 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 Defendant:
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. Okay?
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, great. Okay?
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.[2]

         In 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 questioning.
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 ...

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