U.S. v. Yockey
| Citation | 654 F.Supp.2d 945 |
| Decision Date | 28 August 2009 |
| Docket Number | No. CR09-4023-MWB.,CR09-4023-MWB. |
| Parties | UNITED STATES of America, Plaintiff, v. Eric YOCKEY, Defendant. |
| Court | U.S. District Court — Northern District of Iowa |
Mark A. Tremmel, U.S. Attorney's Office, Sioux City, IA, for Plaintiff.
Robert A. Wichser, Federal Public Defender, Sioux City, IA, for Defendant.
ORDER CONCERNING MAGISTRATE'S REPORT AND RECOMMENDATION REGARDING DEFENDANT'S MOTION TO SUPPRESS
TABLE OF CONTENTS
I. INTRODUCTION AND BACKGROUND ..........................................948
A. Procedural Background .............................................948
B. Factual Background ................................................949
II. LEGAL ANALYSIS .......................................................950
A. Standard Of Review ................................................950
B. Objections To Findings Of Fact ....................................953
1. Officer Collison's actions as accidental ......................953
2. Defendant Yockey's understanding of Miranda rights ............954
3. Inventory search of telephone's memory ........................954
4. Plain view ....................................................955
5. Accidental viewing ............................................955
6. Collison's testimony ..........................................955
7. Beginning of interview ........................................956
8. Information obtained by Collison ..............................956
9. Attenuation of taint ..........................................956
10. Totality of the circumstances .................................956
C. Objections To Legal Conclusions ...................................957
1. Plain view of image on cellular telephone .....................957
2. Objections regarding Detective Bertrand's interview ...........958
III. CONCLUSION ...........................................................959
On April 22, 2009, an indictment was returned against defendant Eric Yockey, charging defendant Yockey with receiving and attempting to receive child pornography, in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1), and possessing and attempting to possess child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B) and 2252A(b)(2). On July 9, 2009, defendant Yockey filed a motion to suppress. In his motion, defendant Yockey seeks to suppress photographic evidence obtained from his cellular telephone which was obtained without a search warrant. Defendant Yockey further seeks to suppress all statements he made to law enforcement personnel following the search of his cellular telephone on the ground that his statements are the fruits of an illegal search.
Defendant Yockey's motion to suppress was referred to Chief United States Magistrate Judge Paul A. Zoss, pursuant to 28 U.S.C. § 636(b). After conducting an evidentiary hearing, on July 29, 2009, Judge Zoss filed a Report and Recommendation in which he recommends that defendant Yockey's motion to suppress be granted in part and denied in part. Judge Zoss concluded that the initial viewing of a pornographic image of a naked pre-teen girl on the screen of defendant Yockey's cellular telephone was not the result of a search but occurred as a result of the jailer accidently causing the image to appear while attempting to turn off the cellular telephone. Judge Zoss further found that the arresting officer's subsequent search of defendant Yockey's cellular telephone for additional images was not a contemporaneous search incident to arrest and any testimony concerning that search should be suppressed. Judge Zoss also concluded that defendant Yockey's response to the arresting officer's question to him concerning his ownership of the cellular telephone must be suppressed on the grounds that his response was obtained without his having been informed of his constitutional rights as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Finally, Judge Zoss found that a police detective's questioning of defendant Yockey and his search of defendant Yockey's cellular telephone were not tainted by the arresting officer's actions because any taint from the arresting officer's unlawful conduct was sufficiently attenuated by other circumstances so as to purge it. Accordingly, Judge Zoss concluded that Yockey's statements to the police detective, as well as the cellular telephone and its contents, should not be suppressed. Therefore, Judge Zoss recommended that defendant Yockey's motion to suppress be granted in part and denied in part. After obtaining an extension of time, defendant Yockey filed his objections to Judge Zoss's Report and Recommendation on August 19, 2009. The prosecution has filed a timely response to defendant Yockey's objections.1 The court, therefore, undertakes the necessary review of Judge Zoss's recommended disposition of defendant Yockey's motion to suppress.
In his Report and Recommendation, Judge Zoss made the following findings of fact:
On December 11, 2008, at approximately 7:27 p.m., Sioux City Police Officer Jason Williams stopped a vehicle for an expired registration tag. Williams learned that the driver of the vehicle, Yockey, had a suspended operator's license. He placed Yockey under arrest and took him to the Woodbury County Jail for booking.
At the jail, Yockey was searched by Officer Collison in accordance with the jail's standard booking procedures. As Collison was emptying Yockey's pockets, he discovered a "flip" style cell phone. The phone was closed, but the power was turned on. Standard jail procedures (see Gov't Ex. 1) required that the cell phone be turned off, so Collison opened the phone and attempted to turn it off. According to his testimony, he first pressed the "END" button, which ordinarily would have shut the phone off, but that did not work. He next tried to turn the phone off by pressing the right directional arrow, but he accidentally pressed some of the other buttons which instead of turning the phone off, accessed pictures stored on the phone. A pornographic image of a naked girl who appeared to be seven to ten years old appeared on the screen. Collison took the phone to Officer Williams, who was still in the booking area completing paperwork from the arrest, told him what he had observed, and gave the phone to him.
Williams looked at twenty to twenty-five pictures stored on the phone, and determined that several contained pornographic images of children. Williams had Yockey sign a "seized property sheet" acknowledging that Williams had seized the cell phone, and asked Yockey if the phone was his. Yockey responded that it was. Williams called his Sergeant, who directed him to contact Detective Bertrand. At about 8:00 p.m., Williams made contact with Bertrand and told him what he had observed, and arranged to deliver the phone to him. Bertrand told Williams not to turn the phone off because he was concerned it might be password protected. Williams met with Bertrand and gave him the phone.
Beginning at 9:08 p.m., Bertrand interviewed Yockey at the Woodbury County Jail. At the outset of the interview, Bertrand introduced himself and advised Yockey of his Miranda rights. Yockey acknowledged that he understood his rights, and agreed to talk with Bertrand. Bertrand told Yockey he had not yet examined the cell phone, and asked what he would find on the phone. Yockey responded that he would find about 143 pornographic images. Bertrand asked for permission to examine the phone, and Yockey gave it. Bertrand looked in the "pictures" section of the phone's memory, where he discovered numerous pictures containing pornographic images of children. Yockey then made several incriminating statements.
Report and Recommendation at pp. 2-3 (footnotes omitted). Upon review of the record, the court adopts all of Judge Zoss's factual findings that have not been objected to by defendant Yockey.
The court reviews the magistrate judge's report and recommendation pursuant to the statutory standards found in 28 U.S.C. § 636(b)(1):
A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions.
28 U.S.C. § 636(b)(1) (2006); see Fed. R.Civ.P. 72(b) ( identical requirements); N.D. IA. L.R. 72, 72.1 (). While examining these statutory standards, the United States Supreme Court explained:
Any party that desires plenary consideration by the Article III judge of any issue need only ask. Moreover, while the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard.
Thomas v. Arn, 474 U.S. 140, 154, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Thus, a
district court may review de novo any issue in a magistrate judge's report and recommendation at any time. Id. If a party files an objection to the magistrate judge's report and recommendation, however, the district court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). In the...
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