United States v. Pierce
| Decision Date | 23 October 2014 |
| Docket Number | 8:13CR106 |
| Parties | UNITED STATES OF AMERICA, Plaintiff, v. RUSSELL GLENN PIERCE, Defendant. |
| Court | U.S. District Court — District of Nebraska |
This matter is before the court on the defendant's, Russell Glenn Pierce, Motion to Suppress Statements (Filing No. 164). The defendant is charged in the Second Superseding Indictment with the receipt and attempted receipt of child pornography (Count I) in violation of 18 U.S.C. § 2252A(a)(2) and (b)(1) and the accessing of a computer in interstate commerce with the intent to view child pornography (Count II) in violation of 18 U.S.C. § 2252A(a)(5)(B) during the period of November 16, 2012, and December 2, 2012 (Filing No. 88).1 The defendant seeks to suppress statements he made to law enforcement officers in an interview during the execution of a search warrant at the defendant's residence at 4115 Hayes Street in Hollywood, Florida, on April 8, 2013, together with any subsequent statements which were tainted by this interview.
The court held an evidentiary hearing on the motion on October 7, 2014. The defendant was present with his counsel Joshua D. Rydell. The United States was represented by Assistant U.S. Attorney Michael P. Norris. The court heard the testimony of Federal Bureau of Investigation (FBI) Special Agent Catherine Koontz (Agent Koontz). The court also received into evidence an Advice of Rights Form (Ex. 1) and a recording of the April 8, 2013, interview (Ex. 2). A transcript (TR.) of the hearing was prepared and filed on October 13, 2014. See Filing No. 240.
On April 8, 2013, at 8:45 p.m., Agent Koontz and other law enforcement officers executed a search warrant at 4115 Hayes Street in Hollywood, Florida, as part of an investigation into child pornography (TR. 5-6). Agent Koontz received information an individual residing at that particular address was receiving, accessing, or distributing child pornography (TR. 6). Agent Koontz also had a John Doe arrest warrant for the individual at the residence using a specific IP address to access the TOR network and receive, access, or distribute child pornography (TR. 7, 22-23). Prior to executing the warrant, Agent Lisa Lamey (Agent Lamey) conducted surveillance of the home and put an operational plan together to execute the search warrant (TR. 25). The agents discussed who would potentially be in the home, including the defendant (TR. 25-26). Agent Koontz did not do any investigation before executing the warrant (TR. 25).
When the agents executed the search warrant, they initially removed the occupants from the home, with the exception of one bedridden individual, and then reentered to search the home (TR. 7-8). The occupants included the defendant, a caretaker, and an elderly couple (TR. 8). Agent Koontz advised the occupants that the agents had a search warrant for the home as part of a child pornography investigation and then turned her focus to the defendant (TR. 9, 36, 44). Agents Koontz and Lamey focused on the defendant because he was the youngest and most likely person to have accessed the TOR network (TR. 9, 36). Agent Koontz doubted the elderly couple or the caretaker were accessing the TOR network (TR. 9).
After Agent Koontz made contact with the defendant, who at that time was on the porch with Hollywood police officers assisting with the search warrant execution, she asked whether he would be willing to accompany Agents Koontz and Lamey into the home to talk (TR. 10). Agent Koontz did not remember whether the defendant was handcuffed (TR. 27-28). While on the porch, Agent Koontz advised the defendant he was not under arrest, he was under no obligation to speak with the agents, and he did not have to stay (TR. 9-10). After agreeing to speak with the agents, the defendant and the agents entered the home and went to a back bedroom (TR. 11, 30). Agent Koontz brought three chairs into the bedroom and closed the bedroom door for privacy (TR. 11-12, 30). The three chairs were in a line with Agent Koontz, as the lead interviewer, inthe middle with the defendant to her left and Agent Lamey to the right (TR. 11-12). Agents Koontz and Lamey were the only agents in the bedroom with the defendant (TR. 41-42). There were approximately seven other individuals in the home executing the search warrant (TR. 41-42).
Prior to the interview, Agent Koontz used an advice of rights form to advise the defendant of his rights (TR. 12, 33; Ex. 1). Agent Koontz read each right to the defendant, asked if he understood his rights, and asked if he was willing to waive those rights and speak with the agents without a lawyer present (TR. 12-14, 33). The defendant said he was willing to speak with the agents and signed the advice of rights form (TR. 14, 34-35, Ex. 1). Although Agent Koontz recorded the interview, due to an oversight she did not record the advisement of Miranda rights (TR. 12-13, 33-35). Agent Koontz explained the oversight occurred because FBI policy did not permit her to record interviews; however, she recorded the interview with the defendant at the Department of Justice's request (TR. 12-13, 33-35).
Agent Koontz testified the defendant's demeanor on the porch and in the bedroom was very cooperative, he appeared to understand her questions, and his answers were responsive throughout the questioning (TR. 15-17). The defendant did not make any complaint to the agents about any illnesses and Agent Koontz did not detect the scent of alcohol from the defendant (TR. 15-16). Agent Koontz testified she had no reason through the course of the interview to question the defendant's ability to waive his rights (TR. 16-17). Agent Koontz testified the recording of the interview is a true and accurate depiction of everything that occurred during the interview (TR. 17). The interview lasted approximately 68 to 70 minutes (TR. 17). Agent Koontz testified she did not use any deceptive tactics in order to elicit the defendant's answers and honestly answered the defendant's questions (TR. 17-18).
At some point during the agents' contact with the defendant, he sought permission to go to the bathroom (TR. 19-22, 36-37). Agent Koontz said he could go, but a male agent would go with him and stand outside the door while the defendant used the bathroom (TR. 19-20). The escort was for officer safety (TR. 20). An agent eventually escorted the defendant to the bathroom (TR. 37). Agent Koontz agreed the defendant did not have unrestricted movement around the home (TR. 42). AgentKoontz testified up until the point she established the defendant was the individual accessing the TOR network with the IP address, the defendant was free to leave (TR. 20).
In the middle of the interview, the defendant asked whether he was under arrest (TR. 39). Agent Koontz informed the defendant he was a suspect of a John Doe arrest warrant but he was not under arrest because he denied any involvement with child pornography and the agents had not yet connected the defendant, the IP address, and the TOR network (TR. 39-40).
After Agent Koontz finished questioning the defendant, she stopped the recording and waited in the bedroom with the defendant while the other agents finished searching the home (TR. 22). The defendant continued talking about the "Onion Router" and stated he was able to find a route to child pornography (TR. 22). At that time, Agent Koontz knew the defendant accessed the TOR network and he was no longer free to leave, although he was not yet under arrest (TR. 22). Thereafter, Agent Koontz called an Assistant United States Attorney, confirmed there was enough information to execute the John Doe arrest warrant, and arrested the defendant (TR. 22-23, 42).
The defendant testified that on April 8, 2013, he heard a hard knock on the door of his residence and after he answered the door, he was pulled outside, handcuffed, and placed in a chair on the front porch (TR. 48, 54). After fifteen to twenty minutes, the defendant was unhandcuffed and led to a back bedroom (TR. 49). The defendant testified he did not feel free to leave and he felt uncomfortable, but he was not threatened by the agents and the agents did not force him to speak (TR. 49, 56-57). The defendant testified he did not know why the agents were at the home and he did not remember being read his rights before the interview (TR. 49). The defendant admitted the signature on the advice of rights form looks like his signature, but the form was not presented until the end of the interview (TR. 52-53, Ex. 1). The defendant agreed the interview with Agent Koontz was conversational and voices were not raised (TR. 53-54). The defendant testified he had not been drinking on April 8, 2013, and he never told the agents he took any medication although he took a Xanax before going to bed and other medication for a diffused spine (TR. 59-60).
At the conclusion of the hearing, the court found and credited Agent Koontz's testimony the defendant was advised of his Miranda rights prior to the interview (TR. 74). The court also found the defendant's statements were voluntary (TR. 75).
The defendant argues the court should suppress his statements made during the April 8, 2013, interview because he was subjected to a custodial interrogation without being advised of his Miranda rights. See Filing No. 165 - Brief; TR. 62-69, 71-73.
It is well settled that a law enforcement official is required to advise an individual of his or her Miranda rights before questioning if that individual is in custody. United States v. Williams, 760 F.3d 811, 814 (8th Cir. 2014). "The ultimate question in determining whether a person is in 'custody' for purposes of Miranda is whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Williams, 760 F.3d at 814 (internal quotation marks omitted). Whether an individual was in custody is an objective inquiry and a court considers the totality of the circumstances...
To continue reading
Request your trial