United States District Court, D. Nebraska
FINDINGS, RECOMMENDATION, AND ORDER
CHERYL R. ZWART, Magistrate Judge.
The defendant has moved to suppress all evidence and statements obtained by law enforcement officers from the defendant or his cellphone on September 18, 2013, along with the fruit of that evidence. (Filing No. 31). Defendant argues all statements he made "during the custodial interrogation and all evidence obtained from the warrantless search of his cellphone, as well as any and all evidence derived from the statements and warrantless search" were "obtained as a direct result of violations of the defendant's constitutional rights...." (Filing No. 31, at CM/ECF p. 2).
The defendant claims he was unlawfully detained and his cellphone was searched without a warrant or his consent. The government argues that Defendant's rights were not violated, and even if Defendant was unlawfully detained, Defendant's consent to the search of his cellphone purged the taint of that detention. Upon review of the credible evidence, and for the reasons discussed below, Defendant's motion to suppress should be denied.
STATEMENT OF FACTS
Prompted by a cyber tip received from Tagged.com, (a social networking and dating website, (Filing No. 49, at CM/ECF p. 113, Ex. 1)), in August of 2013, the Nebraska State Patrol (NSP) initiated an investigation to determine whether Defendant was engaged in crimes involving child pornography. As explained in the warrant application prepared by NSP Investigator Corey Townsend:
On July 24, 2013, Tagged.com reported a February 2013 incident of child pornography to the National Center for Missing and Exploited Children (NCMEC). NCMEC forwarded that report to NSP on August 9, 2013.
In response to NSP's investigation, Tagged.com provided records of a sexually explicit email conversation which also referenced the exchange of nude photographs between a 13-year-old user from Lincoln, Nebraska named "Kenzie Garden" and a 16-year-old user from Huron, Tennessee named "Jill Funny." According to the Tagged.com information, the user identified as Kenzie Garden was using the email address, email@example.com.
NSP was unable to find anyone named Kenzie Garden in Lincoln, Nebraska. But according to records received from Time Warner Cable, the IP address the Tagged.com user identified as "Kenzie Garden" was issued to Defendant Alex Garden at his residence, 7146 Kearney Avenue, Lincoln, Nebraska.
Defendant Alex Garden has a criminal history of sex-related offenses.
Ex. 1. In addition to the information outlined in the warrant application, the cyber tip from Tagged.com included the photograph of a young woman, clothed and standing in front of a mirror. (Filing No. 49, at CM/ECF pp. 103, 105).
Based on the information collected, NSP suspected Kenzie Garden did not exist, that no 13-year-old lived at 7146 Kearney Avenue, Lincoln, Nebraska, and that the occupant of that residence, Defendant Garden, was using a fictitious account and posing as a juvenile female to engage in criminal activity involving child pornography. (Filing No. 49, at CM/ECF pp. 83-87). To further the NSP investigation, early on the morning of September 18, 2013, Investigator Townsend submitted his application to Lancaster County District Court Judge Jodi Nelson requesting a warrant to search Defendant's residence. (Filing No. 49, at CM/ECF pp. 67, 69, Exs. 1 & 2). Judge Nelson granted the application and signed the search warrant. (Filing No. 49, at CM/ECF p. 69).
Shortly after the warrant was issued, NSP Sergeants Brian Jones and Eric Jones, and Investigators Townsend and David Hanselmann met at the NSP criminal investigations office for a briefing by NSP Investigator Drew Ferguson on how the warrant would be executed. (Filing No. 49, at CM/ECF pp. 18-19, 69, 130). As conveyed during the briefing, the officers were aware that Defendant worked for Midwest Refuse as a garbage collector and would likely be at work when the officers arrived at the house to execute the warrant. Since Defendant was mobile during his work day, and knowing Defendant possessed a permit to conceal and carry a firearm, (Filing No. 49, at CM/ECF pp. 12, 35, 71), the officers were concerned that Defendant would arrive at the house unannounced during the search-which posed a risk of misunderstanding or surprise and concerns for officer safety. In addition, the officers were concerned that if the defendant became aware that his house was being searched (for example, through a call from a neighbor), then Defendant could destroy evidence using remote access and cloud storage technology. (Filing No. 49, at CM/ECF pp. 49, 53, 70, 135). Sergeant Ferguson assigned two officers, Sergeant Brian Jones and Investigator Hanselmann, to contact the defendant at his place of employment and detain him while the search was conducted. (Filing No. 49, at CM/ECF pp. 5, 19, 48, 69, 87, 130).
Investigator Townsend, Sergeant Eric Jones, and Sergeant Ferguson went to the defendant's home to execute the warrant, with Sergeant Eric Jones assigned as the evidence officer. (Filing No. 49, at CM/ECF pp. 69, 87, 114). Since they suspected the defendant possessed child pornography, all the officers were interested in locating and securing Defendant's cellphone as possible evidence. (Filing No. 49, at CM/ECF pp. 24-25).
Investigator Townsend and Sergeants Eric Jones and Ferguson began executing the search warrant at the residence at 10:15 a.m. (Filing No. 49, at CM/ECF p. 109). At the same time, Sergeant Brian Jones and Investigator Hanselmann arrived at Midwest Refuse, wearing street clothes, displaying their badges, and driving an unmarked Ford Escape. (Filing No. 49, at CM/ECF pp. 5, 38). After identifying themselves, they asked the manager to contact the defendant, stating they needed to speak with Defendant as soon as possible. (Filing No. 49, at CM/ECF pp. 7, 21, 50). The manager contacted the defendant. Before he received this call, a neighbor had notified the defendant that law enforcement officers were at the defendant's home and had handcuffed and removed his girlfriend from the residence. Upon receiving the call from his manager, Garden knew something was happening at his house. (Ex. 3, (DS340353), 50:40-51:00). Garden arrived at the Midwest Refuse office approximately 15 to 20 minutes later driving a large garbage truck. (Filing No. 49, at CM/ECF p. 7).
When Defendant exited the garbage truck, the officers left the lobby of Midwest Refuse and met the defendant in the business' parking lot. (Filing No. 49, at CM/ECF pp. 8, 52). The officers identified themselves as state troopers and explained that Defendant's house was currently being searched pursuant to a warrant. They explained they did not want the defendant to arrive at the house, unannounced, during that search. (Filing No. 49, at CM/ECF pp. 38, 52). The officers advised the defendant he was being detained as part of an ongoing investigation, and they handed him a copy of the search warrant for his review. (Filing No. 49, at CM/ECF pp. 9, 23). After the defendant reviewed the warrant, Sergeant Brian Jones asked the defendant if he was willing to go to Defendant's house. Defendant agreed to do so. (Filing No. 49, at CM/ECF pp. 10, 39). Sergeant Jones advised the defendant he would be transported to the home in the officer's vehicle. The defendant was handcuffed to limit his access to any concealed weapon. He was then pat-searched to look for weapons and in preparation for transport. (Filing No. 49, at CM/ECF pp. 11-12, 23, 62). The defendant was again advised he was being detained, but he was not under arrest. (Filing No. 49, at CM/ECF pp. 17, 39). Since the defendant was being transported in an unmarked vehicle with no cage, he needed to remain handcuffed for officer and public safety. (Filing No. 49, at CM/ECF pp. 5, 53, 54, 63-64). The defendant was so advised, (Filing No. 49, at CM/ECF pp. 39-40, 43), and did not object to remaining handcuffed while in the vehicle. (Filing No. 49, at CM/ECF p. 43).
Officer Hanselmann asked the defendant if there was anything in the truck Defendant needed to retrieve before they left the Midwest Refuse location. (Filing No. 49, at CM/ECF pp. 13, 40). The defendant stated he had a wallet, keys, and a cellphone in the truck. Since the officers did not know whether the defendant had a weapon in the truck, or whether he would conceal evidence if given access to the truck, the defendant was not permitted to go to the truck himself and collect his personal items. (Filing No. 49, at CM/ECF pp. 27, 35). Instead, Officer Hanselmann asked the defendant for consent to retrieve the wallet, keys, and cellphone from the truck. Defendant consented with no equivocation or objection. (Filing No. 49, at CM/ECF pp. 13, 25, 41-42, 55).
As Officer Hanselmann went to the garbage truck and gathered Defendant's cellphone, keys and wallet, Sergeant Brian Jones placed the defendant, still in handcuffs, in the front passenger seat of the Ford Escape. Sergeant Brian Jones drove. (Filing No. 49, at CM/ECF p. 14). Officer Hanselmann, who was seated in the rear passenger area behind the defendant, retained possession of Defendant's cellphone, keys and wallet, (Filing No. 49, at CM/ECF pp. 29, 26, 33, 42, 59). He did not search any of these items. (Filing No. 49, at CM/ECF p. 46). The officers did not advise the defendant of his Miranda rights prior to or during Defendant's transport to his home. (Filing No. 49, at CM/ECF pp. 34, 45). No questions were asked by either of the officers or by the defendant after Defendant was handcuffed and during transport. (Filing No. 49, at CM/ECF pp. 15, 42).
Sergeant Brian Jones, Officer Hanselmann, and the defendant arrived at the defendant's house at approximately 11:05 a.m. During the entire encounter between these officers and the defendant in the parking lot, and until they arrived at Defendant's house, Defendant was calm, cooperative, and appeared to understand the officers' statements. He did not appear to be under the influence of drugs or alcohol. The defendant was not threatened, and no weapons were brandished. The officers did not lie to him or misrepresent the facts to elicit Defendant's cooperation. The defendant never requested an attorney, or the opportunity to speak with his father who is an attorney. (Filing No. 49, at CM/ECF pp. 11-12, 16-17, 39, 42-43, 46).
Upon arriving at Defendant's house, Sergeant Brian Jones, Investigator Hanselmann, and the defendant were met at the front of the house by Investigator Townsend, and Sergeants Eric Jones and Ferguson. (Filing No. 49, at CM/ECF pp. 17, 30, 44). Investigator Hanselmann placed the defendant's cellphone, wallet and keys on the hood of the Ford Escape, (Filing No. 49, at CM/ECF p. 60), and Sergeant Eric Jones took possession of these items. (Filing No. 49, at CM/ECF pp. 44, 109). When the defendant exited the Ford Escape, his handcuffs were removed. (Filing No. 49, at CM/ECF pp. 60, 130-31).
Investigator Townsend and Sergeant Ferguson introduced themselves to the defendant. The defendant was then seated in the front passenger area of Sergeant Ferguson's vehicle. Investigator Townsend sat in the driver's seat and Sergeant Ferguson sat in the rear seat behind the defendant. (Filing No. 49, at CM/ECF pp. 72, 131). Investigator Townsend used a small recorder to audio record the communications with the defendant. (Filing No. 49, at CM/ECF p. 73, Ex. 3)
The interview began at 11:17 a.m. At the outset, Investigator Townsend notified the defendant that the officers had received information indicating the defendant possessed child pornography. The officer then advised of the defendant of his Miranda rights. (Filing No. 49, at CM/ECF pp. 13, 74, Ex. 3 (DS340353), at 00:01-00:37). Investigator Townsend asked the defendant if he was willing to talk with the officers. The defendant commented that he had done nothing wrong and was willing to make a statement. (Filing No. 49, at CM/ECF p. 75, Ex. 3 (DS340353), at 00:37-01:04). During the course of the interview, ...