United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. GERRARD, CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the defendant's objection
(filing 37) to the Magistrate Judge's Findings,
Recommendation and Order (filing 35) that the defendant's
motion (filing 24) to suppress his statements and the
evidence resulting from the search and seizure of his phone
be denied. Pursuant to 28 U.S.C. § 636(b)(1), the Court
has conducted a de novo review of the motion to suppress, and
the evidence and testimony adduced at the hearing on the
motion. For the reasons stated below, the Court finds that
the statements made by the defendant on November 7, 2018, and
any evidence derived from the later seizure and search of his
cellphone, should be suppressed. Accordingly, the Court will
sustain the defendant's objection and grant his motion to
November 7, 2018, the defendant, 19-year-old Alec Eiland, was
living in an apartment near 70th and Adams Streets in
Lincoln. He was a recent graduate of Waverly High School.
That afternoon, the defendant was leaving his apartment after
taking his lunch break from his job at Russ' Market. He
got into his car and started it when he noticed someone
walking up from behind. Filing 36 at 69. The person came up
to his car, knocked on the window, and asked if he was Alec
Eiland. The defendant said yes. The person identified himself
as FBI Special Agent Brandon Day and asked the defendant to
step out of his car. Filing 36 at 69. Agent Day patted the
defendant down, took his cellphone and placed it on the
defendant's car, and told the defendant that he had to
hold him there until a couple of agents from Omaha arrived.
Filing 36 at 70. The defendant asked if he could use his
cellphone to call his employer to say he was going to be late
getting back to work. Agent Day said no, but Day used his own
cellphone to call the defendant's employer. Agent Day
handed his phone to the defendant, and told him to tell his
employer he was having car problems and would be a few
minutes late. Filing 36 at 71.
defendant estimated that he waited with Agent Day for 10 to
15 minutes before two more agents arrived. The defendant said
that he and Day engaged in small talk during the wait. When
Special Agents John Hallock and Jonathan Robitaille arrived,
they got out of their car with a recorder and asked the
defendant if they could ask him some questions. Filing 36 at
72. Before the recording started, the defendant was told that
it would help if he was cooperative, but if he was
uncooperative it would make the situation worse. Filing 36 at
72. At the suppression hearing, Agent Hallock could not
describe what was said before the recording started, but
agreed that there was some conversation, which he
characterized as "small talk of some sort." Filing
36 at 42. The recording itself indicates that before the
recording began, the agents told the defendant this was his
opportunity to tell his side of the story. Ex. 1 at 1:26.
recorded interview started with Agent Hallock reading
Miranda warnings to the defendant. Filing 36 at 9;
Ex. 1 at 0:27-1:16. Hallock then asked the defendant to sign
a waiver form, but the defendant balked and said, "All
right, so this is me signing without a lawyer?" Ex 1 at
1:16. Agent Hallock acknowledged that it was, and the
defendant replied, "So what if I want a lawyer?"
Ex. 1 at 1:21. Agent Hallock said, "That's up to
you." The defendant started to respond, "Well,
I'd feel more comfortable . ." but Hallock
HALLOCK: Remember what we-well, remember what we
talked-remember what we talked about . . .
HALLOCK: about, you know, getting a chance to tell your side
of the story today.
Ex. 1 at 1:26 The defendant told Agent Hallock he was
concerned that if he told his side of the story he would get
in trouble. Hallock told him it was hard to say what would
happen and that it would be up to the prosecutor. After five
seconds of silence, Agent Robitaille said, "Just your
opportunity to say your side of the story." Ex. 1 at
1:46. The defendant expressed his concern about incriminating
himself if he participated without a lawyer.
EILAND: Yeah, but I don't want to say anything
incriminating. I don't want to ruin my whole life because
of one mistake.
HALLOCK: I don't know if it will ruin your whole life.
You're a young man. You have no criminal history.
HALLOCK: Is that correct, or have you been in trouble?
HALLOCK: Again, read over that, and you decide what you ...