United States District Court, D. Nebraska
MEMORANDUM AND ORDER
M. Gerrard Chief United States District Judge.
matter is before the Court on the government's motion for
reconsideration (filing 45) of this Court's
Memorandum and Order of July 1, 2019 (filing 44), in
which this Court did not adopt the Magistrate Judge's
Findings, Recommendation and Order (filing 35), but
instead, granted the defendant's motion (filing
24) to suppress his statements and the evidence
resulting from the search and seizure of his phone. The Court
will deny the government's motion for reconsideration
(filing 45) for the reasons that follow.
context, the background reported by the Court in the
Memorandum and Order of July 1 (filing 44 at 1-6)
will be repeated below.
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's 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
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
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 interrupted him:
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
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 want
Ex. 1 at 1:48.
defendant then said, "I'd feel more comfortable with
a lawyer or at least my dad." Ex. 1 at 2:15. The
defendant was asked where his dad was, and he said in
Waverly. After another pause, the defendant repeated he would
feel more comfortable with somebody there to help him.
EILAND: I mean I know I would feel comfortable with somebody.
I mean, I totally want to help you guys and tell you my whole
side of the story and everything that happened, but I
don't feel comfortable because I don't wanna
self-incriminate myself and possibly go to jail or something
regarding a mistake.
HALLOCK: It's up to you. Do you want to read over that
and decide what you want to do.
ROBITAILLE: We've heard the other side of the story,
that's all we have ...