The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge
ORDER GRANTING MOTION TO SUPPRESS STATEMENTS
Defendant Bradley John Dierking ("Defendant") moves to suppress statements, challenging the failure of law enforcement agents to provide Miranda advisements at any time during the February 8, 2008 interrogation at issue. The Government opposes the motion. Having carefully considered the moving papers, the record before the court, appropriate authorities, and the evidence submitted at the time of the evidentiary hearing, the court grants the motion to suppress statements.
On October 2, 2008 Defendant was indicted for Intentionally Causing Damage to a Protected Computer in violation of 18U.S.C.§1030(a)(5)(A)(I). The indictment alleges that Defendant was employed as the Lead Programmer for Geary Interactive from May 15, 2005 until April 30, 2007. Geary is an online advertising company whose largest client was Miraval Resort, a luxury resort in Arizona. As part of his responsibilities, Defendant had access to all of Geary's computer systems and databases. (Indictment ¶3). His responsibilities included designing and programming websites and data bases, including controlling access to "back-end databases through the assignment of usernames and passwords." Id. ¶4.
Defendant's employment with Geary terminated on April 30, 2007. He then went to work for Castle Advertising, an advertising partner with Geary in which Castle handled traditional advertising and Geary handled the online advertising for their shared clients, including Miraval. Between May 14, 2007 and June 13, 2007 Defendant allegedly accessed Geary's computer systems and defaced the online reservations page of the Miraval Resort website hosted by Geary. On June 7, Geary was notified by Miraval of an unauthorized change made to its reservations page. The reservations page read " [Geary's CEO] IS A HOMOSEXUAL" and its '[Strategic Planning Director] IS A STUPID FUCKING JEW." Miraval subsequently terminated its relationship with Geary.
The issues raised in the present motion concern the execution of a search warrant for the seizure of, among other things, computer related items at Defendant's apartment on February 21, 2008. On that date, at approximately 6:50 a.m., seven FBI Agents converged in "stack" formation outside the front door of the apartment wearing protective vests with firearms unholstered and a door-ram at the ready if needed. The agents knocked on the door of the apartment and announced their presence. Defendant came to the door within 30 seconds wearing only his underwear which consisted of boxer shorts and a T- shirt and appeared to have just awoken. Defendant was ordered to step out of his residence and away from the doorway while agents swept into the apartment. Defendant was detained outside his home by FBI Special Agent Todd Walbridge, the lead agent on this occasion, for approximately eight minutes. During that time Agent Walbridge testified that he told Defendant that the agents were there to search his residence, that he would explain more once they were in the apartment and that he would be free to leave during the search. After the agents completed the security sweep of Defendant's apartment and confirmed, among other things, that no one else was present in the apartment, Defendant was escorted into his kitchen and instructed to sit at the kitchen table. He was not permitted to enter his bedroom to secure clothing but he was provided with a pair of pants and some socks. Defendant asked for water which was then brought to him.
FBI Agents Walbridge and Johnson proceeded to ask Defendant if he would talk to them about their investigation. From the time Defendant had been detained outside his apartment until the agents requested to speak with him Defendant had repeatedly asked what was happening, "what's this about."
Defendant agreed to speak with agents Walbridge and Johnson who then proceeded to interrogate Defendant for approximately 70 minutes at the kitchen table while other agents searched the premises and seized property. At the beginning of the interview, Agent Johnson activated a concealed recording device and the entirety of the interview was recorded. Neither the recording nor transcript of the interview indicates that Defendant was ever provided with his Miranda advisements or informed he was free to leave.
It is undisputed that Miranda warnings were never administered to Defendant. The record clearly demonstrates that Defendant was interrogated by two exceptionally well trained and experienced agents with substantial knowledge concerning computer science and technology, including methods of gaining unauthorized computer access and inflicting damage to computer systems. By the end of the interrogation, Defendant had given a complete confession to the activities that would ultimately form the charge in this case. The agents even succeeded in extracting from Defendant his own suggestion as to what would be a fair and just punishment for his crime.
A review of the recording, and its transcription, reveals that Defendant repeatedly brought up the subject of speaking with an attorney or having an attorney present. In this regard, some of Defendant's statements were: (1) In response to statements by Agent Walbridge that any lie could result in criminal charges, Defendant asked whether he should have a lawyer. Agent Walbridge responded that he was not under arrest, the agents are just serving a search warrant, and that he was seeking from Defendant to discover "what happened" and the "human side" to the events. (TR at p.22: 4-19). (2) Upon further questioning regarding the computer hack and theft of trade secrets, Defendant responded that he was scared and thought he "should talk to somebody," presumably an attorney. (TR at p.23:3-18). (3) When asked if he was the individual who defaced the Miraval website, Defendant responded "I'm afraid I should talk to a lawyer, have a lawyer." (TR at p.24:3-23). The Agents responded that most people don't have an attorney, he's not being arrested, and whether or not Defendant has an attorney is up to him. (TR at p.23:20-23).
On the factual issue of whether Defendant was advised at any time that he was free to leave his apartment, the proceedings disclose the following: Agent Walbridge testified that he initially informed Defendant that he was free to leave when Defendant was standing outside his apartment in only his underwear, in the presence of armed FBI agents. Agent Walbridge, in explaining why he did not include in his Form 302 report that he had advised Defendant that he was free to leave, stated that he did not include such information because the "recording accurately portray[ed] everything that  happened that day]." (RT at p.22:6-7). At no time during what Agent Walbridge characterized as a two hour interview (the actual interrogation lasted about 70 minutes) did the agents tell Defendant he was free to leave.*fn1
With this factual backdrop, the importance of the question of whether Defendant was in custody at the time of his interrogation becomes readily apparent. Indeed resolution of this issue determines whether Defendant's statements may be used against him at the time of trial or whether the statements must be suppressed as a consequence of a Miranda violation.
Defendant contends that he was in custody for Miranda purposes when the agents interviewed him.*fn2 An individual is in custody for Miranda purposes when the suspect has been "deprived of his freedom of action in any significant way." United States v. Craighead, 539 F.3d 1073, 1082 (9th Cir. 2008) (quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)). Such a deprivation occurs when the "suspect's freedom of action is curtailed to a 'degree associated with formal arrest.'" Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (citation omitted). The analysis of the circumstances of the deprivation "is an objective one; [the court asks] whether 'a reasonable [person] in the suspects's position would have understood his situation . . . as the functional equivalent of formal arrest.'" United States v. Revels, 510 F.3d 1269, 1273 (10th Cir. 2007) (quoting Berkemer, 468 U.S. at 442). "Whether a suspect is in custody turns on whether there is a 'formal arrest or restraint on freedom movement of the degree associated with a ...