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United States v. McKany

United States District Court, Ninth Circuit

December 4, 2013

UNITED STATES OF AMERICA, Plaintiff,
v.
ROBERT KHETHER McKANY, Defendant.

ORDER

WILLIAM Q. HAYES, District Judge.

The matters before the Court are: 1) Defendant's motion to suppress statements (ECF No. 15); and 2) Defendant's motion to suppress evidence (ECF No. 16). Defendant's motion to suppress statements (ECF No. 15)

On October 27, 2011, Homeland Security Investigations (HSI) Agent Sherman Wooden applied for and received a federal warrant to search Defendant's residence at 1266 Sumner Avenue, Apartment B, El Cajon, California for evidence, contraband, and property relating to child pornography. (ECF No. 25-8).

On November 2, 2011, a group of fourteen HSI agents executed the search warrant at the residence. At approximately 6:30 a.m., HSI agents made contact with Kether McKany, Defendant's father, as he left the residence on his way to work. Agents asked Kether McKany to open the door and he replied that the door was unlocked. An agent began to search Kether McKany's car and told him to wait in the garage. Kether McKany was interviewed in the garage by agents for approximately fifteen minutes. Kether McKany then left the residence for work.

During Kether McKany's interview, the agents entered the residence through the garage and made their way upstairs to Defendant's bedroom. Agents wore tactical vests with service weapons drawn. It is standard procedure for HSI agents to wear tactical vests and draw service weapons for the safety of the agents when initiating the execution of a search warrant. In this case, agents were aware that Defendant possessed multiple firearms.

When the agents reached Defendant's bedroom they discovered the door was locked. Agents knocked on the bedroom door and identified themselves as law enforcement agents. Defendant opened the bedroom door dressed in boxer briefs. Defendant was removed from his bedroom and handcuffed. Agents picked up a pair of jeans and held them for Defendant to step into.

Defendant was seated on a couch in the living room area of the residence while agents completed the initial security sweep. After agents finished the security sweep, the agents removed their tactical vests and holstered their service weapons. The security sweep lasted approximately fifteen minutes.

After the completion of the security sweep, Agent Wooden, the lead agent, came into the living room and removed Defendant's handcuffs. Agent Wooden was wearing a concealed recording device and the entirety of his interactions with Defendant were recorded. Defendant initially asked the agent, "Can I get some pictures for my Facebook?" and remarked, "Sorry, I couldn't resist." (ECF No. 32-1 at 2). Agents provided Defendant with a shirt and sandals. Agent Wooden gave Defendant the search warrant and an opportunity to read the warrant. Defendant asked to go to the bathroom and stated, "I don't care if it's outside on the grass, if everybody has to watch me, I don't give a shit, I just need to pee." Id. at 3. A male agent escorted Defendant to the bathroom in his father's bedroom and remained present outside the open door while Defendant urinated.

Agents Wooden and Myers arranged three chairs in the father's bedroom and sat down with Defendant while other agents conducted the search. Both agents had removed their tactical vests, and their service weapons were holstered and concealed underneath their shirts. Defendant was seated closest to the door and the agents were seated across from him. No agent was seated between Defendant and the door. Agent Wooden identified himself and Agent Myers. Agent Wooden gave Defendant a copy of the search warrant, and stated, "[T]here's [] probable cause that there's child pornography in the house." Id. at 5. Agent Wooden then asked Defendant for biographical information including his name, address, date of birth, and occupation. Agent Myers closed the bedroom door. After completing biographical information, Agent Wooden repeated that they had a warrant to search the residence.

Agent Wooden: Alright, like I said, search warrant, this is your copy, [] so you can do whatever you want [] with it. Probable cause-child pornography in the house. [] I would like to talk to you a little bit about what's going on. You're not under arrest, nobody, your father's not under arrest. You can leave whenever you want to, like I say, we have a few questions, things we want to clear up. I appreciate it, we appreciate it if you'd want to talk to us, but like I say, you don't have to. If you decide to answer questions, great. At any point in time you can say hey I don't want to answer this question' or you know, I don't want to talk any more' or whatever and then the interview will be over. Like I said, you're not under arrest but we just wanted to, you know, some discrepancies in our case, we just wanted to figure out what's going on.
Defendant: Ok.
Agent Wooden: Ok so, are you ok to talk to us?
Defendant: Well, it's let's... like what's going on? Like, am I in some sort of trouble? I mean, what's...
Agent Wooden: So, I mean, I want to make sure, is that[], are you okay to talk to us? Is that a yes? Just so...
Defendant: I'll talk to you a little bit.
Agent Wooden: Ok.
Defendant: Let's... I've never had anything like this happen before... Agent Wooden: No, yeah.
Defendant: I've never done anything really wrong... I've never had the house raided. I've never been arrested. I've, the only crime I've ever committed and still commit, is I speed.
Agent Wooden: No, no speeding, we're all guilty of that at some point in time. []Ok, so, I'll start off, I appreciate you talking to us. Basically[] there is an internal investigation that we conducted and that [] discovered that there was, [] trading of child pornography on telenetwork and coming out of for different residences or whatever, [] and one of the residences was [] this one.

Id. at 9-10. Agent Wooden questioned Defendant regarding his involvement in child pornography on his computer. Defendant responded to questioning. Defendant did not request to stop the questioning at any point during the interview. The audio recording of the interview indicates that Defendant answered the questions without hesitation. Agent Wooden did not inform Defendant of his Miranda rights[1] during the interview. The questioning began at 6:52 a.m. and ended at 7:48 a.m.

At the conclusion of the interview, Agent Wooden explained that the HSI agents were going to finish the search of the residence, seize any and all electronic items, and provide Defendant with a list of the items seized. Agent Wooden told Defendant that he anticipated the search would be completed within an hour. Agent Wooden asked Defendant if he had any additional questions and told Defendant that he was free to leave the residence. Defendant asked if he could make breakfast for himself in the kitchen during the search. Agent Wooden stated that Defendant would have to stay in a single location with an agent if he chose to remain at the residence for officer safety reasons. After the interview, agents took Defendant downstairs to sit on a couch in the garage.

Contentions of Parties

Defendant moves the Court to suppress his statements made at the time of the search. Defendant contends that he was in custody for purposes of Miranda based upon the police dominated environment. Defendant asserts that "the agents controlled his movements, his access to communication, and the physical setting of the interrogation." (ECF No. 15-1 at 7). Defendant contends that the agents' failure to give Defendant Miranda warnings before the interrogation violated Defendant's Fifth Amendment rights and that Defendant's statements must be suppressed.

The Government contends that the consensual, non-custodial interview did not require Miranda warnings. The Government asserts that Agent Wooden told Defendant that he was not under arrest, that Defendant did not have to talk to the agents, and that Defendant was free to leave whenever he wanted. The Government asserts that the physical surroundings and the agents' actions show that the in-home interview was non-custodial and that Miranda warnings were not required.

Applicable Law

The Fifth Amendment provides that "[n]o person... shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law." U.S. CONST. amend. V. In Miranda v. Arizona, 384 U.S. 436 (1969), the Supreme Court held that law enforcement officers must advise a suspect of his or her Fifth Amendment rights prior to an interrogation when a suspect is "in custody." Id. at 444-445. "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. at 444. Such a deprivation of freedom occurs when "a suspect's freedom of action is curtailed to a degree associated with formal arrest." Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (internal quotation marks and citation omitted). To determine whether a suspect has been "deprived of his freedom of action in any significant way[, ]" and thus is in custody, the Court must examine the totality of the circumstances surrounding the interrogation. Miranda, 384 U.S. at 444; see also Thompson v. Keohane, 516 U.S. 99, 112 (1995) (the determination of whether a suspect is "in custody" is a discrete inquiry into the circumstances surrounding the interrogation). The analysis of the circumstances of the interrogation is an objective one, "and is not based upon the subjective views of the officers or the individual being questioned." United States v. Bassignani, 575 F.3d 879, 883 (9th Cir. 2009) (internal quotation marks and citation omitted).

In United States v. Craighead, 539 F.3d 1073 (9th Cir. 2008), the Court of Appeals for the Ninth Circuit adopted an "approach of using the police-dominated atmosphere' as the benchmark for custodial interrogation in locations outside of the police station [a]s consistent with the Supreme Court's adaptations of Miranda to these types of locations." Id. at 1083. In determining whether a suspect was in custody, the Court of Appeals noted that "we first examine the totality of the circumstances surrounding the interrogation. We then ask whether a reasonable person in those circumstances would have felt he or she was not at liberty to terminate the interrogation and leave." Id. at 1082 (internal quotation marks and citations omitted). In Craighead, eight law enforcement officers, representing three different agencies, executed a search warrant of the defendant's home for child pornography. Id. at 1078. Some of the agents continued to wear flak jackets after the initial sweep of the residence and a few had their firearms unholstered in the defendant's presence. Id. The agents asked to talk with the defendant and told the defendant that he was not under arrest, that he was free to leave, and that any statement he made would be voluntary. Id. The interview occurred in a small and cluttered storage room in the back of the defendant's residence. Id. A detective present in the storage room during the interview was dressed in a ...


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