United States District Court, N.D. Iowa, Western Division
REPORT AND RECOMMENDATION
K.E. MAHONEY, UNITED STATES MAGISTRATE JUDGE.
Joshua Michael VanWaart moves to suppress statements he made
during a custodial interrogation (Docs. 31, 31-2), arguing
that he unambiguously invoked his right to counsel by
stating, “Well, I'd like to get my lawyer here so I
don't do something wrong.” He also argues that any
waiver under Miranda v. Arizona, 384 U.S. 436
(1966), was not voluntary because after officers read him his
rights, they said that talking to them “can't hurt
[him]” and suggested that by the time the court
appointed an attorney, it would be too late for him to
provide information to the officers that could constitute
substantial assistance. The United States (the Government)
resists the motion, arguing that VanWaart's request for
counsel was equivocal and his Miranda waiver
voluntary. Doc. 33. Because I find VanWaart unequivocally
invoked the right to counsel, I recommend
granting the motion to suppress (Doc. 31).
2017, the United States Attorney's Office sought to speak
with VanWaart as part of an ongoing federal drug
investigation, and the court appointed counsel to represent
VanWaart. Doc. 35 at 1-2. The United States Attorney's
Office sent a letter to VanWaart's counsel, proposing an
informal proffer session with VanWaart. Doc. 35 at 3-5.
Although a proffer session was scheduled, VanWaart ultimately
refused to provide any information. Doc. 35-1 at 3-4. I take
judicial notice that his appointed counsel's
representation was terminated shortly thereafter (Docket,
17-mj-142-KEM (N.D. Iowa)). See Fed. R. Evid. 201;
Hood v. United States, 152 F.2d 431, 433 (8th Cir.
1946) (holding that the trial court “could . . . take
judicial notice of its own records in the original case,
including the docket entries”).
federal grand jury indicted VanWaart in October 2017 on drug
and firearm charges, and a warrant issued for his arrest.
Docs. 2, 3. Shortly before midnight on November 14, 2017,
Sioux City, Iowa, police officer Dane Wagner (Officer Wagner)
arrested VanWaart as authorized by the federal warrant, as
well as other outstanding state warrants. He advised VanWaart
of his Miranda rights and phoned Drug Enforcement
Administration (DEA) task force officer Todd Peterson
(Officer Peterson) to advise him that VanWaart had been
arrested. Officer Wagner asked VanWaart if he was willing to
talk to DEA agents at the police station, and VanWaart
agreed. Officer Wagner took VanWaart to the police station
and left him to be interviewed.
was given a bottle of water while he waited in an interview
room. Around 2:00 a.m., Officer Peterson and two other drug
task force officers entered the room. An officer quickly re-read
VanWaart his Miranda rights and asked him if he
understood. He said, “yeah, ” and when asked a
second time, he nodded his head up and down. An officer told
VanWaart that he had been federally indicted stemming from
the same conduct they had tried to discuss during the
attempted proffer session. When VanWaart heard the mandatory
minimum for his charges, he became visibly upset. VanWaart
asked what proof existed, and the officer responded,
“if you don't want to talk to me and try to
cooperate”-to which VanWaart interjected, “I
do” -“then I'll just tell the U.S.
Attorney's Office, well, he wants to see everything we
got on him and his charges and everything before he wants to
help me.” He continued:
By the time you do that, you're going to go into United
States Marshals custody tomorrow, today. [Y]ou'll get a
court-appointed attorney this afternoon after your initial
appearance in federal court. So you'll get to see a
United States magistrate judge. They'll read you your
charges, your possible sentence, and your fine amount. Then
you'll get an attorney, and then you can tell your
attorney that you want to see all the discovery, and you can
see all the discovery. But by that time, the United States
attorney and us are done. . . . You'll get to see
everything. That's fine. I got no qualms with that.
That's your right.
brief discussion about VanWaart eluding law enforcement in
the past, the following exchange occurred:
Officer: You want to talk about it or what?
VanWaart: Can it help me?
Officer: Can't hurt you.
VanWaart: Can it help me? I gotta know that.
Officer: I'll tell you right now, you can't get a
promise-any . . . cop that promises you anything is a . . .
liar, right? There's two people that can promise you
anything. It's a United States attorney or an attorney
and a judge. All I can do is tell the United States attorney
that, yep, Josh admitted it; Josh told me the truth; he
cooperated fully. And in my experience-and I've been
doing this a long time-the U.S. attorney usually gives you
some benefit for that. I can't promise you shit. If
you're going to sit here and ask . . . me for some type