from the Iowa District Court for Des Moines County, Mark E.
defendant challenges his convictions for possession of a
visual depiction of a minor engaging in a prohibited sexual
B. Mears of Mears Law Office, Iowa City, for appellant.
J. Miller, Attorney General, and Tyler J. Buller, Assistant
Attorney General, for appellee.
by Danilson, C.J., McDonald, J., and Scott, S.J. [*]
Osborn was convicted of twenty-six counts of possession of a
visual depiction of a minor engaging in a prohibited sexual
act, in violation of Iowa Code section 728.12(3) (2014). The
district court ordered Osborn to serve an indeterminate term
of incarceration not to exceed six years. In this appeal,
Osborn challenges his convictions and sentences. In his first
claim of error, he argues the district court erred in denying
his motion to suppress his interview with police allegedly
obtained in violation of Miranda v. Arizona, 384
U.S. 436 (1966). At issue is whether the defendant was
"in custody" within the meaning of the
Miranda doctrine and whether the police were thus
required to administer the Miranda advisories prior
to interviewing him. In his second claim of error, Osborn
challenges the sufficiency of the evidence supporting his
convictions. In his third claim of error, he contends the
district court abused its discretion in imposing sentence.
2014, Bryan Martin of the Missouri Cyber Crime Task Force and
Internet Crimes Against Children Task Force conducted a
search for unlawful content on a peer-to-peer file sharing
network, ARES. Martin found six files containing visual
depictions of a minor engaging in a prohibited sexual act on
a computer in the network. The computer was associated with
an IP (Internet Protocol) address linked to a house in
Burlington. The house belonged to Carla Osborn, the
defendant's mother. Martin alerted the Burlington Police
Department to the potential child-exploitation offenses.
Burlington Police Department obtained a search warrant for
the house. The search warrant authorized the seizure of
computers, media storage devices, and anything else that
could obtain prohibited depictions. Detective Moret of the
Burlington Police Department and five other law enforcement
personnel executed the search warrant at the house. The
officers were in plain clothes. They arrived at the Osborn
residence at approximately ten o'clock in the morning and
knocked on the front door. Robert Osborn
("Robert"), the defendant's father, answered
the front door. One or two of the officers entered the front
room while the remainder stayed outside, primarly for
security reasons and because of the lack of space in the
small home. At the time the officers entered the residence,
Osborn was asleep. One of the officers asked Robert to wake
Osborn, and Robert did so. Osborn came into the front room
and spoke with the officers. Moret explained to the Osborns
that the police were executing a search warrant to obtain
items related to the possession of "child
pornography." She explained she wanted to interview them
at the police station.
parties dispute the exact language Moret used regarding the
interview. At the suppression hearing, Detective Moret
testified she asked Osborn if he was "willing" to
come to the police station for the interview. Moret testified
it was her standard practice to use this phrase. She
testified Osborn did not have to agree to an interview but he
did have to leave the residence while the police executed the
search warrant. Moret testified it was necessary to use the
police station for the interviews because Osborn's house
was too small to separate Robert and Osborn for
individualized interviews. She testified the Osborns stated
they were willing to be interviewed at the police station. In
contrast, at the suppression hearing, Osborn testified Moret
did not ask him to come to the police station for an
interview but rather told him he had to come to the police
station for an interview. Robert was more evasive than Osborn
when pressed on the issue during the suppression hearing, but
he ultimately conceded Moret may have used the word
"willing" when speaking with them.
some of the officers remained at the house to execute the
search warrant, Moret drove the Osborns in her unmarked car,
a regular sedan, to the police station for an interview. The
Osborns sat in the back of the car. They were not handcuffed.
The parties do not dispute Moret drove the Osborns to the
police station, but they do dispute the circumstances under
which Moret drove the Osborns to the police station. The
Osborns testified they wanted to drive Robert's van to
the station. Robert testified, "I said I can drive us
down there, and [Moret] said, no, we will take you down in
the police car." Osborn testified Moret did not give him
the choice to drive. In contrast, Moret testified Robert did
not want to drive to the police station because he was
feeling ill. According to Moret, Robert requested she drive
them to the station. Moret testified, "I told them that
I would be more than willing to bring them to the police
department and back to the house or anywhere else he wanted
to go at that point."
interviewed Osborn in a small room on the second floor of the
Burlington police station while another officer interviewed
Robert. The second floor was a secured floor. Moret had to
use her keycard to enter and exit the floor. Moret discussed
this directly with Osborn, stating, "It is a secure
floor, you saw me have to use my key, so I'd have to walk
you out, but whenever we're done, we're done.
Remember that, at any time." Throughout the course of
the interview, the interview room was unlocked. Osborn had
the freedom to leave the room at any time. At one point
during the interview, Moret left the room for a few minutes,
and Osborn walked out of the interview room to use the
restroom. He returned to the interview room on his own.
beginning of the interview, Moret repeatedly told Osborn he
had the right to terminate the interview and leave. Moret
began the interview by explaining:
You definitely have a choice as to whether or not you want to
talk to me, ok? I do have some questions for you. If you
don't want to answer any of them, or some of them, you
just let me know.
response, Osborn started to discuss his history of
downloading adult pornography. Moret stopped Osborn and
Before we get into any of that, though, I just, I want to
make sure you understand . . . you do not have to talk to me.
If at any time during this interview you decide you don't
want to talk to me anymore, you let me know and we're out
confirmed that he understood he could terminate the interview
at any time. At that point, Moret commenced with the
substance of the interview.
interview was investigatory in nature. Moret conducted the
interview alone. She was dressed in plain clothes and
unarmed. The video recording of the interview shows Moret sat
in front of a desk diagonally from Osborn, who sat adjacent
to the desk. Osborn had an unobstructed path to the door.
Moret was calm and asked, primarily, open-ended questions. At
one point during the interview, Osborn had a coughing spell.
Moret left Osborn alone in the interview room for several
minutes. The video shows Osborn vomited into a trash can in
her absence. When Moret returned to the room, Osborn told
Moret he was nervous. He did not request to discontinue the
interview. In total, the interview lasted approximately one
and one-half hours. During the interview, Osborn confessed to
viewing "child pornography" multiple times on his
conclusion of the interview, Osborn was not arrested.
Instead, officers drove him and his father back to their
residence. From there, the Osborns drove themselves to the
hospital to seek medical attention because they were not
Moret interviewed Osborn, the remaining officers completed
their search of the Osborns' residence. During the search
of the home, the officers seized a computer located in
Osborn's bedroom. Detective Schmitz of the Cedar Rapids
Police Department created a bit-for-bit forensic image of the
two hard drives contained in the computer. Schmitz conducted
a forensic analysis of the hard drives and found twenty-eight
video and image files depicting a minor engaging in a
prohibited sexual act. In addition, search history
information showed the computer's user searched for files
with the search term "PTHC," which is commonly
understood by persons who create, disseminate, and seek
depictions of minors engaging in prohibited sexual acts to
mean "preteen hard core."
State charged Osborn with twenty-eight counts of possession
of a visual depiction of a minor engaging in a prohibited
sexual act or simulation of a prohibited sexual act, in
violation of Iowa Code section 728.12(3). Before trial,
Osborn moved to suppress his interview with Moret on the
ground the interview was obtained in violation of his
Miranda rights. The district court found Moret more
credible on the disputed issues and denied the motion on the
ground Osborn was not in custody within the meaning of
Miranda doctrine. The matter was tried to the bench.
The State voluntarily dismissed two counts due to uncertainty
regarding the ages of the ...