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United States v. Vogelpohl

United States District Court, N.D. Iowa, Central Division

June 17, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DAVID VOGELPOHL, Defendant.

          REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION TO SUPPRESS

          MARK A. ROBERTS, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         The matter now before me is Defendant's Motion to Suppress Evidence. (Doc. 28.) October 25, 2018, Defendant was charged by the Iowa Department of Public Safety with Harboring a Runaway Child Against Wishes of Parent. (Def. Ex. A.) On November 28, 2018, a Federal Grand Jury indicted Defendant with Sexual Exploitation of a Child. (Doc. 2.)

         The Honorable Charles J. Williams, United States District Court Judge, referred this motion to me for a Report and Recommendation. On May 2, 2019, I held an evidentiary hearing on Defendant's motion. Neither party offered testimony. Counsel for both Defendant and the Government presented oral arguments. Government's Exhibit 1 and Defendant's Exhibits A and B were offered and received.

         For the following reasons, I respectfully recommend that the Court deny Defendant's Motion to Suppress.

         II. SUMMARY OF THE EVIDENCE

         A. The Arrest Warrant

         On November 1, 2018, North Platte, Nebraska Police Investigator John Deal received a request from the Iowa Department of Public Safety to interview Defendant. North Platte officials had arrested Defendant and were preparing to extradite him pursuant to the October 25, 2018 Iowa arrest warrant for Harboring a Runaway Against Wishes of Parent. (Def. Ex. A.) Officer Deal videotaped his approximately 90-minute interview with Defendant, the first three minutes of which are relevant to disposition of this motion. (Gov. Ex. 1.)

         B. The Interview

         Investigator Deal interviewed Defendant on November 2, 2018 in an interrogation room at the North Platte Police Station. Defendant was in handcuffs in an apparently locked interview room, but was otherwise not restrained.

         Investigator Deal introduced himself to Defendant and stated, “Obviously, you're not in custody for anything you did here in North Platte” and “you're not in trouble here.” (Id. at 11:53:06.) Investigator Deal stated that Iowa investigators requested he talk to Defendant, but that, “Obviously, [he didn't] know what [was] going on in Iowa.” (Id. at 11:53:48.) Defendant volunteered that the paperwork stated he was charged in Iowa with “harboring a runaway.” (Id. at 11:53:53.) Investigator Deal confirmed “that's what the warrant was for, and it looks like there's like a $5, 000 bond, so I can't imagine it's some real high-level felony, from what I can understand.”[1] (Id. at 11:54.) Investigator Deal stated, “I wanted to chat with you about what's been going on the last few weeks if you're willing to talk with me.” (Id. at 11:54:09.) Defendant stated that three weeks earlier, he had been in Southern Missouri. (Id. at 11:54:21.) At that point, Investigator Deal told Defendant he was going to read Defendant his Miranda rights before questioning him, and the following exchange occurred.[2]

Investigator Deal: . . . So, since I'm gonna ask you a question, I'm gonna read ‘em to you. So-
Defendant: Personally, I would like an attorney, though, I would.
Investigator Deal: Okay, you want an attorney?
Defendant: I would like an attorney.
Investigator Deal: Okay, okay. I [inaudible]
Defendant: I can talk right now, but I would like an attorney, though, regardless.[3]
Investigator Deal: Here's the thing, though, if you request an attorney, I can't talk with you today. I just can't. Defendant: Well. . .
Investigator Deal: I'd like to talk with you, but again, it's your right to have that attorney, but if you want to talk with me today, you're more than welcome to, but . . . .
Defendant: I'm going to talk. I mean, I can't really request an actual attorney until I get to fuckin' Iowa, but . . . .
Investigator Deal: That's not true. You are here. You are allowed an attorney.
Defendant: Temporary.
Investigator Deal: But you are allowed an attorney, so if you want to speak with one before talking with me, that's your right, but I can't talk with you unless . . . .
Defendant: I don't want to speak with one right now. I want to wait 'til Iowa to speak with one.
Investigator Deal: Okay, well, let me read you these, and after I read 'em to you, you can decide what you want to do, okay? Defendant: Okay.

(Gov. Ex. 1 at 11:54:39-11:55:26) (ellipses represent cut off or trailing sentences, not omitted words.) Investigator Deal then read Defendant his Miranda rights. (Id. at 11:55:27.) Defendant stated that he understood his Miranda rights. (Id. at 11:55:45.) Investigator Deal asked, “Are you willing to speak with me today?” (Id. at 11:55:48.) Defendant answered, “Yeah, I've done nothing wrong.” (Id. at 11:55:52.) Investigator Deal and Defendant talked for approximately one hour.

         III. ANALYSIS

         A. The Parties' Arguments

         Defendant argues that all statements made to Investigator Deal and any evidence derived as a result of that interview must be suppressed because it violated his Fifth and Sixth Amendment rights to counsel. Defendant argues that his Sixth Amendment right to counsel attached when the Iowa complaint and arrest warrant were filed on October 25, 2018 because the federal indictment filed on November 28, 2018 was based on the same facts and circumstances as the state charge and because he invoked his right to counsel. (Doc. 28-1 at 4-5) (citing Def. Ex. B.) Defendant also argues that the interview violated his Fifth Amendment right to counsel when Defendant was “clearly confused and known to have mental health deficiencies.” (Id. at 7) (emphasis omitted.)

         The Government responds that Defendant's Sixth Amendment rights had not attached at the time of the interview because he was not yet indicted on the federal charge. Moreover, the Government asserts the elements of the Iowa crime are different from the elements of the federal charge. (Doc. 42 at 4-5; May 2, 2019 Oral Arg.) The Government also argues that Defendant voluntarily waived his Miranda rights during the interview and therefore his Fifth Amendment rights were not violated. (Id. at 10.)

         B. Defendant's Sixth Amendment rights had not attached on November 2, 2018.

         Defendant argues that his Sixth Amendment right to counsel had attached on November 2, 2018 because Harboring a Runaway Child Against Wishes of Parent is based on the same “facts and circumstances” as his current federal charge for Sexual Exploitation of a Child. (Doc. 28-1 at 5.) For support, Defendant cites Defense Exhibit B, a motion to dismiss his Iowa state charge filed by the Cerra Gordo County Attorney because “the State [had] been advised that the Defendant has been indicted in Federal Court to charges upon the same facts and circumstances in State Court.” (Id. at 4-5) (quoting Def. Ex. B) (emphasis in original).) Defendant further asserts that federal authorities; Iowa authorities; and Nebraska authorities, specifically Investigator Deal, “were collaborating in gathering evidence” that resulted in ...


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