United States District Court, N.D. Iowa, Central Division
REPORT AND RECOMMENDATION ON DEFENDANT'S MOTION
A. ROBERTS, UNITED STATES MAGISTRATE JUDGE.
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.)
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.
following reasons, I respectfully recommend that the Court
deny Defendant's Motion to Suppress.
SUMMARY OF THE EVIDENCE
The Arrest Warrant
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.)
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.
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.” (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.
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
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.
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.
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.
The Parties' Arguments
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.)
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.)
Defendant's Sixth Amendment rights had not attached on
November 2, 2018.
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