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United States v. Juan

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

September 9, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DIEGO FELIPE JUAN, Defendant.

          REPORT AND RECOMMENDATION

          Kelly K. E. Mahoney Chief United States Magistrate Judge

         Defendant Diego Felipe Juan moves to suppress statements he made during the execution of a search warrant for his residence and while being transported from state custody to his initial appearance in federal court, arguing that he was subject to custodial interrogation without being read his Miranda rights. Doc. 19. He also argues that the search warrant for his residence was not supported by probable cause and that the two-day delay in executing the search warrant requires suppression of the evidence seized under the warrant. Id.

         I held an evidentiary hearing on the motion to suppress on August 14, 2019, at which the following witnesses testified:

• Iowa Division of Criminal Investigation (DCI) Special Agent Jacob Burger; and
• Ernest Nino-Murcia, a certified Spanish interpreter who prepared the transcript constituting Government Exhibit 4.

         Doc. 28. I also admitted the following exhibits into evidence:

• Government Exhibit 1 (search warrant materials) (Doc. 27-1);
• Government Exhibit 2 (audio recording of the January 18, 2019 interview);
• Government Exhibit 3 (audio recording of the May 9, 2019 interview); and
• Government Exhibit 4 (transcript made from the audio recording of the January 18, 2019 interview) (Doc. 27-2).

         I recommend granting the motion to suppress in part and denying the motion to suppress in part (Doc. 19).

         I. BACKGROUND

         Law enforcement received information from the National Center for Missing and Exploited Children (NCMEC) that Facebook user Diego Juan had uploaded a child pornography video and sent it via private message to another user on November 1, 2018 (NCMEC had received this information through a tip from Facebook). Doc. 27-1 at 10. Facebook identified the internet protocol (IP) address used to upload the file and access the Diego Juan account, which belonged to Premier Communications and was used in the Doon, Iowa, area. Id. Through a subpoena to Premier Communications, law enforcement learned that the IP address was issued to Catarina Pablo at a particular residential address in Doon, Iowa, and that Diego Juan was listed as an “authorized user” of the IP address. Id. The Doon residential address associated with Pablo's Premier Communications account matched the address listed in a public-records search of the name Diego Felipe Juan. Id. Law enforcement conducted surveillance at this address and observed several cars registered to Pablo. Agent Burger also viewed the video flagged by Facebook and confirmed it constituted child pornography.

         A state magistrate judge signed a search warrant for the address on January 16, 2019, which stated that law enforcement “[we]re hereby commanded to make immediate search of the described place.” Doc. 27-1 at 20. The residence was not searched until two days later. Agent Burger testified that agents needed multiple days to plan execution of the search warrant for logistical planning, operational planning, officer safety, and ensuring that the right resources were available on the scene at the time of the execution, especially given that DCI's agents are spread out across the state, and DCI is not a centrally located agency like a local police department. Agent Burger also testified that during the planning period, he instructed the agents participating in execution of the search warrant not to park their vehicles in a manner blocking in cars at the residence, because he wanted the cars parked at the residence to be able to leave.

         Agent Burger testified that because Juan's Facebook posts were in Spanish, Agent Burger contacted Homeland Security Investigations (HSI) (part of the Department of Homeland Security), and two HSI special agents participated in the execution of the search warrant. All in all, eight law enforcement officers were on the scene during the execution of the search warrant-five DCI agents (including Agent Burger); two HSI agents; and a local sheriff's deputy, who arrived sometime during the search (but was not there to begin with). All the law enforcement officers were visibly armed.

         Law enforcement arrived at the residence on January 18 sometime before 8:00 a.m. Agents surrounded both the front and back doors to the house and knocked and announced their presence loudly, in English and in Spanish, and the agents at the front door used a battering ram to breach the door. No. testimony established how long the officers waited after announcing their presence before resorting to force. When agents entered the house with their weapons drawn, Juan was present, as well as many other family members (adults and children). Agent Burger testified that he encountered Juan near the back door to the house and explained that he was not under arrest and that they were executing a search warrant. Agent Burger testified that HSI Special Agent Ricardo Rocha, who spoke Spanish, translated what Agent Burger had said to Juan. Agent Burger told Juan that he could explain why they were executing a search warrant and answer any questions Juan had in a more private setting, suggesting they go to his car to talk if Juan preferred (most of Juan's family was in the living room at the front of the house). Juan nodded in agreement and asked if he could change clothes first. Juan went into his bedroom, changed, grabbed his coat, and then Juan, Agent Burger, and Agent Rocha ...


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