United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
P. ELLISON UNITED STATES DISTRICT JUDGE.
Mark Daniel Adair (“Defendant”) is charged by
indictment with three counts of child pornography. Defendant
has filed a “Motion to Suppress His Statement.”
Dkt. No. 39 (hereafter, “Motion”). Specifically,
Defendant contends that he never intentionally and
voluntarily waived his rights to obtain counsel under
Miranda v. U.S., 384 U.S. 436 (1966). Alternatively,
Defendant claims that the interrogation carried out by law
enforcement officers violated his due process rights.
is no dispute as to most of the material facts. This case had
its origin on December 16, 2015, when FBI Special Agent
Robert Guerra (“Guerra”) used a computer
connected to the Internet and identified a computer on a
peer-to-peer sharing network as having at least 35 files of
investigative interest. On that same day, Guerra downloaded
35 video files containing images of child pornography.
Through further investigation, Guerra was able to determine
that the computer in question was located at the residence of
February 26, 2016, at approximately 6:15 a.m., a federal
search warrant was executed on Defendant's residence. A
total of ten law enforcement officers were present, and were
identifiable by their clothing. In approaching the home,
seven of the officers had their weapons drawn. Without having
made contact with Adair, the officers broke through a locked
gate. Once they had reached the front door, Guerra knocked,
identified himself as an FBI agent, and said that he and the
other officers were there to execute a search warrant.
was the sole resident of the home. When Defendant opened the
door, Guerra instructed him to hold his hands up, and to
leave the residence. Then, Guerra and others went into the
home to perform a sweep. Defendant was turned over to local
law enforcement officers who handcuffed him and put him in
their SUV which was parked in the driveway. Defendant was
wearing only his boxer shorts.
had remained in the vehicle for 15 to 20 minutes, when Guerra
brought some clothes to Defendant and took him out of the
vehicle. Defendant was allowed to put on the clothing, the
cuffs were removed, and Guerra introduced himself. He
apologized for having had to handcuff Defendant, and told him
that he was not under arrest. At some point, Defendant said
he needed to use the bathroom, and an officer went with him
to the bathroom and watched him urinate.
escorted Defendant to Guerra's unmarked vehicle in front
of the home. Guerra sat in the driver's seat and another
agent sat behind Defendant in the rear passenger side seat.
Defendant was told that the agents did not plan to take him
anywhere. Defendant began talking, and Guerra interrupted him
to provide Miranda warnings, even though, in Guerra's
opinion, Defendant was not in custody. The warnings were
provided, Guerra said, “out of an abundance of
caution.” Docket No. 48 at 19. Guerra told Defendant
that he was reading the Miranda rights as a
“formality.” Id. at 22. Defendant
acknowledged that he understood his rights, but did not say
whether he did or did not waive them. Guerra's entire
conversation with Defendant was videotaped, but Defendant was
not told of the videotaping. Docket No. 49 at 36.
point, Defendant said “‘I mean, am I screwing
myself by not getting a lawyer? Be honest.'” Docket
No. 48 at 23. Guerra responded that his job was to
investigate this particular violation and to determine
whether the perpetrator just had an interest in seeing
images, or might actually harm a child. Id. at 25.
At some point, Defendant said he was being straight with
Guerra because Guerra was being straight with him.
Id. at 27. During the course of the session in the
parked car, Defendant admitted to the elements of the
pornography charges that were ultimately brought.
Id. at 20. He also said enough to warrant
application of several of the sentencing guideline
enhancements for child pornography. Id. at 72 - 73.
At the evidentiary hearing, Guerra acknowledged that he did
not tell Defendant that he was facing a mandatory minimum of
five years imprisonment, or anything about the operation of
the sentencing guidelines. Id. at 30 -31. Instead,
Guerra told Defendant that talking to the law enforcement
officers “really helps you.” Docket No. 49 at 37.
Indeed, Defendant was even told that the interrogation in the
car was “your one time chance to tell us your side of
the story and what exactly is going on.” Id.
also told Defendant at one point that, at the end of the day,
he was not going to arrest Defendant and that Defendant would
go his way and the law enforcement officers would go their
way. Id. at 69 - 70.
Government contends that Defendant was never in custody and
was always free to leave. Because he was not in custody,
Miranda warnings did not need to be given. U.S. v.
Hurtado, 899 F.2d 371, 375 (5th Cir. 1990).
Court is extremely dubious of the Government's argument.
On the issue of custodial interrogation, and the
applicability of Miranda, U.S. v.
Romero-Medrano, 207 F.Supp. 708 (S.D. Tex. 2016), is
more closely analogous. That case, in which defendant's
statement was suppressed, also involved Agent Guerra as the
lengthy analysis of precedents on custodial interrogation is,
however, not necessary. Rather, the more pertinent analysis
is under the due process clause. The Government can violate
due process strictures whether or not a defendant is in
custody. Under due process, a confession is inadmissible if
“involuntary, i.e., the product of coercion, either
physical or psychological.” Colorado v.
Connelly,479 U.S. 157, 169 (1986). Long before
Miranda, the Supreme Court made clear that,
“We do not presume acquiescence in the loss of
fundamental rights.” Johnson v. Zerbst, 304
U.S. 458, 465 (l938). “The purpose of the
constitutional guaranty of a right to counsel is to protect
an accused from conviction resulting from his own ignorance
of his legal and constitutional rights, and the guaranty
would be nullified by a determination that an accused's
ignorant failure to claim his rights removes the protection
of the Constitution.” Id. at 465. See also
Moore v. Michigan, 355 U.S. 155 (1957) (vacating murder
conviction because no showing of intelligent waiver of