The opinion of the court was delivered by: Daniel L. Hovland, District Judge United States District Court
ORDER DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE
Before the Court is the Defendant's Motion to Suppress Evidence filed on December 2, 2010. See Docket No. 32. The Government filed a response in opposition to the motion on December 14, 2010. See Docket No. 36. The Court denies the motion for the reasons set forth below.
On October 28, 2009, the Defendant Ray Leon Huether was indicted on two counts, receipt of materials involving the sexual exploitation of minors and possession of material involving the sexual exploitation of minors. See Docket No. 2.
In June 2008 the Minot Police Department began to investigate allegations of sexual abuse committed by Huether against his girlfriend's daughter. During the investigation, Sergeant David Goodman of the Minot Police Department learned that Huether may be in possession of child pornography and that he had moved from Minot to Fargo. On August 8, 2008, six law enforcement officers, including Goodman and officials from the Fargo Police Department and the North Dakota Bureau of Criminal Investigation ("BCI"), executed a search warrant at the home Huether shared with Helen Zeng-Bjornstad. Zeng-Bjornstad let the officers into the house and Goodman followed her to the bedroom where Huether was located. Goodman told Huether why the officers were there, that he was not under arrest, and that he was not in custody. Huether and Zeng-Bjornstad then gave their consent to the officers to search their house, garage, vehicles, computers, and computer storage. See Docket No. 36-2.
Goodman asked Huether if he would answer some questions, and again told him he was not under arrest and not in custody. According to his written report, Goodman also told Huether he was free to leave. See Docket No. 36-1. Goodman began to ask Huether about the allegations of sexual abuse. Investigator Paula Ternes of the Fargo Police Department entered the room at which time Goodman began recording the interview. At the beginning of the recorded portion of the interview, the following exchange took place between Goodman and Huether:
Q Ok. When I first started talking to you today at roughly 7:45 AM, I informed you that you're not in custody, you're not under arrest. Is that correct?
Q And you understand that? A Yes.
See Docket No. 36-3, p. 1.
After the interview and search were concluded, Goodman discussed with another officer from the Minot Police Department whether to arrest Huether. Huether was subsequently arrested. Huether was not given Miranda warnings prior to, or at any point during, his interview with Goodman and Ternes. Huether was not put in handcuffs until he was placed under arrest.
In testimony before the Northwest Judicial District Court in Ward County, North Dakota,*fn1 Huether testified that he did not remember being told he was free to leave. See Docket No. 38, p. 62. Huether also testified that he did not feel free to leave while being interviewed by Goodman: He was in front of me, he was fully set up in what, bulletproof vest and armed. He has several people in the house. I wasn't able to use the bathroom facilities. I wasn't able to get anything to drink or anything like that. Any time that I might have gotten up he would say just to sit here and we have some more questions.
See Docket No. 38, p. 62. Goodman testified that Huether was free to leave at any point during the interview:
Q Hypothetically, if Mr. Huether would have actually just left, would have started packing his bags while you were conducting the ...