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United States v. Robbins

United States District Court, D. Nevada

January 17, 2017




         I. SUMMARY

         Defendant Jayson Alan Robbins ("Robbins") was allegedly found to be in possession of child pornography. Robbins was subsequently indicted on three counts: (1) Distribution of Child Pornography in violation of 18 U.S.C. § 2252(a)(2) and (b); (2) Receipt of Child Pornography in violation of 18 U.S.C. § 2252(a)(2) and (b); and (3) Possession of Child Pornography in violation of 18 U.S.C. § 2252(a)(5). (ECF No. 40.) Before the Court is Robbins' Motion to Suppress ("Motion") (ECF No. 28). The government filed a response (ECF No. 43) to which Robbins replied (ECF No. 47). The Court held an evidentiary hearing on December 29, 2016 ("Hearing"). (ECF No. 57.) For the reasons discussed herein, the Motion is granted.


         The following facts are taken from the evidence presented at the Hearing as well as evidence accompanying the Motion. (ECF Nos. 28-1, 28-2, 28-3, 28-4.)

         On September 15, 2015, local law enforcement officers served a state-issued search warrant at Robbins' apartment. After realizing that Robbins was not at home, Washoe County Detective Greg Sawyer ("Sawyer") and Federal Bureau of Investigation ("FBI") Agent Dave Hearn ("Hearn") proceeded to Robbins' place of employment, the Sears department store at Meadowood Mall, in hopes of finding him there. After entering the department store, Sawyer and Hearn approached an unidentified individual working in the store's personnel office to inquire whether Robbins was working. Both officers were dressed in plains clothes, Sawyer's detective badge was hanging around his neck, and neither officers' gun was visible. At that time, Robbins was in fact working his shift in the electronics department. According to Sawyer, Robbins entered the office at the same time as the two officers began to ask about Robbins' whereabouts. Sawyer and Hearn then asked Robbins if he minded speaking with them. Robbins agreed to do so and accompanied the officers into a secluded break room.

         Once seated in the room, Sawyer - who primarily directed the conversation - began to question Robbins.[1]

Question: I'm Detective Sawyer with the sheriffs office. This is Agent Hearn with the FBI.
Answer: Okay.
Question: You know we did a search warrant on your house today. I'm sure you know what it's for, right? BitTorrent usage.
Answer: Oh.Question: And just wanted to talk to you about why you did this. I mean, it's for child pornography. Okay? And there's always multiple sides to everybody's story. So we always want to talk to people that are involved in this just to get your side of the story, to make sure you're not the monster that everybody envisions as soon as they hear the words "child pornography." Right?

Answer: Right.

Question: Is that something you'd be willing to . . . would you like to talk to us real [sic] quick?

Answer: I noticed there was a ... I was on a website searching for movies.

Some things came up. I checked them out. And, uh . . .

Question: Okay. Well, it's more than that. We've been downloading from you.

You know how BitTorrent works, right? It's peer-to-peer software.

Answer: Right.

Question: So you download a file, and then you share with other people?

Answer: Right.

Question: Well, we've been downloading files from you, a lot of them over almost a year now.

Answer: Oh.

Question: Okay. So it's more than just going to a website and visiting.

Answer: Right.

Question: So it's more than just that. And I do computer forensics and all that stuff along with some of my other partners. So we know it's more involved. We know a little bit more than just the, you know, guts and cache from the website or whatever. Okay? What time were you supposed to start your shift?

Answer: I'm already on.

Question: Oh, okay. Let me see if I can get some basic info from you. First, I'm sure you've seen [rustling sound]. . . Let's take care of some random stuff first.

Answer: Okay.

Question: It's just part of my job, what I've got to do.

Agent Hearn: And you're not under arrest right now. At least I want to make that clear.

Detective Sawyer: No.

Hearn: This is just a process of getting to know [indiscernible].

Sawyer: Right. If I can find it.

[Radio communication background noise.]


Well anyway, you have the right to remain silent. Anything you say can be used against you in a court of law. You have a right to an attorney. If you can't afford one, one will be provided for you free of change. Basic one is, if you decide to talk to us, at any point you can stop answering questions if you choose. Okay do you understand all that?

Answer: I do.

(ECF No. 28-3 at 3-5.) From there, Sawyer asks Robbins some background questions. After several more minutes, Sawyer again reiterates that they have been downloading child pornography files from Robbins through the torrent program for about a year.

Question: Okay. All right. Well, like I said, we've been downloading for almost a year now. And a lot of child pornography files - I think it was well over a hundred from your house. One of the things we like to find out is how did you get interested in this? How did it evolve.

Answer: I've reported some into the website. But I've been trying to collect info, not physical. And, urn, it was a site called Zonzie [sic].[2] Can I write it down? Zonzie. Let's see, Zonzie. It was actually a redirect. I think that's it. It might be that one. Zonzie, Zonzie.

Question: And what's with this website?

Answer: It's a torrent site. First I discovered movies. And then I saw what other people were downloading. And I started to click on things at random. And then I discovered some -

Question: Child pornography files?

Answer: Right.

Question: Just so you know, part of -

Answer: It's kind of rampant on there.

Question: Part of the forensics that we do is - I don't know if you know, but all the uTorrent, BitTorrent, all that software maintains in its registry a list of search words that are used by the person when they're looking for files. Okay? So it's going to [it's going to show] that you entered "PTHC." Or it's going to show that you entered "2y-o, " 3y-o, " "4y-o, " whatever it might be. Okay? So what search terms would you use?

Answer: Search words I used was "PTHC."

Question: All those, okay. So it's more of an honesty check too. And being truthful actually does assist. I'll write in my report, "Yes, he was truthful" or "No he was not."

Answer: Okay. PTHC. Hussy. Hussy fan. What else?

(ECF No. 28-3 at 8-9.) The interview lasts roughly 90 minutes.[3] At the end of the interview, the officers inform Robbins that he is being arrested. The recording ends with Robbins asking the officers to make arrangements to safe keep his bicycle, which is parked outside the department store.


         Fifty years ago, in Miranda v. Arizona, 384 U.S. 436, 439 (1966), the Supreme Court adopted certain procedural safeguards to ensure that an individual who is "subjected to custodial police interrogation ... is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself." Absent those safeguards, the government may not use statements obtained from a "custodial interrogation." Id. at 444. Those safeguards include the "now familiar Miranda warnings . . . or their equivalent." Rhode Island v. Innis, 446 U.S. 291, 297 (1980) (quoting Miranda, 384 U.S. at 479).

         Robbins seeks to suppress his statements to Sawyer and Hearn. Robbins advances the following arguments: (1) he was in custody for purposes of Miranda while interrogated in the break room; (2) the Miranda warning provided by Sawyer was constitutionally inadequate under the Fifth and Sixth Amendments because the warning did not include or convey the right to consult with counsel before or during the questioning; and (3) even if the Miranda warning was adequate, Robbins' statements were coerced and thus involuntary. (ECF No. 28 at 4-13.) The government counters that Robbins was not in custody for purposes of Miranda and, moreover, that the Miranda warning was constitutionally adequate.[4] (ECF No. 43 at 12.) The Court agrees with Defendant that he was in custody for purposes of Miranda when questioned in the Sears break room and that the Miranda warning given to him was constitutionally inadequate. In light of this finding, the Court declines to address Robbins' third argument.

         A. Custodial Interrogation

         The threshold questions for determining whether Miranda applies are: (1) was Robbins in custody when he was questioned before his formal arrest; and, (2) if Robbins was in custody, was he interrogated?

         1. Custody

         To determine whether Robbins was in custody at any point prior to his formal arrest, the Court must determine whether a reasonable person in Robbins' circumstances would have believed he was free to terminate the interview and walk away. See United States v. Barnes, 713 F.3d 1200, 1204 (9th Cir. 2013). An individual is considered in custody when there is a "formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." Stansbury v. California, 511 U.S. 318, 322 (1994). In order to make this determination, the Court must consider what objective circumstances surrounded the interrogation, Thompson v. Keohane, 516 U.S. 99, 112 (1995), and must not focus on the subjective view of the officers or of the individual who has been questioned. Stansbury, 511 U.S. at 323.

         The following factors are relevant to whether an individual is in custody: (1) the language used to summon the individual; (2) the extent to which the defendant is confronted with evidence of guilt; (3) the physical surroundings of the interrogation; (4) the duration of the detention; and (5) the degree of pressure applied to detain the individual. United States v. Kim, 292 F.3d 969, 974 (9th Cir. 2002). Courts must base this analysis on a totality of the circumstances. Stansbury, 511 U.S. at 322. Other factors may be pertinent or dispositive of the ultimate determination of whether a reasonable person felt free to walk away from the interrogators. Kim, 292 F.3d at 974.

         Robbins identifies a plethora of factors to argue that he was in custody during the entire time he was in the break room. These include the fact that: (1) he was "whisked away from his work"; (2) he was placed in a secluded area, away from others; (3) he was confronted by a self-identified detective and FBI agent; (4) he was confronted with evidence of his guilt; (5) the search warrant was of a particular nature; and (6) the detective "put on display his special police skills implying there [was] no hiding the truth, thus creating a no escape custodial atmosphere." (ECF No. 28 at 5.) In their response, the government points out that there is an absence of any ...

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