United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
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.
RELEVANT FACTUAL BACKGROUND
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.)
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.
seated in the room, Sawyer - who primarily directed the
conversation - began to question Robbins.
Question: I'm Detective Sawyer with the
sheriffs office. This is Agent Hearn with the FBI.
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?
Question: Is that something you'd be
willing to . . . would you like to talk to us real [sic]
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
Question: So you download a file, and
then you share with other people?
Question: Well, we've been
downloading files from you, a lot of them over almost a year
Question: Okay. So it's more than
just going to a website and visiting.
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
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
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]. 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
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?
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
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
(ECF No. 28-3 at 8-9.) The interview lasts roughly 90
minutes. 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
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.
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. (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.
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?
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.
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.
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 ...