Kevin S. Ueland, Esq., Assistant United States Attorney, for the plaintiff, United States of America.
Manny K. Atwal, Esq., Assistant Federal Defender, for the defendant, Brian Luke Broulik.
REPORT AND RECOMMENDATION
ARTHUR J. BOYLAN, Chief Magistrate Judge.
This action came on for hearing before the Court, Chief Magistrate Judge Arthur J. Boylan, on May 30, 2013, at the U.S. Courthouse, 300 South Fourth Street, Minneapolis, MN 55415. The court issued an Order on Motions dated May 30, 2013, reserving defendant Brian Luke Broulik's motion to suppress statements and motion to suppress search and seizure evidence for submission to the district court on report and recommendation.
Based upon the file and documents contained therein, along with witness testimony and exhibits received at hearing, the magistrate judge makes the following:
May 21, 2012, Residence Search Warrant. On May 21, 2012, United States Magistrate Judge Franklin Noel issued a warrant to search a particularly identified rural residence having a Blooming Prairie, Minnesota address (Gov't Hrg. Ex. 5). The location is further described in the supporting affidavit as the residence of Brian Broulik, a grayish brown house with an attached two-car garage. The search warrant identified the objects of the warrant as computers and images of child pornography as further described in detail to include computer systems and peripheral devices; cell phones; compact disks and other data storage media; operating manuals; game consoles; web cameras; digital video equipment; passwords and security devices which may be used to depict, distribute, receive, or possess child pornography. Warrant objects also included books and magazines, movies and films, and any other visual depictions of minors engaged in sexual conduct; documents and records pertaining to possession and distribution of visual depictions of minors engaged in sexual activity transmitted by computer to include electronic messages, documents evidencing transactions, address and mailing information, records of names and addresses of visually depicted minors; and records relating to Internet usage and communications. In addition, the warrant authorized seizure of credit card information, evidence of premises occupation, evidence of computer equipment ownership, evidence indicating actual computer user(s) and software virus protections, passwords and encryptions, and documents that would assist in examination of a computer.
The warrant was issued on the basis of probable cause contained in the Affidavit of FBI Special Agent Richard T. Holden, including information provided by an undercover special agent involved in an FBI investigation in Maryland, who had observed computer images indicating child pornography which were traced to an IP address suggesting a Blooming Prairie, Minnesota location. The application further stated evidence obtained by administrative subpoena which identified Brian Broulik as the account holder for the specified IP address, at the indicated residence address. The warrant application describes observed images which are asserted to construe child pornography and references Broulik's criminal history and sex offender registration.
The warrant to search the residence was executed on May 24, 2012, at approximately 6:25 a.m. Twelve agents and officers, including FBI Special Agent Holden, participated in the execution of the warrant. There was no one at the home when agents arrived and entry was made through a sliding glass door. The door did not appear to be locked, but officers were required to jiggle and otherwise manipulate the door to get it open and allow entry. A laptop computer, a smart phone, a camera, and computer discs were found. Defendant's roommate, Gary Gardner, arrived at the scene after entry had been accomplished. Mr. Gardner indicated that the laptop computer belonged to him. The devices were examined at the scene and no unlawful pornographic material was found on the devices found in the home. Gardner advised agents that Broulik owned a black Dell laptop computer, drove a 2003 Chevy Impala, and could likely be found at his place of employment, Seneca Foods, located in Rochester, Minnesota.
May 24, 2012, Vehicle and Person Search Warrant. On May 24, 2012, at 1:30 p.m., United States Magistrate Judge Franklin Noel issued a warrant to search a particularly identified motor vehicle and the person of Brian Broulik (Gov't Hrg. Ex. 4). The search warrant identified the same objects of the warrant as were described in the residence search warrant (Ex. 5) that was previously executed that morning.
The warrant was issued on the basis of probable cause contained in the Affidavit of FBI Special Agent Charles Burnham, and contains the same probable cause information that was stated in the previously executed warrant, i.e. information provided by the Maryland undercover special agent; evidence obtained by administrative subpoena identifying Brian Broulik as the account holder for the specified IP address, at the indicated residence address; and descriptions of observed images of child pornography. In addition, the application referenced the recently executed residence warrant and seized evidence, and recited information obtained from Mr. Broulik's roommate regarding the defendant's ownership of a laptop computer, the defendant's vehicle, and the defendant's place of employment.
The vehicle and person search warrant was executed on May 24, 2012, at 2:00 p.m. Four officers and agents including FBI Special Agent Holden, went to defendant Broulik's place of employment, Seneca Foods, and found the defendant at his work station on the second floor (Gov't Hrg. Ex. 3). Broulik was advised that he was not under arrest. He produced his car keys upon request and his person was searched pursuant to the warrant. The keys were used to open his car and the vehicle was likewise searched pursuant to the warrant.
May 24, 2012, Statements. The work area in which the defendant was located had a separate room which contained two desks pushed against one another with chairs across from each other (Gov't Hrg. Ex. 3). The defendant suggested by motioning that he and the officers go into that room to speak privately. Defendant Broulik entered the room first and sat at a chair farthest from the door. He was not directed to any specific seat. Steele County Deputy Sheriff Darrin Helget also entered the room. Special Agent Holden sat across the abutting desks from defendant, approximately six feet away. The door remained open. Broulik was advised that his car was being searched. He was not told that he could leave or could refuse to answer questions. FBI Special Agent Rohrbaugh also came and went from the room during the ensuing interview and participated in the questioning (Gov't Hrg. Ex. 1 and Ex. 2). Special Agents Holden and Rohrbaugh were dressed in business casual attire. They were armed but weapons were not displayed. Deputy Helget was in uniform and his sidearm was visible. Defendant Broulik was not told that he was under arrest and was not given the Miranda rights advisory. He was not placed in handcuffs or otherwise restrained. The defendant was advised that the interview was being recorded with a device in Deputy Helget's possession. Questioning was straightforward as to the reason for the police visit. The tone of the interview was casual and conversational. Mr. Broulik remained calm, and responded to questions, but he did not answer all questions. Approximately 35 minutes into the interview the defendant stated that he wanted an attorney and the interview was stopped.
While the interview was taking place other officers searched the defendant's vehicle. A Dell laptop computer and a thumb drive were seized from the car. An on-site examination of the seized devices revealed materials that appeared to constitute child pornography. FBI agents did not arrest Broulik, but he was arrested by Deputy Helget at the conclusion of the interview, after officers became aware of the incriminating evidence. Also, during the course of the interview agents became aware of a Motorola smart phone located on a desk in the room outside of the interview area. The defendant was asked for his consent to a search of the phone and he declined to give such consent. Special Agent Holden then called Assistant U.S. Attorney Laura Provinzino for guidance on handling the smart phone. The agent was advised to again seek consent, and defendant again denied consent. The AUSA thereafter advised in a second ...