DAVID S. DOTY, District Judge.
This matter is before the court upon the objection by defendant Brian Luke Broulik to the July 15, 2013, report and recommendation of Chief United States Magistrate Judge Arthur J. Boylan. Based on a review of the file, record and proceedings herein, and for the following reasons, the court sustains the objection in part.
The background of this matter is fully set forth in the report and recommendation, and the court summarizes only those facts necessary to resolve the current objection. On May 24, 2012, the FBI executed a search warrant for Broulik's address in Blooming Prairie, Minnesota. Mot. Hr'g Tr. 12:21-24. The officers encountered Broulik's roommate, Gary Gardner, who informed them that Broulik was at work at Seneca Foods in Rochester, Minnesota. Id. at 13:22-14:5, 15:4-13. Officers obtained an additional search warrant for Broulik's car and person. Id. at 16:7-12.
When the officers arrived at Seneca Foods, they observed Broulik's car in the parking lot and located Broulik on the second floor of the office building. Id. at 17:9-23. The officers informed Broulik that they had a warrant to search his vehicle. Id. at 18:17-19. Broulik turned over the keys to his car to Special Agent Jamie Rohrbaugh, who went to the parking lot to search the vehicle. Id. at 18:24-19:3.
Broulik, Special Agent Richard Holden and Steele County Sheriff's Deputy Darrin Helget went to a conference room adjacent to Broulik's work station. Id. at 19:19-22. Holden and Helget questioned Broulik for approximately 35 minutes in the conference room with the door open. Id. at 20:4-6, 25:14. Rohrbaugh was also present for portions of the interview, which was not preceded by any Miranda warnings. Id. at 20:12-19, 43:17-19.
During the questioning, Broulik sat in the seat furthest from the door, with Holden and Helget between him and the door. Id. at 55:8-16. Broulik was not handcuffed or physically restrained. Id. at 23:9-13. All three officers were armed, though only Helget's weapon was visible. Id. at 21:1-18. At no point did the officers tell Broulik that he was free to leave or advise him that he did not have to answer questions. Id. at 43:12-16.
During the interview, Broulik repeatedly denied that child pornography would be found on his computer. Id. at 46:7-12. Broulik also acknowledged that he had a smartphone, but denied that child pornography would be found on his phone and declined to consent to a search of his phone. Id. at 56:2-6. The questioning concluded when Broulik requested legal representation. Id. at 51:12-16. The officers seized Broulik's phone at the end of the interview. Id. at 31:4-6.
While the officers were questioning Broulik, additional officers executed the search warrant on Broulik's vehicle. The officers located a laptop computer and thumb-drive and determined that both contained child pornography. Id. at 25:21-26:8. The searching officers relayed this information to Holden and Helget, and Helget arrested Broulik on state child pornography charges. Id. at 52:2-6. Officers obtained a search warrant for the phone the next day. Id. at 31:12-18.
On July 15, 2012, the chief magistrate judge recommended that the court deny Broulik's motions to suppress (1) statements made during the May 24, 2012, interview and (2) evidence discovered on the seized phone. Broulik objects.
The court reviews the report and recommendation of the magistrate judge de novo. 28 U.S.C. § 636(b)(1)(C); Fed. R. Crim. P. 59(b); D. Minn. LR 72.2(b).
I. Statements to Officers
Broulik first moves to suppress the statements he made to officers, arguing that the interview was a custodial interrogation and he was not apprised of his Miranda rights. "Officers must inform suspects of their Miranda rights before subjecting them to custodial interrogations. Failure to do so results in a violation of the suspect's Fifth Amendment rights and renders any statement gained from the violation inadmissible in the government's case-in-chief." United States v. Sanchez , 676 ...