Andrew R. Winter, Esq., and Charles J. Kovats, Jr., Esq., United States Attorney's Office, Minneapolis, MN, on behalf of Plaintiff.
Andrew H. Mohring, Esq., Office of the Federal Defender, Minneapolis, MN, on behalf of Defendant.
MEMORANDUM OPINION AND ORDER
ANN D. MONTGOMERY, District Judge.
This matter is before the undersigned United States District Judge for consideration of Defendant Buford Braden Rogers' Objection [Docket No. 74] ("Obj.") to Magistrate Judge Jeanne J. Graham's August 29, 2013 Report and Recommendation [Docket No. 71] ("R&R"). In the R&R, Judge Graham recommends denying Rogers' Motion to Suppress May 3, 2013 Statements, Admissions, and Answers [Docket Nos. 31 and 33]. After a thorough de novo review of the record and for the reasons stated below, Judge Graham's R&R is adopted in part and modified in part.
The factual history of this dispute is more fully recited in Judge Graham's R&R and many facts are incorporated here by reference. See R&R at 6-11. Rogers was interviewed by FBI Agent Shane Ball on May 3, 2013, while in police custody. The FBI learned from an informant that Rogers and others were planning to destroy a radio tower in Montevideo, Minnesota, raid the National Guard armory, and attack the Montevideo police station the following day, on May 4, 2013. Mot. Hr'g Tr. [Docket No. 56] 16:5-8, 19-23. The FBI had information Rogers was a member of a militia or hate group and that he had cheered the Boston Marathon bombings which had occurred three weeks earlier. Id . 66:10-16, 22-25. The FBI obtained a search warrant to seize firearms, ammunition, explosives, chemicals, military ordnance, cords, fuses, gas cans, detonators, fuel, fertilizer, and other similar items the FBI understood were to be used in the Black Snake Militia attack. Gov't Ex. 1 ("Application for Search Warrant"). The search warrant identified a residential trailer and surrounding storage sheds on Benson Road property owned by Rogers' parents ("Benson Road Property") as the location of these weapons. Id . On May 3, 2013, about fifty SWAT team members, bomb technicians, and other law enforcement personnel executed the warrant. Mot. Hr'g Tr. 15:17-25 42:7.
At the same time the search warrant was being executed at the Benson Road Property, law enforcement located Rogers at his residence. Id . 18:16-21. Officers took Rogers into custody and transported him to the Montevideo Police Department to be interviewed. Id . 18:23-24. Rogers was put in an interview room, where he was joined by Agent Ball and Montevideo Police Chief Adam Christopher. Id . 19:23-24, 20:1-2, 21:5-7.
Just before the interrogation began, officers at the Benson Road Property found two Molotov cocktails, a containerized explosive device wrapped in duct tape, and a containerized explosive device wrapped in cloth. All had fuses attached. They also found eight to ten guns with ammunition. Id . 17:1-10, 71:8-12, 18:4-10. Agent Ball believed these items confirmed the danger of a plot to attack the radio tower, armory, and police station. Id . 15:11-22. About ten minutes after Rogers was taken into custody, Agent Ball began to question him. Id . 49:17-19. Agent Ball testified that at the outset of the interview he did not advise Rogers of his rights as established under Miranda v. Arizona , 384 U.S. 436 (1966), because he felt the public safety exception to Miranda applied to these circumstances. Id . 25:11-22.
At the time the interview began, bomb technicians were in the process of searching for, examining, and attempting to defuse the devices. Gov't Ex. 3 at 00000105. Agent Ball testified he was concerned about the safety of the officers and bomb technicians at the scene. Mot. Hr'g Tr. 26:3-7. Agent Ball questioned Rogers about the location of any other explosives, whether Rogers made the devices and how they were made, the nature and extent of the plot, and whether others might be involved in planning the attack. During the interrogation, Agent Ball relayed information to the bomb technicians and agents at the scene. Gov't Ex. 3 at 00000106. Agent Ball also questioned Rogers about firearms found at the Benson Road Property.
After approximately forty minutes,  Agent Ball read Rogers his Miranda rights. Mot. Hr'g Tr. 26:15-19, 27:10-14; Gov't Ex. 4. Rogers waived his rights, and Agent Ball continued to interview him. Mot. Hr'g Tr. 28:21-23, 29:8-10, 29:15-21. While the post-Miranda questioning covered a wider range of topics and background, some of the questions covered the same ground as the pre-Miranda questions.
In reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C); see also D. Minn. L.R. 72.2(b). A district judge "may accept, reject, or modify, ...