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United States v. Myhre

United States District Court, D. Minnesota

April 29, 2019

United States of America, Plaintiff,
v.
Jeremy Ryan Myhre, Defendant.

          REPORT AND RECOMMENDATION

          ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE.

         On December 4, 2018, Defendant Jeremy Ryan Myhre (“Myhre”) was indicted on one count of Distribution of Child Pornography in violation of 18 U.S.C. §§ 2252(a)(2) and 2252(b)(1) and one count of Possession of Child Pornography in violation of 18 U.S.C. §§ 2252(a)(4)(B) and 2252(b)(2). (Dkt. No. 1.) This matter is before the Court on Myhre's Motion to Suppress Statements, Admissions and Answers (Dkt. No. 20) and Myhre's Motion to Suppress Evidence Obtained as a Result of Search and Seizure (Dkt. No. 22). Katharine T. Buzicky, Assistant U.S. Attorney, appeared on behalf of the United States of America and Douglas Olson, Assistant Federal Defender, appeared on behalf of Myhre, who was present at the hearing. The case has been referred to the undersigned United States Magistrate Judge for a report and recommendation pursuant to 28 U.S.C. § 636 and Local Rule 72.1.

         The Court held a hearing on February 19, 2019, in which the Government presented a witness and offered exhibits. (Dkt. No. 31.) Myhre filed a post-hearing brief on March 15, 2019 (Dkt. No. 36) and the Government filed an opposition brief on March 29, 2019 (Dkt. No. 37). For the reasons stated below, the Court recommends the Motions be denied.

         I. BACKGROUND

         At the February 19, 2019 hearing, Special Agent Blackmore (“SA Blackmore”) testified about his interrogation of Myhre on December 20, 2016, while executing a search warrant. The search warrant, dated December 19, 2016, permitted law enforcement to search Myhre's residence in Glencoe, Minnesota for child pornography or evidence of child pornography. (Ex. 3 at 4-6.) The application for search warrant was supported by SA Blackmore's affidavit detailing his investigation of child pornography files shared on peer-to-peer (“P2P”) networks from an IP address that was registered to Myhre's residence at the time the child pornography was shared on the P2P network. (Ex. 4 at 19-21.)

         SA Blackmore's team executed the search warrant on December 20, 2016. (Ex. 3 at 2; Tr. 9.)[1] At that time, three other individuals lived at the residence, including Myhre's spouse, the homeowner, and an individual who was not present during the search. (Id.) SA Blackmore testified that, typically, his search team approaches the residence and conduct a “knock and announce” prior to entering the residence. (Id.) He testified that when the team approaches, they are wearing body armor with “FBI” or “Police” markings, and have their weapons drawn. (Tr. 10.) SA Blackmore testified that when the door was answered, the search team identified themselves and presented their authority with the search warrant. (Tr. 9.) Upon entering the residence, the team conducts a security sweep of the premises, including handcuffing any persons present, to make sure the area is safe before executing the search warrant. (Id.)

         SA Blackmore testified that the homeowner answered the door and that Myhre and his spouse were in their basement bedroom during the security sweep and were briefly handcuffed. (Tr. 11.) The security sweep took between five and ten minutes. (Tr. 12.) SA Blackmore's role during the search was to conduct interviews. (Id.) SA Blackmore testified that he usually removes his clothing with the “FBI” markings and untucks his shirt so it covers his weapon. (Tr. 10.) SA Blackmore interviewed Myhre in a guest bedroom on the first floor. (Tr. 13.) SA Blackmore could not recall if he picked the location, but said he usually asks an interviewee if he or she wants to talk to the police, and if so, where he or she would feel most comfortable talking. (Id.) Captain Bienfang from the Glencoe Police Department, who had a visible weapon, was also present at the interview. (Tr. 14.)

         SA Blackmore testified that during the interview, he was near the corner of the room leaning back on a stool or small table, with Captain Bienfang to his left, while Myhre was sitting on the edge of the bed. (Id.) SA Blackmore asked Myhre where he would be comfortable during the interview and that resulted in their respective positions. (Tr. 15.) During the interview, the door was mostly closed for privacy, but was left ajar. (Id.)

         SA Blackmore testified that he asked Myhre if he would be willing to participate in the interview and that Myhre agreed. (Tr. 15.) SA Blackmore did not give Myhre a formal Miranda warning. (Tr. 24.) SA Blackmore asked Myhre if he could record the interview, to which Myhre agreed. (Tr. 16; Ex. 1A.) SA Blackmore testified that he tried to make sure that Myhre understood he was not under arrest and asked Myhre if he believed him. (Tr. 16-17.) Myhre stated that he understood and that he believed he was not under arrest and did not have to talk to SA Blackmore. (Ex. 1A.) SA Blackmore described the tone of the conversation as professional and cordial. (Tr. 17.) He testified that at no point did Myhre seem confused, ill, or incoherent, and that he would have stopped the interview if Myhre had seemed so. (Tr. 18.) During the interview, Myhre never asked for a bathroom break or a glass of water, but if he had, it would have been permitted with a police escort. (Tr. 19.) SA Blackmore did not make any promises to Myhre and told Myhre he is not authorized to do so, but told Myhre that if he cooperates, he could inform the prosecutor, but any deals or leniency would be at the discretion of the prosecutor or court. (Tr. 19-20.)

         The first interview was uninterrupted and lasted a little under an hour. (Tr. 17, 22.) Throughout the interview-in SA Blackmore's opinion-Myhre was polite and cooperative. (Tr. 22.) At the end of the interview, SA Blackmore told Myhre that he was free to go about his business. (Tr. 17.) Myhre was not arrested when the interview ended. (Id.)

         Sometime after the first interview, SA Blackmore had a brief second interview of Myhre about taking a polygraph. (Tr. 17.) During the second interview, Myhre told SA Blackmore that he would be willing to take a polygraph. (Tr. 25.) The second interview also took place in the house and on the same day. (Tr. 18.) SA Blackmore considered the tone of the second interview to be similar to the first interview. (Id.) The second interview lasted less than five minutes.

         II. DISCUSSION

         A. Motion to Suppress Statements

         Myhre's Motion to Suppress Statements, Admissions and Answers (Dkt. No. 20) initially sought to suppress both a December 2016 statement when law enforcement officers were executing a search warrant and a December 2018 statement after Myhre was arrested. At the hearing, Myhre withdrew his challenge of the post-arrest December 2018 statement. (Tr. 6.) The Court therefore only addresses the December 2016 statement. Myhre makes two challenges to the December 2016 statement: (1) that the interrogation was custodial and therefore he should ...


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