United States District Court, D. Minnesota
REPORT AND RECOMMENDATION
ELIZABETH COWAN WRIGHT UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.)
Blackmore's team executed the search warrant on December
20, 2016. (Ex. 3 at 2; Tr. 9.) 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.)
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.)
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.)
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.)
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.
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
Motion to Suppress Statements
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 ...