The opinion of the court was delivered by: Roberto A. Lange United States District Judge
REPORT AND RECOMMENDATION AND DENYING MOTION TO SUPPRESS THE HAWK
Defendant moves (Doc. 21) to suppress statements he allegedly made to FBI Agents Todd Dawson ("Dawson") and Michele Lakey ("Lakey") on October 22, 2008. Defendant argues that the statements were made involuntarily and in violation of his due process rights under the Fifth Amendment. Defendant also moves the Court to suppress any testimony that a polygraph examination was conducted on the Defendant, as well as testimony of Defendant's alleged failure of such exam, on the grounds that Fed. R. Evid. 403 and United States v. Waters, 194 F.3d 926 (8th Cir. 1999) prohibit the use of such testimony at trial. The matter is before the Court on the Recommendation of United States Magistrate Judge, Mark A. Moreno (Doc. 58). After conducting an evidentiary hearing on September 30 and October 16, 2009, the Magistrate Judge has recommended that the Defendant's motion to suppress the statement as involuntary be denied and that the motion to suppress the results and testimony of the polygraph examination be granted. The Defendant has asserted objections to the Magistrate Judge's recommendation to deny his motion to suppress the statement (Doc. 68).
* ORDER AND OPINION ADOPTING
In considering a magistrate judge's recommendation on a dispositive matter, such as a motion to suppress evidence, a district court must make a "de novodetermination of those portions of the report or . . . recommendations to which objection is made." 28 U.S.C. § 636(b)(1). A de novo review requires a district court to make its own determination of disputed issues. See United States v. Portmann, 207 F.3d 1032, 1033 (8th Cir. 2000).
The Defendant objects to the factual findings of the Magistrate Judge. When a defendant objects to the factual findings of the magistrate judge, the district judge must make its own de novo determination of the facts with no deference to the magistrate judge's findings. See 28 U.S.C. § 636(b)(1); Fed. R. C. P. 72(b). In order to make a proper de novo review of a magistrate judge's report of factual findings, the district judge must make an independent review of the record, including tapes of evidence and the transcript of evidentiary hearings before the magistrate judge. See Portmann, 207 F.3d at 1033. The Court has conducted a de novo review of the record, including the transcripts of the evidentiary hearing on Defendant's motion to suppress the statement (Doc. 62).
In an effort to argue that his statement was involuntary, the Defendant objects at length to the Magistrate Judge's basis for discrediting a testifying psychologist's findings of involuntariness. In reaching this conclusion, the Magistrate Judge weighed the credibility of witnesses with conflicting testimonies, specifically the psychologist and Agent Dawson. The Magistrate Judge found Agent Dawson to be a credible witness. The Court is entitled to "give weight to the magistrate judge's credibility determination,"although the Court's review is to be de novo. United States v. Martinez-Amaya, 67 F.3d 678, 681 (8th Cir. 1995).
On February 24, 2009, Defendant was charged with two counts of abusive sexual contact with a child who has not attained the age of twelve years, in violation of 18 U.S.C. §§ 2245(a)(3) and 2246(3). The indictment alleges that Defendant engaged in abusive sexual contact with his infant daughters between August 1, 2007, and May 31, 2008.
Prior to being charged, Defendant traveled on his own to the federal building located in Pierre, South Dakota, where he was interviewed by FBI Agent Patrick Kleckner ("Kleckner") on October 17, 2008. After receiving his Griffin warnings, Defendant was advised that Kleckner was investigating a sex related offense involving Defendant's children. Defendant discussed the allegations, but he did not admit nor make inculpatory statements to Kleckner or to the other interviewing agent, FBI Agent Oscar Ramirez ("Ramirez"). At the conclusion of the one- to two-hour interview, the agents asked if Defendant would submit to a polygraph examination, to which Defendant agreed.
Defendant returned to the federal building on October 22, 2008, for his polygraph examination. Defendant met with Dawson in a room on the fourth floor of the federal building at approximately 10:00 a.m., where he specifically consented in writing to a polygraph examination and interview. Dawson testified at the motions hearing to the following. He advised the Defendant of his Miranda rights, as well as the right to refuse to take the test, the right to stop the test at any time, and the right to refuse to answer any individual questions. (T. 31).*fn1 The Defendant initialed that he understood these rights and his Miranda rights on an electronic advice of rights form, then signed and acknowledged that he was taking the test voluntarily and that no threats or promises had been used against him. (T. 31). Dawson advised Defendant that he was free to leave at any point during the interview by demonstrating that the door, though closed, was unlocked. (T. 32). After the rights advisement, Dawson conducted a pre-test interview which took approximately an hour and a half to two hours. Routinely, Dawson offers the interviewee a break after the pre-test interview, but he could not recall whether a break was taken with the Defendant. (T. 36). Dawson then conducted the polygraph examination and informed the Defendant that the test results were deceptive. The polygraph examination ended approximately two and a half hours after the Defendant first arrived for the interview. (T. 43). No break was given between the polygraph exam and the post-test interview. The post-test interview began at 12:38 p.m. A ten-minute break was taken at approximately 3:50 p.m. (T. 47). Fifteen to thirty-five minutes after returning from the break, the Defendant admitted to two separate incidents involving his daughters. (T. 48). At 4:50 p.m., after the formal post-test interview, Dawson offered the Defendant an opportunity to provide a summary statement either orally or in writing.
(T. 51). Defendant provided a summary taped statement which lasted fifteen minutes. At the end of the statement, at 5:05 p.m., Defendant left.
Dawson testified that during the interview of the Defendant, he did not raise his voice, yell, or get angry with the Defendant. (T. 45). The Defendant is a 42-year-old male with a high school degree and some technical training in carpentry. Kleckner testified that the Defendant had eight prior ...