United States District Court, D. South Dakota, Southern Division
REPORT AND RECOMMENDATION
VERONICA L. DUFFY, Magistrate Judge.
Defendant Lance Eugene Hunter, Jr. is before the court on an indictment charging him with attempted commercial sex trafficking in violation of 18 U.S.C. §§ 1591 and 1594(a). See Docket No. 2. Mr. Hunter now moves the court to suppress statements he gave during an April 10, 2015 interview with South Dakota Department of Criminal Investigation (DCI) Agent Josh Twedt. See Docket No. 17. The United States of America ("government") resists the motion. See Docket No. 19. The motion has been referred to this magistrate judge to hold an evidentiary hearing and to recommend a disposition pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16, 2014, standing order of the Honorable Karen E. Schreier, District Judge. The following is this court's recommended disposition.
An evidentiary hearing was held on this matter on July 23, 2015. Mr. Hunter was present in person along with his lawyer, Assistant Federal Public Defender Jason Tupman. The government was represented by its Assistant United States Attorney, Jeff Clapper. One witness (Agent Twedt) testified at the hearing and one exhibit (a DVD video recording of Mr. Hunter's interview with Agent Twedt) was received into evidence. From this evidence the court makes the following findings of fact.
In April 2015 federal and state law enforcement authorities, members of the South Dakota Internet Crimes Against Children (ICAC) were conducting an online undercover sting operation. The goal of the operation was to find persons who wanted to arrange commercial sex acts with minors. Ads were posted on Craigslist and Backpage.com. Mr. Hunter allegedly responded to one of these ads.
On April 10, 2015, Mr. Hunter was arrested and transported the Sioux Falls Law Enforcement Center. He was placed in an interview room at approximately 6:55 p.m. At approximately 7:10 p.m., South Dakota DCI Agent Josh Twedt entered the interview room. Agent Twedt informed Mr. Hunter he was under arrest and that he would like to ask Mr. Hunter some questions. Agent Twedt advised Mr. Hunter of his Miranda rights. Mr. Hunter indicated he understood his Miranda rights and he agreed to speak with Agent Twedt. Their conversation continued until approximately 7:36 p.m. The theme of Mr. Hunter's responses to Agent Twedt's questions was that Mr. Hunter's intent in arranging a meeting with the fictional minor was to help the victim and to understand her motivation in engaging in such conduct.
When Agent Twedt explained the possible consequences of a felony conviction and asked Mr. Hunter if he regularly engaged in conduct to help victims of sex trafficking, Mr. Hunter said "I guess um.... I feel like I am getting kind of put in a corner and made into something that is perceived you know and you guys have a right and everything so you, I feel like you are trying to..." At that point, Agent Twedt interrupted Mr. Hunter and told him he was going to leave the interview room to go get some other paperwork. Agent Twedt offered Mr. Hunter something to drink, which Mr. Hunter accepted. At 7:37, the following conversation occurred:
At 7:45 p.m. Agent Twedt re-entered the interview room and resumed the interview without mentioning the issue of whether Mr. Hunter wished to have an attorney present. He asked Mr. Hunter for the passcode for his cell phone. Mr. Hunter resisted giving him the passcode. Agent Twedt insisted that if Mr. Hunter did not give him the passcode, law enforcement would just get a search warrant anyway. Mr. Hunter again indicated he believed he was being led down a path he did not wish to be led down. After Mr. Hunter resisted giving Agent Twedt his passcode for the second time, he asked Agent Twedt "can I get a lawyer?" Agent Twedt said "yes you can, " and terminated the interview at 7:49 p.m.
A. Whether Mr. Hunter Unambiguously Requested Counsel.
The Fifth Amendment provides in part, "No person shall be... compelled in any criminal case to be a witness against himself..." U.S. Const. amend. V. The government bears a "heavy burden to demonstrate that [Mr. Hunter] knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." Miranda, 384 U.S. at 475. If a suspect expresses his desire to deal with law enforcement only through counsel, he cannot be subjected to further interrogation until a lawyer has been made available unless the suspect initiates further communication with law enforcement. Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981).
The Fifth Amendment right to counsel attaches at custodial interrogation, which usually occurs earlier in the legal process than the Sixth Amendment right to counsel, which attaches with the initiation of adversary judicial proceedings, whether by formal charge, preliminary hearing, indictment, information or arraignment. Hall v. State of Iowa, 705 F.2d 283, 289 and n. 4. (8th Cir. 1983). The Sixth Amendment provides in part that "[i]n all criminal prosecutions, the accused shall enjoy the right... to have the Assistance of Counsel for his defence." U.S. Const. amend. VI. "At the pre-indictment stage, appellant's sixth Amendment rights have not attached;..." In Re Grand Jury Subpoena Served Upon Doe, 781 F.2d 238, 243 (2d Cir. 1986). See also Kirby v. Illinois, 406 U.S. 682, 688 (1972) (plurality opinion):
[t]he initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law. It is this point, therefore, ...