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United States v. Henry

United States District Court, D. South Dakota, Central Division

June 1, 2016



          MARK A. MORENO, Magistrate Judge.

         Law enforcement received a report that James Wade Henry, Sr. sexually abused his 3-year-old daughter while sleeping with her in a home on the Rosebud Indian Reservation. Federal and tribal agents interviewed him at his place of employment and he made statements to them which he now seeks to suppress. He also seeks to exclude evidence gleaned from a warrant-authorized search of his cell phone. Because the statements and evidence were lawfully obtained, the Court recommends that Henry's suppression motion be denied.


         On September 29, 2014, FBI Special Agent Alicia Rowland received a report from Social Services about child sexual abuse allegations involving Henry. The next day, the agent met with Amanda Brave, who had made the report, and obtained a statement as to what transpired the night of September 27-28, 2014.

         That night, Brave stayed with Henry, her boyfriend, at his mother's home in St. Francis, South Dakota. Also present were Henry's two daughters, J.K.H. (age 3) and J.M.H. (age 6). All four of them slept together in Henry's bed. Brave put J.K.H. in a nightie type of outfit with a top that attached to shorts. J.K.H. asked to sleep next to Brave and laid down between Brave and Henry. J.M.H. bedded down on the opposite side of Henry.

         Around midnight, Brave awoke to Henry moving J.K.H. to his other side, away from Brave, and next to J.M.H. Brave was now next to Henry, lying on his side with his back toward her. J.K.H. was lying on her back with her right leg over Henry's hip. Brave saw Henry spit into and put his hand down near J.K.H.'s genital area. Brave then sat up and observed Henry rubbing the child's vagina, in a circular motion, under her shorts.

         Not knowing exactly what to do, Brave got out of the bed, took Henry's cell phone into the bathroom and called her cousin, Shana Schmidt. Brave informed Schmidt that she had just seen Henry sexually touching his 3-year-old daughter. Schmidt told Brave she should get out of the house. Brave went back to the bedroom, gathered her belongings, and left in Henry's car with his cell phone. She drove the car until it ran out of gas at the White River junction. There, she called Schmidt on Henry's phone and Schmidt came and picked Brave up.

         Brave still had Henry's cell phone when she met with Agent Rowland. Brave knew his password and had looked at photos on the phone. They included pictures of J.K.H. and J.M.H. in their underwear. One of the photos was of J.K.H. lying on a fold-out bed with her head turned away from the camera. Agent Rowland took possession of the phone, which had been turned off, but did not power it up or otherwise browse through its data.

         On September 30, 2014, Agent Rowland and Mark Kettell, a special agent with the Rosebud Sioux Tribe Law Enforcement Services, drove to the TECRO office building in Rosebud, South Dakota, where Henry worked, to interview him. Henry invited the agents back to his office and talked to them for less than 40 minutes. Most (about 37 minutes), but not all, of the interview was tape recorded. Before turning the recorder on, Agent Rowland advised Henry that he was not under arrest and that the interview was voluntary. Henry agreed to speak with the agents, denied over and over that he ever touched J.K.H. in a sexual way and requested a polygraph examination. He also maintained that Brave had concocted a story to get back at him and that the photos on his phone were taken by J.M.H. and not him. When the interview was over, the agents left together and did not arrest Henry.

         More than a year later, Henry was indicted and arrested for aggravated sexual abuse and abusive sexual contact of J.K.H. After pleading not guilty to both offenses, he filed a motion to suppress the statements he made to Agents Rowland and Kettell and the evidence obtained from his cell phone. A hearing was held on the motion at which the agents testified and 12 exhibits were received into evidence, including an audio recording of Henry's interview.


         A. Statements

         1. Custody

         Henry initially claims that his statements to Agents Rowland and Kettell, on September 30, should be suppressed because he was never advised of his Miranda rights. Miranda requires that law enforcement officers provide certain warnings before they conduct an interrogation of a suspect who is in custody.[1] Henry contends that he was in custody when the agents questioned him about sexually abusing his daughters and that he should have been Mirandized before they did.

         "Custody" is a "term of art" that describes circumstances generally thought "to present a serious danger of coercion."[2] The initial step in determining whether a person is in custody is to ascertain whether, in light of "the objective circumstances of the interrogation, "[3] a "reasonable person [would] have felt he [ ] was not at liberty to terminate the interrogation and leave."[4] When gauging the person's freedom of movement, a court must examine "all of the circumstances surrounding the interrogation."[5] Pertinent factors include being informed that he is or is not under arrest, [6] "the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning and the release of [him] at the end of the questioning."[7]

         Before being questioned, Agent Rowland informed Henry that he was not under arrest and that the interview was voluntary. These admonitions have long been regarded as weighty in the custody analysis. And the Eighth Circuit Court of Appeals has "never held that a [suspect] was in custody after receiving them."[8] "The most obvious and effective means of demonstrating that a suspect has not been taken into custody... is for [agents] to inform the [suspect] that an arrest is not being made and that [he] may terminate the interview at will."[9] Advising the suspect that he is not under arrest, and that his participation in questioning is voluntary "is highly probative of whether a reasonable person would feel that he may terminate the interview and leave."[10]

         Henry was questioned in a room he selected in the building where he worked. This location was one he was familiar with and was not indicative of the type of inherently coercive setting that normally accompanies a custodial interrogation. And it certainly would have softened the hard aspects of the agents' interrogation and moderated his sense of being held in custody.[11]

         At no time was Henry deprived of his freedom of movement to the degree associated with a formal arrest. He was never handcuffed, physically restrained or otherwise confined.[12] Significantly, when the interview ended, he was not arrested, and the agents departed on their own, leaving him to do whatever he wanted.[13]

         The fact that Henry was outnumbered and questioned in a closed room did not make the atmosphere police dominated. The interview was relatively short - lasting just under 40 minutes - and was conducted primarily by one agent. The agents were visitors to his work place and never took control of the site or any other persons there. Henry acquiesced to the agents' request for an interview and responded to their questions without hesitation and, at times, in a steadfast manner. The context of and the statements made during the interview do not show that it was "custodial, " within the meaning of Miranda. [14]

         Any strong-arm tactics or deceptive stratagems Agent Rowland may have used did not result in or serve to transform the interview into a custodial one. Letting Henry know that he could face additional charges for lying to a federal officer and lose J.K.H. and J.M.H. and falsely informing him that his daughters had disclosed sexual abuse, although perhaps coercive, are largely irrelevant to the custody determination. This is because a reasonable person in Henry's shoes would not have perceived these statements as restricting his ability to terminate the interview and leave.[15] Whatever relevance the agents' statements may have had to other issues in the case, the statements had nothing to do with whether Henry was in custody for purposes of the Miranda rule.[16]

         Having studied the scene and reconstructed the events surrounding the interview, the Court is convinced a reasonable person in Henry's position would not have understood he was in custody while briefly conversing with Agents Rowland and Kettel at his job site. The agents, thus, were not required to warn him of his Fifth Amendment privilege against self-incrimination and his right to the assistance of counsel, under Miranda, before communicating with him. Inasmuch as the precepts of Miranda were adhered to, Henry's attempt to suppress his statements on custody grounds must fail.

         2. Voluntariness

         Henry also argues that the statements he made on September 30 were involuntary. He maintains that his statements were the product of undue influence based on the manner in which he was interrogated and Agent Rowland's statements and misconduct.

         The Due Process Clause of the Fifth Amendment "does not mandate that [agents] forego all questioning, or that they be given cart blanche to extract what they can from a suspect."[17] The test is one of voluntariness: Were the statements "the product of an essentially free and unconstrained choice by [their] maker?"[18] If so, the suspect has "willed [himself] to confess, " or at least agreed to uninhibitedly speak with agents, and his statements may be used against him.[19] If not, "the use of his [statements] offends due process."[20] The dispositive question, in terms of voluntariness, is whether the statements were obtained by "threats, violence, or express or implied promises sufficient to overbear the [suspect's] will and critically impair his capacity for self-determination."[21] When deciding this question, a court must look to the totality of the circumstances, including the "conduct of [agents] and the characteristics of the [suspect].[22]

         There is no proof - worthy of belief - that Henry, who was a 38-year-old high school graduate at the time, was coerced into making any statements against his will. He agreed to speak with Agents Rowland and Kettel, escorted them to his office and closed the door to it. There he was advised of the nature and purpose of the interview and that it was voluntary. At no time did the agents ever make any physical threats or promises to Henry or even touch him. The duration, tone and overall atmosphere of the interview were not hostile or intimidating. While with the agents, Henry was not under the influence of alcohol or drugs and nothing he said or did indicated that he suffered from any kind of cognitive impairment.

         It is true that Agent Rowland used deception and other techniques to elicit inculpatory admissions from Henry. But the techniques she employed had little or no intrinsic effect on him.[23] Notably, he:

1. denied engaging in any sex acts with his daughters, repeatedly proclaiming that he did not touch or molest them;
2. remarked that Brave made up the sexual abuse story (involving he and J.K.H.) to get back at him because he told her he no longer wanted to be in a relationship with her and because he had reported his vehicle and cell ...

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