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United States v. Cordier

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

December 16, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
JOSEPH EDWARD CORDIER, Defendant.

          OPINION AND ORDER ADOPTING IN PART REPORT AND RECOMMENDATION AND GRANTING IN PART MOTION TO SUPPRESS

          ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.

         Joseph Cordier moved to suppress statements he made to a law enforcement officer, arguing that the officer violated Miranda v. Arizona, 384 U.S. 436 (1966) and that his statements were involuntary under the Fifth Amendment. The magistrate judge issued a report and recommendation recommending denying Cordier's motion, and Cordier has now objected to that recommendation. For the reasons explained below, this Court concludes that Cordier's statements are inadmissible in the government's case-in-chief but agrees with the magistrate judge that the statements were voluntary.

         I. Facts

         In November 2014, an FBI special agent interviewed Cordier at the jail in Winner, South Dakota about Cordier's alleged sexual abuse of D.F., the minor daughter of Cordier's ex- girlfriend. Before asking Cordier any questions, the FBI agent advised Cordier of his Miranda rights using an advice-of-rights form. That form read in part:

Before we ask you any questions, you must understand your rights. You have the right to remain silent.
Anything you say can be used against you in court. You have the right to talk to a lawyer for advice before we ask you any questions.
You have the right to have a lawyer with you during questioning. If you cannot afford a lawyer, one will be appointed for you before any questioning if you wish.
If you decide to answer questions now without a lawyer present, you have the right to stop answering at any time.

Ex. 5. The FBI agent read the form aloud, pausing after each line to ask Cordier whether he understood the right being explained. Ex. 1 at 02:05-03:23. Each time, Cordier confirmed that he did. Ex. 1 at 02:05-03:23. The FBI agent then read the "Consent" portion of the form to Cordier and asked him to sign it. Ex. 1 at 03:25-04:05. The "Consent" portion of the form stated: "I have read this statement of my rights and I understand what my rights are. At this time, I am willing to answer questions without a lawyer present." Ex. 5. Cordier looked at the form before the following exchange took place:

Cordier: So I'm not surrendering any rights right now?
FBI agent: What's that?
Cordier: I'm not surrendering any rights?
FBI agent: No, no, of course not. I am advising you of your rights. And you are, you know, you are allowing me to talk to you, and so you are waiving your rights. But like I said on this last one, uh it's the most important one, this is completely voluntary. The only reason why I am doing this is because you are in custody by something completely unrelated from local stuff here. That's the only reason why I'm reading this to you. Okay?
Cordier: But I don't wanna waive my rights though.[1]
FBI agent: Well, I mean, you have to first waive your rights in order for me to talk to you. It says here "I have read the statement of my rights and I understand what my rights are." Okay? What you, what you're doing is that you are going ahead and you understand all of your rights that you have at any time. Okay? And what you're doing is at this time you are willing to answer questions without a lawyer present. If you understand all of this and at this time you are willing to answer questions, go ahead and sign there. And basically uh, at any time like I said here, you can talk to me.

Ex. 1 at 04:05-05:37. Cordier said "okay" and signed the form, after which he and the FBI agent discussed ...


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