United States District Court, D. South Dakota, Central Division
OPINION AND ORDER ADOPTING IN PART REPORT AND
RECOMMENDATION AND GRANTING IN PART MOTION TO
ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.
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.
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
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
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