United States District Court, D. South Dakota, Central Division
OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION
AND DENYING MOTION TO SUPPRESS
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Martin Rezac moved to suppress a statement he gave on
November 27, 2015, to two agents of the Federal Bureau of
Investigation (FBI); Doc. 24, After holding an evidentiary
hearing, Magistrate Judge Mark A. Moreno issued a Report and
Recommendation for disposition of Motion to Suppress
Statements, recommending that Rezac's motion be denied in
its entirety. Doc. 54. Rezac filed objections to that Report
and Recommendation, contending: 1) that Rezac's oral
waiver of his Miranda rights was not knowing,
voluntary, and intelligent; and 2) that Rezac's
statements were not voluntary because he was misled about why
the FBI wanted to interview him. Doc. 55 at 2-3. This Court
has conducted a de novo review of the record, overrules
Rezac's objections, adopts the Report and Recommendation,
and denies the Motion to Suppress.
November of 2015, Rezac suffered serious injuries in an
explosion at his home in South Dakota. Due to the extent of
the injuries, Rezac was transported to Regions Hospital in
St. Paul, Minnesota. Ex. 1 at 4:10.. The medical records
state that Rezac sustained a "blast injury while making
flash paper for amateur magic, " Doc. 46 at 84,
this is what Rezac initially maintained during the interview,
Ex. 1 at 1:34.
November 27, 2015, around 6:00 p.m., FBI agents Bradley
Murkins and Gina Palokangas interviewed Rezac in his hospital
room at Regions Hospital. See Ex. 1. South Dakota authorities
suspected that Rezac was involved with explosives and
requested that Special Agent Murkins, who had a background as
a bomb technician, interview Rezac. Tr. at 6-7. The FBI
agents spoke with the charge nurse to ask if they Could speak
to Rezac, and she told them that they could. Tr. at 7. Rezac
was on a hospital bed, reclined, and on some pain medication.
Tr. at 7. Nearly all of the FBI agents' conversation with
Rezac is recorded, Ex. 1, with the recording beginning at
6:18 p.m. and lasting until 6:59 p.m, Tr. at 17.- All but a
brief introduction is captured on the recording. Tr. at 10.
introducing themselves and showing their FBI credentials, Tr.
at 8, Special Agent Murkins read Rezac his Miranda
rights off of the FC-395 card, Tr. at 8-9; Ex. 1 at:3O. Rezac
nodded his understanding after hearing each right read to
him. Tr. at 9. Rezac's primary injuries were to his
hands, and his hand was sufficiently injured that the FBI
agents did not ask him to sign a waiver of rights form. Tr.
at 9. Special Agent Murkins asked if Rezac was willing to
waive his rights, and Rezac responded "yeah." Tr.
at 18; Ex. 1 at 1:03. Rezac then said "to a certain
extent" and something like "until I feel
uncomfortable" as Special Agent Murkins was announcing
the time to be 6:18 p.m. Tr. at 18; Ex. 1 at 1:19.
agents questioned Rezac about various matters, and Rezac
spoke extensively about chemicals used to make explosive
devices and the source of his information on that subject.
Ex. 1 at 5:00-11:35. Initially, Rezac stated he was making
flash powder for magic, that he had made it only a few times
before, and that he placed in it paper tubes or pill bottles
that he threw down prairie dog holes. Ex.. 1 at 24:05-27:14.
Rezac eventually admitted making hexamethylene triperoxide
(HMTD), but said he intended to use the HMTD to shoot rockets
into the air. Ex. 1 at 29:29, 33:45. Rezac repeatedly denied
having additional explosives in his home or anything else
that would be injurious to anyone visiting his home. Ex. 1 at
20:47, 22:53, 24:55, 30:30, 36:00. Rezac also repeatedly
denied making any threats to the Veterans Administration
(VA), including specifically to the Hot Springs campus,
because "no, we can't hurt people." Ex. 1 at
point, Rezac asked if the FBI agents would hand him a drink,
and Special Agent Murkins immediately responded "yea,
sure, " at which point Agent Palokangas seems to have
helped Rezac drink because of his hand injuries. Ex. 1 at
14:05. Rezac then began coughing about midway through the
interview, and Special Agent Murkins asked if Rezac was
alright and if he wanted something to drink. Ex. 1 at 21:31.
Special Agent Murkins offered to stop for awhile after Rezac
said he needed to use his nebulizer. Ex. 1 at 21:38. As
Special Agent Murkins was announcing that he was going to
stop the interview for a break, Rezac interrupted and said,
"no, I ain't planning on blowing nothing up or
making nothing like that, " continuing the interview.
Ex. 1 at 21:45. About twenty minutes later, at 6:59 p.m., the
interview ended and the FBI agents left, after informing
Rezac that they may be back for further questioning, but he
would have his Miranda rights read to him again, and
he could choose whether or not to speak to the agents. Ex. 1
was indicted on three counts on April 13, 2016. Doc. 1. Count
I alleges that on December 11, 2014, Rezac used a telephone
to willfully threaten to damage and destroy a building on the
Hot Springs Campus of the VA Black Hills Health Care System
by means of an explosive device in violation of 18 U.S.C.
§ 844(e). Doc. 1 at 1. Count II alleges that between
June 1, 2015, and November 26, 2015, Rezac used a telephone
to threaten to kill, injure, and intimidate a registered
nurse at the VA Medical Center in Sioux Falls, and to damage
and destroy a building on the Sioux Falls Campus of the VA
Sioux Falls Health Care System by means of an explosive
device in violation of 18 U.S.C. § 844(e). Doc. 1 at
1-2. Count III alleges that on November 27, 2015, Rezac made
false statements and representations to FBI Special Agents
Murkins and Palokangas regarding the nature of explosive and
dangerous items at his residence, in violation of 18 U.S.C.
§ 1101. Doc. 1 at 2.
Standard of Review
Court reviews a report and recommendation pursuant to the
statutory standards found in 28 U.S.C. § 636(b)(1),
which provides that "[a] judge of the [district] court
shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to
which objection is made." 28 U.S.C. § 636(b)(1). In
particular, a district court can "accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge." Id. Rezac
objects to the Report and Recommendation because he believes
that his waiver of Miranda rights was invalid and
his statements were not voluntary.
Miranda Rights and Waiver Thereof
Fifth Amendment provides that "[n]o person . . . shall
be compelled in any criminal case to be a witness against
himself. . . ." U.S. Const, amend. V. In Miranda v.
Arizona, the Supreme Court of the United States declared
that the government cannot use statements of the defendant
that derive "from custodial interrogation of the
defendant unless it demonstrates the use of procedural
safeguards effective to secure the privilege against
self-incrimination." 384 U.S. 436, 444 (1966). The
Supreme Court explained that custodial interrogation means
"questioning initiated by law enforcement officers after
a person has been taken into custody or. otherwise deprived
of his freedom of action in any significant way."
Id. Thus, there are two predicates that need to be
satisfied in order for Miranda warnings to apply: 1)
the suspect must be in custody or otherwise deprived of
freedom of action; and 2) there must be an interrogation.
SeeId. If both custody and interrogation