The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
RECOMMENDATION REGARDING MOTION TO SUPPRESS (Docket No. 22)
Defendant Jeremy Ross Diermyer moves to suppress his statements taken during interrogation on August 6, 2010 in a hotel room at the Dimond Mall Hotel on the south side of Anchorage. Docket 22. The motion is opposed by the United States. Docket 24. Counsel requested an opportunity to file further briefing after the evidentiary hearing.*fn1 An evidentiary hearing was conducted before the magistrate judge on September 29, 2010. Diermyer filed a Notice of Non-Filing of Supplemental Brief at Docket 37. No further pleading was filed by the government.
The government agrees not to offer at trial the question posed by Special Agent Kevin Laws to which Diermyer declined to answer, namely, ". . . if it wasn't for us intervening, and that little girl was sitting right here now, you would be taking pictures of her naked, wouldn't you?"*fn2 The parties disagree about whether subsequent questioning by Alaska State Trooper Nathan Bucknall should also be suppressed. The outcome depends upon whether Trooper Bucknall scrupulously honored Diermyer's assertion of silence to the question whether he intended to photograph BK nude that evening.*fn3 For reasons discussed below, the magistrate judge concludes that the motion to suppress certain colloquy between Trooper Bucknall and Jeremy Diermyer during this interrogation should be granted.
Prior to August 6, 2010, Diermyer was the subject of an investigation by law enforcement officers for the offenses of production of child pornography and enticing a minor using the internet. On the afternoon of August 6, officers arrived at the Dimond Mall parking area in anticipation of Diermyer meeting an alleged victim at the Dimond Mall and/or Dimond Mall Hotel. Officers had learned that Diermyer reserved a room for that evening at the Hotel.
Officers intercepted Diermyer in the parking between the mall and hotel and detained him in a police vehicle. Trooper Bucknall went to the Dimond Center Hotel and obtained a key for the room Diermyer reserved. Officers had obtained a search warrant for the room (10-mj-107-DMS) and brought Diermyer there for a private interview. The interrogation commenced about 6:15 to 6:30 PM.
Officers learned that Diermyer stated that he had a weapon in the room and officers removed the weapon. While the questioning was conducted Diermyer was handcuffed with his hands in front. The interrogation lasted just over one hour.
Officers made a digital audio recording of the interrogation on a recorder that was placed on a nearby bed. Present during the interrogation were Homeland Security Investigations (formerly ICE) Special Agent (SA) Kevin Laws and Alaska State Trooper Nathan Bucknall.
Prior to the questioning, SA Laws read Diermyer his Miranda rights. Diermyer was advised of his rights as follows: "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 (indiscernible) before we ask you any questions, and to have him with you during questioning. If you cannot afford a lawyer, one will be appointed for you before questioning, if you wish. If you decide to answer questions now without a lawyer present, you will still have the right to stop questioning at any time until you talk to a lawyer." Exhibit 2, Transcript of Contact Interview, pp. 3-4) SA Laws asked Diermyer if he understood each of those advisements as they were stated. Diermyer indicated that he did and also replied "yes" to whether he understood what had been read to him. Exhibit 2, p.4. SA Laws then asked Diermyer if, having those rights in mind, he wished to talk to them. Diermyer responded: "Yes." Id. p.4.
SA Laws then told Diermyer that he was under arrest and asked him about his purpose in coming to that location. Diermyer indicated that he was meeting an individual named BK. The agent asked Diermyer to explain what was going to happen when she arrived. There was a discussion about Diermyer taking photographs of BK and another person named S who was supposed to come to the location at 8:00 PM. SA Laws asked about the ages of BK and S and what kind of photo shoot was going to take place. Diermyer indicated that BK was going to be clothed whereas the one with S was going to be a nude photo shoot. Exhibit 2, p.8.
The agent asked how many other "models" he had photographed in a hotel setting. Diermyer indicated that he had previously taken photographs of an adult woman who worked at a night club using the name Jade. Discussion ensued about Diermyer getting releases from the other females to use their photographs.
Diermyer asked what offense he was charged with and SA Laws told him that he was charged with enticement of a minor using the internet and attempted production of child pornography. There was a discussion about whether Diermyer had any nude photographs of the identified juvenile females. Diermyer indicated that he had photos on his computer but that he did not believe there were any nude pictures. SA Laws did not ask Diermyer about the kind of pictures he had taken of the other juveniles.
SA Laws told Diermyer that they had intercepted chats that were explicit about wanting to take pictures of a naked little girl. Exhibit 2, p.16. SA Laws then asked Diermyer if his intention was to photograph little girls. Diermyer responded "No." Exhibit 2, p.16. The agent asked Diermyer to explain how that could be, considering the circumstances, and Diermyer responded that he had after thinking about it, ". . . an error in judgment." Exhibit 2, p.17.
SA Laws: So, you are - - you're intention, you know - - if it wasn't for us intervening, and that little girl was sitting right here now, you would be taking pictures of her naked, wouldn't you?
Answer: I don't think so. No, sir.
Question: You don't think so?
Question: So that's not a definite, No. If you had the opportunity, and she's sitting right here, you, more than likely, would."
After a long pause Diermyer responded "I'm not gonna answer either way, Sir."
SA Laws: Question: You're not going to answer either way, Okay.
SA Laws asked questions on different topics. SA Laws asked Diermyer: Who was at his house? Was he at his home last night? Where are you employed? Would we find more computers full of pictures at your house? Is there child pornography images on your laptop? What is you definition of "child pornography"? Do you have pictures of naked children on your computer? Do you use encryption? Did you buy your computer new? What is your password? Do you use your wife's computer? How big is your hard drive? What kind of cameras do you have? Diermyer demonstrated that he was able to consider each of these questions individually and declined to give his password. These questions by SA Laws are not challenged by the defendant in his motion to suppress.
Interrogation began by Trooper Bucknall who prefaced his first question with a statement that "we know you were going to do it -- the question is why? " Exhibit 2. p.26 lines 1-24. He told Diermyer that they knew what he had said in his chats and he was not discussing that but was more interested in why he wanted to take nude photographs of "her." In his response, Diermyer stated that he didn't plan on taking the photos and then explained that he and his wife were having marital problems. Trooper Bucknall stated that he needed "to understand why [Diermyer] decided to take these nudes and what [his] intent of them was. Exhibit 2, p.30, line 24 - p. 31, line 1. The Trooper asked Diermyer if he had any intent to put any of the pictures on the internet. The Trooper told Diermyer that he should "own up to his mistakes" especially since he was in the military and that he had to acknowledge his problem before a solution could be found. There was a discussion about the definition of child pornography and what Diermyer intended to do with the photographs if he took them.
In another question Trooper Bucknall stated "[y]ou know, you made a choice to take these sexual pictures of her, and that's where the error in judgment came." Exhibit 2, p.42, line 24 - p.43, line 1.
Trooper Bucknall told Diermyer that he knew there were a couple of things he didn't want to talk about, but, "it was very obvious you were gonna take [the photographs]," and that Diermyer was trying to get [the juvenile] to send [him] pictures of herself nude. Exhibit 2, p.46, lines 4-7. He then asked Diermyer if there was anything he wanted to ...