The opinion of the court was delivered by: Deborah M. Smith United States Magistrate Judge
FINAL REPORT AND RECOMMENDATION REGARDING SUPPRESS STATEMENTS OF NOVEMBER 17 AND 18 2009 AND ALLEGED CONSENTS ON THE SAME DATES, FOR VIOLATION OF RULE 5, FEDERAL RULES OF CRIMINAL PROCEDUR EDEFENDANT'S MOTION TO
Defendant John Mark Felton (hereafter Felton) has been charged with one count of interstate travel with intent to engage in a sexual act with a child under the age of twelve in violation of 18 U.S.C. § 2241.
In this motion at Docket 33, Felton moves to suppress all statements attributed to him on November 17, 2009 and before 1:33 p.m. on November 18, 2009 and all alleged consents to search given on those two dates, as well as any fruits of that evidence. He argues that these things should be suppressed because they were obtained during an unnecessary delay in getting him in front of a magistrate judge for an initial appearance in violation of Rule 5(a) of the Federal Rules of Criminal Procedure.
The Government opposes the motion. It argues that Felton's Miranda waivers act as a waiver of his Rule 5(a) right to be promptly brought in front of a magistrate upon arrest. It also argues that the delay in this case was not unreasonable or unnecessary in that it was due to procedural court delays and was not deliberately created to allow the agents more time to talk to Felton without a lawyer.
Felton was arrested and interrogated on November 16, 2009. The facts surrounding Felton's initial encounter with law enforcement agents on November 16, 2009 are set forth in more detail in this Court's Report and Recommendation on Felton's motion at Docket 39 (Motion to Suppress Statements due to Miranda violations) and do not need to be repeated in full for this motion, as it directed solely to the issue of what happened on November 17, 2009 and November 18, 2009 leading up to his initial appearance on November 18 at 1:30 p.m. The facts in this Report and Recommendation focus on what happened between Felton's arrest and his initial appearance on November 18, 2009.
The basis of the charge against Felton stems from the allegation that Felton was the author of various internet chats that with "Kirby," who was actually Special Agent Kevin Laws acting in an undercover capacity as the father of a six-year-old boy and a seven-year-old girl. These chats allegedly detail the author's plan to travel to Alaska to have sexual relations with Kirby's six-year-old boy.
Felton arrived at the Anchorage airport at 10:36 p.m. (Tr. Vol. 1 at 52, 142). Federal agents were awaiting his arrival and had him under surveillance. Felton quickly deplaned with one backpack and, after a short stop at the restroom, proceeded to the baggage claim to wait for his one checked bag. (Tr. Vol. 1 at 83, 188). Special Agent Dean Wauson with the U.S. Immigration and Customs Enforcement (ICE) and Alaska State Trooper Nathan Bucknall approached him. (Tr. Vol. 1 at 81, 143, 189). Agent Wauson told Felton he was a federal agent and asked if Felton would accompany them to a private location to talk. (Tr. Vol. 1 at 143, 190). Felton agreed to accompany them without questions. (Tr. Vol. 1 at 54, 84, 143, 190). Felton had to leave his checked bag behind and other agents kept it. (Tr. Vol. 1 at 144). He was allowed to bring his backpack with him. Agent Wauson testified that although they asked Felton to voluntarily accompany them, he would not have been free to leave if he had denied their request. (Tr. Vol. 2 at 46-47).
The officials took Felton to the airport security offices located one level above the baggage claim. They had to wait a couple minutes while the door to the security offices was opened for them. (Tr. Vol. 1 at 144, 190). Once opened, they took Felton into an interview room. It was a small room with two desks inside of it. Felton, Trooper Bucknall, and Agent Wauson all went inside.
At this point it was approximately 11:00 p.m., give or take a few minutes. (Tr. Vol. 1 at 145,180; Gov. Ex. 13). Felton was read his Miranda rights and signed a waiver of those rights. He was interviewed for about an hour and a half. At the end of the interview, Felton asked Agent Wauson how he could find a respectable attorney. (Tr. Vol. 1 at 156; Tr. Vol. 2 at 6). Agent Wauson testified that he believed Felton was asking how to find a reputable attorney that would not take advantage of his economic status. (Tr. Vol. 2 at 6-7). Agent Wauson told Felton that some attorneys would simply take his money to buy a boat and stressed to Felton that their case against him was strong. (Tr. Vol. 2 at 6-7; Def. Ex. B at 163). He was transported to the Anchorage jail at about 12:45 a.m. on November 17, 2009.
At 8:08 a.m. on November 17, 2009, Agent Wauson submitted a notification of Felton's arrest to the Clerk of Court for the District of Alaska. (Gov. Ex. 2). The clerk's office emailed Agent Wauson to confirm its receipt of the arrest notice. The email stated that the notice was received and that the arrest would be processed once a charging document was received. (Gov. Ex. 3). It is not clear from the evidence on record what all transpired regarding the drafting and filing of the charging document that day. Agent Kevin Laws was in charge of this step. (Tr. Vol. 2 at 92). Agent Wauson testified that he did not know when Agent Laws prepared the complaint or when he took it to the judge's chambers for execution. (Tr. Vol. 2 at 92). Based on the evidence and the parties' stipulations, the Court finds as follows:
1) The complaint was docketed in the court's electronic filing system at 4:54 p.m. on November 17, 2009 by a staff member from the clerk's office (Gov. Ex. 6; Tr. Vol. 2 at 130);
2) The complaint itself does not have a time stamp to indicate when it was signed by the judge (Tr. Vol. 2 at 132);
3) Once the judge signed the complaint, it is in the judicial assistant's control, and the judicial assistant takes the complaint to the clerk's office for processing (Tr. Vol.2 at 133);
4) The judicial assistant does not have an individual recollection of when the complaint was signed and when she brought it up to the clerk's office (Tr. Vol. 2 at 132-133);
5) An order setting the initial appearance was docketed in the court's electronic filing system at 4:56 p.m. on November 17, 2009 by a staff member from the clerk's office (Gov. Ex. 7; Tr. Vol. 2 at 131);
6) The initial appearance was originally set for November 18, 2009 at 11:30 a.m. (Gov. Ex. 7);
7) An amended order changing the time for the initial appearance was docketed at 5:06 p.m. on November 17, 2009 by the judge's judicial ...