The opinion of the court was delivered by: J. Phil Gilbert United States District Judge
This matter comes before the Court on defendant Erich Karl Umgelder's ("Umgelder") amended motion to suppress (Doc. 24). The government has responded to the motion (Doc. 28), and Umgelder has replied to that response (Doc. 29). The Court held a hearing on the motion beginning on October 25, 2007, and concluding on November 19, 2007. At that hearing, Federal Bureau of Investigations Special Agent Jon Ford, Illinois State Police Special Agent Breton O'Neill and Southern Illinois University Police Detective David Stewart testified for the government in its case-in-chief. Defendant Umgelder testified on his own behalf. Carbondale Police Officers Erik Ruhe and Adam Boyd, Carbondale Police Detective Brooke Hammel, and Special Agent Ford testified in the government's rebuttal case.
Umgelder is charged in this case with one count of distributingchild pornography in violation of 18 U.S.C. § 2252A(a)(2)(A) and one count of possessing child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B). His pending amended motion to suppress (Doc. 24) seeks to exclude oral and written statements he made to law enforcement agents and physical evidence (including his computer) seized from his apartment on or around April 19, 2007, as well as any "fruit of the poisonous tree." On April 19, 2007, law enforcement officers entered Umgelder's apartment, which he shared with Timothy McSwain, to execute a search warrant.
The search warrant authorized law enforcement officers to search the apartment for and seize, among other things:
All visual depictions, including still images, videos, films or other recordings of child pornography or minors engaged in sexually explicit conduct, as defined in Title 18, United States Code, Section 2256, and any mechanism used for the receipt or storage of the same, including, but not limited to, any computer, computer system and related peripherals . . . . (emphasis added). Pursuant to the warrant, the officers seized Umgelder's computer. Child pornography was later found on the computer.
While the search was going on, Special Agent Ford and Detective Hammel questioned Umgelder in his bedroom. In response to their questions, he gave an oral statement and then a written statement, both of which contained incriminating statements. The questioning lasted for approximately two hours. The written statement was approximately one and a half pages long and took about an hour for Umgelder to write. Umgelder also marked a list of his computer files with "CP" to indicate child pornography. No law enforcement officer read Umgelder his Miranda warnings before he gave his statements or marked the file list. The law enforcement officers left Umgelder's apartment without formally arresting him, although they arrested him later that day.
Umgelder argues that his statements should be suppressed because he was not given his Miranda rights prior to his questioning by Special Agent Ford and Detective Hammel and that, as a consequence, the government's use of those statements at trial would violate his Fifth Amendment right not to incriminate himself. He also challenges whether the search warrant was sufficiently specific to be reasonable under the Fourth Amendment and whether the search warrant was supported by probable cause.
I. Fifth Amendment: Self-incriminating Statements
The Fifth Amendment provides that "no person . . . shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. 436, 460-61 (1966), the Supreme Court determined that the rule against self-incrimination attaches, and is "fully applicable during a period of custodial interrogation." The Supreme Court requires police to comply with certain "prophylactic" procedures before questioning an individual in custody. "[T]hey must fully apprise the suspect of the State's intention to use his statements to secure a conviction, and must inform him of his rights to remain silent and to 'have counsel present . . . if [he] so desires.'" Moran v. Burbine, 475 U.S. 412, 420 (1986) (quoting Miranda at 468-70); accord Dickerson v. United States, 530 U.S. 428, 435 (2000). The Miranda requirements are constitutional, not simply an exercise of the Supreme Court's supervisory authority to regulate evidence. Dickerson, 530 U.S. at 438, 444.
Statements gathered from a suspect in custody without giving Miranda warnings carry an irrebuttable presumption of involuntariness and are inadmissible in the prosecution's case in chief, even if seemingly voluntarily made by other standards. Oregon v. Elstad, 470 U.S. 298, 306 (1985). If a suspect unambiguously invokes his rights under Miranda, he is not subject to further interrogation until counsel is present or until he initiates further discussions. Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). However, if a suspect waives his right to counsel after receiving the Miranda warnings, law enforcement officers are free to question him. North Carolina v. Butler, 441 U.S. 369, 372-376 (1979).
An individual is "in custody" for Miranda purposes when "there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam); accord Oregon v. Mathiason, 429 U.S. 492, 494 (1977) (per curiam). The determination requires an objective, two-part inquiry: "[F]irst, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave." Thompson v. Keohane, 516 U.S. 99, 112 (1995) (internal quotations omitted), cited in Yarborough v. Alvarado, 541 U.S. 652, 124 S.Ct. 2140, 2149 (2004). "[T]he test is not whether the defendant was under a subjective belief that his or her movements were restricted, but whether a reasonable person in the defendant's position would believe that he or she was free to leave." United States v. Lennick, 917 F.2d 974, 977 (7th Cir. 1990).
To determine whether a defendant was in custody, the Court considers the totality of the circumstances, including "the length of the interrogation, the purpose of the questioning, and the location of the interrogation," id., as well as "whether the encounter occurred in a public place; whether the suspect consented to speak with the officers; whether the officers informed the individual that he was not under arrest and was free to leave; whether the individual was moved to another area; whether there was a threatening presence of several officers and a display of weapons or physical force; and whether the officers' tone of voice was such that their requests were likely to be obeyed," United States v. Thompson, 496 F.3d 807, 810-11 (7th Cir. 2007). The defendant carries the burden of making an initial showing of custody. See Lennick, 917 F.2d at 977.*fn1
In this case, Umgelder argues that he was "in custody" in his bedroom when law enforcement questioned him and therefore should have been given Miranda warnings before that questioning. He testified that law enforcement officers entered his room on the morning of April 19, 2007, with guns drawn and that Special Agent Ford's gun was clearly visible during his questioning of Umgelder. He also testified that he was surprised, upset and confused by the questioning and that Special Agent Ford did not advise him that he was free to leave or to refuse to answer any questions, effectively blocked his way to the door, and behaved in a threatening, aggressive manner. He further testified that Special Agent Ford dictated his confession to him, and he wrote it down word for word as it was dictated because Special Agent Ford compelled him to.
Other witnesses' testimony was diametrically opposed to Umgelder's in most material respects. For example, the law enforcement officers who entered Umgelder's room testified that they did not have their guns drawn, and Special Agent Ford testified that his gun was tucked beneath his clothing so that Umgelder could not have seen it from the outside. Special Agent Ford and Detective Hammel testified that, although Umgelder was upset, he was told he was free to leave, that no one was blocking Umgelder's path to leave his room, that the questioning was not aggressive or threatening, and that no one dictated Umgelder's written statement to him or forced him to write it, although Special Agent Ford did prompt him by suggesting areas of his existing writings on which he could elaborate. The testimony of law enforcement officers, which contradicts Umgelder's testimony, is bolstered by Umgelder's acknowledgment in his written statement that he was giving the ...