The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Defendant Charles Todd Stokes is charged with traveling to Thailand for the purpose of engaging in sexual contact with a minor, in violation of 18 U.S.C. § 2423(b). At trial, the government may seek to admit evidence that Stokes made potentially incriminating statements to Thai and U.S. law enforcement officers during the search of his residence in Thailand and subsequent questioning at a Thai Police station. Because there are disputes concerning whether Stokes was in custody at the time he gave the statements and whether they were voluntary, the court will conduct an evidentiary hearing to determine whether some or all of Stokes's statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 444-45 (1966). Miranda is potentially implicated in this context because Stokes was interrogated pursuant to a joint investigation by Thai and U.S. authorities. The court here offers some brief observations concerning the applicable law and the scope of the evidence the court expects to consider.
Stokes appears to have made admissions at three separate times: (1) during the search of his home, (2) during subsequent questioning by a Thai officer and a U.S. investigator at a nearby police station, and (3) during a separate interrogation by U.S. customs agents following the issuance of Miranda warnings. The primary issue that the court will consider in the context of an evidentiary hearing is whether Stokes was "in custody" for Miranda purposes during any of these three time periods. Stokes has also alleged that Thai officers and a U.S. investigator "repeatedly assured [Stokes] that his statements would not be used against him in any way." (Def.'s Mot, D.E. 146, ¶ 3). Those assurances, Stokes urges, support the conclusion that his statements were not voluntary. The court considers these arguments and other prospective issues below.
I. Applicability of Miranda
Generally, voluntary statements elicited by foreign law enforcement officers in their own nations are admissible in criminal prosecutions in the United States despite any failure by foreign authorities to give Miranda warnings. United States v. Abu Ali, 528 F.3d 210, 227 (4th Cir. 2008); United States v. Yousef, 327 F.3d 56, 145 (2d Cir.2003); United States v. Heller, 625 F.2d 594, 599 (5th Cir. 1980); Kilday v. United States, 481 F.2d 655, 656 (5th Cir.1973). This is because "the United States cannot dictate the protections provided to criminal suspects by foreign nations and one of the principal purposes of the exclusionary rule--deterrence of unlawful police activity--is absent when foreign agents direct an interrogation." Abu Ali, 528 F.3d at 227; United States v. Martindale, 790 F.2d 1129, 1132 (4th Cir.1986) ("[T]he exclusionary rule has little or no effect upon the conduct of foreign police.")
The standards applicable to the acts of foreign officials do not, however, permit U.S. law enforcement officers to evade Miranda by purposefully delegating interrogation duties to their foreign counterparts and presenting the fruits of the interrogation at a criminal trial in the United States. Abu Ali, 528 F.3d at 227. Thus, when U.S. officials have "actively participated" in an overseas investigation or interrogation, such that the action is a "joint venture" between U.S. and foreign law enforcement, Miranda and the exclusionary rule apply exactly as though the interrogation took place inside the United States. Yousef, 327 F.3d at 145; Heller, 625 F.2d at 599; Abu Ali, 528 F.3d at 228; but see Pfeifer v. U.S. Bureau of Prisons, 615 F.2d 873, 877 (9th Cir. 1980) (mere U.S. presence at an interrogation does not constitute active involvement); United States v. Trenary, 473 F.2d 680, 682 (9th Cir. 1973) (no joint venture when American customs officer, who never identified himself, translated questions asked by Mexican officers).
In this case, the court has already found that U.S. agents were active participants in all facets of the investigation, and that the investigation and surveillance of Stokes took place largely at the behest and under the direction of the United States. United States v. Stokes, No. 07 CR 590, 2009 WL 4894600, *5-6 (N.D.Ill Dec. 11, 2009) (The "level of involvement by American ICE agents supports the conclusion that the search was a joint operation by American and Thai authorities, and, thus, implicates the Constitution of the United States."); cf. United States v. Emery, 591 F.2d 1266, 1268 (9th Cir.1978) (investigation was a joint venture where American officials "alerted the Mexican police of the possible activity, coordinated the surveillance," participated in the sting operation, "gave the signal that instigated the arrest," and were present at the interrogation); Abu Ali, 528 F.3d at 220 ("coordination and direction of an investigation" constitutes active participation in a joint venture). Accordingly, the Miranda protections are applicable, in spite of the substantial participation of foreign law enforcement officials and the fact that Stokes was questioned on foreign soil. As a matter of law, Stokes possessed the same right to receive Miranda warnings that he would have had as a suspect questioned inside the United States.
Whether the facts support the conclusion that Stokes was, in fact, entitled to Miranda warnings is disputed. Miranda warnings are not required merely because the individual questioned by law enforcement officers is a suspect or is the focus of a criminal investigation. Instead, a defendant must be both "in custody" and subjected to an "interrogation" before warnings must be administered. United States v. Barker, 467 F.3d 625, 628 (7th Cir. 2006). In this case, there is no disagreement that officers solicited information from Stokes. The parties dispute, however, whether Stokes was in police custody during any of the three time periods during which he made admissions.
A defendant is in custody when he has been "deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444 (footnote omitted); California v. Beheler, 463 U.S. 1121, 1123 (1983) (per curiam) (no Miranda warnings required for a voluntary participant in a police station interview). The test is whether a reasonable person in the defendant's position would believe that he or she was free to leave. United States v. Budd, 549 F.3d 1140, 1145 (7th Cir. 2008) (citing United States v. Lennick, 917 F.2d 974, 977 (7th Cir.1990)). To decide this fact-dependent question, the court must "examine all of the circumstances surrounding the interrogation, but 'the ultimate inquiry is simply whether there [was] a "formal arrest or restraint on freedom of movement" of the degree associated with a formal arrest.'" Stansbury v. California, 511 U.S. 318, 322-23 (1994) (quoting Beheler, 463 U.S. at 1125, and Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). Some of the factors that courts typically consider in this context include: (1) whether the encounter occurred in a public place; (2) whether the suspect consented to speak with the officers; (3) whether the officers informed the individual that he was not under arrest and was free to leave; (4) whether the individual was moved to another area; (5) whether there was a threatening presence of several officers and a display of weapons or physical force; (6) whether the officers deprived the defendant of documents she needed to continue on her way; and (7) whether the officers' tone of voice was such that their requests would likely be obeyed. See Barker, 467 F.3d at 628-29 (internal quotations and citations omitted). At the hearing, the court will consider the evidence in the light of these standards. In addition, each group of challenged statements presents unique issues, outlined below.
III. The Search of Stokes's Residence
On the morning of October 9, 2003, a joint team of U.S. customs agents and officers of the Royal Thai Police force executed a search warrant on Stokes's home in the city of Pattaya, Thailand. During the search, U.S. Customs Investigator Paisarn Changjongpradit recovered a digital camera in Stokes's bedroom closet. Stokes approached Paisarn and asked that he not remove the camera because, Stokes said, "It [was] not polite." Suspicious, Paisarn turned the camera on and discovered that it contained several nude and sexually suggestive images of a young male child, now identified by the government as Minor A. According to the government, Stokes admitted to Paisarn that he had taken the pictures during the previous evening, October 8, 2003. Stokes proceeded to explain that Minor A was a prostitute, that Stokes had paid Minor A for engaging in oral sex, and that Stokes had dropped Minor A off in his car just minutes prior to the execution of the search warrant. Stokes also admitted to having had sex with young male prostitutes about once per month and, specifically, having had sexual contact with Minor A on three different occasions during the previous five months.
Stokes contends that all of his admissions to Paisarn were made in response to Paisarn's direct questions. Stokes asserts that Paisarn ordered him to "stand in the corner" and "not to move" prior to asking him questions. Under these circumstances, Stokes claims, a reasonable person ...