Magistrate Judge's Final Report, Recommendation, and Order — United States v. Montavis Dixon (Document 70)
Summary
This is a magistrate judge's final report, recommendation and order in the Northern District of Georgia, Newnan Division, Criminal Action No. 3:20-cr-00003-TCB-RGV, United States of America against Montavis Dixon. The defendant is charged in a three-count indictment with production, receipt, and possession of child pornography and filed motions to suppress evidence, to suppress statements, and for return of property. The report finds the statements made on April 18, 2017 were voluntary. It grants the government's motion for leave to file a sur-reply, and recommends that each of the defendant's motions be DENIED. It certifies the action Ready for Trial, dated the 15th day of April, 2021.
Summary drafted by a model from the document's text below and checked by script against that text before publication. It is a navigation aid, not a reading of what the document proves. Where AI is used
Cite this document
“Magistrate Judge's Final Report, Recommendation, and Order — United States v. Montavis Dixon (Document 70).”
Archived at Pandemic Darlings, https://pandemicdarlings.com/source-documents/court-filing-no-3-20-cr-00003-dkt-70-n-d-ga-ba3e205f30/
, SHA-256 36f8c5efd7577430446d00e2799d922b71206bb86bc6bccee6c886999df86fa8.Full text
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 1 of 45
THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
NEWNAN DIVISION
UNITED STATES OF AMERICA :
: CRIMINAL ACTION
v. : NO. 3:20-cr-00003-TCB-RGV
:
MONTAVIS DIXON :
MAGISTRATE JUDGE’S FINAL
REPORT, RECOMMENDATION, AND ORDER
Defendant Montavis Dixon (“Dixon”) is charged in a three-count indictment
with production, receipt, and possession of child pornography in violation of 18
U.S.C. §§ 2251(a), (e), and 2252(a)(2), (a)(4)(b), (b), (b)(2). [Doc. 1]. 1 Dixon has filed
a motion to suppress evidence, [Doc. 36], a motion to suppress statements, [Doc.
37], a motion for return of property, [Doc. 38], and an amended motion for return
of property, [Doc. 41]. The government opposes Dixon’s motions for return of
property, [Doc. 45], and Dixon has filed a reply in support of these motions, [Doc.
48]. Following an evidentiary hearing on Dixon’s motion to suppress statements
held on December 10, 2020, [Doc. 50], 2 the parties filed briefs regarding the
1 The listed document and page numbers in citations to the record refer to the
document and page numbers shown on the Adobe file reader linked to the Court’s
electronic filing database, CM/ECF.
2 See [Doc. 55] for the transcript of the evidentiary hearing, which will be referred
to hereinafter as “(Tr. at ___).” The government submitted an exhibit at the
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 2 of 45
remaining motions, [Docs. 58, 59, 63, & 64]. Additionally, the government has filed
a motion for leave to file a sur-reply to respond to new arguments raised by Dixon
in his reply in support of his motion to suppress evidence. [Doc. 65]; see also [Doc.
66]. For the reasons that follow, the government’s motion for leave to file a sur-
reply, [Doc. 65], is GRANTED, 3 and it is RECOMMENDED that each of Dixon’s
motions, [Docs. 36, 37, 38, & 41], be DENIED.
hearing, which will be referred to as “(Gov. Ex. 1),” and Dixon also submitted an
exhibit at the hearing, which will be referred to as “(Dixon Ex. 1).”
3 Although “[n]either the Federal Rules nor the Court’s Local Rules allow sur-reply
briefs as a matter of right, and the Court normally does not permit sur-replies,”
USMoney Source, Inc. v. Am. Int’l Specialty Lines Ins. Co., No. 1:07-cv-0682-WSD,
2008 WL 160709, at *2 n.5 (N.D. Ga. Jan. 15, 2008), rev’d on other grounds, 288 F.
App’x 558 (11th Cir. 2008) (per curiam) (unpublished) (citation omitted); see also
Leatherwood v. Anna’s Linens Co., 384 F. App’x 853, 857 (11th Cir. 2010) (per
curiam) (unpublished) (citation omitted), “the Court may in its discretion permit
the filing of a surreply . . . where a valid reason for such additional briefing exists,
such as where the movant raises new arguments in [his] reply brief,” Fedrick v.
Mercedes-Benz USA, LLC, 366 F. Supp. 2d 1190, 1197 (N.D. Ga. 2005 ) (citations
omitted). The government seeks leave to file a sur-reply to address two arguments
raised by Dixon for the first time in his reply brief. See [Doc. 65]; see also [Doc.
64]. Dixon has not opposed the government’s motion for leave to file a sur-reply.
Accordingly, the government’s motion, [Doc. 65], is GRANTED, and the Court
will consider the government’s sur-reply brief, [Doc. 66], in ruling on Dixon’s
motion to suppress evidence, [Doc. 36].
2
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 3 of 45
I. FACTUAL BACKGROUND
On April 14, 2017, the Honorable Catherine M. Salinas, United States
Magistrate Judge (“Judge Salinas”), issued a search warrant, authorizing the
search of a house located at 1521 N. Hill Street, Griffin, Georgia (the “property”),
and the seizure of items described in Attachment B to the warrant, [Doc. 58-1 at 2],
including, among other things, “cellular telephones or other video display and
storage devices that can access, record, store, and/or display images or video of
child pornography or child erotica or information pertaining to an interest in child
pornography or sexual activity with minors,” [id. at 4]. The warrant required that
it be executed on or before April 27, 2017, “not to exceed 14 days” from the date
the warrant was issued. [Id. at 2].
Judge Salinas issued the warrant pursuant to the application and affidavit
of Federal Bureau of Investigation (“FBI”) Special Agent Kelly Jo Strickler (“SA
Strickler”), [id. at 6-25], who averred that she had “probable cause to believe that
contraband and evidence of a crime, fruits of a crime, and instrumentalities of
violations of [18 U.S.C. §] 2251(d) (advertising and seeking production of child
pornography) exist[ed] in computers and storage devices located in [the
property],” [id. at 7 ¶ 2]. Specifically, she attested that on “March 24, 2017, the
administrator of a website called BlackSexFinder.com [] contacted the FBI to report
3
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 4 of 45
that a user of the website was asking other users to send videos of themselves
having sex with children” under the username “Makaylaa,” and that Makaylaa
offered various users of the website between $10,000 and $50,000 to produce the
videos. [Id. at 9-10 ¶ 7 (internal marks omitted)]. The affidavit specified that in at
least one of these messages, Makaylaa stated that the money would be sent via
Western Union, [id. at 10 ¶ 9], but Makaylaa had “asked eight separate users to
make a video of themselves having sex with a ‘little girl,’” and the method of
payment was not clarified for each of these requests, [id. at 9-10 ¶¶ 7-10]. SA
Strickler added that surveillance of the property revealed the presence of a minor
child who appeared to be under the age of 12, and that the “cooperating
administrator of BlackSexFinder.com provided the FBI with Makaylaa’s Internet
Protocol (IP) address used to access the [] website,” which was later determined to
be serviced by AT&T, and pursuant to an administrative subpoena for information
pertaining to the IP address, AT&T responded that the IP address was assigned to
Dixon at the property. [Id. at 11 ¶¶ 11-12 (internal marks omitted)].
On the morning of April 18, 2017, SA Strickler, along with approximately
nine FBI agents and task force officers, one victim specialist, and local law
4
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 5 of 45
enforcement officers, who arrived at the residence in marked police cars, 4 executed
the search warrant. (Tr. at 4-5, 9-10, 12); see also [Doc. 36-2 at 2]. The agents
encountered four adults and three children inside the residence, 5 and Dixon
agreed to be interviewed about five to ten minutes after the agents arrived. (Tr. at
5). 6 The interview was conducted by SA Strickler and Task Force Officer Lori
Nicholson (“TFO Nicholson”) at a table in the front yard of the property. (Tr. at 5-
6); see also (Tr. at 11; Dixon Ex. 1 at 1). SA Strickler testified that she was armed
with a firearm during the interview, but that it was hidden under her shirt and
4 SA Strickler testified that she could not recall how many police cars were parked
there, but that it was not likely more than two. (Tr. at 11-12). The police cars,
which were parked along the perimeter of the property, were marked with
insignia and their lights were operating throughout the execution of the search.
(Tr. at 12).
5 Upon viewing the condition of the home, including that there was no running
water, there were “a lot of pests,” including cockroaches, as well as trash
“everywhere,” and the roof was unstable, the victim specialist contacted the
Division of Family and Children Services, and the children were subsequently
removed from the home. (Tr. at 13-14).
6 The interview began at 6:49 a.m. (Gov. Ex. 1 at 0:01-0:09).
5
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 6 of 45
was never drawn, 7 and that she was not sure whether TFO Nicholson was carrying
a firearm, but she did not see one at the time. (Tr. at 7, 12).
At the outset of the interview, the agents identified themselves and
informed Dixon that he was not under arrest and that he did not have to answer
any of their questions, and that they wanted to speak to him to help him
understand why they were there, as well as to help them understand what
happened, explaining that they had received reports of a crime that occurred over
the internet. (Tr. at 6; Gov. Ex. 1 at 0:17-0:55). They began by asking Dixon about
the utilities for the property, including who paid for the internet, which internet
provider they used, 8 the password for the wireless internet, who used the internet,
and which websites he visited; whether he or anyone else in the house had
computers or cell phones; and how long he had lived at the property. (Tr. at 8;
Gov. Ex. 1 at 0:56-1:45, 2:29-11:49). The agents subsequently directed the
conversation to the communications with users of BlackSexFinder.com requesting
7 When SA Strickler arrived at the property, she was wearing a vest identifying
herself as a law enforcement officer, but she removed it after completing the initial
entry of the home. (Tr. at 12-13).
8 Dixon identified AT&T as the internet provider. (Gov. Ex 1 at 7:09-7:18).
6
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 7 of 45
they send videos of themselves having sex with children. See (Tr. at 8; Gov. Ex. 1
at 11:50-14:04).
At one point in the interview, SA Strickler asked Dixon for the passcode to
his cellphone, 9 which was sitting on the table between them. (Tr. at 8, 17-18; Gov.
Ex. 1 at 14:05-14:17). SA Strickler testified that “initially[, ] Dixon seemed to want
to tell [them] the passcode[.]” (Tr. at 8); see also (Tr. at 18). The agents told Dixon
that he could input the passcode himself. (Gov. Ex. 1 at 14:14-14:17). Dixon picked
up the iPhone to enter the passcode and SA Strickler asked whether they could
look at it, but he said that he first needed to log off his social media accounts. (Gov.
Ex. 1 at 14:20-14:26). Dixon began to express concern about the agents looking
through his phone, explaining that it had personal information, and SA Strickler
responded that he did not have to let them look at his phone, but they would need
to take it from him because it was part of the search warrant. (Gov. Ex. 1 at 14:26-
14:43). SA Strickler stated that it was “up to [him],” and Dixon responded that he
would let them look through it, but first he had to “do some stuff.” (Gov. Ex. 1 at
14:44-14:56); see also (Tr. at 8). Out of concern that Dixon “would attempt to alter
the contents of the phone,” TFO Nicholson took the phone from Dixon’s hands
9 Dixon’s cellphone is an iPhone 6s with serial number f4JQH5SEGRYK (the
“iPhone” or the “phone”). See [Doc. 38 at 1; Doc. 41 at 1; Doc. 44 at 1].
7
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 8 of 45
and the agents told him he could not alter anything on the phone because of the
search warrant and that they needed to take it. (Tr. at 8, 17; Gov. Ex. 1 at 14:56-
15:28). Dixon stated that he wanted to keep his phone since he was paying for it,
and SA Strickler explained that if he let them look through it, there was a chance
he could keep it, but otherwise they would need to take the phone, and she again
told him that the choice was his. (Gov. Ex. 1 at 15:29-15:52). Dixon asked how
long they would need to keep it, and SA Strickler stated that it “partly depend[ed]
on how hard it [would be] to get into the phone,” and that “with no passcode, it
could take a couple days, it could take a week, [or] it could take longer.” (Gov. Ex.
1 at 15:53-16:20). Toward the end of the interview, the agents again asked whether
Dixon would be willing to provide his passcode, and SA Strickler explained that
he could input the passcode himself and they could then change the settings to no
longer require a passcode to access the phone so they would not need to know his
passcode, but Dixon ultimately decided not to give the agents his passcode. (Tr.
at 8, 18; Gov. Ex. 1 at 37:50-44:13). 10
Dixon informed the agents that he needed to go to school that morning as
he was pursuing his General Educational Development (“GED”) diploma, and at
10 SA Strickler described Dixon as “coherent,” and stated that he did not appear to
be under the influence of drugs or alcohol. (Tr. at 6).
8
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 9 of 45
the conclusion of the interview, they said he could stand outside the house with
his family and wait for his ride to school, but he and his family could not go back
in the house while the search was ongoing. (Tr. at 9; Gov. Ex. 1 at 2:13-2:27, 44:18-
42). The interview lasted approximately 45 minutes. See (Gov. Ex. 1). Dixon was
not restrained at any point during the interview, (Tr. at 7), nor was he arrested that
day, (Tr. at 6, 9), and the agents did not provide Dixon with the Miranda 11
warnings during this interview, (Tr. at 6). During the search, multiple items were
seized from the property, including the iPhone. [Doc. 36-2 at 2-3]. 12 SA Strickler
testified that she did not discover any Western Union or PayPal records during the
search. (Tr. at 14).
On the day of the search, SA Strickler gave Dixon her card and her cellphone
number. (Tr. at 15). Dixon subsequently called SA Strickler numerous times to
ask for the return of the phone, and she informed him that she could not return it
until the search was concluded, but advised him that the search would go much
11 See Miranda v. Arizona, 384 U.S. 436 (1966).
12 On April 26, 2017, SA Strickler returned some of the seized items to Dixon’s
mother. (Tr. at 14); [Doc. 36-3 at 2].
9
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 10 of 45
faster if he provided his passcode to the phone. (Tr. at 15-16). SA Strickler did not
record any of these conversations. (Tr. at 16). 13
On April 25, 2019, a forensic examination was performed on the iPhone and
all derivative evidence was placed on a DVD disk. [Doc. 36-4 at 2-3]. A federal
grand jury in the Northern District of Georgia returned a three-count indictment
against Dixon on February 25, 2020, charging him with the unlawful production,
receipt, and possession of child pornography. [Doc. 1]. The indictment also
contained a forfeiture provision pursuant to 18 U.S.C. § 2253. [Id. at 2-3]. On
October 8, 2020, the government filed a Bill of Particulars, identifying the iPhone
as property subject to forfeiture pursuant to the forfeiture provision of the
indictment. [Doc. 44]. Dixon has filed several pretrial motions, including a motion
to suppress his statements to the agents, [Doc. 37], a motion to suppress evidence
from the search of the iPhone, [Doc. 36], and a motion and an amended motion for
return of property seeking the return of the iPhone to his possession, [Docs. 38 &
41]. Each of these motions have been fully briefed, [Docs. 45, 48, 58, 59, 63, 64, 66],
and are now ripe for ruling.
13 After being inundated with calls from Dixon, including at one point having
“over 40 missed calls” from him, SA Strickler blocked his phone number. (Tr. at
16).
10
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 11 of 45
II. DISCUSSION
A. Motion to Suppress Evidence, [Doc. 36]
Dixon moves to suppress “any evidence recovered by law enforcement in
the unlawful seizure and search of [the] iPhone,” arguing that “[a]lthough a search
warrant had been issued . . . for the search of [his] home, including of computer
equipment and phones, that warrant only allowed a search of the information
contained within the iPhone between April 14 and 27, 2017,” and thus, the warrant
had “expired and was void when the 2019 search took place.” [Doc. 36 at 1, 4
(citation omitted)]. In response, the government argues that the iPhone was seized
and searched pursuant to a valid and timely executed warrant, as the property
was searched and the iPhone was seized within the timeframe imposed by the
warrant, and because the government was not required to search the contents of
the iPhone within that timeframe as well, the subsequent search did not violate
the warrant or Federal Rule of Criminal Procedure 41(e). [Doc. 58 at 2-6].
Additionally, the government contends that even if “the warrant was not timely
executed, suppression is unwarranted,” as “there is no evidence that the FBI
agents acted recklessly or in a grossly negligent manner,” but rather they
“searched the [iPhone] under the belief that they had a valid search warrant that
11
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 12 of 45
allowed the search” and thus, “acted in an objectively reasonable manner.” [Id. at
6].
In reply, Dixon argues that while Rule 41(e) does not “state a fixed upper
limit or deadline as to when the government must review seized electronic data,”
it does not have “carte blanche to delay searches of seized items indefinitely,” and
the 737-day delay from the date of seizure was unreasonable under the Fourth
Amendment, which “requires the government to execute the warrant by
completing its review of seized items within a ‘reasonable’ period of time.” [Doc.
64 at 2-3 (citations omitted)]. Dixon also argues that “probable cause had [been]
extinguished before the search of [his] phone.” [Id. at 6]. Specifically, he contends
that the probable cause affidavit relied on suspicions that “he was paying (or
intended to pay) individuals to create videos of the sexual abuse of a child . . .
based upon online chats they had received and the investigation tying those chats
to [] Dixon’s residence,” and the “affidavit also described that [surveillance
revealed] Dixon had at least one younger sibling in the house, suggesting that he
or she might have been sexually abused,” but upon executing the warrant, “agents
were able to conclude that [] Dixon was living in poverty . . . with [three] other
adults and [three] children in a small, bug-infested house that had no running
water and a damaged and leaking roof”; they “did not find any evidence to
12
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 13 of 45
suggest that [] Dixon had Western Union or Pay[P]al records”; and “[w]itihin a
few days, a forensic interview was conducted of [] Dixon’s three younger siblings,
but there was no evidence that they had been sexually abused.” [Id. at 7 (citations
omitted)]. Because these arguments were raised for the first time in Dixon’s reply
brief, see [Docs. 36 & 64], the government filed a sur-reply to address them, [Doc.
66]; see also [Doc. 65]. First, the government argues that the delay in extracting
data from the iPhone was reasonable due to the difficulties created by its
encryption, as Dixon refused to provide the passcode. [Doc. 66 at 2-4]. The
government also argues that the facts learned by the agents during and after the
search of the property did “not negate the probable cause that he committed the
crime of advertising visual depictions of minors engaging in sexually explicit
conduct,” as the “conduct criminalized is the advertising – not the final purchase
of a visual depiction of a minor engaging in sexually explicit conduct,” and that in
any event, “[t]here is no requirement that a law enforcement officer wait to seize
and search items pursuant to a valid search warrant until they have updated the
issuing Magistrate Judge with facts learned during the execution of the search
warrant.” [Id. at 4-6].
Rule 41(e) of the Federal Rules of Criminal Procedure requires that a
warrant to search for and seize property must command the officer to “execute the
13
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 14 of 45
warrant within a specified time no longer than 14 days[.]” Fed. R. Crim. P.
41(e)(2)(A)(i). The rule also provides that a warrant “may authorize the seizure of
electronic storage media or the seizure or copying of electronically stored
information,” and that “[u]nless otherwise specified, the warrant authorizes a later
review of the media or information consistent with the warrant,” as “[t]he time for
executing the warrant in Rule 41(e)(2)(A) . . . refers to the seizure or on-site copying
of the media or information, and not to any later off-site copying or review.” Fed.
R. Crim. P. 41(e)(2)(B). Thus, “[t]his rule acknowledges the need for a two-step
process: officers may seize or copy the entire storage medium and review it later
to determine what electronically stored information falls within the scope of the
warrant,” as a “substantial amount of time can be involved in the forensic imaging
and review of information” due to “the sheer size of the storage capacity of media,
difficulties created by encryption and booby traps, and the workload of the
computer labs.” Fed. R. Crim. P. 41(e)(2), advisory committee note to 2009
amendment.
The search warrant in this case was issued on April 14, 2017, and required
that it be executed by April 27, 2017, “not to exceed 14 days” from the date it was
issued. [Doc. 58-1 at 2]. The warrant authorized the seizure of cellular phones,
among other items, but did not include any additional language imposing a
14
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 15 of 45
deadline for review of electronically stored information. [Id. at 2, 4-5]. Agents
executed the warrant on April 18, 2017, within the timeframe set by the warrant,
and seized several items, including the iPhone. (Tr. at 4, 9-10); [Doc. 36-2 at 2].
The iPhone was protected by a passcode, which Dixon declined to reveal. (Tr. at
8, 16, 18; Gov. Ex. 1 at 14:05-16:20, 37:50-44:13). Due to its encryption, the iPhone
was not searched until April 25, 2019. See [Doc. 36-4 at 2-3].
In his motion to suppress, Dixon initially argued that the iPhone was
unlawfully searched without a warrant because the search warrant required that
it be executed by April 27, 2017, but the iPhone was not searched until April 25,
2019. See [Doc. 36]. “The problem with [Dixon’s] argument, however, is its
premise: that his phone was not ‘searched’ for Fourth Amendment purposes until
the FBI completed its forensic analysis of the phone in [April] of [2019].” United
States v. Carrington, 700 F. App’x 224, 232 (4th Cir. 2017) (unpublished). As the
government correctly argues, see [Doc. 58 at 2-6], Rule 41(e) expressly authorizes
the later review of electronically stored information contained within an item
seized during the 14-day time period, as the time for executing the warrant refers
only “to the seizure or on-site copying of the media or information, and not to any
later off-site copying or review,” Fed. R. Crim. 41(e)(2)(A)-(B). “In other words, an
initial seizure of [Dixon’s] phone after the 14-day expiration period would have
15
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 16 of 45
contravened the terms of the warrant—but that is not what happened here, where
the phone already was in government custody pursuant to a lawful seizure,” and
“the fact that the government did not [conduct its forensic analysis of the iPhone]
until after the warrant’s expiration date is consistent with the warrant itself.”
Carrington, 700 F. App’x at 232 (citations omitted); see also United States v. Ilonzo,
Criminal File No. 1:12-CR-276-SCJ-GGB, 2015 WL 5827598, at *3-4 (N.D. Ga. Oct.
6, 2015) (rejecting defendants’ argument that the government’s failure to search
the computers within the 14-day timeframe imposed by the search warrant
rendered the search invalid where the computers were seized within the 14 days
and the warrant “did not ‘otherwise specify’ when the data had to be copied or
reviewed” because “[u]nder Rule 41, off-site review or copying need not be
completed by the deadline for execution”).
In his reply, Dixon argues that while Rule 41(e) permits the later review of
electronically stored information, the government must still review that
information within a reasonable time in order to comply with the requirements of
the Fourth Amendment, and that the delay in this case was unreasonable, thereby
requiring suppression of the evidence uncovered during the April 25, 2019, search.
[Doc. 64 at 3-6]. For support, Dixon relies on United States v. Metter, 860 F. Supp.
2d 205 (E.D.N.Y. 2012), [Doc. 64 at 5-6], in which the court determined that “the
16
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 17 of 45
government’s more than fifteen-month delay in reviewing the seized electronic
evidence, under the facts and circumstances of th[e] case, constitute[d] an
unreasonable seizure under the Fourth Amendment,” Metter, 860 F. Supp. 2d at
212. The warrants in that case authorized the seizure of computer hard drives and
email accounts, as well as the off-site imaging of information contained therein, id.
at 214 (citations omitted), and after seizing “four computer hard drives from [the
defendant’s] home, and a snapshot of all of the activity that had occurred in [his]
personal email account,” the government “promptly imaged the hard drives and
returned them,” but the court determined that the “point at which the government
faltered [was] its delay in reviewing the imaged evidence to determine whether
the evidence that the government seized and imaged fell within the scope of the
categories of information sought in the search warrants,” id. at 214-15 (footnotes
omitted). While recognizing “that under current law there is no established upper
limit as to when the government must review seized electronic data to determine
whether the evidence seized falls within the scope of a warrant,” the court found
no authority “indicating that the government may seize and image electronic data
and then retain that data with no plans whatsoever to begin review of that data to
determine whether any irrelevant, personal information was improperly seized,”
17
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 18 of 45
and thus, the “government’s blatant disregard for its responsibility . . . [was]
unacceptable and unreasonable.” Id. at 215 (citations omitted).
The government points out, however, that Metter did not “involve a delay
caused by encryption difficulties,” as in this case. [Doc. 66 at 2]. Rather, “the
government was able to access the data from the computers and had the ability to
review them for the entire 15-month period.” [Id. at 2-3]. By contrast, here “the
period of delay was the time it took to access the phone due to difficulties caused
by encryption and the data was reviewed once encryption technology successfully
unlocked the cell phone.” [Id. at 3]. Therefore, given the iPhone’s encryption, its
contents “could not have been quickly reviewed and required prolonged offsite
analysis.” United States v. Harmon, Case No. 3:18-cr-221-SI, 2018 WL 5786217, at
*2 (D. Or. Nov. 5, 2018) (citation omitted).
“The reasonableness of the delay is determined in light of all the facts and
circumstances, and on a case-by-case basis.” United States v. Mitchell, 565 F.3d
1347, 1351 (11th Cir. 2009) (per curiam) (citation and internal marks omitted).
“Here, the [g]overnment explains that its delay in reviewing the [electronically
stored information] contained in [the iPhone was] the result of difficulties created
by the encryption,” and “the basis offered for the delay . . . has been credited by
the advisory committee,” United States v. Estime, 19-cr-711 (NSR), 2020 WL
18
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 19 of 45
6075554, at *15 (S.D.N.Y. Oct. 14, 2020) (citations omitted); see also [Doc. 66 at 2-4],
as the advisory committee notes for Rule 41(e) expressly acknowledge that a
“substantial amount of time can be involved in the forensic imaging and review of
information” due to “difficulties created by encryption,” Fed. R. Crim. P. 41(e)(2),
advisory committee note to 2009 amendment. “It [was Dixon’s] own encryption
that ha[d] . . . prevented the FBI from more timely searching the [iPhone ], and
there [was ] no unreasonable delay on the part of the FBI.” Harmon, 2018 WL
5786217, at *3 (citation omitted); see also id. at *2 n.1 (finding the defendant’s
“repeated assertion that searching a computer” could be done quickly was
“inaccurate, especially when a computer has been locked and encrypted,” and
that these assertions were “not consistent with the realities of the time it takes to
break encryption and recover hidden or deleted files”).
Accordingly, although the government’s 24-month delay in searching the
iPhone was “certainly lengthy,” it “does not furnish a basis to suppress evidence
obtained from [the iPhone].” Estime, 2020 WL 6075554, at *14-15 (finding the
government’s ongoing delay in reviewing the electronically stored information in
defendant’s cellphone was not unreasonable even though 10 months had already
passed and the government was still working on accessing the information due to
the difficulties created by encryption); see also United States v. Morgan, 443 F.
19
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 20 of 45
Supp. 3d 405, 406, 410 (W.D.N.Y. 2020) (concluding that there was “still plenty of
time for the government to access the iPhone’s contents” where the trial was not
scheduled to commence until the following year, even though the iPhone was
seized in May 2018 and the government to date “ha[d] been unsuccessful . . . in
accessing the contents of the iPhone,” which was protected by a passcode); United
States v. Pinto-Thomaz, 352 F. Supp. 3d 287, 312-13 (S.D.N.Y. 2018) (footnote
omitted) (finding, “contrary to [defendant’s] arguments, the [g]overnment ha[d]
not exceeded any constitutional or Rule 41 deadline for concluding its search of
the iPhone given the difficulties posed by encryption” where the government was
still unable to break the encryption after several months because the “phone [was]
locked and passcode-protected” and defendant had “refused to provide the
passcode”).
Dixon also argues in his reply brief that the probable cause relied on to
obtain the search warrant had been extinguished after the search of the property
and thus could not support the search of his phone, [Doc. 64 at 6-11], asserting that
“[h]ad the government applied for a search warrant in 2019 prior to the search of
the phone and included in the probable cause affidavit the additional, material
facts learned in their investigation of the ‘Makaylaa’ matter following the issuance
of the 2017 warrant,” including the agents’ “observations of [] Dixon’s abject
20
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 21 of 45
poverty and inability to carry out the suspected scheme, the absence of Western
Union or Pay[P]al records, and the absence of evidence of sexual abuse of his
siblings,” a “neutral magistrate would not have found probable cause to issue a
warrant,” [id. at 9]. The Court finds these arguments unavailing.
Dixon does not dispute that SA Strickler had probable cause at the time she
sought and obtained the search warrant in 2017. See [Docs. 36 & 64]. Indeed, SA
Strickler’s affidavit in support of her application for the warrant provided
“probable cause to believe that contraband and evidence of a crime, fruits of a
crime, and instrumentalities of violations of [18 U.S.C. §] 2251(d) (advertising and
seeking production of child pornography) exist[ed] in computers and storage
devices located in [the property]” because of reports that an individual operating
an account with the username, Makaylaa, who was using an IP address serviced
by AT&T and registered with Dixon at the property, had been messaging users of
BlackSexFinder.com with requests that they send videos of themselves having sex
with children, and offering compensation for those videos, with the individual
specifically offering to send the money via Western Union to at least one user.
[Doc. 58-1 at 7 ¶ 2, 9-11 ¶¶ 7-11]. While Dixon relies on SA Strickler’s testimony
at the evidentiary hearing that records from Western Union and PayPal were not
discovered during the search and that the property was observed to be run down,
21
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 22 of 45
indicating that Dixon was living in poverty, to argue that “he had no ability to
wire anyone thousands of dollars in advance to pay for them to abuse a child,”
[Doc. 64 at 7-8 (citations omitted)]; see also (Tr. at 13-14), as the government
correctly responds, [Doc. 66 at 5-6], Dixon was suspected of violating 18 U.S.C. §
2251(d), which prohibits individuals from making, printing, or publishing “any
notice or advertisement seeking” the production of child pornography. The
“conduct criminalized is the advertising – not the final purchase of a visual
depiction of a minor engaging in sexually explicit conduct,” [Doc. 66 at 6], and
thus, even to the extent that the information learned at the time of the 2017 search
could conclusively show that Dixon could not afford to fulfill his offers to pay for
the videos he requested, this would not negate the probable cause identified in SA
Strickler’s affidavit that Dixon had sent multiple requests to individuals for child
pornography. Moreover, while SA Strickler’s affidavit noted that surveillance of
the property revealed the presence of a minor child, there was no allegation that
Dixon or anyone else on the property had sexually abused the child, see [Doc. 58-
1 at 7-19], and therefore, the absence of evidence that Dixon’s minor siblings had
22
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 23 of 45
been recently sexually abused certainly would not negate the probable cause
identified. 14
Alternatively, the government argues that even if the 2017 search warrant
in this case could not support the 2019 search of the iPhone, suppression of the
evidence would not be required because the agents reasonably relied in good faith
on the validity of the warrant, and there is no evidence they acted recklessly or in
a grossly negligent manner. [Doc. 58 at 6]. Indeed, “[e]xclusion of evidence is an
‘extreme sanction’ to be used only as a ‘last resort,’” and to “‘trigger the
exclusionary rule, police conduct must be sufficiently deliberate that exclusion can
meaningfully deter it, and sufficiently culpable that such deterrence is worth the
price paid by the justice system.’” United States v. Brooks, 648 F. App’x 791, 794
(11th Cir. 2016) (per curiam) (unpublished) (quoting Herring v. United States, 555
U.S. 135, 140, 144 (2009)). As previously discussed, the warrant did not set forth
any additional requirements for the review of electronically stored information
contained within property seized pursuant to the warrant, see [Doc. 58-1 at 2]; see
14 Although Dixon cites SA Strickler’s evidentiary hearing testimony to show that
a forensic interview of Dixon’s siblings revealed no sexual abuse, [Doc. 64 at 7
(citing (Tr. at 13))], SA Strickler merely testified that a forensic interview was
conducted and that the children were removed from the property due to the state
of the house, but she did not state whether there was any evidence of sexual abuse
uncovered in the forensic interview, see (Tr. at 13-14).
23
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 24 of 45
also Fed. R. Crim. P. 41(e)(2)(B) (“Unless otherwise specified, the warrant
authorizes a later review of the media or information consistent with the
warrant.”), and the agents searched the iPhone, once they were finally able to
access it, under the reasonable belief that a valid warrant permitted the search.
Given the iPhone’s encryption and Dixon’s refusal to provide the passcode, the
“government acted with reasonable diligence in conducting its forensic
examination,” and thus, even if the government’s delay “constituted some Fourth
Amendment violation―which [the Court] reject[s]―the facts of this case do not rise
to the level necessary to justify the ‘extreme sanction’ of exclusion.” Brooks, 648
F. App’x at 794. Accordingly, Dixon has not identified any legitimate basis for
suppression, and it is RECOMMENDED that his motion to suppress evidence,
[Doc. 36], be DENIED.
B. Motions for Return of Property, [Docs. 38 & 41]
Pursuant to Federal Rule of Criminal Procedure 41(g), Dixon moves for the
return of the iPhone or, in the alternative, “for a hearing requiring the government
to show cause with particularity why it has an interest in the property it has seized
and why the property should not be returned to its rightful owner,” as the “seizure
and search of the iPhone [were] unlawful.” [Doc. 38 at 1-2]. In his amended
motion, Dixon asserts that “[t]o the extent that the phone might contain
24
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 25 of 45
contraband images that [he] could not possess, media contained on the phone can
be wiped or erased” before it is returned. [Doc. 41 at 3]. The government responds
that Dixon’s Rule 41(g) motion is not properly before the Court because “criminal
forfeiture has been initiated and the proceedings are ongoing,” and when “the
contents of the iPhone were searched, agents found contraband images and
communications stored on the phone” and thus, “the iPhone is evidence . . . subject
to forfeiture[.]” [Doc. 45 at 4-5].
Rule 41(g) of the Federal Rules of Criminal Procedure provides that a
“person aggrieved by an unlawful search and seizure of property or by the
deprivation of property may move for the property’s return” by filing a motion in
the district where the property was seized, and that the Court “must receive
evidence on any factual issue necessary to decide the motion.” Fed. R. Crim. P.
41(g). 15 In granting a motion under Rule 41(g), the Court “may impose reasonable
conditions to protect access to the property and its use in later proceedings.” Id.
“‘If a motion for return of property is made while a criminal prosecution is
pending, the burden is on the movant to show that he . . . is entitled to the
15 “In 2002, Rule 41(e) was reclassified as Rule 41(g) without substantive changes.”
United States v. Ali, 306 F.R.D. 694, 695 n.2 (N.D. Ala. 2015); see also De Almeida
v. United States, 459 F.3d 377, 380 n.2 (2d Cir. 2006) (citation omitted) (“[C]ourts
have applied the case law concerning former Rule 41(e) to the current Rule 41(g).”)
25
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 26 of 45
property.’’ United States v. Marabini, No. 06-80021-CR, 2006 WL 3921906, at *6
(S.D. Fla. Dec. 28, 2006), adopted by 2007 WL 128820, at *1 (S.D. Fla. Jan. 12, 2007)
(quoting United States v. Chambers, 192 F.3d 374, 377 (3d Cir. 1999)); see also
United States v. Oduu, 564 F. App’x 127, 130 (5th Cir. 2014) (per curiam)
(unpublished). However, “a Rule 41(g) motion is properly denied if the defendant
is not entitled to lawful possession of the seized property, the property is
contraband or subject to forfeiture, or the government’s need for the property as
evidence continues.” United States v. Garcon, 406 F. App’x 366, 369 (11th Cir.
2010) (per curiam) (unpublished) (citation and internal marks omitted); see also
United States v. McCray, CRIMINAL ACTION FILE NO. 1:15-cr-212-WSD/AJB,
2017 WL 9472888, at *14 n.17 (N.D. Ga. June 15, 2017), adopted by 2017 WL
3141172, at *14 (N.D. Ga. July 25, 2017) (citations and internal marks omitted) (“To
prevail on [a motion for return of property], a criminal defendant must
demonstrate that (1) he is entitled to lawful possession of the seized property; (2)
the property is not contraband; and (3) either the seizure was illegal or the
government’s need for the property as evidence has ended.”). 16
16 The Seventh Circuit has explained the proper timing for bringing a Rule 41(g)
motion as follows:
The proper office of a Rule 41(g)[] motion is, before any forfeiture
proceedings have been initiated, or before any criminal charges have
26
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 27 of 45
Dixon argues that the seizure and search of the iPhone were unlawful and
thus, he is entitled to its return, [Doc. 38 at 2; Doc. 41 at 2], and he asserts that to
“the extent that the phone might contain contraband images that [he] could not
possess, media contained on the phone can be wiped or erased” prior “to the
return of the phone and can be confirmed by the parties and the Court,” and thus,
the “existence of contraband media, which can be removed and destroyed, does
not justify denial of [his] motion,” [Doc. 41 at 3]. However, Dixon’s arguments fail
for the following reasons.
First, as previously discussed with respect to Dixon’s motion to suppress
evidence, the iPhone was lawfully seized and searched pursuant to the search
warrant issued by Judge Salinas. Additionally, the government explains that
“[w]hen the contents of the iPhone were searched, agents found contraband
images and communications stored on the phone,” and therefore, “the iPhone is
evidence[.]” [Doc. 45 at 5]. Accordingly, because Dixon has not shown that “the
been filed, to seek the return of property seized without probable
cause, or property held an unreasonable length of time without the
institution of proceedings that would justify the seizure and retention
of the property. The rule can also be invoked after criminal
proceedings have concluded to recover the defendant’s property
when the property is no longer needed as evidence—unless, of
course, it has been forfeited in the course of those proceedings.
United States v. Sims, 376 F.3d 705, 708 (7th Cir. 2004) (citation omitted).
27
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 28 of 45
seizure was illegal or the government’s need for the property as evidence has
ended,” his motion is due to be denied. McCray, 2017 WL 9472888, at *14 n.17
(citations and internal marks omitted); see also United States v. Popham, 382 F.
Supp. 2d 942, 956 (E.D. Mich. 2005), aff’d, 250 F. App’x 170 (6th Cir. 2007)
(unpublished) (citation and internal marks omitted) (“When the government has
a continuing interest in the property, the property does not have to be returned.”).
Moreover, the iPhone has been identified in the Bill of Particulars filed by
the government as being subject to the forfeiture provision of the indictment.
[Doc. 1 at 2-3; Doc. 44 at 1]; see also United States v. Chicago, CRIMINAL NO. 15-
00168-CG, 2017 WL 2963475, at *3 (S.D. Ala. July 11, 2017) (emphasis, citations, and
internal marks omitted) (explaining that “the indictment . . . need only provide
general notice that the government is seeking forfeiture, without identifying the
specific property being sought” and “if a question of notice arises, a bill of
particulars that lists specific property can provide a criminal defendant all the
notice he . . . is due”). Accordingly, Dixon “is entitled to challenge the forfeiture
on the merits during the forfeiture phase of his criminal trial,” Panos v. United
States, Civil Action No. 13-242, 2014 WL 317784, at *3 (W.D. La. Jan. 27, 2014)
(footnote omitted), but he “is not entitled to a post-restraint, pretrial hearing on
the issue of probable cause where a grand jury has determined that specific
28
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 29 of 45
property is subject to forfeiture,” United States v. Travers, CASE NO. 96-477-CR-
UNGARO-BENAGES(s)(s), 1997 WL 35430441, at *2 (S.D. Fla. Apr. 8, 1997)
(citation omitted). Accordingly, Dixon’s motion is due to be denied because the
property is subject to criminal forfeiture. 17 See United States v. Guba, No. 1:09-
CR-17-SPM/AK, 2009 WL 2606454, at *1–2 (N.D. Fla. Aug. 18, 2009) (denying the
Rule 41(g) motion where property was subject to forfeiture allegations of
indictment); see also United States v. Hills, Case No. 1:16CR329, 2018 WL 1621088,
at *8 (N.D. Ohio Apr. 4, 2018) (citation omitted) (holding that defendant’s remedy
when seeking return of seized property subject to forfeiture allegations in an
indictment “lies in contesting forfeiture at the conclusion of the criminal
proceedings”). Therefore, it is RECOMMENDED that Dixon’s motion and
amended motion for return of property, [Docs. 38 & 41], be DENIED.
17 Furthermore, the conditions of Dixon’s release prohibit him from “possess[ing],
access[ing], or us[ing] any electronic device capable of accessing the internet,”
including “cellular telephones,” “regardless of whether the device is actually
connected to the internet.” [Doc. 14 at 3]; see also Harmon, 2018 WL 5786217, at
*3 (second alteration in original) (finding that the defendant had not suffered
unfair prejudice from the government’s continued retention of a computer where
the conditions of his release “prohibit[ed] him from directly or indirectly using or
possessing ‘a computer or electronic media, including any devices and cellular
phones, with internet access capabilities or access[ing] a computer or electronic
media, without prior approval of Pretrial Services’”).
29
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 30 of 45
C. Motion to Suppress Statements, [Doc. 37]
Dixon moves to suppress statements he made to law enforcement agents, 18
arguing that his statements were made involuntarily and without a knowing
waiver of his Miranda rights, in violation of the Fifth Amendment. [Doc. 37]. The
government argues that Dixon’s motion should be denied because he was not in
custody at the time of the interview on April 18, 2017, which took place outside
his home, and thus the statements were not made in violation of Miranda, and
because Dixon’s statements during the interview were voluntary and made free of
any threats, promises, or coercion from law enforcement. See [Doc. 59]. The Court
will address each of Dixon’s claims in turn, beginning with whether his statements
were taken in violation of Miranda. See United States v. Jones, 32 F.3d 1512, 1516
(11th Cir. 1994) (per curiam) (citation omitted) (“[The Court] first decide[s]
whether law enforcement officers complied with the requirements of Miranda[
and] if so, [it] then determine[s] if the confession was voluntary.”).
18 Dixon originally moved to suppress “all statements to law enforcement officers,”
including the statements made during the interview on April 18, 2017, and
statements made during his subsequent phone conversations with SA Strickler.
See [Doc. 37]. At the evidentiary hearing, the government clarified that it does not
intend to offer evidence from the subsequent conversations and will only seek to
admit into evidence the recorded interview, (Tr. at 22-23), and the government re-
affirmed this position in its response to Dixon’s motion to suppress, [Doc. 59 at 5
n.2]. Accordingly, the Court will confine the analysis of Dixon’s motion to
suppress to the statements he made during the April 18, 2017, interview.
30
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 31 of 45
1. Miranda Violation Claim
The ruling in Miranda requires law enforcement officers to apprise a
defendant in custody of his Fifth Amendment rights before engaging in
interrogation. See Garcia v. Singletary, 13 F.3d 1487, 1489 (11th Cir. 1994).
Interrogation for Miranda purposes “means ‘any words or actions on the part of
the police (other than those normally attendant to arrest and custody) that the
police should know are reasonably likely to elicit an incriminating response from
the suspect.’” United States v. Gomez, 927 F.2d 1530, 1538 (11th Cir. 1991) (quoting
Rhode Island v. Innis, 446 U.S. 291, 301 (1980)). “The Supreme Court in Miranda
established that custodial interrogation cannot occur before a suspect is warned of
[his] rights against self-incrimination,” but “[p]re-custodial questioning . . . does
not require Miranda warnings.” United States v. Matcovich, 522 F. App’x 850, 851
(11th Cir. 2013) (per curiam) (unpublished) (first alteration in original) (citations
and internal marks omitted). “Statements made in violation of Miranda are not
admissible at trial.” United States v. Barry, 479 F. App’x 297, 299 (11th Cir. 2012)
(per curiam) (unpublished) (citation omitted).
The parties’ post-hearing briefs dispute whether Dixon was subjected to a
custodial interrogation on April 18, 2017, and, therefore, whether Miranda
warnings were required. See [Doc. 59 at 5-12; Doc. 63 at 3-4]. The government
31
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 32 of 45
argues that Dixon was not in custody at the time of the interview because the
totality of the circumstances show there was “no restraint on freedom of
movement of the degree associated with a formal arrest,” including that:
(1) the interview took place outside of [his] home, (2) [he] was told
that he was not under arrest and that he did not have to answer any
of the agents’ questions, (3) [he] was not restrained during the
interview, (4) the agents did not raise their voices, yell, or threaten
[him], (5) neither agents’ firearm was visible during the interview, (6)
neither agent used physical force on [him], (7) [he] appeared calm in
the interview, (8) the interview lasted approximately forty minutes,
and (9) [he] was not arrested after the interview.
[Doc. 59 at 8-9]. On the other hand, Dixon argues that he was in custody at the
time of the interview as a reasonable person would not have felt free to leave under
the circumstances since “he was surrounded by at least 12 law enforcement
officers, including some agents searching his home and officers with marked
police cars lining the perimeter of the small yard”; he “was prevented from re-
entering his home, and kept outside in the early morning hours”; he “was
interviewed by two federal agents, one of whom was armed”; and “one of the
agents physically grabbed his cell phone from his hand,” which was “a controlling,
threatening, and aggressive act.” [Doc. 63 at 3-4].
A defendant is in custody under Miranda when there has been a “‘formal
arrest or restraint on freedom of movement of the degree associated with a formal
arrest.’” United States v. Brown, 441 F.3d 1330, 1347 (11th Cir. 2006) (citation
32
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 33 of 45
omitted) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). However,
“[a]n interviewee’s ‘status as a suspect, and the coercive environment that exists
in virtually every interview by a police officer of a crime suspect,’ does not
automatically create a custodial situation.” Matcovich, 522 F. App’x at 851
(quoting United States v. Muegge, 225 F.3d 1267, 1270 (11th Cir. 2000) (per
curiam)); see also United States v. Phillips, 812 F.2d 1355, 1360 (11th Cir. 1987) (per
curiam) (citation omitted) (quoting Minnesota v. Murphy, 465 U.S. 420, 431 (1984))
(“‘[T]he mere fact that an investigation has focused on a suspect does not trigger
the need for Miranda warnings in noncustodial settings[.]’”). Instead, whether a
suspect is in custody “depends on whether under the totality of the circumstances,
a reasonable man in his position would feel a restraint on his freedom of
movement to such extent that he would not feel free to leave.” Barry, 479 F. App’x
at 299 (quoting Brown, 441 F.3d at 1347). This test is objective, and “the actual,
subjective beliefs of the defendant and the interviewing officer[s] on whether the
defendant was free to leave are irrelevant.” Brown, 441 F.3d at 1347 (citation and
internal marks omitted). Thus, “[t]he ‘initial step’ in determining whether a
person was in ‘custody’ under Miranda ‘is to ascertain whether, in light of the
objective circumstances of the interrogation’ and the totality of all the
circumstances, ‘a reasonable person would have felt that he . . . was not at liberty
33
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 34 of 45
to terminate the interrogation and leave.’” Matcovich, 522 F. App’x at 851 (quoting
Howes v. Fields, 565 U.S. 499, 509 (2012)). “[T]he reasonable person from whose
perspective ‘custody’ is defined is a reasonable innocent person.” United States v.
Street, 472 F.3d 1298, 1309 (11th Cir. 2006) (internal marks omitted) (quoting
United States v. Moya, 74 F.3d 1117, 1119 (11th Cir. 1996)).
The Court must “consider several factors in determining custody, ‘including
whether the officers brandished weapons, touched the suspect, or used language
or a tone that indicated that compliance with the officers could be compelled.’”
Barry, 479 F. App’x at 299 (quoting Street, 472 F.3d at 1309). Other factors include
“the location and length of the detention,” United States v. Luna-Encinas, 603 F.3d
876, 881 (11th Cir. 2010) (citations omitted), as well as “statements made during
the interview, the presence of physical restraints during questioning, and ‘the
release of the interviewee at the end of the questioning,’” Matcovich, 522 F. App’x
at 851 (quoting Howes, 132 S. Ct. at 1189).
“Considering the totality of the circumstances, the factors weigh in favor of
finding [Dixon’s] interrogation non-custodial.” Id. at 851-52. On April 18, 2017,
Dixon “was interviewed in familiar surroundings outside his own home,” at a
table in the front yard of the property. United States v. Rogers, Criminal Action
No. 1:09-CR-544-TWT-ECS, 2010 WL 2721883, at *2 (N.D. Ga. June 9, 2010),
34
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 35 of 45
adopted by 2010 WL 2697084, at *1 (N.D. Ga. July 7, 2010); see also United States
v. Young, CRIMINAL CASE NO. 3:16-cr-00006-TCB-RGV, 2017 WL 653556, at *3
(N.D. GA. Jan. 25, 2017), adopted by 2017 WL 635120, at *1 (N.D. Ga. Feb. 16, 2017)
(citation and internal marks omitted) (“[A]lthough not dispositive, courts are much
less likely to find the circumstances custodial when the interrogation occurs in
familiar or at least neutral surroundings, such as the suspect’s home.”); (Tr. at 5).
At the outset, the agents told Dixon that he was not under arrest and that he did
not have to submit to questioning. (Tr. at 6; Gov. Ex. 1 at 0:29-0:55); see also Young,
2017 WL 653556, at *3 (alterations in original) (citation and internal marks omitted)
(explaining that courts should “consider whether a suspect was unambiguously
advis[ed] . . . that he is free to leave and is not in custody” as this is a “powerful
factor that generally will lead to the conclusion that the defendant is not in custody
absent a finding of restraints that are so extensive that telling the suspect he was
free to leave could not cure the custodial aspect of the interview”). Dixon was not
physically restrained during the interview. (Tr. at 7). Neither of the agents
brandished their weapons at any point, and their weapons remained out of sight
throughout the interview. (Tr. at 7, 12). The interview concluded after
approximately 45 minutes, and Dixon was not arrested that day. (Tr. at 9; Gov.
Ex. 1).
35
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 36 of 45
Dixon relies on the fact that “one of the agents physically grabbed his cell
phone from his hand,” which he asserts was a “controlling, threatening, and
aggressive act.” [Doc. 63 at 3]. Although it is true that TFO Nicholson grabbed
the iPhone from Dixon’s hands, (Tr. at 8, 17), this was only after Dixon had picked
up the iPhone and stated that he needed to “do some stuff” before letting the
agents look through it, (Tr. at 8; Gov. Ex. 1 at 14:44-14:56), which prompted TFO
Nicholson to respond quickly to retrieve the iPhone and prevent the possible
destruction of evidence, (Tr. at 8), as the iPhone was included among the items
identified for seizure in the search warrant, (Gov. Ex. 1 at 14:56-15:28); see also
[Doc. 58-1 at 2, 4]. Moreover, during this exchange, the agents maintained a calm
tone, see (Gov. Ex. 14:20-16:50), as they had throughout the entire interview, see
(Gov. Ex. 1). 19 Accordingly, even if these facts “suggest the interview was
custodial,” they do not, standing alone, “render this a custodial interrogation
when: (1) [Dixon] was unambiguously told he was free to leave, was not in
custody, and did not have to answer questions”; (2) he was in a familiar setting in
the front yard of his home; “(3) he was not physically restrained during
questioning”; “(4) the agents’ weapons were holstered when they spoke with
19 Similarly, Dixon’s demeaner throughout the interview was friendly, aside from
some minor agitation during the exchange regarding his iPhone. (Tr. at 7-9); see
also (Gov. Ex. 1).
36
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 37 of 45
[him]”; and (5) “after the interview was over, [he] left voluntarily [to wait for his
ride to school] and was not arrested until a later time.” Matcovich, 522 F. App’x
at 852 (citations and internal marks omitted); see also Brown, 441 F.3d at 1349 (“No
particular fact in the ‘custody’ analysis is outcome determinative—[the Court]
simply weigh[s] the totality of the circumstances.”); (Tr. at 5-7, 9, 12).
“In sum, because [Dixon] was not subject to custodial interrogation when
the agents spoke with him [outside] his home on [April 18, 2017], Miranda
warnings were not required,” and since the “statements were not obtained in
violation of Miranda, [] they are not due to be suppressed on that basis.” Young,
2017 WL 653556, at *5 (citations omitted); see also id. at *4-5 (citations omitted)
(concluding that the defendant was not subject to a custodial interrogation where
he was interviewed outside his home, told he was not under arrest and that he did
not need to speak with the agents, he was not handcuffed or restrained in any way,
the agents spoke in a calm tone of voice and made no promises or threats, the
agents’ weapons were holstered throughout the interview, the interview was brief
in duration, and at the conclusion of the interview, the defendant was led back to
his family and was not arrested until eight months later); cf. Rogers, 2010 WL
2721883, at *2 (finding the defendant “was not in custody for purposes of Miranda”
and thus “Miranda warnings were not required” where there “was no restraint on
37
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 38 of 45
[his] freedom of movement of a degree associated with formal arrest,” he was told
“he was not under arrest and was free to leave,” he “was not handcuffed or under
any other restrained when he was interviewed,” no “weapons were pointed at
[him ] or even un-holstered at the time,” and he “was interviewed in familiar
surroundings outside his own home”).
2. Voluntariness Claim
Although Dixon’s statements were not taken in violation of Miranda, “the
[C]ourt still must determine that any confessions or incriminatory statements
made by [Dixon] were voluntary in order to admit them at trial.” United States v.
Lazarus, 552 F. App’x 892, 895 (11th Cir. 2014) (per curiam) (unpublished) (citing
United States v. Bernal–Benitez, 594 F.3d 1303, 1317–18 (11th Cir. 2010)). Whether
a statement was voluntarily given must be examined in light of the totality of the
circumstances. United States v. Shepherd, Criminal Case No. 1:11–cr–00058–
ODE–RGV–1, 2011 WL 4443440, at *7 (N.D. Ga. Aug. 23, 2011), adopted by 2011
WL 4443435, at *1 (N.D. Ga. Sept. 21, 2011) (citing Schneckloth v. Bustamonte, 412
U.S. 218, 226 (1973); Hubbard v. Haley, 317 F.3d 1245, 1252 (11th Cir. 2003)). “This
totality of the circumstances test directs the Court ultimately to determine whether
a defendant’s statement was the product of ‘an essentially free and unconstrained
choice.’” United States v. Villaverde-Leyva, Criminal Action File No. 1:10-CR-035-
38
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 39 of 45
RWS/AJB, 2010 WL 5579825, at *11 (N.D. Ga. Dec. 9, 2010), adopted by 2011 WL
121932, at *1 (N.D. Ga. Jan. 14, 2011) (citation omitted). “Among the factors the
Court must consider are the defendant’s intelligence, the length of his detention,
the nature of the interrogation, the use of any physical force against him, or the
use of any promises or inducements by police.” Id. (citations omitted).
The focus of the voluntariness inquiry is whether Dixon was coerced by the
government into making the statement, so “the relinquishment of the right must
have been voluntary in the sense that it was the product of a free and deliberate
choice rather than intimidation, coercion, or deception.” Moran v. Burbine, 475
U.S. 412, 421 (1986); see also United States v. Cordova, 829 F. Supp. 2d 1342, 1353
(N.D. Ga. 2011), adopted at 1345 (citation omitted). Thus, “[t]hose cases where
courts have found confessions to be involuntary ‘have contained a substantial
element of coercive police conduct.’” United States v. Patterson, Criminal No.
1:06-CR-500-1-TWT, 2007 WL 2331080, at *4 (N.D. Ga. Aug. 10, 2007), adopted at
*1 (quoting Colorado v. Connelly, 479 U.S. 157, 164 (1986)); see also Connelly, 479
U.S. at 167 (“[C]oercive police activity is a necessary predicate to the finding that
a confession is not ‘voluntary[.]’”); Demarest v. Sec’y, Dep’t of Corr., Case No. 8:13-
cv-75-T-36TBM, 2016 WL 951913, at *6 (M.D. Fla. Mar. 14, 2016) (citation omitted).
“Sufficiently coercive conduct normally involves subjecting the accused to an
39
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 40 of 45
exhaustingly long interrogation, the application of physical force or the threat to
do so, or the making of a promise that induces a confession.” Jones, 32 F.3d at 1517
(citation omitted); see also Martin v. Wainwright, 770 F.2d 918, 926 (11th Cir. 1985),
modified in unrelated part by, 781 F.2d 185 (11th Cir. 1986) (per curiam) (alteration
in original) (citation and internal marks omitted) (noting that the test for
determining voluntariness of a confession and whether coercion was present is
whether the defendant’s “will [was] overborne and his capacity for self-
determination critically impaired”).
Dixon moves to suppress his statements on the ground that they were
involuntary. [Doc. 37 at 2; Doc. 63 at 4-6]. Specifically, he asserts that “the
circumstances of the interview were coercive,” as his “home had been raided by
at least 12 law enforcement officers early in the morning, and he was not allowed
to re-enter the home”; the “perimeter was surrounded by marked police cars with
lights on”; he was interviewed by two agents and “another law enforcement
officer was nearby, such that he was outnumbered”; the agents “were aware of his
educational level—that he had not completed high school—because he stated that
he was in school trying to obtain his [GED]”; “although the agents did not make
any explicit threats against [him], TFO Nicholson physically grabbed the cell
phone from his hands, and the third law enforcement officer intervened at the
40
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 41 of 45
same time”; and he “was subject to physical intimidation,” as the agents “had
nearby back up, enhancing their threatening presence.” [Doc. 63 at 5-6]. By
contrast, the government points out that Dixon “agreed to be interviewed by the
agents,” he “was not threatened or coerced to speak with the agents and was told
that he did not have to answer any of their questions,” he was “coherent and did
not appear to be under the influence of drugs or alcohol,” he “understood the
agents’ questions and there was no language barrier,” he was “not handcuffed or
physically restrained,” no weapons were drawn on him, the interview “only lasted
approximately forty-five minutes,” and “when asked for the passcode to his
phone, [Dixon] refused to give it to the agents, evidencing he understood he had
a choice in the matter.” [Doc. 59 at 13-14 (citations omitted)].
“A confession is involuntary if the suspect’s ‘will was overborne in such a
way as to render his confession the product of coercion.’” Demarest, 2016 WL
951913, at *6 (quoting Arizona v. Fulminante, 499 U.S. 279, 288 (1991)); see also
United States v. Pinder, CRIMINAL ACTION FILE NO. 1:08-CR-421-03-
MHS/AJB, 2009 WL 10670633, at *30 (N.D. Ga. Dec. 23, 2009), adopted by 2010 WL
11507903, at *14 (N.D. Ga. Mar. 6, 2010), aff’d, 437 F. App’x 816 (11th Cir. 2011)
(per curiam) (unpublished) (citation and internal marks omitted) (“Determining if
a confession is voluntary requires examining whether a defendant’s will was
41
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 42 of 45
overborne by the circumstances surrounding the giving of a confession.”). As
previously noted, the Court must consider the totality of the circumstances,
including the location of the interview, to determine whether Dixon’s statements
were voluntary. Pinder, 2009 WL 10670633, at *30 (citations omitted); see also
Bernal-Benitez, 594 F.3d at 1319 (citation omitted) (“[The Court] consider[s] the
totality of the circumstances, including the details of the interrogation and the
defendant’s characteristics, when deciding whether a confession was voluntary.”).
“Considering the totality of the circumstances as established by the evidence
adduced at the evidentiary hearing, the Court finds that the government has
demonstrated by a preponderance of the evidence that [Dixon’s] statements were
entirely voluntary.” United States v. Lynn, 547 F. Supp. 2d 1307, 1311 (S.D. Ga.
2008), adopted at 1308 (citations omitted). The interview, which lasted only forty-
five minutes, see (Gov. Ex. 1), was not unreasonably long, see Shriner v.
Wainwright, 715 F.2d 1452, 1455 (11th Cir. 1983) (concluding that statements made
during a five hour interrogation were not involuntary); Pinder, 2009 WL 10670633,
at *31 (citation omitted) (finding that two hours and twenty minutes of
interrogation was not coercive). Additionally, the agents maintained a calm and
conversational tone throughout the interview, did not brandish their weapons,
and did not use any physical force against Dixon, aside from the brief encounter
42
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 43 of 45
in which TFO Nicholson took the iPhone from Dixon’s hands in an effort to
prevent the possible destruction of evidence, but as previously noted, even during
this exchange, the agents maintained a calm demeanor. See (Tr. at 7-8, 12, 17-18;
Gov. Ex. 1); see also Moran, 475 U.S. at 421 (citation omitted) (“[T]he record is
devoid of any suggestion that police resorted to physical or psychological pressure
to elicit the statements.”); Miller, 838 F.2d at 1537 (finding that “there was no
official overreaching that could have rendered [defendant’s] statement
involuntary” under the totality of the circumstances, including that “[t]he
transcript [did] not suggest, nor d[id] [defendant] allege, that the police either
applied physical force or threatened to do so”). Dixon was advised at the
beginning of the interview that he was not under arrest and that he did not have
to answer any questions, (Tr. at 6; Gov. Ex. 1 at 0:29-0:55), and he was subsequently
repeatedly advised that he did not have to give the agents the passcode for the
iPhone, and he ultimately exercised his right to not provide that information, see
(Gov. Ex. 1 at 14:05-16:20, 37:50-44:13); see also United States v. Chan, CRIMINAL
ACTION FILE NO. 1:14-CR-203-ODE-AJB, 2015 WL 13736217, at *8 (N.D. Ga. Nov.
17, 2015), adopted by 2016 WL 627350, at *4 (N.D. Ga. Feb. 16, 2016) (concluding
that defendant’s statements were voluntarily given where he “was told that he
was not under arrest and that he was free to leave,” and he “chose not to answer
43
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 44 of 45
several questions, and refused to give his identification or consent to the search of
the vehicle, demonstrating that the atmosphere and the questioning did not inhibit
[his] ability to exercise free choice”).
Moreover, there is no evidence that Dixon’s statements were induced by any
promises made by the agents, see United States v. Mercer, 541 F.3d 1070, 1075 (11th
Cir. 2008) (per curiam) (footnote omitted) (“[N]othing in the record evidences that
anyone made promises to [d]efendant, direct or implied, in exchange for his
statements.”); United States v. La Forgia, Criminal No. 12–0057–WS–C, 2012 WL
1869035, at *4 (S.D. Ala. May 22, 2012) (“Simply put, there is no evidence of the
kinds of affirmative misrepresentations that might render [defendant’s]
statements involuntary and require their suppression.”), and while the agents
were aware of his limited education, as he stated he was pursuing his GED, (Tr. at
9; Gov. Ex. 1 at 2:13-2:27), there is no evidence he had any difficulty understanding
the agents’ questions or that this affected the voluntariness of his statements, see
United States v. Garcia, CR 16-00478-17-TUC-JGZ(LAB), 2017 WL 4325591, at *1, 5
(D. Ariz. Sept. 8, 2017), adopted by 2017 WL 4284604, at *1 (D. Ariz. Sept. 27, 2017)
(finding the defendant’s statements were voluntary based on the totality of the
circumstances even though he “was only 19 years old, did not graduate from high
school, had no prior contact with law enforcement, and was not advised of his
44
Case 3:20-cr-00003-TCB-RGV Document 70 Filed 04/15/21 Page 45 of 45
Miranda rights”). Thus, the statements Dixon made on April 18, 2017, were
voluntary and are not due to be suppressed, and it is RECOMMENDED that his
motion to suppress statements, [Doc. 37], be DENIED.
III. CONCLUSION
For the foregoing reasons, the government’s motion for leave to file a sur-
reply, [Doc. 65], is GRANTED, and it is RECOMMENDED that Dixon’s motion
to suppress evidence, [Doc. 36], motion to suppress statements, [Doc. 37], motion
for return of property, [Doc. 38], and amended motion for return of property, [Doc.
41], be DENIED.
There are no other pending matters before the Magistrate Judge, and the
undersigned is aware of no problems relating to the scheduling of this case.
IT IS THEREFORE ORDERED and ADJUDGED that this action be and
the same is hereby, certified Ready for Trial.
IT IS SO ORDERED and RECOMMENDED, this 15th day of April, 2021.
45
File and source
- File
- 70.pdf
- Size
- 360,715 bytes
- SHA-256
- 36f8c5efd7577430446d00e2799d922b71206bb86bc6bccee6c886999df86fa8
- Our copy
- 70.pdf
- Original
- No public link identified.