UNITED STATES v. EBERSOLE (2024)

OPINION AND ORDER

Defendant Thomas J. Ebersole moves to suppress statements from an interview at his home, claiming that agents violated his Fifth Amendment right against self-incrimination while he was in custody. Also, the motion seeks exclusion of physical evidence obtained from a subsequent search warrant as the fruit of the poisonous tree. Arguing, among other things, that Mr. Ebersole was not in custody when questioned, the United States opposes his motion. For the reasons that follow, the Court GRANTS IN PART and DENIES IN PART Defendant's motion.

GOVERNING LEGAL STANDARD

The Fifth Amendment protects an individual's right not to “be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. To protect that right, the Supreme Court fashioned a prophylactic rule requiring that a suspect receive certain warnings and be advised of certain constitutional rights when in custody before any statement he makes may be admitted into evidence. Miranda v. Arizona, 384 U.S. 436, 444 (1966). Put simply, when a person is in custody, “law-enforcement officers [must] give warnings ․ before interrogating individuals․” United States v. Panak, 552 F.3d 462, 465 (6th Cir. 2009) (citing Stansbury v. California, 511 U.S. 318, 322 (1994)).

“The question of whether a defendant was ‘in custody’ is a mixed question of fact and law ․” United States v. Swanson, 341 F.3d 524, 528 (6th Cir. 2003). Custody “is an objective inquiry ․” United States v. Saylor, 705 F. App'x 369, 372 (6th Cir. 2017) (quoting J.D.B. v. North Carolina, 564 U.S. 261, 270 (2011)). It does not turn on whether an individual is arrested or not. “A person may be ‘in custody’ while not actually under arrest.” United States v. Martinez, 795 F. App'x 367, 370 (6th Cir. 2019). “ ‘[C]ustody’ is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion.” Howes v. Fields, 565 U.S. 499, 508–09 (2012).

Importantly, “[i]n drawing the line between a non-custodial encounter ․ (where Miranda does not apply) and a custodial encounter (where it does), courts consider ‘all of the circumstances’ surrounding the encounter, with ‘the ultimate inquiry’ turning on whether ‘a formal arrest’ occurred or whether there was a ‘restraint on freedom of movement of the degree associated with a formal arrest.’ ” Panak, 552 F.3d at 465 (quoting Stansbury, 511 U.S. at 322). The question turns not on “whether the individual felt pressure to speak to the officers but whether [he] was forced to stay with them.” Id. at 471.

Whether a person is in custody requires looking at the “ ‘objective circumstances of the interrogation’ to determine ‘how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action.’ ” Id. at 465 (quoting Stansbury, 511 U.S. at 323, 325). The factors relevant to this analysis include: “(1) the location of the interview; (2) the length and manner of questioning; (3) whether there was any restraint on the individual's freedom of movement; and (4) whether the individual was told he or she need not answer the questions.” Martinez, 765 F. App'x at 371 (citing United States v. Hinojosa, 606 F.3d 875, 883 (6th Cir. 2010)). No single factor controls the analysis, which involves consideration of the totality of the circumstances. United States v. Luck, 852 F.3d 615, 621 (6th Cir. 2017) (quoting Hinojosa, 606 F.3d at 883) (describing the list of factors for determining whether a suspect was in custody as non-exhaustive).

Neither party in this case disputes that Mr. Ebersole was questioned within the meaning of the Fifth Amendment, and the parties agree that Miranda warnings were not given before the interview. Therefore, the need for such warnings turns on whether Mr. Ebersole was in custody during the interview. Determining whether he was in custody involves two inquiries. First, the Court examines “the circumstances surrounding the interrogation.” Yarborough v. Alvarado, 541 U.S. 652, 663 (2004) (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)). Second, “given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave”? Id. (emphasis added). In this analysis, the United States bears the burden of showing that Mr. Ebersole was not in custody, both under the Rules of Evidence, see Bourjaily v. United States, 483 U.S. 171, 175 (1987); Hillside Prods. v. County of Macomb, 389 F. App'x 449, 460 (6th Cir. 2010) (citing Nelson v. Tennessee Gas Pipeline Co., 243 F.3d 244, 251 (6th Cir. 2001)), and under the Constitution, see Miranda, 384 U.S. at 475.

FINDINGS OF FACT

On September 23, 2022, agents with the Federal Bureau of Investigation executed a federal search warrant at Mr. Ebersole's apartment at 8:15 am. In doing so, two agents approached the door with weapons drawn wearing body armor; one carried a ballistic shield, another stood further back with a device to breach the door if necessary. At least one agent had a long gun or rifle pointed at Mr. Ebersole's front door. As Mr. Ebersole exited his apartment, one of the agents at the door had his weapon trained on Mr. Ebersole. When he did so, an agent handcuffed Mr. Ebersole. He remained outside in cuffs while the house was secured. Then, agents escorted Mr. Ebersole into the dining area of his apartment before removing the cuffs. Altogether, Mr. Ebersole was cuffed for five or six minutes.

During the execution of the warrant, two FBI agents interviewed Mr. Ebersole and recorded the interview. One agent acknowledged that the apartment was a “whirlwind” because there were “a lot of bodies [agents] all over the place ․” (Ex. 20, at 1; ECF No. 29-2, PageID #143.) In addition to the two agents who interviewed Mr. Ebersole, seven agents and one computer forensic examiner conducted the search, for a total of ten people aside from Mr. Ebersole in the apartment, which has only about five hundred square feet.

In an open area somewhat between the dining room and the edge of the seventy-square-foot kitchen toward the dining area (Ex. 3), two agents sat across a small table from Mr. Ebersole and interviewed him for less than an hour. One had his service weapon holstered in view of Mr. Ebersole. Given the configuration of the limited space, Mr. Ebersole did not have immediate access to a doorway or other exit from the apartment, but the open floor plan where the questioning took place did not limit his freedom of movement, and he had free lines of sight out to the front door, into part of the living room, and potentially down the hallway leading to his bedroom. Indeed, as Special Agent Jason Watson testified, this was the “least confined space” in the apartment for an interview.

At the outset of the interview, the agents informed Mr. Ebersole that he was not under arrest and not required to speak with them. Mr. Ebersole nodded, acknowledging that he understood this advisement. Additionally, the agents told Mr. Ebersole that he could end the interview at any time. Also, they advised him not to answer any questions that he was not comfortable answering. But they did not advise him that he was free to leave.

Initially, Mr. Ebersole spoke with the agents. Early on, he asked, “can I get some more water please?” (Ex. 20, at 2; ECF No. 29-2, PageID #144.) Instead of allowing Mr. Ebersole to get the water himself, agents got him a glass of water because other agents were executing the search warrant.

Less than ten minutes into the interview, when asked the passcode for his phone, Mr. Ebersole asked, “Can I not answer any more questions?” (Ex. 20, at 5–6; ECF No. 29-2, PageID #147–48.) The audio recording of the interview reflects, and the Court finds, that the statement intended to stop the interview. In fact, the agents understood the statement that way too. In response, they affirmed that he “can stop the interview at any time,” then engaged in a line of questioning to persuade Mr. Ebersole to change his mind and continue talking. (Id.) After reminding him that he was not under arrest and could end the interview at any time, they invited Mr. Ebersole to decline to answer any question he was not comfortable answering by saying, “pass.” (Id.) Mr. Ebersole immediately said pass in response to the pending request to tell agents the passcode for his phone. Then, he asked to lie down because he felt sick. The agents did not allow him to do so and instead turned to asking whether Mr. Ebersole knew why they were there and mentioned the trading of images of online. In response, Mr. Ebersole asked, “Can I end the interview?” (Id.) The agents told him that he could and responded in the negative when Mr. Ebersole asked whether he “going to be under arrest.” (Id.) He again asked to lay down but was told to “hang on.” (Id.) They encouraged him to talk to unburden himself and remove the weight he was carrying around from his actions. They encouraged him to keep talking and to tell the agents his story so that they could prove that, though he viewed child pornography online, he was not “one of those sickos out there that are actually taking the photographs, that are abusing children.” (Ex. 20, at 8; ECF No. 29-2, PageID #150.)

On multiple occasions, Mr. Ebersole said that he felt sick and wanted to rest on his bed or couch. But the agents did not accommodate that request, because of the ongoing search of the apartment, even when Mr. Ebersole said he would talk to them if he could lie down.

The interview lasted just under an hour. After approximately 41 minutes, Mr. Ebersole asked again to lie down. Agents told him that he could not lie down in the apartment because others were executing the warrant. This time, Mr. Ebersole said, “I'm done talking.” (Ex. 20, at 23; ECF No. 29-2, PageID #165.) At that point, agents made small talk with him, but did not inquire further about the case. Agents left the apartment around 9:30 am.

In his motion, Defendant claims that he asked for an attorney less than ten minutes into the interrogation. (ECF No. 21, PageID #63–64.) In response, the United States maintains that he did not and that, instead, Mr. Ebersole asked the agent to let him talk while lying in bed. (ECF No. 28, PageID #116; ECF No. 29-2, PageID #148.) At this particular moment, the recording of the interview is not entirely clear. In one listening, Mr. Ebersole can be heard to say, though the audio leaves doubt on the matter, “can I talk to a lawyer” before asking to “lay down. I'm sick.” On other hearings, it sounds as if Mr. Ebersole asks to talk to the agents while lying in bed. At this point, Mr. Ebersole spoke quickly. Special Agent Watson testified that he did not hear Mr. Ebersole request a lawyer, and his contemporaneous transcription of the recording bears out that account. Accordingly, the Court credits Special Agent Watson's testimony and version of events and finds that Mr. Ebersole did not request a lawyer.

At no time during the interview did agents give Mr. Ebersole a Miranda warning or otherwise advise him of his rights. After the search and interview of Mr. Ebersole, agents obtained a search warrant for his Google/Gmail accounts. (ECF No. 23.) Later, a grand jury charged Mr. Ebersole with three counts of receiving, transporting, and possessing child pornography. (ECF No. 1.) He has no prior criminal history. (ECF No. 3, PageID #12.)

CONCLUSIONS OF LAW

The second part of the custody inquiry requires the court to determine, based on these facts, whether a reasonable person would feel that he or she was “at liberty to terminate the interrogation and leave.” Yarborough, 541 U.S. at 663. To make this determination, the Court examines the objective circumstances through the lens of the factors the Sixth Circuit highlights as relevant to the analysis. See Martinez, 765 F. App'x at 371 (citing Hinojosa, 606 F.3d at 883).

I. Custody

As an initial matter, the United States argues that “[f]or the Miranda limitation to exist, the suspect must actually be taken into custody or be placed under a level of restraint such that they are considered formally arrested.” (ECF No.28, PageID#111.) But the case cited for this proposition, United States v. Salvo, 133 F.3d 943 (6th Cir. 1998), does not require restraint to rise to the level that a defendant is considered formally arrested before requiring Miranda warnings. Instead, it opines that the restraint of “freedom must rise to the level associated with a formal arrest.” Id. at 948 (emphasis added). Further, the Supreme Court used this same language in a subsequent case, stating that when a suspect is not arrested, the test is whether there was a “restraint on freedom of movement of the degree associated with formal arrest.’ ” J.D.B., 564 U.S. at 270 (quoting Keohane, 516 U.S. at 112). In other words, “courts ask whether the police arrested the suspect or otherwise restricted his freedom of movement as though he were under arrest.” United States v. Butler, 790 F. App'x 782, 784 (6th Cir. 2019) (citing Panak, 552 F.3d at 465) (emphasis added). A formal arrest, actual or constructive, sets the constitutional bar too high. As noted, the inquiry focuses not on “whether the individual felt pressure to speak to the officers but whether [he] was forced to stay with them.” Panak, 552 F.3d at 471.

I.A. Objective Factors

The Court begins by examining the factors the Sixth Circuit set forth for analyzing the objective circumstances of the interrogations to determine whether a reasonable person would consider himself free to leave on the totality of the circumstances. Id. at 465 (quoting Stansbury, 511 U.S. at 322).

I.A.1. Location of the Interview

Generally, interrogations at a suspect's home do not raise constitutional concerns about coercing incriminating statements. Conder, 529 F. App'x 618, 622 (quoting Panak, 552 F.3d at 466). Therefore, the question becomes whether the facts and circumstances in this case present a rare exception to this general rule that warrants a finding that Mr. Ebersole was in custody during his interview.

“Even when an interrogation takes place in the familiar surroundings of a home, [the interview] still may become custodial without the officer having to place handcuffs on the individual.” Panak, 552 F.3d at 466 (citing Orozco v. Texas, 394 U.S. 324, 325–26 (1969)). “[N]ot every case will fit [the] generalization” that in-home interrogations normally do not raise the concern of “subjugat[ing] the individual to the will of his examiner.” Conder, 529 F. App'x at 622 (quoting Panak, 552 F.3d at 466). Ultimately, determining whether an interrogation in a defendant's home “transform[ed] one's castle into an interrogation cell” may turn on multiple factors, including “[t]he number of officers, the show of authority, the conspicuous display of drawn weapons, [and] the nature of the questioning ․” Panak, 552 F.3d at 466 (citing United States v. Craighead, 539 F.3d 1073, 1083 (9th Cir. 2008)).

Although agents questioned Mr. Ebersole in his apartment's dining area, the sort of place a reasonable person normally feels as if he is not in custody, agents restricted his movements. They did not allow him to lie down and retrieved water for him rather than allowing him to get it himself. To be sure, they did so for good reason—agents were executing the warrant, and they needed to do so responsibly and safely. If these restraints of movement were the only material ones, this question might be close. But the interview of Mr. Ebersole proceeded after agents placed him in handcuffs for several minutes before escorting him, still handcuffed, inside his apartment. This restraint of Mr. Ebersole's movement set the tone for the questioning that followed and tips the balance in favor of finding that he was in custody. In such circumstances, a reasonable person would not feel free to leave.

I.A.2. Length and Manner of Questioning

Mr. Ebersole's interview lasted less than an hour, and substantive questioning ended after about 45 minutes. Many Circuit precedents find longer examinations to be non-custodial. See Panak, 552 F.3d at 467 (45 to 60 minutes weighing in favor of noncustodial interrogation); United States v. Jewell, 16 F. App'x 295, 297–98 (6th Cir. 2001) (one hour weighing in favor of noncustodial interrogation); cf. United States v. Holt, 751 F. App'x 820, 824 (6th Cir. 2018) (citations omitted) (two hours of questioning weighing in favor of custodial interrogation). Nothing in the manner of questioning here—the questions themselves or the way agents asked them—increases the likelihood that a reasonable person in Mr. Ebersole's circumstance would feel unable to leave the interview. Therefore, this factor supports the view of the United States.

I.A.3. Freedom of Movement

Mr. Ebersole's apartment is small. (See Ex. 3; ECF No. 30-1, PageID #174.) Its configuration did not afford him the ability to leave. Effectively, agents blocked his egress, confining him to his dining table—a limitation on movement reinforced by being led there in handcuffs and unable to leave to lie down or get a glass of water (though the Court does not count these facts twice in the analysis). Moreover, it is not disputed that Mr. Ebersole was not free to move about his apartment. While the location chosen by the agents might have been the “least confined place” within the apartment, with two agents between him and the main door and many others in his apartment executing the search warrant (though not necessarily visible), a reasonable person in Mr. Ebersole's position would not have felt free to leave or freely move about the apartment.

When he asked to lie down, agents declined to allow him to leave the kitchen because other agents were executing the search warrant. The actions of agents to facilitate the search does not mean that Mr. Ebersole was not free to leave. See United States v. Elliott, 876 F.3d 855, 867 (6th Cir. 2017). But agents did not advise Mr. Ebersole that he could leave his apartment during the search. See Jewell, 16 F. App'x at 298. At the same time, they did not tell him that he could not leave. See United States v. Levenderis, 806 F.3d 390, 401 (6th Cir. 2015). On the circumstances of this case, a reasonable person would not feel free to leave, particularly after requesting the ability to get water or lie down and being precluded from movement within his own apartment. To be clear, there were good reasons justifying that degree of restraint of Mr. Ebersole's movement during the search—namely, the safety of Mr. Ebersole and the agents executing the warrant. But the legal test focuses not on the justification for a restraint on movement, but on how a reasonable person objectively perceives it.

Unlike in other cases, Mr. Ebersole did not make a single request to lie down. He asked ten times. And when he twice requested water, agents did not allow him to get it himself. Instead, they gave him the water. This conduct communicated to Mr. Ebersole that the agents restrained his physical movement to his seat and that he was forced to stay with them. See Martinez, 795 F. App'x at 376. Though not restrained during the interview itself, Mr. Ebersole was handcuffed and detained immediately before agents questioned him—a relevant consideration in the analysis. See Holt, 751 F. App'x at 824 (citing Panak, 552 F.3d at 467).

On balance these facts and circumstances would lead a reasonable person to feel constrained in his movements such that he was not free to leave. Overall, this factor weighs in Mr. Ebersole's favor.

I.A.4. Warning of No Requirement to Answer Questions

Whether an agent informs an individual that he is not required to answer questions factors into the custody analysis. But the Sixth Circuit has repeatedly recognized that “[i]t would be strange, indeed, to say that a telltale sign of whether an individual must be Mirandized is whether the officer gave the individual one of the Miranda warnings—that [he] need not answer the questions.” Conder, 529 F. App'x 618 at 623 (quoting Panak, 552 F.3d at 467). This factor “is not decisive to the analysis, because Panak is a totality of the circumstances test.” Elliott, 876 F.3d at 867. Whether an officer informs an individual that he is free not to answer any question might tip the balance in a close case, but it does not determine the outcome where “the substantial factors cut the other way ․” Conder, 529 F. App'x at 623.

Here, the agents advised Mr. Ebersole that he did not have to answer questions and was free to pass on any question he did not wish to address. At the beginning of the interview, the agent asked Mr. Ebersole if he understood that while there was “a lot of law enforcement,” he “[did] not have to talk to [them],” and he nodded yes. (Ex. 20, at 1; ECF No. 29-2, PageID #143.) Also, at multiple points when Mr. Ebersole was uncomfortable with a question, the agent told him he could “pass” on the question. While Mr. Ebersole could have done more than simply pass on the question, ending the interview altogether at any time, this factor weighs in favor of the United States.

I.B. Additional Considerations

Because the analysis does not ultimately turn on any single factor, Luck, 852 F.3d at 621 (quoting Hinojosa, 606 F.3d at 883), the Court examines other factors the Supreme Court and Sixth Circuit have identified as bearing on the inquiry.

I.B.1. Questioning in the Home

As noted, the Sixth Circuit has identified “[t]he number of officers, the show of authority, the conspicuous display of drawn weapons, [and] the nature of the questioning” as factors that bear on determining whether questioning a suspect in his home amounted to a custodial interrogation. Panak, 552 F.3d at 466 (citing Craighead, 539 F.3d at 1083).

Number of Officers. As two agents questioned Mr. Ebersole, seven others plus a forensic examiner were inside his home during the execution of the warrant. From the perspective of Mr. Ebersole, two agents questioned him while the others conducted the search. It is not clear from the record whether Mr. Ebersole knew the specific number of agents. Still, he knew that several agents, in addition to the two interviewing him, were in his apartment. Without more, two agents immediately at hand, with an indeterminate number of others out of sight, does not by itself transform the apartment into an interrogation cell.

Show of Authority and Display of Drawn Weapons. Agents arrived at Mr. Ebersole's apartment with weapons drawn, removed Mr. Ebersole from his home, and initially handcuffed him as the search began. Then, they brought Mr. Ebersole back inside for questioning, leading him back into his apartment while still wearing handcuffs. When he asked to lie down, on different occasions over the course of forty-five minutes, the agents responded by variously telling him to “hold [ ] on just a minute,” “[j]ust, hang on,” “[j]ust relax,” “not quite yet,” “[t]hey're still not done,” “[n]o,” “[n]ot just yet,” and “[t]hey're still in there.” On one occasion, the agent responded to the third such request by saying, “[g]ive me one second,” but did not allow Mr. Ebersole to lie down, later telling him that he had “a small apartment, so there's not, it's not easy.” (Ex. 20, at 8, 10; ECF No. 29-2, PageID #150, 152.) Also, the agents did not allow Mr. Ebersole to get his own water. These facts communicate to a reasonable person in Mr. Ebersole's position that his freedom was sufficiently constrained to introduce custodial elements to the circumstances. Again, the agents acted reasonably to effect the search and to protect the agents and Mr. Ebersole. But that is not the question. The constitutional analysis focuses objectively on whether a reasonable person under the circumstances would feel free to leave. And these considerations—the show of authority and drawn weapons—favor Mr. Ebersole.

Nature of Questioning. Nothing in the nature of the questioning provides evidence that transform Mr. Ebersole's home into an interrogation cell. Accordingly, this factor weighs in favor of the United States.

I.B.2. Free to Leave

In addition to informing a suspect that he need not answer questions, the Supreme Court and the Sixth Circuit look to whether an agent informs the individual that he is free to leave. See Howes, 565 U.S. at 515 (“Most important, respondent was told at the outset of the interrogation, and was reminded again thereafter, that he could leave and go back to his cell whenever he wanted.”); Martinez, 795 F. App'x at 371 (“The FBI agents told Martinez at least nine times—on average, once every nine minutes—that he was meeting with them voluntarily and could leave at will.”); Salvo, 133 F.3d at 946 (reciting that agents told a suspect “that he was free to leave at any time” in addition to telling him he was not under arrest and that he was not required to talk to them).

In this case, the agents did not tell Mr. Ebersole that he was free to leave. To the contrary, they told him in word and deed that his movements were restricted while agents executed the search. Judged from the perspective of a reasonable person in Mr. Ebersole's position, as the law requires, these facts support a finding that a reasonable person would not feel free to leave. Because the inquiry focuses on whether a person is forced to stay with officers, these facts support finding Mr. Ebersole in custody during the interrogation.

I.C. Custodial Interrogation

Although different factors the Supreme Court and the Sixth Circuit identify point in different directions, no one consideration is dispositive. See Panak, 552 F.3d at 467 (citing Swanson, 341 F.3d at 529).

I.C.1. Sixth Circuit Precedent

The United States relies on a number of decisions from the Sixth Circuit to support its argument that Mr. Ebersole was not in custody. However, review of the Sixth Circuit's relevant case law distinguishes each. For example, in United States v. Zabel, 35 F.4th 493, 502–03 (6th Cir. 2022), officers ordered an individual who was unrestrained to follow them, gave him repeated assurances that he was free to leave, then interviewed the suspect in a non-hostile way at his place of work for less than twenty minutes, though they twice denied his request to use the restroom. In Martinez, 765 F. App'x at 371–76, a suspect who was a police officer with thirty years of experience was not restrained, retained control and use of his cellphone throughout an interview, was advised nine times that he was free to leave, and was also told that he had the right to speak with an attorney. In Saylor, 705 F. App'x at 372–74, an unrestrained probationer was interviewed in the kitchen of the halfway house where he resided, with the door open during the execution of a search warrant. In Conder, 529 F. App'x at 621–23, a suspect allowed officers with weapons visible to enter his home, but declined permission to search his house or vehicle, and ultimately gave a handful of incriminating answers in the course of a nearly two-hour interview during which he was not restrained. In Hinojosa, 606 F.3d at 883–84, an interview at an individual's home, without weapons drawn, restraints used, or threats made before executing a warrant was non-custodial even though the suspect did not have knowledge of the warrant. In Panak, 552 F.3d at 465–72, without weapons drawn two agents knocked on the door of a suspect who invited them inside, interviewed her in her living room for about an hour, and told her that she need not answer questions when she expressed a desire not to do so. In Jewell, 16 F. App'x at 297–98, after the execution of a warrant and before the suspect arrived home, agents told an individual that he was free to leave and not under arrest before they interviewed him for an hour.

Because of the fact-intensive nature of the inquiry, locating cases directly on point or with materially indistinguishable facts is difficult. Each of the cases on which the United States relies contains sufficiently distinguishable facts. Also, they point to a reasonable person in Mr. Ebersole's position not feeling free to leave on the distinct facts of this case.

I.C.2. Application to the Record

Based on its review of the record and the evidence and argument presented at the hearing, the Court finds that the factors most probative in this case are: (1) following a display of weapons, Mr. Ebersole was placed in handcuffs for several minutes at the outset of the encounter with agents, who led him in the cuffs to the table where they questioned him; (2) Mr. Ebersole was not told that he could leave; and (3) Mr. Ebersole made multiple requests to end the interview. When agents nonetheless used their training to continue the conversation, a reasonable person in Mr. Ebersole's position would have thought that, although agents told him he did not need to answer any questions, they did not really mean what they said. Although Mr. Ebersole more directly stated that he would say no more after about forty-five minutes, by then agents had obtained a considerable amount of information from their questioning.

Additionally, Mr. Ebersole made multiple requests to lie down and for water. In response to each, his movement was restrained. Were this restraint an isolated incident, it might well have no bearing. But he made ten requests to lie down. Agents had good reason to act as they did and deny those requests, but the constitutional analysis focuses not on the justification for the restraint but rather on whether a reasonable person would objectively feel that his movements were restrained in such circumstances. A reasonable person in these circumstances would.

On this record, the United States fails to carry its burden of demonstrating that Mr. Ebersole's statements were made while he was not in custody. Accordingly, Miranda warnings were required. Because the necessary warnings were not given, Mr. Ebersole's Fifth Amendment rights were violated. As a result, the Court GRANTS Defendant's motion to suppress Mr. Ebersole's statements obtained during the September 23, 2022 interview.

II. Fruit of the Poisonous Tree

After his interrogation on September 23, 2022, agents obtained a search warrant in January 2023 seeking evidence from Mr. Ebersole's Google/Gmail accounts. (See ECF No. 23.) Defendant argues for suppression of any evidence obtained in the subsequent search as fruit of the poisonous tree. In response, the United States maintains that, even if the statements are suppressed, “the remaining four corners of the warrant establishes probable cause.” (ECF No. 28, PageID #120.) The parties do not dispute whether probable cause supported the search warrant when it was issued. Instead, Defendant contends that all evidence resulting from statements obtained in violation of his Fifth Amendment right must be suppressed as fruit of the poisonous tree.

As a threshold matter, the Court notes that the fruit of the poisonous tree doctrine does not apply in this case. “Because the Miranda rule protects against violations of the Self-Incrimination Clause, which, in turn, is not implicated by the introduction at trial of physical evidence resulting from voluntary statements,” the Supreme Court holds that failing to give a suspect Miranda warnings does not require “suppression of the physical fruits of the suspect's unwarned but voluntary statements.” United States v. Patane, 542 U.S. 630, 634 (2004).

Even so, without the statements at issue, probable cause still supports the search warrant at issue. “It has been well established for more than 60 years”—now over 100 years—“that evidence is not to be excluded if the connection between the illegal police conduct and the discovery and seizure of the evidence is ‘so attenuated as to dissipate the taint.’ It is not to be excluded, for example, “if police had an ‘independent source’ for discovery of the evidence ․” Segura v. United States, 468 U.S. 796 (1984) (citation omitted).

Here, only one of the thirteen paragraphs providing the basis for probable cause in the supporting affidavit references Mr. Ebersole's statements from his questioning on September 23, 2022—Paragraph 21. (ECF No. 23, PageID #82–87.) Those statements confirm that the Google accounts that agents targeted belong to Mr. Ebersole. But the first search warrant already connected Mr. Ebersole to the suspect accounts and phone. (ECF No. 29, ¶¶ 14–17, PageID #128.) In short, Mr. Ebersole's statements referenced in Paragraph 21 of the search warrant affidavit were not necessary to establish probable cause for the second search warrant. And, in any event, the physical items and data obtained from Mr. Ebersole's Google/Gmail accounts do not fall within the fruit of the poisonous tree exclusionary rule for the violation at issue. Therefore, the Court DENIES this portion of Mr. Ebersole's motion to suppress the fruits of the search from the second warrant.

CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART Defendant's motion to suppress.

SO ORDERED.

J. Philip Calabrese, United States District Judge