                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

UNITED STATES OF AMERICA                         :
                                                 :
       v.                                        :      Criminal Action No.: 12-CR-231 (RC)
                                                 :
JAMES HITSELBERGER,                              :      Re Document No.:       42
                                                 :
       Defendant.                                :

                                 MEMORANDUM OPINION

                 DENYING DEFENDANT’S MOTION TO SUPPRESS STATEMENTS

                                     I. INTRODUCTION

       Defendant, Mr. Hitselberger, has been charged by the United States of America on three

counts of violating 18 U.S.C. §793(e), for willfully removing and retaining documents relating to

the national defense. He has also been charged on three counts of violating 18 U.S.C. §2071(a),

for willfully and unlawfully removing public documents from their secured location. On three

separate occasions, Mr. Hitselberger was interviewed by Naval Criminal Investigative Service

(“NCIS”) Agents. On the third occasion, Mr. Hitselberger was also interviewed by an agent from

the Federal Bureau of Investigations. Mr. Hitselberger now moves to suppress statements made

in these interviews as a violation of his Fifth Amendment right against self-incrimination and his

Fourth Amendment right against unlawful searches and seizures.


                               II. FACTUAL BACKGROUND

       James Hitselberger is a 56-year-old linguist. Mr. Hitselberger attended Georgetown

University, where he studied Arabic, and the University of Texas, where he worked towards a

PhD in politics and government. Govt’s Opp’n to Mot. to Suppress, Ex. 2, Results of Interview

with Hitselberger, April 5, 2013, ECF No. 46. He is fluent in Arabic, Farsi, and Russian. In June
2011, he was hired by Global Linguist Solutions, which assigned him to work for the United

States Navy at a base in Bahrain. Mr. Hitselberger regularly worked with classified information.

After being hired as a linguist, Mr. Hitselberger underwent training on the different types of

classified information and the proper handling of such materials. Govt’s Mem. in Supp. of

Detention, 4, Dec. 12, 2012, ECF No. 13. The Government alleges that on April 11, 2012, two

supervisors observed Mr. Hitselberger checking his email in a Restricted Access Area and then

printing multiple pages clearly marked as SECRET from a SECRET printer. Compl. ¶¶12-13,

Aug. 6, 2012, ECF No. 1. The Government contends that Mr. Hitselberger was observed taking

the classified documents from the printer, placing them into an Arabic-English Dictionary, and

attempting to leave the building with the SECRET documents. Id. at ¶12. Mr. Hitselberger was

stopped by his supervisor and his commanding officer after exiting the building and was asked to

produce the documents he just printed. Id. The documents recovered from Mr. Hitselberger’s

backpack were marked as SECRET in red, bold type in the header and footer of each page. Tr. of

Mot. Hr’g, Morning Session, Sept. 6, 2013, 24–25. The documents contained the availability of

improvised explosive devices in Bahrain, schedule for the monthly travel of a high-ranking

commander in Bahrain and information about the locations of U.S armed forces in the region and

their activities. Govt’s Mem. in Supp. of Detention, 7, Ex. 7.

       On April 11, 2012, NCIS Special Agents conducted a Command Authorized Search and

Seizure of Mr. Hitselberger’s living quarters in Bahrain. Compl. ¶14. Inside, Special Agents

found documents classified as SECRET with the SECRET warning label cut off the top and

bottom of the pages. Compl. ¶14. This document contained information about the location of

U.S. forces and their undisclosed activities in the region. Govt’s Mem. in Supp. of Detention, at

8, Exs. 10-11. The last document, located in the Hoover Institute’s public library, was originally




                                                 2
classified as SECRET. Govt’s Mem. in Supp. of Detention at 10-11, Ex. 13. This document

discusses gaps in U.S. intelligence with respect to the political situation in Bahrain. Id. at 10-11,

Ex. 14.

          On April 11, 2012, Mr. Hitselberger was escorted to the Naval Security Force offices,

where he was held for approximately eight hours. Tr. of Mot. Hr’g, Afternoon Session, 148 -

149, Sept. 6, 2013. During this time, he was guarded by Naval Security Force officers, until he

was escorted to the NCIS offices for his interview. Tr. of Mot. Hr’g, 150. On the evening of

April 11, 2012, NCIS special agents Raffi Kesici and John Fowler interviewed Mr. Hitselberger

regarding the events earlier that day. Tr. of Mot. Hr’g, 120. The interview began at

approximately 8:14 p.m. and Mr. Hitselberger signed a written waiver of his Miranda rights at

8:52 P.M. Tr. of Mot. Hr’g, 122-3; Govt. Ex. 11 (Interview Log Timeline). During the pre-

Miranda conversation, Mr. Hitselberger made several statements about his relationship with his

co-workers, his educational background and the collection he established at the Hoover

Institution. Tr. of Mot. Hr’g, 121-4, 192. The agents did not ask Mr. Hitselberger any questions

about the precipitating incident until after the Miranda warning was issued and the waiver was

obtained. Tr. of Mot. Hr’g, 125. The interview occurred in a conversational and cordial tone. Tr.

of Mot. Hr’g, 124.

          After establishing a rapport with Mr. Hitselberger, Agents Fowler and Kesici

administered Miranda warnings, reading verbatim from a pre-printed form. Tr. of Mot. Hr’g,

125; Govt. Ex. 10 (“Civilian Suspect’s Acknowledgement and Waiver of Rights”). Mr.

Hitselberger read the form, initialed each line next to the right he was waiving, and then signed

his name at the bottom, under a section stating:

          I understand my rights as related to me and as set forth above. With that
          understanding, I have decided that I do not desire to remain silent, consult with a



                                                   3
       retained or appointed lawyer, or have a lawyer present at this time. I make this
       decision freely and voluntarily. No threats or promises have been made to me.

Govt. Ex. 10; Tr. of Mot. Hr’g, 126-7. After Mr. Hitselberger executed the waiver, Agents

Fowler and Kesici began to ask questions about the incident they were investigating. Tr. of Mot.

Hr’g, 127. The interview ended at approximately 11:25 p.m. See Govt. Ex. 11.

       At approximately 10:30 p.m. Agents Fowler and Kesici asked whether Mr. Hitselberger

would be willing to sign a written statement of the information already discussed in the

interview. Tr. of Mot. Hr’g, 175. While Mr. Hitselberger seemed willing to provide a written

statement, he requested an attorney to review the statement before it was signed. Tr. of Mot.

Hr’g, 176; Govt. Ex. 10. Agent Kesici testified that Mr. Hitselberger “hesitated and said he’s feel

more comfortable consulting with a lawyer first or having a lawyer review his statement prior to

providing it.” Tr. of Mot. Hr’g, 176. At this point, the NCIS agents clarified that Mr.

Hitselberger was requesting an attorney only to review his written statement, and not for the

ongoing oral interview. Tr. of Mot. Hr’g, 176; Govt. Ex. 10. Mr. Hitselberger voluntarily

arranged to come back the next morning at 10 a.m. to sign the written statement. Tr. of Mot.

Hr’g, 177. At the end of the interview, Mr. Hitselberger was escorted to his temporary room, as

his current room was still considered a crime scene. Tr. of Mot. Hr’g, 178.

       The next day, April 12, 2012, Mr. Hitselberger returned to the NCIS offices between

10:00 or 11:00 a.m., past the time of his appointment. Tr. of Mot. Hr’g, 179. He explained to the

agents that he was feeling tired and asked to return again at 3:00 p.m. Tr. of Mot. Hr’g, 179.

When Mr. Hitselberger again missed his 3:00 p.m. appointment, two agents checked on his

whereabouts and brought Mr. Hitselberger to the NCIS offices. Tr. of Mot. Hr’g, 180-1. The

interview was conducted by Special Agents Fowler and Adlin Velez. Tr. of Mot. Hr’g, 228, 230.

Agent Fowler explained to Agent Velez and Mr. Hitselberger that Mr. Hitselberger was there to



                                                 4
consider memorializing the previous night’s interview into a written statement. Tr. of Mot. Hr’g,

232. Before proceeding to the written statement, Mr. Hitselberger was reminded of the Miranda

waiver he signed the night before. Tr. of Mot. Hr’g, 233-4. Mr. Hitselberger reviewed the waiver

and stated that he remembered the form, and his waiver. Tr. of Mot. Hr’g, 234. However, Mr.

Hitselberger was still unwilling to proceed with a written statement without an attorney present.

Tr. of Mot. Hr’g, 235.

       No written statement was signed. However, Agent Velez clarified that Mr. Hitselberger’s

request for an attorney only applied to the written statement, and not to any oral conversation

they may have. Tr. of Mot. Hr’g, 236. Mr. Hitselberger was then interviewed for approximately

three to four hours. Tr. of Mot. Hr’g, 236. He was calm and conversational for the interview. Tr.

of Mot. Hr’g, 237; Govt.’s Ex. 21. Mr. Hitselberger did not request an attorney at any time

during that oral interview. Tr. of Mot. Hr’g, 240. Mr. Hitselberger was not arrested at that point.

Tr. of Mot. Hr’g, 244. Instead, arrangements were made for him to leave the base. Tr. of Mot.

Hr’g, 244. Govt’s Det. Mem., 9, Dec. 12, 2012, ECF No. 13.

       Mr. Hitselberger was arrested on October 24, 2012 and transported from Kuwait to

Washington D.C. On October 25, 2012, Mr. Hitselberger had another interview with Special

Agent Grant Cauthen of the Federal Bureau of Investigation (“FBI”). Tr. of Mot. Hr’g, 248. At

the time of the interview, Mr. Hitselberger had been traveling for three days and had not received

much sleep. Tr. of Mot. Hr’g, 270. Agent Cauthen testified that Mr. Hitselberger was coherent

and calm throughout the interview, although he did seem tired. Tr. of Mot. Hr’g, 250; See Govt’s

Ex. 22. A video of the introductory portion of the interview indicates that Mr. Hitselberger was




                                                 5
composed and lucid, and that the questioning was in a conversational tone. 1 See Govt’s Ex. 22.

Agent Cauthen administered the Miranda warning at the outset of the interview. Tr. of Mot.

Hr’g, 254. Agent Cauthen went through each section of the Miranda waiver form, explaining

each right and ensuring that Mr. Hitselberger did not have any questions about the right. Tr. of

Mot. Hr’g, 255. After each section of the form was explained, Mr. Hitselberger initialed in the

left-hand margin, signifying his waiver of the right. Tr. of Mot. Hr’g, 255.

       Mr. Hitselberger now argues that his statements were not voluntary and were obtained in

violation of his Fifth Amendment right against self-incrimination and his Fourth Amendment

right against unlawful searches and seizures. Specifically he would like to suppress the pre-

Miranda statements made on April 11, 2012 and the post-Miranda statements made on April 12,

2012 and October 25, 2012. He additionally argues that the statements from the interviews

should be suppressed as fruits of an unlawful search and seizure, as set forth in Mr.

Hitselberger’s Motion to Suppress Tangible Evidence Seized. Def.’s Mot. to Suppress Tangible

Evidence, March 1, 2013, ECF No. 39.


                                         III. ANALYSIS

                                        A. Legal Standard

       At Miranda’s core is a concern for oppressive interrogatory techniques that “overbear the

will” of the suspect. Miranda v. Arizona, 384 U.S. 436, 469 (1966). The Supreme Court lays out

several techniques that officers use to achieve this result, including trickery, an unrelenting

interviewing without breaks, and the good cop/bad cop routine. Id. at 450-2. The Supreme Court

does not think, however, that coercion can arise from general kindness and respect during an


       1
         Mr. Hitselberger requested that the interview not be taped. Govt’s Ex. 22. For this
reason, only the initial introductory portion of the interview is captured on the video.


                                                  6
interview. If even kind and respectful behavior is considered coercive enough to “overbear the

will,” then what tools are left to enforcement officers to question a suspect? Id. at 478. After all,

Miranda recognizes that “confessions remain a proper element in law enforcement. Any

statement given freely and voluntarily without any compelling influences is, of course,

admissible in evidence.” Id. Since Miranda, the Supreme Court has held that non-coercive yet

misleading ploys, intentionally employed by officers to lull a suspect into a false sense of

security, comport with the Fifth Amendment’s protections against self-incrimination. See Illinois

v. Perkins, 496 U.S. 292, 297 (1990) (finding no Miranda violation where a suspect boasted of

his criminal activities to a person whom he believed to be a cellmate but in fact was an

undercover agent); Moran v. Burbine, 475 U.S. 412, 433-34 (1986) (where police fail to inform

suspect of attorney’s efforts to reach him, neither Miranda nor the Fifth Amendment requires

suppression of prearraignment confession after voluntary waiver).

       At the outset, the Court notes that Mr. Hitselberger was treated with both respect and

kindness. See generally Govt’s Ex. 21-22. Mr. Hitselberger’s interviewers attempted to ensure

that he was comfortable and spoke with him in a calm and conversational tone. Id. At no time

does it seem as if the interviewers attempted to coerce, intimidate, cajole, or trick Mr.

Hitselberger into an involuntary confession. Id. See also generally, Tr. of Mot. Hr’g, Sept. 6,

2013. With this in mind, this Court turns to the specific Miranda analysis.

                      B. Pre-Miranda Statements made on April 11, 2012

       Mr. Hitselberger seeks to suppress the statements made on April 11, 2012 during the 35

minute interview prior to reading and signing a Miranda waiver. Def.’s. Mot. to Suppress, March

1, 2013, ECF No. 42. Defendant argues that Special Agent Kesici questioned Mr. Hitselberger

directly during this time period, which thus constituted an “interrogation” for purposes of




                                                  7
Miranda. Def.’s Supp. Mem., 4, Aug. 13, 2013, ECF No. 72. Because Mr. Hitselberger

experienced custodial interrogation without any Miranda warnings, he seeks to suppress these

statements as a violation of his Fifth Amendment right against self-incrimination. Id.

        Although Miranda v. Arizona expanded the Fifth Amendment’s protections against self-

incrimination beyond criminal court proceedings, Miranda v. Arizona, 384 U.S. 436, 467 (1966),

the Court was clear that the protections applied in only those situations in which a suspect’s

interview rose to the level of a “custodial interrogation.” Id. at 468, 477. Thus, a police “inquiry

of persons not under restraint” would not fall under Miranda’s purview as those individuals

would not be in police “custody.” Id. at 478. Similarly, officers must administer the Miranda

warnings only when the officer’s questioning rises to the level of an “interrogation.” Id. “Any

statement given freely and voluntarily without any compelling influences is, of course,

admissible in evidence.” Id. In essence, the Miranda warnings are pre-requisites to the

admissibility of only those statements made by the defendant in a custodial interrogation. Id. at

477. The Government does not dispute that Defendant was in custody at the time of his

interview. The only issue then, is whether his interview constituted an “interrogation.”

        “Interrogation” under Miranda has been defined by the Supreme Court to include both

express questioning and its functional equivalent, that is “words or actions…that the police

should know are reasonably likely to elicit an incriminating response.” Rhode Island v. Innis,

446 U.S. 291, 301 (1980). This latter test “focuses primarily upon the perceptions of the suspect,

rather than the intent of the police…A practice that the police should know is reasonably likely

to evoke an incriminating response from a suspect thus amounts to interrogation.” Id. (emphasis

added). The police cannot however be held liable “for the unforeseeable results of their words or

actions.” Id. at 302.




                                                  8
       Mr. Hitselberger first argues that Agent Kesici admitted to directly questioning him while

he was in NCIS custody and that such questioning is sufficient to satisfy the interrogation test as

it is “express questioning.” Def.’s. Supp. Mem. at 4. This argument would require the Court to

adopt a per se rule: that all express questioning constitutes interrogation, regardless of the quality

of the questioning. However, this circuit has rejected just such a per se rule. United States v.

Bogle, 114 F.3d 1271, 1274-5 (1997). For example, the D.C. Circuit has followed its sister

circuits in carving out a “routine booking” exception. See e.g., United States v. Venture, 85 F.3d

708, 711 n.4 (1st Cir. 1996); United States v. Sweeting, 933 F. 2d 962, 965 (11th Cir. 1991);

United States v. Cota, 953 F. 2d 753, 758 (2d Cir. 1992); United States v. Monzon, 869 F. 2d

338, 342 (7th Cir. 1989); United States v. Taylor, 799 F. 2d 126, 128 (4th Cir. 1986); United

States v. Gonzales-Mares, 752 F. 2d 1485, 1489 (9th Cir. 1985).

   This circuit has additionally held that “even in cases involving express questioning, there is

no interrogation triggering the protections of Miranda unless, in the totality of the circumstances,

the officer’s questions were reasonably likely to elicit an incriminating response.” Bogle, 114

F.3d at 1275 (internal quotations omitted). This is because, as Innis itself recognized,

“interrogation, as conceptualized in the Miranda opinion, must reflect a measure of compulsion

above and beyond that inherent in custody itself.” 446 U.S. at 300. Thus, express questioning

without that additional level of coercion cannot, by itself, give rise to Miranda protections.

Bogle, 114 F.3d at 1275.

       The Court thus analyzes Mr. Hitselberger’s reasonable perceptions during the direct

questioning. The record does not reflect exactly what questions were asked, how those questions

were framed, and how much information was volunteered by Mr. Hitselberger himself. See

generally, Tr. of Mot. Hr’g, Sept. 6, 2013. It is clear that Mr. Hitselberger was at least generally




                                                  9
asked: 1) how he was doing, 2) basic identifying information, such as his name, age and address,

3) how long he had been on the base, 4) his educational background and, 5) the languages he

spoke. Tr. of Mot. Hr’g, 122-3; Govt’s Ex. 11, 12. It is further clear that the conversation

between the agents and Mr. Hitselberger was conversational, and that Mr. Hitselberger was

overly forthcoming with information, especially regarding his relationship with his co-workers

and his educational background. Tr. of Mot. Hr’g, 191.

   The Court finds that there was no “interrogation” during the 35 minute pre-Miranda

interview because: 1) the agents asked only standard questions which were unlikely to elicit

incriminating responses, and 2) the agents had no additional knowledge that Mr. Hitselberger

was unusually susceptible to their standard questions. See Innis, 446 U.S. at 302 n.8.

   Standard questions that ask the suspect basic identifying questions are unlikely to elicit

incriminating responses and are thus not coercive enough to establish an “interrogation.” See

e.g., United States v. Edwards, 885 F. 2d 377, 385–86 (7th Cir.1989) (“In our opinion, questions

such as ‘what is your name?’ and ‘where do you live?’ will not usually constitute interrogation

within the meaning of Miranda”; this is true even if these questions are asked at the time of

arrest, rather than during the booking process); Guiterrez, supra, 92 F.3d at 471 (“Prior to or

after arresting a suspect, law enforcement officers may ask preliminary questions as to identity,

but they may not conduct a custodial interrogation”); United States v. Foster, 227 F.3d 1096,

1102–03 (9th Cir.2000) (“a definition of interrogation that included any question posed by a

police officer would be broader than that required to implement the policy of Miranda itself;

[o]nly questions reasonably likely to elicit an incriminating response from the suspect amount to

interrogation”) (citations and quotation marks omitted; punctuation altered for clarity).




                                                 10
   The questions here were already pre-printed on a standard form and included the categories

identified above: name, age, address, educational background, employment, identifying

characteristics. Tr. of Mot. Hr’g, 124; Govt’s Ex. 12. Although these questions do not

necessarily fall under the “routine booking exception,” as they are not questions “necessary to

complete booking or pre-trial services,” they still have the same quality as the questions asked

during routine booking. Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990). Many of the questions

ask only the most basic identifying characteristics of any interviewee. And the questions are no

more than conversation starters to help the agents “establish a rapport” with the interviewees. Tr.

of Mot. Hr’g, 123. For example, one would not expect the simple question “how are you?” to

elicit intimate information about the interviewee’s rocky relationship with his co-workers, as it

did here. Id.; Bogle, 114 F.3d at 1275.

   Moreover, the interviewing agents had no personal knowledge of Mr. Hitselberger’s

susceptibilities. See Innis, 446 U.S. at 302 n.8 (“Any knowledge the police may have had

concerning the unusual susceptibility of a defendant to a particular form of persuasion might be

an important factor in determining whether the police should have known that their words or

actions were reasonably likely to elicit an incriminating response from the suspect.”). The

interviewing agents had never met or even heard of Mr. Hitselberger before, and had no

indication that their basic questions would elicit such forthcoming responses. Tr. of Mot. Hr’g,

104-5. It is true that Agent Kesici had spoken with Lieutenant Commander David Peck prior to

interviewing Mr. Hitselberger, and had discovered that Mr. Hitselberger had been having some

difficulty with his co-workers at the time. Tr. of Mot. Hr’g, 207-8. Even armed with this

information however, Agent Kesici would not know that Mr. Hitselberger would volunteer this




                                                11
same information immediately upon being asked “how he has been doing lately and how things

are going?” Tr. of Mot. Hr’g, 121.

   In a similar vein, Special Agents Kesici and Fowler had no information about Mr.

Hitselberger’s education and background. Tr. of Mot. Hr’g, 104-5. Yet, when Mr. Hitselberger

was asked about his education, he spoke at length, describing his background and his ties to the

Hoover Institute at Stanford. Tr. of Mot. Hr’g, 190-1. This answer went well beyond any

foreseeable answer to the agents’ questions about Mr. Hitselberger’s education or employment,

as he never attended or worked at Stanford University. See Innis, 446 U.S. at 301-302 (“[S]ince

the police surely cannot be held accountable for the unforeseeable results of their words or

actions, the definition of interrogation can extend to only words or actions that…police

officers…should have known were reasonably likely to elicit an incriminating response.”). In

fact, Agent Fowler noted that Mr. Hitselberger provided more information than was typical in

such an interview and that the agents were “listening more than speaking during the interview.”

Tr. of Mot. Hr’g, 191-2.

   Again, the Court emphasizes the conversational and relaxed nature of the interview. Mr.

Hitselberger seemed talkative, seemed to enjoy the conversation and even began speaking to an

Agent in a shared foreign language. Tr. of Mot. Hr’g, 191-2. And the interviewing agents did not

ask Mr. Hitselberger any questions about the stop earlier that day, or the documents that were

found, until after obtaining a Miranda waiver. Tr. of Mot. Hr’g, 125.

   Given this record, and the generic nature of the questions asked, the Court does not believe

that the Agents could reasonably have known that the questions would elicit incriminating

responses. Because the questioning did not rise to the level of an “interrogation,” the Court finds

no Miranda violation and thus no justification to suppress these statements.




                                                12
C. Voluntariness of the Miranda Waiver on April 11, 2012, April 12, 2012, and October 25,
   2012.


       Mr. Hitselberger next argues that the Miranda waivers executed on April 11, 2012, April

12, 2012 and October 25, 2012 were not voluntary and thus that statements made after those

waivers should be suppressed. Specifically, he argues that the agents’ attempt to “establish

rapport,” prior to providing the Miranda warnings was a coercive technique similar to those

explicitly discussed in Miranda v. Arizona, and undermined the effective functioning of his

Miranda warnings. Def.’s Supp. Mem. 8-9. Mr. Hitselberger additionally argues that his

Miranda waiver on October 25, 2012 occurred while he was exhausted, and was thus not

“voluntary, intelligent and knowing.” Def.’s Mot. to Suppress at 6. He thus seeks to suppress

these statements as well. 2

       It is long settled that “after being initially advised of his Miranda rights, the accused may

himself validly waive his rights and respond to interrogation.” Edwards v. Arizona, 451 U.S.

477, 484 (1981); North Carolina v. Butler, 441 U.S. 369, 372-6 (1979). However, any waiver

made following the Miranda warnings must be “knowing and voluntary.” Butler, 441 U.S. at

373. Voluntariness is determined using a totality-of-circumstances approach, which requires the

court to inquire into the defendant’s age, experience, education, background, intelligence, and

circumstances surrounding the interrogation, among other factors. Fare v. Michael C., 442 U.S.



       2
          In his reply brief, Defendant states that “Mr. Hitselberger has not raised a Miranda issue
with regard to the October statements because the government has indicated that it does not
intend to use these statements in its case-in-chief,” but then also argues that the “statements were
involuntary” and thus inadmissible “for any purpose.” Def.’s Reply in Support of Mot. to
Suppress, 1, 1 n.1, May, 10, 2013, ECF No. 59. Based on this language, it is unclear whether
Defendant still moves to suppress the October 25th statements. Insofar as the Defendant does
still seek to suppress these statements, the voluntariness of Mr. Hitselberger’s October 25th
Miranda waiver is discussed above.


                                                13
707, 725 (1979); Brewer v. Williams, 430 U.S. 387, 404 (1977); Faretta v. California, 422 U.S.

806, 835 (1975); Johnson v. Zerbst, 304 U.S. 458, 464 (1938).

       The Supreme Court has further noted that “[a]n express written or oral statement of

waiver of the right to remain silent or of the right to counsel is usually strong proof of the

validity of that waiver.” Butler, 441 U.S. at 373. Of course, the ultimate inquiry is “not one of

form, but rather whether the defendant in fact knowingly and voluntarily waived the rights

delineated in the Miranda case.” Id. Still, Miranda only intended to combat compelling pressures

which would undermine the individual’s free will to confess. Id. at 374. Miranda will not

suppress statements following execution of a valid waiver.

       Mr. Hitselberger argues that on April 11, 2012, he was coerced into waiving his Miranda

rights as agents used a coercive interrogation technique of questioning the suspect in “successive,

unwarned and warned phases.” Def.’s. Supp. Mem. at 7. Defendant cites to Missouri v. Siebert,

which explains that a question-first, warn-second tactic undermines the effectiveness of the

Miranda warnings, as a suspect would “hardly think he had a genuine right to remain silent, let

alone persist in so believing” once he gives a confession and the police begin leading him “over

the same ground again” after administering Miranda warnings. 542 U.S. 600, 611-3 (2004).

       While the “question-first, warn-second” tactic can indeed be coercive, as seen in the facts

of Siebert, 3 no tactic is per se unconstitutional. As usual, the totality of the circumstances must

be considered to determine whether the defendant waived his rights “knowingly and


       3
         In Missouri v. Siebert, the police officer began questioning the suspect after awakening
the suspect at 3 a.m. at the hospital, where the suspect was being treated for burns. 542 U.S. 600,
605 (2004). The officer purposely refrained from giving the suspect any Miranda warnings in the
hopes that he could elicit a confession of the crime. Id. The officer used slight physical force and
questioned the suspect directly of the alleged crime. Id. When the suspect finally confessed, the
officer executed the Miranda warnings and obtained a signed waiver, after which he merely
asked her to repeat her previous confession. Id.


                                                  14
voluntarily.” In Siebert, the Supreme Court focused on the calculated nature of the officer’s two-

step inquiry, designed as a matter of policy in his jurisdiction to obtain an admissible confession

by “withholding Miranda warnings until after interrogating and drawing out a confession.”

Seibert, 542 U.S. at 609-610. The manifest purpose behind such a tactic is to “get a confession

the suspect would not make if he understood his rights at the outset.” Id. at 613. Miranda

“warnings only in the aftermath of interrogation and just after making a confession” would

hardly convince a suspect to “think he had a genuine right to remain silent, let alone persist in so

believing once the police led him over the same ground again.” Id. at 613.

       The technique used here is not even close to the calculated two-step inquiry in Siebert.

The agents only asked general questions, with the purpose of establishing rapport with Mr.

Hitselberger, not to elicit a confession. Tr. of Mot. Hr’g, at 164-5. In fact, the agents did not ask

Mr. Hitselberger even a single question regarding the precipitating incident until after the

Miranda waiver had been signed, again proof that they had no intent to coerce an unwarned

confession. Tr. of Mot. Hr’g, at 125; Govt’s Ex. 12. And again, there is no indication that the

agents had any inside knowledge of Mr. Hitselberger’s susceptibilities to their general rapport

building questions. See infra, Part III.C.

       In addition, Mr. Hitselberger is a highly educated man who has the capability and the

education to understand the Miranda warnings. He attended Georgetown University, where he

studied Arabic, and the University of Texas, where he worked on a PhD in politics and

government. Govt’s Opp’n to Mot. to Suppress, Ex. 2, Results of Interview with Hitselberger,

April 5, 2013, ECF No. 46. These schools are both top universities in the United States and

difficult ones to get admission into. Mr. Hitselberger speaks multiple languages and was

employed as a translator on the base in Bahrain. Govt. Ex. 12. And at the time the waiver was




                                                  15
administered, Mr. Hitselberger was read each right, asked if he had any questions pertaining to

that right, and initialed his understanding of each right in the left-hand margin. Tr. of Mot. Hr’g,

125-27.

       A similar process occurred on April 12, 2012 and on October 25, 2012. There are of

course a few differences in the waiver circumstances, but none which change the analysis

significantly. Mr. Hitselberger did not execute a new waiver on April 12, 2012, but was given the

opportunity to again review the rights he had previously waived and the opportunity to retract the

waiver. Tr. of Mot. Hr’g, 233-34. Again, Mr. Hitselberger affirmed his understanding of the

Miranda rights, and voluntarily chose to speak with the interviewing agents. Id.

       Mr. Hitselberger argues that on October 25, 2012 he was too tired to make a knowing and

voluntary waiver of his rights. Def.’s. Mot. to Suppress at 6. Even if true, this fact alone is not

sufficient to find that Mr. Hitselberger’s waiver was not voluntary. Mr. Hitselberger seems

coherent and cogent in the small video clip from this interview. See Govt’s Ex. 22. And by this

point, Mr. Hitselberger had already executed two previous Miranda waivers. A defendant’s prior

contact and experience with criminal procedure is to be considered in determining whether his

waiver was knowing and voluntary. See e.g., Fare v. Michael C., 442 U.S. 707, 725-6 (1979).

The Miranda rights had not changed since his previous waivers, and even if Mr. Hitselberger’s

memory of the rights needed to be refreshed, the agents went through each right with Mr.

Hitselberger again before he signed the waiver.

       Given these facts, the Court finds that Mr. Hitselberger’s waivers on April 11, 2012,

April 12, 2012 and October 25, 2012 were knowing and voluntary. The statements obtained

pursuant to this waiver do not violate the defendant’s Miranda rights and should thus not be

suppressed.




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                D. Continued Questioning after Defendant’s request for an attorney

        Mr. Hitselberger next argues that on April 11, 2012 and April 12, 2012, NCIS agents

continued questioning Defendant even after an explicit request for an attorney, thus violating Mr.

Hitselberger’s rights under the Fifth Amendment. Def.’s. Supp. Mem. 10-11. Mr. Hitselberger

further asserts that after asking for an attorney, he did not “affirmatively state that he wanted to

continue talking to the agents,” as is required under Miranda before any questioning can

continue. Id. at 11. Mr. Hitselberger twice requested an attorney: First on April 11, 2012, after

which NCIS agents continued to question Mr. Hitselberger for another hour, and second on April

12, 2012, after which the agents continued to question Mr. Hitselberger for three hours. Govt.

Ex. 11; Tr. of Mot. Hr’g, 235 – 240. He further argues that any conversation that occurred on

April 12, 2012 only occurred as a result of the constitutional violation on April 11, 2012. Mr.

Hitselberger thus asks that all statements after his request for an attorney on April 11, 2012 be

suppressed.

        After Miranda, “[i]f the individual states that he wants an attorney, the interrogation must

cease until an attorney is present.” 384 U.S. at 474. This is to protect the suspect’s free choice

from being overcome by continuing interrogation. Id. Of course, as the Defendant himself

recognizes, a suspect may make a limited request for an attorney, such as solely for the purpose

of providing a written statement. Connecticut v. Barrett, 479 U.S. 523, 529 (1987). In Barrett,

the defendant accompanied this limited request with an “affirmative announcement of his

willingness to speak with the authorities.” Id. As is the case with every Miranda inquiry, there is

no per se rule and the Court must consider the totality of the circumstances to determine whether

the defendant made a voluntary and knowing choice to continue to speak after his request for an

attorney. Id.




                                                 17
       Defendant argues that all questioning ought to have ceased after his request for an

attorney, including the agents’ questions clarifying whether Mr. Hitselberger’s request for an

attorney was limited to reviewing a written statement. Id. at 10-11. However, as the Supreme

Court held in United States v. Davis, Miranda protections are triggered only when the

defendant’s request for counsel is unambiguous and unequivocal. 512 U.S. 452, 458 (1994);

McNeil v. Wisconsin, 501 U.S. 171, 178 (1991). If the suspect “makes a reference to an attorney

that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would

have understood only that the suspect might be invoking the right to counsel…precedents do not

require the cessation of questioning.” Davis, 512 U.S. at 459. As the Supreme Court went on to

explain, “when the officers conducting the questioning reasonably do not know whether or not

the suspect wants a lawyer, a rule requiring immediate cessation of questioning would transform

the Miranda safeguards into wholly irrational obstacles to legitimate police investigative

activity.” Id. at 460 (internal quotations omitted); Michigan v. Mosley. 423 U.S. 96, 102.

       “Of course, when a suspect makes an ambiguous or equivocal statement it will often be

good police practice for the interviewing officers to clarify whether or not he actually wants an

attorney.” Davis, 512 U.S. at 461. And that is exactly what happened here. On April 11, the

agents asked Defendant whether he would provide a written statement memorializing the

interview. Tr. of Mot. Hr’g, 127-28. Although Mr. Hitselberger’s exact response at this point is

not in the record, Agent Kesici testified that Mr. Hitselberger “hesitated and said that he’d feel

more comfortable either consulting with a lawyer first or having a lawyer review his statement

prior to providing it.” Tr. of Mot. Hr’g, 128; Govt’s Ex. 11. Thus, there was not an unambiguous

statement that Mr. Hitselberger wanted counsel before he would answer additional questions.




                                                 18
       It was then that the agents asked a question to clarify whether the defendant was actually

requesting an attorney, and whether that request pertained only to the written statement. Tr. of

Mot. Hr’g, 129; Govt’s Ex. 11. Mr. Hitselberger’s declaration that he would feel “more

comfortable” with a lawyer is not a clear and unequivocal request for a lawyer, and a reasonable

officer could be confused as to whether the Defendant was actually invoking his right to counsel

before additional questioning took place, or whether he sought to have counsel only for a written

statement. See e.g., U.S. v. Warren, 2008 WL 3010156 at *14 (E.D.Mo. July 24, 2008). Because

only unambiguous requests for counsel trigger the Miranda protections, and because the

Defendant may make a limited request for an attorney solely for the purpose of providing a

written statement, Mr. Hitselberger’s rights were not violated when the agents sought

clarification of his ambiguous request for counsel and, after such clarification was obtained,

continued to question him. 4

       E. Suppression of the Interviews as Fruits of an Unlawful Search and Seizure.

       Plaintiff finally argues that all statements made in the interviews should be suppressed as

fruits of an unlawful search and seizure. Wong Sun v. United States, 371 U.S. 471, 488 (1963)

(holding that evidence obtained through the exploitation of a Fourth Amendment violation must

be suppressed as fruits of a constitutional violation). Mr. Hitselberger has fully argued these


       4
          The record is even less informative on how, and in what manner, Mr. Hitselberger
requested an attorney on April 12, 2012. As Agent Kesici testified, “[i]nitially [Defendant]
mentioned if Agent Fowler or I would look at the document before he signed off, and then that
the idea of maybe a legal advisor should read into it before he signs off on it, brought that up.”
Tr. of Mot. Hr’g, 235. Following this exchange, it seems that Agent Kesici clarified that this
request for an attorney was purely for the written statement. Tr. of Mot. Hr’g, 235-36. As a
result, no written statement was ever completed. Tr. of Mot. Hr’g, 236. Again, there is no
indication that Defendant ever requested an attorney for the oral interview. The Court finds that,
on the record provided, Defendant’s request for a lawyer on April 12, 2012 was ambiguous and
thus the following oral interview, including any clarification questions, were not a violation of
Defendant’s Miranda rights.


                                                 19
Fourth Amendment claims in his Motion to Suppress Tangible Evidence Seized Following

Unlawful Stop and Search of Backpack. Def.’s Mot. to Suppress Tangible Evidence, March 1,

2013, ECF No. 39. Specifically, Mr. Hitselberger argues that the search was conducted without a

warrant, and no exception to the warrant requirement justified the warrantless search. The Court

has separately analyzed and rejected Defendant’s motion to suppress. In its opinion, this Court

found that an exigent circumstance justified the warrantless search of the Mr. Hitselberger’s

backpack: the recovery of the classified documents Mr. Hitselberger had printed. See Mem. Op.

denying Def.’s Mot. to Suppress Tangible Evidence, 14-16, March 5, 2014, 88. This Court

found that the recovery of these documents was urgent, because the dissemination of classified

information could put lives at risk, and the intrusion into Mr. Hitselberger’s privacy was small in

comparison. Id. at 15. Because the stop and search of Defendant’s backpack was not unlawful,

the interviews are not fruits of an unlawful stop and search, and do not need to be suppressed

under the Fourth Amendment.


                                      IV. CONCLUSION

       For the foregoing reasons, Defendant’s motion to suppress statements is DENIED. An

order consistent with this Memorandum Opinion is separately and contemporaneously issued.


Dated: March 26, 2014                                             RUDOLPH CONTRERAS
                                                                  United States District Judge




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