FINDINGS AND RECOMMENDATION TO DENY MOTION TO SUPPRESS AND BILL OF PARTICULARS
KEITH STRONG, Magistrate Judge.
Mr. Davis is charged with Aggravated Sexual Abuse and Abusive Sexual Contact. At a polygraph examination with FBI agents in January 2013, Mr. Davis confessed to touching a child inappropriately. He seeks suppression of that confession, which he contends was involuntary. That motion should be denied. The United States has shown that the confession was voluntary and constitutionally obtained.
Mr. Davis also moves for an Order requiring the United States to provide a Bill of Particulars, stating more specifically when the wrongful conduct is alleged to have occurred. That motion should also be denied, as the United States has provided full discovery as to the timing of the alleged event.
Mr. Davis moves for suppression of his confession, which he argues was obtained in violation of the Fourth, Fifth, and Sixth Amendments. CD 25. The government opposes the motion, arguing that Mr. Davis's confession was voluntary. CD 31.
Mr. Davis also seeks a "bill of particulars" from the government, setting out more specifically his alleged wrongdoing. CD 27. Mr. Davis argues that he is unfairly prejudiced by the 12-month time frame in the indictment, since he cannot provide an alibi for the entire year or otherwise prepare a defense. The government opposes the motion. CD 30.
The Hon. Dana L. Christensen, United States District Judge, referred to case to the undersigned to conduct a hearing and submit findings and recommendations in regard to those motions. CD 34. The hearing was held in Great Fall, Montana, on May 6, 2013.
Burden of proof
At a suppression hearing, the government has the burden to prove, by a preponderance of the evidence, that a confession was voluntary. Lego v. Twomey , 404 U.S. 477, 489 (1972).
Application of the Fourth Amendment depends on whether the person invoking its protection can claim a reasonable expectation of privacy that has been invaded by government action. Smith v. Maryland , 442 U.S. 735, 739-40 (1979). This inquiry embraces two questions. The first is whether the individual has demonstrated a subjective expectation of privacy. Id . The second is whether the individual's subjective expectation of privacy is one that society is prepared to recognize as reasonable. Id . "Reasonableness" is not capable of a precise definition, but must balance the need for the search against the invasion it entails. Bell v. Wolfish , 441 U.S. 520, 559 (1979).
The Fifth Amendment of the United States Constitution provides the right to remain silent, and to refrain from incriminating one's self. Miranda v. Arizona , 384 U.S. 436, 444. A defendant can waive that right, provided the waiver is voluntarily, knowingly, and intelligently made. Id . Whether a defendant's will was overborne by law enforcement, so as to make a confession involuntary, depends on the totality of the circumstances. United States v. Haswood , 350 F.3d 1024, 1027 (9th Cir. 2003). Courts consider: the age and intelligence of the defendant, whether the defendant was informed of his constitutional rights, the length of detention, the repeated and prolonged nature of the questioning, and the use of any physical punishment. Id.
The Sixth Amendment right to counsel generally attaches at the commencement of adversarial proceedings against the defendant. United States v. Hines , 963 F.2d 255, 256 (9th Cir. 1992). Typically, a defendant's arraignment marks the beginning of adversarial proceedings. Id.
Bill of Particulars
When a defendant seeks a bill of particulars, the court must consider whether the indictment and other disclosures adequately advise the defendant of the charges against him. U.S. v. Grace , 401 F.Supp.2d 1103, 1106 (D. Mont. 2005) (citing United States v. Long , 706 F.2d 1044, 1054 (9th Cir.1983)). If the ...