USA v. Duggar

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION
UNITED STATES OF AMERICA 	PLAINTIFF
V. 	CASE NO. 5:21-CR-50014
JOSHUA JAMES DUGGAR 	DEFENDANT
MEMORANDUM OPINION AND ORDER
Now before the Court are the following motions filed by Defendant Joshua James
Duggar: (1) Motion to Suppress Statements Made by Duggar on November 8, 2019 (Doc.
36); (2) Motion to Suppress Photographs of Duggar’s Hands and Feet (Doc. 38); (3)
Motion to Dismiss Indictment for Violation of the Appointments Clause (Doc. 39); and (4)
Motion to Dismiss for Government’s Failure to Preserve Potentially Exculpatory Evidence
(Doc. 40). 	All motions were DENIED from the bench following an in-person evidentiary
hearing on September 27, 2021. The Court has orally explained its reasons for denying
the motions; the following Order provides further explanation. To the extent anything in
this Order differs from what was stated from the bench, this Order will control.
I. DISCUSSION
A. Doc. 36: Motion to Suppress Statements Made by Duggar on 11/8/19
Mr. Duggar explains in his first motion that on November 8, 2019, federal agents
entered his business located at 14969 Wildcat Creek Road in Springdale, Arkansas, to
execute a federal search warrant. The agents parked their vehicles, identified themselves
to Mr. Duggar, and informed him why they were present. At that point, Mr. Duggar pulled
his iPhone 11 from his pocket and stated he would like to contact his attorney.
Department of Homeland Security Special Agent Gerald Faulkner testified at the motion
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hearing that he took Mr. Duggar’s iPhone from his hand before he could call his attorney
and explained to him that the iPhone was covered by the search warrant and would be
seized. Agent Faulkner then told Mr. Duggar he would have an opportunity to contact his
attorney later and that he was not under arrest, so he could leave the premises if he liked.
According to Agent Faulkner, Mr. Duggar responded that his wife was pregnant and that
he might, indeed, need to leave to premises to check on her. 	Mr. Duggar did not leave
the premises.
Five Homeland Security agents and three forensic computer analysts began
searching 	the 	premises 	and 	inventorying 	and 	seizing 	computer 	equipment.
Approximately ten to fifteen minutes later, Agent Faulkner and another special agent
named Howard Aycock approached Mr. Duggar while he was standing outside the
business office. 	The agents asked him if he would consent to be interviewed, and Mr.
Duggar agreed. 	The agents then suggested that the interview take place in Agent
Aycock’s vehicle, which was located about twenty feet away. 	They told Mr. Duggar he
should sit in the front passenger’s side of the vehicle, and Agents Aycock and Faulkner
would be seated in the driver’s seat and the rear seat (on the driver’s side) of the vehicle,
respectively. 	Mr. Duggar approached the passenger’s side door, opened it himself, sat
down, and shut the door behind him. The door remained unlocked, and no one blocked
the door from the outside. 	During the entirety of the ensuing conversation, the vehicle
was idling with the engine on.
Once Agent Faulkner and Agent Aycock were seated in the vehicle, Agent Aycock
asked Mr. Duggar for his consent to record the interview. Mr. Duggar agreed. According
to Agent Faulkner’s testimony at the hearing, Mr. Duggar immediately asked, “What is
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this about? 	Has somebody been downloading child pornography?” 	And in response,
Agent Aycock instructed Mr. Duggar to stop asking questions until he could start the
recording device.
The entirety of the fifty-one-minute interview was played in open court during the
hearing. The interview began with Agent Aycock reading Mr. Duggar Miranda warnings,0F
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which were written on a form under the heading “Statement of Rights.” 	(Gov. Ex. 5).
Then, Agent Aycock handed the form to Mr. Duggar and asked him to sign the bottom
section, titled “Waiver,” to acknowledge Mr. Duggar had been read his Miranda rights,
understood his rights, and agreed to waive them. 	Mr. Duggar responded by asking a
number of questions about the waiver of his rights. This portion of the interview appears
below:
MR. DUGGAR: Sure. It says [the waiver is] only for now? It's for any other?
AGENT AYCOCK: Sure. Like it says, if you decide to answer questions
now, you still have the right to stop. This is you saying—
MR. DUGGAR: This is U.S.C.I.A.—
AGENT AYCOCK: This is U.S. Immigration and Customs Enforcement,
Homeland Security Investigation. So you have signed that you understand
your rights?
MR. DUGGAR: Yes.
AGENT AYCOCK: So, now, what I'm going to ask you is, are you willing to
speak with us now without an attorney present?
1 Miranda v. Arizona, 384 U.S. 436, 475 (1966).
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MR. DUGGAR: I mean, I may not answer everything I guess, but, yes. I
have more questions than—
AGENT AYCOCK: Sure. So the time is 15:40 on 11/8/2019. So what you're
going to do right now for the waiver is you're just going to print your name
and sign. And all that's doing is saying—acknowledging what you said you
wanted to do, speak with us.
MR. DUGGAR: I'm in custody?
AGENT AYCOCK: No. As we explained, this is a search warrant. This is not
an arrest warrant, so you are free to leave at any time.
MR. DUGGAR: Okay.
After that explanation, Mr. Duggar scratched through the last sentence of the “Waiver”
portion of the form that mentioned being “taken into custody.” Mr. Duggar signed the form,
and Agents Aycock and Faulkner signed as witnesses.
In the motion now before the Court, Mr. Duggar contends he invoked his right to
counsel when his iPhone 11 was first seized and that agents should not have approached
him later seeking a waiver of his Miranda rights when he had already requested counsel.
The problem with Mr. Duggar’s argument is that a person cannot anticipatorily
invoke his Miranda rights when he is not subject to custodial interrogation.1F
2 See United
States v. Wyatt, 179 F.3d 532, 537 (7th Cir. 1999); Alston v. Redman, 34 F.3d 1237,
1245–46 (3d Cir. 1994) (“[T]o be effective, a request for Miranda counsel must be made
within ‘the context of custodial interrogation’ and no sooner.”). 	A person who is “in
2 During the hearing, Mr. Duggar’s counsel conceded that “whether Mr. Duggar was in
custody is a threshold issue that’s necessary for us to prevail on this motion.”
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custody” is not free to leave. 	When viewing the facts from the perspective of a
“reasonable person in [Mr. Duggar’s] situation,” Yarborough v. Alvarado, 541 U.S. 652,
662 (2004), the Court finds he was not in custody when agents first entered his business
and he mentioned wanting to call his attorney. At that time, Mr. Duggar was free to leave
the premises, but he chose not to do so. 	Although he points out that he did not have a
vehicle at his disposal and could not drive away, he was perfectly capable of leaving on
foot.2F
3
The next question for the Court is whether Mr. Duggar was in custody later, when
he agreed to be interviewed by Agents Aycock and Faulkner. 	According to the Eighth
Circuit in United States v. Griffin, the “in custody” determination requires the Court to
consider:
• 	whether the suspect was informed that he was free to leave or that he
was not under arrest;
• 	whether the suspect possessed unrestrained freedom of movement
during questioning;
• 	whether the suspect initiated contact with authorities or voluntarily
acquiesced to official requests to respond to questions;
• 	whether police used strong-arm tactics or deceptive strategies during
questioning;
• 	whether the atmosphere of the questioning was police-dominated; and
• 	whether the suspected was arrested at the end of the questioning.
922 F.2d 1343, 1349 (8th Cir. 1999). As applicable here, the Griffin court also recognized
that “[t]he most obvious and effective means of demonstrating that a person has not been
3 The search warrant was executed at Mr. Duggar’s business—a used car lot. Potentially,
Mr. Duggar could have left in any number of used vehicles parked on the lot that day.
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taken into custody . . . is for the police to inform the suspect that an arrest is not being
made and that the suspect may terminate the interview at will.” Id.
In analyzing the first Griffin factor, the Court finds that Mr. Duggar was informed by
the federal agents when they first arrived on the scene that he was free to leave. Agent
Faulkner’s testimony was credible. 	Further, the recording of the interview confirms that
Agent Aycock said to Mr. Duggar, “As we explained [previously], this is a search warrant.
This is not an arrest warrant, so you are free to leave at any time.” 	This statement
underscores the credibility of Agent Faulkner’s claim that Mr. Duggar was informed from
the start that he was not in custody. Finally, toward the end of the interview, Mr. Duggar
makes a statement that underscores his knowledge that he was free to leave during the
interview. He tells the agents, “I’ll probably leave here sooner than later, but I just want
to make sure you guys have access to everything you need.” Accordingly, the first—and
likely most critical—Griffin factor weighs in the Government’s favor.
As to the second factor, it is undisputed that Mr. Duggar had unrestrained freedom
of movement before he entered Agent Aycock’s vehicle. After he entered the vehicle, his
and the agents’ tone and demeanor indicate that the interview was neither tense nor
combative. 	Mr. Duggar often refused to answer the agents’ questions or give them the
information they requested, but the agents responded calmly and moved on to other
questions. It is also undisputed that the passenger-side door next to where Mr. Duggar
was seated remained unlocked throughout the interview. The Court therefore finds that
Mr. Duggar was not restrained, and this factor weighs in the Government’s favor.
Third, although Mr. Duggar did not initiate contact with the agents, he acquiesced
to their questioning. The total circumstances surrounding the interview demonstrate Mr.
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Duggar’s understanding that he was free to refuse to answer questions and to stop the
questioning when he chose. Moreover, as previously mentioned, the tone of the interview
was conversational, not heated. 	Not only did Mr. Duggar sign a form demonstrating he
understood he was waiving his right to counsel, but he also manifested a clear
understanding of the waiver and the voluntariness of his actions by reminding the agents
before questioning began that he “may not answer everything.” This third factor therefore
weighs in the Government’s favor.
Fourth, there is no compelling evidence that the agents used “strong-arm” tactics
during questioning, nor does the Court find that the interview was unnecessarily
prolonged. Mr. Duggar points out that at times during the interview, the agents interrupted
him. The Court reviewed the transcript with the audio recording played during the hearing
and concludes that the participants were talking over (or into) each other. The Court does
not believe the agents were attempting to silence or intimidate Mr. Duggar. 	Rather, the
interruptions appear to be innocuous features of the back-and-forth conversation between
Mr. Duggar and the agents. Mr. Duggar also draws the Court’s attention to the moments
in the interview when Agent Aycock questioned Mr. Duggar about his general knowledge
of electronic devices, the Tor browser, and BitTorrent downloads. 	Mr. Duggar initially
refused to answer, stating, “I’d rather not get into any specifics on knowledge.” 	Agent
Faulkner responded that he understood why Mr. Duggar was probably “[not] going to . . .
answer too many more of [their] questions” on these topics. 	Mr. Duggar agreed and
explained that “without legal counsel,” he did not want to “say something” that would “get
into entrapment of any sort.” Agent Faulkner replied as follows:
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AGENT FAULKNER: 	Right. 	And I don't want you to think also that we're
keeping you from having an attorney. I know when we got here—
MR. DUGGAR: Right.
AGENT FAULKNER: --you said you wanted to call him.
MR. DUGGAR: Right.
AGENT FAULKNER: Obviously with your phone, we can't do that. We will
call him. He can't come on scene right now while we're here, but we will at
least alert him to the fact that we're here.3F
4
Mr. Duggar contends that when Agent Faulkner stated that counsel could not
“come on scene right now,” this may have been a deceptive tactic designed by law
enforcement to trick Mr. Duggar into believing he was required to continue answering
questions and could not invoke his right to counsel. 	The problem with Mr. Duggar’s
argument is that the recording of the interview tells a different story. After Agent Faulkner
made the statement about Mr. Duggar’s attorney, Mr. Duggar continued to answer and
decline to answer questions. At one point he stated, “I mean, I can get in touch with my
attorney—and see what he says.” At another point, he refused to give the agents the pin
number to his iPhone “without talking to [his] attorney.” 	Mr. Duggar explained, “If [the
attorney] says go ahead, then I’ll say sure.” 	It is clear to the Court that Mr. Duggar
understood the scope of his waiver and that no Miranda violation was committed. Even
so, the Court concedes that Agent Faulkner’s statement could be seen as a deceptive
4 Despite Agent Faulkner’s assurances, neither he nor any other federal agent attempted
to contact Mr. Duggar’s attorney that day.
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strategy—which Mr. Duggar did not fall for. 	Therefore, the fourth Griffin factor weighs
only slightly in favor of the Government.
The fifth Griffin factor considers whether the atmosphere of the questioning was
police-dominated. There were numerous police vehicles present at the scene, and there
was only a single entry point onto the premises. Upon arriving at Mr. Duggar’s business
several officers in tactical gear emerged from their vehicles and two of them approached
him with a search warrant. At the same time, no weapons were drawn, no one was placed
in handcuffs, and Mr. Duggar and his employees were all told they were free to leave. In
other words, the scene painted here is standard fare for the execution of a federal search
warrant. Nevertheless, on the whole, the atmosphere was police-dominated, and this
factor weighs slightly in favor of Mr. Duggar.
Sixth and finally, Mr. Duggar was not arrested at the end of questioning. Therefore,
this factor also weighs in the Government’s favor.
Considering all six factors, Mr. Duggar was not in custody on November 8, 2019.
A factually similar case is United States v. Muhlenbruch, where the defendant was
confronted by police at his apartment and, without knowing the reason for their presence,
accompanied the officers in their vehicle to the police station for questioning. 	634 F.3d
987 (8th Cir. 2011). Muhlenbruch was told he was not under arrest, and when he arrived
at the police station, he was not handcuffed and was informed he was free to leave at any
time. 	Id. at 996. 	Later on, during questioning, he confessed to downloading child
pornography. The court observed, “Given that Muhlenbruch was not ‘in custody’ at the
time of the interview, his right to counsel under the Fifth Amendment is not implicated and
we need not address Muhlenbruch's additional argument that the officers denied his
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allegedly unambiguous request for counsel during the interview.” Id. at 997. The same
reasoning applies here: Even if Mr. Duggar unambiguously requested counsel at the time
his cell phone was seized, he was not in custody then, and he was not in custody later
when he submitted to police questioning. 	Further, the fact that he was given Miranda
warnings or asked to sign a form confirming his understanding of these warnings is not
determinative of the in-custody inquiry. 	“[G]iving a Miranda warning does not, in and of
itself, convert an otherwise non-custodial interview into a custodial interrogation . . . .”
United States v. Bautista, 145 F.3d 1140, 1147 (10th Cir.), cert. denied, 525 U.S. 911
(1998).
Because Mr. Duggar was never in custody, the protections under Miranda never
attached and cannot serve as a basis to suppress Mr. Duggar’s statements. The Motion
to Suppress Statements Made by Duggar on 11/8/19 (Doc. 36) is therefore DENIED.
B. Doc. 38: Motion to Suppress Photographs of Duggar’s Hands and Feet
Mr. Duggar’s second suppression motion concerns booking photographs of his
hands and feet. 	He self-surrendered to law enforcement on April 29, 2021. 	Agent
Faulkner testified that Mr. Duggar was surrendered that day by his attorney to agents at
Homeland Security’s Fayetteville office. 	When his attorney departed, Mr. Duggar was
taken to an interior room to conduct the booking process. 	Agent Faulkner was seated
behind a desk, about arms’ length away from Mr. Duggar, while Agent Jeffrey Pryor took
Mr. Duggar’s fingerprints. While this was going on, Agent Faulkner noticed a scar on Mr.
Duggar’s left thumb. Agent Faulkner informed Agent Aycock about the scar, and Agent
Aycock asked Mr. Duggar—without first contacting his attorney—if he consented to have
his hands photographed. Mr. Duggar consented, and he was directed to place his hands
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flat on a table. 	Agent Aycock picked up a cell phone, leaned over the table so that the
camera was positioned above Mr. Duggar’s hands (and also captured his feet), and took
a few photographs. 	Mr. Duggar now argues that the Government needed a warrant to
photograph his hands and feet and therefore violated his Fourth Amendment rights. He
also argues that the agents were obligated to ask Mr. Duggar whether he wanted to
consult with counsel before he consented to the photographs, and this failure violated Mr.
Duggar’s Sixth Amendment rights.
There is no legal authority to suggest agents needed a warrant before they could
photograph Mr. Duggar’s hands and feet. Under United States v. Dionosio, Mr. Duggar
lacks any Fourth Amendment protection in images of the physical characteristics he
typically exposes to the public, such as his face, voice, hands, or feet. 410 U.S. 1, 14–
15 (1973). The Dionosio court observed that the act of fingerprinting—which arguably is
more physically intrusive than taking a photograph—“involves none of the probing into an
individual's private life and thoughts that marks an interrogation or search.” Id.; see also
Maryland v. King, 569 U.S. 435, 461 (2013) (“[C]ourts have confirmed that the Fourth
Amendment allows police to take certain routine administrative steps incident to arrest—
i.e., . . . book[ing], photograph[ing], and fingerprint[ing].”). Finally, even if a warrant were
required in Mr. Duggar’s situation, it is black letter law that “[a] warrantless search . . . is
valid if conducted pursuant to the knowing and voluntary consent of the person subject to
a search.” 	United States v. Morgan, 842 F.3d 1070, 1075 (8th Cir. 2016). 	Mr. Duggar
consented to being photographed. Therefore, no Fourth Amendment violation occurred.
As for the Sixth Amendment challenge, when government agents deliberately elicit
incriminating statements from an accused after he has been indicted, outside the
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presence of his counsel, such conduct will violate the accused’s constitutional right to
counsel. See Fellers v. United States, 540 U.S. 519, 523–24(1004). However, booking
records, 	including 	fingerprints 	and 	photographs, 	are 	not 	considered 	testimonial
statements, nor is the booking process considered a critical stage of the prosecution
where the Sixth Amendment right to counsel attaches. See United States v. Wade, 388
U.S. 218, 227 (1967) (noting that taking blood and hair samples during booking is not
done at a “critical stage” where the right to counsel attaches). 	For these reasons, the
Motion to Suppress Photographs of Duggar’s Hands and Feet (Doc. 38) is DENIED.
C. Doc. 39: Motion to Dismiss Indictment for Violation of Appointments Clause
Mr. Duggar’s next motion explains that the federal agents who were involved in the
investigation of his criminal charges were acting under the authority of Acting Secretary
of Homeland Security Chad Wolf, but Secretary Wolf’s immediate predecessor, Kevin
McAleenan, was improperly appointed as Acting Secretary and therefore lacked authority
to lead the agency. 	Mr. Duggar reasons that because Secretary Wolf’s appointment to
head the agency is deficient in some way, the entire criminal investigation into Mr.
Duggar’s conduct was undertaken in violation of the Appointments Clause of the
Constitution, and the indictment must be dismissed.
This motion is frivolous. 	There is no legal support for Mr. Duggar’s claim that an
indictment handed down by a properly impaneled grand jury would be subject to dismissal
due to an alleged Appointments Clause violation. 	Department of Homeland Security
agents are sworn to enforce federal criminal statutes, and the Court is not aware of any
reason why their authority to investigate crimes would somehow be undermined if the
acting secretary of their agency were improperly appointed. 	All cases Mr. Duggar cites
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in support of his motion are civil immigration cases involving the direct policymaking or
rulemaking authority of the acting secretary of Homeland Security. 	These cases are
inapposite to Mr. Duggar’s. “An indictment returned by a legally constituted and unbiased
grand jury . . . is enough to call for trial of the charge on the merits.” Costello v. United
States, 350 U.S. 359, 363 (1956). 	The Motion to Dismiss Indictment for Violation of
Appointments Clause (Doc. 39) is DENIED.
D. Doc. 40: Motion to Dismiss for Failure to Preserve Exculpatory Evidence
In Mr. Duggar’s final motion, he complains that federal agents failed to preserve
potentially exculpatory evidence because they did not perform forensic analyses of
electronic devices possessed by certain key witnesses. First, Mr. Duggar points out that
agents waited about five weeks after searching his business to start interviewing potential
witnesses, and when they finally searched these witnesses’ cell phones, they failed to
preserve any evidence. 	Agent Faulkner confirmed during the motion hearing that the
witnesses were interviewed and their cell phones manually searched for evidence of child
pornography, but no child pornography was discovered. He asserts that for that reason,
the cell phones were not forensically searched, inventoried, or imaged.
Failure to preserve evidence does not constitute a denial of due process unless
law enforcement acted in bad faith, the evidence had apparent exculpatory value, and
comparable exculpatory 	evidence was not reasonably 	available to the defendant.
California v. Trombetta, 467 U.S. 479, 488–89 (1984). For evidence to have constitutional
materiality, it must “possess an exculpatory value that was apparent before the evidence
was destroyed”—or in the instant case, before agents failed to preserve a lack of evidence
on the witnesses’ cell phones. 	Id. at 489. 	Mr. Duggar’s evidence of the Government’s
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bad faith is found in the affidavit attached to the search warrant, signed by Agent Faulkner.
(Gov. Ex. 1). The affidavit claims that performing a forensic review of electronic devices
is critical to law enforcement’s determination of whether a crime occurred. 	Mr. Duggar
observes 	that even 	though 	law 	enforcement 	understood 	that 	it 	was 	important 	to
forensically review electronic devices, here, they only imaged Mr. Duggar’s electronic
devices and decided against imaging anyone else’s devices.
The Court finds that law enforcement’s decision not to forensically search and
image certain electronic devices was made pursuant to a good-faith belief that such
additional investigative steps were unnecessary. Valid reasons may exist to criticize law
enforcement’s thoroughness (or lack thereof) on cross-examination, but the Court is
simply not persuaded that law enforcement’s actions rise to the level of a constitutional
deprivation of due process that would require the dismissal of the indictment against Mr.
Duggar. Accordingly, the Motion to Dismiss for Failure to Preserve Exculpatory Evidence
(Doc. 40) is DENIED.
II. CONCLUSION
IT IS THEREFORE ORDERED that for the reasons stated herein and at the
hearing on September 27, 2021, the following motions are DENIED: (1) Motion to
Suppress Statements Made by Duggar on November 8, 2019 (Doc. 36); (2) Motion to
Suppress Photographs of Duggar’s Hands and Feet (Doc. 38); (3) Motion to Dismiss
Indictment for Violation of the Appointments Clause (Doc. 39); and (4) Motion to Dismiss
for Government’s Failure to Preserve Potentially Exculpatory Evidence (Doc. 40).
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IT IS SO ORDERED on this 13 th day of October, 2021.
_____________________________
TIMOTHY L. BROOKS
UNITED STATES DISTRICT JUDGE
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