Full opinion text
MEMORANDUM OPINION AND ORDER ON MOTIONS TO SUPPRESS EVIDENCE AND REGARDING ADMISSIBILITY OF STATEMENTS OF TERRY LYNN NICHOLS MATSCH, Chief Judge. This Memorandum Opinion and Order addresses motions to suppress evidence filed by defendant Terry Nichols as docket entry no. 1453 and by defendant Timothy McVeigh as docket entry no. 1457. Redacted versions of these same motions appear in the public record under docket entries 1452 and 1455. Also addressed is a motion in limine regarding statements of Terry Nichols filed by the United States as docket entry no. 1003. The complete motions remain sealed because they include references and attachments describing facts which are not now and may never be in evidence, and the court considers them to be properly sealed under the criteria set forth in the Memorandum Opinion and Order on Media Motions, entered January 24, 1996. If that material were now made public, it would likely generate pre-trial publicity prejudicial to the interests of all parties in this criminal proceeding. The bases for the rulings are fully disclosed in this memorandum opinion. After initial briefing, the court held a hearing on June 18,1996. At that hearing, counsel for Timothy McVeigh made offers of proof addressing his motion challenging the following search warrants: (1) a search warrant issued by Magistrate Judge Ronald Howland on April 21, 1995, at 3:55 p.m. for the search of Timothy McVeigh’s property in custody at the Noble County Jail in Perry, Oklahoma; (2) a search warrant issued by Chief Judge David Russell on April 21, 1995, at 3:10 p.m. for the search of a Mercury Marquis automobile that had been driven by Timothy McVeigh; (3) a search warrant issued by Magistrate Judge Howland on April 21,1995, at 5:55 p.m. for taking hair samples from the person of Timothy McVeigh; and (4) a search warrant issued by Magistrate Judge Morton Sitver on April 23, 1995, at 5:23 p.m. for a search of box number 206 at the Mail Room, in Kingman, Arizona. Mr. McVeigh challenged those search warrants on the ground that the affidavits filed in support of them, signed by FBI agent Henry Gibbons, contained false and misleading information and that under Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978), the court should find that the FBI provided such information to the issuing judicial officers knowingly or with reckless disregard for the truth of the information and that the challenged information was necessary to finding probable cause for issuing each of these warrants. This court ruled at the June 18,1996, hearing that the defendant’s proffer of facts was not sufficient for an evidentiary hearing under the Franks v. Delaware case. The court also made an oral ruling that the information in an additional proffer, challenging the search warrants on the ground that Chief Judge Russell and Magistrate Judge Howland were not capable of giving neutral and objective consideration to the affidavits, because of their personal experiences, was insufficient to support the contention, and that no evidentiary hearing was required. Those oral rulings are now incorporated into this memorandum opinion and order by this reference. The other motions to suppress were the subject of a four-day evidentiary hearing and post-hearing submission of proposed findings of fact and conclusions of law. Upon a review of all of this material, the court now makes its findings and conclusions in the form of this memorandum opinion. Because the rulings on the legal issues raised are, in large part, driven by the facts, some of which are in dispute because of contradictory evidence, the court first sets forth the following findings as the facts which are relevant and material to the issues presented by the record. At 9:02 a.m. on Wednesday, April 19,1995, an explosion destroyed the Alfred P. Murrah Federal Budding in Oklahoma City, Oklahoma, killing 168 people, injuring hundreds more and capturing the attention of the entire nation. The Federal Bureau of Investigation and other federal law enforcement agencies immediately began a massive investigation even as rescue efforts were being organized. News gathering organizations began comprehensive coverage with radio and television reporters on the scene in Oklahoma City and everywhere else where events thought to be related were occurring. The President and the Attorney General of the United States made public statements committing all available investigative resources to determine what had happened and who was responsible, with pledges to seek the death penalty for the perpetrators. At 10:20 a.m. on Highway 1-35 about 70 miles north of Oklahoma City, State Trooper Charles Hanger stopped a 1977 yellow Mercury Marquis automobile because the vehicle was not displaying a license plate as required by Oklahoma statute. The driver of that automobile gave his name as Timothy McVeigh, showed a driver’s license, gave his address as 3616 North Van Dyke Road, Decker, Michigan, and gave the name of James Nichols of Decker, Michigan as a reference. Mr. McVeigh had a loaded handgun and a knife. Trooper Hanger arrested Timothy McVeigh for misdemeanor offenses and took him to the Noble County Jail in Perry, Oklahoma. Mr. McVeigh’s clothing and personal effects were placed in a storage room at the jail pursuant to the general policy of Sheriff Jerry R. Cook. At some time on April 19, investigators going through the rubble at the explosion site found an axle from which they obtained a vehicle identification number indicating that it was on a Ryder truck which they traced to Elliot’s Body Shop in Junction City, Kansas. People interviewed at that business advised that the truck had been rented to a man who presented a South Dakota driver’s license with the name Robert Kling. Through interviews and records checks FBI agents learned that Timothy McVeigh had registered at the Dreamland Motel in Junction City, on April 14, using the Decker, Michigan address. At approximately 11:30 p.m. (E.D.T.) on Thursday, April 20, FBI agents contacted Detective David Hall of the Sanilac County Sheriffs Department in Michigan seeking information about the Decker address given by Timothy McVeigh. Detective Hall reported that the address was a farm belonging to James Nichols and that the sheriffs office had conducted an earlier investigation of that farm because of reports from Kelly Langenburg, the ex-wife of James Nichols. Detective Hall said that he had been told that Timothy McVeigh had stayed with James and his brother Terry Nichols at the Decker farm. The FBI interviewed Kelly Langenburg in Michigan at approximately 9:00 a.m. (E.D.T.) on Friday, April 21. During the afternoon of that day, FBI agents surrounded the James Nichols farm and conducted an extensive search of it pursuant to a warrant. News of that search was telecast by CNN. The FBI also learned that Kelly Langenburg’s sister, Lana Padilla, had been married to Terry Nichols. Agents found her in Las Vegas, Nevada, and questioned her as well as Josh Nichols, the 12-year old son of Terry Nichols and Lana Padilla. On April 21, the FBI filed a complaint in the United States District Court for the Western District of Oklahoma, charging Timothy McVeigh with participation in bombing the Murrah Building. The court issued a warrant for his arrest. At about 10:00 a.m. federal agents contacted Sheriff Cook in Perry, Oklahoma, to inquire about Mr. McVeigh’s status. Upon learning that he was still in custody, agents went to the Noble County Jail arriving there at about noon. The FBI agents formally placed Timothy McVeigh under federal arrest at about 4:30 p.m. and removed him from the Noble County Jail at around 6:00 p.m. Sheriff Cook’s secretary, Deborah Thompson, typed an inventory of Mr. McVeigh’s property and reviewed it with FBI fingerprint examiner Louis Hupp, who had come to the Noble County Jail to fingerprint Mr. McVeigh and obtain his property. Mr. Hupp added some handwritten items on the typed inventory and signed a receipt for the property at about 4:30 p.m. after fingerprinting Mr. McVeigh. After Timothy McVeigh was taken from the building, Mr. Hupp took the prisoner’s clothes and personal property to the Prairie County Airport, got on an airplane and went to Washington D.C., where he delivered Mr. McVeigh’s belongings to the FBI laboratory for testing. Earlier that afternoon, at about 3:55 p.m., United States Magistrate Judge Howland, in Oklahoma City, issued a warrant for the search and seizure of Mr. McVeigh’s clothing and personal property. The warrant was not given to Sheriff Cook, and it expired by its terms on April 28,1995. The search warrant was returned to the court in Oklahoma City marked “returned not executed” on May 4, 1995. The overall FBI investigation was being coordinated at the Strategic Information Operation Center (“SIOC”) in FBI headquarters in Washington, D.C. Information coming in from agents working throughout the country was routed through the SIOC where FBI General Counsel Howard Shapiro was working with Merrick Garland, principal assistant to Deputy Attorney General Jamie Gorelick. Other command posts were operating at Oklahoma City, Kansas City, Fort Riley, Las Vegas and Detroit. Working with the FBI agents at the command post in Oklahoma City, were Donna Bucella, Deputy Director of the Executive Office for United States Attorneys, Jim Reynolds, head of the Anti-Terrorism Division of the Department of Justice, and assistant U.S. Attorneys for the Western District of Oklahoma, Arlene Joplin, Jerome Holmes and Vicki Behenna. Chief Judge Russell and Magistrate Judge Howland of the United States District Court for the Western District of Oklahoma came to the Oklahoma City command post during the afternoon of April 21, 1995, to consider applications for such warrants as may be requested. There were open lines of communication connecting all of these command posts and the SIOC in Washington. Almost all of the investigative activity was being reported in telecasts and radio broadcasts as it was happening. FBI agents in the field were well aware of the coverage and the media’s interest in keeping abreast of late-breaking developments. For example, agent William Chornyak at the Kansas City command post first learned of the search of the James Nichols’ farm in Michigan through the coverage by CNN. Terry Nichols lived with his wife Marife and 20-month old daughter, Nichole, at 109 South Second Street in Herington, Kansas. The information associating him and his brother with Timothy McVeigh made Terry Nichols a subject of interest to the FBI, and in the early afternoon of April 21, an FBI SWAT team was dispatched to go to Herington to prepare for a search of Terry Nichols’ residence. Other teams of FBI agents went to Herington throughout that Friday afternoon. During the morning of April 21, FBI agent Stephen Smith contacted Dale Kuhn, the Herington Public Safety Director, and Barry Thacker, Assistant Director of Public Safety, at the Herington Department of Public Safety Building (“police station”) to get information about Mr. Nichols. They gave agent Smith Mr. Nichols’ home address and said that he had been at the police station during the previous week to register his vehicle. Agent Smith and agent Foley drove to the Nichols’ residence to begin surveillance. Supervisory agent Thomas Price and a nine-member surveillance team had also been sent to cover the Nichols’ home. Herington is a small community of about 2,600 persons and all of these FBI vehicles were presumably noticeable to the residents. After hearing Timothy McVeigh’s name mentioned as a suspect in a newscast about the Oklahoma City bombing investigation, and hearing some mention of his own name, Terry Nichols got into his blue pickup truck with his wife and daughter and drove to Surplus City, a local hardware store, where he stopped, stepped out of his truck briefly, got back into it, turned around, and went to the police station, arriving at 2:50 p.m. Mr. Nichols, with his wife and daughter, went in the front door, where they were met by Barry Thacker. Terry Nichols identified himself and said that he wanted to talk with someone to find out why his name was being broadcast in connection with the bombing investigation. Dale Kuhn then entered the room and joined in the conversation. Both Kuhn and Thacker said that they did not know the answer to Terry Nichols’ questions. They asked whether Mr. Nichols was carrying any weapons and then requested a visual search. Terry Nichols readily complied by taking off his jacket and lifting his shirt. Chief Kuhn said he would try to get someone to answer Mr. Nichols’ questions. The family was left alone in the officers’ room at the police station while Chief Kuhn and Assistant Chief Thacker went to contact the FBI. FBI agents Smith and Price had seen Terry Nichols go into the police station. They reported that information to FBI agent Chornyak in Kansas City who then called Chief Kuhn at the police station asking whether there was any kind of crisis situation or any danger. That call was made because of a concern that Mr. Nichols might be wired with explosives. Agent Price was instructed to try to interview Mr. Nichols and to keep him under surveillance if he left the police station. Agent Chornyak promptly reported to agent Rich Baker in the Oklahoma City command post that Terry Nichols had “turned himself in.” Four FBI agents, Smith, Price, Foley and Gillespie, entered the police station at about 3:10 p.m. and identified themselves to Terry Nichols and Marife Nichols. Mr. Nichols immediately asked the agents why his name was being broadcast. Agent Foley said he was not sure, but the FBI wanted to ask him questions. Agent Smith referred to past association with Tim McVeigh as the reason for the agents’ interest in questioning Mr. Nichols. Terry Nichols said that he had his own questions for the agents. Following another search of Terry Nichols, Marife and their child for weapons, Terry Nichols voluntarily went with agents Smith and Foley into the basement of the police station where Chief Kuhn arranged chairs, showed them the restrooms and offered to provide coffee or anything else they needed. The basement was used frequently as a classroom and meeting room for the Herington police and fire departments. The basement meeting room is the largest room in the police station, other than the garage. The lighting quality was good and the room had adequate ventilation and temperature controls. There are no windows. A few minutes after the discussion began, agent Foley said that he intended to advise Terry Nichols of his rights. Agent Foley handed Mr. Nichols FBI form FD 395, entitled “Interrogation — Advice of Rights,” and asked Mr. Nichols to read it aloud. That form sets out a full advisement of rights as required for a custodial interrogation under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Agent Foley and Terry Nichols discussed the contents of the form for about 17 minutes. Mr. Nichols said that he would not sign this form because the word “Interrogation” in the title reminded him of the Nazis. Agent Foley responded that Mr. Nichols need not sign the form as long as he understood his rights. When asked directly whether he understood his rights, Terry Nichols responded that he did and that he wanted to talk with the agents. During the discussion about the Miranda form, agent Foley told Mr. Nichols that he was free to go, that the agents had no cause to hold him, and that he could walk out the door if he wanted to do so. Mr. Nichols told the agents that he had come to the police station because he did not want “another Waco.” Terry Nichols’ refusal to sign the advice of rights form was relayed to Howard Shapiro, who directed agent Chornyak to instruct the agents to try to get Mr. Nichols to talk with them and to remind them that he was not in their custody. Mr. Shapiro told agent Chornyak that a material witness arrest warrant for Mr. Nichols was going to be obtained in Oklahoma City, and that if Mr. Nichols decided to leave the station, the agents should maintain close surveillance until they could arrest him on that warrant. At approximately 4:12 p.m., FBI agents Scott Crabtree and Dan Jablonski entered the interview room. Agent Smith, who had been assigned to take notes, read his notes aloud for them, asking Terry Nichols to stop him at any time to tell him of any errors, inconsistencies or additions. Mr. • Nichols added certain things to clarify his statements. During this review of his notes, agent Smith told Crabtree and Jablonski that Mr. Nichols had received Miranda warnings and that he had said that, while he understood his rights and wanted to talk, he refused to sign the “Advice of Rights” form. Terry Nichols said nothing to disagree with agent Smith’s recital. Agent Jablonski addressed Mr. Nichols telling him again that he was free to go and asking again if he understood his rights. Mr. Nichols said that he did understand and wanted to continue to talk with the agents. Mr. Nichols asked if he could get a copy of agent Smith’s notes, and agent Smith responded affirmatively. There was no specific discussion about when and where the copy of the notes would be provided to Terry Nichols. Agents Foley and Jablonski left the meeting room at 4:58 p.m., returning at times during breaks in the interview conducted by agents Smith and Crabtree during the remaining afternoon and evening. During each break, Terry Nichols was free to use the restroom and partake of food and drink. There was no display of weapons in the room, and Mr. Nichols never asked to consult with an attorney or whether he was under arrest. Mr. Nichols never complained about the duration, site, scope, or substance of the agents’ questioning, and he never asked to stop the questioning or refused to continue talking. At 8:52 p.m., a few minutes after a break in the interview, Marife Nichols, with Nichole, entered the basement meeting room with agents Jablonski, Foley and Thomeezek. Mr. and Mrs. Nichols spoke privately for about five minutes in the basement hallway a few feet away from the agents. Agent Jablonski heard Terry Nichols tell his wife that he did not know when he would be leaving, saying “I have to finish answering questions.” Terry Nichols then handed Marife a telephone credit card which agent Jablonski copied when she and he went back upstairs. The card was then returned to Mrs. Nichols. After another break, from 10:21-10:50 p.m., during which no agents spoke with Terry Nichols, agents Crabtree and Smith asked whether Mr. Nichols would like to hear a taped message from his ex-wife Lana and son Josh; Mr. Nichols said he did, and the agents played it for him. The FBI had made that recording earlier that day in Las Vegas. Josh asked his father to cooperate with the FBI. At 12:10 a.m. on April 22, agents Smith and Crabtree left the interview room and were replaced by agents Foley and Jablonski. Agent Jablonski became aggressive in his questioning, raising his voice and accusing Terry Nichols of lying to the agents. Agent Jablonski then arrested Terry Nichols on a material witness warrant from the U.S. District Court in Oklahoma City, and the interview ended. While the FBI agents in Herington were securing the Nichols’ residence and truck, and questioning both Mr. and Mr. Nichols, Henry Gibbons, an FBI agent and lawyer, working with the attorneys in the Oklahoma City command post, obtained that arrest warrant for Terry Nichols as a material witness. It was one of six search and arrest warrants signed in the Oklahoma City command post on Friday, April 21, 1995. Mr. Gibbons was the affiant on all the warrant applications, using information received from FBI agents in the field and other command posts during what he said was the busiest day of his life. Mr. Gibbons was first directed to draft an affidavit for a warrant to arrest Terry Nichols as a material witness at approximately 4:00 p.m. Justice Department lawyer Jim Reynolds in Oklahoma City prepared the format for the warrant, using, as a model, a material witness warrant that was issued on the previous day for the arrest of Abraham Abdallah Ahmed as a witness. Mr. Ahmed had left Oklahoma City on an American Airlines flight shortly after the explosion on April 19 and was detained in England. The face of the Ahmed warrant recited that he “has attempted to leave the jurisdiction of the United States, and it may become impracticable to secure his presence by subpoena.” (Ex. 71). The first form of warrant for the arrest of Terry Nichols as a witness presented to and signed by Chief Judge Russell bore the same recital as the Ahmed warrant — that the witness attempted to leave the jurisdiction of the United States. It also mistakenly bore the caption “United States v. Terry Lynn Nichols,” and was entitled “Warrant for Arrest” without indicating that it was for the arrest of a witness. (Ex. 26). The Ahmed warrant had also incorrectly identified Ahmed as the named defendant. When government counsel discovered the mistake in the caption of the Terry Nichols warrant and informed Judge Russell about it, he signed a second form of warrant, with the correct caption and suggested shredding the one signed earlier if it had not been sent out. A copy of the first signed warrant for Mr. Nichols had already been transmitted by facsimile to FBI agent Chomyak in Kansas City at 4:45 p.m. (Ex. 26). The second form of warrant to arrest Terry Nichols as a material witness did not include the recital about an attempt to leave the jurisdiction of the United States. It simply stated the conclusion that, if left to his own devices, it would be impracticable to secure his presence at such time as the ease is called before the grand jury. (Ex. 22). The same affidavit of Henry Gibbons was used in support of both of the Nichols warrants signed by Judge Russell. The affidavit itself said nothing about any attempt by Terry Nichols to leave the jurisdiction of the United States. It did allege that a person closely associated with Terry Nichols advised that Mr. Nichols had publicly renounced his citizenship. Neither Mr. Gibbons nor the government lawyers told Judge Russell that Terry Nichols was at the Herington police station when they presented the application for a warrant for his arrest. The Assistant Director of the FBI’s Intelligence Division in Washington, D.C., “Bear” Bryant, was informed immediately when the first warrant was signed, and he advised agent Chomyak who relayed that information to agent Price in Herington at about 4:30 p.m. Agent Price told agent Gillespie that they soon would receive a copy of the arrest warrant. Agent Chornyak received a facsimile copy at 4:45 p.m. He faxed copies to agent Price at the Herington police station and to agent Joe Bross at the Fort Riley command post shortly after 5:00 p.m. Randall Rathbun, then United States Attorney for the District of Kansas, went to the Fort Riley command post on the instructions of Deputy Attorney General Goreliek to prepare an application for a warrant to search the Nichols’ residence in Herington. Mr. Rathbun was not told about .the material witness arrest warrant for Mr. Nichols in a briefing given to him by agent Bross at Fort Riley. Mr. Rathbun went from Fort Riley to the Herington police station, arriving there at approximately 8:45 p.m. Agents Smith, Crabtree, Foley and Jablonski were not told about the arrest warrant when it arrived because of a command decision to keep the interview going, recognizing that upon his arrest Terry Nichols might stop talking. Terry Nichols first learned of the warrant for his arrest when agent Jablonski made the formal arrest after midnight. The record shows that agent Jablonski read Mr. Nichols his Miranda rights at 12:25 a.m. on April 22. Mr. Nichols refused to sign the “Advice of Rights” form, and the interview ended. After his arrest, Terry Nichols was taken to a county jail in Abilene, Kansas, and held there before being taken to the federal courthouse in Wichita for his initial appearance later in the day. There were activities outside the Herington police station that were not known to Terry Nichols during the interview. After seeing telecasts suggesting that Terry Nichols was in custody in Kansas, the Kansas Federal Public Defender, David J. Phillips, on his own initiative, began making inquiries to locate Mr. Nichols. He called the Herington police station at 9:38 p.m. offering to represent Terry Nichols if he was there. Someone took the message without comment. Upon hearing of this call, agent Price told Chief Kuhn that the lawyer’s name and phone number would be given to Terry Nichols if he asked for a lawyer. No one told Mr. Nichols about that offer for legal assistance, and he did not request counsel while he was at the Herington police station or at the jail in Abilene. The SWAT team from Kansas City arrived at Fort Riley about 40 minutes after Terry Nichols’ appearance at the Herington Police Station. Because of that development they left their SWAT team weapons and gear at Fort Riley and proceeded to Herington in their normal role as investigators. Acting on the possibility that Terry Nichols might have an explosive device in his truck or his home, the police and the FBI investigators evacuated all occupants of the buildings from a one-block area north of the police station where the truck was parked and blocked off the streets around Nichols’ house. Occupants of houses in the immediate area of the house were asked to leave. There was an intense interest in searching the truck and residence. Accordingly, the agents asked Terry Nichols for his consent to search early in the interview. At 4:34 p.m. Teny Nichols signed a standard FBI consent form witnessed by agents Jablonski and Foley, after adding the notation “without prejudice U.C.C. 1-207.” (Ex. B-l). He asked whether he or his wife could be present during the search, and the agents gave an affirmative response. Later, during one of the breaks in questioning, agent Foley said that he was concerned for the safety of the searching agents and asked Mr. Nichols to make a sketch of his home and show where ammunition and firearms were located. Terry Nichols drew a sketch of his house, clearly marking the locations of guns and ammunition shortly before 9:00 p.m. (Ex. 33). On Saturday afternoon, April 22, agents Smith and Crabtree transported Terry Nichols from the jail in Abilene to Wichita, for his initial appearance in court. Agent Crabtree told Mr. Nichols that they were going to go to Wichita where an attorney would be appointed to represent him, and he would appear before the court. Ten or fifteen minutes into the ride Terry Nichols asked the agents whether his residence had been searched. Agent Crabtree responded that the agents had not yet searched the home because they were proceeding very carefully due to safety concerns, not knowing what dangers might be there. Terry Nichols was reassuring, saying that the only items requiring caution were loaded weapons, and he again described their locations. He also advised that there were intrusion alarms, noting that the one monitoring the back door was not functioning. There was some additional discussion during the trip. Upon arrival at the federal courthouse in Wichita, deputy U.S. Marshals came to the FBI automobile and took Mr. Nichols into the building. Agents Smith and Crabtree locked the vehicle and went to the Marshal’s office where they asked one of the deputies to inform Terry Nichols that the agents were available if he wanted further conversation with them. While undergoing routine processing with Deputy Marshal Daryl Ingermanson, Mr. Nichols said that he “wished to speak with the agents before he went to court.” Deputy Ingermanson responded that he would be happy to bring the agents back to the holding cell. A little later, the agents came to the cell and had additional conversation with Mr. Nichols which was interrupted when court appointed counsel arrived. In response to deputy Ingermanson’s inquiry, Terry Nichols gave the names “Joe Rivers” and “Ted Parker”, as names he had used and deputy Ingermanson noted them as aliases on the standard personal history form. At his initial appearance before U.S. District Judge Monti Belot at 4:55 p.m. on April 22, Mr. Nichols was represented by the Kansas Federal Public Defender, David Phillips and his assistant Steve Gradert. Mr. Nichols expressed some confusion to the judge, saying that the warrant reported that he had attempted to leave the jurisdiction of the United States, whereas he went down to the police station voluntarily. The hearing was continued on April 26, with the same lawyers appearing for the detained witness. Mr. Phillips told the court that the affidavit for the warrant was not contested but that Mr. Nichols did ehalF .¿, the finding that it may be impracticable secure his presence by a subpoena, the statutory basis for the arrest of a material witness. Accordingly, counsel moved to quash the warrant arguing that Terry Nichols had been cooperative, voluntarily meeting with the authorities and consenting to a search of his house and vehicle. Judge Belot denied the motion, finding probable cause for the material witness arrest and ordered that Terry Nichols be detained. (Ex. 35). Agent James Reightler went to Herington on Friday, April 21, as a member of the original SWAT team from Kansas City by way of Junction City. He first went to the Herington police station, at approximately 5:30 p.m., where he was instructed to secure Mr. Nichols’ home. At least eight to ten local police and FBI agents were assigned to assist in that task. The FBI supervisor said that although the owners of the property had consented to a search, no search was going to be undertaken that night because of the possibility that there may be explosives on the premises. Intermittent surveillance of the Nichols’ home began at approximately 2:40 p.m. on the afternoon of April 21. The FBI surveillance log indicates that the house was under continuous surveillance by 3:20 p.m. At 4:20 p.m., agents Lindsey, Barger and Maxwell were in the process of putting police security tape around the property. When agents Reightler and Marlin Ritz-man arrived at the Nichols’ home at about 6:00 p.m. they saw that agents had control of the area, and they were told that no one had entered or left the house for at least three hours. There were many news gatherers in the immediate vicinity and a crowd of onlookers had collected. Around 6:00 to 6:30 p.m., agent Reightler walked along the perimeter of the property going from the front to the rear of the house to contact the other agents and to familiarize himself with the property. The garage is within fifteen feet of the house. There is a short concrete walkway connecting the buildings within a wire perimeter fence. The windows of the garage were covered with shades similar to the window shades of the home. At about 8:30 p.m., agent Reightler again walked along the edge of the Nichols’ property, stopped, and, with the aid of a flashlight, looked into the garage through a window with a tom shade. Reightler testified that he looked in the window because he had been told the owners had consented to a search and because he was concerned about possible hazards inside the garage. Agent Reightler saw four white plastic barrels with blue lids, a large number of military-style ammunition cans, some fuel cans, hardware and tools. Later that evening, in a meeting with other agents, agent Reightler learned that technicians at the Murrah Building site had said that a bomb had likely been contained in white plastic containers with blue lids. Reightler thought that he had seen such containers in the garage, but he had not looked closely enough to determine whether the barrels appeared to be wired or connected to a timing device. Accordingly, he returned to the garage for another look through the window at about 9:30 p.m. He again saw the four white plastic barrels and decided that there was no visible indication that they presented any immediate danger. Marife Nichols was bom on June 11, 1973. Before meeting Terry Nichols she lived in the Philippines in a two-room structure, without a lockable door, shared by seven or eight other people, without an interior toilet or running water. Her father was a police officer as had been her grandfather. Mrs. Nichols learned English as a second language in a school where the last two years of high school courses were taught in English. Marife married Terry Nichols on November 20,1990. She came to the United States with him in 1991. They first lived in Henderson, Nevada, and then moved to Michigan where they lived at the James Nichols’ farm on and off for about two years. Their daughter Nichole was bom in August, 1993. Mrs. Nichols went back to the Philippines in 1994 to attend Southwestern University there, taking college courses taught in English. In the early afternoon of Friday, April 21, 1995, Terry Nichols heard on the radio that Timothy McVeigh had been arrested on a traffic charge and was a suspect in the Oklahoma City bombing. Mr. Nichols told his wife that he also heard his name mentioned. Mr. and Mrs. Nichols then saw a report about the bombing on television, and Mrs. Nichols heard that Timothy McVeigh was arrested. Terry Nichols gave Marife Nichols $200 before taking her and Nichole with him to the Herington police station. When the Terry Nichols family went into the Herington Police Station and Terry Nichols went to the basement with FBI agents, Marife and Nichole Nichols stayed in the officers’ room on the main floor. Marife Nichols was searched by a female Herington police employee at the direction of the FBI. A Herington police officer also searched the clothing and body of Nichole. The officers’ room had no windows or clock. Marife and Nichole Nichols stayed there for the next six hours in the company of William White, a U.S. Army CID agent, and FBI agent Eugene Thomeezek. FBI agent Sheila Dobson joined them when she arrived at the police station late in the afternoon. Mrs. Nichols talked freely with these agents. None of them told her that she had a right to remain silent; that she could refuse to say anything against her husband; that she had a privilege not to disclose private marital communications or that she had the right to be represented by counsel. Marife Nichols testified that CID agent White encouraged her to tell the truth, “so that it will show that [she has] nothing to hide. That way, Mr. Thomeezek would not repeat his question again and again.” (Tr. p. 714). The agents denied Mrs. Nichols’ request to go out to the truck to get diapers for her daughter, telling her that she should not go outside because the media would confront her and that she could not enter the truck because it was going to be checked by a bomb detection squad from the Army. Agent Dobson went to a grocery store, purchased diapers and brought them back to the station. After several hours of conversation, agents Thomeezek and Dobson asked Marife Nichols for her consent to search the truck and the house, showing her the standard FBI consent form. Mrs. Nichols’ first response to the agents was “[y]ou have to get the permission from Terry, because it’s his house.” The agents replied “We’re going to get that and we need yours too.” (Tr. p. 722). Mrs. Nichols asked Agent Dobson about the words “right to refuse to consent to such search” on the consent form. When agent Dobson told Mrs. Nichols she could refuse to grant consent, Marife Nichols asked what would happen if she did refuse. Agent Thomeezek responded that they would then have to go to court and get a search warrant which would take time. Mrs. Nichols signed two separate written consents to search: one for the premises at 109 South Second Street, (Ex. W-14A), and one for the truck. (Ex. W-14B). Later, agent Thomeczek wrote on the forms that no consent search was done on April 21. When Mrs. Nichols asked to see her husband, agents Thomeezek, Jablonski, and Foley took her and the baby to the basement meeting room. Marife and Terry Nichols had a conversation for a few minutes, standing away from the agents, after which Mr. Nichols gave his wife a telephone charge card. When agent Jablonski asked to make a copy of the credit card she complied without making any protest. The agents told Mrs. Nichols that she could not return to her residence. After first saying they would go to Junction City, agents Thomeezek and Dobson drove Mrs. Nichols and her daughter to a Best Western Inn in Abilene, Kansas, where CID agents White and Dawn Grey joined them. Marife Nichols and her daughter were given a private room in the motel. They and the agents stayed in Abilene on Saturday, April 22. Mrs. Nichols purchased some clothes, rejecting agent Dobson’s offer to pay for them. Mrs. Nichols said that she bought them using money her husband had given her because she preferred not to be a burden on anyone. The FBI agents paid all of her other expenses during that weekend and for the remainder of the time that they had supervision of her. On Sunday, April 23, the agents took Mrs. Nichols to her home in Herington to get some of her clothing and personal property. Before going to the house, agents Thomeezek and Jablonski asked her to sign another consent to search form for the residence and the truck. Mrs. Nichols told the agents that she would sign the document, even though she said she did not completely understand. In signing, she wrote her first name twice, crossed out one of them, and added the notation, “without prejudice UCC 1-207” above her signature. Seeing that reservation, agent Thomeezek asked Mrs. Nichols to say clearly whether she did or did not consent to the searches. She said that she did consent, explaining that the notation was something she had learned from Terry Nichols and Black’s Law Dictionary. Inside the house, the agents told Mrs. Nichols that she could be there for only about 45 minutes because when the news media learned she was there they would try to interview her on camera and get pictures of her and Nichole. Mrs. Nichols did not 940 FEDERAL SUPPLEMENT want to be questioned or photographed by reporters and did not object to limiting her time in the house. Although Mrs. Nichols had to hurry to gather and pack her belongings, she had telephone conversations with her mother in the Philippines and her aunt in California while she was in the house that Sunday afternoon. She had talked with her parents earlier that weekend. Mrs. Niehols went into each room and the basement of the house. When she left with the agents, she had to cover her and Nichole’s faces to avoid the taking of pictures by anyone in the large crowd that had gathered outside the house. As they drove away, agent Thomeezek handed Mrs. Nichols an inventory listing the items that had been taken by the FBI. When she read the list she saw that it did not include $5,000 in currency and a number of valuable coins that she kept in the box springs of the bed. Mrs. Nichols had mentioned the money and coins to agent Thomeezek during their conversation at the police station on Friday. The $5,000 was extremely important to Mrs. Nichols. She saw it as the only means available to her to purchase a plane ticket and go to her parents in the Philippines. When she saw that it was not in the inventory, she asked agent Thomeezek to go back to the house to get it. Agent Thomeezek refused her request. Back at a motel near Fort Riley, Mrs. Nichols again requested her money, and agent Thomeezek again refused, explaining that the FBI wanted to take the currency to a laboratory to test it for fingerprints of Timothy McVeigh. Marife Niehols unsuccessfully tried crying to persuade agent Thomeezek to return her money. He gave her a handwritten consent to search containing the following language: 1. I, Marife Torres Nichols, have been asked by Special Agents of the Federal Bureau of Investigation to complete a limited search of my premises at 109 So. 2nd St., Herington, KS. This search is to locate certain valuables now concealed within those premises. 2. I have been advised of my right to refuse consent. 3. I give this permission voluntarily. 4. These agents are authorized to remove these valuables as may be related to their investigation. (Ex. G-l). Mrs. Nichols signed, using the “without prejudice” notation, at a few minutes after 5:00 p.m. on April 23, believing that this would somehow expedite the return of her money. Later, on Sunday evening at about 9:10 p.m., agent Thomeezek asked Mrs. Nichols to sign another consent to search the garage for a padlock that the FBI thought may be there. She did so, adding the notation, “without prejudice UCC 1-207.” (Ex. W-5). The next day, Monday, April 24, agent Dobson asked Mrs. Nichols to sign a consent form to allow the FBI to return to the Herington house to search for and seize a Shop Vac vacuum cleaner. Mrs. Nichols signed the form with the same “without prejudice” notation. (Ex. H-l). At 9:40 p.m. on that Monday evening, agents Mary Jasnowski and Eugene Thomeezek obtained another written consent from Mrs. Niehols to search the residence and seize the Nichols’ family dishes. When Mrs. Nichols signed she again wrote the notation “without prejudice UCC 1-207.” (Ex. I — 1). On the following day, April 25, at 3:17 p.m., FBI agents procured yet another consent from Mrs. Niehols to search the Herington house. (Ex. J-l). Mrs. Niehols testified that she continued to cooperate in the hope that it would help her return to the Philippines. On several occasions during her days with them, Mrs. Nichols told the agents that she wanted to be in her house in Herington. They told her that she could not live there because she would be badgered by the media, and there would be bills to pay. Chief Kuhn had also said to her that the Herington police could not provide for her safety if she returned to the residence, fearing the possibility of some vengeful or retaliatory act against her and her child. On April 26, Mrs. Niehols made a telephone call to Terry Nichols, after agreeing to permit the FBI to tape record the conversation with a signed consent and the same UCC notation. She spoke the following words during that call: I — I don’t really want to stay here because, you know, I don’t know — I don’t have vehicle. I can’t — I’m totally helpless. I’m depending on these people here and uh — I don’t wanta give any hassle to anyone. (Tr. p. 762.) • As will be discussed later, those comments, for whatever reason, overstated the circumstances and her reaction to them. She knew she was being recorded. On April 30, the FBI made a consensual tape recording of a telephone call between Mrs. Nichols and Robert Nichols, Terry Nichols’ father. On May 3, agent Dobson presented Mrs. Nichols with additional consent forms to search the house and truck, saying that the FBI needed to make another search. On May 8, 1995, the FBI agents told Mrs. Nichols thát they were going to take her to Oklahoma City to appear before a grand jury. Believing that she may never again see the Herington house, she asked to go back there to pick up more of her possessions. Agents Thomeczek and Dobson and a third agent went in with her. While they were all in the house, agent Dobson asked for permission to take a kitchen mixer that Mrs. Nichols had mentioned in a previous interview. Mrs. Nichols acceded to the request, prompting agent Dobson to ask, “[What] else can we take?” Mrs. Nichols responded, in a joking manner, that the FBI could ... “take the whole house, as long as you’re going to ... give me my money and send me to the Philippines.” (Tr. p. 769.) Mrs. Nichols was taken to the United States Attorney’s office in Oklahoma City on May 9, where she met with FBI agents Hawkins, Thomeczek and Dobson, together with Assistant U.S. Attorneys Joplin and Holmes. Donna Bucella from the Justice Department also participated in the meeting. No one told Mrs. Nichols that she had a privilege to refuse to testify against her husband, and no one told her about a privilege to refuse to disclose private marital communications. During the interview Marife Nichols asked if she needed a lawyer and one of the government lawyers said that, because she was not a suspect, she did not need a lawyer unless she was not telling them the truth. After spending a half day with these lawyers and agents, Mrs. Nichols was told that her appearance before the grand jmy would be postponed. She was given a subpoena to return to Oklahoma City on May 16, 1995. Mrs. Nichols was taken to Wichita and then to Kansas City, Missouri, for the convenience of the agents living there who went to their homes for the weekend. Agents Thomeczek and Dobson took Mrs. Nichols back to Oklahoma City on May 17, the day after her subpoena date. The lawyers then told her that she would not have to testify before the grand jury because they thought that she had been telling them the truth. At some time, while she was with the FBI agents, Mrs. Nichols and her daughter were fingerprinted and Mrs. Nichols gave hair samples without objection. On May 19, 1995, agents Thomeczek and Dobson asked Mrs. Nichols to sign a consent to search form to enable the FBI to enter the Herington house to retrieve toys and clean out the refrigerator as she had earlier requested to do herself. (Ex. W-ll). Mrs. Nichols made many telephone calls during the days she was with the FBI agents. She talked with her relatives in California and with Terry Nichols’ family in Michigan. She also talked with representatives of the Philippine government and met them personally on one occasion. She asked for, but did not get, help from anyone in reaching her goal of returning to her parents’ home. The agents told her not to give anyone telephone numbers where she could be reached because the press would learn where she was and become a nuisance to her. The agents were not with Mrs. Nichols continuously. She and her daughter were left alone at times, and no agent stayed in or guarded the rooms in the hotels and motels where they stayed. Mrs. Nichols did not get her money until after she talked with one of her husband’s lawyers, Ron Woods. She finally was given $4,800 on May 24, 1995, and the FBI then stopped paying for her support. Marife Nichols and her daughter immediately got on a bus to California and were then taken by a friend to the San Francisco airport for the long awaited flight to the Philippines. McVeigh Motion to Suppress FBI Seizure of Clothing and Personal Effects The defense concedes that apparent violations of Oklahoma’s motor vehicle laws gave Trooper Hanger probable cause to stop the automobile Timothy McVeigh was driving and that his possession of the gun and knife gave probable cause for his arrest. The booking search and the taking of Timothy McVeigh’s street clothing and personal effects at the Noble County Jail are not challenged. Although counsel questioned the lack of a formal protocol for this necessary procedure, the evidence shows that the sheriffs staff followed their normal practices in putting Mr. McVeigh’s property in a room where other prisoners’ property was stored. The motion to suppress any evidence obtained from Mr. McVeigh’s clothing and personal effects is based on the contention that the transfer of his property to the FBI and the taking of it to the FBI laboratory in Washington D.C., without presenting a warrant to the Noble County Sheriff, violated the rights of Mr. McVeigh protected by the Fourth Amendment to the United States Constitution. Timothy McVeigh puts forth Brett v. United States, 412 F.2d 401 (5th Cir.1969), as precedent in support of his argument that a warrant was required for the seizure and laboratory inspection of his clothing and personal effects. There, as here, the defendant was arrested, taken to jail, and given institutional garb in exchange for his clothes which were placed in a bag in a property room for safekeeping. Three days later, the investigators searched that clothing and found a packet of heroin in the watch pocket of the defendant’s pants. In a divided opinion, two judges on the three-judge panel determined that the late search infringed the defendant’s right of privacy. The court’s reasoning flowed from the basic premise that all warrantless searches are presumed to be unreasonable and that there had been no showing of exigent circumstances justifying the failure to request authority from a neutral magistrate. The government counters with authority from the Supreme Court in United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974). In that case Edwards was lawfully arrested and placed in a jail cell late in the evening. He was charged with attempting to break into a post office, and the crime scene showed evidence of a forcible entry through a window, leaving paint chips behind. Because substitute clothing was not available, the defendant stayed in his street clothes until the next morning when new clothing was purchased for him. The clothes worn at the time of his arrest were then taken and examined. They contained paint chips matching the samples taken from the window. A majority of five justices, speaking through Justice White, determined that the delay in the taking and testing of the clothing did not change the analysis that would have characterized this action as a permitted search incident to an arrest and routine booking of a person lawfully arrested. Justice White framed the question as follows: The question here is whether the Fourth Amendment should be extended to exclude from evidence certain clothing taken from respondent Edwards while he was in custody at the city jail approximately 10 hours after his arrest. Id. at 801, 94 S.Ct. at 1236. In answering no and applying the familiar law authorizing a search incident to arrest, the Court quoted with approval the following language from the First Circuit in United States v. DeLeo, 422 F.2d 487, 493 (1970) (footnote omitted): While the legal arrest of a person should not destroy the privacy of his premises, it does — for at least a reasonable time and to a reasonable extent — take his own privacy out of the realm of protection from police interest, in weapons, means of escape and evidence. United States v. Edwards, 415 U.S. at 808-09, 94 S.Ct. at 1239-40. In footnote 7 in its opinion the Court cited the Tenth Circuit case of Baskerville v. United States, 227 F.2d 454 (10th Cir.1955), among other eases, and noted that the Brett case was contra. Although it did not say so explicitly, the Court’s reasoning was contrary to that of the Fifth Circuit in Brett. Justice Stewart, writing the dissent in Edwards, followed the same approach taken in Brett by rephrasing the question as whether the Fourth Amendment is to be ignored. Finding no justification for dispensing with the warrant requirement and holding to the traditional view that all warrantless searches are per se unreasonable and must be justified by some exceptional circumstances, the dissenting justices said that the warrantless search was unconstitutional. The holding in Edwards supports a warrantless seizure of Mr. McVeigh’s property in this case. The defense seeks to distinguish the ease, arguing that because the search in Edwards was for evidence of the crime for which the defendant was arrested, the ruling is merely a reasonable extension of the well-established law permitting the police to make a warrantless search incident to an arrest. Here, two days after the arrest of Mr. McVeigh on local charges, the FBI was looking for evidence connecting him with the suspected bombing of a building in Oklahoma City, a very different and much more serious matter than the misdemeanor charges on which he was being held. The legal significance of that difference is not apparent. The Fourth Amendment protects the privacy rights of persons, not property. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The critical question here is what privacy right did Timothy McVeigh have, while he was lawfully in jail, to deny FBI access to the clothing and personal effects he was wearing and carrying at the time of his arrest. Fourth Amendment privacy rights are measured by an objective standard of reasonableness in light of the historical purpose of the Fourth Amendment. Oliver v. United States, 466 U.S. 170, 177-78, 104 S.Ct. 1735, 1740-41, 80 L.Ed.2d 214 (1984). If on April 21,1995, the Noble County Sheriff could have taken and tested Timothy McVeigh’s clothes for any evidence relating to the charges on which he was arrested two days earlier, no societal purpose is served by precluding the FBI from doing the same thing to seek evidence for its investigation on the charges for which a court found probable cause to arrest him as a suspect. In recent cases appellate courts have tended more towards a pragmatic analysis in search and seizure cases rather than the formalistic, formulaic approach taken in earlier times and used by the Fifth Circuit in Brett and the dissent in Edwards. There is more emphasis on the reasonableness of the police conduct and whether the purpose of deterring misconduct would be served by application of the exclusionary rule in particular factual circumstances. Arizona v. Evans, — U.S. —, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995). Viewed from the perspective of law enforcement agents, there is nothing unreasonable in the FBI accepting custody of the property of the prisoner when they took him from the custody of the Noble County Sheriff and then testing that property in a laboratory. The sheriff testified that he has never been given a search warrant before transferring a prisoner and his property to the custody of other law enforcement agents. This transfer of custody of Timothy McVeigh from the Noble County Sheriff to the agents of the FBI was lawful because the agents had an arrest warrant from a federal district court. The transfer of his personal property was incidental to the transfer of his person. The opinion deciding Edwards would have authorized the Sheriff of Noble County to have sent his prisoner’s property for testing for evidence of the crimes for which he was detained. That would have been a reasonable search. There is nothing about the FBI taking the same property and examining it for evidence relating to the crimes for which the federal arrest warrant was issued that transforms what would have been a reasonable search and seizure by the sheriff into an unreasonable one done by the FBI. A contrary ruling would require the adoption of a sort of sliding scale definition of a prisoner’s right of privacy, extending it according to the seriousness of the charges being investigated. This case is also different from Brett and the other cases cited by Mr. McVeigh because the proposed seizure of his property had been judicially reviewed by Magistrate Judge Howland in Oklahoma City, who issued an authorizing warrant before the seizure was effected. The only shortcut taken by the FBI agents in this case was the failure to present a copy of that search warrant to the Noble County Sheriff. That omission can hardly be considered the type of police misconduct that warrants suppression of evidence which is assumed to be otherwise admissible at this stage of the proceeding. Mr. McVeigh’s counsel contend that the mere existence of a search warrant does not justify a search conducted without the use of it, noting that the search warrant signed by Magistrate Judge Howland was returned unexecuted and expired by its terms on April 28,1995. A per curiam decision of the Sixth Circuit Court of Appeals in United States v. Griffin, 502 F.2d 959 (6th Cir.1974), has been cited as support for this position. There narcotics agents had developed probable cause for the search of an apartment, dispatched an agent to procure a search warrant, and then, rather than waiting for the warrant, proceeded to forcibly enter the apartment, discovering a quantity of narcotics and related paraphernalia. The government argued an inevitable discovery analysis because a search warrant was later obtained without the use of any information resulting from the early entry and a thorough search followed. The court found no exigent circumstances justifying a warrantless entry and said that, in the absence of exigent circumstances, police may not force an entry to a home simply because they think they have probable cause. This court has no disagreement with the result in that case and finds it to be distinguishable because the right of privacy in a home is qualitatively different from the privacy interests of a person lawfully in custody in the clothing and effects in his possession at the time of his arrest. Moreover, in Griffin the police acted prematurely — before a judicial evaluation of probable cause. They made their own decision, and the court was concerned that application of the inevitable discovery doctrine would encourage such police shortcuts. Here, judicial approval was given before the seizure. It is also significant that agent Hupp did not act on his own initiative in taking the property. He was directed by high-ranking officials who had also directed the procurement of the search warrant and knew that it had been issued. Those in command of the investigation had the assurance that they were proceeding with the formal approval of a neutral magistrate. They did not ignore the requirement for a warrant. Seen in context, the FBI sought and obtained a judicial determination of probable cause for the action that it took, and to hold that the results of the laboratory tests could not now be received in evidence simply because no copy of the warrant was exhibited to the sheriff of Noble County, Oklahoma would not only be contrary to established law, it would defy common sense. Motion to Suppress Statements of Terry Nichols Terry Nichols claims that all of his statements made to the FBI agents on April 21 and 22 should be suppressed because he was a captive of the FBI, held under coercive circumstances, and did not knowingly and voluntarily waive his Miranda rights. The government’s first response is that an adequate Miranda warning was given and a valid waiver of the rights to remain silent and to have the assistance of counsel was made by Terry Nichols before he made any statements of evidentiary interest. In reply, Mr. Nichols contends that his consent was the product of deliberate deception by the FBI in both what they did and did not tell him. The defense asserts that this pattern of deception began when the agents told Terry Nichols that he was free to go; it continued when agent Smith said he would provide a copy of his notes of interview; the agents failed to inform him that the FBI had targeted him as a suspect in the ease; they failed to tell him that he was going to be arrested on a material witness warrant; they misrepresented their intentions when they assured him that he or his wife would be present during any search of their residence; they did not disclose that a lawyer had notified them that he was prepared to represent Mr. Nichols and they delayed in taking him before a judicial officer after his arrest. In addition to arguing that the totality of these circumstances requires a ruling that Terry Nichols’ statements were involuntary, counsel contends that admission of this evidence would violate the Due Process Clause as well. This aggregation of arguments presents both legal and factual questions requiring separate analyses. Terry Nichols Statements Were Voluntary In determining what effect must be given to a state court ruling that a person under interrogation was not in custody for Miranda purposes in a federal habeas corpus proceeding, the Sup