Page 45 - TPA Journal May June 2025

testimony during the suppression hearing, defense and voluntary.
counsel objected to any more questions regarding The district court determined that the findings in
the interview, asserting that the transcript was the the magistrate judge’s report were correct and
best evidence of the interview. The magistrate denied the motion to suppress.
judge agreed and played the recorded interview in As an initial matter, Sanders argues that because
open court. A transcript of the recorded interview the first interview was not recorded, we should
was also admitted into evidence under seal. assess Kelly’s and Werby’s testimony in light of
the subsequent recorded interview. Although pre-
The magistrate judge subsequently issued a report invocation conduct is a relevant consideration
and recommendation denying the motion to sup- when evaluating whether an invocation was clear
press the statements. With respect to the first inter- and unambiguous, we are not persuaded that a
view conducted by Agent Kelly, the magistrate subsequent interview conducted by different law
judge found that Sanders asked for an attorney enforcement officers is relevant. The magistrate
before he would answer three “specific questions: judge “was in the best position to weigh the cred-
1) why he killed Suellen, 2) why he killed [L.R.], ibility of the testimony” of Kelly and Werby.
3) what he had been doing while in Nevada.” The Accordingly, we “will not second guess the dis-
magistrate judge further found that each time that trict court’s factual findings as to the credibility of
Sanders requested to talk to an attorney before witnesses.”
answering a particular question, Kelly honored his With respect to the first interview, Sanders has
request by changing the subject. The magistrate failed to demonstrate that the court’s factual find-
judge expressly rejected Sanders’s assertion that ings are clearly erroneous. “A district court’s
the agent used the guise of clarification to per- denial of a motion to suppress should be upheld ‘if
suade Sanders to continue to waive his rights. The there is any reasonable view of the evidence to
magistrate judge found that “Agent Kelly was support it.’” As previously set forth, the district
bending over backwards to protect Sanders’s court found that each time that Sanders requested
rights and to be absolutely sure that Sanders want- to talk to an attorney before answering a particular
ed to continue talking about other things.” question, Agent Kelly honored his request by
Moreover, the magistrate judge found that these changing the subject. This court has previously
“facts were corroborated by Investigator Werby.” affirmed the denial of a defendant’s motion to sup-
The magistrate judge concluded as follows: press in a similar situation. We noted that after the
Therefore, I find, by a preponder- defendant “expressed his unwillingness to answer
ance of the evidence, that each questions about where he obtained materials to
statement by Sanders that he make a bomb,” the police officer “honored this
wished to speak with a lawyer request by moving to a different subject.” We held
before answering that particular that the district court’s interpretation of the defen-
question was unambiguously dant’s statement was not clearly erroneous.
directed to those particular ques- Similarly, in this case, both Kelly and Werby tes-
tions only and that Sanders was not tified that Sanders’s invocations of counsel were
requesting an attorney before con- qualified. When Kelly asked Sanders why he
tinuing with the interview. Sanders killed Suellen, Sanders stated that “he wanted to
was very clear and specific in indi- speak to an attorney before answering that ques-
cating what areas of the interview tion.” Sanders answered similarly when he was
he would and would not discuss later asked why he killed L.R. and again when
without a lawyer and there is no asked about his experiences in Nevada before the
question in my mind that his killings. Each time, Kelly stopped questioning
actions and choices were knowing Sanders about these topics and instead began

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