| TERRY LYNN NICHOLS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH RESPECT TO SUPPRESSION OF EVIDENCE |
| FOR EDUCATIONAL USE ONLY
– REPRINTED WITH PERMISSION Copr. (C) West 1999 No Claim to Orig. U.S. Govt. Works
1996 WL 408113 (D.Colo.Doc.) (Cite as: 1996 WL 408113 (D.Colo.Doc.))
*1 TITLE: United States of America, Plaintiff v. Timothy James McVeigh and Terry Lynn Nichols, Defendants. TOPIC: TERRY LYNN NICHOLS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH RESPECT TO SUPPRESSION OF EVIDENCE DOCKET-NUMBER: 96-CR-68-M VENUE: U.S. District Court for the District of Colorado. YEAR: Filed: July 12, 1996 JUDGE: Hon. Richard P. Matsch, Chief District Judge ATTORNEY(S): Michael E. Tigar, Esq., Denver, Ronald G. Woods, Esq., Houston, N. Reid Neureiter Esq., Adam Thurschwell, Esq., Denver, For the Defendant Terry Lynn Nichols. TEXT: TABLE OF AUTHORITIES CASES SUPREME COURT CASES Bruton v. United States, 391 U.S. 123 (1968) ............ 11, 37 Idaho v. Wright, 497 U.S. 805 (1990) ............ 6, 7 Lee v. Illinois, 476 U.S. 530 (1986) ............ 6, 7, 10, 38 Ohio v. Roberts, 448 U.S. 56 (1980) ............ 6, 13 FEDERAL COURT CASES Earnest v. Dorsey, ______ F.3d ______, 1996 WL 351157, slip op. at p. 5 (10th Cir. 1996) ............ 6, 7, 13, 14 Jennings v. Maynard, 946 F.2d 1502 (10th Cir. 1991) ............ 13 Myatt v. Hannigan, 910 F.2d 680 (10th Cir. 1990) ............ 8 United States v. Chalan, 812 F.2d 1302 (10th Cir. 1987) ............ 7, 12, 11 United States v. Hoyos, 573 F.2d 1111 (9th Cir. 1978) ............ 7, 10 United States v. Layton, 720 F.2d 548 (9th Cir.), cert. denied 465 U.S. 1069 (1984) ............ 7 United States v. Lewis, 954 F.2d 1386 (7th Cir. 1992) ............ 8 United States v. Monaco, 753 F.2d 1173 (9th Cir. 1984) ............ 7, 10 United States v. Sherlin, 67 F.3d 1208 (6th Cir. 1995) ............ 36 United States v. Velasco, 953 F.2d 1467 (7th Cir. 1992) ............ 8 STATUTES AND RULES Fed.R.Evid. 804(b)(3) ............ 7, 8, 10-12, 34 Table of Contents ------------------------------------------------------------------------------- Table of Authorities ....................................................... v. -------------------------------------------------------------------------- I. PRELIMINARY STATEMENT ................................................. 1 II. FINDINGS OF FACT ..................................................... 3 A. THE INTERROGATION AND ARREST OF TERRY NICHOLS ................... 3 a. Background: the FBI zeros in on Herington ................. 3 b. Terry Nichols becomes a target ............................ 7 c. Terry Nichols and Family at Herington DPS ................ 11 d. The Material Witness Arrest Warrant ...................... 18 e. Interrogation of Terry Nichols ........................... 26 B. POST-ARREST TREATMENT AND UNLAWFULLY PROCURED CONSENTS ......... 32 C. WARRANTLESS SEARCH OF NICHOLS HOME AND GARAGE .................. 34 D. THE CONSENTS PROCURED FROM MRS. NICHOLS ........................ 39 a. Credibility .............................................. 39 i. Mrs. Nichols ..................................... 39 ii. FBI Agent Sheila Dobson .......................... 40 b. Who is Mrs. Marife Torres Nichols? ..................... 41 c. Marife Nichols on April 21, 1995 ....................... 43 d. Marife Nichols on April 22, 1995 ....................... 50 e. Marife Nichols on April 23, 1995 ....................... 50 f. Marife Nichols on April 24, 1995 ....................... 56 g. Marife Nichols on April 25-26, 1995 .................... 57 h. Additional Consents procured from Mrs. Marife Nichols .. 60 i. Mrs. Marife Nichols and her Grand Jury "testimony." .... 61 j. The "need" for FBI protection from press ............... 63 k. Mrs. Nichols' Treatment by the FBI...................... 65 E. FALSE STATEMENTS IN WARRANTS ................................... 68 a. The Fuel Meter ........................................... 68 b. Misrepresentations of Mr. Nichols' Statements ............ 71 c. Falsehoods with Respect to Olfactory Evidence ............ 72 III. CONCLUSIONS OF LAW ................................................. 75 A. MR. NICHOLS' STATEMENTS....................................... 75 a. The April 21 Statement .................................. 78 i. The April 21 Statement was involuntary ........... 78 ii. Mr. Nichols did not waive his Miranda rights ..... 86 iii. The interrogation violated Mr. Nichols' due process rights as a material witness ........... 91 (a) The Statement was the fruit of the government's deliberate delay in informing Mr. Nichols of his status as a material witness and in bringing him before a judicial officer .. 96 (b) The Statement was the fruit of an illegal arrest ........................................ 101 b. The April 22 Statements ............................... 105 i. Mr. Nichols was not given his Miranda warnings on April 22 ................................... 105 ii. The April 22 Statements were involuntary ........ 109 iii. The April 22 Statements violated Mr. Nichols' due process rights as a material witness ...... 111 B. AGENT REIGHTLER' S TRESPASS ONTO THE CURTILAGE............... 111 a. The Nichols' garage was entitled to Fourth Amendment Protection............................................. 111 b. Agent Reightler's warrantless search of the garage was not justified by Mr. Nichols' consent to search........ 112 c. Agent Reightler's warrantless search of the Nichols' property was not justified by any exigent circumstances ......................................... 113 C. THE CONSENTS PROCURED FROM MARIFE NICHOLS WERE INVALID....... 117 a. The consents were involuntary ......................... 117 b. The consents were the result of an illegal seizure .... 122 D. ALL EVIDENCE OBTAINED DURING THE COURSE OF THE WARRANTED SEARCH ON APRIL 22 MUST BE SUPPRESSED........................ 126 a. The warrant was invalid ............................... 126 b. The evidence would not inevitably have been discovered............................................. 130 E. FRUITS OF THE WARRANTLESS SEARCH OF THE NICHOLS RESIDENCE ON APRIL 23 MUST BE SUPPRESSED.................................. 132 F. THE WARRANTED SEARCH ON APRIL 29 WAS UNLAWFUL................ 136 G. FRUITS OF THE WARRANTED SEARCH ON MAY 3 MUST BE SUPPRESSED... 137 IV. CONCLUSION ........................................................ 139 TABLE OF AUTHORITIES CASES Addington v. Texas, 441 U.S. 418 (1979) ............ 94 Application of Cochran, 434 F. Supp. 1207 (D.Neb. 1977) ............ 92, 93, 95, 96, 99 Beard v. City of Northglenn, 24 F.3d. 110 (10th Cir. 1994) ............ 104,127 Berkemer v. McCarty, 468 U.S. 420 (1984) ............ 88 Brewer v. Williams, 430 U.S. 387 (1977) ............ 108 Bruing v. Pixler, 949 F.2d 352 (10th Cir. 1991), cert. denied, 504 U.S. 911 (1992) ............ 127 California v. Ciraolo, 476 U.S. 207 (1986) ............ 111 Connecticut v. Doehr, 501 U.S. 1 (1991) ............ 94 Coolidge v. New Hampshire, 403 U.S. 443 (1971) ............ 113 Culombe v. Connecticut, 367 U.S. 568 (1961) ............ 79, 86 Durbin v. United States, 221 F.2d 520 (D.C. Cir. 1954) ............ 126 Fernandez v. Rodriguez, 761 F.2d 558 (10th Cir. 1985) ............ 86 Florida v. Bostick, 501 U.S., 429 (1991) ............ 122 Florida v. Jimeno, 500 U.S. 248 (1991) ............ 133,135 Florida v. Royer, 460 U.S. 491 (1983) ............ 122,123,133 Franks v. Delaware, 438 U.S. 154 (1978) ............ 103,104,126,127,129,136 Frazier v. Cupp, 394 U.S. 731 (1969) ............ 79 Goldberg v. Kelly, 397 U.S. 254 (1970) ............ 94, 96 Grades v. Boles, 398 F.2d 409 (4th Cir. 1968) ............ 80 Harvey v. Shillinger, 76 F.3d. 1528 (10th Cir. 1996) ............ 86 Haynes v. Washington, 373 U.S. 503 (1963) ............ 79 Houston v. Humboldt County, 561 F. Supp. 1124 (D.Nev. 1983), affd sub nom., Houston v. Bryan, 725 F.2d 516 (9th Cir. 1984) ............ 97 Hutto v. Ross, 429 U.S. 28 (1976) ............ 78 I.N.S. v. Delgado, 466 U.S. 210 (1984) ............ 122 In re Bacon v. United States, 449 F.2d 933 (9th Cir. 1971) ............ 91, 93,101,102 In re Class Action Application for Habeas Corpus on Behalf of all Material Witnesses in the Western District of Texas, 612 F. Supp. 940 (W.D.Tex. 1985) ............ 94, 95, 99 In re Melvin, 546 F.2d 1 (1st Cir. 1976) ............ 126 Lanier v. South Carolina, 474 U.S. 25 (1985) ............ 101 Lego v. Twomey, 404 U.S. 477 (1972) ............ 79 Leyra v. Denno, 347 U.S. 556 (1954) ............ 79 Los Angeles Police Protective League v. Gates, 907 F.2d 879 (9th Cir. 1990) ............ 112 Mallory v. United States, 354 U.S. 449 (1957) ............ 97 Mathews v. Eldridge, 424 U.S. 319 (1976) ............ 94, 95 McDonald v. Lucas, 677 F.2d 518 (5th Cir. 1982) ............ 89 McNabb v. United States, 318 U.S. 332 (1943) ............ 97 Miller v. Fenton, 796 F.2d 598 (3d Cir.), cert. denied, 479 U.S. 989 (1986) ............ 78 Miranda v. Arizona, 384 U.S. 436 (1966) ............ 78, 82, 84, 85, 86, 87, 88, 89, 91, 95,101,105,106,108,109 Moran v. Burbine, 475 U.S. 412 (1986) ............ 84, 85, 87,100 Nix v. Williams, 467 U.S. 431 (1984) ............ 130,131 North Carolina v. Butler, 441 U.S. 369 (1979) ............ 87, 90 Olmstead v. United States, 277 U.S. 438 (1928) ............ 75 Oregon v. Bradshaw, 462 U.S. 1039 (1983) ............ 107 Parkhurst v. Trapp, 77 F.3d. 707 (3rd. Cir. 1996) ............ 116 Rhode Island v. Innis, 446 U.S. 291 (1980) ............ 106,108 Schneckloth v. Bustamente, 412 U.S. 218 (1973) ............ 118 Stone v. Holzberger, 807 F. Supp. 1325 (S.D.Ohio 1992), affd, 23 F.3d. 408 (6th Cir. 1994) ............ 97 Tague v. Louisiana, 444 U.S. 469 (1980) ............ 87 Taylor v. Alabama, 457 U.S. 687 (1982) ............ 101,104 United States ex rel. Glinton v. Denno, 309 F.2d 543 (2d Cir. 1962), cert. denied, 372 U.S. 938 (1963) ............ 97 United States v. Abcasis, 785 F. Supp. 1113 (E.D.N.Y. 1992) ............ 113 United States v. Al-Azzawy, 784 F.2d 890 (9th Cir. 1985), cert. denied, 476 U.S. 1144 (1986) ............ 117 United States v. Amos, 984 F.2d 1067 (10th Cir. 1993) ............ 79, 90 United States v. Aquino, 836 F.2d 1268 (10th Cir. 1988) ............ 114 United States v. Austin, 933 F.2d 833 (10th Cir. 1991) ............ 90 United States v. Brandon, 847 F.2d 625 (10th Cir.), cert. denied, 488 U.S. 973 (1988) ............ 133 United States v. Cabassa, 62 F.3d. 470 (2d Cir. 1995) ............ 130,131 United States v. Coldwell, 496 F. Supp. 305 (E.D. Okla. 1979) ............ 102 United States v. Cuaron, 700 F.2d 582 (10th Cir. 1983) ............ 114 United States v. Curzi, 867 F.2d 36 (1st Cir. 1989) ............ 115 United States v. Cusumano, 83 F.3d. 1247 (10th Cir. 1996) ............ 137 United States v. Dunn, 480 U.S. 294 (1987) ............ 111 United States v. Duvall, 537 F.2d 15 (2d Cir.), cert. denied, 426 U.S. 950 (1976) ............ 100 United States v. Echegoyen, 799 F.2d 1271 (9th Cir. 1986) ............ 116 United States v. Erekson, 70 F.3d. 1153 (10th Cir. 1995) ............ 79, 80, 81 United States v. Fernandez, 18 F.3d. 874 (10th Cir. 1994) ............ 124 United States v. Fouche, 776 F.2d 1398 (9th Cir. 1985) ............ 109,110,111 United States v. Gay, 774 F.2d 368 (10th Cir. 1985) ............ 113 United States v. Goldstein, 611 F. Supp. 626 (N.D.Ill. 1985) ............ 80 United States v. Gonzalez, 763 F.2d 1127 (10th Cir. 1985) ............ 125 United States v. Gregory, 79 F.3d. 973 (10th Cir. 1996) ............ 124 United States v. Heldt, 745 F.2d 1275 (9th Cir. 1984) ............ 89 United States v. Hopkins, 433 F.2d 1041 (5th Cir. 1970), cert. denied, 401 U.S. 1013 (1971) ............ 105 United States v. Ibarra, 955 F.2d 1405 (10th Cir. 1992) ............ 130,131,135 United States v. Iribe, 11 F.3d. 1553 (10th Cir. 1993) ............ 118 United States v. Leon, 468 U.S. 897 (1985) ............ 103 United States v. Lindsey, 877 F.2d 777 (9th Cir. 1989) ............ 116 United States v. Little, 60 F.3d. 708 (10th Cir. 1995) ............ 123 United States v. Maez, 872 F.2d 1444 (10th Cir. 1989) ............ 119,123,124 United States v. Manuel, 992 F.2d 272 (10th Cir. 1993) ............ 117 United States v. Martinez, 949 F.2d 1117 (11th Cir. 1992) ............ 112 United States v. Melendez-Garcia, 28 F.3d. 1046 (10th Cir. 1994), quoting Wong Sun, 371 U.S. at 486 ............ 124 United States v. Mendenhall, 446 U.S. 544 (1980) ............ 118,122 United States v. Okwumabua, 828 F.2d 950 (2d Cir. 1987), cert. denied, 484 U.S. 1063 (1988) ............ 81 United States v. Peralta, 941 F.2d 1003 (9th Cir. 1991), cert. denied, 503 U.S. 940 (1992) ............ 121 United States v. Pinto, 671 F. Supp. 41 (D.Me. 1987) ............ 80 United States v. Price, 925 F.2d 1268 (10th Cir. 1991) ............ 133 United States v. Recalde, 761 F.2d 1448 (10th Cir. 1985) ............ 117,118,122,125 United States v. Ross, 456 U.S. 798 (1982) ............ 132 United States v. Sarkissian, 841 F.2d 959 (9th Cir. 1988) ............ 116 United States v. Suarez, 902 F.2d 1466 (9th Cir. 1990) ............ 116 United States v. Swepston, 987 F.2d 1510 (10th Cir. 1993) ............ 112 United States v. Warner, 843 F.2d 401 (9th Cir. 1988) ............ 114 United States v. Werking, 915 F.2d 1404 (10th Cir. 1990) ............ 123 United States v. Whitten, 706 F.2d 1000 (9th Cir. 1983), cert. denied, 465 U.S. 1100 (1984) ............ 114 United States v. Wilbon, 911 F. Supp. 1420 (D.N.M. 1995) ............ 98 Warden v. Hayden, 387 U.S. 294 (1967) ............ 113 Welsh v. Wisconsin, 466 U.S. 740 (1984) ............ 113 White by Swafford v. Gerbitz, 892 F.2d 457 (6th Cir. 1989) ............ 93 Whren v. United States, 116 S. Ct. 1769 (1996) ............ 134 Wyrick v. Fields, 459 U.S. 42 (1982) ............ 106 STATUTES U.C.C. 1-207 ............ 51, 52, 55, 56, 57, 58 18 U.S.C. s401(3) ............ 100 18 U.S.C. s 1512(b) ............ 100 18 U.S.C. s 3006A(a)(1)(G) ............ 99 18 U.S.C. s 3144 ............ 91, 92, 93, 96, 99 18 U.S.C. s 3501(c) ............ 98 MISCELLANEOUS Guide to Judiciary Policies and Procedures, Vol. VII (Appointment of Counsel in Criminal cases) ............ 84 Stacy Studnicki, Material Witness Detention: Justice Served or Denied?, 40 Wayne L. Rev. 1533 (1994) ............ 91 R. LaFave & Jerold H. Israel, Criminal Procedure ............ 107,118 I. PRELIMINARY STATEMENT. *2 In the original Nichols Motion to Suppress, filed May 20, 1996, Mr. Nichols sought to suppress evidence from and therefore made reference to every search made or statement procured by the Government during the course of its investigation against Mr. Nichols. See Motion to Suppress, describing 21 searches the evidence from which Mr. Nichols sought to suppress evidence. Prior to the suppression hearing, the Government filed a "Search History" table, attached hereto as Exhibit 1. In its "Search History," the government delineated via dark shading those five searches among the many challenged by Mr. Nichols from which the government would seek to introduce evidence at trial. See Attachment 1 (Legend in lower left hand corner). The evidence presented during the course of the suppression hearing spanned far more than the few searches from which the government seeks to introduce evidence. The breadth of the hearing was necessary in order to paint a full picture of the totality of the circumstances surrounding the searches that the government claimed were relevant, and to forestall any possibility that the government would change its position again as to which searches it would rely upon. Therefore, in reliance on the government's representations prior to the hearing, [FN1] these proposed findings of fact and conclusions of law are limited to addressing the five searches that yielded evidence on which the government now relies, as well as the unlawfully procured statements, to wit: FN1. If the government seeks to introduce evidence derived from searches that it now disclaims, we will reserve the right to object on all available grounds. End of FN. . 4/21/95 Search of Nichols Garage. . 4/22/95 Warrant search of Nichols home. . 4/23/95 Search of Nichols Home and Garage. . 4/29/95 Warrant search of Nichols home. . 5/2/95 Warrant search of Nichols home. Some of these searches rest upon multiple alleged bases. We deal with all of the claimed justifications for each search. In addition, we have uncovered evidnce since the hearing that government agents may have entered the Nichols house itself without a warrant on the evening of April21, 1995. See motion to Supplement the Record, filed July 11, 1996. When the government makes its response, we may seek to expand the bases for suppression. II. FINDINGS OF FACT [FN2] FN2. Citations to the record of the June 26-29, 1996 suppression hearing are designated by witness name and transcript page number. Example: Price p. 641; Smith p. 309. Government exhibits are denominated by the letters GX ___; Nichols exhibits are denominated by the letters DX ___. End of FN. A. THE INTERROGATION AND ARREST OF TERRY NICHOLS a. Background: the FBI zeros in on Herington 1. On April 19, 1995, at 9:02 a.m., an explosive device detonated at the Alfred P. Murrah Federal Building in Oklahoma City, Oklahoma, killing 168 people and injuring hundreds more. At 10:28 a.m., Oklahoma State Trooper Charlie Hanger arrested Timothy McVeigh in Perry, Oklahoma. For the entire day on April 19, 1995, Terry Lynn Nichols was with his wife Marife, their 22-month- old daughter, Nicole at the Nichols' family home in Herington, Kansas, and elsewhere in Herington. *3 2. There is no dispute that sometime on April 19, 1995 investigating agents found in the rubble the axle from a Ryder truck which they believed was used to contain and transport the bomb. GX 23 at 2. Using the vehicle identification number, federal agents traced the truck to Elliot's Body Shop in Junction City, Kansas. Based on interviews with employees of Elliot's Body Shop, agents determined that the truck had been rented to an individual who had presented a South Dakota driver's license bearing the name Robert Kling. Kling had informed the people at Elliot's that he wanted the truck to move goods. 3. Further investigation by federal agents, including Army CID agents, showed that Timothy McVeigh had registered at the Dreamland Motel in Junction City; and that the person in McVeigh's room had ordered food from a local restaurant using the name Robert Kling. On the registration slip at the Dreamland, McVeigh had used the Decker, Michigan address of the James Nichols farm. Joplin p. 143; Crabtree p. 427. 4. The Decker farm address had also been used on McVeigh's booking slip in Perry, Oklahoma. Crabtree p. 428. At approximately 11:30 p.m. (E.D.T.) on April 20, FBI agents contacted Detective David Hall of the Sanilac County Sheriff's Department in Michigan, looking for information about the Decker address. Leeds p. 164. Hall identified the address as a farm belonging to James Nichols; Hall further informed agents that McVeigh had stayed at the Decker farm with James and his brother Terry. Hall also informed the agents that he had at one time investigated the Nichols' farm based on a complaint that the residents of the farm were experimenting with small-scale explosives of the sort commonly used by farmers. Leeds pp. 164-65. 5. Hall's investigation of the Decker farm was based on information from Kelly Langenburg, James Nichols' ex-wife. Leeds pp. 164, 167. Following up on this lead, agents requested that Hall arrange a meeting with Langenburg early in the morning of April 21, and Hall complied with this request. Leeds p. 165. The FBI interview of Langenburg took place at approximately 9:00 a.m. (E.D.T.) on April 21. Leeds p. 165. 6. Based on the information they obtained during interview with Langenburg, FBI agents decided to seek a warrant to search the Decker farm. Leeds p. 166. Hall accompanied agents out to the farm to get a physical description of the property, and then waited until the search warrant was issued. Leeds p. 166. By noon on April 21, 150-200 FBI agents had converged in the Decker, Michigan area, and had surrounded James Nichols' farm in anticipation of the forthcoming search warrant. Chornyak p. 72; Leeds p. 167. Agents in Michigan obtained a warrant to search the Decker farm at 3:37 p.m. (E.S.T.). GX 27. 7. In addition to the information from Langenburg in Michigan, the FBI was also gathering information from Lana Padilla, Langenburg's sister and Terry Nichols' former wife, who was living in Las Vegas, Nevada. Agents tracked Padilla down and began questioning her and Josh Nichols, the twelve-year-old son of Padilla and Terry Nichols, at an FBI office in Las Vegas. Hank Hawkins, the agent responsible for the interview in Las Vegas, relayed the information that Padilla and Josh Nichols provided to agent Chornyak in Kansas City. Chornyak p. 71. *4 8. The information included an address for Terry Nichols in Herington, Kansas. Chornyak p. 72. Agent Smith learned from Las Vegas that Terry Nichols was "a possible associate of Timothy McVeigh" sometime around 10:00 a.m. Smith p. 304. Agents in Michigan also contacted Chornyak with information at approximately 11:30 a.m. Chornyak p. 71. 9. During this time, the investigative efforts of federal officers and agents across the country were being coordinated by the Strategic Information Operations Center ["SIOC"] at FBI headquarters in Washington, D.C. Chornyak p. 70; Joplin p. 142; Bucella p. 851. All information concerning potential investigative leads was routed through SIOC, which allowed the FBI to maintain control over all the leads that were being established in various cities throughout the country. Chornyak p. 73. Howard Shapiro, the FBI's top lawyer, was at SIOC on April 21. Chornyak p. 82; Bucella p. 851. John O'Neil, another high-ranking FBI attorney, was also present at SIOC on April 21, as was Merrick Garland, a principal assistant to Deputy Attorney General Jamie Gorelick. Chornyak p. 82; Bucella p. 851. 10. On April 21, there were at least five command posts set up in various cities to handle the bombing investigation-Oklahoma City, Kansas City, Fort Riley, Las Vegas, and Detroit. Chornyak pp. 67-72, 70. The command post in Oklahoma City was staffed with numerous FBI agents, as well as with at least six government lawyers. Joplin pp. 140-41, 144. 11. Among the attorneys present at the command post in Oklahoma City were Gibbors, Joplin, Holmes, and Behenna. Joplin p. 140. Donna Bucella, "the No. 2 person in charge of overseeing the operations of all the U.S. Attorneys' offices around the country," was in the Oklahoma City command post on April 21. Bucella p. 850. Also present in Oklahoma City during the day on April 21 was Jim Reynolds, head of the Antiterrorism Division of the Department of Justice. Bucella p. 851. 12. Sometime during the morning of April 21, Agent Gibbons contacted Federal District Court Judge David Russell, of the Western District of Oklahoma at Judge Russell's home and requested that the Judge come to the command post. Gibbons p. 106. Judge Russell arrived at the command post at approximately 12:30 or 1:00 p.m. Gibbons p. 106. Magistrate Judge Howland also arrived at the Oklahoma City command post shortly thereafter. Gibbons p. 106. 13. Special Agent Tubbs had decided to establish the command post in Kansas City on the afternoon of April 20 because of the extensive investigative activity in the area, and agent David Chornyak was placed as the post's senior supervisor. Chornyak p. 71. Chornyak's job as the supervisor of the Kansas City command post was to receive communications regarding possible leads in the area, and to assign those leads to street agents for investigation. Chornyak p. 73. 14. Chornyak was in constant communication with Bureau agents in the other command posts, as well as with SIOC in D.C.. Agents in each office were kept abreast of investigative developments that were taking place in the other offices. Chornyak p. 73; Bucella p. 851. By noon on April 21, an FBI "open line" had been set up, linking all the command posts and facilitating the flow of information between cities. Chornyak p. 70. b. Terry Nichols Becomes a Target. *5 15. In the early afternoon of April 21, between 12:30 and 1:00 p.m., an FBI S.W.A.T. team was dispatched to Herington to target Terry Nichols. Chornyak p. 77; Reightler p. 587. A S.W.A.T. team is employed by the FBI in order to effectuate unusually risky arrests or searches. Reightler pp. 622-23. At some point prior to the mobilization of the S.W.A.T. team, a decision clearly had been made to arrest Terry Lynn Nichols and to search his home. This decision, like most other decisions of any import in the bombing case, was made by highly placed officials at SIOC and officials from the Department of Justice and the Office of the Attorney General. Chornyak p. 84; Joplin p. 142; Bucella p. 851. 16. At approximately 1:00 p.m., agent Foley was instructed by his supervisor, Agent Joe Bross, to go from Fort Riley to Herington. Foley p. 489. Foley arrived in Herington about an hour later. Foley p. 490. Agent Smith likewise was ordered to go to Herington in order to collect background information on Terry Nichols. Smith p. 309. Smith departed Fort Riley at 1:40 p.m. Smith p. 309. 17. Throughout the afternoon on April 21, various teams of FBI agents traveled to Herington, including investigatory agents Smith and Foley, the S.W.A.T. team, Price's surveillance team, and supervisory agents Tubbs and Watson. GX 30; Chornyak pp. 74, 77; Price pp. 640, 644, 664. Agents from other federal agencies were also deployed to the Kansas town, including Army CID agent Tom White, and an Army bomb squad. Mrs. Nichols pp. 711, 783. 18. When Smith arrived in Herington, he went to the Herington Department of Public Safety ["HDPS"] and spoke with Dale Kuhn, public safety director, and Barry Thacker, assistant director of public safety and chief of police for Herington, Kansas. Smith p. 314; Thacker p. 169; Kuhn p. 198. Smith explained to Kuhn and Thacker that he was conducting an investigation in connection with the Oklahoma City bombing, and that he was looking for information about Terry Nichols because of Mr. Nichols' association with McVeigh. Smith p. 314. Prior to departing for Herington, Smith had learned that McVeigh was going to be arrested in connection with the bombing. Smith p. 324. 19. After checking with the town's utilities records, Kuhn and Thacker were able to provide Smith with an address for Mr. Nichols at 109 South 2nd Street. Smith p. 314. Thacker also informed Smith that Mr. Nichols had been at the HDPS during the previous week, and had registered his truck with the State of Kansas. Thacker p. 170. As part of the vehicle registration process, the Herington police had conducted a routine check on the truck's vehicle identification number ["VIN"]; the check had come back clean. Thacker p. 170. 20. Smith did not give Kuhn or Thacker any instructions on what they should do if they were to encounter Mr. Nichols. Smith p. 315. After leaving the HDPS, Smith met up with Agent Foley, and they drove to the Nichols' residence together in order to conduct surveillance of the home. Smith p. 309; Foley p. 485. Smith had received orders to begin surveillance on the Nichols' home at about 2:20 p.m. Smith p. 309. *6 21. By 2:45 p.m., Foley and Smith were joined in Herington by supervisory special agent Thomas Price and his nine-member team of surveillance agents. GX 29. Watson had dispatched Price and his squad to Herington from Fort Riley at approximately 12:30 p.m. Price pp. 640-41. Price's expertise was in surveillance, and he and his team were instructed to establish a "discreet surveillance" on the Nichols' residence. Price p. 641. Price and his squad traveled to Herington in separate vehicles, including one agent in a low-flying surveillance plane. Price p. 641. 22. Soon after Smith had left the HDPS, Thacker went out to see whether he could locate Smith in order to furnish Smith with the paperwork from the VIN check that they had conducted on Mr. Nichols' truck. Thacker p. 174. Though Thacker's search for Smith was not successful, Thacker did observe some strange vehicles in the area around the Nichols' home which he believed to be FBI surveillance cars. Thacker p. 175. When Thacker returned to the HDPS, he saw Mr. Nichols' truck in the parking lot. Thacker pp. 175-76. 23. From their position outside the Nichols' house, Smith and Foley observed Terry Nichols get into his blue pickup truck with his wife and infant daughter at 2:42 p.m. and exit their driveway. GX 29; Smith p. 313. The agents followed Mr. Nichols and his family to Surplus City, a local hardware store, and watched as Mr. Nichols got out of his truck. Smith p. 313. In order to avoid Mr. Nichols' spotting their surveillance vehicle, Foley and Smith drove past Surplus City, and when they returned a few moments later, Mr. Nichols' truck was no longer there. Smith p. 313. 24. Smith conducted a brief search of Surplus City looking for Mr. Nichols, but at 2:50 p.m., he learned that Terry Nichols was at the HDPS. Smith p. 313. The details of Mr. Nichols' movements were broadcast by car radio, so agents in the Herington area were aware of Mr. Nichols' whereabouts at all times. Price pp. 643-44. While members of Price's squad continued to follow Mr. Nichols, Price met with agent Gillispie at approximately 2:50 p.m. on the outskirts of town, and Gillispie briefed Price on the situation in Herington. Price p. 645. Gillispie informed Price that Mr. Nichols had arrived at the HDPS. Price p. 646. c. Terry Nichols and family at Herington DPS. 25. Terry Nichols arrived at the Herington Department of Public Safety with his wife and infant daughter at approximately 2:50 p.m., and approached the entrance of the building. Thacker p. 173; Kuhn p. 198. Mr. Nichols was carrying his twenty-two-month old daughter, Nicole, and was accompanied by his wife, Marife. Thacker p. 173. As Mr. Nichols neared the front door, he was met by Dale Kuhn and Barry Thacker. Thacker pp. 169, 173; Kuhn p. 198. Mr. Nichols was "nervous and frightened." Kuhn p. 200. 26. Mr. Nichols told Kuhn that he was Terry Nichols and that he wanted to speak with someone to find out why his name was being broadcast on the radio and television. [FN3] Thacker p. 176. Mr. Nichols repeatedly asked why his name was on radio and television. Kuhn p. 200. Kuhn told Mr. Nichols that he had no answers for Mr. Nichols' questions, but that he would attempt to locate someone who could give Mr. Nichols some answers. Kuhn pp. 199-200. FN3. The Government may contend that there is no evidence that Terry Nichols actually heard his name being broadcast by the media. The Government has not, however, proffered any evidence to contradict Nichols' statements that he went to the Herington police station because he had heard his name on radio and television. If the Government disputes Mr. Nichols' statements, we are willing to present rebuttal evidence proving that Terry Nichols' name was all over the media on April 21, 1995 prior to the time when Nichols drove to the Herington Public Safety building. End of FN. *7 27. Kuhn invited the Nichols family into the building, and when Mr. Nichols and his family entered the front office of the police station, Kuhn asked Mr. Nichols whether he was carrying any weapons. Kuhn p. 200. Though Mr. Nichols replied that he was not armed, Kuhn asked Mr. Nichols to raise his jacket so that Kuhn could conduct a visual search for weapons. Kuhn p. 200. Mr. Nichols "more than obliged" Kuhn's request by actually taking off his jacket and laying it on the file cabinet. Kuhn p. 200. Kuhn was able to observe that Mr. Nichols had been truthful, and that he was not carrying any weapons. Kuhn p. 200. Kuhn advised Mr. Nichols that he was not under arrest, and that he was free to go. Kuhn p. 185. 28. Meanwhile, Thacker attempted to contact the FBI by telephone to inform them that Mr. Nichols was in the HDPS, but Smith had not provided Thacker or Kuhn with a number where he could be reached. Thacker p. 177. Thacker was never able to make contact with the FBI. Thacker p. 177. Eventually, Chornyak called Kuhn at the station and asked Kuhn whether he was "in any type of a crisis situation, a hostage situation, or if there was any danger." Chornyak p. 76. 29. Chornyak made this inquiry pursuant to a request from Agent Price. When Price learned from Gillispie that Mr. Nichols had gone to the Herington police station, he immediately contacted agent Bob Meredith in the Kansas City command post and asked Meredith for further instructions. Price p. 647. Meredith initially responded by warning Price that "Mr. Nichols might be wired with explosives and to be cautious," even though there had been no reports that such a situation was likely or even possible. Price p. 647. 30. As a result of Meredith's warning, Price requested that someone place a phone call to the HDPS in order to ascertain whether or not Terry Nichols had taken hostages. Price p. 647-48. Meredith then instructed Price and Gillispie to go to the police station and attempt to interview Mr. Nichols. Price p. 648. Meredith told Price that at that point they did not have an arrest warrant for Terry Nichols, and that if Mr. Nichols would not consent to an interview, they were to follow Mr. Nichols and continue their surveillance. Price p. 648-49. 31. While Price was on the phone with agents in Kansas City, Smith and Foley arrived at the HDPS. Smith p. 316. They did not, however, immediately enter the building because they too were concerned that Mr. Nichols and his family had taken hostages. Smith p. 316. Smith and Foley instead waited in the parking lot for ten minutes until Chornyak had confirmed with Kuhn that the Nichols family had not taken hostages in the building. Smith p. 316. The only specific piece of information that Smith had which led him to be concerned about a potential hostage situation was that Terry Nichols was an associate of McVeigh. Smith p. 416. 32. At approximately 3:05 p.m., Smith and Foley met with Gillispie and Price in the parking lot of the HDPS. Smith p. 349; Foley p. 496; Price p. 649. Price reviewed with Smith and Foley the fact that Mr. Nichols was to be told he was free to go, and that they did not have a warrant for Mr. Nichols' arrest. Price p. 649. After receiving word from Chornyak that their concerns about a crisis situation in the police station were unfounded, Smith, Foley, Price, and Gillispie entered the HDPS at 3:10 p.m. and identified themselves as FBI agents to Terry Nichols and his wife. Price p. 651. In the meantime, Chornyak contacted Rich Baker in the Oklahoma City command post and alerted Baker that Terry Nichols had "turned himself in." GX 28; Chornyak p. 79. *8 33. When the FBI agents introduced themselves to Mr. Nichols and his wife, Mr. Nichols asked the agents repeatedly why his name was on radio and television. Smith pp. 317-19, 333. Initially, the agents told Mr. Nichols that they did not know why his name was being broadcast by the media, even though the agents knew that Mr. Nichols' name was being broadcast in connection with the Oklahoma City bombing and because Mr. Nichols was thought by the FBI to be an associate of Tim McVeigh. Smith pp. 317-19; Foley p. 514. 34. Furthermore, the agents knew that Mr. Nichols was a key figure in their investigation -- given the FBI resources that had already been dispatched to Herington, and the concern about a hostage situation, no reasonable agent would have continued to assume that Mr. Nichols was an ordinary witness. In fact, many FBI agents had been told beginning no later than 1:30 pm that a search and an arrest warrant were to be executed in Herington. Reightler pp. 573, 577. Nevertheless, the agents told Mr. Nichols that they did not know why his name was on the radio and TV, and instead asked whether Mr. Nichols was willing to answer some questions. Smith pp. 317-19; Foley 514. 35. The agents told Mr. Nichols repeatedly during the interview with him that Mr. Nichols was not in custody, and that he was "free to go." Smith pp. 389, 394; Foley p. 499. When Mr. Nichols said he had some questions for the agents, Foley p. 496, the FBI proceeded to conduct a weapons search of not only Mr. Nichols himself, but also Mr. Nichols' wife Marife and their infant child. Kuhn pp. 204-05; Price p. 653. 36. Agents Smith and Foley then led Mr. Nichols into the basement of the police station, where they began what would become a nine-hour interrogation session. Smith p. 334. Foley presented Mr. Nichols with an "Interrogation: Advice of Rights" form. Smith p. 334. Mr. Nichols refused to sign the form because he disliked the word "interrogation" as it reminded him of the Nazis. Smith p. 334. Smith noted at the bottom of the form that Mr. Nichols refused to sign the form. GX 31; Smith p. 335. 37. At no time did Mr. Nichols affirmatively indicate to any agent that he was willing to waive any of the rights constitutionally guaranteed to him. The government maintains that Mr. Nichols expressed his willingness to waive his rights, yet this alleged agreement by Mr. Nichols is nowhere to be found in Smith's notes of the interview. GX 72. 38. When Mr. Nichols refused to sign the advice of rights form, the interrogating agents conveyed this fact to Gillispie, who in turn advised Price. Price p. 656. Price immediately contacted Chornyak in Kansas City with this information, and at that time gave Chornyak two phone numbers at which he could be reached in Herington. GX 28; Chornyak p. 80. At the request of Tubbs, Chornyak attempted to contact John O' Neil at SIOC at 3:50 p.m. GX 28; Chornyak p. 82. Chornyak was instead referred to Shapiro, and Chornyak relayed to Shapiro that Mr. Nichols was willing to talk to agents, but that Mr. Nichols did not have counsel, and that Mr. Nichols had refused to sign anything. Chornyak p. 83. *9 39. Shapiro directed the agents to get Mr. Nichols to agree orally to talk with the FBI, but reminded them that Mr. Nichols was not in custody and that Mr. Nichols was "free to go." GX 28; Chornyak p. 84. During this conversation, Shapiro advised Chornyak that they were in the process of obtaining a material witness arrest warrant for Mr. Nichols, and that if Mr. Nichols decided to leave the station, the agents should follow him until the warrant was ready. GX 28; Chornyak pp. 85-86. 40. While all the agents testified that Mr. Nichols' demeanor was calm up until the final moments of his interrogation, Mr. Nichols indicated by his statements that he was alarmed and apprehensive. Mr. Nichols told the agents that he did not want another "Waco." Smith p. 322. Given what the general public knew at that time about FBI tactics and the loss of innocent lives at both Waco and Ruby Ridge, it was not unreasonable for Mr. Nichols to have been gravely concerned about his safety and the safety of his wife and infant daughter. Nor were Mr. Nichols' fears in this case unwarranted. The FBI had in fact already surrounded his home by the time Mr. Nichols drove to the HDPS, and a fully armed S.W.A.T. team was on its way. 41. The FBI's repeated assurances that Mr. Nichols was "free to leave the Herington police station" were false. Smith pp. 321, 329; Foley p. 499. By 3:20 p.m., only minutes after the interrogation of Mr. Nichols began, security was established around the Nichols' home and security of the Nichols' truck had been initiated. GX 29; Smith p. 376. Security of these two locations had been established pursuant to orders from Price, who instructed his agents "to maintain visual observation" of Mr. Nichols' house and truck, and "not to let people into" or "have access" to them. Price p. 658. 42. After security was initiated, even FBI agent Sheila Dobson was forbidden to enter the truck to get diapers for Nicole Nichols. Mrs. Nichols p. 715-16; Dobson p. 989. The agents responsible for maintaining security of the Nichols' residence and truck would not have permitted Mr. Nichols or anyone else to get in the truck or walk through the front door of the house. Reightler p. 585. 43. Agents had performed the weapons search and Miranda admonitions despite the fact that it is not standard FBI practice either to conduct a weapons search or Mirandize a person who is not in FBI custody. Smith p. 411. This further evidences the fact that the agents deliberately misled Mr. Nichols when they told him that they did not know why his name was being broadcast, and when they told him that he was "free to go." d. The Material Witness Arrest Warrant 44. While agents in Herington were busy securing the Nichols' residence and truck, and interrogating both Mr. Nichols and his wife, Marife, agents and attorneys in Oklahoma City were scurrying to obtain a warrant for the arrest of Mr. Nichols as a material witness. The warrant, which was obtained in part by falsely asserting to Judge Russell that Mr. Nichols was attempting to flee the jurisdiction of the United Stats and that Mr. Nichols' appearance could not be guaranteed by a subpoena, was sought by the government notwithstanding the fact that agents in the various command posts were aware that Mr. Nichols had gone voluntarily to the Herington police station. GX 28; Chornyak pp. 79-82, 87. *10 45. The FBI's highest-ranking attorney, Howard Shapiro, along with other senior government attorneys in Washington, learned almost immediately that Mr. Nichols had shown up at the Herington police station. Chornyak pp. 79- 82. 46. In addition, deputy Attorney General Jamie Gorelick was kept abreast of developments in the case through her principal associate, Merrick Garland. Bucella p. 850. Garland was present at SIOC on April 21, and was in regular contact with Bucella in Oklahoma City. Bucella p. 850. Gorelick herself contacted Randall Rathbun, then-United States Attorney for the District of Kansas, at approximately 3:30 p.m. with instructions for Rathbun to make sure that a federal judge was available in Kansas throughout the weekend. Rathbun pp. 258-59. 47. Rathbun complied with Gorelick's request by contacting Judge Belot, who agreed to be on hand for the entire weekend. Rathbun p. 259. Rathbun had Judge Belot's home phone number, and could call him at any time. Rathbun p. 259. 48. By the time the attorneys and FBI agents in Oklahoma City started the application process for a material witness, the command post was fully staffed with several attorneys, numerous government agents from across the country, and two federal judges -- a virtual warrant mill. Gibbons pp. 106-07; Joplin pp. 140-41. Altogether, six warrants were sought and obtained in the Oklahoma City command post on April 21, 1995. GX 20; GX 21; GX 22; GX 23; GX 24; GX 25. 49. Gibbons was the affiant on all the warrant applications, including the warrant for the arrest of Terry Lynn Nichols as a material witness. GX 22; Gibbons p. 105. Most of the information Gibbons received for Mr. Nichols' arrest warrant application was screened by the decisionmakers in Washington since all the information concerning Mr. Nichols from other offices flowed into the Oklahoma City command post via FBI headquarters in D.C. Gibbons pp. 105, 119-20, 137. 50. Gibbons was advised that he should draft an affidavit for a material witness arrest warrant at approximately 4:00 p.m. -- over one hour after Mr. Nichols had walked through the front door of the Herington police station. Gibbons pp. 119-22. Paperwork on the warrant was prepared by Jim Reynolds in Oklahoma City, with the assistance of SIOC. Joplin p. 144. 51. Evidencing the true intent of the government with respect to Mr. Nichols, the first warrant presented to and signed by Judge Russell bore the caption "United States v. Terry Lynn Nichols" and was entitled "Warrant for Arrest." GX 26. No one noticed that the caption was in error. Gibbons pp. 110-11; Joplin pp. 146-47. It was not until after Judge Russell himself penned in a correction to the warrant, and then still later when the warrant was signed and sent out, that the mistake was caught. GX 26; Joplin p. 144-46. 52. When the government discovered the mistake, which everyone recognized as significant, Judge Russell suggested that the incorrect version of the warrant be shredded if it had not yet been distributed, and that an accurate warrant be substituted. Joplin p. 155. Even with Judge Russell's admonition to make sure that the incorrect version had not already been sent out before shredding it, the government created a corrected version of the warrant notwithstanding the fact that the first version had already been faxed to agents in Kansas. Chornyak p. 92. *11 53. Though Gibbons learned that Mr. Nichols was at the Herington police station at the time he was preparing the material witness arrest warrant affidavit, Gibbons failed to inform Judge Russell of this fact when he swore to the Judge that he believed that Mr. Nichols' testimony could not be secured by a subpoena. Gibbons p. 122. Additionally, the face of both the original warrant and the substitute averred that Mr. Nichols had "attempted to leave the jurisdiction of the United States," an assertion that top level government officials knew to be false. Gibbons p. 116. 54. As soon as Judge Russell had signed the first, incorrect, version of the material witness arrest warrant, Bear Bryant, the assistant director of the FBI's intelligence division in D.C., called Chornyak to alert him that the warrant had been signed and that the warrant would be faxed to Kansas City. GX 28; Chornyak p. 88. Bryant's call to Chornyak occurred at 4:25 p.m., and Chornyak immediately called Price in Herington to relay the message. GX 28; Chornyak p. 89. 55. Chornyak advised Price that he would fax the warrant to the Herington police station as soon as it was ready. Chornyak p. 89. Price was being made aware of Mr. Nichols' statements through periodic contact with the interviewing agents. Chornyak p. 89. Price subsequently informed agent Gillispie that they would soon receive a copy of the arrest warrant for Mr. Nichols. Price p. 660. 56. After his talk with Price, Chornyak received a call from Rich Baker in Oklahoma City confirming that the warrant would be faxed to Kansas City as soon as it was ready, and that Chornyak should make sure that the warrant was then faxed "to the appropriate people." GX 28; Chornyak p. 90. In addition to the calls from Bryant and Baker, Chornyak received word from agent Lipka at SIOC that SIOC would also fax a copy of the warrant to Chornyak. Chornyak p. 91. Within half an hour, three different agents had contacted Chornyak to alert him that they would get a copy of the warrant faxed to him as soon as possible. 57. It was considered important that a warrant for the arrest of Terry Nichols had been issued, and steps were taken to ensure that the warrant made its way into the hands of the people who were dealing with Mr. Nichols. Chornyak pp. 90-91. 58. The Oklahoma City command post faxed the warrant to Chornyak at 4:42 p.m., and by 5:05 p.m. Chornyak had faxed a copy of the warrant to Joe Bross, a supervising agent who was then at Fort Riley, and who subsequently traveled to Herington. Chornyak pp. 90-91. Chornyak had also faxed a copy to Price at the Herington police station. Chornyak p. 93. 59. At about this time, supervising agents Tubbs and Watson had arrived in Herington from Fort Riley. Price pp. 664-65. Thus, by shortly after 5:00 p.m. on April 21, the fact that there was a warrant for the arrest of Mr. Nichols as a material witness had been conveyed to FBI headquarters in Washington, as well as to the agents with primary supervisory roles in Kansas. Notwithstanding the fact that Rathbun had ensured the availability of Judge Belot, the agents did not execute the arrest warrant and present Mr. Nichols to the Court. Rathbun p. 259. *12 60. Rathbun arrived at Fort Riley at about the same time that the warrant was being faxed. Rathbun p. 261. Gorelick had instructed Rathbun to contact the Fort Riley command post in order to begin preparing a warrant application for the search of Mr. Nichols' home. Rathbun p. 263. 61. Rathbun did not learn that there was a material witness arrest warrant for Mr. Nichols until 10:30 p.m., even though Bross had briefed Rathbun on the details of their investigation at approximately 5:30 or 6:00 p.m., Rathbun p. 261, at least an hour after Bross heard that the warrant had been issued. Chornyak pp. 90-91; GX 28 at 8. Rathbun went from Fort Riley to the Herington police station at approximately 8:45 p.m. Rathbun p. 264. 62. Price testified that he failed to inform the interrogating agents that a warrant had been issued because he did not believe the warrant's issuance was an important enough reason to interrupt Mr. Nichols' interrogation. Price pp. 696-97. Yet such an interruption was not even necessary -- according to the interrogation log, Foley and Jablonski exited the interrogation room minutes before 5:00 p.m., and did not return to the basement until after 6:00 p.m. GX 30. 63. Furthermore, the reason the agents had exited the interview room at this time was because Mr. Nichols had just signed a consent to search his truck and home. GX 30. The interrogating agents had already established a pattern of communicating the substance of their interview with Mr. Nichols to their superior officers in the Herington police station. Smith p. 362. 64. At some point early on in the afternoon, a decision was made not to inform Smith, Foley, Crabtree, and Jablonski, the agents charged with interrogating Mr. Nichols, that there was a warrant which required them to bring Mr. Nichols "forthwith" to testify in front of the grand jury. By keeping the interviewing agents in the dark about the warrant, those who were in control of the investigation, in Washington and in Kansas, made sure that Mr. Nichols would not learn, even accidentally, that he was going to be arrested, nor of the rights that he would have as a material witness, that is, the FBI deliberately withheld from Mr. Nichols the information he had been seeking with his questions about about why his name was on radio and TV -- the answer to those questions was that the FBI had decided to get him into its custody. e. Interrogation of Terry Nichols 65. As the material witness arrest warrant made its way to the Herington police department, Smith, Foley, Crabtree, and Jablonski proceeded with their interrogation of Mr. Nichols. At the outset of the interview, Mr. Nichols asked whether he could get a copy of the notes which Smith was taking in order to make sure that the notes were accurate. Smith p. 336; Crabtree p. 459. Smith replied that Mr. Nichols would get a copy of the notes. Smith p. 336; Crabtree p. 459. 66. The government contends that Smith's assurances to Mr. Nichols that he would get a copy of the notes were truthful because Mr. Nichols did eventually obtain a copy of Smith's notes. Smith p. 394. However, there was no FBI regulation that would have permitted Mr. Nichols to have access to the notes except through the discovery process in a criminal case. When Smith promised Mr. Nichols that he could have a copy of the notes, Smith did not intend that he personally would give the notes to Mr. Nichols, and Smith was well aware of the fact that the only way Mr. Nichols was going to get a copy of the interview notes, and the only way Mr. Nichols did get a copy of the notes, was if Terry Nichols was the defendant in a criminal action. Smith pp. 337-38. *13 67. Smith nevertheless deliberately failed to tell Mr. Nichols that when he said Mr. Nichols could get the notes, he meant Mr. Nichols could get the notes when Mr. Nichols was a defendant in the case. Smith p. 395. If Smith had been forthright about his promise, Mr. Nichols would not have been under the false impression that he would have a chance to review the FBI's notes. Foley pp. 529-30. But Smith did not clarify his promise, and willfully misled Mr. Nichols in order to keep Mr. Nichols talking. Smith pp. 336-38. 68. At 4:34 p.m., Mr. Nichols signed a consent to search form for his truck and his house, but only after he made clear to the interrogating agents that he wanted either his wife or himself to be present during the search, and after the interrogating agents told Mr. Nichols that it was possible to accommodate this request. Smith pp. 351-52; Foley p. 503. Later in the interview, Smith reconfirmed with Mr. Nichols that Mrs. Nichols' presence during the search would satisfy the condition of his initial consent. Smith p. 398. Either Mr. or Mrs. Nichols' presence during the search was an express condition of the consent, and this condition was understood by the interrogating agents. Smith p. 398; Foley p. 503. 69. At 4:53 p.m., Foley and Jablonski exited the interview room with Mr. Nichols' consent to search in hand, and reported the substance of their interview to Watson, one of the supervising agents present in the police station. GX 30; Foley p. 492. Working in pairs, the four agents continued to interrogate Mr. Nichols for nine hours. GX 30. Throughout the evening, the interrogating agents received information for use in their questioning from various sources, including information which Mrs. Nichols was supplying in her interview, and information which Lana Padilla was providing to the FBI in Las Vegas. 70. Another critical piece of information that was never relayed to Mr. Nichols was that David Phillips, the Federal Public Defender for the District of Kansas, was attempting to contact Mr. Nichols. Price pp. 673-74. Phillips had heard through media reports that Mr. Nichols was at the Herington police station. Phillips p. 289. 71. Phillips recognized the gravity of Mr. Nichols' situation and knew it was important that Mr. Nichols receive the assistance of counsel. Phillips p. 289. Phillips' concerns were shared by other public defenders across the country, who contacted Phillips on April 21, knowing that Mr. Nichols was at that time within the jurisdiction of Phillips' office. One defender with whom Phillips spoke was a specialist in death penalty cases, and was responsible for assisting the Administrative Office of the United States Courts in locating counsel for persons charged with capital crimes. Phillips pp. 290-91. Phillips knew, as did the FBI agents and the general public, that Attorney General Janet Reno had already stated the government's intention to seek the death penalty in this case. Phillips p. 289; Smith p. 348; Crabtree p. 485. *14 72. When Phillips first called the Herington police station on the evening of April 21, he asked to speak with the chief of police. Phillips p. 291. When he was told that no one was available to speak with him, Phillips left a message explaining that he was the federal public defender, and that he was available to represent Mr. Nichols. Phillips p. 292. Kuhn received the message that Phillips had called, and passed a message on to Price that a defense attorney had called for Mr. Nichols. Price p. 673. Price did not return Phillips' call. Price p. 673. 73. Unsuccessful in his efforts to make contact with anyone in Herington, at 9:10 p.m. Phillips called Jim Flory, an assistant United States Attorney in Kansas, to inquire about Mr. Nichols' status. Phillips p. 292. Flory falsely told Phillips that Mr. Nichols was not being arrested at that point. Phillips pp. 292-93. Flory also failed to inform Phillips that a warrant had been issued for Mr. Nichols' arrest, and that Mr. Nichols' home had been secured by the FBI. Phillips p. 293. 74. Later in the evening, Phillips placed another call to the Herington police station. Phillips p. 294. Phillips left a second message explaining that he was the federal public defender and that he was calling in reference to Terry Nichols. Phillips p. 294. 75. During one of the breaks in questioning, Foley asked Mr. Nichols whether he would, for the safety of the searching agents, make a sketch of his home indicating where ammunition and firearms were located. Foley p. 506. Mr. Nichols drew a diagram of his house, clearly labeling those areas in his house and garage where weapons were stored. GX 33. 76. At 10:21, when the interviewing agents assertedly learned for the first time that a material witness warrant had been issued, the agents did not inform Mr. Nichols of what they had learned. Smith p. 345. The agents decided not to tell Mr. Nichols about the warrant because they wanted to continue questioning him. Smith pp. 345-46. The agents did not think it was important for Mr. Nichols to know that there was a warrant for his arrest as a material witness. Jablonski p. 535. 77. Jablonski reasoned that the agents' obligations under the material witness warrant were no different than what their obligations would be under a warrant for the arrest of a bank robbery suspect. Jablonski pp. 536, 557. 78. Sometime after 10:51 p.m., the interrogating agents played a message from Nichols' former wife and his son, which had been tape recorded by the FBI in Las Vegas. Crabtree p. 453. In the taped message, Nichols' son Josh, at the urging of the FBI, pleaded with his father to cooperate with the FBI. Crabtree p. 454. 79. At 12:11 a.m., after Mr. Nichols had been subjected to nine hours of questioning, agents Foley and Jablonski, on instructions from their supervising agent Tubbs, adopted an aggressive, confrontational approach to their interrogation. Foley p. 511; Jablonski p. 535. They raised their voices and accused Mr. Nichols of lying. Foley p. 544. Prior to that, the agents did not want to do anything to disturb or rattle Mr. Nichols. Jablonski p. 558. By midnight, however, it was apparent that the agents were running out of time, and that this would be the last time the agents would get to question Mr. Nichols before his initial appearance in front of a federal judge and before counsel was appointed to represent Mr. Nichols. Foley p. 511. *15 80. When Mr. Nichols refused to change his story, the agents finally informed him that he was under arrest. GX 30. They presented Mr. Nichols with another Advice of Rights form, which Mr. Nichols again refused to sign, and the interview ended at 12:28 a.m. GX 30. Mr. Nichols was taken to the Dickinson County Jail in Abilene, Kansas. GX 30. B. POST ARREST TREATMENT AND UNLAWFULLY PROCURED STATEMENTS 81. At 2 p.m. on the April 22nd, agents Crabtree and Smith drove Mr. Nichols from Abilene to Wichita, Kansas for his initial appearance before a judge. Smith pp. 356, 358; Crabtree p. 472. These agents knew that once Mr. Nichols appeared for his initial appearance in court, counsel would be appointed for him. Smith p. 357. 82. During the drive to Wichita, Mr. Nichols asked Smith and Crabtree whether the FBI had searched his home. Smith pp. 357-58. The agents falsely responded in the negative and next initiated conversation on the subject of "booby traps." Smith pp. 358, 359; Crabtree p. 475, 485. Crabtree appealed to Mr. Nichols as a right-thinking person sharing a concern about "booby traps" and the lives of people entering the house. Crabtree pp. 485-86. After the discussion about booby traps that might potentially be harmful to searching agents, the questioning continued on the way to Wichita. Smith p. 360. 83. On arrival at the Federal Building in Wichita, federal marshals met the vehicle as it arrived and took Mr. Nichols into the Courthouse. Crabtree p. 476. Agents Smith and Crabtree then told one of the deputy marshals that he should inform Mr. Nichols that the FBI agents were prepared to continue the questioning. Crabtree p. 477; Ingermanson p. 960 ("The FBI agents ... made the statement that Mr. Nichols may still want to speak with him."). The deputy returned and told the agents to go to the hallway so that they could be escorted to Mr. Nichols' holding cell. Crabtree p. 477. The two agents were locked in the cell block with Mr. Nichols and the deputies departed. Ingermanson p. 962. Once Smith and Crabtree arrived at the holding cell, the dialogue with Mr. Nichols continued. Crabtree p. 477. 84. The conversation continued for the next thirty minutes until 4:00 p.m. when Mr. Nichols' court appointed counsel arrived and told deputy Ingermanson that they wished to speak to their client prior to the hearing. Ingermanson p. 862. 85. During and after the drive to Wichita, Mr. Nichols was tired and in a highly confused state. The previous day, Mr. Nichols had experienced a nine- hour interrogation by teams of FBI agents, culminating with agents getting "confrontational" with him and arresting him. Mr. Nichols had been separated from his wife and daughter and had spent the night in the Dickinson County jail, the level of comfort of which can in no way be related to even a bargain basement hotel. Ingermanson p. 967. 86. At the hearing which began at 4:55 p.m. on the 22nd, Mr. Nichols' disorientation is obvious from the transcript. As Mr. Nichols stated to Judge Belot, "It's all in a jumble in my brain right now." GX 35 p. 3. Mr. Nichols' counsel confirmed Mr. Nichols' own assessment of his mental state, "I believe that he's probably a little bit confused and a little bit shaken right now." GX p. 3. C. WARRANTLESS SEARCH OF NICHOLS HOME AND GARAGE *16 87. At 1:30 p.m. on April 21, 1995 Agent Reightler had been dispatched to Fort Riley, Kansas, from Wichita as part of a ten to fifteen member S.W.A.T. team. Reightler p. 576. He understood that his mission might involve conducting an arrest or search warrant involving Terry Lynn Nichols. Reightler p. 577. The disbanding of the S.W.A.T. team at Ft. Riley, once it was learned that Mr. Nichols had voluntarily appeared at the HDPS, Reightler p. 526, indicates that the FBI no longer considered the situation in Herington, Kansas to be a "high risk" situation. 88. Intermittent surveillance of the Nichols home began at approximately 2:40 p.m. on the afternoon of April 21, 1995. GX 29 at 1. [FN4] The FBI surveillance log indicates that the house was under continuous surveillance as of 3:20 p.m. GX 29 at 2. By 4:20 p.m., Agents Lindsey, Barger and Maxwell were watching the home and were in the process of putting up police security tape. GX 29 at 2. FN4. Agent Smith testified that he left the Herington Police Department at about 2:15 p.m. with the proper address for Mr. Nichols. Smith p. 309; Foley p. 485. He met with Agent Foley at approximately 2:30 outside 109 South Second St. Smith p. 309. Assistant Deputy Thacker drove past the home around 3 p.m. looking for Agent Smith and observed what he believed to be FBI cars in front of the home. Thacker p. 175. End of FN. 89. Agent Reightler appeared at the Herington Police Station at approximately 5:30 p.m., where he received instructions to secure Mr. Nichols' home. Reightler p. 581. At least eight to ten local police and FBI Agents were to assist him in this assignment. Reightler p. 581. When Agent Reightler arrived at the house at about 5:45 p.m., numerous agents and local police had the house surrounded, no one had entered or exited the home since 2:50 p.m. that afternoon, and police security tape was already in place. Reightler p. 582. 90. Reightler was made aware when he got to the residence that surveillance had been continuous, and that no one had gone into the residence, during the three hours prior to his arrival. Reightler p. 605. 91. By 6 p.m., no one could have entered the premises without FBI permission. Reightler p. 586. Nothing had happened inside the home to cause a suspicion that any agent or the public safety was in danger. In fact, at 6:30 p.m. FBI agents including Reightler had been freely walking across the property, "in order to look around and acquaint [themselves] with the property." Reightler p. 610. 92. The garage is within fifteen feet of the Nichols home. GX 12. It is attached via a short concrete walk from the back door, and it falls within the wire fence perimeter surrounding the home. Reightler p. 608; GX 10; GX 11; GX 12; GX 13. The windows of the garage are covered with shades similar to the window shades of the home. DX W58; DX W59. 93. After darkness had fallen, and two and a half hours after his initial arrival at the scene, Reightler chose to peer through a garage window with his flashlight, because no one else had. DX B2 at 1; Reightler p. 613. As Reightler acknowledged on the stand, *17 there was nothing specifically about the garage, no movement, no sound, nothing specifically about the garage that raised any alarm in [his] mind that had developed between the time [he] arrived on the property at 3:20 and the time he looked into the window. Reightler p. 613. 94. The Court finds that this initial entry onto the Nichols property was not made because of any immediate fear to the safety of the agents or the public. This conclusion may be inferred from the following facts: Agent Reightler's entry onto the premises was motivated not by any pressing safety concern, but by his mistaken belief that the property owners had consented to have the property searched. Reightler p. 611. Indeed, Reightler wrote in his 302 report that it was because of safety concerns that the agents did not conduct a full consent search on the evening of April 21. DX B2. Warrant affidavits describing Reightler's entry onto the property provide additional evidence that he conducted his search, not because of some pressing and exigent circumstance, but because he believed that the FBI had procured the owners' consent: While Nichols was being interviewed, he gave consent for agents to search his residence and pickup. Due to imminent darkness and safety concerns, the agents elected not to search the house at that point. However agents did go to the property and observed four fifty-five gallon drums in Nichol's [sic] garage. GX 19 at 10-11 p19; see also GX 76 at 10 p16. Agent Reightler had delayed looking into the windows of the garage for several hours after he arrived at the scene, after darkness had fallen, and five hours after the house had been secured by FBI agents and Herington Police officers. Reightler pp. 609-10. Aside from the number on the front, nothing distinguished this house from any other house on the street. Reightler p. 604. 95. Following his first warrantless search of the garage, Agent Reightler participated in a briefing with other Special Agents. DX B2; Reightler p. 615. At this meeting Reightler learned that the FBI intended to obtain a search warrant the next day for the home and that explosives in the OKC bombing "were likely to have been contained in white plastic containers with blue lids." Reightler p. 615. Reightler returned to the home and again peered through the window, ostensibly to ensure that the barrels he thought he had seen the first time had no obvious wires or other bomb-type accoutrements. Reightler p. 616. On the barrels that he saw, Reightler read a label on the side of the barrels with the words, "Ecolab Klenzade" and "Sterbac, Quantenary Ammonia Sanitizer." DX B2 at 2. The barrels, when full, had contained this ammonia compound which is used to clean dairies. DX W80, W81, W82. When empty, the barrels are freely available for sale at recycling depots. DX W80, W81, W82. 96. When Agent Reightler first arrived at the scene, neither the state of the lawn nor the purported smell of ammonia was distinct enough to distinguish the home from any other in the neighborhood. Reightler pp. 604, 605, 610. The photos of the Nichols home taken at the scene by an FBI photographer discredit any contention that the lawn was in disrepair. GX 9. *18 97. On cross, Agent Reightler testified that he had smelled ammonia "throughout the day" on the 21st. Reightler p. 617. On direct examination, however, Reightler had testified that nothing save for the numbers in front of the house distinguished the Nichols home from any other on the block. Reightler p. 604. Except at very close range, ammonium nitrate fertilizer does not have a detectable odor. Bodley p. 949. And at close range, the smell is musty, like a greenhouse, not like ammonia. Bodley p. 949. The description of the smell of "ammonia" also does not appear in Reightler's 302, his own chronological statement of events, until after his second viewing through the garage window. DX B2 at 2. 98. Contrary to Reightler's 302 and his testimony on the witness stand that he had smelled ammonia, Agent Crabtree prepared an affidavit in support of a search warrant stating that agents had smelled "fertilizer." GX 19 at 11 p19. D. THE CONSENTS PROCURED FROM MRS. NICHOLS 99. On April 21 1995, Mrs. Marife Nichols was a naive, unsophisticated woman, thrust into circumstances and an environment that left her helpless. On that day, the FBI seized Mrs. Nichols and the Nichols' child, beginning 37 days of custody. The FBI took advantage of both the circumstances and Mrs. Nichols' vulnerability to procure her signature on numerous consent forms. A review of the totality of the circumstances of Mrs. Nichols' confinement is necessary to properly assess the validity of the various consents. a. Credibility: i. Mrs. Nichols 100. As a preliminary matter, the Court finds Mrs. Nichols to be a candid and credible witness. Mrs. Nichols' demeanor on the witness stand was that of a truthful person. Her answers did not appear scripted and she was not easily amenable to being led by counsel. She quickly admitted to facts which on the surface would appear damaging to a claim of coercion. [FN5] FN5. See e.g., Nichols p. 821 (acknowledging that she told her mother that she was being treated well by the FBI). End of FN. 101. When Mrs. Nichols failed to remember certain facts, they were the type of information that any reasonable person would have trouble recalling. Mrs. Nichols' failures of memory were evenly distributed between direct and cross examination. [FN6] FN6. See e.g., Nichols p. 725 (unable to recall time at which consent form was signed); Nichols p. 729 (failure to recall whether she stayed in Abilene for entire day); Nichols p. 730 (failure to recall time she entered house on April 23); Nichols p. 759 (unable to recall number of times she had asked to speak with her husband); Nichols p. 802 (failure to recall where she and her husband stopped in the pickup truck before driving to the Herington Department of Public Safety); Nichols p. 811 (failure to recall whether daughter was strapped in car seat while traveling in FBI custody); Nichols p. 819 (failure to recall whether or not she walked to door of garage with agent Dobson during search on April 23, 1995); Nichols p. 840 (failure to recall with specificity telephone calls made while in custody). End of FN. *19 102. FBI Agent Sheila Dobson was one of two FBI agents who spent the most time with Mrs. Nichols and her child during the 37 days of custody. Mrs. Nichols p. 806. Dobson testified that during the entire time that Mrs. Nichols was with the FBI, Mrs. Nichols did not make a single statement that later investigation proved to be false. Dobson p. 1011. Agent Dobson confirms the impression of Mrs. Nichols on the witness stand as a credible person. ii. FBI Agent Sheila Dobson 103. In contrast to Mrs. Nichols' demeanor on the witness stand, Agent Dobson's testimony with respect to many of the issues surrounding Mrs. Nichols' time with the FBI was punctuated by nervousness, a shaking voice, and stuttering. A five and one half year veteran employee of the FBI and a former member of the United States armed forces, Dobson p. 980, Agent Dobson's overall demeanor on the witness stand revealed a distinct lack of confidence in the facts. At times, Agent Dobson was clearly grasping, not for the answer reflecting the truth, but for the answer that in her view best served the government's interest. 104. One example was Dobson's assertion that she told Mrs. Nichols that she was entitled to a lawyer prior to signing each and every consent. Dobson p. 1005. Not even the other government witnesses who testified with respect to Mrs. Nichols signing of consents went so far as to make this claim. Compare White, pp. 887-890 (purporting to recite in detail what allegedly was told to Mrs. Nichols prior to signing consent but not mentioning right to counsel); Jablonski p. 563. Neither were any FBI 302 reports introduced into evidence supporting the claim that Mrs. Nichols was told that she had a right to counsel prior to signing any consent. b. Who is Mrs. Marife Torres Nichols? 105. On April 21, 1995 Mrs. Marife Nichols was a pregnant, 22 year-old mother with a one and a half year old toddler whom she was breast-feeding. Mrs. Nichols pp. 704, 709, 770; Dobson p. 1015. Mrs. Nichols is approximately five feet tall and weighs 100 lbs. Dobson p. 988. Until she met Mr. Nichols, Mrs. Nichols had lived all her life in the Philippines in a two-room structure, without a lockable door, shared by seven or eight other people, lacking both an interior toilet and running water. Mrs. Nichols pp. 705-06. 106. Mrs. Nichols grew up believing that she had to follow authority. Mrs. Nichols p. 706. While her father and grandfather had been policemen in the Philippines, prior to April 21, 1995, Mrs. Nichols had never been interrogated by any official investigatory service, including the Philippine Army, the Philippine National Bureau of Investigation, the Federal Bureau of Investigation, or the United States Army. Mrs. Nichols pp. 706-07. 107. English is Mrs. Nichols' second language. Mrs. Nichols p. 705. Mrs. Nichols learned to speak English in high school and has taken some college courses in the Philippines. Mrs. Nichols p. 795. It is evident from her difficulty on the witness stand understanding questions both on direct and on cross-examination that her vocabulary does not include more complicated terms. [FN7] On April 21, 1995, Mrs. Nichols had little familiarity with American laws or the United States Constitution. Mrs. Nichols p. 707. FN7. Nichols p. 731 (not understanding "in relation to this form"); Nichols p. 743 (not understanding "entitled"); Nichols p. 782 (not understanding "did you have occasion to be in the presence of"); Nichols p. 797 (misperceiving question to suggest that she is no longer married); Nichols p. 798 (initially confusing the meanings of "discourage" and "encourage"); Nichols p. 800 (not understanding word "extensively"); Nichols p. 804 (not understanding "association"); Nichols p. 809 (not comprehending question relating to judge's approval of search warrant); Nichols p. 813 (not understanding "reluctant"); Nichols p. 816 (not understanding "with that same notation"); Nichols p. 820 (not understanding "engaged in"); Nichols p. 824 (not understanding word "purchase"); Nichols p. 826 (not understanding "practical matter"); Nichols p. 830 (not understanding "could have cared less"); Nichols p. 832 (not understanding "financial aid"); Nichols p. 835 (not understanding "entry on that log"). End of FN. *20 108. The Court finds that on April 21, 1995 and thereafter Mrs. Nichols was in a confused and fragile emotional state. In her own words to her aunt during a phone call on April 23, Mrs. Nichols was "shaken," and "scared" by the circumstances in which she found herself, because she had "never been through this situation before." Mrs. Nichols p. 821. 109. Perhaps the best evidence of Mrs. Nichols' sensitive condition and susceptibility to psychological manipulation was a Mother's Day card sent to Mrs. Nichols by one of her many assigned FBI companions. Mrs. Nichols p. 789- 90. The card reads in part: Please don't believe that the government workers are bad guys no matter what anyone tells you.... Don't let the latest news affect you. WE ARE ALL HERE FOR YOU. If you ever are lonley [sic], if you ever want to talk, if you ever want to cry, just call us .... We'll be here for you.... You are very special to us. You are a young girl caught up in something you don't deserve to be in. DX W9 (emphasis in original). This exhibit demonstrates that the assigned FBI companions themselves recognized Mrs. Nichols' delicate circumstances and her susceptibility to coercion. c. Marife Nichols on April 21, 1995. 110. In the afternoon of April 21, 1995, Mrs. Nichols arrived with her husband and baby daughter at the Herington Department of Public Safety building. Mrs. Nichols' husband Terry was pale and scared. Mrs. Nichols p. 709. After a twenty-five minute wait, a number of FBI agents arrived at the building. Mrs. Nichols p. 710. The agents and army personnel showed Mrs. Nichols their badges. Mrs. Nichols p. 712; White p. 885. Mrs. Nichols was searched by a female Herington police employee at the direction of the FBI. Kuhn pp. 204-05. A Herington police officer searched the clothing and body of the Nichols' baby. Kuhn p. 205. Mrs. Nichols and the baby were taken into a room without windows, and no clock, where they were kept for the next six hours. Mrs. Nichols p. 711; White p. 883 (left Herington DPS at about 9:00 pm.). 111. Mrs. Nichols was interviewed throughout the evening by investigator White from the United States Army and FBI agent Eugene Thomeczek. FBI agent Sheila Dobson arrived later in the evening. Mrs. Nichols pp. 711-12. None of the agents informed Mrs. Nichols that she had the right to remain silent. None of the agents informed Mrs. Nichols that she had the right to refuse to say anything against her husband. None of the FBI agents told Mrs. Nichols that she had the right not to repeat private marital communications. None of the FBI agents told Mrs. Nichols she had the right to an attorney. Mrs. Nichols pp. 712-13. 112. Over the course of this interrogation, Agent Thomeczek and Army CID Agent White asked numerous repetitive questions. There came a point where so many questions had been asked, Mrs. Nichols simply did not know what to answer. Mrs. Nichols pp. 714-15. During a break when Mrs. Nichols was expressing frustration at the repetitive nature of the interrogation, Army CID agent White encouraged Mrs. Nichols to tell the truth, "so that it will show that [she has] nothing to hide. That way, Mr. Thomeczek would not repeat his question again and again." Mrs. Nichols p. 714. *21 113. At one point during the interrogation, (sometime before 6:30 p.m.) Mrs. Nichols asked to go to her truck to retrieve diapers for her baby daughter. Dobson p. 989. FBI agents told her that she was not allowed to go outside because of the media. Mrs. Nichols p. 715. She was also told she would not be permitted to enter the truck because the truck had been secured for search by a bomb detection squad. Mrs. Nichols p. 716. FBI Agent Dobson purchased diapers for the baby from a grocery store. Mrs. Nichols p. 715; GX 51. 114. Several hours into the interrogation, FBI agents Thomeczek and Dobson presented Mrs. Nichols with consent forms to search the Nichols' home and pickup truck. DX W-14A; W-14B. Mrs. Nichols' immediate response to the agents was "you 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." Mrs. Nichols pp. 722-23. This version of events is confirmed by the testimony of William White, the CID agent who was present during the interrogation. White pp. 888- 889. Although couching his recollection of Mrs. Nichols' comments as limited to the truck, White acknowledged that Mrs. Nichols "asked if we were going to ask her husband for consent." White p. 889. 115. The Court credits Mrs. Nichols testimony that she was uncomfortable granting consent to search either the house or the truck, because of her belief that they belonged not to her, but to her husband. It is unlikely that Mrs. Nichols would have confidently granted consent to search the home while at the same time hesitating on the truck because of the issue of her husband's ownership. [FN8] FN8. Army CID agent White's testimony is itself suspect. White admitted to not having written any report or memorandum of the events of April 21, yet remarkably, his unhesitating claimed recollection of events was as clear as if it had happened the day before. White pp. 881; 884-85. End of FN. 116. Agent White's testimony on this subject is revealing for another reason. The interrogating agents did not respect Mrs. Nichols' concerns about her lack of possessory interest in the truck and house and her corresponding doubt about whether she should permit searches of those premises. White p. 888. Instead, Agent Thomeczek asked more questions about the house and truck, and Mrs. Nichols' access to these areas in an effort to persuade her to sign. White pp. 888-89. In other words, rather than take her representations at face value that she was uncomfortable granting consent to search without the blessing of her husband, Thomeczek (the man who would become her father figure) took it upon himself to convince her otherwise. Even after this explanation Mrs. Nichols still "asked if [the agents] were going to ask her husband about consent." White p. 889. 117. The agents did tell Mrs. Nichols that she needed to read the entirety of the consent form. Mrs. Nichols p. 725. Mrs. Nichols read the form, but she did not understand it. Mrs. Nichols p. 808. That Mrs. Nichols failed to understand the contents of the form may be inferred from testimony of Army CID Agent White. White smoothly recounted precisely what he claims Mrs. Nichols was told about the form: *22 Special Agent Thomeczek informed her that they wanted to search her house and her truck. He told her that under the Fourth Amendment to the United States Constitution, her rights against unlawful seizure were protected and that because of this, there was only two ways that they could conduct a search of the house and the truck. One would be through her consent and the other would be through a search warrant. White p. 887. To Mrs. Marife Nichols, who on the witness stand was unable to comprehend among others, the words "reluctant," "association," "extensively," or "financial aid," [FN9] this explanation would have been the equivalent of so much gibberish. FN9. See footnote 3, supra. End of FN. 118. With respect to the written consent form, Mrs. Nichols did ask Agent Dobson about the words "right to refuse to consent to such search" because she did not understand it. Mrs. Nichols pp. 725, 807. Agent Dobson explained that Mrs. Nichols had the right to refuse, prompting the further question "Well, what will happen if I refuse?" Mrs. Nichols p. 725. Agent Thomeczek's response to Mrs. Nichols' lack of understanding made apparent to Mrs. Nichols that any refusal on her part would be fruitless: Mr. Thomeczek told me that they're just going to have to get search warrant in court, which will take a little more time, but they will. ... He told me that eventually, we will get a search warrant in that court and that will take us time, but we will, if you don't sign it. Mrs. Nichols pp. 725-27; see also Mrs. Nichols p. 807. 119. Mrs. Nichols never understood that a refusal to sign the consent forms presented to her on April 21 would not be held against her. Mrs. Nichols p. 726. Her "cooperation" was secured, not through voluntary choice, but through her detention for hours in a room without windows coupled with the implicit suggestion that a failure to "cooperate" by answering questions and signing consents would be viewed as suspect and result in continued detention. Mrs. Nichols signed the forms only because she thought that the FBI and United States Army would not allow her to leave unless she signed. Mrs. Nichols p. 726. In her own words, she did not sign the forms because she understood them, but rather because she believed that only by cooperating would "everything be over soon." Mrs. Nichols p. 809. 120. Despite having procured from Mrs. Nichols involuntary written consents to search the house and truck on April 21, the FBI did not conduct any consent search that day. See DX W14a, DX W14b (each with second page bearing the notation "no consent search done on this date"). 121. At the end of the interrogation, Mrs. Nichols was told she and her daughter would be taken away from the building and that her husband would not be going home with them. Mrs. Nichols requested to see her husband prior to leaving. Mrs. Nichols pp. 716-17. Mrs. Nichols' request was granted at 8:52 pm. GX 30. Mrs. Nichols and the baby were taken to the basement by FBI agents Thomeczek, Jablonski, and Foley, where the interrogation of her husband was continuing in the presence of FBI agents Crabtree and Smith. GX 30. *23 122. After the meeting, Mr. Nichols gave his wife a telephone card. Once out of Mr. Nichols presence, and as Mrs. Nichols was leaving the building, Agent Jablonski immediately asked to see what it was Mrs. Nichols had received from her husband and took the card from her. Jablonski p. 540. No consent form was presented. Jablonski p. 542. Mrs. Nichols only understood that the FBI "had to take a Xerox copy." Mrs. Nichols p. 718. Mrs. Nichols was not aware nor did she feel that she had a choice one way or another with respect to giving up the card. Mrs. Nichols p. 719. 123. Mrs. Nichols was taken from the Herington Dept. of Public Safety shortly after speaking with her husband. Mrs. Nichols p. 721. In leaving the Department of Public Safety Building, Mrs. Nichols had been told that she could not go home and that she would be taken to Junction City, Kansas. Mrs. Nichols p. 719. Instead of Junction City, Mrs. Nichols and her daughter were taken by FBI Agents Thomeczek and Dobson, and two CID agents, Agent White and an unnamed female CID agent, to a Best Western Inn in Abilene, Kansas. Mrs. Nichols p. 719. It was not Mrs. Nichols' choice to go to Abilene. Mrs. Nichols p. 720. Mrs. Nichols had no clothes for herself or her baby and had been denied access to a diaper bag that had been left in the pickup truck which contained baby bottles and other baby items. Mrs. Nichols p. 721. d. Marife Nichols on April 22, 1995. 124. On April 22, 1995 Mrs. Nichols and her child were kept in Abilene. Mrs. Nichols was permitted to purchase clothes. Mrs. Nichols p. 722. Mrs. Nichols paid for these clothes out of the small amount of money that Mr. Nichols had given to her prior to leaving for the HDPS. Mrs. Nichols p. 752. Mrs. Nichols bought them herself because she preferred not to be a burden. Mrs. Nichols p. 752. [FN10] FN10. Agent Dobson testified that she believed that she had paid for Mrs. Nichols' clothes, but acknowledged that it was possible that Mrs. Nichols had paid for the clothes. Dobson p. 999. The fact that Agent Dobson was so scrupulous as to keep a receipt for the purchase of diapers, GX 51, but failed to produce or recollect any receipt for clothes purchased on April 22, lends credence to Mrs. Nichols' statement that she paid for the clothes and food purchased on April 22 herself. Dobson p. 999. End of FN. e. Marife Nichols on April 23, 1995. 125. On Sunday April 23, 1996, Mrs. Nichols was taken by the FBI to the Herington home. Mrs. Nichols p. 730. To Mrs. Nichols' understanding, he purpose of this visit to her home was to retrieve clothing and toys for her daughter. Mrs. Nichols pp. 730-31. Mrs. Nichols was not told that she was being taken there to serve any supervisory function during an FBI search, nor to observe the FBI as the agents searched her home. Mrs. Nichols p. 735. She simply "did not understand it that way." Mrs. Nichols p. 832. 126. Prior to returning to the Herington house on April 23, 1996, while at the HDPS, Agents Thomeczek and Jablonski had presented Mrs. Nichols with another "consent to search" form for her house and truck. Mrs. Nichols p. 732- 33; Jablonski p. 562; DX E1. Mrs. Nichols signed this form without a full understanding of its implications or her right to refuse to sign. Mrs. Nichols told the agents that she would sign the document, even though she had no real understanding of what it was, because she thought she had to. Mrs. Nichols p. 732. *24 127. There are two indicia confirming Mrs. Nichols' lack of understanding about consent form DX E1 and her right to refuse to sign. Mrs. Nichols' general nervousness and state of confusion is shown by the fact that when she signed the form, she inadvertently wrote her first name twice, crossing it out a second time. DX E1. Mrs. Nichols also added the notation, "Without Prejudice UCC 1-207" above her name. Id; Jablonski p. 563. 128. It was Mrs. Nichols' belief that a person who is being asked to sign a document which she does not understand protects her rights by adding the words "Without Prejudice UCC 1-207." Mrs. Nichols p. 749. Or, as the FBI heard Mrs. Nichols explain at the HDPS, "she understood that to be that if she in fact did sign her name, if she so chose, that her signature was not obligatory in those instances." Jablonski p. 564. After querying Mrs. Nichols about the significance of the UCC notation, Agent Thomeczek persisted in demanding to know "Is it your intention to give us [sic] to search, or not?" Jablonski p. 564. 129. At the time Mrs. Nichols signed DX E1 on April 23, 1995, she had been in FBI custody since the night of April 21 and she had been told that she was being taken back to the Herington house to retrieve her belongings. Mrs. Nichols pp. 730-31. As Mrs. Nichols testified about her signature and the UCC notation, "I was just -- on that time, I was mainly confused. I don't even know what to do, and I feel like I've been abandoned." Mrs. Nichols p. 749. Prior to April 23, 1995, Mrs. Nichols had never used the UCC 1-207 notation when signing her name. Mrs. Nichols pp. 816-17. Given that Mrs. Nichols was presented with these consent forms just prior to returning to the Herington house to retrieve her own belonging and clothes for her daughter, it is a reasonable inference that a reasonable person in her situation would have believed her signature on the forms to be a prerequisite to her own reentry into her own home. 130. Once at the Herington home on April 23, Mrs. Nichols was aware of only three agents being present at the house, Agents Thomeczek, Dobson, and a third unidentified agent. Mrs. Nichols pp. 732, 746. Mrs. Nichols was told by the FBI that the reason she was being brought back to the house was to retrieve those belongings, such as clothing and her child's toys, necessary for a return to the Philippines. Mrs. Nichols p. 730-31. Once in the house, Mrs. Nichols was instructed that she would be permitted only 45 minutes to collect her belongings and leave. Mrs. Nichols p. 733. Dobson p. 992. Mrs. Nichols was not allowed out of the sight of the FBI while she was in the house. Nichols p. 733. 131. While Mrs. Nichols was busy packing, FBI agents were in the garage of the home searching for additional evidence. Dobson pp. 984-85. Mrs. Nichols had no knowledge that FBI agents were conducting a search in the garage, and the FBI did not tell Mrs. Nichols they were conducting a search. Mrs. Nichols pp. 735, 746-47. *25 132. The Court finds that Mrs. Nichols did not serve the function of fulfilling Mr. Nichols' April 21 conditional consent to search when she was brought to the Herington house on April 23. Mrs. Nichols in no way supervised the agents in the garage who were looking through the shed for items missed the previous day. This conclusion is based on Mrs. Nichols' testimony and the testimony of the agents on the scene that nobody, not the agents nor Mrs. Nichols, believed that Mrs. Nichols was present to serve any purpose with respect to the agents' search. Dobson p. 984 (stating that Mrs. Nichols was occupied getting clothes and things for her daughter); Dobson pp. 993-94 (search of April 23 was conducted pursuant to Marife Nichols' purported consent, not any conditional consent of Terry Nichols); Jasnowski p. 906. In addition, there was an absence of testimony suggesting that Mrs. Nichols in a meaningful way observed the searchers in the garage. See Jasnowski generally (never mentions seeing Mrs. Nichols or being observed by Mrs. Nichols). 133. Once Mrs. Nichols had gathered her belongings, she was taken from the home. Agent Thomeczek gave Mrs. Nichols an inventory of items seized from the previous day. Mrs. Nichols p. 835. Mrs. Nichols read the inventory in the car with Thomeczek and realized that the FBI had not found and had not seized $5,000 and gold coins that she kept in the box springs of the bed. Mrs. Nichols pp. 735-36, 742, 747. Mrs. Nichols had previously told Agent Thomeczek about the existence of this money at the HDPS. Mrs. Nichols pp. 735-36. 134. The $5,000 was important to Mrs. Nichols because she believed it to be the one means by which she could leave FBI custody and survive by herself and support her child. Mrs. Nichols p. 836. On noticing that the money and coins had not been recovered, Mrs. Nichols immediately asked Agent Thomeczek if they could return to the house so that she could get her money. Thomeczek refused. Mrs. Nichols pp. 736, 742, 836. Thomeczek and Mrs. Nichols eventually arrived at the hotel near Fort Riley. Mrs. Nichols p. 744. It had not been Mrs. Nichols' desire or choice to go to Fort Riley. Mrs. Nichols p. 749. Mrs. Nichols again requested that she be permitted to recover her money. Mrs. Nichols p. 742. Thomeczek again refused, stating that the FBI needed to take the money to a laboratory to test it for fingerprints. Mrs. Nichols pp. 742-43. 135. It is undisputed that Mrs. Nichols absolutely did not want the FBI to take her money hidden in the box springs of her bed. In fact, she cried in front of Agent Thomeczek as she pleaded with him to be permitted to recover her savings. Mrs. Nichols pp. 757-58. Despite this manifest desire by Mrs. Nichols that her money be returned to her and not be confiscated by the FBI, the FBI presented Mrs. Nichols with a consent to allow the FBI to search her home and remove her valuables. DX G1. Mrs. Nichols signed using the "without prejudice" notation. DX G1. *26 136. There is no more clear evidence in the record of the coercion practiced upon Mrs. Nichols during her time with the FBI than her signature on DX G1. Mrs. Nichols did not want the FBI to take her funds and yet, Agent Thomeczek, through some parental admonishment of one sort or another, managed to procure her signature on a handwritten "consent" form. 137. As Mrs. Nichols signed this consent, she believed that in signing she would be somehow expediting the return of her money so that she could depart for the Philippines. Mrs. Nichols p. 757. To Mrs. Nichols' understanding, travel to the Philippines was one way she could regain her independence, but travel to the Philippines was impossible as long as the FBI had control of her money. She believed that only by "cooperating" would she be permitted to leave. Mrs. Nichols p. 757. Given her circumstances, this was a reasonable belief. 138. At 9:10 p.m. on April 23, 1995, Agent Thomeczek presented Mrs. Nichols with another consent to search the garage, this time for a padlock that the FBI hypothesized was there. DX W5. As to this consent, again, Mrs. Nichols did not understand that she had a choice one way or another as to whether to sign. Mrs. Nichols p. 748. When she did sign, she again included the notation, "Without Prejudice UCC 1-207." DX W5. f. Marife Nichols on April 24, 1995. 139. On April 24, 1995 FBI agent Dobson presented Mrs. Nichols with another consent form. DX H1. This consent was to allow the FBI to return to the Herington house to search for and seize a Shop Vac vacuum cleaner. DX H2. Mrs. Nichols signed the form and again included the notation, "Without Prejudice UCC 1-207." DX H1. At the time she signed DX H1, Mrs. Nichols had been in FBI custody for three days. Mrs. Nichols p. 752. The only money she had was the remainder of the $200 that her husband had given her on April 21, after purchasing clothes and food. Mrs. Nichols p. 752. Mrs. Nichols did not feel that she had any choice as to whether to sign form DX H1 or not. Mrs. Nichols p. 752. 140. Mrs. Nichols had requested to return to live at the house in Herington. Mrs. Nichols wanted to be in her house. Mrs. Nichols p. 752. The FBI told Mrs. Nichols that she could not return to live there because she would be badgered by the media and because there would be bills to pay. Mrs. Nichols pp. 752-53. This suggestion was coupled with Officer Kuhn's statements that should Mrs. Nichols return to live in Herington, he would not be able to provide for her safety. Kuhn pp. 208-09. The FBI stood by silent as Kuhn made this representation. Kuhn pp. 208-09. 141. At 9:40 pm on April 24, Mary Jasnowski and Eugene Thomeczek procured another consent from Mrs. Nichols to search the Herington home. DX I1. This consent was procured so that the FBI could go to the house and search for and retrieve the Nichols' family dishes. DX I2. By this time, Mrs. Nichols had been conditioned to sign the numerous consents that were being brought to her. Mrs. Nichols p. 755. She just "got used to it." Mrs. Nichols p. 755. Mrs. Nichols signed, again with the notation "Without Prejudice UCC 1-207." DX I1. g. Marife Nichols on April 25-26, 1995. *27 142. On April 25 at 3:17 p.m., FBI agents procured, yet another consent from Mrs. Nichols to search the Herington house. Mrs. Nichols p. 755; DX J1. Mrs. Nichols signed this consent out of a desire to "cooperate" with the FBI in order to expedite her return to the Philippines. Mrs. Nichols p. 757. 143. During much of her testimony, Mrs. Nichols used the word "cooperate" to explain why she signed the many consents she signed at the direction of the FBI. The court does not find Mrs. Nichols' use of the word "cooperate" to mean that she was voluntarily exercising her free will to permit the FBI to search her home and truck. Instead, it was apparent that by her use of the word, Mrs. Nichols' "cooperation" was the equivalent of submission to the authority of the FBI. Insight into Mrs. Nichols' "cooperation" can be seen in her tape-recorded telephone call to her husband on April 26. Mrs. Nichols there made apparent her dependent situation and her own fear that if she did not cooperate, or that if she "hassled" the FBI by refusing to comply with the FBI's wishes, she would not be permitted to leave: 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. Mrs. Nichols p. 762. 144. The April 26, 1995 recorded telephone call between Mrs. and Mr. Nichols was itself the result of a signed consent procured from Mrs. Nichols. DX K1. At the time this document was presented to Mrs. Nichols, she had been in FBI custody for five days and had not had the opportunity to speak with her husband. She had asked many times to speak with her husband before the FBI finally gave her the opportunity. Mrs. Nichols p. 759. FBI agents arranging for the call had spoken to one another, explaining that the agents supervising Mrs. Nichols "were going to get her consent to have the telephone call recorded." Smith pp. 364-65. The FBI did not inform Mrs. Nichols, nor was she independently aware that she had the option of speaking to her husband without the attachment of FBI recording equipment. Mrs. Nichols p. 759. Mrs. Nichols signed this document with the notation "Without Prejudice UCC 1-207." DX K1. 145. The tape-recording of the conversation occurred after the agent arranging for the call on Mr. Nichols' end had left Mr. Nichols alone in the room telling him "I'm going to give you some privacy." Smith p. 366. [FN11] FN11. Even United States Attorney Randall Rathbun was surprised to learn that this phone call had been taped. He had instructed that Mr. Nichols be given privacy for this call. Rathbun pp. 273-74. Rathbun's understanding was that Mr. Nichols' counsel had requested that the call be made and that Mr. Nichols was entitled to privacy as a matter of "normal human nature; you want privacy when you talk like that." Rathbun p. 274. End of FN. 146. During the first week after April 21, Agent Dobson, one of Mrs. Nichols' two principle FBI keepers, spent 40 to 50 percent of her twelve hour-long work days with Mrs. Nichols. Dobson p. 987. Factoring in the presence of the other principle assigned companion--Agent Thomeczek--leads to the reasonable inference that Mrs. Nichols was under FBI observation for between eight and twelve hours each day during her first week of custody. *28 147. On April 30, 1995, the FBI taped a telephone call between Mrs. Nichols and Robert Nichols, Terry Nichols father. DX W10. The transcript of this telephone call reveals Mrs. Nichols' state of mind. She desired to leave the custody of the FBI and return to the Philippines, but she believed she was obligated to stay to answer the FBI's questions: Go home to the Philippines it would be a lot better for me to, uh, since you know I, I need to talk to my parents. I wanted to go home, too. Uh, but I think they need to ask me a lot of, uh, questions about activities that we did ever since I got back to the Philippines, uh. DX W10, p. 3. The Court finds that given the circumstances of the assignment of FBI companions and involuntary shuttling between cities, Mrs. Nichols' belief that she was obligated to stay with the FBI and was not free to leave was a reasonable one. h. Additional Consents procured from Mrs. Marife Nichols. 148. On May 3, 1996, Agent Dobson presented Mrs. Nichols with additional consents to search her house and truck. DX W6a; DX W6b. Mrs. Nichols had not been permitted to return home, even though she had requested to do so. Mrs. Nichols p. 764. The FBI continued to deny Mrs. Nichols access to the money which would allow her to return to the Philippines. Mrs. Nichols pp. 764, 765. When Agent Dobson presented the May 3 consents, Mrs. Nichols was told that the FBI "need[s] another consent search for the house and the pickup truck." Mrs. Nichols p. 765. Mrs. Nichols did not feel that she had a choice in signing or not signing. Mrs. Nichols p. 765. Her goal was to get back to the Philippines with her daughter and "cooperation" was the only way Mrs. Nichols saw to achieve that desire. Mrs. Nichols pp. 765-66. 149. On May 8, 1995, the FBI told Mrs. Nichols that she would be taken to Oklahoma City for a grand jury hearing. Mrs. Nichols pp. 767-68. Because Mrs. Nichols believed this might be the last time she would see the Herington house, she asked to be returned to the house so that she could pick up some of her possessions. Mrs. Nichols pp. 767-68. Mrs. Nichols was not permitted to enter the house alone, but was accompanied into the house by Agents Thomeczek and Dobson, and a third person from the HDPS. Mrs. Nichols p. 769. While in the house, Agent Dobson asked 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 rejoined 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." Mrs. Nichols p. 769. i. Mrs. Marife Nichols and her Grand Jury "testimony". 150. By May 9, 1995 Mrs. Nichols had been taken by the FBI to Oklahoma City for a meeting with the United States Attorney's office. Mrs. Nichols p. 771. Present were FBI agents Hawkins, Thomeczek, Dobson, and attorneys Joplin, Bucella, and Holmes. Mrs. Nichols p. 771. None of those present explained to Mrs. Nichols that she had the right not to go before the grand jury to testify against her husband. None of those present explained that she had the right not to testify about private marital communications. Mrs. Nichols p. 772. *29 151. Mrs. Nichols spent a half day being interviewed by these lawyers and FBI agents, but was told that her appearance before the Grand Jury would be postponed until May 16. Mrs. Nichols pp. 772-73. During the course of the half- day interview, Mrs. Nichols asked if she needed a lawyer. Either Donna Bucella or Arlene Joplin told her that she was not a suspect, and she did not need a lawyer unless she was not telling the truth. Mrs. Nichols p. 773. On May 9th, Mrs. Nichols was served with a subpoena to appear before the Grand Jury on May 16. DX W74; Dobson p. 1009. 152. After Oklahoma City, Mrs. Nichols was returned to Wichita and was later taken to Kansas City, Missouri. Mrs. Nichols p. 775. Neither of these moves, nor any of the previous transfers, was Mrs. Nichols' choice. Mrs. Nichols p. 770. Indeed, the move to Kansas City was made for the convenience of her assigned FBI keepers, so they could spend the weekend at home in Kansas City. Dobson p. 1009. 153. On May 17, after the date indicated on the Grand Jury subpoena, Mrs. Nichols was returned to Oklahoma City. She was again accompanied by Agents Thomeczek and Dobson. Mrs. Nichols p. 776. Although brought to Oklahoma City, allegedly pursuant to a Grand Jury subpoena, Mrs. Nichols was not asked to give testimony. Instead, Mrs. Nichols was told that she would not have to testify because she was telling the truth. Mrs. Nichols p. 777. 154. While in FBI custody, Mrs. Nichols was told that the FBI needed to take her fingerprints and those of her daughter. Mrs. Nichols p. 788. Mrs. Nichols was also told that the FBI needed to take hair samples. No warrant or consent form was presented, and Mrs. Nichols was not told that she had the right to refuse. Mrs. Nichols complied with these requests. Mrs. Nichols pp. 788-89. 155. On May 19, 1995 Agents Thomeczek and Dobson presented Mrs. Nichols with a final consent to search form. DX W11. The typed form purported to give the FBI consent to enter the Herington house premises to retrieve toys and clean out the refrigerator. DX W11. Mrs. Nichols had wanted to return to Herington after the meeting on May 17. Despite Mrs. Nichols' requests to be permitted to return to clean out the refrigerator and collect toys, she was not permitted to do so. Mrs. Nichols pp. 778-79. Instead, Mrs. Nichols was limited to signing a consent to permit the FBI to return to the house. Mrs. Nichols p. 781. Mrs. Nichols was led to understand that it would have been too much work for her assigned companions, Thomeczek and Dobson to return Mrs. Nichols to the home in Herington. Mrs. Nichols pp. 780-81. j. The "need" for FBI protection from press. 156. Throughout Mrs. Nichols' period of custody she was permitted to make telephone calls. GX 64. However, Mrs. Nichols had been instructed by her assigned FBI companions not to leave any phone number where she could be reached. Mrs. Nichols p. 782; Dobson p. 1000. The reason given by the FBI was that the press might become aware of the phone number and it would be easy for the media to track Mrs. Nichols and her daughter down. Mrs. Nichols p. 782; Dobson p. 1000. *30 157. The demonization of the press by the FBI, and the corresponding building up of the FBI as Mrs. Nichols' protector against the press, was an earmark of Mrs. Nichols' 37 days of custody. When Mrs. Nichols had asked to be allowed out of the room where she was being interrogated to retrieve diapers for her baby, she was told that she could not because the police station was surrounded by the media. Mrs. Nichols p. 715. When she was taken back to the house to retrieve property she was told she only had a limited amount of time in the house--her house--because the media might find out. Mrs. Nichols p. 733; Dobson p. 992. She covered her face on departing the house because Agent Thomeczek and others suggested that she cover her face and that of her child. Mrs. Nichols p. 825. On April 24th, Mrs. Nichols had desired to return to live at the Herington home but was told it would not be a good idea because the media would be present. Mrs. Nichols p. 752. Mrs. Nichols' fear of the media was magnified by the FBI's explanation to Mrs. Nichols that she was potentially in danger from retaliation by victims. Mrs. Nichols pp. 825-26. 158. The reality of the matter was that if the FBI had the resources to assign mandatory companions to Mrs. Nichols and her baby for 37 days, and the resources to shuttle her from city to city in order to satisfy the FBI's and government attorneys' desire to speak with her, they certainly could have assisted the Herington Police in providing adequate protection for her had they granted her wish to remain in her own home. 159. During the course of Mrs. Nichols' confinement, she continually requested the return of the $5000.00 and gold coins which the FBI was keeping from her. Mrs. Nichols p. 742; Mrs. Nichols p. 764. Mrs. Nichols viewed the return of her money as the only means by which she could leave FBI custody and regain some means of independence. Mrs. Nichols p. 757. But it was not until she had finally made contact with defense counsel Ron Woods on May 24, 1995, more than a month after she and her daughter were first taken into custody, that the majority of Mrs. Nichols $5,000 was returned. Mrs. Nichols pp. 783-84. So elated was Mrs. Nichols at the return of the majority of her funds, that she did not question the failure to return the remaining $200 and the various coins that the FBI had also taken. Mrs. Nichols p. 784. There was no evidence presented by the government justifying the retention of Mrs. Nichols funds for any length of time, much less an entire month. 160. The day after returning Mrs. Nichols' monies, the FBI told her that they would stop paying for the hotel. Mrs. Nichols pp. 786-87. It was at this point that Mrs. Nichols concluded for herself, for the first time, that she was free to leave. Mrs. Nichols p. 787. Mrs. Nichols' conclusion that she was free to leave only at this time, and that prior to that time she was not free to leave, is a reasonable one. The FBI, which up to that point professed concern that Mrs. Nichols would be harmed or threatened, stopped paying for her hotel and let her get on a bus -- unaccompanied save by her daughter -- to go to California from Oklahoma City. k. Mrs. Nichols' Treatment by the FBI *31 161. The Court finds that the FBI treated Mrs. Nichols well physically. This is to say, the FBI provided adequate food and shelter for Mrs. Nichols and her daughter. This conclusion is supported by testimony from Mrs. Nichols on the stand, Mrs. Nichols pp. 840, 847-48, as well as contemporaneous statements Mrs. Nichols made to her own mother while she was in custody, Mrs. Nichols p. 821, and statements made on a recorded telephone call to Robert Nichols. DX W10, p. 1. 162. This adequate treatment goes a long way toward explaining Mrs. Nichols' gratitude toward the FBI agents and the various thank you notes she sent to the FBI once she had returned to the Philippines. Mrs. Nichols p. 790; She sent these cards because she is the kind of person who expresses gratitude when given something. Mrs. Nichols pp. 790-91; GX 65, 66, 67. 163. The Court does conclude that during the 37 days Mrs. Nichols was kept in FBI custody, the FBI engaged in psychological coercion. Throughout the course of Mrs. Nichols time with the FBI she was dependent on the Bureau. Agent Eugene Thomeczek, who was older than Mrs. Nichols' own father, became a parent-like figure to her. Mrs. Nichols p. 838; GX 65 (Thank you note to Agent Thomeczek including statement "We do love you as a parent."). 164. Mrs. Nichols trusted the FBI agents who were providing for herself and her child, and allegedly protecting them from the media. Mrs. Nichols p. 838. When documents were presented by FBI agents for Mrs. Nichols to sign, it was as if a parent were presenting a document to a child: Mr. Mackey: And [Agents Thomeczek and Dobson] are the same individuals, Mrs. Nichols, who witnessed your signature on virtually every one of the consent to search forms that you've identified today; is that not true? Mrs. Nichols: That's true. Q. And as you sit there now, Mrs. Nichols, you think a parent would mislead you into signing something you did not want to sign? A. On that time when I made this card, I thought that he is still my parent. He treat me as a parent. Some part of my mind was thinking that way. Mrs. Nichols p. 838. This line of questioning belies the corruption of the entire process of the FBI procuring consents from Mrs. Nichols. Whether the "trusted" parent-like FBI agents were "leading" or "misleading" Marife Nichols to sign these consents, she plainly was not exercising her free will in choosing whether or not to do so. E. FALSE STATEMENTS IN WARRANTS a. The Fuel Meter 165. During Mr. Nichols' interview with the FBI agents he mentioned that he owned a fuel meter which he had purchased for resale purposes. Crabtree p. 445. Mr. Nichols told FBI Agent Jablonski that the fuel meter was not operable. Crabtree pp. 445, 447. Jablonski later reported to Agent Crabtree that Mr. Nichols had said that the fuel meter was not operable and that he had taken it apart to try and fix. Crabtree p. 462. 166. When Agent Crabtree was preparing the affidavit in support of the first search warrant for the Herington house with Agent Gibbons, Crabtree told Agent Gibbons that Mr. Nichols had purchased a fuel meter. Crabtree p. 449. Crabtree failed to mention that, as far as the FBI knew, the fuel meter was inoperable. Crabtree p. 462. *32 167. Based on the inaccurate information supplied by Crabtree, Agent Gibbons contacted the ATF. Crabtree p. 449. Based on what Gibbons learned, Crabtree included a paragraph in the initial warrant affidavit stating that "[a]ccording to ATF bomb experts, the fuel meter referred to ... could readily be used to obtain the proper blend of ammonium nitrate and diesel fuel." See GX 19 p21; Crabtree p. 449-50. By Agent Crabtree's own admission, this assertion was inconsistent with the facts then known to the FBI. Crabtree p. 466. 168. Agent Crabtree claimed on the witness stand that the inclusion of this incriminating and inaccurate paragraph was due to a failure of memory. Crabtree p. 466. This is to say his memory was selective -- while drafting his affidavit he remembered supposedly incriminating information, but forgot the exculpatory. 169. On April 22, 1996, the FBI went through the Herington house pursuant to the search warrant signed on the basis of the Crabtree Affidavit. Jasnowski pp. 902-04. One of the things the FBI search team was looking for was the fuel meter. Jasnowski p. 904. While an FBI photographer took a photograph depicting a large wooden crate with the disassembled fuel meter on top, DX W68, it was not identified by the FBI bomb expert on the scene as particularly relevant to the investigation. DX W76 pp. 15-17 (Deposition of FBI bomb expert Burmeister). The fuel meter was not seized on the 22nd. Jasnowksi p. 905. 170. On April 23, 1996 FBI agents returned to the Herington home, purportedly pursuant to consent by Marife Nichols. Jasnowski p. 906. The fuel meter was recovered during the search. DX E2. When the meter was recovered, it was clearly in a number of pieces, including several gears which had broken teeth. Jasnowski pp. 910-11; DX W72. The meter had no hoses attached, nor were any pieces readily identifiable to the recovering agents as a pump. Jasnowski pp. 912-13, DX 72. The fuel meter was not operable at the time it was recovered. Wilkinson Stipulation p. 921. Thus, the fuel meter was recovered in pieces in the garage, fully consistent with Mr. Nichols' statement to the interrogating agents that it did not work and that he had taken it apart. Crabtree p. 462. 171. The evidence recovery team took the meter back to the Herington police station and put in a truck. Jasnowski p. 918. They then transported the meter to Fort Riley, where it remained for a day before being placed in an aircraft and flown to the FBI laboratory. Jasnowski p. 918. During this time, only members of Jasnowski's evidence recovery team had access to the meter and the other evidence. Jasnowski p. 919. 172. No one on the evidence recovery team was asked by anyone to examine the meter and determine its operability and no one did. Jasnowski p. 919. Similarly, no one made any effort to inform the ATF agent whose statement appears in paragraph 21 of the Crabtree exhibit of the condition in which the fuel meter was recovered. Jasnowski p. 921. *33 173. After recovery of the nonworking fuel meter, later search warrants were prepared which continued to include the allegation that the fuel meter recovered at the Herington house could "readily be used to obtain the proper blend of ammonium nitrate and diesel fuel." Agent Seck was the warrant affiant on GX 76, which was a warrant used to justify a search of the Nichols home of April 28, 1995. Paragraphs 14(e) and 18 of this warrant affidavit include false allegations with respect to the fuel meter. In incorporating these paragraphs, Agents Seck relied, without more, on the prior affidavit of Agent Crabtree and did no additional investigation. Seck p. 932. 174. GX 79 is a search warrant justifying the May 3, 1995 warrant search of the Nichols home. Agent Wolverton, the affiant on that warrant also included the same false and misleading statements with respect to the inoperable fuel meter. See GX 79 pp17(e), 21. Though by this time the fuel meter had long been recovered, Agent Wolverton made no effort to verify the veracity of these paragraphs, and made no further investigation with respect to the fuel meter. Wolverton p. 940. Agent Wolverton's affidavit did include additional allegedly incriminating information relating to material that was recovered during the April 22, 1996 search of the Herington. GX 79 p25; Wolverton p. 946. b. Misrepresentations of Mr. Nichols' Statements. 175. Agent Crabtree's affidavit in support of the warrant to search the Nichols' residence also falsely averred: Mr. Nichols admitted that he knows how to make a bomb by blending ammonium nitrate with diesel fuel, which he stated could be detonated by either blasting caps or dynamite. GX 19 at 9. The clear import of this statement is that Mr. Nichols could construct a bomb out of ammonium nitrate and diesel fuel, and that he was familiar with the various ways such a bomb could be detonated. 176. In fact, however, Mr. Nichols made no such admission. During his nine hours with FBI agents, Mr. Nichols specifically told the interrogating agents that he had not made any explosive devices using fertilizer and fuel, but that he thought it was possible because he had heard about creating such devices from a farmer who had stopped by his table at a gun show. GX 72 at 17. Mr. Nichols' statements about the potential ways to detonate such devices were sheer speculation, and the interrogating agents were aware that Mr. Nichols was not speaking from personal knowledge, as evidenced by Smith's notes. GX 72 at 17 ("I imagine you have to put a blasting cap on it to explode; ... I would assume electricity could start it; they have electric blasting caps now.") (emphasis added). 177. Crabtree deliberately mischaracterized Mr. Nichols' statements in order to give the false impression that Mr. Nichols personally knew how to construct the sort of bomb that was used in Oklahoma City, even though it is evident that Crabtree was fully aware that Mr. Nichols had claimed only second-hand knowledge that making such a bomb was possible. For the most part, Crabtree and Smith had been with Mr. Nichols in the interview room at the same time on April 21, so it is a fair inference that Crabtree was present to hear those statements by Mr. Nichols which found their way into Smith's notes, as did the statements about using fertilizer to create a bomb. GX 72. c. Falsehoods with Respect to Olfactory Evidence. *34 178. Crabtree also shaded the truth when he stated in his initial affidavit that agents at the Nichols' residence "noted a strong odor of fertilizer near the garage." GX 19 at 11. Agent Reightler, the only agent who reported smelling anything at Mr. Nichols' home, had actually claimed to have smelled an "ammonia-type odor" as he was trespassing on the Nichols' property, not fertilizer. DX B2. Based only on Reightler's smelling of an "ammonia-type" odor, Crabtree wrote in his affidavit that Reightler smelled "fertilizer" because it better supported the government's application for a search warrant. Crabtree p. 442. 179. Ammonium nitrate fertilizer has little if any smell. The smell that it does have more resembles that of a musty greenhouse than an ammonia smell. Bodley p. 949. 180. Furthermore, Reightler's statement in his 302 that he smelled ammonia near the Nichols' garage on April 21 cannot be credited as true. According to the 302, the first time Reightler smelled an "ammonia-type" odor was during the second trespass on the property, after he had read the barrel labels which indicated their use as containers for an ammonia sanitizer, and after he had attended a briefing where he received updated information on the bombing investigation, which presumably included information about the materials likely used in the bomb. DX B2. Not one of the many other agents who were at the Nichols' residence on April 21 corroborated Reightler's report of the ammonia smell, even though the other agents were also around the property during the course of the day. Reightler pp. 581-82, 609-10. Less credible still is Reightler's testimony that he smelled ammonia around the Nichols' property "throughout the day." Reightler p. 617. First of all, Reightler did not mention in his 302, written only days after the event, that he smelled the odor throughout the day. DX B2. Instead, he specifically noted that he noticed the odor when he was "standing near the garage." DX B2. Thus, Reightler could only have smelled the odor throughout the day if he was near the garage throughout the day. However, Reightler stated that he only approached the garage twice on April 21. DX B2; Reightler pp. 616-17. 181. Crabtree's misleading averments were perpetuated by Agents William Seck and Randal Wolverton, the affiants on subsequent warrant applications. GX 76; GX 79. III. CONCLUSIONS OF LAW 182. "Our government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example." Olmstead v. United States, 277 U.S. 438, 485 (1928) (Brandeis, J., dissenting). The government's ill- treatment of Mr. and Mrs. Nichols in April and May of 1995 sets a very poor example, for law enforcement and for the whole people. The government's conduct violated the Constitution, and the fruits of its illegalities should be suppressed. A. MR. NICHOLS' STATEMENTS 183. Unlike most defendants who move for suppression of their statements, Mr. Nichols was not a criminal suspect at the time he made statements to the FBI. At no time during his interrogations on April 21 or 22, 1995 was there probable cause to arrest Mr. Nichols for having committed or aided the Oklahoma City bombing or for any other crime. The allegations of the material witness arrest warrant ultimately obtained against him did not constitute probable cause to accuse him of crime, nor did the additional facts learned by the government during his interrogations. Thus, in the eyes of the law, during the April 21 and 22 interrogations Mr. Nichols not only bore the presumption of innocence shared by other citizens subjected to arrest and custodial interrogation, but was free even of any legally cognizable suspicion of crime. The government's decision to seek and eventually obtain a material witness arrest warrant rather than an ordinary criminal arrest warrant against him acknowledged this fact. *35 184. Nevertheless, the government made the decision early on April 21 to treat Mr. Nichols as an armed and dangerous individual and conducted its "material witness" arrest of him accordingly, dispatching a S.W.A.T. team, a discreet surveillance team, and other FBI agents to Herington to await the issuance of the arrest warrant before moving in on him. 185. None of this was told to Mr. Nichols upon his arrival at the Herington Department of Public Safety, even though he repeatedly asked why his name was being broadcast by the media. Instead, the agents deliberately lied to him. They denied knowing why his name was being broadcast -- even though they knew full well that he had been linked to Mr. McVeigh by the Oklahoma City bombing investigation and that this information had been leaked to the press -- and they told him that he was not in custody and was "free to go." Smith pp. 389, 394; Foley p. 499. The latter assertions were true in only the most technical and misleading of senses, since the agents also knew that a warrant for Mr. Nichols' arrest was being sought at that very moment and that if they could keep him in the station talking for long enough he would not leave the station as a free man. Moreover, if he did choose to leave, he would have been followed until the warrant was obtained and then arrested -- and he would have had nowhere to go in any event, since half an hour after he arrived at the station both his home and truck had been secured by agents. 186. Nor was he informed when the material witness warrant was issued and faxed to the station house, by 5:00 p.m. that afternoon. Indeed, it may be inferred from the interviewing agents' claims that they themselves were not aware of the warrant until 10:21 p.m. that evening -- to the extent that these claims are credited at all -- that the effort to keep Mr. Nichols from learning that he was de facto under arrest was so assiduous that no chances were taken, up to and including keeping everyone with direct contact with him in the dark as well. Nor were any chances taken that United States Attorney Rathbun, who was at the station by 8:45 p.m., might view the legalities of this deliberate deception and prolongation of the interrogation differently than the FBI agents -- he also was not informed that the warrant had been issued and received at the station. 187. Neither, finally, was the warrant executed until some seven hours after it was physically received in the station, even though it expressly commands that the witness be brought "forthwith" before the grand jury and even though the United States Attorney had arranged for a federal judge to be on call for Mr. Nichols' initial appearance throughout the day and evening in the event of an arrest. 188. The transparent purpose of these deceptions and delays was to extract as much information from Mr. Nichols as possible while he remained unaware of his status as a de facto arrestee who was no longer actually "free to go" and was unrepresented by counsel. In these circumstances, the government's deliberate misconduct during the April 21 and April 22 interrogations violated Mr. Nichols' constitutional rights in three ways: (1) his statements were involuntary under the Due Process Clause of the Fifth Amendment; (2) he did not voluntarily waive his Miranda rights to remain silent and to the presence of an attorney; and (3) the FBI's deliberate, extended delay in bringing him before the grand jury or a judicial officer solely in order to interrogate him violated his due process rights as a material witness. [FN12] The two statements are discussed separately below. FN12. The third ground for suppression was not discussed in detail in Mr. Nichols' Motion to Suppress because many of the facts supporting this claim were unknown to his counsel at the time. Counsel were first alerted to the extent of this deliberate violation of his rights on June 22, 1996, four days prior to the hearing, when the government turned over notes of conversations and faxes between FBI agents William Chornyak and Thomas Price. These notes represented the first clear evidence that agents at the Herington Department of Public Safety were aware before Mr. Nichols' interrogation started that a material witness warrant was being sought, and that agents in the station house received a copy of the warrant early in Mr. Nichols' interview. Prior to that time, the government had suggested that agents were unaware of the existence of the warrant until late in the evening, near the conclusion of the interrogation. End of FN. a. The April 21 Statement. i. The April 21 statement was involuntary. *36 189. In general, a statement is involuntary if it is "extracted by any sort of threats or violence [or] obtained by any direct or implied promises [or] the exertion of any improper influence." Hutto v. Ross, 429 U.S. 28, 30 (1976); Miller v. Fenton, 796 F.2d 598, 608 (3d Cir.), cert. denied, 479 U.S. 989 (1986). The test is whether, considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect's will was overborne. Haynes v. Washington, 373 U.S. 503, 513-14 (1963). See also Culombe v. Connecticut, 367 U.S. 568, 602 (1961) (plurality opinion) (statement must be "the product of an essentially free and unconstrained choice by its maker"). Voluntariness is determined based on the "totality of the circumstances" surrounding the statement, United States v. Amos, 984 F.2d 1067, 1074 (10th Cir. 1993), and the burden of proof lies with the government. Lego v. Twomey, 404 U.S. 477, 489 (1972). 190. Deliberate deception by the government regarding the facts of the defendant's case or other matters is among the circumstances that may dictate the conclusion that the statement was not the product of "an essentially free and unconstrained choice." See, e.g., Frazier v. Cupp, 394 U.S. 731, 739 (1969) (misrepresentation of evidence against defendant relevant but not dispositive of voluntariness question); Leyra v. Denno, 347 U.S. 556, 561 (1954) (confession to police psychiatrist posing as general practitioner brought in to treat defendant's sinus condition was involuntary). The premise of this rule is that even uncoerced statements are not truly voluntary if they are induced by government deceit about the defendant's situation or the consequences of his speaking. United States v. Erekson, 70 F.3d 1153, 1157- 58 (10th Cir. 1995) ("Although we have held that [defendant's] Miranda rights were not violated and that his statements were freely and voluntarily given, his statements may be 'involuntary' and therefore inadmissible if they were induced by deceit or misrepresentations of the [government] agents"). 191. While many types of misrepresentation are tolerated as a necessary adjunct to police interrogation, misrepresentations of the legal consequences of confessing or of the defendants' legal status (e.g., as a target of the investigation) are sufficient to render a statement involuntary. Grades v. Boles, 398 F.2d 409, 411-14 (4th Cir. 1968) (prosecutor's promise of leniency rendered confession involuntary); United States v. Pinto, 671 F.Supp. 41, 57-8 (D.Me. 1987) (officer's bad-faith assertion that he could keep defendant out of jail rendered defendant's confession involuntary); United States v. Goldstein, 611 F.Supp. 626, 632 (N.D.Ill. 1985) ("What is at issue here is ... [the agents'] deliberate misrepresentation[] to Goldstein of his status [as a target of theft investigation]") (emphasis in original). *37 192. In general, where the claimed deceit involves a misrepresentation of the defendant's status as a target of the investigation, courts require a showing that the government agents "affirmatively mislead [the defendant] as to the true nature of their investigation," and that the misinformation was "material in his decision to speak with the agents." Erekson, 70 F.3d at 1158 (quoting United States v. Serlin, 707 F.2d 953, 956 (7th Cir. 1983)). It follows that a simple failure to inform a defendant that she is a target does not amount to due process "deceit" unless that failure is itself "affirmatively misleading" -- a situation that arises only where the government deliberately conceals this information in circumstances in which it has some obligation to disclose it, or in which the failure to inform the defendant will itself constitute "affirmative deception." Id. One of those situations arises where the defendant has asked the agents about her status or about the purpose of the investigation. As the Tenth Circuit recently explained, "simple failure to inform defendant that he was the subject of the investigation, or that the investigation was criminal in nature, does not amount to affirmative deceit unless defendant inquired about the nature of the investigation and the agents' failure to respond was intended to mislead." Id. (quoting Serlin, supra) (emphasis added); see also United States v. Okwumabua, 828 F.2d 950, 953 (2d Cir. 1987), cert. denied, 484 U.S. 1063 (1988) ("Silence by a government agent can only be equated with an affirmative misrepresentation where there is a legal or moral duty to speak or where an inquiry left unanswered would be intentionally misleading") (emphasis added). 193. The emphasized language describes with precision what happened to Mr. Nichols at the Herington Department of Public Safety on April 21, 1995. After hearing his name mentioned on the radio, Mr. Nichols went immediately to the nearest law enforcement authorities and "inquired about the nature of the investigation" in which his name suddenly figured. The agents thereupon deliberately failed to respond to his questions and affirmatively represented to him that he was not in custody and was "free to go," for the sole purpose of misleading him about their interest in him as a potential target and (more significantly) about his imminent arrest. The point of this deception, as Agent Price came close to admitting, [FN13] was to induce Mr. Nichols to speak to the agents under the intentionally created misimpression that the government viewed him as an innocent witness who was "free to go" at any time. FN13. Agent Price stated that one reason he deliberately failed to inform Mr. Nichols of the arrival of the arrest warrant was that he did not want to "interrupt" the interrogation. Price p. 666. End of FN. *38 194. There can also be no doubt that this deception was "material" to Mr. Nichols' decision to speak to the agents. Informing Mr. Nichols that he was going to be arrested -- particularly that he was going to be arrested on the entirely specious grounds that he was likely to flee the jurisdiction to avoid testifying -- would have entirely changed the atmosphere of the interrogation and Mr. Nichols' willingness to speak. The accompanying warnings of his right to remain silent and to the presence of an attorney would also have likely induced him to refuse to speak. Indeed, he in fact made no further statements after his Miranda rights were read to him following his formal arrest at the end of the interrogation. [FN14] The government's own carefully orchestrated efforts to keep Mr. Nichols unaware of his imminent arrest demonstrate the agents' belief that an arrest would likely cause Mr. Nichols to stop speaking to them. FN14. As we explain in the following section, the government's deception about his status vitiates the force of the Miranda warnings read to Mr. Nichols near the outset of the interrogation. The fact that Mr. Nichols eventually made additional statements during the drive to Wichita on April 22 is also irrelevant, as we discuss below under the "April 22 Statement" heading. End of FN. 195. Mr. Nichols' decision to speak to the agents was predicated on other deliberate deceptions by the agents as well, all of which were similarly calculated to induce to him to speak by creating a false sense of cooperation on the part of the FBI agents. Agent Smith promised Mr. Nichols that he would have a chance to review his notes, although he was well aware at the time that opportunity would only come during "discovery" -- i.e., after Mr. Nichols had been formally charged as a criminal defendant. Smith pp. 395, 336-38. This admission by Agent Smith also proves that, regardless of their specific knowledge that an arrest warrant had been issued, the agents who interviewed Mr. Nichols contemplated all along that he would not only be arrested as a material witness but that he would be formally charged in the Oklahoma City bombing. It can hardly be gainsaid that Mr. Nichols' knowledge that the agents he was speaking to not only intended to arrest him as a material witness, but were already viewing him as a criminal defendant, would have been a material factor in his decision to speak to them. 196. The agents also reassured him that he or his wife would be present at any search of his house or truck, a promise that subsequent events show the agents never intended to honor. 197. The deliberate decision of Agent Price not to inform Mr. Nichols that Federal Defender David Phillips had called is also a significant factor in determining the voluntariness of Mr. Nichols' statement. Apart from its direct impact on Mr. Nichols' continued willingness to speak, it further demonstrates the agents' continuing deception -- encouraging him in the illusion of a "freedom to leave" while denying him the "freedom" to receive phone calls. More important, however, had the phone call gone through, Mr. Nichols would almost certainly have accepted Mr. Phillips advice to decline to make any further statements. [FN15] FN15. A further irony is that Mr. Phillips had consulted Kevin McNally, a co-director of the Federal Death Penalty Resource Center, prior to making his calls to the Herington station. Phillips p. 289. The Federal Death Penalty Resource Center was established in cooperation with the Administrative Office for the United States Courts for the sole purpose of providing expert services and consultation in federal capital cases. See Guide to Judiciary Policies and Procedures, Vol. VII (Appointment of Counsel in Criminal cases), Chapter 6 -- Representation in Federal Capital Cases and in Death Penalty Federal Habeas Corpus Proceedings. Phillips was also misled by an Assistant United States Attorney, who told him, falsely, that Mr. Nichols was not going to be arrested -- some five hours after the material witness arrest warrant had been issued. Phillips pp. 290-91, 292- 93. End of FN. *39 198. Nor is Moran v. Burbine, 475 U.S. 412 (1986), to the contrary in the peculiar circumstances of this case. Moran held that a police officer's failure to report a phone call from an attorney to a defendant in custody at the station house was irrelevant to the question of whether the defendant had validly waived his Miranda rights. The defendant in that case was under custodial arrest and was under no illusion, police-induced or otherwise, that he was "free to go" at the time the attorney called him. The Court held that "such conduct is only relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them," and that "[b] ecause respondent's voluntary decision to speak was made with full awareness and comprehension of all the information Miranda requires the police to convey, the waivers were valid." Id. at 424. 199. Unlike the defendant in Moran, at the time of Mr. Phillips' phone call Mr. Nichols was being actively encouraged by the agents to believe that he was still "free to go." Given this deliberate deception about his actual circumstances, Agent Price's deliberate decision not to inform Mr. Nichols about the Phillips call in fact "deprive[d] [Mr. Nichols] of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them," and his decision to speak was not "made with full awareness and comprehension of all the information Miranda requires the police to convey" -- at least, not so long as Miranda requires the police to ensure a defendant have the (minimal) "awareness and comprehension" that he is in fact not "free to go" when an arrest warrant awaits him at the top of the stairs. Thus, in this context, Agent Price's deliberate failure to pass on Mr. Phillips' message provides further evidence of the agents' continuing efforts to keep Mr. Nichols from "understanding his rights and the consequences of abandoning them." Moran, in short, supports the relevance of the Phillips phone call. 200. Finally, the facts reveal more than just FBI deception playing on Mr. Nichols' capacity for a free and voluntary choice to speak at the time. This other evidence demonstrates that Mr. Nichols was particularly vulnerable to the types of deception practiced on him. He was nervous and frightened when he arrived at the station house, and concerned that his wife and young daughter, who he brought with him, would not be subjected to another "Waco." He was suspicious of the agents, refusing to sign the Waiver of Rights form because it reminded him of the Nazis. The agents' repeated false assurances that he and his family were "free to go" were deliberately gauged to play on these fears and insecurities, and successfully induced him to speak. 201. In sum, given the totality of the circumstances as established at the hearing, the government has failed to carry its burden of proving that Mr. Nichols' statements to the agents on April 21, 1995 was "the product of an essentially free and unconstrained choice by its maker." Culombe, 367 U.S. at 602. ii. Mr. Nichols did not waive his Miranda rights. *40 202. It is fundamental that where an "interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to appointed or retained counsel." Miranda v. Arizona, 384 U.S. 436, 475 (1966); see also Harvey v. Shillinger, 76 F.3d 1528, 1536 (10th Cir. 1996); Fernandez v. Rodriguez, 761 F.2d 558, 562 (10th Cir. 1985). While the Supreme Court has held that a waiver of Miranda rights need not be explicit, it has at the same time cautioned that an inference of waiver is not lightly to be made. North Carolina v. Butler, 441 U.S. 369, 373 (1979) ("[t]he courts must presume that a defendant did not waive his rights; the prosecution's burden is great"). The fact that a defendant answers questions put to him after being given his Miranda warnings is a factor in determining whether there has been a voluntary waiver, Butler, 441 U.S. at 371-75, but it is not dispositive -- indeed, standing alone it is insufficient to meet the prosecution's "heavy burden." Tague v. Louisiana, 444 U.S. 469, 470-71 (1980) (per curiam). 203. Any putative waiver by Mr. Nichols of his Miranda warnings was constitutionally flawed from the outset by the deliberate deceptions being perpetrated against him at the time the warnings were given. To be valid, a defendant's decision to waive his rights and speak must be "made with full awareness and comprehension of all the information Miranda requires the police to convey." Moran, 475 U.S. at 424. As discussed above, at the time the original Miranda warnings were given to Mr. Nichols the FBI was involved in a concerted and far-reaching effort not to convey "all the information Miranda requires," and instead to "deprive[] [Mr. Nichols] of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them." Id. Here, that "essential knowledge" was that he was in a de facto custodial situation at the time of his statements. 204. It can hardly be denied that in evaluating whether or not to exercise her Miranda rights to silence and to counsel, the defendant's understanding of herself as in present or imminent custody is an overwhelmingly important factor. [FN16] A person who understands herself to be in custody has obvious reasons to exercise her rights that a person who is not in custody (and who has no expectation of imminent arrest) does not. Indeed, a person who is not in custody is not even entitled to Miranda warnings prior to being questioned. Berkemer v. McCarty, 468 U.S. 420 (1984). Yet this critical information is what the agents were attempting to deny Mr. Nichols when they insisted, even as they were reading him his rights, that he was "not in custody" and was "free to go." [FN17] FN16. Of course, this question hardly ever arises because in the typical Miranda situation it is abundantly clear to the defendant that she is in a custodial situation -- indeed, it is precisely this awareness and the inherently intimidating nature of custody that requires the warnings in the first instance. Miranda. End of FN. FN17. These facts raise other questions about the good faith and efficacy of the Miranda warnings. Assuming arguendo the truth of the government's assertion that Mr. Nichols was not in custody at the time the warnings were given, would or could the warnings be honored? If Mr. Nichols had demanded appointed counsel, would the government have provided counsel? Would it be obliged to under Miranda? Under the logic of Miranda's "custodial interrogation" requirement, it appears that there would be no such obligation. This in turn suggests that the warnings were ineffective from the outset, and, contrary to the government's assertion, were not "commendable" but contributed to Mr. Nichols' deception. Brief of United States in Opposition to Defendants' Motions to Suppress Evidence ("Gov't Suppr. Opp."), at 45. End of FN. *41 205. While other circumstances surrounding the interrogation may have given Mr. Nichols other reasons to understand that he was in fact in custody -- particularly as the interrogation progressed through nine hours of questioning -- it is clear that the government deliberately attempted to undermine this understanding at the very moment the agents were reading Mr. Nichols his rights. Under these circumstances, a waiver of those rights cannot be deemed valid. 206. In any event, it is clear that there was never a waiver of his rights even if Mr. Nichols was not misled by the government about his situation. When offered the Advice of Rights form to sign, Mr. Nichols refused because he found it -- and its suggestion that he was to be subjected to an "interrogation" -- reminiscent of Nazi Germany. A more pointed refusal to waive one's rights is difficult to imagine. Indeed, Mr. Nichols twice refused to sign the waiver form, once at the beginning and once at the end of his interrogation, just after he was placed under arrest. 207. The Ninth Circuit has explained that [a defendant's] refusal to sign the printed waiver form casts initial doubt on any claim that he waived his Miranda right. Most persons attach considerable significance to the refusal to sign. By presenting a waiver form for signature, and then proceeding in the face of a refusal to ask if he may ask questions anyway, the police officer at best created an ambiguous situation. [The defendant] could reasonably have believed that he waived nothing because he had refused to sign. United States v. Heldt, 745 F.2d 1275, 1277 (9th Cir. 1984). See also McDonald v. Lucas, 677 F.2d 518, 521 (5th Cir. 1982) (Wisdom, J.) (presuming lack of waiver when defendant refused to sign waiver form). The conclusion that Mr. Nichols "could reasonably have believed that he had waived nothing" is buttressed by his request to inspect the FBI's notes of the interrogation to ensure their accuracy. Mr. Nichols plainly believed that only the corrected notes could be used against him, and he relied on the government's promise to honor this request in agreeing to speak. 208. It is certainly true, as the government points out, that a refusal to sign a waiver form does not preclude a finding of implied waiver. Gov't Suppr. Opp. 48; Butler, supra; United States v. Austin, 933 F.2d 833, 835-36 (10th Cir. 1991). The test of a valid waiver is whether it is freely and voluntarily made under the "totality of the circumstances," however, Amos, supra, and none of the cases cited by the government involved simultaneous references to Nazi Germany by the refusing defendant. Moreover, Mr. Nichols came to the station to have his own questions answered. Given his unequivocal refusal to sign, his continued responses to the agents' questions is most plausibly interpreted as evincing his own continuing desire for information, rather than any waiver of his rights. *42 209. Even more significant, Agent Smith, who annotated the Advice of Rights form to indicate that "Nichols acknowledged that he understood his constitutional rights, but refused to sign this FD-395 form," nowhere intimated that Mr. Nichols had affirmatively agreed to waive those rights. 210. For the reasons discussed previously, the other government deceptions -- including the deliberate decision not to inform him of Mr. Phillips' phone call -- are relevant in this context as well. 211. Given the government's deliberate attempts to deceive Mr. Nichols about his custodial situation, and given his repeated refusals to sign the Advice of Rights form, under the totality of the circumstances his waiver of his Miranda rights cannot be deemed valid. iii. The interrogation violated Mr. Nichols' due process rights as a material witness. 212. Authority to arrest a person as a material witness is a creature of statute. [FN18] Currently, authority to arrest a material witness in a federal criminal proceeding derives from 18 U.S.C. s 3144, which states: FN18. The original statute authorizing detention of witnesses was probably the second Act of Philip and Mary 2 & 3 Phil. & Mar., ch. 10 (1555). Express authority to detain witnesses in federal proceedings was granted in enactments dating from 1789 until 1948, when the Federal Rules of Criminal Procedure came into force. From 1948 through 1984, arrest authority was inferred from F. R. Crim. P. 46(b) and other statutes which permitted judicial officers to grant or deny bail to material witnesses. Section 3144 was enacted in 1984. For a summary of the early English history, see Stacy Studnicki, "Material Witness Detention: Justice Served or Denied?", 40 Wayne L. Rev. 1533 (1994); for a summary of the federal history, see In re Bacon v. United States, 449 F.2d 933, 936-41 (9th Cir. 1971). End of FN. If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the [bail] provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure. 213. A material witness arrest warrant thus differs significantly from a standard arrest warrant in both purpose and practice. The limited purpose of a material witness warrant is to ensure a witness' appearance at a criminal proceeding where there is a likelihood that a subpoena will be inadequate to the task. See 18 U.S.C. s 3144. Indeed, the proviso of s 3144 requiring release of a witness if her testimony "can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice" demonstrates Congress' intent that the least intrusive means necessary be used to obtain the otherwise unavailable testimony. This stands in stark contrast to a criminal arrest warrant, which contemplates an extended deprivation of liberty beginning with potential pretrial jailing and extending through postconviction imprisonment. As one court has explained the distinction, "[t]he object of [a] material witness statute is not custody, of course, but assurance that the witness will appear and testify." Application of Cochran, 434 F.Supp. 1207, 1212 n.11 (D.Neb. 1977). *43 214. Thus, "[t]he material witness is an innocent citizen whose right to the full enjoyment of liberty is threatened solely because of his potential usefulness as a witness for the government." Cochran, 434 F.Supp. at 1213. Given this narrow justification for the substantial infringement of liberty that attends a custodial arrest, it is clear that "the arrest and detention of a witness is an exceptional measure to be employed only in instances where voluntary cooperation appears unfeasible." White by Swafford v. Gerbitz, 892 F.2d 457, 465 (6th Cir. 1989) (Nathaniel Jones, J., concurring and dissenting). 215. Like other arrests, however, a material witness may only be arrested upon a showing of probable cause. In re Bacon v. United States, 449 F.2d 933, 942 (9th Cir. 1971); White by Swafford, 892 F.2d at 464-65 (Jones, J., concurring and dissenting) ("the arrest and detention of a citizen as a material witness requires a showing of probable cause under the Fourth Amendment to the United States Constitution because under the Fourth Amendment 'the essential element is the physical restraint placed upon the person, not the purpose behind the restraint."') (cites omitted). Accordingly, a valid affidavit filed in support of a material witness arrest warrant under s 3144 must be sufficient to demonstrate probable cause to believe: (1) that the testimony of the person is "material" and (2) that "it may become impracticable to secure the presence of the person by subpoena." Bacon, 449 F.2d at 943 (decided under prior law; holding that the affidavit failed to demonstrate probable cause as to the "impracticability" branch). 216. Furthermore, apart from Fourth Amendment considerations, "commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection." Addington v. Texas, 441 U.S. 418, 425 (1979). A material witness therefore possesses due process rights as well. 217. The bedrock requirement of the due process clause is the right to be heard at a meaningful time and in a meaningful manner. Goldberg v. Kelly, 397 U.S. 254, 267 (1970). The determination of what constitutes "meaningfulness" depends on the "now familiar threefold inquiry" of Mathews v. Eldridge, 424 U.S. 319 (1976). This inquiry requires consideration of: "the private interest that will be affected by the official action"; "the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute safeguards"; and lastly "the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." *44 Connecticut v. Doehr, 501 U.S. 1, 10 (1991) (quoting Mathews, 424 U.S. at 335). 218. The two courts to have considered the question have held the due process clause requires that a person detained as a material witness be afforded the rights to appointed counsel, written notice of the alleged basis for detention, the opportunity to be heard in person and present witnesses and evidence, confrontation and cross-examination of witnesses, a neutral magistrate or other presiding officer, and a written statement of the decision maker regarding the grounds for the detention decision. In re Class Action Application for Habeas Corpus on Behalf of all Material Witnesses in the Western District of Texas, 612 F.Supp. 940, 943-46 (W.D.Tex. 1985) (henceforth "In re Class Action") (right to counsel under s 3144); Application of Cochran, 434 F.Supp. 1207, 1214 (D.Neb. 1977). 219. As these courts have recognized, the Mathews balancing tips decidedly in favor of protections for the material witness. The witness' "private interest" "strikes at the very heart of the values sought to be protected by our Constitution -- liberty." In re Class Action, 612 F.Supp. at 944. Moreover, although the threatened deprivation of liberty is "temporary by definition, [it] can be measured in weeks or even months." Cochran, 434 F.Supp. at 1213. The second factor -- "risk of an erroneous deprivation" by the procedures used -- is significant, given the difficulty in predicting whether a particular individual will respond to a subpoena or not. Id. at 1214. This also militates in favor of substantial procedural protections to make this prediction as accurate as possible. Finally, the government's legitimate -- but quite narrow when compared to its interests in regard to other arrestees -- interest in obtaining essential testimony at criminal proceedings is fully consistent with extensive protections for a material witness. Id. at 1214; In re Class Action, at 946. 220. These considerations dictate that, even if Mr. Nichols' statement on April 21 is deemed to be voluntary and his Miranda waiver valid, the April 21 statement must still be suppressed for two reasons: (1) the government's lengthy, deliberate delay in notifying Mr. Nichols of the arrest warrant, executing it, and bringing him promptly before the grand jury or a committing magistrate violated his due process rights; and (2) the statement was the fruit of an illegal arrest, because the government lacked probable cause to detain him under s 3144. (a) The statement was the fruit of the government's deliberate delay in informing Mr. Nichols of his status as a material witness and in bringing him before a judicial officer. *45 221. The minimal requirement of due process is the right to be made aware at a meaningful time and in a meaningful manner that the government has decided to take action against you. Goldberg, 397 U.S. at 267; see also Cochran, 434 F.Supp. at 1213. The government failed to honor that requirement by deliberately failing to inform Mr. Nichols that he was de facto under arrest and no longer free to leave after 4:30 p.m. on April 21. There is no legitimate competing governmental interest sufficient to outweigh Mr. Nichols' right to know his own custodial status. He was an innocent citizen- witness, and -- regardless of whether the government has a legitimate interest in perpetrating similar deceptions against other persons who are subject to arrest on criminal charges, as Agent Jablonski evidently believed (Jablonski pp. 535-37) -- no such interest in deceiving Mr. Nichols has any justification here. 222. As a material witness, Mr. Nichols also had a compelling interest in an immediate execution of the warrant so that he could quickly be brought before the grand jury and discharged, or, if he was to be held over for any length of time, be brought before a judicial officer so that he could be appointed counsel and argue his case for bail. A material witness has no less of a Fourth Amendment right to a speedy opportunity to challenge his detention than does a person arrested on suspicion of crime, Stone v. Holzberger, 807 F.Supp. 1325, 1338 (S.D.Ohio 1992), aff'd, 23 F.3d 408 (6th Cir. 1994), and arguably a far greater right. "Haste in the production of a person before a committing magistrate is of special importance when the only reason for his detention is as a material witness." Houston v. Humboldt County, 561 F.Supp. 1124, 1126 (D.Nev. 1983) (civil rights action based on prolonged detention as a material witness), aff'd sub nom., Houston v. Bryan, 725 F.2d 516 (9th Cir. 1984); Holzberger, 807 F.Supp. at 1338 (same). 223. A criminal arrestee's analogous -- although less compelling -- right to a prompt judicial hearing is also embodied in F. R. Crim. P. 5(a), which requires the officer to take the arrested person "without unnecessary delay" before the nearest available federal magistrate judge or other authorized judicial officer. The Supreme Court has held that this right is judicially enforceable by suppression of any statements taken from a defendant during a period of "unnecessary delay" between arrest and presentation to the judicial officer. McNabb v. United States, 318 U.S. 332 (1943); Mallory v. United States, 354 U.S. 449 (1957). At least one court has recognized that the McNabb/Mallory rule is applicable where a witness is arrested under the federal material witness statutes as well. United States ex rel. Glinton v. Denno, 309 F.2d 543, 544 (2d Cir. 1962), cert. denied, 372 U.S. 938 (1963) (habeas case challenging introduction of statements made by a New York State material witness during a period of illegal detention; court noted that "[i]t seems reasonably clear that such statements could not be properly introduced in evidence in a federal trial had they been obtained from a person illegally detained under color of the similar federal [material witness] provision"). [FN19] FN19. This rule has been modified by subsequent legislation, 18 U.S.C. s 3501(c), which provides in relevant part that a confession shall not be inadmissible solely because of delay in bringing such person before a magistrate ... if such confession is found by the trial judge to have been made voluntarily and ... if such confession was made or given by such person within six hours immediately following his arrest or other detention: Provided, That the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before a magistrate ... beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate .... The precise effect of s 3501(c) on the McNabb/Mallory rule is a subject of dispute. After exhaustively canvassing Tenth Circuit and other case law and the legislative history, one court has recently concluded that the correct rule under s 3501(c) is that "where a confession is made after six hours following arrest but prior to arraignment and where the delay between arrest and arraignment is unreasonable, such delay permits exclusion of a confession, regardless of voluntariness." United States v. Wilbon, 911 F.Supp. 1420, 1425 (D.N.M. 1995). In any event, because Mr. Nichols' rights as a material witness flow from the Due Process Clause and not the McNabb/Mallory rule itself, s 3501 is not applicable here. End of FN. *46 224. Finally, the warrant itself -- a judicial order -- requires that Mr. Nichols be brought "forthwith" before the grand jury. This formal demand for immediate action by the government agents not only represents the legitimate interest of the grand jury and judiciary in an expeditious judicial process, but it is fully consistent with Mr. Nichols' private interest in speedy execution and prompt appearance before a magistrate, with the very limited infringement on a person's liberty justifiable under the material witness statutes, and with Congress' own determination in s 3144 that material witnesses' liberty be restricted only by the least intrusive means required. 225. Against these considerations there is no legitimate countervailing interest that can justify the government's extended delay in executing the warrant and bringing Mr. Nichols before a judge. No practicalities intervened -- a judge was available and only a phone call away from the moment the warrant was signed. Before the arrest warrant was even signed, United States Attorney Rathbun had personally arranged for Judge Belot to be on call and available for just this purpose on the afternoon of April 21. Rathbun pp. 258-59. The government's only interests in delaying Mr. Nichols' formal arrest and initial appearance were illegitimate -- its interest in keeping Mr. Nichols ignorant of his true status as one who was not "free to go," in keeping him from learning of the need to exercise his rights, in keeping him unrepresented by counsel, [FN20] and in keeping him talking regardless of his real desires had he been apprised of his actual situation. Deliberate deception aimed at disobedience or resistance to the court's warrant is potentially punishable as a criminal offense under 18 U.S.C. s 401(3), as is deliberately "engag[ing] in misleading conduct toward another person, with intent to ... cause or induce any person to ... evade legal process summoning that person to appear as a witness ... [or] ... be absent from an official proceeding to which such person has been summoned by legal process" under 18 U.S.C. s 1512(b). FN20. See 18 U.S.C. s 3006A(a)(1)(G) (requiring appointment of counsel for financially eligible persons "in custody as a material witness"). Mr. Nichols also had a due process right to counsel, see In re Class Action, supra; Cochran, supra. This right became effective as of the time the material witness arrest warrant was signed. The government argues strenuously in its Suppression Opposition that the Sixth Amendment right to counsel cannot vest at the time an arrest warrant is signed, because to recognize a right to counsel with respect to warranted arrests but not warrantless arrests would discourage the use of arrest warrants. Gov't Suppr. Opp. 54-5 (citing United States v. Duvall, 537 F.2d 15 (2d Cir.), cert. denied, 426 U.S. 950 (1976). Since s 3144 only authorizes warranted arrests of material witnesses, however, this objection has no force in this context. Thus, the signing of the material witness arrest warrant marks the "formal initiation of adversary judicial proceedings," Moran, 475 U.S. at 432, for all material witnesses arrested under s 3144. End of FN. *47 226. Accordingly, because Mr. Nichols' due process rights were violated by the government's deliberate decision to interrogate him for nine hours, rather than bring him "forthwith" before the grand jury or committing magistrate, the resulting statement must be suppressed. (b) The statement was a fruit of an illegal arrest. 227. A voluntary statement given after a valid Miranda warning may still be suppressed if it is found to be the fruit of an illegal arrest. Lanier v. South Carolina, 474 U.S. 25 (1985) (per curiam); Taylor v. Alabama, 457 U.S. 687, 690 (1982). At least as of 4:30 p.m., when the material witness arrest warrant had been signed and government agents at the Herington Department of Public Safety had been informed, Mr. Nichols was no longer "free to go" and was therefore de facto under arrest. This was an illegal arrest, because the government lacked probable cause at the time to detain him as a material witness. 228. To lawfully arrest a person as a material witness pursuant to s 3144, the government must submit an affidavit demonstrating, inter alia, probable cause to believe that "it may become impracticable to secure the presence of the person by subpoena." Bacon, 449 F.2d at 943. The affidavit submitted in support of the material witness arrest warrant here fails to meet that requirement. DX 54. Indeed, with regard to Mr. Nichols it recites little more than that he "may have been" accompanied by Timothy McVeigh while visiting his brother James in Michigan on April 7, 1995; that he and his brother are "former members" of a "right wing organization" that engages in military exercises; that Terry Nichols has "publicly renounced" his citizenship; and that he "has been experimenting with chemicals and fertilizer." DX 54, Affidavit pp 4, 5. The affidavit does not even recite -- as it does of James Nichols -- that Terry Nichols is a "friend and associate" of Tim McVeigh. p 4. 229. These allegations consist of little more than claims about Mr. Nichols' political views and affiliations that have no bearing on the likelihood that he would respond to a subpoena. Membership in a group holding "right wing" views, or "publicly renouncing" one's citizenship, does not translate into a probability that an individual will avoid lawful process. The patent insufficiency of these allegations is especially striking when they are compared with other reported cases addressing the sufficiency of material witness arrest affidavits. See Bacon, 449 F.2d at 941 n.6 (probable cause allegations insufficient because conclusory; affidavit alleged that "Leslie Bacon will avoid process if at all possible, and ... will flee the jurisdiction of this Court and the United States of America in order to avoid giving her information to the Grand Jury"); United States v. Coldwell, 496 F.Supp. 305 (E.D. Okla. 1979) (allegations sufficient; witness declared through his attorney that he would not testify in response to subpoena, secreted himself, and failed to appear for his probation office visits). *48 230. The only allegation that remotely supports probable cause to believe that it might become impracticable to obtain Mr. Nichols' presence by subpoena appears on the face of the warrant itself: "[Mr. Nichols] has attempted to leave the jurisdiction of the United States." DX 54. The problem with this allegation is that it was patently and knowingly false at the time it was submitted to Chief Judge Russell for his signature. The affiant, Henry Gibbons, learned around the time the affidavit and warrant were being prepared that Mr. Nichols had voluntarily appeared at the Herington police station. Gibbons, p. 122. Mr. Gibbons nevertheless failed to include this fact in the affidavit or otherwise inform the judge of it. Id. Indeed, he repeated this falsehood in the "second" material witness arrest warrant for Mr. Nichols issued that day. 231. Even assuming arguendo that the good faith exception to the warrant requirement is deemed to apply to warrants obtained under s 3144, United States v. Leon, 468 U.S. 897 (1985), it is clear that the required good faith is lacking here. Leon continued to recognize that "[s]uppression ... remains an appropriate remedy if the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth." Id. at 923 (citing Franks v. Delaware, 438 U.S. 154 (1978)). Mr. Gibbons testified to his belief that he was made aware of Mr. Nichols' presence at the Herington police station at about the same time that he began preparing the warrant. [FN21] The failure to include this fact -- which alone negates probable cause to believe that Mr. Nichols would refuse to obey a subpoena -- establishes, at a minimum, "a reckless disregard for the truth" within the meaning of Franks and Leon. See Beard v. City of Northglenn, 24 F.3d 110, 114 (10th Cir. 1994) (deliberate or recklessly made omissions satisfy Franks). This omission is compounded by the equally recklessly made falsehood that Mr. Nichols had attempted to leave the country. FN21. Of course, apart from Mr. Gibbons' actual knowledge of Mr. Nichols' voluntary appearance at the police station, the testimony established a tight link of communications among the Oklahoma City command post, where the warrants were being prepared, the Herington Department of Public Safety, and the FBI SIOC in Washington. Mr. Gibbons was acting at the behest of his superiors when he prepared the material witness warrant, and it is their knowledge -- which early on included knowledge of Mr. Nichols' voluntary appearance at the police station -- that is the measure for Franks purposes. End of FN. 232. Since the material witness arrest warrant was invalid, it is the government's burden to prove that the "taint" of the illegal detention has been purged by some intervening event if it wishes to introduce a statement made during the detention. Taylor, 457 U.S. at 690. Relevant factors in this regard are "'[t]he temporal proximity of the arrest and the confession, the presence of intervening circumstances, ... and, particularly, the purpose and flagrancy of the official misconduct." Id. (quoting Brown v. Illinois, 422 U.S. 590, 603-04 (1975)). *49 233. The government cannot meet its burden. Mr. Nichols statement occurred during the period of the illegal detention, so that the "temporal proximity" was immediate, and there were no intervening circumstances. Moreover, the government misconduct was flagrant -- obtaining a material witness arrest warrant by deliberately or recklessly withholding relevant facts and fabricating others and then deliberately delaying informing Mr. Nichols of the warrant and executing it for the sole purpose of extracting information from him. Accordingly, the statement is the tainted fruit of the illegal arrest warrant, and must be suppressed. b. The April 22 Statements. i. Mr. Nichols was not given his Miranda warnings on April 22. 234. There is no dispute that Mr. Nichols was not given new Miranda warnings during the drive with Agents Smith and Crabtree from the Abilene jail to his initial appearance before a judge in Wichita in the afternoon of April 22. Nevertheless, prompted by the agents' questions, he gave additional statements in the car and again at the Wichita courthouse holding cell immediately prior to Mr. Nichols' first meeting with his appointed counsel. Crabtree pp. 477, 485-86; Smith p. 360. 235. At the outset, it is clear that the warnings given to Mr. Nichols following his arrest shortly after midnight in the early morning of April 22 do not satisfy the Miranda requirement. There is not even a colorable claim that he waived his rights, since he refused to sign the form and made no statement thereafter. 236. Moreover, even if he had waived at that point in time, this waiver would not have insulated the statements he made after spending a night and morning in jail. "The Miranda warnings, once given, are not to be accorded unlimited efficacy or perpetuity." United States v. Hopkins, 433 F.2d 1041, 1045 (5th Cir. 1970), cert. denied, 401 U.S. 1013 (1971). In determining whether a delay following a waiver renders a subsequent interrogation invalid, courts look to the totality of the circumstances. See Wyrick v. Fields, 459 U.S. 42 (1982) (requirement of additional warning of right to counsel after initial valid waiver evaluated under totality of the circumstances). Here at least fourteen hours elapsed between the time Mr. Nichols was last informed of his Miranda rights and the time he was questioned by the agents during his transportation to court. Almost 24 hours had passed since the last time that a waiver of those rights can even colorably be inferred. Between these events Mr. Nichols was interrogated for nine hours, was arrested for the first time in his life, and spent a night in jail. In these circumstances, whatever salutary effect being warned of his Miranda rights provided Mr. Nichols on the previous day, they plainly do not insulate the government's conduct on the following afternoon. 237. The agents, on the other hand, suggested that the April 22 statements were all volunteered by Mr. Nichols, Smith p. 360, which would obviate the need for additional Miranda warnings. Rhode Island v. Innis, 446 U.S. 291 (1980). In particular, the agents claimed that Mr. Nichols initiated the conversation in the car by asking whether his home had been searched yet, to which the agents responded in the negative and proceeded to inquire about booby-traps in his house. Smith pp. 357-58; Crabtree p. 485. Thereafter, at the Wichita Federal Building, while Mr. Nichols was in a holding cell awaiting his initial appearance, agents Smith and Crabtree sent word through a deputy marshal that they were available to speak to Mr. Nichols if he wished. Crabtree p. 477; Ingermanson p. 960. Presumably the government takes the position that the statements Mr. Nichols made upon receiving this invitation were "volunteered" as well. *50 238. By responding to Mr. Nichols' initial question about the search of his home with a broader and only tangentially related question regarding "booby traps" and other dangerous items in his home, it was the agents and not Mr. Nichols who initiated the ensuing questions and resulting statements by Mr. Nichols. Smith p. 360 ("the questioning did continue" on the way to Wichita). Mr. Nichols' question whether his home had been searched yet cannot be said to have "evinced a willingness and a desire for a generalized discussion about the investigation," Oregon v. Bradshaw, 462 U.S. 1039, 1045-46 (1983) (plurality opinion) (test for "initiation" after defendant invokes right to counsel), but was narrowly directed at a single issue of immediate personal concern to him. The agents' questions in response clearly went beyond permissible narrowly- tailored "follow up" questions. See R. LaFave & Jerold H. Israel, Criminal Procedure s6.7(d), at 332 (2d ed. 1992) ("The better view ... is that the part of defendant's statement given after the follow-up questions is volunteered only if the questions are neutral efforts to clarify what has already been said rather than apparent attempts to expand the scope of the statement previously made."). 239. Moreover, in responding to Mr. Nichols' question with a question of their own that implicated other agents' safety, the agents were plainly playing on Mr. Nichols' sympathies in the hope of eliciting further incriminating statements. Crabtree pp. 485-86 (concern for others entering the home motivated his question to Mr. Nichols about booby-traps). The agents' use of this variant of the "Christian burial speech" tactic of inducing a person in custody to "volunteer" information, see Brewer v. Williams, 430 U.S. 387 (1977), also shows that it was they, not Mr. Nichols, who were expanding the scope of the discussion beyond his initial narrow question. 240. The statements made by Mr. Nichols in the holding cell prior to his court appearance was even more clearly initiated by the agents. A reasonable agent should certainly be aware that a statement to a person in custody announcing the agent's desire and availability to speak to the person is "reasonably likely to evoke an incriminating response." Innis, 446 U.S. at 301. Indeed, the agents' message was the functional equivalent of the statement, "I would like to talk to you. Would you like to talk to me?" -- which would plainly be held to constitute "interrogation" for Miranda purposes. That this interrogation continued almost literally up to the moment that Mr. Nichols first met his own counsel simply demonstrates the deliberate nature of this misconduct. The April 22 statements should be suppressed. ii. The April 22 statements were involuntary. 241. The April 22 statement was also involuntary under the Due Process Clause of the Fifth Amendment. The FBI had jailed Mr. Nichols in Abilene, which is north of Herington, even though the court to which he was to be taken was in Wichita, which is south of Herington. The evident purpose of this stratagem was to afford more time for interrogation during transport. As a result, Mr. Nichols was confined in an FBI vehicle for 90 minutes with the agents. Unlike a jailhouse interrogation, where a request to discontinue questioning would cause the agents to leave him alone, Mr. Nichols was trapped with the agents for this time regardless of his desire not to speak to them. The trip to court followed a night in jail and separation from his wife and infant daughter, nine hours of interrogation -- which culminated in the agents becoming "confrontational" with him -- and arrest. The fact that no Miranda warnings were given is relevant to this inquiry as well. *51 242. These facts bear a striking resemblance to the successful claim of the defendant in United States v. Fouche, 776 F.2d 1398 (9th Cir. 1985). Fouche was arrested at approximately 2:30 p.m. on May 3, 1984 on suspicion of bank robbery and confessed to two bank robberies sometime before 6:00 p.m. the same day. During the 15 minute drive to his arraignment on the next day he confessed to two more robberies. He moved to suppress the second confession as involuntary, based, inter alia, on an unreasonable pre-arraignment delay of 20 hours between arrest and arraignment. The Ninth Circuit agreed, finding that "[t]he nearest magistrate was only 15 minutes away, and at least two FBI agents were available to transport Fouche" earlier in the morning of the day of his arraignment. Id. at 1406. The court went on to find: [A]t the time Fouche made his second confession, he was without benefit of counsel, notwithstanding his previous equivocal request for counsel. He was confined in a police car with the same two FBI agents who had interrogated him the day before. Given Fouche's prior equivocal request, the absence of an attorney, the oppressive circumstances of a second interrogation in a police car, and the length of time Fouche had been unreasonably detained without arraignment, we find that the district court did not err in suppressing the confession as the involuntary product of unreasonable pre-arraignment delay. Id. at 1407. 243. Mr. Nichols' mental state on April 22 clearly reflected this emotional battering. His disorientation is obvious from the transcript of the hearing, in which he told Judge Belot, "It's all a jumble in my brain." GX 35 p. 3. Mr. Nichols' counsel also confirmed Mr. Nichols' confusion: "I believe that he's probably a little bit confused and a little bit shaken right now." Id. p. 3. Under these circumstances, Mr. Nichols' statements cannot be deemed to be voluntary. iii. The April 22 statements violated Mr. Nichols' due process rights as a material witness. 244. At the time Mr. Nichols gave the statements on April 22, he had been in the government's custody for almost 24 hours without having been brought before the grand jury (as required by the warrant) or a committing magistrate. This delay was totally unreasonable and unnecessary, given the availability of Judge Belot on the preceding day (and, presumably, the morning of April 22 as well). Fouche, 776 F.2d at 1406. 245. Moreover, his arrest remained illegal -- no additional probable cause entitling the government to arrest him, either as a material witness or criminal suspect, had been produced at that time -- and the April 22 statements were the fruits of that illegal detention. Thus, for the reasons discussed above, the statements violated Mr. Nichols' due process rights as a material witness and should be suppressed. B. AGENT REIGHTLER'S TRESPASS ONTO THE CURTILAGE. a. The Nichols' garage was entitled to 4th Amendment Protection. *52 246. The curtilage of a home, the area which is "intimately linked to the home, both physically and psychologically," is entitled to the same Fourth Amendment protection as the home itself. California v. Ciraolo, 476 U.S. 207, 213 (1986). The issue is whether an area harbors the "intimate activity associated with the sanctities of a man's home and privacies of life." United States v. Dunn, 480 U.S. 294, 300 (1987) (quoting Boyd v. United States, 116 U.S. 616, 630 (1886)). 247. "[G]arages are commonly used for the storage of many household items besides automobiles. They are not like distant open barns or open fields to which the general public is given visual access." Los Angeles Police Protective League v. Gates, 907 F.2d 879 (9th Cir. 1990) (holding that garage was part of curtilage and entitled to Fourth Amendment protection). The garage in this case is within fifteen feet of the home and is attached via a short concrete walkway. It is within the same wire fence perimeter as the home. The shades on the garage windows, similar to normal household window shades, also evidence the Nichols' expectations of privacy with respect to the garage. As curtilage to the Nichols home, the garage is entitled to Fourth Amendment protection. See United States v. Swepston, 987 F.2d 1510, 1514-15 (10th Cir. 1993) (holding that chicken shed located 100 feet from home and connected via path was considered part of curtilage and suppressing evidence of aerial observation). b. Agent Reightler's warrantless search of the garage was not justified by Mr. Nichols' consent to search. 248. Mr. Nichols' consent to search his home was conditioned upon either his presence or his wife's presence, and this condition was not met when Agent Reightler peered through the windows. Because Reightler searched without either Mr. or Mrs. Nichols being present, the search was outside the scope of consent and is constitutionally infirm. United States v. Martinez, 949 F.2d 1117 (11th Cir. 1992); see also United States v. Abcasis, 785 F.Supp. 1113, 1121 (E.D.N.Y. 1992) (deciding to hold hearing to determine whether consent to search was given unqualifiedly or whether defendant consented to search only on the condition that he be present). c. Agent Reightler's warrantless search of the Nichols property was not justified by any exigent circumstances. 249. "A well-settled tenet of Fourth Amendment jurisprudence is that searches conducted without a warrant and probable cause are per se unreasonable, subject to only four exceptions." United States v. Gay, 774 F.2d 368, 376 (10th Cir. 1985). 250. Because reasonableness defines the scope of the Fourth Amendment's protection against government interference with an individual's privacy interest, the Supreme Court has recognized certain exceptions to the requirement of a warrant, including the exigent circumstances exception. Coolidge v. New Hampshire, 403 U.S. 443, 474-75 (1971); see also Warden v. Hayden, 387 U.S. 294 (1967) (holding that a warrantless entry of a home is reasonable when officers are in hot pursuit of a suspect). *53 251. Exceptions, however, are "'few in number and carefully delineated,' and the government bears a heavy burden when attempting to demonstrate an urgent need that might justify [a] warrantless search." Welsh v. Wisconsin, 466 U.S. 740, 749-50 (1984) (quoting United States v. United States District Court, 407 U.S. 297, 318 (1972)); see also United States v. Aquino, 836 F.2d 1268, 1270 (10th Cir. 1988) (cautioning that exigent circumstances must be "jealously and carefully drawn"). Furthermore, in determining whether exigent circumstances are present for a warrantless search of a home, one should keep in mind that "the home and its traditional curtilage is given the highest protection against warrantless searches and seizures." United States v. Warner, 843 F.2d 401, 405 (9th Cir. 1988). 252. Officers are entitled to enter without a warrant to secure evidence if they have reason to believe evidence may be destroyed or removed before a warrant can be obtained or there exists a real danger of bodily harm to the public or police, but as the Tenth Circuit emphasized, "by reason to believe, we mean reason to believe, mere guesswork or whim will not do." United States v. Cuaron, 700 F.2d 582, 586 n.4 (10th Cir. 1983). 253. In order for an officer's concern for the safety of others to be reasonable, the officer's concern must be supported by specific, articulable facts -- mere speculation that an emergency exists will not suffice. United States v. Whitten, 706 F.2d 1000, 1014 (9th Cir. 1983), cert. denied, 465 U.S. 1100 (1984). Similarly, while a police officer may engage in a warrantless search where he fears additional violence, in this case [t]ime was ample; manpower abounded, the premises were surrounded and secured; the neighbors had been led to safety ... all in all, the situation was in good control. There is simply no credible evidence to suggest that obtaining a search warrant would have increased the risk of violence, escape, or destruction of evidence. United States v. Curzi, 867 F.2d 36, 42 (1st Cir. 1989). 254. Agent Reightler cited no specific, articulable facts to support his claim that he feared for his own safety or the safety of others while securing the Nichols home. No one had entered or exited the home for well over five hours by the time Reightler looked into the windows, and all of the nearby homes had been evacuated. Reightler himself had been walking across the property as early as 6:30 p.m., in broad daylight, without fear for his safety. It was two and one half hours after his initial arrival at the scene, and a full five hours after the home had been secured by the FBI, after nightfall and under the cover of darkness, that Reightler chose to peer through the garage window. *54 255. The fact that Agent Reightler examined the interior of the garage because he believed the property owner had given consent undermines his claim that exigent circumstances required his trespass. By his own admission, his 302 report (DX B2), and his later conversation with Randall Rathbun, Reightler entered the premises under the misinformed belief that the FBI had obtained consent, and not due to any special circumstances. 256. By the time of his second look into the garage, Reightler had been told that a search warrant would be executed the following day. His claim that he smelled an ammonia-type odor all day is a dubious one. The existence of any ammonia smell is questionable at best, as is the notion that Reightler would wait until after dark, three hours after his first whiff, to act upon the scent. Agent Reightler had no articulable reason to fear for the safety of any law enforcement officer, and therefore the search of the garage cannot be supported on the grounds of exigent circumstances. See United States v. Suarez, 902 F.2d 1466, 1468 (9th Cir. 1990) (finding no exigent circumstances existed where the government had not shown that agents possessed more than a "subjective belief that danger existed"); Parkhurst v. Trapp, 77 F.3d 707, 711 (3rd. Cir. 1996) (holding that exigent circumstances exception to a warrantless search did not apply where officers could not reasonably believe that an imminent threat existed). 257. The government's cases do not support the proposition that exigent circumstances existed in this case. The government correctly cites United States v. Lindsey, 877 F.2d 777 (9th Cir. 1989) for the proposition that "[e]xigent circumstances are frequently found when dangerous explosives are involved." However, all of the cases Lindsey cites are cases in which government agents have received specific, reliable information leading them to believe that the danger of an explosion is imminent. See United States v. Sarkissian, 841 F.2d 959, 961-62 (9th Cir. 1988) (wiretaps of defendants' phones indicating that defendants were part of an international terrorism ring, and that defendants may have been in the process of transporting assembled bombs via airplane); United States v. Echegoyen, 799 F.2d 1271 (9th Cir. 1986) (holding that private citizen's complaint, coupled with firefighters' conclusion that ether smell from household methamphetamine lab was a fire hazard, constituted exigent circumstances to justify warrantless entry); United States v. Al-Azzawy, 784 F.2d 890, 894 (9th Cir. 1985), cert. denied, 476 U.S. 1144 (1986) (finding officers' entry reasonable under the exigent circumstances exception where officers reasonably believed that the defendant was "in an agitated and violent state" in his trailer home). *55 258. Because Mr. Nichols never gave a valid consent to the search of his home, and no exigent circumstances existed to justify entrance by law enforcement, the two entries onto the curtilage surrounding Mr. Nichols home to peer into the garage violated Mr. Nichols' Fourth Amendment rights. The information gleaned from the unlawful search--that the garage contained plastic drums--was unlawfully obtained and therefore tainted all subsequent searches based in whole or in part on this evidence. C. THE CONSENTS PROCURED FROM MARIFE NICHOLS WERE INVALID. a. The Consents were Involuntary. 259. Mere submission to apparently lawful authority does not equate to a valid consent to search. Consent must be unequivocal and freely and intelligently given. United States v. Manuel, 992 F.2d 272, 275 (10th Cir. 1993). The government has the burden to establish the voluntariness of any consent. United States v. Recalde, 761 F.2d 1448, 1453 (10th Cir. 1985). The government must show there was no duress or coercion, express or implied, that the consent was unequivocal and specific, and that it was freely and intelligently given. United States v. Iribe, 11 F.3d 1553 (10th Cir. 1993). 260. Factors traditionally associated with involuntary consents include youth, lack of education, lack of intelligence, the length of the detention, and the repeated and prolonged nature of the questioning. Schneckloth v. Bustamente, 412 U.S. 218, 226 (1973). See Wayne R. LaFave & Jerold H. Israel, Criminal Procedure s3.10 at 236 (2d ed. 1992) ("courts determining the voluntariness of a consent must assess whether the individual was immature and impressionable or experienced and well-educated"). 261. A court in assessing whether a consent was voluntary should look to the totality of the circumstances and see whether the situation was inherently coercive. Schneckloth v. Bustamente, 412 U.S. 218, 248-49 (1973); United States v. Iribe, 11 F.3d 1553, 1559 (10th Cir. 1993), aff'g, 806 F.Supp. 917 (D.Colo. 1992) (Matsch, J.); United States v. Recalde, 761 F.2d 1448, 1453 (10th Cir. 1985); see also United States v. Mendenhall, 446 U.S. 544, 558 (1980)(fact that 22 year-old black woman, non-high school graduate may have felt threatened by the white male officers was relevant to issue of voluntariness). 262. The totality of the circumstances surrounding Mrs. Nichols' detention for more than a month at the hands of the FBI indicates that she was a young, impressionable, pregnant, frightened mother, worried about the welfare of her daughter and utterly dependent on the FBI agents who kept asking for her consent to search. Not wanting to upset or "hassle" her captors/providers, she would have agreed to any search. When Mrs. Nichols did protest or raise objections, the FBI and the Army agents would make pronouncements asserting why she should sign. Even the explanation of the warrant process indicated to her that refusal on her part would merely take more time, cause a "hassle," and that a search would be conducted in any event. See United States v. Maez, 872 F.2d 1444, 1456 (10th Cir. 1989)(noting that woman was told by officers that if she refused to consent "they could simply get a warrant while she waited outside. This tends to undermine any salutary effect that advice of the right to refuse to consent might have had.") (citing United States v. Ocheltree, 622 F.2d 992, 993-94 (9th Cir. 1980)). *56 263. The plainest indication of the coercion inherent in all the consents signed by Mrs. Nichols was the form she signed purporting to allow the FBI to search for and seize her savings which were secreted in the box springs. It is undisputed that she objected strenuously to this seizure, and yet her signature was procured none the less. Given the manifest coercion which tainted this particular consent, and the totality of the circumstances surrounding all the other consents signed by Mrs. Nichols the government has not met its burden in establishing that Mrs. Nichols consent to search her home was voluntarily given within the 4th Amendment understanding of that term. Among other factors considered in the totality of the circumstances are the following: . Mrs. Nichols' physical and emotional state on April 21--pregnant, breast feeding, 5 feet tall, 100 lbs, separated from her husband, without any means of transportation, and only $200 in her pocket. . the suggestion that even if Mrs. Nichols refused to consent, a search would occur regardless. . Mrs. Nichols' education in another country, cultural background, including her difficulties with the language, and unfamiliarity with authorities. . the duration of the custody. . the persistence and continued persuasion by FBI Agents when Mrs. Nichols expressed doubt as to whether she should or could sign the various consent forms, including when at the time the first consent was presented stated that agents should be ask her husband rather than her for consent, and later when she used the "without prejudice" notation next to her signature. . the instruction to Mrs. Nichols that she should not leave a phone number where she could be reached. . the explicit suggestion through the demonization of the media that Mrs. Nichols was in danger and would not be protected if she were left to stay in her own home. . the refusal to allow Mrs. Nichols to return to her house for more than a few minutes. . the assignment, at least for the first week, of a constant FBI presence, as well as assigned companions for the rest of the 37 day period. . the involuntary shuttling of Mrs. Nichols from one city to another. 264. Mrs. Nichols reasonably believed herself to be in custody, did not believe herself to be free to leave, and believed that she had to "cooperate" in order to stay in her captors' good graces, so that she would eventually be permitted to depart either for the house in Herington or for the Philippines. 265. This conclusion is not obviated by evidence tending to show that Mrs. Nichols developed friendships and came to trust the agents who were assigned to guard and interview her. The United States has itself presented in prior cases psychological testimony about the so called "Stockholm Syndrome" where a captive comes to desire the company of her captors. See United States v. Peralta, 941 F.2d 1003, 1009 (9th Cir. 1991), cert. denied, 503 U.S. 940 (1992)(citing United States v. Chancery, 715 F.2d 543, 547 (11th Cir. 1983) (calling the Stockholm Syndrome "...a psychological phenomenon whereby a hostage develops positive feelings for his or her captor.")). Thus, the fact that Mrs. Nichols sent thank you letters (GX 65, GX 66, GX 67) or shared personal conversations about religious faith with an FBI agent, Dobson p. 1018, do not contradict the conclusion that Mrs. Nichols was coerced and did not voluntarily give the FBI consent to search her home. To the contrary, both the Mother's Day card sent by the FBI to Mrs. Nichols (DX W9), and the cards she sent to FBI, demonstrate her vulnerability to coercion as well as the asymmetric and necessarily coercive relationship that existed. Mrs. Nichols viewed herself as a child to her FBI parents. *57 266. None of the consents given by Mrs. Nichols can be considered truly voluntary and free from coercion or duress. Because each and every consent obtained from Mrs. Nichols was coerced and the result of duress, all evidence obtained from those consents must be suppressed, as well as all fruits therefrom. b. The Consents were the result of an illegal seizure. 267. The consents signed by Mrs. Nichols are invalid for a second reason: they were the result of an illegal seizure. Consents "given during a period of illegal detention are [invalid] even though voluntarily given if they are the product of the illegal detention and not the result of an independent act of free will." Florida v. Royer, 460 U.S. 491, 501 (1983). Mrs. Nichols "was confronted with a coercive custodial situation in which [she] had no real choice but to comply." United States v. Recalde, 761 F.2d 1448, 1454 (10th Cir. 1985). 268. A person is "seized" within the meaning of the Fourth Amendment, if "in view of all the circumstances surrounding the incident, a reasonable person would have believed he was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554 (1980); see also I.N.S. v. Delgado, 466 U.S. 210, 216 (1984) (when circumstances of encounter are so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded, questioning resulted in a detention under Fourth Amendment); Florida v. Bostick, 501 U.S, 429, 437 (1991) (seizure occurs where officers "convey a message that compliance with their requests is required"). 269. The test is objective and fact specific, examining what the police conduct would have communicated to a reasonable person based on all the circumstances surrounding the encounter. United States v. Little, 60 F.3d 708, 711 (10th Cir. 1995); see also United States v. Werking, 915 F.2d 1404, 1408 (10th Cir. 1990) (individual seized "only if he has an objective reason to believe that he was not free to end his conversation with the law enforcement official and proceed on his way"). 270. It is apparent from the testimony that no reasonable person in Mrs. Nichols circumstances at any time during her custody would have believed she was free to leave. See United States v. Little, 60 F.3d 708, 711-12 (10th Cir. 1995)(factors to consider in determining whether illegal seizure has taken place include whether questioning took place in confined space, fact that questioning took place outside public view, accusatory, persistent and intrusive nature of questioning by agents, failure of agents to inform that person had right to refuse to answer questions and right to refuse to accompany agent to other area); United States v. Royer, 460 U.S. 491, 501-02 (1983)(unlawful detention where police officers identified themselves as officers, retained defendant's air ticket, driver's license, without indicating in any way he was free to leave). *58 271. Confronted with consents signed subsequent to an illegal detention, a court must "then decide whether the subsequent consents to search were tainted by the unlawful [detention]." United States v. Maez, 872 F.2d 1444, 1449 (10th Cir. 1989). The government's burden of proving voluntariness of the consent "is heavier" when consent is given after an illegal detention. United States v. Gregory, 79 F.3d 973, 979 (10th Cir. 1996); United States v. Fernandez, 18 F.3d 874, 881 (10th Cir. 1994). When consent is obtained after an illegal detention there must be a break in the causal connection between the illegality and the evidence thereby obtained. Id. The government must show not only that consent is voluntary in fact, but it must also demonstrate a break in the causal connection between the illegality and the consent, so that the court will be satisfied that the consent was "sufficiently an act of free will to purge the primary taint." United States v. Melendez- Garcia, 28 F.3d 1046, 1054 (10th Cir. 1994), quoting Wong Sun, 371 U.S. at 486. 272. Significant factors to consider in determining whether a break in the causal chain has occurred include the temporal proximity to the detention, the presence of intervening circumstances, and the purpose and flagrancy of the official misconduct. Maez, 872 F.2d at 1454; Gregory, 79 F.3d at 979. "Weighing these factors the Court must decide the ultimate question whether the consent was sufficiently an act of free will to purge the primary taint of the illegal arrest." Maez, 872 F.2d at 1454. 273. There was no such break in this case. Indeed, the flagrancy of the official misconduct accelerated with the progression of Mrs. Nichols' detention. The FBI essentially used Mrs. Nichols as a passport to conduct their searches for evidence against her husband. Recording phone calls, searches of the house, searches of the truck -- at every turn, the FBI resorted to the impressionable, vulnerable and malleable Mrs. Nichols to sign another consent. It is by no means dispositive that the forms she was given contained a provision that she could refuse to consent. Recalde, 761 F.2d at 1458-59; see also United States v. Gonzalez, 763 F.2d 1127, 1133 (10th Cir. 1985) (consent fruit of illegal detention where officer did not inform defendant he was free to leave when handing him consent form). 274. Because the consents signed by Mrs. Nichols were the result of an illegal detention, they cannot be used to justify any of the government's searches. [FN22] FN22. An independent ground for suppressing all fruits of Mrs. Nichols' statements to the agents and attorneys at the May 9 and 17 meetings in Oklahoma City is that these meetings constituted an abuse of grand jury process. Mrs. Nichols pp. 771-3, 777 (describing meetings). The context and use to which the grand jury subpoenas issued to Mrs. Nichols were put demonstrate that their purpose was never to have her testify, but to prolong her obligation to remain under the FBI's control and to give the government attorneys ready access to her for interrogation outside the precincts of the grand jury. However, "[t]he Constitution of the United States, the statutes, the traditions of our law, the deep rooted preferences of our people" ... do not recognize the United States Attorney's office as a proper substitute for the grand jury room and they do not recognize the use of a grand jury subpoena, a process of the District Court, as a compulsory administrative process of the United States Attorney's office. .... It was clearly an improper use of the District Court's process for the Assistant United States Attorney to issue a grand jury subpoena for the purpose of conducting his own inquisition. Durbin v. United States, 221 F.2d 520, 522 (D.C. Cir. 1954) (quoting United States v. O'Connor, 118 F.Supp. 248, 250-51 (D.Mass. 1953)). See also In re Melvin, 546 F.2d 1, 5 (1st Cir. 1976). Since it is apparent that "conducting [their] own inquisition" was the true purpose for the grand jury subpoena issued to Mrs. Nichols, her statements and their fruits should be suppressed. End of FN. D. ALL EVIDENCE OBTAINED DURING THE COURSE OF THE WARRANTED SEARCH ON APRIL 22 MUST BE SUPPRESSED. *59 275. The government seeks to justify the warranted search of the Nichols home on April 22 on grounds of Mrs. Nichols' consent, the validity of the warrant, and inevitable discovery. Pre-Hearing Brief of the United States, Exhibit 1. The invalidity of Mrs. Nichols' consent has been addressed previously. It is also clear that the warrant was invalid and that the evidence would not inevitably have been discovered. a. The warrant was invalid. 276. Evidence obtained from the warranted search conducted on April 22 must be suppressed because (1) the affidavit of probable cause is based largely on the inadmissible statements of Mr. Nichols and observations of Agent Reightler on April 21 during his incursion on the Nichols' curtilage; (2) other allegations were knowingly or recklessly false when made and therefore may not be considered in the probable cause calculation, Franks v. Delaware, 438 U.S. 154 (1978); and (3) the remaining allegations do not constitute probable cause to search the Nichols residence. 277. Allegations of the affidavit of Agent Crabtree submitted with the April 22 warrant application that must be omitted if Mr. Nichols's statements and Agent Reightler's observations are suppressed are paragraphs 17 and 19. GX 19 pp 17, 19. 278. Other allegations were knowingly or recklessly false when made, and therefore must not be considered in determining whether the affidavit states probable cause for the search. Franks, supra. Agent Crabtree also deliberately or recklessly omitted facts which are material to the probable cause determination. It is well-established that such deliberate half-truths and omissions in an affidavit are as violative of a defendant's rights as outright lies. Beard v. City of Northglenn, 24 F.3d 110, 114 (10th Cir. 1994); Bruing v. Pixler, 949 F.2d 352 (10th Cir. 1991), cert. denied, 504 U.S. 911 (1992). 279. The first of these falsehoods concerned the operability of the fuel meter later seized from Mr. Nichols' garage. Paragraph 17(e) states that "[Mr.] Nichols also said that he had a fuel meter in his garage," and paragraph 21 adds the gloss that "[a]ccording to information provided by ATF bomb experts, the fuel meter referred to [] above could readily be used to obtain the proper blend of ammonium nitrate and diesel fuel." GX 19 pp 17(e), 21. 280. The reality was entirely otherwise, as Agent Crabtree conceded on the stand. In fact Mr. Nichols had from the outset told Agent Jablonski, subsequently reported to Agent Crabtree, that the fuel meter was never operable. Crabtree pp. 445, 447, 462. Nevertheless, the misleading, half- truthful report that Mr. Nichols was in possession of "a fuel meter" was passed on to Henry Gibbons, who then consulted with the ATF and generated the falsehood set forth in paragraph 21. Crabtree pp. 462, 449. Agent Crabtree conceded that this statement was inconsistent with the facts then known to the FBI. Crabtree p. 466. *60 281. In fact, as visual inspection of the photographs of the fuel meter reveals, it was recovered in pieces, many of which consisted of gears with broken teeth. DX W70; DX W71; DX W72. As Mr. Nichols had stated, it was entirely inoperable. Wilkinson Stipulation, p. 921. It was not even recognized as a fuel meter by the FBI photographer, see DX W68 (photograph); DX W77 (photo log labeling photo of fuel meter "large wooden crate in garage"), and was not seized during the April 22 search, although it was one of the specific items being searched for. Jasnowski p. 905, 904. Agent Burmeister, a trained specialist in bombs, noticed the fuel meter but did not recognize it as such and did not realize its significance when he saw it. DX W76; Burmeister pp. 15- 17. 282. Agent Crabtree's statement in the affidavit that "Mr. Nichols admitted that he knows how to make a bomb by blending ammonium nitrate with diesel fuel" is also false and misleading. GX 19 p17(d). In fact, Mr. Nichols told the agents that he had never made any explosive devices using fertilizer and fuel, but believed it was possible and speculated about methods of igniting such a device. GX 72 pp. 17. 283. Mr. Crabtree was in the interrogation room with Agent Smith (who kept the notes contained in GX 72) at the same time during the interview, and was in contact with Smith at other times. Knowledge of Mr. Nichols' actual statements, as recorded in Agent Smith's notes, can be imputed to him. In these circumstances it is a fair inference that Agent Crabtree deliberately overstated Mr. Nichols' knowledge of and experience with bomb making in order to enhance probable cause. 284. Finally, Agent Crabtree again misstated the facts presented to him when he averred that "agents noted a strong odor of fertilizer near the garage." GX 19 p19. In fact, Agent Reightler reported that he had smelled an "ammonia-type odor," not fertilizer. DX B2. Crabtree again expanded the truth to fit the government's theory of probable cause. Crabtree p. 442. [FN23] FN23. In any event, Agent Reightler's testimony that he smelled ammonia "throughout the day" cannot be credited. Reightler p. 617, see also DX B2. Not only did none of the other agents present at the scene smell ammonia, Reightler pp. 609-10, but ammonium nitrate fertilizer does not smell like ammonia -- indeed, it hardly smells at all. Bodley p. 949. End of FN. 285. When these fabrications are disregarded, as they must be under Franks, and paragraphs 17 and 19 are omitted as poisoned fruit, the affidavit (GX 19) recites no more about Mr. Nichols than that he "may" have been accompanied by Mr. McVeigh on April 7, 1995, while visiting his brother James in Decker, Michigan [FN24] (p11); he voluntarily appeared at the Herington police station after hearing his name on the radio (p16); an unknown white male, possibly in his twenties, whose physical description bore no resemblance to McVeigh's was staying with Mr. Nichols on April 12 - 14 (this was Mr. Nichols' 12 year-old son, Josh) (p18); an unidentified "former coworker" said that Mr. Nichols bragged about his ability -- shared with most farmers -- to make fertilizer bombs (p20). This is not probable cause to search a person's home in the expectation of finding evidence of any crime, much less the Oklahoma City bombing. Accordingly, the warrant does not support the search and the evidence must be suppressed. FN24. This allegation also smacks of agent exaggeration -- one imagines the agent had to ask the question, "Could Mr. McVeigh have been with Terry Nichols at the time?" to elicit this "possible accompaniment." End of FN. b. The evidence would not inevitably have been discovered. *61 286. The inevitable discovery doctrine holds that illegally seized evidence may nevertheless be admitted if the government would inevitably have come upon it by legal means. Nix v. Williams, 467 U.S. 431 (1984); United States v. Ibarra, 955 F.2d 1405, 1410 (10th Cir. 1992). This finding may not be based on speculation, Nix, 467 U.S. at 444 n.5, and must be decided by considering whether, "viewing affairs as they existed at the instant before the unlawful search, [and determining] what would have happened had the unlawful search never occurred." United States v. Cabassa, 62 F.3d 470, 473 (2d Cir. 1995) (cite omitted). 287. The inevitable discovery doctrine provides no solace to the government here. By definition, inevitable discovery situations arise where there are two sources leading toward the same evidence, one tainted and the other lawful. Where it is clear that the lawful source will inevitably point the government to the evidence and will legally justify a search -- e.g., by providing probable cause or consent -- then the fact that the evidence was illegally seized based on the alternative source is not dispositive of its admissibility. In Nix, for example, apart from the tainted source for finding the victim's body (the illegal interrogation of the defendant), there was an independent comprehensive yard-by-yard search being conducted of the immediate area in which the body was located. Id. 288. The difficulty with the government's argument here is that there is no basis for the search of the house that is independent of the original taint. See Ibarra, 955 F.2d at 1410 (items obtained by illegal search of vehicle would not have been "inevitably discovered" during a routine inventory search after impoundment where impoundment itself was illegal). The "tree" growing into the many searches of Mr. Nichols' home and truck has only two "roots," both of which are tainted. The first root is his illegal interrogation and the illegal incursion on his curtilage by Agent Reightler, and the second is the illegal detention and obtaining of involuntary consents from Mrs. Nichols. Since all subsequent searches and warrants grow from these roots, the "inevitable discovery" doctrine has no application here. [FN25] FN25. In any event, the government's invocation of "inevitable discovery" rings rather hollow in view of the agents' repeated failure to recognize an item of evidence as significant (in the government's view) as the fuel meter. See discussion of the fuel meter, supra. End of FN. E. FRUITS OF THE WARRANTLESS SEARCH OF THE NICHOLS RESIDENCE OF APRIL 23 MUST BE SUPPRESSED. 289. The government claims that the warrantless search conducted on April 23 was justified by the consents of both Mrs. Nichols and Mr. Nichols, and would inevitably have been discovered in any event. Gov't Pre-Hearing Brief, Attachment 1. The invalidity of Mrs. Nichols' consent is discussed above, as is the failure of the "inevitable discovery" claim. It is equally clear that the conditional consent to search given by Mr. Nichols at his interrogation on April 21 does not justify this search. *62 290. The lawful scope of a search is defined by its expressed object. United States v. Ross, 456 U.S. 798 (1982). Mr. Nichols' consent to search on April 21 was explicitly conditioned on either Mr. Nichols or his wife being present during any search. Smith p. 398; Foley p. 503; see also Smith p. 413 (Mr. Nichols signed consent to search form only after being assured either he or his wife could be present). Mr. Nichols' request that he or his wife be present during any search was a reasonable, and in the FBI agent's mind, normal request. Crabtree pp. 481-82 (acknowledging that it would be normal for a person whose house is being searched by the police to want to be present to "see what is going on"). Mr. Nichols was entitled to limit his consent in this way and the FBI was obligated to respect his express limitation. See Florida v. Jimeno, 500 U.S. 248, 252 (1991) ("A suspect may of course delimit as he chooses the scope of the search to which he consents."). 291. "The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness -- what would the typical reasonable person have understood by the exchange between the officer and the suspect?" Florida v. Jimeno, 500 U.S. 248, 251 (1991). 292. A reasonable agent, after asking Mr. Nichols for consent to search his home, and on hearing Mr. Nichols' request that either he or his wife be present, would understand that the desire to have his wife present would not be satisfied by having his wife merely present somewhere on the property, occupied with other tasks the FBI had assigned and unaware that she was brought there to fulfil her husband's request. A reasonable agent would understand Mr. Nichols' request to mean that his wife should be present "during the search, and that that would be appropriate." Smith p. 398. 293. The question of the scope of the consent is a subspecies of the voluntariness inquiry. United States v. Price, 925 F.2d 1268, 1271 (10th Cir. 1991). "The scope of the search must be strictly tied to and justified by the circumstances which rendered its initiation permissible." Florida v. Royer, 460 U.S. 491, 500 (1983). A court should consider the totality of the circumstances to determine the scope of the consent. United States v. Brandon, 847 F.2d 625, 630 (10th Cir.), cert. denied, 488 U.S. 973 (1988). In view of the totality of the circumstances, the scope of Mr. Nichols' consent was exceeded by the search on April 23. 294. As described in the findings of fact discussing Mrs. Nichols, on April 23 she was told she was returning to the Herington house to retrieve clothing for herself and toys for her daughter. She was given a time limit of 45 minutes to collect her belongings. Mrs. Nichols was not aware of the agents conducting a consent search in the garage and was not told that she should supervise or observe them or that her husband had asked that she be present during the search. Mrs. Nichols was distracted by the instructions she received by the FBI to retrieve her belongings. More significantly still, no FBI agent conducting the search, nor any FBI agent supervising Mrs. Nichols that day intended or thought that Mrs. Nichols was there to fulfil a condition on her husband's consent. *63 295. It is true that the subjective belief of the searching agents is not be dispositive with respect to whether a search is objectively justified. Whren v. United States, 116 S. Ct. 1769 (1996). But it would be perverse to permit the government to skirt the invalidity of one consent (Mrs. Nichols') by claiming that another consent (Mr. Nichols') was accidentally being fulfilled by the involuntarily procured presence of the woman who had granted the invalid consent. In this case, the searching agents' subjective belief that Mrs. Nichols served no search-related purpose is strong evidence that she was not fulfilling the objective reasonable understanding of the condition Mr. Nichols placed on his consent. Coupled with this is the strong evidence that the only thing Mrs. Nichols was doing was packing her things--the task she was given by the FBI, in the very short time the FBI had allotted to her. Given the totality of the circumstances of the search conducted on April 23, 1995, as a matter of law the search exceeded the scope of Mr. Nichols' consent. 296. Finally, even if Mr. Nichols' consent could reasonably be construed to require the mere physical presence of his wife during some small part of the search of his home -- which it could not -- the question would still stand whether a reasonable officer would believe that Mr. Nichols' consent remained valid after two days had passed, during which Mr. Nichols had been interrogated for nine hours, illegally arrested, jailed, and then held over as a danger to the community. Jimeno, supra. Where an illegal seizure intervenes between two searches, both of which purport to be based on a consent that preceded the illegal seizure, the Tenth Circuit has held that "consent does not 'continue' to justify the second search." Ibarra, 955 F.2d at 1411 & n.8. Because the agents conducted the search well beyond the time any reasonable person would believe Mr. Nichols' consent remained valid, and because Mr. Nichols was illegally arrested in the intervening period, the search was unlawful for this reason as well. F. THE WARRANT SEARCH ON APRIL 29 WAS UNLAWFUL. 297. The government contends that the warranted search of the Nichols residence on April 29, 1995 was lawfully authorized by the search warrant issued on the preceding day. GX 76 (search warrant with affidavit and return). The government does not seek to introduce any of the evidence garnered from this search, but relies upon visual observations allegedly made during the search that related to a later search. Gov't Pre-Hearing Brief, Attachment 1. 298. The allegations of the affidavit submitted in support of this warrant is identical in virtually every relevant respect to the affidavit discussed above in connection with the April 22 warranted search. Compare GX 19 (affidavit) with GX 76 (affidavit). The same deficiencies -- inclusion of illegally obtained statements and observations, and the same Franks violations -- are present here as well. Indeed, the affidavit is notable only for the fact that five days after the seizure of the inoperable fuel meter, the false allegation regarding its usefulness for making bombs remains in place. The affiant, Agent Seck, conceded that he did no independent inspection or confirmation that the meter was in fact operable. Seck p. 932. *64 299. The only new allegations relate innocuous statements unlawfully obtained from Mrs. Nichols regarding clothing Mr. Nichols supposedly wore on various dates, and contribute nothing additional to the probable cause determination. GX 76 Aff. p20. G. FRUITS OF THE WARRANT SEARCH ON MAY 3 MUST BE SUPPRESSED. 300. The government seeks introduction of evidence obtained from the warranted search of the Nichols residence conducted on May 3, 1995. The government asserts that this search was lawfully authorized by the affidavit of probable cause submitted in support. Gov't Pre-Hearing Brief, Attachment 1. GX 79. 301. Again, most of the allegations of the affidavit are repeated verbatim from the prior April 22 affidavit and suffer the identical deficiencies. GX 79 Aff. pp1-21. 302. Some of the new allegations relate to prior illegal searches and must be ignored as fruit of the poisonous tree for purposes of evaluating the probable cause question. United States v. Cusumano, 83 F.3d 1247 (10th Cir. 1996) (en banc). These include the allegations of paragraphs 25 (unlawful April 22 search of residence), 26 (allegations relating to Mr. Nichols are fruit of his involuntary statements), 27 (visual observation during unlawful April 29 search of residence) and 29 (observations of scraped paint on Mr. Nichols' illegally impounded truck). 303. The remaining allegations do not support probable cause to search Mr. Nichols' residence. They consist of statements that: break-ins and a theft of explosives occurred at a Marion, Kansas company in October 1994 (p22); explosives of the same type as some of those stolen "could have been used" as the initiating charge in the Oklahoma City explosion (p23); Mr. Nichols lived in Marion during this time period (p24); an individual observed a "1980-1987 Chevrolet or GMC truck, dark blue or brown in color" parked next to a Ryder truck at Geary Lake on April 18, 1995 (p28); and ten days later, an agent observed a tree which "appeared to have a quantity of blue paint scraped upon it" in the area where the two trucks were allegedly seen (p29). Even if the inadmissible visual observation of the scraped paint on Mr. Nichols' illegally impounded truck is added to this mix (p29), these facts possess neither the incriminating character nor the specificity necessary to justify a search of Mr. Nichols' home. IV. CONCLUSION 304. For the foregoing reasons, the statements of Mr. Nichols and the evidence obtained from the searches of the Nichols residence on April 21, April 22, April 23, April 28, and May 3, 1995 shall not be admitted in evidence at trial. Respectfully submitted, Michael E. Tigar [FNa1] FNa1. Counsel acknowledges the able assistance of University of Texas law students Theresa Trzaskoma, Sesha Kalapatapu, and John M. Parras in the preparation of this submission. End of FN. Respectfully submitted, Ronald G. Woods Adam Thurschwell (303) 831-4059 Counsel for Terry Lynn Nichols SEARCH HISTORY Re: Terry Nichols Prepared for Suppression Hearing on June 26, 1996 ------------------------------------------------------------------------------- NO. PLACE AUTHORITY FOR DATE AND DATE AND ITEMS SEARCHED SEARCH TIME TIME OF SEIZED, AUTHORITY SEARCH INCLUDING OBTAINED ------------------------------------------------------------------------------- 1 GMC PICKUP VEHICLE EXCEPTION N/A 4/21/95 @ DIAPER BAG AND CONSENT BY 8:15 & CAR MARIFE NICHOLS P.M. SEAT; VIEW OF MARIFE NICHOLS' ADDRESS BOOK ------------------------------------------------------------------------------- 2 GARAGE AT 109 EXIGENT N/A 4/21/95 @ SIGHTING OF S. 2ND CIRCUMSTANCES AND APPROX. PLASTIC STREET CONSENT BY MARIFE 8:30 55 GALLON NICHOLS P.M. AND BARRELS 9:30 P.M. ------------------------------------------------------------------------------- 3 109 S. 2ND SEARCH WARRANT 4/22/95 @ 4/22/95-4- PRIMADET STREET (JUDGE BELOT) AND 11:20 /23/95 @ BLASTING CONSENT BY MARIFE A.M. 12:50 CAPS, NICHOLS/INEVITABLE P.M. - AMMONIUM DISCOVERY 4:15 NITRATE, A.M. PLASTIC 55 GALLON BARRELS, FIREARMS, AMMONIUM NITRATE PURCHASE RECEIPT ------------------------------------------------------------------------------- 4 GMC PICKUP VEHICLE EXCEPTION N/A 4/22/95 @ MARIFE AND MARIFE 8:31 NICHOLS' NICHOLS' CONSENT P.M. ADDRESS BOOK ------------------------------------------------------------------------------- 5 REAR ALLEY TO ABANDONED GARBAGE N/A 4/23/95 @ CONTENTS OF 109 S. 2ND EXCEPTION 9:25 OUTDOOR STREET A.M. - TRASH 11:55 A.M. ------------------------------------------------------------------------------- 6 MINI-STORAGE SEARCH WARRANT 4/22/95 @ 4/23/95 @ SWABBINGS SHED, UNIT (JUDGE BELOT) 5:20 P.M. 2:49 #2, P.M. - HERINGTON, 3:56 KANSAS P.M. ------------------------------------------------------------------------------- 7 109 S. 2ND CONSENT BY TERRY 4/21/95 @ 4/23/95 @ FUEL MEYER, STREET & NICHOLS (MARIFE 4:34 P.M. 3:00 SLEEPING OUTBUILDINGS NICHOLS PRESENT) P.M. - BAG, SUR- AND CONSENT BY 3:35 VIVALIST MARIFE P.M. GEAR NICHOLS/INEVITABLE DISCOVERY ------------------------------------------------------------------------------- 8 GMC PICKUP VEHICLE EXCEPTION 4/23/95 @ 4/23/95 @ GLOVES, 3:00 P.M. 9:10 DOCUMENTS P.M. - 11:10 P.M. ------------------------------------------------------------------------------- 9 109 S. 2ND CONSENT BY MARIFE 4/23/95 @ 4/23/95 @ MARIFE STREET NICHOLS 5:06 P.M. 6:45 NICHOLS' P.M. - CURRENCY 6:59 P.M. ------------------------------------------------------------------------------- 10 GARAGE AT 109 CONSENT BY MARIFE 4/23/95 @ 4/23/95 @ NOTHING S. 2ND NICHOLS 9:10 P.M. 9:50 SEIZED STREET (FOR P.M. - PADLOCK) 10:00 P.M. ------------------------------------------------------------------------------- 11 GMC PICKUP VEHICLE EXCEPTION 4/23/95 @ 4/24/95 @ SOIL SCRAP- 3:00 P.M. 7:45 INGS, FI- A.M. - NGERPRIN- 4:10 TS P.M. ------------------------------------------------------------------------------- 12 109 S. 2ND CONSENT BY MARIFE 4/24/95 4/24/95 @ SHOP VAC STREET & NICHOLS 4:20 OUTBUILDINGS P.M. - 4:32 P.M. ------------------------------------------------------------------------------- 13 109 S. 2ND. CONSENT BY MARIFE 4/24/95 @ 4/24/95 @ DISHES, STREET NICHOLS 9:40 P.M. 10:25 RAGS P.M. - 10:45 P.M. ------------------------------------------------------------------------------- 14 109 S. 2ND CONSENT BY MARIFE 4/25/95 @ 4/25/95 @ GE TELEVIS- STREET NICHOLS 3:17 P.M. 4:15 ION P.M. ------------------------------------------------------------------------------- 15 109 S. 2ND SEARCH WARRANT 4/28/95 @ 4/29/95 @ CLOTHING OF STREET (MAGISTRATE 9:50 P.M. 11:43 T. HUMPHREYS) A.M. - NICHOLS 11:05 P.M. ------------------------------------------------------------------------------- 16 BIN #563 SEARCH WARRANT 4/29/95 @ 4/29/95 @ CLOTHING OF SEDGWICK (JUDGE KELLY) 1:42 P.M. 2:45 T. COUNTY P.M. - NICHOLS DETENTION 3:15 FACILITY P.M. WICHITA, KANSAS ------------------------------------------------------------------------------- 17 COMFORT INN SEARCH WARRANT 4/29/95 @ 4/30/95 @ CLOTHING OF JUNCTION (JUDGE KELLY) 1:41 P.M. 9:35 T. CITY, KANSAS A.M. NICHOLS ------------------------------------------------------------------------------- 18 GMC PICKUP SEARCH WARRANT 5/2/95 @ 5/3/95 @ PAINT, FUEL (JUDGE KELLY) 7:27 P.M. 8:30 SAMPLES A.M. - 1:45 P.M. ------------------------------------------------------------------------------- 19 109 S. 2ND SEARCH WARRANT 5/2/95 @ 5/3/95 @ MAKITA STREET (JUDGE KELLY) 7:27 P.M. 9:58 DRILL, A.M. DRILL BITS, KINESTICK ------------------------------------------------------------------------------- 20 T. NICHOLS' SEARCH WARRANT 5/2/95 @ 5/3/95 @ HAIR PERSON (JUDGE KELLY) 7:27 P.M. 4:45 SAMPLES SEDGWICK P.M. - COUNTY JAIL 4:57 WICHITA, P.M. KANSAS ------------------------------------------------------------------------------- 21 GMC PICKUP SEARCH WARRANT 5/5/95 @ 5/5/95 @ MISC. TOOLS (MAGISTRATE 5:00 P.M. 6:00 HUMPHREYS) P.M. - 9:07 P.M. ------------------------------------------------------------------------------- 22 109 S. 2ND ORAL CONSENT BY 5/8/95 5/8/95 BLENDER STREET MARIFE NICHOLS ------------------------------------------------------------------------------- 23 109 S. 2ND CONSENT BY MARIFE 5/19/95 5/19/95 @ TOYS STREET NICHOLS 6:15 (MAILED P.M. TO PHILI- PPINES) ------------------------------------------------------------------------------- 24 MAILBOX #197 SEARCH WARRANT 7/7/95 @ 7/10/95 CORRESPOND- MANHATTAN, (MAGISTRATE 3:20 P.M. ENCE KANSAS HUMPHREYS) ADDRESSED TO JOE RIVERS ------------------------------------------------------------------------------- Shading designates searches that yielded evidence U.S. seeks to introduce. Partial shading of place searched designates searches pertinent to validity of searches yielding evidence. |