When the FBI was about to arrest a domestic terrorism suspect in the Pacific Northwest five months ago, an elaborate plan was put together. The bureau’s Hostage Rescue Team developed a ruse to stop and arrest the suspect, and the FBI’s Behavioral Science Unit helped field agents develop post-arrest interview techniques.
But now part of that plan, which led to the arrest of Kevin William Harpham on March 9, is causing legal issues for federal prosecutors as the defendant is about to go on trial, accused of planting a backpack bomb on the route of a Martin Luther King Day parade in Spokane, Wash.
U.S. District Judge Justin Quackenbush, at a hearing today, was sharply critical of FBI agents for waiting two hours and 15 minutes after arresting Harpham before giving him a copy of an arrest warrant and advising him of his Miranda rights. The judge suggested he likely will suppress statements Harpham made before he was read his rights, barring prosecutors using those comments at a trial now set to begin Aug. 22.
After the 36-year-old former soldier was taken into custody by FBI agents posing as a county road crew, “the plan was to build a rapport with him,’’ Special Agent Joseph Cleary told the judge.
The agent said neither he nor a second agent asked Harpham about the case against him as they drove in an SUV to the Stevens County Sheriff’s Office, about 12 miles from the suspect’s rural home in northeast Washington.
The previous day, two members of the agency’s Behavioral Science Unit flew from FBI headquarters in Quantico, Va., to Spokane to assist the two field agents with techniques to be used during the post-arrest interview, Cleary testified.
“Who made the ultimate decision not to advise Mr. Harpham of his constitutional rights as the Federal Rules of Criminal Procedure call for?’’ the judge asked Cleary. The questioned was never directly answered.
The judge said he also was concerned that the suspect was not immediately brought before a U.S. magistrate judge, as the federal criminal rules also mandate, but instead was taken to a rural sheriff’s office for questioning by FBI agents.
“Those rules are something we live by in our country,’’ the judge admonished the agent. Quackenbush reminded the FBI agents that they take an oath to uphold the law.
The judge said the FBI delay in giving Harpham the arrest warrant and advising him of his constitutional rights was “obviously intended to get him to make some admission.”
“I didn’t ask him questions about the case,’’ Cleary told the judge. “There was no plan to deny him his rights.”
“It wasn’t our intent not to advise him of why he was arrested,’’ the agent later repeated. Rather, Cleary explained, following advice from the behavioral science experts, arresting agents wanted to build rapport with Harpham, inform him of the evidence against him, and then read him the Miranda warning, hoping the softer approach would persuade him to talk.
Whatever statements Harpham made are being kept from public inspection by a cloak of secrecy in the case. Most of the prosecution and defense motions in the case are filed under seal at the judge’s direction, and he has repeatedly closed the courtroom to portions of pretrial hearings.
The admonishment of the FBI by the judge came after he denied defense motions to suppress evidence seized from Harpham’s computer, digital camera and hotmail account, along with “books, papers and writings” found in his home and vehicle.
FBI agents had a federal judge’s warrant to seize Harpham’s computer and a digital camera he used to take pictures of himself at the parade, apparently moments before the backpack bomb he’s accused of building and planting was discovered and rendered safe while the unity march was safely re-routed.
On the camera, agents also discovered close-up photos that Harpham allegedly took of young African-American children and a man wearing a yarmulke. Those individuals – apparently intended victims in the plot – likely were identified by FBI agents and could be called as victim-witnesses during the trial.
In her failed attempt to suppress evidence seized by the FBI, Assistant Federal Defender Kim Deater argued that a federal search warrant gave agents permission to seize the computer and digital camera, but they should have obtained supplementary warrants to examine their digital contents, including deleted files and images.
The defense attorney also urged the judge to suppress E-mails recovered in Harpham’s hotmail account, saying the warrant was overly board and allowed agents to “randomly rummage” through private correspondence going back to 2004.
The judge said a “reasonable reading” of the search warrant gave agents permission to seize and examine the computer, the camera and e-mail account, and additional warrants were required only if they came across evidence of a crime that they weren’t currently investigating.