Purbeck v. Wilkinson

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF IDAHO

ROBERT PURBECK, Case No. 1:21-cv-00047-BLW

Plaintiff, MEMORANDUM DECISION AND ORDER v.

ROBERT MONTY WILKINSON, in his professional capacity as acting Attorney General, et al,

Defendants.

INTRODUCTION Before the Court is pro se Plaintiff Robert Purbeck’s Amended Emergency Motion for a Temporary Restraining Order and Preliminary Injunction (Dkt. 8). For the reasons explained below, the Court will deny the Motion.1 BACKGROUND On February 22, 2021, Purbeck filed an Amended Emergency Motion for a

1 Purbeck has also filed a Return of Property Pursuant to Rule 41(G) and Motion to Quash the Search Warrant (Dkt. 2), Motion for Appointment of Counsel (Dkt. 4), and Application for Leave to Proceed in Forma Pauperis (Dkt. 5). These motions will not be addressed here. Temporary Restraining Order and Preliminary Injunction (“TRO”) against Robert Monty Wilkinson, acting Attorney General.2 He asserts that the Government

violated his Fifth Amendment rights by soliciting passwords and other statements prior to providing him with Miranda warnings. Dkt. 8 at 2-4. He seeks to exclude these alleged statements from being used in any grand jury or criminal proceeding.

Id. at 9. This Court has previously denied Purbeck’s Emergency Motion for a Temporary Restraining Order and Preliminary Injunction in which he also sought to exclude evidence in any grand jury proceeding based on different claims. Dkt. 7.

Here, Purbeck explicitly does not raise other claims and only seeks exclusion of the alleged Miranda violations. Dkt. 8 at 2. ANALYSIS Purbeck seeks to exclude alleged statements given in violation of his Fifth

Amendment rights from being used in grand jury proceedings. However, he is not entitled to relief on this basis. See United States v. Calandra, 414 U.S. 338, 354 (1974) (exclusionary rule not applicable to grand jury proceedings).

Furthermore, Purbeck’s request remains premature as he has not established

2 To the extent Purbeck is seeking a TRO against any other defendant, the Court denies that as well. where or when the alleged evidence is expected to be presented, if at all. See Texas

v. United States, 523 U.S. 296, 300 (1998). He simply wishes to prevent the alleged evidence from being introduced in any grand jury or criminal proceeding. Dkt. 8 at 9. The proper avenue to challenge evidence presented to a grand jury is through a motion to dismiss the Indictment after it has been returned. See United States v. Chanen, 549 F.2d 1306, 1313 (9th Cir. 1977). Additionally, the proper avenue to seek the exclusion of evidence in a criminal trial is through a motion to

suppress. As such, Purbeck’s TRO request is not properly before the Court for consideration. Purbeck is also advised that he may not file further motions on this basis. ORDER NOW THERFORE IT IS HEREBY ORDERED THAT the Amended Emergency Motion for a Temporary Restraining Order and Preliminary Injunction (Dkt. 8) is DENIED.

ASM DATED: February 26, 2021 5 -

Pe “i 2 yy B. Lynn Winmill RIC OR U.S. District Court Judge

MEMORANDUM DECISION AND ORDER - 3

MEMORANDUM DECISION AND ORDER - 4