United States District Court, W.D. Virginia, Roanoke Division
MEMORANDUM OPINION
MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE
This
matter is before the court on defendant Ethen Tangtong's
motion to suppress all statements made by him on December 17,
2017, and any evidence derived from those statements. ECF
Nos. 32, 39. In his motion, Tangtong alleges that all
incriminating statements and derivative evidence should be
suppressed because: (1) a reasonable person would have
believed he was in custody under the circumstances and thus
Tangtong should have, but was not, provided with
Miranda warnings; (2) even if Miranda
warnings were not required, Tangtong's confession was
involuntary due to, inter alia, the length of the
interview and the alleged behavior of, and techniques
employed by, law enforcement; and (3) both Tangtong and his
mother invoked the right to counsel, but law enforcement did
not suspend the interview. In its response to Tangtong's
motion, the government contends that Tangtong's
confession and the evidence derived therefrom should be
admissible because (1) the interview was non-custodial and
therefore Miranda warnings were not required; (2)
Tangtong's statements were voluntarily made; and (3) the
purported invocations of a request for counsel did not
preclude law enforcement from continuing to interview the
defendant. The court held an evidentiary hearing on October
16, 2018 on Tangtong's motion, during which the court
heard the testimony of Special Agents Hunter Durham and jerre
Harvard from the Department of Homeland Security - Homeland
Security Investigations, and Aimee Tangtong, the
defendant's mother. The court subsequently gave leave for
the parties to file supplemental briefs addressing this
testimony. On October 31 and November 14, 2018, respectively,
Tangtong and the government filed supplemental briefs in
support of their positions. Upon careful review of the record
and for the reasons set forth herein, Tangtong's motion
(ECF No. 32) is DENIED.
I.
On
December 12, 2017, Special Agents Hunter Durham and jerre
Harvard from the Department of Homeland Security - Homeland
Security Investigations ("HSI"), along with Pulaski
County Detective David Kressel and several other law
enforcement officers, executed a search warrant on a home in
Dublin, Virginia, where defendant Ethen Tangtong, 18 years
old at the time, lived with his mother and sister. The search
warrant was based a sworn affidavit asserting probable cause
to believe that someone within the residence, likely Ethen
Tangtong, was involved in the unlawful production,
distribution, and/or advertisement of child pornography. More
specifically, law enforcement identified an advertisement on
a Russian-based Internet bulletin board seeking what Agent
Durham described as "violent and sadomasochistic"
child pornography. ECF No. 45, at 46. The advertisement was
associated with a pseudonymous username and account, both of
which were further associated with the email address
etangtongl7@gmail.com. The advertisement included so-called
"teaser folders" with pictures of clothed underage
children, including an image of a 7-year old child and other
images taken inside a school. In addition to soliciting child
pornography, the user claimed to be in possession of
"unseen footage" of underage children and appeared
to express a willingness to trade in such footage. The
Internet protocol ("IP") address associated with
the advertisement returned to Comcast Communications, an
Internet service provider in Pulaski County. In response to a
subpoena, Comcast confirmed that the IP address belonged to
one its subscribers, Aimee Tangtong, defendant Ethen
Tangtong's mother.
On
December 11, 2017, United States Magistrate Judge Robert S.
Ballou issued a search warrant for the Tangtong residence. In
accordance with "law enforcement protocol," Agent
Durham decided to seek an interview with Ethen before
conducting the search. ECF No. 39, at 3. Two separate
investigative teams were therefore established. The first
team, comprised of Agent Durham, Agent Harvard, and Detective
Kressel, sought to interview Ethen and gather generic
information about who lived in the home and who used the
Internet on what devices. Agent Durham testified that he also
sought any "admissions or acknowledgments"
regarding the suspected criminal activity taking place inside
the home. ECF No. 45, at 48. The second team, led by HSI
Agent Chris Cummings, was tasked with searching the home and
included three or four additional officers. The search team
was positioned several blocks away from the Tangtong
residence, "over the horizon," where they awaited
instructions from Agent Durham to begin the search.
Id. at 50.
Sometime
between 8:00 a.m. and 10:00 a.m. on December 12, 2017, the
three-member interview team, all but one of whom wore light
body armor and visible firearms, approached the Tangtong
residence and knocked on the front door. Agent Durham
introduced himself to Aimee Tangtong, who answered the door,
displayed his credentials, and explained that he was hoping
to speak with her son Ethen if he was home. They requested
and received Ms. Tangtong's permission to enter the
residence. It is unclear whether the officers were
immediately allowed inside or whether, as Ms. Tangtong
testified, she closed the front door and made them wait
briefly on the stoop while she had a private conversation
with Ethen in his bedroom. In any event, Ms. Tangtong woke
Ethen from bed, and several minutes later, Ethen emerged from
his bedroom into the living room wearing shorts, but no
shirt. Agent Durham then identified himself to Ethen, again
presented his credentials, and explained to Ethen that they
wanted to speak with him about a computer crime. Id.
at 53. The parties agreed to talk in the living room and sat
collectively on several couches. Agent Durham testified that
in order to spare Ethen the potential embarrassment of being
interviewed about child pornography in the presence of his
mother and to promote an open dialogue with Ethen, he asked
that Ms. Tangtong leave the living room so that he could
speak with Ethen alone. Id. at 40, 78-9. Ms.
Tangtong complied, staying mostly in the adjacent kitchen and
her basement bedroom. When asked if he "encouraged her
[Ms. Tangtong] to remain out of the living room," Agent
Durham stated, "I asked if we could speak with Ethen
alone. I'm not sure I encouraged her to do anything. I
just asked if we could speak to Ethen." Id. at
79. Agent Durham further testified that Ms. Tangtong
possessed "freedom of movement throughout the house at
all times," and indicated that she entered the living
room multiple times during the interview to yell at her son.
Id. at 56. Indeed, when asked whether the officers
stopped her from going into the living room to talk to Ethen,
Ms. Tangtong responded, "No, they asked me to calm down
and step out of the living room. They didn't stop me, but
they did try to, like, calm me down and get me to pull myself
together." Id. at 27, 29. When asked again
whether the officers restricted her movements, she responded,
"Not mine at all, no."[1] Id. at 35.
Agent
Durham testified that his goal was to have a
conversation with Ethen, and mat to avoid "aggravating]
the situation," his tone throughout was "[c]alm,
even-tempered, conversational, polite, [and]
professional." Id. at 48, 53. While Agent
Durham spoke with Ethen, Agent Harvard and Detective Kressel
stood or sat nearby and took notes. Their firearms remained
holstered, and there is no indication that the officers
intimidated, threatened, or attempted to improperly induce
Ethen into incriminating himself during the interview or
anytime thereafter with promises of any kind. The officers
never searched Ethen's person, nor was he handcuffed or
otherwise restrained. Moreover, all the testimony suggests
Ethen willingly engaged with law enforcement and was
generally cooperative during the interview. Importantly,
Ethen was not read Miranda rights before or during
the interview.
Though
Ethen was not entirely forthcoming at first, engaging in what
Agent Durham described as "incremental truth
telling," once informed of the search warrant, he became
more truthful, stating at one point, "I've gotten
myself into something. I know you get 15 years
federally." Id. at 77. When Ethen expressed
concern that he would be going to jail, Agent Durham
reassured him that his purpose was to fact-find and that law
enforcement was not there to arrest him that day. Indeed,
Agents Durham and Harvard testified that they did not have an
arrest warrant for Tangtong or any intention of arresting him
because the "investigation hadn't determined with
probability that he was the actual person within the
residence that we would want to arrest." Id. at
55-56. Agent Durham testified that at the beginning of the
interview, he told Ethen that he was not under arrest, was
under no obligation to speak with him, and that, "[i]f
you have somewhere to be, you're free to
go."[2]Id. at 55. Ms. Tangtong's
testimony corroborates the officers' testimony that they
asked Ethen if he was willing to speak with them, and that
Ethen agreed. Id. at 34.
Ms.
Tangtong testified that approximately 20 minutes after Ethen
first emerged from his bedroom, she went down to her room and
tried to contact Ethen's guardian ad litem, Robin Kegley,
who represented Ethen as a ward of the state in the foster
care system and in other legal matters. Id. at 7.
Ms. Tangtong was only able to reach Kegley's secretary.
While she was in the kitchen, Ms. Tangtong claims to have put
Kegley's secretary on speakerphone after the officers
refused to take the phone from her. The secretary verbally
admonished several of the officers that Ethen had the right
to remain silent and consult with an attorney. There is no
indication that Ethen was aware of the phone call or
otherwise heard the admonishment. Indeed, Ethen concedes that
he was not in the kitchen when this conversation took place.
ECF No. 49, at 2. Agent Durham testified that earlier in the
interview, Ms. Tangtong stated that "Ethen has an
attorney from his previous problems" and asked
"does he need an attorney?" ECF No. 45, at 58.
Agent Durham advised Ms. Tangtong that he was unable to
provide legal advice and that she was free to contact
whomever she liked. Id. He also advised Ms. Tangtong
that "[w]hoever that attorney is from the previous
incident does not represent him on this matter here
today." Id. In addition to Ms. Tangtong's
alleged invocation of Tangtong's right to counsel, there
is some dispute as to whether Ethen requested die presence of
or asked whether he needed an attorney. The only evidence
that he mentioned an attorney at all is Ms. Tangtong's
exceedingly unclear testimony on this point, as the officers
deny Ethen said anything about an attorney at any point.
Initially, Ms. Tangtong testified that from behind the
plywood door leading to her basement bedroom, she heard Ethen
ask if his lawyer could be present and reassurances from the
officers that he did not need an attorney. Id. at
10. Later, when asked again whether she ever heard Ethen ask
for a lawyer, she responded, "I do not recall,"
"[y]ou would have to ask Ethen." Id. at
35. Finally, when asked yet again if she ever heard Ethen
"say anything directly to the agents about wanting an
attorney," she testified, "I thought he did, but
now I'm confused, I thought he did." Id. at
37, 42.
The
interview lasted around two hours, approximately 30 minutes
into which Agent Durham advised Ethen that he had a search
warrant for the residence and explained that additional
officers would be arriving to conduct the search. Shortiy
thereafter, Agent Cummings and the search team entered the
home and conducted the search. Agent Durham testified that
once it was clear that die only part of the house in which
Ethen lived was his "very small" bedroom, he
informed "an officer or two" who were part of the
search team that they were no longer needed. Id. at
63. It appears that no more than 6-8 officers were ever
present at one time in the Tangtong residence. No member of
search team participated in the interview. Agent Durham
testified that almough Ethen made several incriminating
statements before the search team arrived, it was only after
Ethen was told about the warrant that the interview
"reached the highest degree of truth telling."
Id. at 64. Indeed, sometime after the arrival of the
search team and toward the end of the interview, Ethen became
increasingly emotional, and admitted to ownership of the
bulletin board account and email address associated with that
account, as well to possessing child pornographic images.
Id. at 63-66. He showed Agents Harvard and Cummings
where he had hidden the thumb drives on which he stored those
images, stating that "Everything you want is on the
drives." Id. at 63. Ethen also provided Agent
Durham with passwords to email addresses and cell phones so
that they could be accessed for forensic analysis. Ethen
further offered to cooperate with law enforcement in their
investigation of others, and while expressing concern that he
was facing a lengthy prison sentence, suggested that he
needed to go to jail.
Around
the same time that the search team arrived, Ethen asked to
use the bathroom. Agents Durham and Harvard testified that as
soon as Ethen asked to use the bathroom, he was permitted to
do so after the officers conducted a sweep for weapons, which
they claim took "a few seconds." Id. at
52. Specifically, Agent Durham stated that he "advised
[Ethen] to hold on a second because we need[ed] to search
[the bathroom] before he went in." Id. There is
no dispute that the officers kept the bathroom door cracked
open so that they could "passively observe" what
Ethen was doing inside. Id. Here, again, Ms.
Tangtong's testimony is unclear. First, she testified
that Ethen "kept saying he needed to use the
bathroom," and that the officers "wouldn't let
him." Id. at 19, 25, 40-41. Later, she stated
that although Ethen was not permitted to use the bathroom
"at first," he was allowed to do so after the
officers searched the bathroom. Id. at 26. In any
event, when the defendant finished using the bathroom, the
interview continued in the living room.
The
only physical interaction the officers claim to have had with
Ethen was when he asked for a blanket and was handed one by
Agent Durham. Agent Durham further testified that he
"did not take a confrontational tone with Ethen early on
or ever," and "do[esn'tj recall accusing him of
lying." Id. at 21, 69. Agent Durham stated that
he "prefer[s] and ha[s] found that taking a professional
and polite tone makes people respect what I'm doing more,
and it shows respect for their household, and it ultimately
results in a more productive . .. scenario."
Id. at 68. While Ethen was initially reticent, at
one point stating "I don't want to incriminate
myself," there is no evidence that he ever asked to stop
the interview or leave the residence. Id. at 77. In
addition to recovering numerous electronic devices, officers
also found women's' underwear and evidence of drug
distribution, including scales, marijuana, and other
paraphernalia. Ethen admitted to taking the underwear from
his cousin and from his friends' mothers. It was around
this time that Ethen began making suicidal statements, at
which point the interview was concluded and Ethen was
transported to a local psychiatric facility for evaluation.
II.
The
Fifth Amendment provides that "No person ... shall be
compelled in any criminal case to be a witness against
himself." U.S. Const, amend. V. As a prophylactic
safeguard for this constitutional guarantee, the Supreme
Court has required law enforcement to inform individuals who
are in custody of their Fifth Amendment rights prior to
interrogation. See Miranda v. Arizona, 384 U.S. 436,
444 (1966); United States v. Parker, 262 F.3d 415,
419 (4th Cir. 2001). The threshold issue the court must
determine is relatively straightforward - whether the
interview of Tangtong in his mother's living room
constituted "custodial interrogation" such that the
Miranda warnings were required. If it did, then
Tangtong's statements, which were made without the
benefit of Miranda warnings, are inadmissible
against him at trial in the prosecution's case-in-chief.
See Miranda. 384 U.S. at 444; Parker, 262
F.3d at 419 ("Absent formal arrest, Miranda
warnings only apply where there has been such a restriction
on a person's freedom as to render him in
custody."). If, however, the interview was
non-custodial, then the statements are admissible provided
they were made voluntarily.
The
Supreme Court has described the test for whether an
individual is "in custody" despite the lack of a
formal arrest to be whether, under the totality of the
circumstances, "a suspect's freedom of action is
curtailed to a 'degree associated with formal
arrest.'" Berkemer v. McCarty, 468 U.S.
420, 440 (1984) (quoting California v. Beheler, 463
U.S. 1121, 1125 (1983) (per curiam)). The operative question
is whether, viewed objectively, "a reasonable man in the
suspect's position would have understood his
situation" to be one of custody. Id. at 442.
This determination is made by examining "all of the
circumstances surrounding the interrogation" and
determining "how a reasonable person in the position of
the individual being questioned would gauge the breadth of
his or her 'freedom of action.'" Stansbury
v. California, 511 U.S. 318, 322 (1994) (per curiam)
(quoting Berkemer, 468 U.S. at 440); United
States v. Day. 591 F.3d 679, 696 (4th Or. 2010)
(quoting United States v. Weaver. 282 F.3d 302, 312
(4th Cir.2002)). It is important to note that the environment
does not have to be entirely free of coercion in order to be
non-custodial-indeed, "[a]ny interview of one suspected
of a crime by a police officer will have coercive aspects to
it, simply by virtue of the fact that the police officer is
part of a law enforcement system which may ultimately cause
the suspect to be charged with a crime." Oregon v.
Mathiason, 429 U.S. 492, 495 (1977) (per curiam).
However, only when there is a custodial interrogation is it
necessary for the police to provide the suspect with
Miranda warnings. Id. (holding law
enforcement officials are not required to administer
Miranda warnings to everyone they question).
Given
the fact-intensive nature of the custody inquiry, courts have
emphasized that "the question whether an individual is
'in custody' must be made on a case-by-case
basis." United States v. Tones. 818 F.2d 1119,
1123 (4th Cir. 1987). In United States v. Jefferson,
the district court, after a thorough review of the voluminous
case law addressing the question of custody, concluded that
the following factors, while not individually determinative,
are often the most salient in a custody determination: (1)
whether the defendant was informed that he was not under
arrest and the he was free to terminate the questioning; (2)
whether the defendant possessed unrestrained freedom of
movement during questioning; (3) whether the defendant
voluntarily submitted to questioning; (4) whether the agents
employed "strong arm tactics or deceptive
stratagems" during questioning; (5) whether the
atmosphere of the questioning was police-dominated; and (6)
whether the defendant was placed under arrest at the
termination of the questioning. 562 F.Supp.2d 707, 713-14
(E.D. Va. 2008): see also United States v. Day. 591
F.3d 679, 696 (4th Cir. 2010) ("Among the facts to be
considered are 'the time, place and purpose of the
encounter, the words used by the officer, the officer's
tone of voice and general demeanor, die presence of multiple
officers, the potential display of a weapon by ...