United States v. Tangtong

          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 ...