United States v. Tangtong, Criminal No. 7:18-cr-0002
| Decision Date | 27 November 2018 |
| Docket Number | Criminal No. 7:18-cr-0002 |
| Court | U.S. District Court — Western District of Virginia |
| Parties | UNITED STATES OF AMERICA v. ETHEN TANGTONG, Defendant. |
MEMORANDUM OPINION
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.
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 etangtong17@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 solicitingchild 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, 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, 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 that to avoid "aggravat[ing] 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, 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...
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