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United States v. Ansah

United States District Court, N.D. Georgia, Atlanta Division

June 12, 2018

UNITED STATES OF AMERICA
v.
KINGSTON ANSAH

          ORDER AND FINAL REPORT AND RECOMMENDATION

          JUSTIN S. ANAND UNITED STATES MAGISTRATE JUDGE.

         On June 22, 2017, a team of U.S. Postal Inspectors arrived at Defendant Kingston Ansah's residence to execute a search warrant. Defendant was later indicted for various charges of fraud, identity theft and money laundering relating to the investigation. After an evidentiary hearing and briefing, the case is before the undersigned on various motions to suppress relating to statements and other evidence obtained during the search. As explained below, the Court generally rejects the arguments and theories of suppression advanced by the Defendant, with one exception. Specifically, the Court agrees with the Defendant that the Government has not proven that Defendant's statements to the inspectors revealing his password to his mobile telephone were made voluntarily.

         Because of this finding, the Court RECOMMENDS that Defendant's Motion to Suppress Statements [24] be DENIED IN PART and GRANTED IN PART, and that Defendant's Motion to Suppress Evidence Seized from Electronic Devices [41], be GRANTED.

         FACTUAL BACKGROUND

         On June 19, 2017, another U.S. Magistrate Judge on this Court issued warrants that authorized U.S. Postal Inspectors to search residential and business premises associated with Defendant Ansah. See Gov't Hearing Exs. 2-3. A team of approximately nine postal inspectors, under the direction of lead agent Jacob Petronis, executed the residential warrant in the morning of June 22, 2017. Hearing Transcript [49] (“Tr.”) at 8-9. After Defendant opened the door, the inspectors placed him and another occupant (Bijoux Sampson) in handcuffs, and restrained them outside of the residence while the inspectors conducted a protective sweep of the residence. Tr. at 12. According to Sampson, who testified at the hearing, officers pointed guns directly at him, threatened “hands up or I'll shoot, ” forced him and Ansah out of the house while Sampson was wearing just underwear, and kept them outside in the rain for approximately 15 minutes. See id. at 65-67, 74-77. Inspector Petronis, however, testified that this process only took three to five minutes. Tr. at 12.[1]

         After the house was cleared, the inspectors holstered their weapons, released the cuffs on Defendant and Sampson, and allowed them to sit on a couch in the living room. See Tr. at 12-14. Inspector Petronis informed the occupants that the inspectors were present to conduct a search, and he advised them that they were not compelled to stay and could leave if they wanted. Tr. at 12-13.[2] The Defendant remained, and after approximately 20 minutes, Inspector Petronis asked whether he could interview the Defendant. Tr. at 13. The Defendant agreed, and Petronis and another inspector (Bell) took the Defendant to a private room within Defendant's residence. Tr. at 15.

         The inspectors did not restrain the Defendant, did not block his route to the door, and did not frisk or touch him in any way during the interview. Tr. At 15-16. A recording of the approximately 45-minute long interview was introduced into the record as Gov't Ex. 1, and portions were played during the evidentiary hearing. The recording shows that the inspectors clearly informed Defendant that he was not under arrest, that he could leave, and that he was not required to answer any questions. Ex. 1 at 4:00-5:20.

         The major issue in dispute in the suppression motions is a series of questions posed, tactics employed, and statements made by the inspectors, to get the Defendant to divulge the password to his cell phone. The inspectors informed the Defendant that they would be seizing his cell phone as authorized by the warrant. Defendant responded with audible distress at the prospect of losing his cell phone. See Ex. 1, approx. 19:00-20:00. The inspectors told the Defendant that they would be able to return the phone itself back sooner if he would agree to share his password to unlock the phone. Id. The inspectors indicated that they needed to be able to make an “image” copy of the phone before they could return it, and that they could do so substantially faster with the password. Id. The defendant nevertheless hesitated to share his password, noting that he used this same password for multiple items. In response, Inspector Bell assured the Defendant, that “we're not going into your e-mails or anything like that.” Id.

         Approximately 18 minutes later, after some particularly pointed questions about some apparently false identification documents, the Defendant stated that he wanted to speak with a lawyer before continuing the discussion. Ex. 1 at approx. 37:25. The inspectors indicated that Defendant's lawyer should contact the prosecutor to discuss the matter. Id. However, the inspectors continued to add significant commentary after the Defendant had invoked his right to speak with a lawyer, including that they (the inspectors) believed that Defendant was being untruthful with them, that “what you told us today makes no sense.” Id. at 37:25-39:40.

         At that point, Defendant stated that his attorney's telephone number and others that he needed were in his cell phone's contacts. Id. at approx. 40:00. Inspector Petronis stated, “[b]efore we leave, we'll get you any phone that you need, ” but that “without a passcode it's gonna take a while . . . .” Defendant at that point agreed to share the passcode. Id. at 40:20-40:35.

         After Defendant divulged the passcode, the inspectors continued to press Defendant for consent to search the contents of the phone. The inspectors told the Defendant that if he did not consent, they would get a warrant anyway, and therefore they did not really need his consent. Id. at 40:48-41:55. They informed him, however, that obtaining a warrant would take more time, and that it would speed up the process of returning the phone to Defendant if he would consent to the search. Id.[3] The Defendant clearly hesitated in allowing the inspectors to search the contents of the phone, and stated that he should contact his attorney to discuss this matter first before considering such a request. Id. at 41:30-41:41. In response, Inspector Bell further advised the Defendant, who had already stated his desire to speak to a lawyer, “[t]he phone part of it, you don't need an attorney.” Id. at 41:41. After the inspectors reiterated that they did not actually need consent-because they would get a warrant anyway-and therefore that consent would only help the Defendant-by speeding up return of his phone-the Defendant finally agreed to give up his instinct to speak with a lawyer and he consented to the search of his phone. Id. at 42:10.

         As of the evidentiary hearing-eight months after the search in which the Defendant had agreed to divulge his passcode based in part on promises that doing so would speed up return of his phone-the phone has not been returned. See Tr. at 44, 73.

         DISCUSSION

         I. DEFENDANT'S MOTION TO SUPPRESS STATEMENTS

         A. Miranda

         In Miranda v. Arizona, 384 U.S. 436 (1966), the Supreme Court held that a suspect who is in custody must be advised of his rights to remain silent and to the assistance of counsel prior to any interrogation by law enforcement. It is undisputed the inspectors did not furnish Miranda warnings to Defendant and that he was nevertheless interrogated. The question, however, is whether the Defendant was in custody at the time of this interrogation, because otherwise the protections of Miranda simply do not apply. See United States v. Acosta, 363 F.3d 1141, 1148 (11th Cir. 2004).

         The Supreme Court in Miranda explained that custodial interrogation means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. Id. 384 U.S. at 444. The Court subsequently defined “custody” in this context as a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. See California v. Beheler, 463 U.S. 1121, 1125 (1983) (quotation marks omitted). It is the Defendant's burden to demonstrate that he was in “custody” during questioning and that Miranda thereby even applies. See United States v. de la Fuente, 548 F.2d 528 (5th Cir. 1977); see also United States v. Peck, 17 F.Supp.3d 1345, 1353-55 (N.D.Ga. 2014).

         The Supreme Court has provided a non-exhaustive list of factors courts should consider in determining whether a suspect is in “custody” for purposes of Miranda:

As used in our Miranda case law, “custody” is a term of art that specifies circumstances that are thought generally to present a serious danger of coercion. In determining whether a person is in custody in this sense, the initial step is to ascertain whether, considering the objective circumstances of the interrogation, a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave. And to determine how a suspect would have gauge[d] his freedom of movement, courts must examine all the circumstances surrounding the interrogation. Relevant factors include the location of the questioning, its duration, statements made during the interview, the presence or absence of physical restraints during the questioning, and the release of the interviewee at the end of the questioning.

Howes v. Fields, 565 U.S. 499, 508 (2012).

         Defendant couches much of his argument as falling under Miranda, but the Court does not perceive a Miranda violation. Put simply, the Court does not find that the Defendant has met his burden to establish that he was in custody-and thus that he was entitled to Miranda warnings-at any point during the September 22 interview and search.

         After a brief detention to facilitate a security sweep of the house, the Defendant was unrestrained and the inspectors holstered their weapons the entire remainder of the time. Significantly, the inspectors advised the Defendant that he was free to leave, that he was not under arrest, and that he did not have to speak with them at all. This encounter took place within Defendant's own home, and he was not dragged to a police station or some other unknown location. The incident was also relatively short: Inspector Petronis indicated that after the initial security sweep, the agents began searching for approximately 20 minutes before he and Inspector Bell requested to interview the Defendant, which interview then lasted approximately ...


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