United States District Court, N.D. Georgia, Atlanta Division
ORDER AND FINAL REPORT AND RECOMMENDATION
S. ANAND UNITED STATES MAGISTRATE JUDGE.
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.
of this finding, the Court RECOMMENDS that
Defendant's Motion to Suppress Statements  be
DENIED IN PART and GRANTED IN
PART, and that Defendant's Motion to
Suppress Evidence Seized from Electronic Devices , be
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 
(“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.
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. 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.
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.
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.
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.
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
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. 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.
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.
DEFENDANT'S MOTION TO SUPPRESS STATEMENTS
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).
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).
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).
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.
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 ...