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United States v. Volious

United States District Court, D. South Carolina, Columbia Division

April 2, 2018

United States of America, Plaintiff,
Vance Edward Volious, Jr., Defendants.


         This matter is before the court on Defendant Vance Edward Volious, Jr.'s Motion to Suppress (ECF No. 222). The Government opposes Defendant's Motion (ECF No. 234 at 30-31). For the reasons set forth below, the court DENIES Defendant's Motion to Suppress (ECF No. 222).


         On June 20, 2017, the Government filed a four-count Indictment against Defendant and two other co-defendants. (ECF No. 22.) Count 1 of the Indictment charges Defendants with conspiracy to violate federal law and it contains allegations that Defendants “ordered, paid for, received, armed and attempted to reship a mail bomb for the purpose of killing an intended victim.” (Id. at 1.) Additionally, the Indictment alleges that Defendants conspired to distribute controlled substances. (Id. at 3-4.) Count 2 charges Defendants with the transport and receipt of explosives to kill an individual, in violation of 18 U.S.C. § 844(d) & 2. (Id. at 8.) Count 3 charges Defendants with mailing a nonmailable item with intent to kill, in violation of 18 U.S.C. § 1716(j)(2) & 2. (Id. at 9.) Count 4 charges Defendants with carrying explosives during the commission of a felony, in violation of 18 U.S.C. § 844(h) & 2. (Id.)

         On January 20, 2018, Defendant filed a Motion to Suppress “all statements made by him to law enforcement officers whenever officers interviewed Defendant at his house, the detention center, at FBI headquarters, during the polygraph, and any other statement unknown as of this filing.”[1] (ECF No. 222 at 1.) Defendant bases his Motion on the grounds that Defendant's Fifth and Sixth Amendment rights were violated, in addition to a violation of the electronic recording policy implemented by the Government in 2015.[2] (Id.)

         On February 3, 2018, the Government filed a response in opposition asserting that all statements given by Defendant were made while he was not in custody. “Defendant gave statements voluntarily in his home, voluntarily agreed to be transferred to FBI headquarters, voluntarily agreed to take a polygraph examination, and voluntarily agreed to a pre-polygraph interview. At no time was Defendant under arrest, formally or functionally. Thus, Miranda does not apply.” (ECF No. 234 at 30.)

         On March 7, 2018, the court held a suppression hearing in which both parties were present. (ECF No. 267.) Both parties were given an opportunity to question the Government's witness, FBI Special Agent Tartaglia who was one of Defendant's interviewing agents and involved in the execution of the search warrant at Defendant's house on June 7, 2017, and Defendant himself. Six exhibits were admitted into evidence: (1) the application and search warrant for Defendant's house; (2) the FBI Advice of Rights waiver; (3) the FBI Consent to Interview with Polygraph waiver; (4) Columbia Police Department (“CPD”) dash and body cam; (5) four screenshots from the CPD dash cam; and (5) a FBI sketch of Defendant's house downstairs. (ECF No. 268.)


         The Fifth Amendment provides that [n]o person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. In Miranda v. Arizona, 384 U.S. 436, 444 (1966), the Supreme Court held that a person who is subject to “custodial interrogation” must “be warned that he has a right to remain silent, that any statement that he does make may be used as evidence against him, and that he has a right to the presence of an attorney.” “Failure to administer Miranda warnings creates a presumption of compulsion. Consequently, unwarned statements that are otherwise voluntary within the meaning of the Fifth Amendment must nevertheless be excluded under Miranda.” Oregon v. Elstad, 470 U.S. 298, 306 (1985).

         Where a defendant challenges the admissibility of a statement under Miranda, “the government bears the burden of establishing by a preponderance of the evidence that the statement was not the product of custodial interrogation conducted in the absence of Miranda warnings.” United States v. Bello-Murillo, No. 1:13-cr-00310-GBL-3, 2014 WL 6682630, at *2 (E.D. Va. Nov. 14, 2014) (citing Colorado v. Connelly, 479 U.S. 157, 168 (1986)). A waiver of Miranda rights must be “the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Moran v. Burbine, 475 U.S. 412, 421 (1986). “Coercive police activity is a necessary predicate to a finding that a waiver of Miranda rights is not ‘voluntary.'” United States v. Cristobal, 293 F.3d 134, 141 (4th Cir. 2002).

         In determining whether a defendant is in custody for the purposes of Miranda protection, “the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (internal quotation marks and citation omitted). In deciding what qualifies as the functional equivalent of “custody” outside of a formal arrest, courts generally consider whether “a reasonable man in the suspect's position would have understood his situation” to be custodial. Berkemer v. McCarty, 468 U.S. 420, 442 (1984). More specifically, a court considers whether “under the totality of the circumstances, ‘a suspect's freedom of action is curtailed to a degree associated with formal arrest.'” United States v. Parker, 262 F.3d 415, 419 (4th Cir. 2001) (quoting Berkemer, 468 U.S. at 440).

         III. ANALYSIS

         The court considers whether a reasonable person in Defendant's position prior to making his statements would have understood his situation as custodial. The Court of Appeals for the Fourth Circuit has articulated that this analysis specifically requires a consideration of whether “a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.” United States v. Jamison, 509 F.3d 623, 628 (4th Cir. 2007). Courts applying this standard have looked to surrounding circumstances of the interrogation, including, for example, “the time, place and purpose of the encounter, the words used by the officer, the officer's tone of voice and general demeanor, the presence of multiple officers, the potential display of a weapon by an officer, and whether there was any physical contact between the officer and the defendant.” United States v. Day, 591 F.3d 679, 696 (4th Cir. 2010) (internal quotation marks omitted).

         The court separates its analysis of Defendant's contact with law enforcement officials into two settings: Defendant's house and the FBI headquarters (including the drive to the FBI headquarters).

         A. Defendant's House

         1. Time

         The time factor in Day references the actual time of day in which the questioning took place. Defendant's interactions with law enforcement officials were during normal daytime hours (approximately 9 a.m. until 4 p.m.), not late at night or during the night. While such a fact leans in favor of the Government, the court recognizes that the duration of time Defendant was with law enforcement officials during the day in question is also significant. See United States v. Beard, No. 04-4044, 2005 WL 32831, at *3 (4th Cir. Jan. 7, 2005).

         In Beard, the Fourth Circuit held that Defendant was not “in custody, ” for Miranda purposes, at the time he made incriminating statements to the police. Id. The court relied on the following factors: the interaction happened very quickly, the defendant was not handcuffed or otherwise restrained, there was no evidence that officers drew their weapons in the defendant's presence or were antagonistic towards him, the defendant was in his own bedroom in his house and was never told he was not free to leave, and although one of the officers signaled to the second officer that they were going to end up “cuffing” the defendant, there was no evidence that the defendant either observed or understood the signal) (emphasis added). Id. Although Agent Tartaglia testified at the suppression hearing that the interview inside Defendant's house between himself, Agent Socha[3] and Defendant lasted approximately 45 minutes, according to Agent Tartaglia's interview log notes, the interview actually lasted approximately three hours. (ECF No. 290 at 68-69.) The court notes that Agent Tartaglia testified that the questioning did not last the entire three hours, as Defendant was allowed cigarette breaks as requested. (Id. at 87.)

         The Supreme Court in Berghuis v. Thompkins, 560 U.S. 370, 372 (2010), dealt with an interview lasting around the same time frame as in the present case, analyzing whether a three-hour interview significantly impacted the presence of officer coercion:

There is no evidence that Thompkins's statement was coerced. Thompkins does not claim that police threatened or injured him during the interrogation or that he was in any way fearful. The interrogation was conducted in a standard-sized room in the middle of the afternoon. It is true that apparently he was in a straight-backed chair for three hours, but there is no authority for the proposition that an interrogation of this length is inherently coercive. Indeed, even where interrogations of greater duration were held to be improper, they were accompanied, as this one was not, by other facts indicating coercion, such as an incapacitated and sedated suspect, sleep and food deprivation, and threats. The fact that Helgert's question referred to Thompkins's religious beliefs also did not render Thompkins's statement involuntary. The Fifth Amendment privilege is not concerned with moral and psychological pressures to confess emanating from sources other than official coercion.

         Accordingly, the court does not find that the fact the interview lasted three hours indicates inherent police coercion.

         2. Place

         Defendant's interview took place in his house. Agent Tartaglia and Agent Socha sat at either end of the six-chair table in Defendant's dining room. (ECF No. 290 at 117.) The parties agree that the dining room had an open floor plan, whereby the living room, kitchen and dining room area were not partitioned off, but instead flowed together. (Id. at 86, 116.) The court is in agreement with this depiction, as it observed the floor plan of Defendant's house that was entered into evidence. (See ECF No. 268.)

         The Fourth Circuit has expressed that for purposes of Miranda, it is not custody per se that is integral to the analysis, but it is “the custodial nature of the interrogation which triggers the necessity for adherence to the specific requirements of the Miranda holding.” United States v. Jones, 818 F.2d 1119, 1123 (4th Cir. 1987). Notably, the Supreme Court has found a defendant to be in custody in their own home. See Orozco v. Texas, 394 U.S. 324 (1969). In Orozco, four police officer's arrived at the defendant's house, admitted by an unidentified woman, entered his bedroom and began to question him. Id. at 325. One of the officers testified that from the moment defendant gave his name, he was not free to go where he pleased but was in fact under arrest. Id.

         Distinguishing from Orozco, in Parker, the Fourth Circuit held that a suspect was not entitled to Miranda warnings while being questioned by law enforcement officers in her bedroom of her home. 262 F.3d at 418. The Fourth Circuit discussed the factors that they took into consideration in their ruling:

The door to the room was closed or nearly closed during the interview, which lasted approximately 30 minutes. One agent sat on a chair, and at least one agent stood against a wall of the 9' x 11' room, while Parker sat on the bed. During the interview, Parker's aunt entered the room twice to speak briefly to her, and Parker did not leave the room or request to do the same. An agent, testifying at the suppression hearing, said that had Parker attempted to do so, she would not have been allowed to leave the house, but would have been allowed to leave the bedroom. Parker was not handcuffed, and at some point during the interview she apparently was informed that she was not under arrest.


         Given that Defendant's interview took place in an open space in the dining room area of his home, coupled with the fact that Defendant was informed he was not under arrest and the agents never indicated he was not free to leave, the location of the interview does not support Defendant's Motion to Suppress.

         3. Purpose of Encounter

         Defendant agreed to the interview that took place in his house. Agent Tartaglia testified that after Defendant had been sitting on his front curb for approximately twenty minutes while the search of his house began, he asked Defendant if he was willing to have a conversation and answer some questions, to which Defendant replied, “yes.” (ECF No. 290 at 40.) Agent Tartaglia testified that Defendant was released from the handcuffs they placed him in for officer safety and they both walked back towards his house.[4] (Id.) Agent Tartaglia testified that he asked Defendant where they could talk, and he pointed to his dining room table. (Id. at 41.) The court does not find any facts regarding this factor that weighs in favor of Defendant, especially given that Defendant agreed to speak with the agents.

         4. Officer's Words, Tone of Voice, General Demeanor

         Shortly after law enforcement officials arrived at Defendant's house, Defendant asked Agent Tartaglia if he was under arrest, to which Agent Tartaglia responded that he wasn't, but that he was being investigatively detained because of his non-compliance to their directive to exit the home when they first arrived. (ECF No. 290 at 38.) The court recognizes that “informing a suspect that he is not under arrest is one factor frequently considered to show lack of custody.” Jones, 818 F.2d at 1125.

         During the suppression hearing, Agent Tartaglia stated that six pages of his interview notes with Defendant all dealt with questions about this case. (ECF No. 290 at 83.) Defendant, during direct examination, testified to the following in regard to the agents' words, tone of voice, and general demeanor:

Q. Did they ever tell you that you did not have to answer their questions?
A: No.
Q: Did you feel like you didn't have to answer their questions?
A. I felt like I did.
Q. Why didn't you just tell them that you wanted to leave?
A. I didn't feel like they would have let me . . . It didn't seem like I was going to be able to go anywhere.
Q. Did you feel like you were under arrest at that time?
A. I felt that way. . . It was kind of like an episode you see on TV, the good cop, the bad cop. It was Mr. Tartaglia, he was talking calm to me, and then the other agent was slamming his hands on the table and telling me that I knew, you know, why they were here . . . He was up in my face then in front of me . . . They started slamming these pictures down of I guess it was a bomb, and he told me that that's what these labels were that I printed; that's what they were for.
Q. Did he call you Vance? Did he call you by your name?
A. Everything he was saying was derogatory . . . he was saying that I was Michael Young's little bitch, things like that, things of that nature.
Q. How did you feel towards Agent Socha?
A. I was kind of intimidated.
Q. How about Agent Tartaglia? Were you intimidated by him?
A. No.
Q. When you were smoking cigarettes, who was with you?
A. Tartaglia.
Q. When you were in the vehicle who was with you?
A. Tartaglia.
Q. Was Agent Socha as well?
A. He was in the front, I ...

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