United States District Court, D. South Carolina, Columbia Division
ORDER AND OPINION
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).
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
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.)
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.” (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. (Id.)
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.)
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.)
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).
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).
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).
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).
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
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).
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 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.)
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
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.
the court does not find that the fact the interview lasted
three hours indicates inherent police coercion.
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.)
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.
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.
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
Purpose of Encounter
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. (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
Officer's Words, Tone of Voice, General Demeanor
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.
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
Q. Did they ever tell you that you did not have to answer
Q: Did you feel like you didn't have to answer their
A. I felt like I did.
Q. Why didn't you just tell them that you wanted to
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
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?
Q. When you were smoking cigarettes, who was with you?
Q. When you were in the vehicle who was with you?
Q. Was Agent Socha as well?
A. He was in the front, I ...