Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 1 of 19 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND UNITED STATES Plaintiff v CRIM NO RDB-17-0069 HAROLD T MARTIN III Defendant MEMORANDUM OPINION On February 8 2017 the Grand Jury returned an Indictment against Harold T Martin III charging him with twenty counts of Willful Retention of National Defense Information in violation of 18 U S c 793 e ECF No 33 The Defendant's trial is scheduled to begin on June 17 2019 Now pending before this Court are the Defendant's motions to suppress certain evidence at his upcoming trial See ECF Nos 128 129 130 On November 14 2018 the Court conducted a hearing on these motions ' For the reasons explained herein the Defendant's Motion to Suppress Tangible and Derivative Evidence ECF No 128 is DENIED the Defendant's Motion to Suppress Cell-Site Location Information Seized Without a Warrant ECF No 129 is DENIED and the Defendant's Motion to Suppress Statements ECF No 130 is GRANTED 1 That hearing was conducted under seal as there was a potential for references to classified material A transcript of the hearing with appropriate redactions will be made available for public review in due course 1 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 2 of 19 FACTUAL BACKGROUND2 During the investigation of this matter multiple search warrants were issued by this Court The ftrst warrant the Twitter search warrant issued on August 25 2016 authorized the Government @HAL_999999999 to receive information associated with the Twitter account See ECF No 140-1 The warrant was supported by an afftdavit submitted by FBI Special Agent SA Jeremy Bucalo and described a recent incident involving the posting of what was purported to be stolen government property on multiple online file-sharing websites Id 10-22 The amdavit further provided received a Twitter message from @HAL_999999999 asked for a meeting with the Id 22-23 In these messages @HAL_999999999 and stated shelf life three weeks Id 23 Based on this information the amant identifted the Defendant an individual whose identity was known to the afftant and who was a former government contractor Id 22 The amant averred that the Defendant had the ability to access property of the United States that appeared to be what was purported to be stolen property that was publicly posted on the Internet Id The amdavit also stated that monitoring of the Defendant's use of his government computer 2 At the motions hearing the parties presented evidence and testimony on the Defendant's Motion to Suppress Statements ECF No 130 Specifically the Government introduced the testimony of Special Agent SA Ryan Davis and Task Force Officer TFO Paul Scarzello both of whom participated in the execution of the search warrant for the Defendant's residence The Defendant presented the testimony of Anthony Contrini a neighbor of the Defendant and Deborah Shaw the Defendant's romantic partner both of whom obsenred some of the events on August 27 2016 X hen referencing their testimony herein the Court is unable to cite to the transcript of the motions proceedings because it is not yet available Thus to expedite the issuance of thi opinion the Court recites the witness' testimony here based on its own detailed account of the hearing 2 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 3 of 19 revealed that he @HAL_999999999 received notifications associated with the Twitter handle Id 'If 26 Finally the affidavit provided that on a publicly available profile on a social networking website the user hal999999999 had a display picture matching the MVA photo of the Defendant Id 'If 27 The second warrant issued by this Court authorized the Government to search the Defendant's residence person and vehicle3 the residence search warrant ECF No 1402 The affidavit supporting this warrant contained all of the information included in the Twitter affidavit See id In addition the affidavit stated that The affiant averred that a review of what was purported to be stolen government property publicly posted on the Internet fit the description of the information The affidavit further stated that the Twitter account @HAL_999999999 was created by a user with the email addresshmartin999@gmail com an email address associated with the Defendant according to open source databases Id 'If'lf 17 23 The affidavit provided that this Twitter account was repeatedly accessed by a user with an IP addressed assigned to Hal Martin at 7 Harvard Road Glen Burnie Maryland 21060 d 'If 23 MVA records also provide that Martin resides at this address and that he owns a teal Chevy Caprice sedan License Plate #5CL2057 Id 'If'lf 25-26 3 The Government also obtained a warrant for the installation of a GPS tracking device on the Defendant's vehicle ECF No 140-3 However the Defendant did not challenge this warrant in its motion or at the motions hearing and according to the Government no data was recovered from the tracking device Therefore the Court will not address this search warrant in this opinion 3 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 4 of 19 At approximately 2 30 p m on August 27 2016 law enforcement officers went to the Defendant's residence at 7 Harvard Road in Glen Burnie Maryland to execute the search warrant for his residence person and vehicle Upon arrival nine SWAT agents approached the Defendant after observing him outside of his residence One of the SWAT agents SA Davis testified that the SWAT agents were armed with rifles and handguns and dressed in protective gear SA Davis stated that he was also carrying a crow bar and a battering ram when he approached the Defendant As the SWAT agents approached the Defendant SA Davis testified that at least three agents had their guns drawn and pointed at the Defendant The agents commanded the Defendant to step away from the front door to his residence and show them his hands The Defendant complied and SA Davis testified that he then approached the Defendant and ordered him to get down on the ground SA Davis put the Defendant's left hand behind his back to maintain control over him as he lied down on the ground and then SA Davis handcuffed the Defendant SA Davis testified that the Defendant remained handcuffed for approximately thirty minutes While the Defendant was outside SWAT agents secured his residence ECF No 141 at 3 They employed a flash-bang device immediately inside the front door to assist them a device that makes a loud noise and creates over pressurization SA Davis described the effect of the device as temporarily disorienting and testified that the Defendant who was approximately fifteen feet from the front door at the time it was employed likely experienced these effects Defense witnesses Anthony Contrino and Deborah Shaw both of whom were 4 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 5 of 19 approximately two houses away from the Defendant's residence at the time testified that they heard a loud noise and bang In addition to the nine SWAT agents other law enforcement officers were also present on the scene Specifically FBI Task Force Officer TFO Paul Scarzello testified that in addition to himself there were seven other FBI agents present SA Laura Pino SA Jeremy Bucalo TFO Brooke Donovan Supervisory Special Agent SSA Louis Luciano SSA Daniel Gray TFO Sean Lewis and FBI Computer Scientist Susi Hajeski In addition Contrino testified that he observed at least three Maryland State Trooper vehicles outside of the Defendant's residence while the Defendant was handcuffed outside Both Contrino and Shaw testified that the State Troopers blocked allvehicular traffic on the street outside of the Defendant's residence Once the residence was secure SA Davis took the Defendant inside SA Davis testified that he instructed the Defendant to sit on the couch inside of his living room and then removed the Defendant's handcuffs SA Davis then left the Defendant in the living room with SA Bucalo and agents Pino and Scarzello joined them in the living room shortly thereafter 4 See Gov Ex 19 at 7-8 These three agents were dressed in civilian clothing and were not visibly armed The agents then began to interrogate the Defendant Agents Bucalo Pino and Scarzello conducted most of the questioning but other agents also joined the interrogation at various points and asked questions See e g Gov Ex 19 at 8 33 41 61 SSALuciano 15465 SSA Gray 158 Hajeski 181-224 TFO Donovan 4 At the beginning of the SA Davis testified that he and the other SWAT agents left the Defendant's residence after approximately thirty minutes 5 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 6 of 19 interrogation SA Bucalo told the Defendant that he was not under arrest that his participation was voluntary and that he was free to leave See Gov Ex 18 Gov Ex 19 at 3 Soon thereafter in response to a comment made by the Defendant SA Pino confirmed that he was not under arrest s Gov Ex 19 at 13 However later in the interrogation the agents did not correct the Defendant when he said to them y ou come in here you eh uh put me in handcuffs and under arrest or whatever d at 129 The Defendant never asked to leave or to stop the interrogation During the interrogation the agents confronted the Defendant with incriminating evidence discovered on his property Id at 169-71 181-82 They repeatedly emphasized to the Defendant the importance of being honest with them see id at 63 65 66 96 117 128 169 184 217 and accused the Defendant oflying to them on multiple occasions id at 128 130 181 184 For instance TFO Scarzello told the Defendant we know you're not being honest with us and TFO Donovan asserted y ou have to stop denying now d at 130 181 TFO Donovan later stated y ou can sit here and deny deny deny but the feeding game is over Alright You're a bad man There's no way around that You're a bad man d at 183 The Defendant admitted to having taken classified government documents and data home from work and told the agents in detail how he had done so Id at 136-44 15152 170-78 187 The Defendant left the interrogation space only once during the interrogation at which time he went to help agent Hajeski access his computer equipment in his home office See X'hen the Defendant expressed reservations about discussing classified matters in his home SA Pino offered to speak to the Defendant in an authorized Sensitive Comparted Information Facility SelF Gov Ex 19 at 13 In response the Defendant stated If I'm not under arrest you guys can come down to my work next week or whatever ld SA Pino then replied No you're not Id 5 6 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 7 of 19 Gov Ex 19 at 157 Agents Bucalo and Scarzello accompanied the Defendant at that time See id Throughout the remainder of the interrogation the Defendant was in the living room with FBI agents At one point the Defendant asked an agent to walk with him to the refrigerator to get a bottle of water See id at 155 Rather than walk with the Defendant to the refrigerator or allow the Defendant to walk alone the agents retrieved the water for him Id at 166 The Defendant was separated from his partner Deborah Shaw throughout the interrogation See Gov Ex 19 at 158 223 An agent told the Defendant that Shaw was outside waiting to get into the house to know where her life is leading rd at 183 When the Defendant asked to speak to Shaw at the end of the interrogation the agents allowed him to do so but told the Defendant you can't touch her or any of that stuff rd at 224 Shaw testified that she was only permitted to speak to the Defendant for sixty seconds The Defendant's interrogation lasted approximately four hours See Gov Ex 18 The agents never gave the Defendant Miranda warnings 6 See id After the execution of the foregoing search warrants the Government obtained additional search warrants Specifically the Government obtained warrants to search the curtilage of the Defendant's residence and to receive records regarding various electronic accounts associated with the Defendant See ECF Nos 140-4 140-5 The Government also obtained a search warrant for the Defendant's work station at UMBC where he had completed coursework for a PhD in information security management See ECF No 140-6 Finally the Government acquired historical cell-site location information for the Defendant's cell 6 See Miranda v Arizona 384 U S 436 1966 7 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 8 of 19 phone number pursuant to an order issued by Magistrate Judge Gallagher under the Stored Communications Act 18 U S c 2703 d See ECF No 140-7 The Defendant has ftled motions to suppress the evidence seized pursuant to the search warrants the historical cell-site location information and his statements to law enforcement agents ECF Nos 128 129 130 The Court will address each of the motions in tum ANALYSIS 1 Defendant's Motion to Suppress Tangible and Derivative Evidence The Defendant ftled a Motion to Suppress Tangible and Derivative Evidence seized by the Government pursuant to the search warrants ECF No 128 Specifically the Defendant argues that the Twitter and residence search warrants were not supported by probable cause and further that they were so deficient that no objectively reasonable officer would have relied in good faith on their legality ECF No 152 The Defendant challenges the subsequently issued search warrants-i e for the curtilage of his residence ECF No 1404 electronic accounts ECF No 140-5 and work station at UMBC ECF No 140-6 --on the grounds that they were premised on evidence seized pursuant to the Twitter and residence warrants and therefore the evidence obtained pursuant to them is fruit of the poisonous tree ECF No 152 at 3 See Wong Sun v United States 371 U S 471 488 1963 bolding that evidence must be excluded where it was obtained as a result of the exploitation of the police's illegal actions The Fourth Amendment to the United States Constitution provides that no Warrants shall issue but upon probable cause supported by Oath or afftrmation and particularly 8 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 9 of 19 describing the place to be searched and the persons or things to be seized U S Canst amend IV The Supreme Court of the United States has required that the existence of probable cause be decided by a neutral and detached magistrate whenever possible Gerstein v Pugh 420 U S 103 112 1975 citing Johnson v United States 333 U S 10 13-14 1948 The magistrate is required simply to make a practical commonsense decision whether given all the circumstances in the affidavit before him including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information there is a fair probability that contraband or evidence of a crime will be found in a particular place United States v Blackwood 913 F 2d 139 142 4th Cir 1990 quoting Illinois v Gates 462 U S 213 238 1983 Significantly the Fourth Amendment exclusionary rule does not bar the admission of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a magistrate later found to be invalid United States v Leon 468 U S 897 913-14 1984 The evidence will be suppressed only if 1 the issuing judge was misled by information that the affiant knew or should have known was false 2 the judge wholly abandoned her neutral role 3 the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable or 4 the warrant is so facially deficient that no reasonable officer could presume it to be valid d at 923 citations omitted When a defendant challenges a search warrant the government bears the burden of proof by a preponderance of the evidence at a suppression hearing See United States v Matlock 415 U S 164 177-78 n 14 1974 In reviewing the search warrant this Court must show great deference to the probable cause determination of a magistrate judge Blackwood 913 F 2d at 142 T1he task of the reviewing court is not to conduct a de novo detennination of 9 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 10 of 19 probable cause but only to determine whether there is substantial evidence in the record supporting the magistrate's decision to issue the warrant Massachusetts v Upton 466 U S 727 728 1984 In this case there was a substantial basis for the Magistrate's fInding of probable cause to issue the search warrant for information associated with the Defendant's Twitter account See Upton 466 U S at 728 The affIdavit provides that the Defendant's Twitter messages in which he requested a meeting _ and stated shelf life three weeks - were sent just hours before what was purported to be stolen government property was advertised and posted on multiple online contentsharing sites including Twitter ECF No 140-1 14-23 Further and signifIcantly the affIant averred that the Defendant was a former government contractor who had access to the information that appeared to be what was purported to be stolen government property that was publicly posted on the Internet Id 25-27 Thus although the Defendant's Twitter messages could have had any number of innocuous meanings in another setting these allegations regarding the context of Defendant's messages provide a substantial basis for the Magistrate's conclusion that there was a fair probability that evidence of the crime of Theft of Government Property in violation of 18 U S c 641 would be found in information associated with the Defendant's Twitter account See Gates 462 U S at 238 For the same reason the Magistrate also had a substantial basis for fInding probable cause to issue the search warrant for the Defendant's residence person and vehicle which was supported by an affIdavit that included all of the information outlined in the Twitter affIdavit See Upton 466 U S at 728 10 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 11 of 19 Because there was a substantial basis for the Magistrate's findings of probable cause to issue these warrants the Court rejects the Defendant's argument that the good-faith exception cannot save the warrants because they were so lacking in probable cause that no reasonable officer could rely on them See ECF No 152 at 2-3 Therefore even in the absence of probable cause to search the Defendant's Twitter account residence person and vehicle the good-faith exception applies and thus the evidence is admissible See Leon 468 U S at 91314 923 II Defendant's Motion to Suppress Cell-She Location Information Seized Without a Warrant The Defendant also moved to suppress the cell-site location information CSLI obtained by the Government on or about December 14 2016 pursuant to an order issued by Magistrate Judge Gallagher under the Stored Communications Act 18 U S c 2703 d ECF No 129 Relying on the Supreme Court's recent decision in Carpenter v United States 138 S Ct 2206 2018 the Defendant argues that the CSLI must be suppressed because it was obtained without a warrant ECF No 129 In Carpenter the Supreme Court held that the government's acquisition of an individual's historical CSLI constitutes a search within the meaning of the Fourth Amendment 138 S Ct at 2220 Thus the Court concluded that the Government must generally obtain a warrant supported by probable cause before acquiring CSLI Id at 2221 In the absence Because there was a substantial basis for the Magistrate's ftndings of probable cause to issue the Twitter and residence search warrants the Court need not address the Defendant's argument that evidence obtained pursuant to the subsequendy issued search warrants is fruit of the poisonous tree See ECF No 152-3 7 11 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 12 of 19 of a warrant the Court said a search is reasonable only if it falls within a specific exception to the warrant requirement Id Soon after the Supreme Court issued its decision in Carpenter the United States Court of Appeals for the Fourth Circuit considered the precise issue presented here - whether Carpenter rendered inadmissible CSLI that was obtained by the government prior to Carpenter by way of a court order issued under the Stored Corrimunications Act See United States v Chave' 894 F 3d 593 608 4th Cir 2018 The Fourth Circuit reasoned that the exclusionary rule's sole purpose is to deter future Fourth Amendment violations and therefore when investigators act with an objectively reasonable good-faith belief that their conduct is lawful the exclusionary rule will not apply d citations omitted Thus the Fourth Circuit held that the exclusionary rule clid not apply because the investigators reasonably relied on Court orders issued under the Stored Communications Act to obtain the CSLI which was a permissible method at the time 6f acquisition 8 d Here as in Chave' the Government obtained the CSLI prior to Carpenter pursuant to an order issued by a magistrate under the Stored Communications Act See ECF No 140-7 At the time the bincling authority in this Circuit was that the government does not violate the Fourth Amendment when it obtains historical CSLI from a service provider without a warrant United States v Graham 824 F 3d 421 425 4th Cir 2016 en bane abrogated by Carpenter 138 S Ct 2206 Therefore under Chave' the CSLI is not subject to the exclusionary rule because the officers relied in good faith on then-existing precedent when they acquired 85 United States v Graham 824 F 3d 421 425 4th CiI 2016 en bane abrogated 0' Carpenter 138 S Ct 2206 12 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 13 of 19 it 9 See 894 F 3d at 608 See also United States v Chambers - F App'x - 2018 WL 4523607 at 3 2d CiJ Sept 21 2018 concluding that before Carpenter it was objectively reasonable for authorities to think that if they complied with the Stored Communications Act no warrant based on probable cause was constitutionally required to obtain cell-site information from a third-party United States v Jqyner 899 F 3d 1199 1204-05 11th CiJ 2018 same III Defendant's Motion to Suppress Statements The Defendant also moved to suppress the statements he made to law enforcement agents during the August 27 2016 search of his home See ECF No 130 The Defendant argues for suppression chiefly on the basis that the statements were obtained during a custodial interrogation in the absence of Miranda warnings Id ECF No 150 The Government does not dispute that the Defendant was subject to interrogation and was never given Miranda warnings ECF No 141 p 20 n 19 Therefore the only issue before the Court is whether the Defendant was in custody at the time of his interrogation such that Miranda warnings were required See Miranda v Arizona 384 U S 436 444 1966 see also United States v Parker 262 F 3d 415 419 4th CiJ 2001 Absent formal arrest Miranda warnings only apply where there has been such a restriction on a person's freedom as to render him in custody internal quotation marks and citations omitted The test for determining whether an individual is in custody for Miranda purposes is whether under the totality of the circumstances the suspect's freedom of action is curtailed to a degree associated with formal arrest Berkemer v McCarty 468 U S 420 440 1984 The Defendant argues that Chovezwas wrongly decided and that even prior to Carpenter the Government could not have reasonably relied on court orders issued under the Stored Communications Act to obtain an individual's CSLL ECF No 152 at 4 9 13 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 14 of 19 internal quotations omitted see also Parker 262 F 3d at 419 This inquiry is an objective one and asks whether a reasonable man in the suspect's position would have understood his position as being in custody Berkemer 468 U S at 422 In other words the court considers whether a reasonable person would have felt he or she was not at liberty to terminate the interrogation and leave Un ted States v Hash me 734 F 3d 278 282-83 4th Cir 2013 internal quotation marks and citations omitted Facts relevant to the custodial inquiry include but are not limited to 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 Hash me 734 F 3d at 283 internal quotation marks and citations omitted Also relevant are the suspect's isolation and separation from family Id In this case the facts demonstrate at a reasonable person in the Defendant's position would have perceived a police dominated atmosphere before and during the interrogation The Defendant was initially approached by nine SWAT agents dressed in protective gear some of whom had their guns drawn at the Defendant lO Multiple other officers were also on the scene including eight FBI agents and three State Trooper vehicles - a fact that goes a long way towards making the suspect's home a police dominated atmosphere United States v Craighead 539 F 3d 1073 1085 9th Cir 2008 The Defendant was immediately placed face down on the ground and handcuffed demonstrating that the officers sought out the 10 When asked why the SWAT agents initially approached the Defendant in this manner SA Davis testified that they approach people this way because we want to overwhehn them so that they feel forced to comply with US 14 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 15 of 19 Defendant and had physical dominion over him United States v Cavazos 668 F 3d 190 194 5th Cir 2012 Although the Defendant's handcuffs were removed prior to the interrogation the experience of being singled out and handcuffed would color a reasonable person's perception of the situation and create a reasonable fear that the handcuffs could be reapplied at any time Id at 195 Further after his initial detention the Defendant was interrogated by three agents for approximately four hours ll During the interrogation the agents confronted the Defendant with incriminating evidence discovered on his property which may certainly cause a reasonable person to feel compelled to cooperate with the police Moreover the Defendant's freedom of movement was significantly restricted during the interrogation Indeed he was only permitted to leave the interrogation space once-i e when he went to his home office to help Hajeski access his computer equipment-at which time he was accompanied by agents In addition the Defendant was isolated from his partner until the end of the interrogation - a tactic that the Supreme Court has recognized as one of the distinguishing features of a custodial interrogation See Miranda 384 U S at 445-46 See also Hashime 734 F 3d at 284 stating that where the defendant was isolated from his family members i t is little wonder 11 In support of its argument that the Defendant's interrogation was noncustodial the Government points to the fact that the Defendant was informal with the interrogating agents even collegia at times ECF No 141 at 26 However the Defendant's statements and attitude during the interrogation are subjective factors that speak primarily to the voluntariness of his confession these facts have little if any relevance in the Miranda-custody analysis See Hashime 734 F 3d at 285 noting that the defendant's demeanor and statements during the interrogation - including that he want s to help the agents and that he love s helping cops - are subjective factors that speak primarily to the voluntariness of his confession But ree United Statu tJ Hargrove 625 F 3d 170 182 4th Cir 2010 noting that the Court's ftnding that the defendant was not in custody was bolstered by the evidence in the record as to the defendant's own conduct at the time - cooperative loquacious and expressing interest in working undercover to help the Task Force'' As the Supreme Court has emphasized the test for whether an interrogation was custodial is an objective one I he subjective views harbored by either the interrogating officers or the person being questioned are irrelevant The test in other words involves no consideration of the actual mindset of the particular suspect subjected to police questioning J D B v North Carolina 564 U S 261 271 2011 internal quotation marks and citations omitted 15 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 16 of 19 that the defendant testified that during the interrogation 'I didn't think I had any chance to leave ''' Craighead 539 F 3d at 1087 observing that it is difficult to see how the defendant was free to leave if he was apparendy not free to invite others into the storage room of his own house where he was interrogated Taken together these facts demonstrate that a reasonable person in the Defendant's position would have felt that he was not free to leave See United States v Colonna 511 F 3d 431 436 4th Cir 2007 finding that the defendant was interrogated in a police dominated environment where his residence was inundated with over twenty-three FBI agents the defendant was awakened at gun point and guarded at all times and the defendant was questioned by two armed agents in a vehicle outside of his house for three hours see also Cavazos 668 F 3d at 194 holding that the defendant's in-home interrogation was custodial where more than a dozen officers entered and searched the defendant's home early in the morning the defendant was awakened from bed and initially handcuffed the defendant was separated from his family and interrogated by two agents for one hour and the defendant's movements were continually monit red Cf United States v Hargrove 625 F 3d 170 179-81 4th Cir 2010 finding that the defendant's in-home interrogation was not custodial where among other things the defendant was never placed in handcuffs and there was evidence that the defendant was permitted to move about the house unguarded during the interrogation That the agents told the Defendant that he was not under arrest was free to leave and that his participation was voluntary did not render his interrogation noncustodial Although these statements are highly probative of whether in the totality of the circumstances a reasonable person would have reason to believe he was 'in custody ''' these statements are not 16 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 17 of 19 sufficient in and of themselves to show a lack of custody Hary 1YJve 625 F 3d at 180 The broader setting of the Defendant's interrogation makes clear that the agents' few statements to him at the beginning of his four-hour interrogation cannot erase its custodial nature 12 Hashime 734 F 3d at 284 That is on the afternoon of the interrogation approximately 17-20 law enforcement officers swarmed the Defendant's property The Defendant was initially approached by nine armed SWAT agents handcuffed and forced to lay on the ground During the four-hour interrogation the Defendant was isolated from his partner his freedom of movement was significantlyrestricted and he was confronted with incriminating evidence discovered on his property In this police dominated environment a reasonable person in the Defendant's position would have believed he was not free to leave notwithstanding the agents' statements to the contrary See Hashime 734 F 3d at 283-85 finding that the officers' statements to the defendant that he was not under arrest that his participation was voluntary and that he could leave any time did not erase the custodial nature of the interrogation where the defendant was awoken at gunpoint to a flood of armed officers his movements were restricted and he was isolated from his familywhile he was interrogated in a basement storage room see also Craighead 539 F 3d at 1085-89 holding the defendant's in-home interrogation was custodial where even though the defendant was told that he was not under arrest and was 12 Moreover these statements were weakened by the agents' subsequent statements to the Defendant That is later in the interrogation SA Bucalo told the Defendant y ou need my help I need your help Gov Ex 19 at 92 He also said w e can help you fix the mistake and t his is your chance to work with us Id at 169 180 TFO Scarzel1o further stated y ou know that us being here in this fashion we know enough about this ok In the fashion we came in that there is we we have a lot of information that we know is in your pocket Id at 123 In addition the agents repeatedly emphasized the importance of being honest with them and even accused the Defendant of lying to them For instance SA Bucalo said b ow many times do I have to tell you to be honest with us and TFO Donovan asserted you have to stop denying now Id at 128 181 Taken tog ther these statements certainly weakened the agents' initial statements to the Defendant that he was not under arrest was free to leave and that his participation was voluntary See Hashime 734 F 3d at 283-84 finding that the officers' statements that the defendant was not under arrest was free to leave and that his participation was voluntary were undercut by later statements to the defendant that the officer need s to know the truth wanted him to be completely honest and that the defendant could not be left alone 17 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 18 of 19 free to leave a police dominated atmosphere was effected by the fact that there were eight law enforcement officers present on the scene the defendant was interrogated in a closed storage room while an officer apparently stood guard at the door and the defendant was isolated during the interrogation Similarly this broader setting belies any conclusion that the Defendant's home on the day of the interrogation was the traditional comfortable environment that supports a finding that the interrogation was noncustodial See Hashime 734 F 3d at 284 rejecting the argument that the home setting of the defendant's interrogation rendered it noncustodial where the defendant felt that he could not freely move through his house because there were officers everywhere telling him what to do where to go and where not to go See also United Stat s v Mittel-Carey 493 F 3d 36 39-40 1st Cir 2007 While an interrogation in a defendant's residence without more certainly weighs against a finding of custody the level of physical control the agents exercised weighs heavily in the opposite direction Sprosty v Buchler 79 F 3d 635 641 7th Cir 1996 More important than the familiarity of the surroundings where the defendant was being held is the degree to which the police dominated the scene Considering the totality of the circumstances the Court concludes that the Defendant was in custody at the time of his interrogation and thus Miranda warnings were required The Court reaches this conclusion even if as the Government contends the burden is on the Defendant to demonstrate that he was in custody 13 Therefore the Defendant's Motion to 13 Although the Fourth Circuit has not yet addressed this issue several other courts have held that the defendant bears the burden of demonstrnting that he or she was in custody at the time that incriminating statements were made for purposes of Miranda See ' g Unitrd Stal v jorg•• n 871 F 2d 725 729 8th Cix 1989 Unil d Stal v Davis 792 F 2d 1299 1309 5th Cix 1986 See also Unil d Sial v Carr 63 F Supp 3d 226 235 EDN Y 2014 Unil d Sial v P 'mon 506 F Supp 2d 21 23 DD C 2007 Unit d Sial v Mitl 382 F Supp 2d 350 362 NDN Y 2005 Different judges of the same district in this Circuit have reached slighdy different conclusions on this issue Compare United States v Frreman 61 F Supp 18 Case 1 17-cr-00069-RDB Document 181 Filed 12 17 18 Page 19 of 19 Suppress Statements ECF No 130 is granted and the Defendant's statements to law enforcement agents on August 27 2016 are inadmissible at his upcoming trial CONCLUSION For the foregoing reasons the Defendant's Derivative Evidence ECF No 128 is DENIED and Motion to Suppress Tangible and the Defendant's Motion to Suppress Cell-Site Location Information Seized Without a Warrant ECF No 129 is also DENIED However the Defendant's Motion to Suppress Statements ECF No 130 is GRANTED A separate order follows DATED this 3rd day of December 2018 BY THE COURT lsi Richard D Bennett United States District Judge 3d 534 536 E D Va 2014 stating that i nitially the burden of proof is on the defendant who seeks to suppress the evidence and ' once the defendant establishes a basis for the motion to suppression the burden shifts to the Government with United States v Hunter 63 F Supp 3d 614 619 E D Va 2014 stating that 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 The Court need not decide this issue here because the Court finds that regardless of which party bears the burden of proof the totality of the circumstances the Defendant was in custody at the time of the interrogation 19 demonstrates that