Subject not in custody when interviewed at his office


This case arises out of an internet child-pornography-sharing investigation that led law enforcement to an internet protocol (IP) address linked to Seth Perricone’s mother. Perricone lived with his parents (Perricone’s residence). A magistrate judge on 24 January 2018 issued a search warrant for Perricone’s person, vehicle, and residence. He spoke at length on 25 January 2018 with law-enforcement agents at a USAA building (on the premises of his workplace) and at an FBI office.

At the latter, Perricone took a polygraph examination, and he and the polygraph examiner prepared a written statement, in which he admitted he had downloaded child pornography. Perricone had an opportunity to make changes and signed the statement, despite his commenting that a defense attorney would have advised him against it.

Around the same time as the interview at USAA, other agents searched Perricone’s residence. They discovered a report for a polygraph examination taken on 26 May 2009 and ordered by Perricone’s defense counsel, relating to charges from 2009 for sexual assault of a minor. The report states that, after failing the examination, Perricone admitted verbally, inter alia, to penetrating the minor’s vagina, as discussed infra. After the polygraph examination at the FBI office, the agents questioned Perricone about: a child pornography “series” discovered at his residence (which he correctly identified); the above-discussed sexual-assault charges; and his daughter, to understand what, if any, danger he was to her. An agent then communicated with the United States Attorney’s Office to explain the evidence revealed by the search and interviews. On that office’s recommendation, the agents arrested Perricone. These events, including Perricone’s spending approximately four hours at the FBI office and his subsequent arrest, occurred on the same day: 25 January 2018.

A second superseding indictment charged Perricone with six counts of distributing, and one count of receiving, child pornography, in violation of 18 U.S.C. § 2252A(a)(2), (b). On 19 January 2022, Perricone filed his first suppression motion, asserting, inter alia: his statements at USAA were obtained in violation of the Fifth Amendment because he was subjected to custodial interrogation without receiving Miranda warnings; and the statements at the FBI office were tainted due to the earlier violation. The district court ruled from the bench, and credited the agents’ testimony, concluding: “The interview [at USAA] was a non custodial interview, and accordingly Miranda was not required at that point in time”.

Three days before trial, Perricone asserted his confession at the FBI office was involuntary; and the search warrant lacked probable cause for his person and vehicle. Two days later (10 July 2022), he filed a second suppression motion, seeking to exclude any evidence discovered in violation of the Fourth Amendment.  The motions were denied by written order on 11 July 2022. A jury convicted Perricone on all counts on 13 July 2022. He received a 360-months’ sentence. On appeal, he argued the search warrant should have been excluded because it was “bare boned.” He also argued he was in custody when questioned at his workplace and thus should have been Mirandized first. Finally, he argued his statement at the FBI was improperly obtained. The 5th affirmed.

A. Search warrant for house and car valid

The exclusionary rule provides the typical remedy for Fourth Amendment violations: suppression of the evidence at trial. See Mendez. We apply a two-step test to determine whether to suppress evidence under the exclusionary rule: first, we ask whether the good faith exception to the rule applies, and second, we ask whether the warrant was supported by probable cause. The good faith exception to the exclusionary rule provides that evidence obtained by law enforcement officials acting in objectively reasonable good-faith reliance upon a search warrant is admissible even if the affidavit on which the warrant was grounded was insufficient to establish probable cause. If the good-faith exception applies, then we need not inquire whether probable cause existed, unless the case presents a novel question of law. See Mays.

There are four instances in which the good-faith exception does not apply: “the issuing-judge was misled by information in an affidavit”; “the issuing-judge wholly abandoned his judicial role”; “the underlying affidavit is ‘bare bones’ (‘so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable’)”; or, “the warrant is so facially deficient . . . that the executing officers cannot reasonably presume it to be valid”.  Perricone relies on the third instance: the affidavit was “bare bones”, or “so lacking in indicia of probable cause” (for his person and vehicle) that belief in the existence of probable cause was “entirely unreasonable”. He maintains no objectively reasonable agent could have relied on the warrant in good faith because the IP address was used by multiple people.

A bare bones affidavit contains wholly conclusory statements, which lack the facts and circumstances from which a magistrate can independently determine probable cause. The agent’s affidavit at issue is not “bare bones”. It fully explains, the agent’s knowledge and training concerning child pornography; information regarding the substance and location of storing child pornography; and the agent’s investigation. The affidavit’s investigation summary outlines: the subpoena to the internet provider; police database results showing Perricone’s living at the residence linked with child pornography; his criminal history, including his being charged (and later acquitted) of the sexual assault of a minor, and his ex wife’s reporting an alleged sexual assault of their 11-year-old daughter; and the agent’s knowledge that software applications used to access child pornography can operate on desktops, laptops, smartphones, and tablets. (Therefore, as explained above, because the good-faith exception applies, we need not review for probable cause.)

B. Statement made at his office

Custodial interrogations that necessitate Miranda warnings consist of 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. This Court employs a two-step inquiry to determine whether a custodial interrogation occurred. First, looking at the totality of the circumstances, the Court analyzes the defendant’s freedom of movement. Next, it analyzes whether the questioning took place in an environment resembling the station house questioning at issue in Miranda.

B1. Freedom of Movement

In reviewing the court’s freedom-of-movement ruling, our court asks whether a reasonable person would have felt he was at liberty to terminate the interrogation and leave. Toward that end, courts look to factors including: “length of the questioning”, “location of the questioning”,“accusatory . . . nature of the questioning”, “amount of restraint”, and “statements made by officers regarding the individual’s freedom to move or leave”. See Rafoi.

For the length of questioning, Perricone cites the agents’ interview and arrest log showing: the interview process began at USAA at 10:15 a.m.; the agents and Perricone left USAA at 11:22 a.m.; and Perricone was introduced to the polygraph examiner at the FBI office at 12:02 p.m. Viewing the evidence in the requisite light most favorable to the Government, the questioning lasted around an hour, ending in the USAA conference room. An hour-long interview is not dispositive but does weigh in Perricone’s favor. See Wright (weighing hour-long interview in favor of custody). Nevertheless, our court has warned against overreliance upon the length of questioning because doing so injects a measure of hindsight into the analysis which our court wishes to avoid. See Rafoi.

For the location of questioning, Perricone asserts he: was escorted a quarter mile away from his work area at USAA by a USAA security officer to another USAA building; the room used in that building was small and accessed with the security officer’s badge; the agents were sitting near him; and the room’s hallway window was “frosted”. In Howes v. Fields, 565 U.S.499 (2012), SCOTUS addressed an inmate’s motion to suppress statements made without Miranda warnings in violation of the Fifth Amendment.  The Court rejected the inmate’s assertion that he was in custody for which the circumstances were more restrictive than those at issue here, i.e., the interview in Howes lasted “between five and seven hours”, “the deputies . . . were armed”, and one of the deputies used “a very sharp tone”, even profanity. Notably, that the inmate “was interviewed in a well-lit, average-sized conference room, where he was not uncomfortable” weighed in favor of no custody. Similarly, Perricone’s being interviewed in a conference room in a building on the premises of his workplace supports that a reasonable person would have felt free to terminate the interview and leave.

Next, Perricone asserts the interview became increasingly accusatory because the agents: told him they had discovered child pornography; inquired about the ownership of electronics and files; and asked probing questions. On one hand, the agents told Perricone a federal search warrant was being served at his residence. See United States v. Bengivenga, 845 F.2d 593 (5th Cir. 1988) (The awareness of the person being questioned by an officer that he has become the focal point of the investigation . . . may well lead him to conclude, as a reasonable person, that he is not free to leave, that he has been significantly deprived of his freedom). On the other hand, one agent testified it was a pleasant conversation. The court found Perricone “was talkative”, “was cooperative”, and “volunteered a lot of information”. Perricone fails to show clear error in the court’s findings or that the interview was argumentative or intimidating. This factor does not significantly favor either Perricone or the Government on account of the agents’ informing Perricone of the search warrant.

For the level of restraint, the court found: no uniforms or firearms were displayed; Perricone sat in the chair next to the door; the door could be unlocked; and he could have at any time exited completely unmolested. Perricone fails to show the requisite clear error in the court’s finding he was not restrained.

Finally, for the agents’ statements regarding Perricone’s freedom to leave, Perricone asserts the statements (that the interview was voluntary, could be terminated by him, and he was not under arrest) were ineffective because of his learning (later in the interview) that the agents had a search warrant and were there to talk about child pornography. Perricone cites no authority for why this fact would change his perception of his freedom to leave. Informing him about the search warrant, however, could influence that perception. Nevertheless, the agents reiterated several times that the interview was voluntary. See Michalik (concluding fifth factor indicated that the interview was not custodial because agents repeatedly told defendant he was not under arrest and was free to leave).

B2. Station House Environment

For the second Miranda step, this Court must determine whether the relevant environment . . . presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda. The environment was not “inherently coercive” as in Miranda because Perricone was interviewed in a building on the premises of his workplace and was repeatedly reminded the interview was voluntary.

Perricone fails to show the requisite clear error in the court’s fact findings or legal error in its ruling he was not in custody.

C. Statement made at FBI

Perricone asserts his statements were involuntary and resulted from an impermissible two-step strategy prohibited by SCOTUS Seibert v. Missouri, 542 U.S. 600 (2004).

(In Seibert, the police intentionally did not Mirandize a subject who they arrested and obtained a confession. They then went back and Mirandized the subject and had them confess for a second time. They argued the second confession was valid because the subject was Mirandized before confessing. SCOTUS ruled this was an impermissible way of obtaining a confession).

Because Perricone fails to show he was in custody at any time before his arrest, Seibert does not apply.