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United States v. Vado

United States District Court, S.D. New York

January 20, 2015


Page 473

For Matthew Vado, Defendant: Daniel George Habib, Federal Defenders of New York Inc. (NYC), New York, NY.

For USA, Plaintiff: Max Clement Nicholas, LEAD ATTORNEY, U.S. Attorney's Office, SDNY (St Andw's), New York, NY.

Page 474


Paul A. Engelmayer, United States District Judge.

In the early morning of June 17, 2014, FBI agents executed a search warrant at the home of Matthew Vado, who was suspected of child pornography offenses. During the search, two agents interviewed Vado for approximately 40 minutes. Vado, who was later indicted, now seeks to suppress the statements he made during that interview. He argues, on two grounds, that his Fifth Amendment rights were violated: First, he argues, the interview was a custodial interrogation, and the agents unlawfully questioned him after he had invoked his right to counsel. Second, he argues, his statements were involuntary. For the following reasons, the Court denies Vado's motion to suppress.

I. Procedural History

Vado was arrested on June 17, 2014, after the search and interview at issue. Dkt. 1. On October 6, 2014, a Grand Jury returned an Indictment. It charged Vado, in 10 counts, with violating federal child pornography statutes. Dkt. 13.

On January 6, 2015, Vado filed a motion to suppress the statements he made during the interview, Dkt. 24, along with a supporting memorandum of law, Dkt 26 (" Vado Br." ), and a declaration by his counsel, Dkt. 25, which attached a sworn declaration from Vado attesting to the circumstances of the interview. Id., Ex, A (" Vado Decl" ). On January 9, 2015, the Government submitted its opposition to the motion, and supporting materials. Dkt. 27 (" Gov't Br." ), Dkt. 28 (" Thompson Decl." ). On January 13, 2015, the Court held a suppression hearing and heard argument. See Transcript (" Tr." ).

II, Factual Findings

The facts found by the Court are based on the evidence adduced at the suppression hearing.[1] The evidence consisted of the testimony of the two FBI Special Agents present for Vado's interview, Thomas Thompson and Aaron Spivaek; an Advice of Rights Form signed by Vado; an FBI 302 form prepared by the agents that memorialized the interview; and Vado's sworn declaration. Vado did not testify.

The general timeline and many facts are undisputed. The most significant disputed fact is whether, before questioning Vado, the agents informed him that he was not under arrest and that he was free to leave. As explained below, the Court finds that Vado was so advised. That fact is relevant to the Court's determination that Vado was not in custody at the time of his interview; that determination, in turn, resolves whether Vado's Fifth Amendment right to counsel was violated and is important to the Court's resolution of whether his statements were voluntary.

The hearing evidence established the following:

At around 6 a.m. on June 17, 2014, between eight and 10 FBI agents arrived at

Page 475

Vado's apartment in Manhattan to execute a court-authorized search warrant. Tr. 6, 52, 69; Vado Decl. ¶ ¶ 4-5. They did not have a warrant for Vado's arrest. Tr. 6, 53, The agents knocked and announced; Vado opened the door. Tr. 6, 54; Vado Decl. ¶ ¶ 4-5. The agents wore bulletproof vests and were visibly armed with holstered guns and a battering ram. Tr. 20, 39, 67; Vado Decl. ¶ 5. Thompson and Spivack both testified, credibly, that neither they nor any other agent they saw drew a gun at the lime the door was opened (or at any other point). Tr. 6-7, 20-21, 55-56.[2]

Vado and his girlfriend, Heather Leisentritt, were asleep in the apartment when the agents arrived. Tr. 22, 69; Vado Decl. ¶ 4. Vado was dressed in a t-shirt and boxers, and Leisentritt was wearing a t-shirt and pajama shorts. Tr, 22-23; Vado Decl. ¶ 4. Leisentritt was directed to sit on the futon in the living room; a female agent stood near her. Tr. 23; Vado Decl. ¶ 6. Meanwhile, one or more agents, including Thompson, took Vado into the hallway and patted him down. Tr. 8, 22. After the agents completed a sweep of the apartment, Vado was escorted to one of the apartment's two bedrooms. Tr, 9, 23, 69-70; Vado Decl. ¶ 7.

Both Thompson and Spivack testified that, upon entering a home to execute a search warrant, their practice is to promptly inform suspects that they are not under arrest and are free to leave. Tr. 5, 39, 51. Both agents testified that Vado was so informed at least once: Thompson testified that he made such statement to Vado in the hallway at the outset of the search and again at the outset of Vado's interview, Tr. 10, 39-40; and Spivack testified that Thompson made such statement at the outset of the interview, Tr. 58. The agents' joint 302 form, prepared two days after the interview, is consistent with the agents' testimony: It states that, before the agents questioned Vado, he " was advised that he was not under arrest and that he was free to leave any time." Dkt. 25, Ex, C, Vado's written declaration is silent as to whether he was told that he was not under arrest. However, Vado denied ever being told " that [he] was free to leave the bedroom or the apartment," Vado Decl. ¶ 10.

The Court gave close attention to this important point. It found both agents' testimony on this point credible. The Court finds that Vado was explicitly notified, shortly after the agents arrived, and in any event before the interview commenced, that he was not under arrest and was free to leave. See also note 2, supra.

Present in the bedroom for the interview were Vado and Special Agents Thompson and Spivack. Tr. 9, 56; Vado Decl. ¶ 9. Vado sat on the edge of the bed; Thompson sat on a chair in between Vado and the door, which was partly or mostly closed; and Spivack sat on a chair off to the side. Tr, 9-10, 24, 57; Vado Decl. ¶ ¶ 9-10. Vado could not communicate with ...

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