United States v. Fritzinger

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UNITED STATES OF AMERICA, Plaintiff, v. ANTHONY JOSEPH FRITZINGER, Defendant.

No. 4:20-cr-81-M

United States District Court, E.D. North Carolina, Eastern Division

June 6, 2024

ORDER

RICHARD E. MYERS, CHIEF UNITED STATES DISTRICT JUDGE

This matter comes before the court on Defendant's Motion to Suppress Evidence [DE 70], Defendant argues that an early investigative interrogation violated his rights under Miranda v. Arizona, 384 U.S. 436 (1966) and against compelled self-incrimination under the Fifth Amendment. Thus his statements, including his cellphone password, and derivative evidence, including the contents of his cellphone should be suppressed. Defendant also seeks an evidentiary hearing under Franks v. Delaware, 438 U.S. 154 (1978) to challenge the veracity of several subpoenas and a search warrant based on two purportedly reckless omissions from the related subpoena requests and warrant application.

For the following reasons, the court denies the suppression motion. It is not clear that Miranda applies because Defendant does not appear to have been “in custody” for purposes of the interrogation. Even if he had been in custody, however, relief under Miranda is unwarranted at this time. The United States has confirmed that it will not seek to introduce any interview statements into evidence. Moreover, Defendant knowingly and intelligently signed an advisement form and Miranda waiver. Thus, the admission of the fruits of his statements at trial would not violate his constitutional right against self-incrimination. See United States v. Oloyede, 933 F.3d 302, 309-10 (4th Cir. 2019) (discussing United States v. Patane, 542 U.S. 630 (2004)).

The court also denies the request for an evidentiary hearing under Franks. The court dispenses with significant legal discussion regarding the veracity of the subpoena applications in this case and denies the request as frivolous. See Franks, 438 U.S. at 164-65 (supporting “challenge[sj to a warrant's veracity” and impact on probable cause determination); In re Subpoena Duces Tecum, 228 F.3d 341, 348-49 (4th Cir. 2000) (stating that subpoenas are judged “by the general reasonableness standard” and “not by the probable cause requirement”). Moreover, Franks does not entitle Defendant to relief to the extent he relies on the purported reckless omission of an incorrect legal conclusion. And to the extent he relies on the omission of his cellphone's review and extraction history to support his request, he fails to plausibly allege recklessness and materiality as to that purported omission. The court's reasoning follows.

I. Background

A. Factual Background

On April 21,2020, Special Agent Peter Salomon (“S/A Salomon”) of the Naval Criminal Investigative Service (“NCIS”) learned that Defendant Anthony Fritzinger (“Fritzinger”), a Lance Corporal in the United States Marine Corps at that time, was dating minors online and exchanging sexually explicit photographs with them. See Affidavit, DE 70-7 at 3. S/A Salomon also learned that Fritzinger would attempt to extort the minors for additional photos by threatening to send their photographs to third parties unless they comply. See id. Based on this information, he started investigating Fritzinger for possessing child pornography, extortion, and solicitation of minors. See id. S/A Salomon then decided to interview Fritzinger.

According to Fritzinger, a staff sergeant ordered Fritzinger to ride in his personal vehicle to a location that the sergeant did not disclose. Upon arrival at said location, Fritzinger learned that the staff sergeant had taken him to the building of NCIS. The staff sergeant escorted Fritzinger inside the building and delivered him into the custody of S/A Salomon. S/A Salomon ordered Fritzinger to empty his pockets and escorted him to the interviewing room. DE 70 at 2.

On April 27, 2020, Fritzinger arrived in the interview room around 2:10 p.m. S/A Salomon arrived a minute later. He immediately asked Fritzinger if he “needed a water or anything.” He then introduced himself. Another agent also entered and introduced himself. See DE 70-1 at 00:2301:58.

S/A Salomon explained his investigatory role and asked to gather biographical information. Fritzinger consented. 02:30-11.' Fritzinger added that he “didn't really get any sleep” because his roommate “screams at video games and blasts music all day.” 02:42-47. S/A Salomon shared a similar experience and expressed his sympathy. S/A Salomon then asked some biographical questions and engaged in small talk with Fritzinger. 03:55-16:05.^[1]

At the end of the biographical portion of the interview, S/A Salomon presented a standard advisement and waiver form. See DE 70-2. As S/A Salomon read aloud each paragraph containing an explanation of Fritzinger's rights, Fritzinger confirmed his understanding by initialing beside each paragraph. When Fritzinger reviewed the right to the presence of appointed counsel during the interview, Fritzinger asked, “what if I don't have a lawyer right now?” He immediately re-read the form and realized one could be “appointed.” 17:53-18:18. The last paragraph explained that Fritzinger could “terminate this interview at any time, for any reason.” He initialed without the need for clarification. 18:21-27.

S/A Salomon then asked, “So understanding those rights as read to you, do you wish to speak to me today?” “I'm baffled by this whole situation,” Fritzinger said. “And that's what I'm trying to figure out,” S/A Salomon said, “but you have your rights, [and] you can talk to us and terminate at any time for any reason.” Fritzinger asked, “Can I get a lawyer appointed to me right now, or. .. ?” S/A Salomon explained that Fritzinger could speak with the military legal department that same day, but the department probably would not “assign a lawyer” until charges were filed. Fritzinger added, “But chances are they wouldn't give me a lawyer.” “No, no-I'm not saying they won't necessarily give you a lawyer,” S/A Salomon replied. He reiterated Fritzinger could speak with a lawyer that same day but expressed that he did not know exactly how military counsel would be appointed. He also said the form fully explained Fritzinger's rights and NCIS was “just. .. trying to figure what's going on.” 18:28-20:26.

Fritzinger asked, “When I terminate [the interview], will we be able to continue [it] after I get a lawyer?” S/A Salomon said they could. Fritzinger then stated, “I at least want to know what, what, how-how I'm getting charged with, or not charged but suspected of, something.” In response, S/A Salomon indicated he needed information from Fritzinger before he could provide Fritzinger with any information pertaining to the investigation. “I think what I'll do is I want to at least hear you out before I call a lawyer,” Fritzinger replied. Fritzinger reviewed the entire advisement form again, confirmed that he ''freely and voluntarily” decided to speak with S/A Salomon at that time, and signed the form without the need for further clarification. 20:33-23:14.

S/A Salomon then probed Fritzinger regarding his feelings on and experience with child pornography. In total, Fritzinger denied possessing or soliciting child pornography but acknowledged communicating with his girlfriends via online accounts. 23:28-41:38. During a conversation about how Fritzinger saved cellphone data, S/A Salomon asked for Fritzinger's cellphone passcode. Fritzinger obliged without hesitation. 41:28-32. Fritzinger then stated, “I feel like this is probably the point in time where I'm supposed to do that,” and clarified “lawyer.” 41:51 -42:59. S/A Salomon concluded the interview and seized the cellphone for later review.

The next day, S/A Salomon attempted to extract the cellphone's contents. The extraction failed for technical reasons, so S/A Salomon manually reviewed the device and found “hardly any content.” DE 70-3. He then sent the cellphone to a specialist for a comprehensive forensic review. See id. Based on a “review of the cellphone” and “contact with victims,” S/A Salomon identified various email addresses and social media accounts that he believed Fritzinger had used for his “extortion scheme.” See DE 70-4 at 5; DE 70-5 at 2; DE 70-6 at 3, 70-8 at 2.

On June 17, 2020, S/A Salomon requested a search warrant targeting seventeen Instagram usernames for evidence of child pornography possession, extortion, and solicitation of minors. See DE 70-7 at 3. His supporting affidavit explained that he identified the targeted usernames after reviewing the contents of Fritzinger's cellphone and the information provided by the referring police department. Id. at 5.^[2] Based on the content associated with the usernames and the fact that Fritzinger's cellphone had access to these usernames, S/A Salomon stated that he believed the usernames belonged to Fritzinger. Id. S/A Salomon then explained that Fritzinger had used similar usernames to solicit child pornography from several victims. Id. at 3-6. He also explained why the electronic “information stored in connection with an Instagram account may provide crucial evidence ... of the criminal conduct under investigation.” Id. at 6-10.

B. Procedural Background

On September 2,2020, the United States indicted Fritzinger on one count of manufacturing child pornography, in violation of 18 U.S.C. § 2251(a) & (e); one count of possession of such material, in violation of 18 U.S.C. § 2252(a)(4)(B); and two counts of using the internet to promote an extortion scheme, in violation of 18 U.S.C. § 1952(a)(3). See DE 1. The United States has since superseded those charges. DE 84 (second superseding indictment). In addition to the original counts, Fritzinger now faces four counts of enticing a minor to engage in illegal sexual conduct, in...