United States v. Ramos-Colon

UNITED STATES OF AMERICA v. ALIZE M. RAMOS-COLON

CRIMINAL NO. 19-186

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

June 3, 2021

MEMORANDUM

SCHMEHL, J. /s/ JLS

Defendant was indicted by a federal grand jury for two counts of production of child pornography, in violation of 18 U.S.C. § 2252(a); four counts of distribution of child pornography, in violation of 18 U.S.C. § 2252(a)(2), (b)(1); one count of receipt of child pornography, in violation of 18 U.S.C. § 2252(a)(2), (b)(1); and one count of possession of child pornography, in violation of 18 U.S.C. § 2252(a)(4)(b), (b)(2). Claiming that she was subjected to an un-Mirandized custodial interview conducted during the execution of a warrant to search her family's home on February 22, 2019, Defendant moves to suppress any and all physical evidence recovered, as well as any and all statements made by her. The Court held an evidentiary hearing on the motion to suppress. For the reasons that follow, the motion is denied.

I. FACTS

On October 24, 2018, the National Center for Missing and Exploited Children (NCMEC) received a cyber-tip from Google that an individual uploaded child pornography videos and images to a Google Drive account. Google advised NCMEC that the digital device which uploaded these files was using the email address ramosalize@gmail.com, with an associated telephone number of 484-548-4722, and used an IP address serviced by Sprint.

NCMEC forwarded the information to the Pennsylvania State Police. Corporal Michael Fegley reviewed the information, including the videos and images, and confirmed that they depicted children engaged in sexually explicit conduct.

On December 3, 2018, a subpoena was served on Sprint for subscriber information related to the IP address that was used at the date and time that the videos and images were uploaded to Google Drive. On December 7, 2018, Sprint responded to the subpoena and provided subscriber information for a Wanda Ramos, Northampton County, Pennsylvania.

PSP Trooper James Ford obtained a search warrant to search the Ramos residence for evidence including, but not limited to, computer hardware, software, electronic storage devices (including mobile telephones and computers), passwords, and data security devices. The warrant was executed at approximately 6:00 a.m. on February 22, 2019. Trooper Ford and five other members of the Pennsylvania State Police Southeast Computer Crime Task Force were present during the search including two forensic analysts. The search team was not in police uniforms but were wearing vests identifying themselves as police. Wanda Ramos answered the door and let officers inside the residence. Ramos-Colon resided in the residence and was home during the search execution. An adult male was sleeping in the entry room in a reclining chair.

Upon securing the residence, Ford advised the adult occupants, including Ramos-Colon, that he was conducting a search of their home pursuant to a search warrantbecause someone uploaded illegal digital files to the internet. Ford also informed them that no one was under arrest and they were free to leave at any time. He then asked for their cooperation with his investigation, to which they agreed and provided the location of electronic devices in the home.

Trooper Ford first interviewed Wanda Ramos in the kitchen area, where she stated her Sprint account was active and her daughter, Alize Ramos-Colon, also used the account. Ford asked Ramos for Ramos-Colon's phone number and Ramos provided the number, which was the same number associated with the Google account reported to NCMEC.

Trooper Ford then interviewed Ramos-Colon in the kitchen area where she was again told that she was not under arrest and did not have to cooperate with the investigation. Trooper Ford asked a few preliminary questions and informed Ramos-Colon that her phone was utilized in the commission of a crime involving uploading child pornography. At this point, Trooper Ford did not consider Defendant to be a suspect.

Trooper Ford asked Ramos-Colon who had access to her phone and if she permitted anyone else to use it. She denied anyone else had access, except for her little brother. Trooper Ford then asked her if she would mind if he looked at the phone. Ramos-Colon agreed and handed Trooper Ford her phone. The phone was locked and Trooper Ford asked her if she would mind unlocking it. He handed the phone back to her and she agreed. Ramos-Colon unlocked the phone and handed it back to Trooper Ford. During their conversation, the phone kept auto-locking. Trooper Ford asked Ramos-Colon if she minded if he changed the security setting so it would not do so. She agreed and punched in her passcode to authorize. When looking through images on the phone,Trooper Ford observed an image depicting the arm of a person touching the private area of a child. The arm had a distinctive tattoo and matched the tattoo on Ramos-Colon's arm that was in plain sight of Trooper Ford while he was interviewing her. When he observed the sexually explicit image and the tattoo, he asked Ramos-Colon if the image was of her. She admitted it was and stated, "I did that." Trooper Ford again informed Ramos-Colon she was not under arrest and did not have to cooperate.

Trooper Ford asked Ramos-Colon if she was willing to take a polygraph at the State Police barracks. She agreed. Trooper Ford then requested permission to record the rest of their interview. Ramos-Colon agreed. At approximately 6:28 a.m., the audio recording started and lasted approximately five minutes. Ramos-Colon confirmed she was 18 and resided in the residence. She was informed again there were inappropriate files uploaded to Google involving minors and asked if she knew anything about the photos. Ramos-Colon immediately admitted she took the photographs. Immediately upon disclosure, Trooper Ford once again reminded Ramos-Colon that she was not under arrest and did not have to cooperate. She agreed to continue speaking with Trooper Ford and reiterated that she took the inappropriate photographs. She admitted she used her mobile phone and claimed she did not use any other device. She stated no one else was present when she took the photographs and that no one forced her to take the photographs. Trooper Ford then stated he was going to end the conversation because Ramos-Colon had agreed to take a polygraph. The interview ended at 6:33 a.m.

At the Pennsylvania State Police barracks, starting at approximately 7:27 a.m., Corporal Webb conducted the polygraph examination where he again advised Ramos-Colon of the voluntary nature of the examination and informed her of her Miranda rights.Ramos-Colon signed a waiver of her rights and a polygraph consent form. Ramos-Colon was given a PSP Sex Offense Survey where she admitted performing sexual acts on children, recording the abuse in videos and images, and distributing them to an unidentified man whom she met online. Ramos-Colon also admitted she sent some of the sexually explicit images to an unknown woman at the direction of the unidentified man.

II. DISCUSSION

"As a general rule, the burden of proof is on the defendant who seeks to suppress evidence. However, once the defendant has established a basis for his motion, i.e., the search or seizure was conducted without a warrant, the burden shifts to the government to show that the search or seizure was reasonable." United States v. Johnson, 63 F.3d 242, 245 (3d Cir. 1995) (citations omitted). The government's burden carries a preponderance of the evidence standard. United States v. Fautz, 812 F. Supp. 2d 570, 609 (D.N.J. 2011) (citing United States v. Matlock, 415 U.S. 164, 178 n.14 (1974)).

Defendant argues that she was coerced into unlocking her mobile device, and that even if she did consent to unlock her mobile phone, the officer's search of that phone exceeded her consent. She also argues that her confession to law enforcement, both at her home and the police station, was made in violation of Miranda. As will be discussed more fully below, I find all of Defendant's contentions to be incorrect. Therefore, her motion to suppress will be denied.

A. Did the Government search the contents of Defendant's mobile phone in violation of the Fourth Amendment?

The Fourth Amendment protects against "unreasonable searches and seizures" and requires that warrants issue based only upon a finding of probable cause. Florida v. Jimeno, 500 U.S. 248, 250 (1991). Generally, a warrantless search is unreasonable,unless a specific exception to the warrant requirement applies. United States v. Price, 558 F.3d 270, 277 (3d Cir. 2009). A specifically established exception is a search that is conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973); United States v. Stabile, 633 F.3d 219, 231-32 (3d Cir. 2011). When the government justifies a search based on consent, the government bears the burden of proving that the consent was "freely and voluntarily" given. Bumper v. North Carolina, 391 U.S. 543, 548 (1968). Courts consider a variety of factors when considering voluntariness, including "the age, education, and intelligence of the subject; whether the subject was advised of his or her constitutional rights; the length of the encounter; the repetition or duration of the questioning; and the use of physical punishment." Price, 558 F.3d at 278.

First, law enforcement had a search warrant to search all electronic devices in the residence. This included a pat down of persons located within the residence at the time of the search for electronic devices. As Defendant and her mobile device were in the location to be searched, law enforcement already had authorization to search Defendant's mobile device pursuant to the warrant. However, the warrant did not include compelling Defendant to unlock her phone to be searched. Accordingly, I must determine whether Defendant consented to Trooper Ford's access of her phone and whether said consent was...