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United States v. Martin

United States District Court, D. Maryland

December 17, 2018

UNITED STATES, Plaintiff,
v.
HAROLD T. MARTIN, III, Defendant..

          MEMORANDUM OPINION

          Richard D. Bennett United States District Judge

         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.[1] 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.

         FACTUAL BACKGROUND [2]

         During the investigation of this matter, multiple search warrants were issued by this Court The first warrant (the "Twitter search warrant"), issued on August 25, 2016, authorized the Government to receive information associated with the Twitter account @HAL_999999999. (See ECF No. 140-1.) The warrant was supported by an affidavit 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 affidavit further provided xxxxx message from @HAL_999999999. (Id. ¶¶ 22-23.) In these messages, @HAL_999999999 asked for a meeting with the xxxxx and stated "shelf life, three weeks". (Id. ¶ 23.) Based on this information, the affiant identified the Defendant, an individual whose identity was known to the affiant and who was a former government contractor. (Id. ¶ 22.) The affiant 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 affidavit also stated that monitoring of the Defendant's use of his government computer revealed that he received notifications associated with the Twitter handle "@HAL_999999999". (Id. ¶ 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. ¶ 27.)

         The second warrant issued by this Court authorized the Government to search the Defendant's residence, person, and vehicle[3] (the "residence search warrant"). (ECF No. 140-2.) The affidavit supporting this warrant contained all of the information included in the Twitter affidavit. (See id.) In addition, the affidavit stated that xxxxx 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 xxxxx affidavit further stated that the Twitter account @HAL_999999999 was created by a user with the email address hmartin999@gmail.com, an email address associated with the Defendant according to open source databases. (Id. ¶¶ 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. (Id. ¶ 23.) MVA records also provide that Martin resides at this address, and that he owns a teal Chevy Caprice sedan, License Plate #5CL2057. (Id. ¶¶ 25-26.)

         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 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 all vehicular 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 shorty 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 (SSA Luciano); 154-65 (SSA Gray); 158 (Hajeski); 181-224 (TFO Donovan).) At the beginning of the 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.[5] (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." (Id. 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 of lying 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." (Id. 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." (Id. 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, 151-52, 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 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." (Id. at 183.) When the Defendant asked to speak to Shaw at die end of the interrogation, the agents allowed him to do so, but told fhe Defendant "you can't touch her or any of that stuff." (Id. 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 Ph.D. in information security management. (See ECF No. 140-6.) Finally, the Government acquired historical cell-site location information for the Defendant's cell 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 filed 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, ...


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