United States District Court, D. Maryland
Richard D. Bennett United States District Judge
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. 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.
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.)
second warrant issued by this Court authorized the Government
to search the Defendant's residence, person, and
vehicle (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 email@example.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.)
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.
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.
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
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
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. (See Gov. Ex. 19 at 7-8.) These
three agents were dressed in civilian clothing and were not
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. (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.
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,
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.)
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.
Defendant's interrogation lasted approximately four
hours. (See Gov. Ex. 18.) The agents never gave the
Defendant Miranda warnings. (See id.)
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.)
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, ...