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United States v. Vivas

United States District Court, S.D. Indiana, Indianapolis Division

August 21, 2018

UNITED STATES OF AMERICA, Plaintiff,
v.
BRYAN VIVAS, Defendant.

          ENTRY ON MOTION TO SUPPRESS

         This cause is before the Court on Defendant Bryan Vivas' Motion to Suppress (Dkt. No. 21). Vivas argues that 1) there was not probable cause to issue a search warrant; and 2) because he was in custody but was not given Miranda warnings, the statements he made and the evidence obtained from his consent to search his email should be suppressed. The Court held a hearing on the motion on August 8, 2018. Pursuant to Federal Rule of Criminal Procedure 12(d), the Court now states its findings and conclusions. For the reasons explained herein, Vivas' Motion to Suppress Evidence is DENIED.

         I. BACKGROUND FACTS [1]

         John Pirics, a detective with the Carmel Police Department who is assigned to the Hamilton County Metro Child Exploitation Task Force, submitted an application and affidavit in support of the application for a search warrant for 5321 Rippling Brook Way in Carmel, which was Vivas' residence. The Affidavit provided, in relevant part:

6. Present investigation: I received lead information from the Federal Bureau of Investigation, Indianapolis Office. On March 24, 2014, an email was sent to an undercover email account under the control of law enforcement. The title of the email was "TRADE", and in the body of the email the sender had written "hi,,, can we trade pics/ vids or link??? pics/vids zip/ rar file,,, OK". There were two attachments in the message - "6pussy.rar" and "Sample 1.zip". ·
7.“Samplel.zip”: I extracted the contents of “SampleLzip” and found that it contained twenty image files. I reviewed the images that had been uploaded, and observed that several of the images appeared to be minor female children engaged in sexually explicit conduct as defined in 18 U.S.C. § 2256(2)(A)(i-v). Two of the images are described below.

Dkt. No. 22-1 at 6.

         The email was sent to twelve additional email accounts; one of the accounts was crastrillo@yahoo.com. Additional investigation revealed that that email address had been accessed from 5321 Rippling Brook Way in Carmel.

         Pirics testified at the hearing that several characteristics of the email informed his decision that there was probable cause to search the house. First, both of the attachments were compressed files that included several files containing child pornography. Second, emails containing child pornography that are sent to a group of people usually indicate the presence of ongoing criminal activity. The title of the email, “TRADE, ” indicated to Pirics that the email sender and recipients had a relationship that involved the trading of child pornography files.

         When officers arrived at Vivas' home, Pirics was wearing jeans and an untucked button-down shirt, as was Special Agent Michael Johnson, who approached the residence with Pirics. Pirics was wearing a firearm, but the firearm was on his belt concealed under his shirt. He assumed that Johnson was wearing a firearm, but Pirics did not see the firearm. Other Task Force officers remained in their car rather than approaching the door with Pirics and Johnson.

         Vivas answered the door. Pirics and Johnson identified themselves and explained that they were there to execute a search warrant on the residence. Pirics also told Vivas that the search warrant was related to the email address crastrillo23@yahoo.com. Vivas let Pirics and Johnson into the residence. Three assisting officers then left the car and also entered the residence.

         Vivas indicated that Vivas' wife was in the residence, and Pirics asked Vivas to go get her. Vivas went upstairs to get his wife, and she came downstairs with him. Johnson and Pirics followed Vivas and Vivas' wife into the living room area while the other officers set up computer equipment in the kitchen area. Vivas and his wife were shown a copy of the search warrant, and Pirics again explained that officers were there to execute a search warrant on the residence and that the search warrant was related to the email address crastillo23@yahoo.com, which Pirics believed was used by Vivas. Pirics explained that no one was under arrest and that he would like to speak to Vivas. Pirics told Vivas' wife that she was free to leave and that officers wanted to speak with Vivas alone.

         Pirics did not recall Vivas or Vivas' wife asking if they needed an attorney, but he testified that, if either did ask, he would not have told them that they did not need an attorney. Vivas and Vivas' wife dispute this fact. Both testified that Mrs. Vivas asked officers whether the Vivases needed to contact an attorney but that one of the officers told her that the officers only wanted to have a conversation with Vivas and that no one was in any trouble.

         Pirics asked Vivas if Vivas had any electronic devices, and Vivas responded that he had a tablet. Johnson and Pirics followed Vivas upstairs, where Vivas got the tablet and gave it to Johnson. Johnson took the tablet into the kitchen to begin reviewing it. Pirics followed Vivas into the living room and began to record the interview.

         About sixteen minutes into the interview, another person talked nearby. Pirics testified that Vivas appeared uncomfortable and stopped talking. Pirics asked Vivas if Vivas would prefer to continue the interview in the Vivases' home office for ...


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