United States District Court, S.D. Indiana, Indianapolis Division
ENTRY ON MOTION TO SUPPRESS
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.
BACKGROUND FACTS 
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
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.
email was sent to twelve additional email accounts; one of
the accounts was email@example.com. Additional
investigation revealed that that email address had been
accessed from 5321 Rippling Brook Way in Carmel.
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.
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.
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
firstname.lastname@example.org. Vivas let Pirics and Johnson into the
residence. Three assisting officers then left the car and
also entered the residence.
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
email@example.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.
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.
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.
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