Some years ago, I did a post in which I analyzed the
then-two reported cases I could find that involved law enforcement officers’
using a “consent to assume online presence” to gather evidence in a cybercrime
case. In that post, I analyzed the 4th
Amendment issues I speculated such a consent could implicate. I have not run across any cases since that
addressed that issue in any notable respect, so I have not written about the
issue since.
This post examines a recent case in which such a consent was
used, but instead of raising a 4th Amendment challenge to its
propriety, the defendant challenged the use of the evidence obtained as a
result of the consent as violating his rights under the Supreme Court’s holding
in Miranda v. Arizona, 384 U.S. 436(1966).
The recent case is U.S.
v. Yong Wang, 2013 WL 452215 (U.S. District Court for the Southern District of New York 2013). After he was charged with
advertising child pornography in violation of 18 U.S. Code § 2251(d)(1),
receiving and distributing child pornography in violation of 18 U.S. Code§ 2252A(a) (2)(B), and reproducing child pornography for distribution in
violation of 18 U.S. Code § 2252A(a)(3)(A), Yong Wang moved to suppress
certain evidence. U.S. v. Yong Wang, supra.
More precisely, he moved to suppress “(1) his post-arrest
statements and (2) evidence obtained as a result of his consent to agents
assuming his online identity.” U.S. v. Yong Wang, supra. He argued that “his post-arrest statements
were obtained in violation of Miranda v. Arizona,” supra and “that his consent
was not voluntary.” U.S. v. Yong Wang, supra. I will deal rather briefly with the first issue, and then explain on
what the court did with the second issue. (I do not know why the case is
captioned Yong Wang, instead of U.S. v. Wang, so in an effort to avoid error, I
am using the court’s caption.)
According to the opinion, Count One of the indictment set
out the facts on which all of the charges were based:
Between 2007 and June 2011, Wang `managed
and operated at least 18 websites containing child pornography (‘the
Websites').’ (Indictment ¶ 1) Wang `sold
“memberships” to the Websites to individuals who paid to view, post, and
download graphic images of child pornography.’ . . . The Websites were in
Chinese. . . .
In order to access child pornography on the
Websites, it was necessary `to (i) purchase a “V.I.P. membership,” or (ii)
acquire “points” either by making monetary payments or by posting pornography,
including child pornography, to the Websites.’ . . . Wang `oversaw memberships
for the Websites and collected payments directly or indirectly through
associates who established accounts at banks in China, at Wang's behest.’ . . .
One of Wang's websites -- http://uudiguo.info -- is entitled ‘”Empire of
the Young and Innocent Fragrances,”’ as translated from Chinese. . . . Links on the Websites `advertised and offered
access to child pornography collected under descriptive titles, such as “Young
Young Empire,” “Young Girl Beauty Photos Military Region,” “Young Boy Movie
Zone,” and “Exclusive Quality Young Girl Photos Set.”’
U.S. v. Yong Wang,
supra.
According to the opinion, Wang “supported” his motion to
suppress by submitting an
affidavit alleging the following facts:
At 6:30 a.m. on June 23, 2011, federal agents entered his home. . . . Because
he `did not know who they were,’ he hid in a closet. . . .
`[W]ith guns drawn,’
the agents removed Wang from his closet and brought him to the living room. . .
. One of the agents told Wang, `we are
not here for you, but want you to cooperate and tell us who is making the
pictures and posting [them] on [the] web.’ . . .
Wang asserts that `[t]he Federal Agents
led [him] to believe that if [he] cooperated with the agents and gave them the
information they requested[, he] would be released’ and would not be arrested.
. . . Accordingly, Wang provided a statement to the agents and consented to the
agents assuming his online identity. . . .
U.S. v. Yong Wang,
supra.
Before we get to the legal issues, I need to include a
little more of the details the opinion provides as to what happened on June 23,
2011. At some point after the agents
took Wang from the closet and into the living room, two of them Agent Thompson
and Agent Phung -- took him into his bedroom and “began questioning him.” U.S. v.
Yong Wang, supra.
Thompson told him
a translator was available, but Wang said he did not need one. U.S. v.
Yong Wang, supra. The opinion says that his website was in English, that he
“spoke English clearly” and that he “never indicated” he was having “any
difficulty understanding the agents.” U.S. v. Yong Wang, supra.
Before they began the questioning Thompson
verbally administered Miranda warnings
to Wang. . . . [and] gave Wang a written FBI advice-of-rights form. . . . After
Wang read the advice-of-rights form, Thompson asked him if he understood it,
and Wang responded that he did. . . .
Thompson asked Wang if he was willing to
sign the form and speak with agents. Wang stated that he was willing to answer
questions, and he signed the waiver form. . . . After [he] signed the advice-of-rights form, Thompson and
Phung began to interview Wang. . . .
U.S. v. Yong Wang,
supra.
After Wang signed the form, he told the agents “he could go
online and show them the `uudiguo’ website.”
U.S. v. Yong Wang, supra. Thompson told [him] the agents wanted to take
over his online accounts and asked Wang to sign a form entitled “`Consent
to Assume Online Presence.’” U.S.
v. Yong Wang, supra. The form read
as follows:
`I consent to the use of my online
presence for any purpose relating to an official investigation by the above law
enforcement authority, including (but not limited to) sending and receiving email
or conducting any other electronic communications, accessing stored
information, and using and disclosing such communications or information. I
understand and acknowledge that by signing the consent form, I relinquish all
present and future claims to the use of these accounts. I understand that law
enforcement authorities will change the password(s) to this account so that I
will no longer have access.’
`I
give this consent freely and voluntarily, without fear, threats, coercion, or
promises of any kind. I have been advised of my right to refuse to allow the
assumption of my online presence, and I hereby voluntarily waive this right.’
U.S. v. Yong Wang,
supra.
Thompson told Wang that if he signed the form, he “would
never have access to the accounts again.”
U.S. v. Yong Wang, supra. Wang “read the form and then provided his
user name and password for his desktop computer, for his Paypal account, for
his email accounts, and for the server that hosted the `uudiguo’ website.” U.S. v. Yong Wang, supra. He then “signed the form.” U.S. v.
Yong Wang, supra. “He did not ask any questions about the form” before
doing so. U.S. v. Yong Wang, supra.
In his motion to suppress, Wang argued that his statements
to the agents could not be used against him because his waiver of his Miranda rights was “invalid” because of
the “false statements” he claimed the agents made to him and the “pressure
placed upon” him. U.S. v. Yong Wang, supra.
In
the Miranda case, the Supreme Court
held that suspects who were in “custody” when they were interrogated, which
Wang was, are entitled to be informed of certain rights, such as their right
to remain silent and their right to have a lawyer, their right to have the lawyer appointed if
they cannot afford to hire one and their right to have the lawyer with them during
interrogation (which means they cannot be interrogated if their lawyer is not
present).
But the Miranda
Court also held that suspects can waive, i.e., can give up, these rights IF the
waiver is (i) knowing and intelligent (the suspect knew he/she had these rights
and understood the consequences of giving them up) and (ii) voluntary (the
officers did not torture or otherwise overbear the person’s will so they would
give up the rights). For more on this,
check out Wikipedia’s entry on waiving Miranda
rights.
The judge in this case held that Wang’s motion to suppress
his statements would be denied because while he claimed the waiver was
involuntary, he did not establish facts showing that. U.S. v.
Yong Wang, supra. The judge found there was no evidence that the agents
threatened Wang or made false promises to coerce him into giving up his rights,
and so denied his motion to suppress the statements. U.S. v.
Yong Wang, supra.
The judge also found that there was no evidence to show that
Wang did not understand English and therefore did not understand the rights as
administered to him since, among other things, he “maintained a Facebook page
on which he wrote comments in English and he attended college in the United
States.” U.S. v. Yong Wang, supra. (This, of course, went to whether the waiver was knowing and intelligent.)
That brings us to Wang’s motion to suppress “evidence
obtained as a result of his consent to agents assuming his online
identity.” U.S. v. Yong Wang, supra. I must admit that I was a little disappointed
when I read how the judge in this case dealt with this issue, though I think
that what the judge did was absolutely correct.
I only wishe the judge had addressed the issues in more detail, but I
understand why he did not.
To understand why the judge did what he did, you need to
understand a little more about what actually happened in this case. When the judge held a hearing on Wang’s
motions to suppress his statements and the evidence resulting from the consent
to assume online identity, Agent Thompson testified that
the agents did not use any of the information
Wang provided on the `Consent to Assume Online Presence’ form
because they had previously obtained search warrants that authorized them to
access Wang's desktop computer, his Paypal account, his email accounts, and the
`uudiguo’ server.
U.S. v. Yong Wang,
supra.
A little more preface and we will get to the judge’s
ruling. Wang argued that any evidence
obtained as a result of the agent’s using the Consent to Assume Online Presence
should be suppressed because he did not give the consent “voluntarily.” As I have noted in prior posts, consent is an
exception to the 4th Amendment’s default requirement that officers
obtain a search warrant before searching a place or thing.
If I consent to let officers search the place or
thing without a warrant, I waive my 4th Amendment right to privacy
in that place or thing. I do not HAVE to
consent; as Wikipedia notes, an individual “has the right to refuse to give
consent.” And since a 4th
Amendment consent is a waiver, it, like Miranda
waivers, has to be voluntary.
As noted above, in his motion to suppress Wang argued that
his consent for the agents to assume his online presence was not voluntary which, if true, would have voided it and
warranted suppressing the relevant evidence.
He lost . . . for two reasons:
One was because the judge found the consent was voluntary; the other was
that the issue was basically moot:
With regard to the consent form, Agent
Thompson testified that Wang provided the information on it and signed it after
he signed the Miranda waiver form. . . .The credible evidence
demonstrates that Wang read and understood the consent form, and that he
executed it freely and knowingly. The Government has thus met its burden of
demonstrating that Wang's execution of the consent form was knowing and
voluntary.
This appears to be a moot point,
however. Agent Thompson testified that agents did not obtain any new
information as a result of the consent form because they already had search
warrants for Wang's residence, email accounts, and servers. . . .The Government
has further represented that it does not intend to use against Wang any
evidence that was obtained as a result of his execution of the consent form. .
. .
U.S. v. Yong Wang,
supra.
For all of these reasons, the judge denied Wang’s motion to
suppress his statements and evidence obtained as a result of the consent. U.S. v.
Yong Wang, supra.
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