Despite Lengthy Interview, Court Finds No Custody for Miranda Purposes

United States v. Cox, 2022 WL 17174607 (7th Cir. 2022)

Agents investigated a scheme where Bradley Cox used a Facebook account under a false name to direct victims—two of whom were minors—to contact an unfamiliar phone number. Cox told the victims he had nude photos of them, taken from the stash of a Facebook account he had previously “hacked.” Cox threatened to leak the photos if the victims did not meet his demand to send more explicit material. When they did not comply, he followed through on his threat.

The FBI tracked the internet address associated with some of the offending messages to a family business called Burns Construction Company, where Bradley Cox worked. Agents visited Burns Construction without a search warrant. Michael Burns, a part-owner of the company, allowed agents to search and image the work computer in Cox’s office (Cox had already left for the day.) The computer’s browsing history contained traces of a specific Virtual Private Network (VPN). The same VPN found on Cox’s work computer had been used to cover up his tracks in his exploitation efforts.

Right after leaving Burns Construction, the agents went to Cox’s home. Using the wise tactic of “talk nice, think mean,” the agents assured Cox he could end the conversation at any time and that he would not be arrested that night. He agreed to speak with them. When Cox offered to help broaden the net in the agent’s investigation in exchange for leniency, the agents told him that such a deal was out of their control. Cox still decided to talk. He made numerous incriminating statements and admitted to accessing some of the offending Facebook accounts, owning the phone number that three of the victims had contacted, using the VPN found on his work computer, and messaging some of the victims. Cox turned over his personal laptop.

Let us remember the wise words of Abraham Lincoln: “He who represents himself has a fool for a client.”

The following day, agents returned to Burns Construction to return the work computer. They spoke with Cox, who made more incriminating statements. He admitted to other communications with the victims and showed them his online storage system, which contained many explicit images.

Charged with extorting people with threats to share their sexually explicit images, coercing or attempting to coerce minors to engage in sexually explicit conduct, and receiving child pornography, Cox decided to represent himself. (Let us remember the wise words of Abraham Lincoln: “He who represents himself has a fool for a client.”)

The jury convicted Cox on all charges. He appealed. Cox claimed Fourth Amendment violations based on the warrantless search, Fifth Amendment violations based on the failure to give a Miranda warning, and Sixth Amendment violations based on the court’s evidentiary and procedural decisions.

The appellate court made quick work of the Fourth Amendment claim based on Cox’s defective filing. Nonetheless, he would likely not have prevailed. His employer owned the computer and had apparent authority to consent to a search of Cox’s workspace and his computer.

Cox also lost his Fifth Amendment claim because he failed to show he was “in custody” for Miranda purposes. The court cited several factors supporting the conclusion that he was not in custody. The agents spoke with Cox on the sidewalk and porch outside his home—places where, presumably, Cox would have felt comfortable. The questioning occurred in public. Cox freely consented to speaking with the agents outside, and he was never handcuffed or threatened with handcuffs. The agents wore street clothes and did not display weapons. The interrogation appears to have been non-confrontational (remember, talk nice, think mean). The agents asked Cox if he wanted to talk and told Cox he could end the questioning at any time. Moreover, they said he would be free to go at the end of the interrogation.

The court acknowledged the length of the questioning (approximately two hours) tended to support a finding of custody. However, all the other factors, considered together, led to the conclusion that there was no custody for Miranda purposes. The court also held Cox had failed to properly raise his claim that the second interview (at the office) was custodial. With those holdings, the court easily concluded that no constitutional violation occurred and there was sufficient evidence to support his convictions.

Ken Wallentine

KEN WALLENTINE is the Chief of the West Jordan (Utah) Police Department and former Chief of Law Enforcement for the Utah Attorney General. He has served over three decades in public safety, is a legal expert and editor of Xiphos, a monthly national criminal procedure newsletter. He is a member of the Board of Directors of the Institute for the Prevention of In-Custody Death and serves as a use of force consultant in state and federal criminal and civil litigation across the nation.

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