State v. Tingey

2016 UT App 37

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MARK PHILLIP TINGEY,
Appellant.

Opinion
No. 20140557-CA
Filed February 25, 2016

Fourth District Court, American Fork Department
The Honorable Christine S. Johnson
No. 111100508

Dean N. Zabriskie, Stephen R. Allred, Rhome D.
Zabriskie, and Kevin Mark Kemp, Attorneys
for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee

SENIOR JUDGE RUSSELL W. BENCH authored this Opinion, in which
JUDGES GREGORY K. ORME and J. FREDERIC VOROS JR. concurred. 1

BENCH, Senior Judge:

¶1 Mark Phillip Tingey appeals the trial court’s ruling on his
motion to suppress statements he made during a police
interrogation. We affirm.

1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Tingey

BACKGROUND

¶2 In February 2011, Deputy O’Hara of the Utah County
Sheriff’s Office located an IP address in Utah County that had
shared a number of known child pornography files. He learned
that the IP address was assigned to a Brigham Young University
(BYU) student living in university housing. Deputy O’Hara
obtained a search warrant for the apartment and went with six to
eight other officers, including officers from the BYU Police
Department, to execute the warrant.

¶3 At least two of the BYU officers were in uniform, while
the other officers wore plain clothes with police vests. When the
officers knocked on the door of the apartment, Tingey’s wife
answered. The officers entered the apartment and found Tingey
asleep in his bedroom. Deputy O’Hara asked Tingey if they
“could step into another room to talk.” Tingey “pointed” the
officers to a second bedroom used as an office/workout room.
Sergeant Burr of the BYU Police Department accompanied
Deputy O’Hara and Tingey into the second bedroom. Deputy
O’Hara placed an ironing board between Tingey and the officers
to hold his recording device and laptop. The bedroom door
stayed open throughout the interview, and other officers went in
and out of the room.

¶4 When Tingey initially claimed to have accidentally
downloaded pornography and to have immediately deleted the
file-sharing software, the officers informed him that they
“wouldn’t be here if there was just one video.” Sergeant Burr
then warned Tingey, “The way to save yourself and face right
now is to be absolutely upfront. . . . [Y]ou need to be absolutely
honest with [Deputy O’Hara], okay?” Sergeant Burr went on to
say, “[W]e have the ability right now to destroy everything that’s
going on in your life.” Immediately following Sergeant Burr’s
statements, Deputy O’Hara clarified, “I appreciate you being
willing to talk to us because, you know, you don’t have to.”

20140557-CA 2 2016 UT App 37
State v. Tingey

¶5 The officers continued talking to Tingey for several
minutes before an officer came to tell them that Tingey’s wife
was leaving for work and needed to retrieve some socks from
the room. The officer asked Deputy O’Hara, “[D]o you want
[Tingey’s wife] to come say goodbye?” Deputy O’Hara replied,
“That’s up to them. I mean, they—it’s not like you’re under
arrest or anything. You can do and say what you want.” Tingey
then went into the hallway to say goodbye to his wife. Sergeant
Burr left the room with Tingey, and Deputy O’Hara went to
check on the progress of the officers who were going through
Tingey’s computer. After Tingey returned to the second
bedroom, Deputy O’Hara continued the interview and
ultimately obtained a number of incriminating statements from
Tingey.

¶6 Tingey was charged with ten counts of sexual exploitation
of a minor, a second-degree felony. See Utah Code Ann. § 76-5a-
3(1)(a) (LexisNexis Supp. 2009). Before trial, Tingey filed a
motion to suppress the police interview on the ground that he
was subjected to custodial interrogation without a Miranda
warning. Following an evidentiary hearing, the trial court made
detailed findings of fact and conclusions of law in analyzing the
four custody factors, see infra ¶ 12. The court ultimately
determined that Tingey was not in custody at the time of the
interview and denied his motion to suppress. At trial, defense
counsel obtained a directed verdict on two of the ten counts of
sexual exploitation of a minor, and Tingey was ultimately
convicted of the remaining eight counts. Tingey now appeals the
trial court’s denial of his motion to suppress. 2

2. The State asserts that even if the trial court erred in denying
Tingey’s motion to suppress, the compelling nature of the
forensic evidence on Tingey’s computer made any error in
admitting the interview harmless. Because we conclude that the
(continued…)

20140557-CA 3 2016 UT App 37
State v. Tingey

ISSUE AND STANDARDS OF REVIEW

¶7 Tingey asserts that the trial court erred in determining
that his interrogation was not custodial and in denying his
motion to dismiss. Whether an interrogation is custodial is a
mixed question of fact and law, which we review
nondeferentially for correctness. State v. Levin (Levin II), 2006 UT
50, ¶¶ 42, 44, 46, 144 P.3d 1096. We review the trial court’s
underlying factual findings for clear error. See id. ¶ 20.

ANALYSIS

¶8 As a threshold matter, we address Tingey’s assertion that
the trial court clearly erred in finding that Sergeant Burr’s threat
was “inaudible.” He asserts that this erroneous finding led the
trial court to disregard the threat as a factor in its analysis of
whether he was in custody and that the error calls into doubt the
trial court’s “entire legal analysis.” However, Tingey’s argument
overstates the importance of this finding.

¶9 The trial court found,

[Sergeant Burr] . . . advises that “the way to save
yourself is to be absolutely up front.” At
approximately 2:30 on the recording, [Burr] makes
somewhat of a threatening statement, indicating
that the potential allegations could be destructive
to Tingey. Burr cautions [Tingey] that “we have the
ability right now to just [inaudible]. But a lot of this
can be based upon how cooperative you are.”

(…continued)
trial court did not err in denying the motion to suppress, we do
not consider the State’s alternative argument.

20140557-CA 4 2016 UT App 37
State v. Tingey

(Fourth alteration in original.) Notwithstanding the court’s
determination that part of the statement was inaudible on the
recording, the transcriber was apparently able to hear it, as the
transcript records the statement as “we have the ability right
now to destroy everything that’s going on in your life.”
Furthermore, Deputy O’Hara testified at the evidentiary hearing
that the threat was made as transcribed.

¶10 But even assuming that this evidence of the statement’s
contents makes the trial court’s finding that the statement was
inaudible clearly erroneous, the finding did not lead the trial
court to disregard the threat in its analysis, as Tingey suggests.
Despite finding that the statement was inaudible, the trial court
found that Sergeant Burr made a “threatening statement” to
Tingey “indicating that the potential allegations could be
destructive to Tingey.” Thus, the trial court ultimately found
that the threat was made, and we employ that factual finding in
our analysis of whether Tingey was in custody.

¶11 The Fifth Amendment to the United States Constitution
protects criminal defendants against compulsory self-
incrimination. U.S. Const. amend. V. “To protect a person’s Fifth
Amendment right to avoid self incrimination, police must give
pre-interrogation warnings to persons in custody.” State v.
Doran, 2007 UT App 119, ¶ 10, 158 P.3d 1140 (citing U.S. Const.
amend. V; Miranda v. Arizona, 384 U.S. 436 (1966)).

¶12 “[A] person is in custody for purposes of Miranda when
the person’s ‘freedom of action is curtailed to a degree associated
with formal arrest.’” State v. Levin (Levin III), 2007 UT App 65,
¶ 12, 156 P.3d 178 (quoting Berkemer v. McCarty, 468 U.S. 420, 440
(1984)) (additional citation and internal quotation marks
omitted). Whether a person is in custody “depends on the
objective circumstances of the interrogation, not on the
subjective views harbored by either the interrogating officers or
the person being questioned.” Stansbury v. California, 511 U.S.

20140557-CA 5 2016 UT App 37
State v. Tingey

318, 323 (1994) (per curiam). Our supreme court has identified
four factors to examine in making this determination: “(1) the
site of interrogation; (2) whether the investigation focused on the
accused;[ 3] (3) whether the objective indicia of arrest were
present; and (4) the length and form of interrogation.” Salt Lake
City v. Carner, 664 P.2d 1168, 1171 (Utah 1983).

¶13 The first factor, the site of the interrogation, weighs
against a finding of custody. The interrogation took place in
Tingey’s apartment. Tingey suggested the second bedroom as a
place where he could talk with the officers. The door was open,
and other officers came and went throughout the interview.
Despite Sergeant Burr’s threats, Deputy O’Hara reiterated to
Tingey that he did not have to talk to the officers. Tingey even
left the room at one point to say goodbye to his wife when she
left for work. Nevertheless, Tingey emphasizes the fact that his
movement was restricted by an ironing board that was placed in
front of him to hold Deputy O’Hara’s recording device and
computer. Tingey asserts that the ironing board essentially acted
as a “blockade” to keep him in the room and in his seat.

3. To be clear, “a police officer’s subjective view that the
individual under questioning is a suspect, if undisclosed, does
not bear upon the question whether the individual is in custody
for purposes of Miranda.” Stansbury v. California, 511 U.S. 318,
324 (1994) (per curiam). Thus, “any inquiry into whether the
interrogating officers have focused their suspicions upon the
individual being questioned (assuming those suspicions remain
undisclosed) is not relevant for purposes of Miranda.” Id. at 326;
see also Levin II, 2006 UT 50, ¶ 35, 144 P.3d 1096 (citing Stansbury,
511 U.S. at 325); State v. Heywood, 2015 UT App 191, ¶ 50 n.4, 357
P.3d 565 (citing Stansbury, 511 U.S. at 326). Accordingly, we
understand the second factor to refer to situations where, as
here, officers disclose to the suspect that he or she is the focus of
an investigation.

20140557-CA 6 2016 UT App 37
State v. Tingey

Generally, an interview in a suspect’s home does “not amount to
custodial interrogation” as long as the suspect’s “freedom of
movement was not hindered.” State v. Worthington, 970 P.2d 714,
716 (Utah Ct. App. 1998) (citing Beckwith v. United States, 425 U.S.
341, 347 (1976)). Although the ironing board may have limited
the movement of those in the room, it appears to have been
placed in front of Tingey as a matter of convenience, not for the
purpose of keeping him in the room. The fact that the door
remained open, that Tingey was told he did not have to talk to
the officers, and that he left the room at one point to say goodbye
to his wife indicate that he was not confined for purposes of the
interrogation but had the freedom to leave or terminate the
interrogation at any point.

¶14 The second factor, whether the investigation focused on
the accused, weighs in favor of a finding of custody. Although
officers may not have initially known who was downloading
criminal material at Tingey’s address, upon arriving at the home
they “quickly conclude[d] that Tingey [was] their suspect,” and
“[t]he focus on Tingey as the perpetrator was . . . quite clear
within the first few minutes of the interview.”

¶15 The third factor, whether objective indicia of arrest were
present, weighs against a finding of custody. Objective indicia of
arrest include “readied handcuffs, locked doors[, and] drawn
guns.” Levin III, 2007 UT App 65, ¶ 15 (citation and internal
quotation marks omitted). The record indicates that
“[a]pproximately seven to nine officers were involved in the
execution of the warrant” and that most of the officers, including
the two who conducted the interview, were not in uniform. All
of the officers were armed, “but at no point were any of the
sidearms drawn.” Only two of the officers actually participated
in the interview. Tingey was never handcuffed, and the door to
the room where he was interviewed was left open throughout
the interrogation. Although the presence of so many officers may

20140557-CA 7 2016 UT App 37
State v. Tingey

have been intimidating, there were ultimately few, if any,
objective indicia of arrest.

¶16 The fourth factor, the length and form of the interview,
presents a close question but ultimately weighs slightly against a
finding of custody. The interview lasted “just over one hour.”
The officers used “various interview techniques in order to
encourage a confession from Tingey,” such as Sergeant Burr’s
threat and the suggestion that the officers “already had built a
significant case against him.” The officers’ questions were
accusatory, which “often indicates to the [suspect] that he or she
is not free to leave.” Levin II, 2006 UT 50, ¶ 36, 144 P.3d 1096.
Tingey’s movement was not restricted, however, and the officers
informed Tingey that he was not required to talk to them and
reassured him several times that he was not under arrest. In fact,
Tingey declined at least one opportunity, before having made
any incriminating statements, to terminate the interview. As the
trial court observed, Tingey took a break six minutes into the
interview to leave the room and say goodbye to his wife, at
which point Deputy O’Hara told him, “[I]t’s not like you’re
under arrest or anything. You can do and say what you want.”
Having left the interview room and been reassured that he was
not under arrest and not confined to the room, Tingey was
“presented [with] the perfect opportunity . . . to terminate the
interview, had he wished to.” Although Tingey may have felt
that it was in his best interest to continue the interview, a
reasonable person in Tingey’s circumstances would have
understood that he was free to end the interview if he chose to.
See id. ¶ 35. And indeed, Tingey’s trial testimony indicates that
this was exactly his perception: he confirmed that the officers
told him he could leave but explained that he believed it was
important for him to cooperate in order to avoid spending his
life in prison.

¶17 Although this case presents a close question on the issue
of custody, we ultimately conclude that the above factors weigh

20140557-CA 8 2016 UT App 37
State v. Tingey

against a finding of custody. Accordingly, the trial court did not
err in denying Tingey’s motion to suppress.

CONCLUSION

¶18 We conclude that any error in the trial court’s finding
regarding the audibility of the interview recording did not affect
its ultimate findings and conclusions. Furthermore, we conclude
that the trial court did not err in determining that Tingey was
not in custody at the time of his interrogation and that a Miranda
warning was therefore not required. Accordingly, we affirm the
trial court’s denial of Tingey’s motion to suppress statements
made during the police interview.

20140557-CA 9 2016 UT App 37