United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER DENYING DEFENDANT'S
MOTION TO SUPPRESS STATEMENTS
Nuffer, United States District Judge
matter is before the court on Defendant Travis
Fritzsching's motion to suppress. On November 7, 2016, an
evidentiary hearing was held on the motion. After reviewing
the case law and arguments submitted by the parties,
motion to suppress is DENIED.
Sometime before November 23rd, 2015, a Texas investigation
revealed that emails had been received from a
firstname.lastname@example.org account, and indicated that
child pornography may have been exchanged, as well as that
there may have been a minor being sexually
investigation commenced into the email@example.com
account, in which Special Agent Jeffrey Ross, of the
FBI's Salt Lake City office, participated. Agent Ross
reviewed driver's license records, which showed that
photographs associated with the emails were similar to the
driver's license photograph of Mr. Travis Fritzsching
(“Mr. Fritzsching”), the defendant. The name
associated with the firstname.lastname@example.org account was
Before joining the FBI in 1999, Agent Ross worked for
five-and-a-half years at a residential center for troubled
children. He also worked for one-and-a-half years at a camp
for mentally retarded adults and worked for some time at a
private for-profit mental hospital.Agent Ross worked for
approximately eight years in the mental health
Before joining the FBI in 1999, Agent Ross took classes
related to mental retardation, developmental disabilities,
and abnormal psychology at Ohio State University where he
obtained a degree in psychology and
Agent Ross also obtained criminal history and warrant records
regarding Mr. Fritzsching, which indicated that Mr.
Fritzsching had previously had several encounters with law
enforcement that were somewhat hostile and
aggressive. In one such incident, Mr. Fritzsching
had displayed suicidal behavior, and Mr. Fritzsching was
tased by police officers and involuntarily committed to a
hospital for treatment.
agents and officers investigating the
email@example.com account were in possession of
all such background information about Mr. Fritzsching before
they procured a warrant to search for child pornography in
agents and officers procured a search warrant and served that
warrant on November 23, 2015 at Mr. Fritzsching's
residence, his parents' home in Riverton,
Utah. The officers executed the search warrant
early in the morning, roughly between 7:00 and 8:00
the morning of November 23, 2015, before executing the search
warrant, officers observed Mr. Thomas Fritzsching, the
defendant's father leaving the home. Officers
stopped the father shortly after he left the home and
directed him to the nearby Riverton Library parking lot,
which the officers were using as a staging ground for the
the parking lot, the agents informed the father that they had
a search warrant to investigate child pornography they
believed Mr. Fritzsching possessed on electronic devices in
the Fritzsching home. The agents showed the warrant to the
father. The agents also informed the father that
they were aware of Mr. Fritzsching's prior encounters
with law enforcement officers.
During this discussion, the father indicated that Mr.
Fritzsching was likely to be agitated by the search,
as well as that Mr. Fritzsching suffered from depression,
anxiety, and had a history of suicidal
tendencies. The father stated that Mr. Fritzsching
was currently taking prescription medication for his mental
health issues,  and that at that time of morning, Mr.
Fritzsching was likely still asleep in the basement of the
home. The father did not tell the agents that
Mr. Fritzsching exhibited, or had ever exhibited,
characteristics of borderline mental
retardation. At the hearing, Agent Ross testified
that the father might have told him that Mr. Fritzsching was
taking anti-anxiety medications.
entire conversation with the father lasted roughly five
minutes. Based on the father's statements,
the officers decided to “scale back” the search
warrant execution from normal procedure,  and the
father voluntarily admitted the officers into the Fritzsching
home to execute the warrant.
small group of roughly five agents/officers entered the home
and went into the basement, where they found Mr.
Fritzsching. The officers woke Mr. Fritzsching,
handcuffed him, and took him outside to the interview room in
the back of a mobile forensics lab (a specially-equipped box
some point during the operation, one officer spoke with Mrs.
Virginia Fritzsching, the defendant's mother, about Mr.
Fritzsching's depression, medication, and sleep
apnea. The mother expressed concerns about Mr.
Fritzsching being able to bring his CPAP machine (for sleep
apnea) or his medications if taken into
Fritzsching's father testified at the hearing that Mr.
Fritzsching has problems with comprehension and understands
things differently than other people would be expected to
understand them. He also testified that when Mr. Fritzsching
does not want to deal with things he will, at times, say that
he understands when, in fact, he does not.
Mrs. Fritzsching testified at the hearing that Mr.
Fritzsching, her son, has suffered severe anxiety and
depression issues since he was as young as eight years old.
She also testified that Mr. Fritzsching was diagnosed at a
young age with borderline mental retardation.
Fritzsching was interviewed in the back of the mobile
forensics lab,  in an interview room measuring roughly
eight feet by twelve feet, and containing two benches and a
table. Agent Ross and Agent James May, a
detective with the Tooele Police Department, were both
present during the interview, which Agent Ross alone
conducted. Agent Ross could not recall whether the
two agents' firearms were visible during the interview,
but believed that at least his own firearm was not
Agent Ross is trained to interrogate suspects. He is trained
in the use of investigatory tactics such as the use of
deception, intimidation, and instilling fear. He testified
that he did not use these tactics in this case.
Agent Ross could not remember certain details of the
interview including times where he may have conducted the
interview using leading questions.
Before the interview began, Agent Alan Conner, an
investigator with the Utah Attorney General's office, set
up the interview recording equipment in the mobile forensics
lab. Agent Ross did not begin the interview
until Agent Conner communicated that the equipment was
interview lasted between one and one-and-a-half
hours. Agent Ross began the interview by
stating that the officers were at Mr. Fritzsching's
residence to investigate suspicious email use. At this
point, before Agent Ross began asking questions,
Mr. Fritzsching stated that the email account belonged to
him. Mr. Fritzsching stated that he
hadn't actually molested any children,  but rather
had just talked about doing so. Agent Ross told Mr.
Fritzsching to stop talking,  so that Agent Ross could give
him more details about the purposes of the
Agent Ross told Mr. Fritzsching that the investigation had
three purposes: first, to remove all child pornography from
the Fritzsching home; second, to identify any children still
subject to sexual abuse; and third, to determine if Mr.
Fritzsching was still communicating with others about child
sexual abuse or child pornography.
Agent Ross then produced a small, credit card-sized card,
from which he read a statement regarding Mr.
Fritzsching's Miranda rights. After Agent
Ross finished reading the card, Mr. Fritzsching agreed to
continue the interview.
Upon questioning, Mr. Fritzsching proceeded to tell Agent
Ross about the firstname.lastname@example.org account, which
Mr. Fritzsching stated he himself had created. Mr.
Fritzsching stated that the account name was related to
pigeon racing, his personal hobby. Mr. Fritzsching stated he
had used the email@example.com account to falsely
tell others that he had been sexually abusing a child, but in
reality he did not have sexual access to any
children.He also stated that he had used
Craigslist for between four and five years in order to
exchange child pornography with others. Mr.
Fritzsching stated that he had closed the
firstname.lastname@example.org account because he had become
uncomfortable with others' inquiries about Mr.
Fritzsching's claimed sexual access to
Fritzsching told Agent Ross that after closing the
email@example.com account, he began using another
account, with the address
firstname.lastname@example.org. Mr. Fritzsching stated
that, using that account, he had made contact (through
Craigslist) with a young male who claimed to be eighteen
years old, but who later represented that he was sixteen
years old. Mr. Fritzsching stated that he had
received sexually explicit photographs from the young male,
but had later deleted the photographs.
Fritzsching told Agent Ross that he stopped using the account
email@example.com because people continued to
contact him about sexually molesting children.
Agent Ross did not know if Mr. Fritzsching could remember the
specific interactions with the individual who was the subject
of the related investigation in Texas. Mr. Fritzsching told
Agent Ross that he had communicated with multiple individuals
about having molested children. Mr. Fritzsching did not
remember a specific screen name.
Fritzsching stated that he had also found sexual material
online through Internet searches for the term “RU
boys.” However, Mr. Fritzsching repeated that
he had never actually had sexual contact with a child,
and that his only actual sexual contact in his life had been
with an adult, several years earlier.
Fritzsching told Agent Ross that he no longer had access to
the now-closed firstname.lastname@example.org
account. However, he did provide the correct
password to his email@example.com
account. Agents thereafter searched the
firstname.lastname@example.org account and found no
During the interview, Mr. Fritzsching did not appear
agitated. He was able to articulate answers to
questions. He was not looking around
anxiously. He nodded in response to statements in
conversation,  was alert throughout,  and spoke
with a quiet and subdued tone. Agent Ross believed Mr.
Fritzsching was calm, because Mr. Fritzsching was not
shaking. Mr. Fritzsching did not cry or sob at
any time during the interview,  but may have been a
little tearful. However, any such emotional response did
not interfere with the interview. Mr. Fritzsching did not
joke with the agents,  and appeared aware of what was
occurring. Mr. Fritzsching was sitting, leaning
forward, with his hands together, throughout the
Agent Ross observed no indications that Mr. Fritzsching did
not understand his questions,  and Mr. Fritzsching's
answers were appropriately responsive to the
questions.Agent Ross noted that when he initially
explained what had led the agents to Mr. Fritzsching's
residence, Mr. Fritzsching stated (without being prompted by
a question from Agent Ross) that he had sent messages
discussing child sexual abuse, but had never actually
sexually abused a child. At no time during the interview did
Mr. Fritzsching ask for clarification or state that he
didn't understand Agent Ross's
During the interview, Agent Ross asked if Mr. Fritzsching was
suicidal, to which Mr. Fritzsching responded, “Who
wouldn't be?” Besides this statement, neither Agent
Ross nor Agent May observed any other indications that caused
them concern about Mr. Fritzsching's ability to
participate in the interview. Mr. Fritzsching seemed
oriented as to who he was, who Agent Ross was, and what the
agents were doing. Mr. Fritzsching related his personal
information without error or unnecessary
DVDs on which the agents generally record
interviews have a capacity to record roughly one
hour of interview on each disk. During the course of the
interview, Agent Conner indicated to Agent Ross that, in
order to continue recording the interview, Agent Conner would
need to insert a new DVD. Agent Conner inserted a new
DVD, and the interview continued.
the end of the interview, Agent Conner gave Agent Ross two
DVDs,  with the belief that the disks contained
the interview recording. Agent Ross placed the disks in his
case file. The disks were not treated as evidence
to be held in a chain-of-custody bag. At some
point later, Agent Ross attempted to play the DVDs in his FBI
office and discovered that nothing had been recorded onto the
disks; rather, the DVDs displayed only “white
Upon discovering the DVD issue, Agent Ross called Agent
Conner and informed Agent Conner that the DVDs didn't
work. Agent Conner told Agent Ross that the
DVDs perhaps had not been properly
“finalized.” Agent Ross removed the DVDs
from his case file and proceeded to the AG's
Office. After further investigation, officers
concluded that the problem was unrelated to the DVDs'
“finalization, ” but, rather, the interview had
not been recorded at all.
During the search, agents seized four telephones from the
Fritzsching residence. At least one phone was seized from Mr.
Fritzsching's basement bedroom. One of the phones
seized was a Blackberry which did contain child pornography,
but the mother indicated that she had possession of the
Blackberry for several years prior to the
seizure. Agent Ross could not recall which
phone Mr. Fritzsching was actively using at the time the
warrant was executed.
Fritzsching moves to “suppress statements he made
during or following the execution of [the] search warrant . .
. on or about November 23, 2015, ” as well as
“any officer testimony concerning these
statements.” Mr. Fritzsching claims that his
Miranda waiver was invalid because the
“officers knew . . . that he had a prior history of
mental illness and a markedly diminished social and mental
capacity.” In the alternative, Mr. Fritzsching
also urges that “the destruction of the recording of
the interview, or officer action rendering it otherwise
unavailable to the defense, constitutes a violation of [Mr.
Fritzsching's] right to Due Process.” The
evidence does not support either argument.
Mr. Fritzsching's Miranda waiver was
Fritzsching claims that the agents “knew, before they
arrested [him] or sought to procure a waiver of his
Miranda rights, that he had a prior history of
mental illness and a markedly diminished social and mental
capacity.” On that basis, Mr. Fritzsching argues
that his Miranda waiver was ineffectual, and that
therefore his statements at the interview should be
suppressed. Mr. Fritzsching further argues that, regardless
of how he appeared to Agents Ross and May during the
interview, his mental capacity is such that the waiver could
not be knowing under Miranda.
defendant's Miranda waiver to be valid, that
waiver must be “made voluntarily, knowingly and
intelligently.” This standard incorporates two
distinct requirements: first, the waiver must be made
[s]econd, the waiver must have been made with a full
awareness both of the nature of the right being abandoned and
the consequences of the decision to abandon it. Only if the
“totality of the circumstances surrounding the
interrogation” reveals both an uncoerced choice and the
requisite level of comprehension may a court properly
conclude that the Miranda rights have been
Fritzsching does not attack the voluntariness of his
Miranda waiver, and therefore only his challenge to
the knowing and intelligent nature of the waiver will be
determining whether a waiver of rights was knowing and
intelligent, [courts] employ a totality of the circumstances
approach.'” When a defendant seeks suppression
based on an allegedly invalid Miranda waiver, the
government bears the burden of proving, by preponderance of
the evidence, that the waiver was knowing and
agents' awareness of Mr. Fritzsching's past mental
and emotional disturbances is not grounds for suppression.
That awareness constitutes only one portion of the totality
of the circumstances analysis. The central question in the
analysis of a knowing and intelligent waiver is how Mr.
Fritzsching appeared and acted during the interview
itself. In United States v. Morris,
 federal agents shot Mr. Morris during
the arrest, and Mr. Morris “remained in intensive care
for seven days” afterward. Agents thereafter
“secured a signed Miranda waiver from Mr.
Morris and interviewed him” while Mr. Morris was still
in the hospital. Before trial, Mr. Morris moved to
suppress the statements he made during the hospital
interview, claiming that his waiver was not knowing or
voluntary, due to the effects of “pain, . . . pain
medications, and the post-traumatic stress of being
shot.” The Tenth Circuit affirmed the denial
of the motion to suppress, emphasizing Mr. Morris's
behavior during the interview: he “signed the waiver,
was promised nothing, was alert and responsive during the
interview, and demonstrated that he understood his right to
remain silent by refusing to provide a written statement
following the interview.”
United States v. Curtis,  The Tenth Circuit
again emphasized the importance of a defendant's
appearance and conduct during the interview itself. In that
case, Mr. Curtis moved to suppress his videotaped confession
to detectives, claiming that “when he gave it, he was
under the influence of marijuana, crack cocaine and alcohol
he had consumed earlier that day.” The Tenth
Circuit affirmed the trial court's denial of the
suppression motion, emphasizing that neither the police
officer nor the trial court (after reviewing the videotaped
interview) could see any “obvious problem [from] the
drug use.” According to the arresting officer,
Mr. Curtis “appeared lucid throughout [the interview.]
‘He did not appear to be under the influence of any
intoxicant. He was very calm and cool and was able to answer
questions.'” Similarly, the interrogating
officer stated that Mr. Curtis “‘was able to
conduct a concise conversation, answer questions completely
when put to him. . . . [H]e was not stumbling, his speech was
Agents Ross and May testified that Mr. Fritzsching did not
appear agitated during the interview. Rather,
he articulated coherent answers to questions,  nodded in
response to statements in conversation,  was alert
throughout,  and spoke in a quiet and subdued
manner appropriate for the gravity of the
situation. Mr. Fritzsching did not joke around
with the agents,  and appeared aware of what was
occurring. Furthermore, at no time during the
interview did Mr. Fritzsching ask for clarification or state
that he didn't understand Agent Ross's
questions. Aside from Mr. Fritzsching's vague
indication of suicidal thoughts, neither Agent Ross nor Agent
May observed any indications that caused them concern about
Mr. Fritzsching's ability to participate in the
interview. Mr. Fritzsching related his personal
information without error or unnecessary
hesitation. Mr. Fritzsching's conduct and
demeanor gave Agents Ross and May no reason to believe that
the Miranda waiver was not knowing or voluntary.
the waiver analysis must focus on how Mr. Fritzsching
appeared and acted during his interview with Agents Ross and
May,  Mr. Fritzsching argues that permanent
intellectual disability or diminished capacity prevented him
from knowingly and intelligently waiving his Miranda
rights. This argument is unpersuasive. Other
than his mother's testimony that before Mr. Fritzsching
was school age, a test result indicated “borderline
retardation, ” Mr. Fritzsching produced no
admissible evidence of permanent intellectual disability or
diminished capacity at the evidentiary hearing. Had Mr.
Fritzsching actually produced evidence of mental disability,
that evidence alone would not invalidate his Miranda
waiver. Rather, that evidence would only help “to
determine in a close case that the police should have known
that [Mr. Fritzsching] could not
understand.” This is not a close case. Both agents
in the interview room testified that, besides Mr.
Fritzsching's vague comment regarding suicidal thoughts,
they did not observe any other indications which caused them
concern about Mr. Fritzsching's ability to participate in
the interview. Rather, Mr. Fritzsching articulated
coherent answers to questions,  nodded in response to
statements in conversation,  was alert throughout,
 and appeared aware of the
circumstances of the interview.
based on the totality of the circumstances surrounding Mr.
Fritzsching's interview, his Miranda waiver was
made voluntarily, knowingly and intelligently, and
suppression of his statement is not warranted.
No government action violated Mr. Fritzsching's Due
alternative, Mr. Fritzsching argues that “the
destruction of the recording of the interview, or officer
action rendering it otherwise unavailable to the defense,
constitutes a violation of [Mr. Fritzsching's] right to
Due Process, ” and the appropriate remedy is
suppression of the statements or dismissal. This
argument is rejected because the interview recording was not
destroyed-it never existed. In addition, Mr. Fritzsching has
failed to satisfy both the Trombetta and
No evidence was destroyed.
threshold matter, the Trombetta and
Youngblood standards do not actually apply at all,
because the recording allegedly destroyed or made unavailable
never existed in the first place. The relevant Due Process
cases address evidence that the government
initially possessed and then destroyed or lost, but do not
address evidence that never existed at all. For example, in
Trombetta several drivers, charged with driving
under the influence, argued that not preserving Intoxilyzer
breath samples violated their Due Process rights, because
they could not attack the evidence during
trial. Similarly, Youngblood
involved a forensic technician's failure to properly
refrigerate semen samples from a sexual assault
investigation, which ultimately rendered the samples not
other hand, here, the evidence in question was not destroyed,
contaminated, lost, misplaced, or negligently spoiled.
Rather, the uncontradicted testimony at the evidentiary
hearing showed that, through an innocent technical
malfunction, the recording was never made. Neither
the prosecution nor the defense had access to the recording
at any time. This is an important factual difference from
Trombetta and Youngblood, because the
agents were not constitutionally required to record the
interview. Ultimately, the incentive to record
interviews comes from the evidentiary weight a recorded
interview would provide, and the sanction for failing to do
so is the risk of not obtaining convictions if the evidence
ultimately fails to establish guilt beyond a reasonable
doubt. Consequently, an innocent failure to record at all,
which impacts both the prosecution and the defense, does not
constitute a Due Process violation.
Mr. Fritzsching has not shown a Due Process violation under
the Trombetta standard.
in the alternative, that innocently failing to record an
interview could be considered destruction or withholding of
evidence, Mr. Fritzsching has still failed to satisfy the
relevant legal standards. The Supreme Court has established
two distinct standards to analyze destruction of evidence
issues; the standard used depends on the value of the
allegedly-destroyed evidence. The first standard, which
applies when the evidence has “exculpatory
significance, ” comes from California v.
Under the two-prong Trombetta test, the government
violates a defendant's right to due process when: (1) it
destroys evidence whose exculpatory significance is
“apparent before” destruction; and (2) the
defendant remains unable to “obtain comparable evidence
by other reasonably available means.”
testimony at the evidentiary hearing does not satisfy the
Trombetta standard because the recording's
exculpatory significance was not “apparent.” Two
federal agents testified under oath that Mr. Fritzsching
admitted to using the email address to receive child
pornography.Assuming that Mr. Fritzsching had
stated, as his counsel proffered,  that he hadn't
actually viewed the images, the preponderance of the evidence
suggests that if the recording had been made, it would
contain both inculpatory and exculpatory statements. Mr.
Fritzsching has not shown that the exculpatory value was
“apparent.” Because Mr. Fritzsching has failed to
satisfy the first prong of the Trombetta standard,
there is no Due Process violation.
Fritzsching had satisfied the first prong, he would still
fail to satisfy the second prong of Trombetta,
because he offered no evidence to show that he is unable to
“obtain comparable evidence by other reasonably
available means.” Because the recording is
not available to either party, Mr. Fritzsching and the
prosecution have the same opportunities for comparable
evidence through the testimony of those who participated in
the interview. Mr. Fritzsching has thus failed both prongs of
the Trombetta standard, and there is no Due Process
Mr. Fritzsching has not shown a Due Process violation under
the Youngblood standard.
second standard, which applies when the defendant can show
only that the evidence destroyed or lost was
“potentially useful, ” comes from Arizona v.
[I]f the exculpatory value of the evidence is indeterminate
and all that can be confirmed is that the evidence was
“potentially useful” for the defense, then a
defendant must show that the government acted in bad faith in
destroying the evidence.
Fritzsching has also failed to show a Due Process violation
under the Youngblood standard, and therefore
suppression is unwarranted. For the purposes of this motion,
even assuming that the recording is “potentially
useful, ” Mr. Fritzsching has not “show[n] that
the government acted in bad faith[.]”Agent
Connor's uncontradicted testimony confirms that the
recording failed due to an innocent mistake or technical
difficulty. In Youngblood, where the
evidence at issue (semen recovered from a sexual assault
case) was genetically unique and could not be substituted
with other evidence, the Court held that there was no due
process violation because the defendant had not shown that
the officers acted in bad faith. Similarly, Mr.
Fritzsching has not shown that the agents acted in bad faith
here. To the contrary, the evidence produced at the hearing
showed that the recording was never made because of innocent
mistake or technical difficulty.
based on the testimony produced at the evidentiary hearing,
Mr. Fritzsching has not satisfied the Youngblood or
Trombetta standards to establish a due process
violation. Furthermore, the recorded interview was not
destroyed, but was never made due to a technical equipment
malfunction. For these reasons, neither suppression nor
dismissal is appropriate.
HEREBY BY ORDERED that the Motion to
Suppress is DENIED because Mr.
Fritzsching's Miranda waiver was made knowingly
and voluntarily, and there was no Due Process violation in
the innocent failure to record the interview that Agent Ross
conducted with Mr. Fritz sching.
 Motion to Suppress Evidence (Motion),
docket no. 29, filed September ...