NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 20-2437 _______________

UNITED STATES OF AMERICA

v.

VINCENT INGINO, Appellant _______________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3:18-cr-00379-001) District Judge: Honorable Malachy E. Mannion _______________

Submitted Under Third Circuit L.A.R. 34.1 on January 22, 2021

Before: HARDIMAN and ROTH, Circuit Judges, and PRATTER,* District Judge

(Filed: March 5, 2021) _______________

OPINION† _____________

* Honorable Gene E.K. Pratter, District Judge, United States District Court for the Eastern District of Pennsylvania, sitting by designation. † This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. PRATTER, District Judge.

Vincent Ingino claims a violation of his Fifth Amendment rights arising from an

interview with Pennsylvania State Troopers who did not administer him Miranda

warnings. Because we find that Mr. Ingino was not in custody at the time and voluntarily

made incriminating statements, the District Court did not err in denying Mr. Ingino’s

motion to suppress. So, the Court will affirm.

I. BACKGROUND

Over a weekend in August 2018, Pennsylvania State Police in Stroudsburg

responded to two different emergency calls, each involving a man unresponsive due to an

apparent drug overdose. Text message records recovered from the phones of the

deceased showed recent correspondence with Vincent Ingino. At the time, Mr. Ingino

was on probation. Shortly after the overdose deaths, he failed to report for his mandatory

probation meeting. When he eventually did report to his probation officer, he tested

positive for opiates and admitted to using drugs in violation of terms of his supervised

release. His probation officer directed him to seek treatment and report back after

completing the program. When Mr. Ingino missed the deadline to report that he

completed his drug treatment program, the probation officer contacted a field unit team to

visit Mr. Ingino’s home.

Around this time, the Pennsylvania State Police investigating the overdose deaths

obtained Mr. Ingino’s address from his probation officer. One of the troopers then

accompanied the probation field unit team on the Ingino home visit. Because Mr. Ingino

2 was not home at the time, the field unit team relayed to his girlfriend that Mr. Ingino was

to report to the probation office for a meeting.

Mr. Ingino reported for his mandatory probation meeting, during which he failed

his mandatory drug test. Because of the positive drug test, the probation officer told him

to expect a letter in the mail setting a court date for a revocation hearing. The probation

officer did not tell or imply to him that he would be arrested that day.

At the end of the meeting, the probation officer told Mr. Ingino that two troopers

wanted to speak to him. He responded, “Okay.” App. 77. The probation officer did not

say what the troopers wanted to talk to him about. But it soon became apparent that the

troopers were investigating the overdose deaths. The troopers met with Mr. Ingino in the

same office where Mr. Ingino had just had his probation meeting, although the probation

officer did not participate and left the room before the troopers’ questioning started. The

troopers stated that Mr. Ingino was not under arrest and that he would be walking out at

the conclusion of the session regardless of what he said. They did not raise their voices

or display their guns at any time. Although Mr. Ingino had failed his drug test earlier that

day, he was able to recall specific information connected to the troopers’ investigation.

The interrogation lasted about 30 minutes.

Mr. Ingino was charged subsequently with two counts of distribution and

possession with intent to distribute a controlled substance in violation of

(b)(1)(C). He moved to suppress his statements made to the troopers because he

claimed the interrogation violated his Fifth Amendment rights under Miranda v. Arizona,

(1966). After a suppression hearing, the District Court denied Mr. Ingino’s

3 motion. United States v. Ingino,

, 110, 115 (M.D. Pa. 2019). The

court credited the testimony from the hearing, the transcript, and the recording of the

interrogation to find that Mr. Ingino voluntarily submitted to questioning in a non-

custodial setting.

at 113–15.

Mr. Ingino proceeded to trial and was convicted on both counts. On appeal, he

again challenges that his statements were made in a custodial setting and were not

voluntarily given. We review factual findings on a motion to suppress for clear error.

United States v. Jacobs,

(3d Cir. 2005). So, we will accept those

findings unless we are “left with the definite and firm conviction that a mistake has been

committed.” United States v. Ludwikowski,

(3d Cir. 2019) (citation

omitted). We review de novo the ultimate question of whether a defendant was “in

custody” for Miranda purposes. Jacobs,

.

II. MR. INGINO WAS NOT IN CUSTODY

Miranda protections attach to those who are “in custody.” Miranda,

. “‘[C]ustody’ is a term of art that specifies circumstances that are thought

generally to present a serious danger of coercion.” Howes v. Fields,

, 508-

09 (2012). To determine whether someone is in custody, the Court is guided by the

following factors:

(1) whether the officers told the suspect he was under arrest or free to leave; (2) the location or physical surroundings of the interrogation; (3) the length of the interrogation; (4) whether the officers used coercive tactics such as hostile tones of voice, the display of weapons, or physical restraint of the suspect’s movement; and (5) whether the suspect voluntarily submitted to questioning.

4 United States v. King,

(3d Cir. 2010) (quoting United States v.

Willaman,

(3d Cir. 2006)).

The classic, fact-bound considerations about the nature, setting, and duration of

the interrogation, and Mr. Ingino’s own statements show that he was not in custody at the

time he made the statements at issue.

The District Court credited the testimony from the suppression hearing, the

transcript, and the recording of the interrogation and made the following findings: (1) the

troopers spoke to Mr. Ingino only after his meeting with his probation officer ended;

(2) Mr. Ingino responded “Okay” when asked if he would speak with the troopers and

cooperated with the questioning; (3) he was aware that he was not under arrest and that

he would be “walking out” of the office that day1; (4) the interview lasted only 30

minutes; and (5) the troopers did not use overt coercion—i.e., their tone was not hostile,

they did not display weapons or physically restrain him, and the door to the office was

unlocked at all times. None of these findings is clearly erroneous.

1 Although the troopers did not explicitly tell Mr. Ingino he was “free to leave,” they did not have to speak magic words for it to be clear that he was not under arrest and was free to leave. The issue is whether the facts and circumstances would suggest to a reasonable person in his shoes that he was not free to leave. At the start of the interview, one trooper told Mr. Ingino that they would leave their contact information with him following their conversation. And both troopers repeatedly reminded him that regardless of his answers, he would be “walking out.” App. 146–47, 210. These statements suggest the interrogation would not end with Mr. Ingino in handcuffs.

5 On appeal, Mr. Ingino emphasizes that the troopers improperly took advantage of

his compelled presence in the probation office.2 But because the mandatory probation

meeting had ended before the troopers’ questioning, the subsequent interrogation was not

part of that mandatory meeting. The troopers were not in the probation office when

Mr. Ingino arrived or when he took the required drug test. And the probation officer

testified that the troopers’ interrogation started only after she informed Mr. Ingino that he

had violated his probation and could expect a summons—meaning that the probation

meeting had finished. Only then did the probation officer inform Mr. Ingino privately

that the troopers wanted to speak with him. While she admitted she did not tell him

whether he needed to speak with the troopers, she testified that he said “Okay” in

response and did not demonstrate any resistance to the idea of speaking with them.

Furthermore, the probation officer did not participate in the later interrogation—which

might otherwise suggest that the troopers’ questions were part of the probation meeting.

Considering the totality of the circumstances—the brief duration of the interview,

the lack of overt coercive tactics, and being told that no matter what, “you[ are] walking

out,” App. 210—the District Court did not err in holding that Mr. Ingino was not in

custody under the classic factors.

We pause briefly to consider a handful of other, less-compelling arguments that

Mr. Ingino also raises. He claims he was ambushed by the troopers into a surprise

2 A probation meeting alone is not custodial for Miranda purposes. Minnesota v. Murphy,

(1984). Rather the argument is that the troopers took advantage of the Murphy ‘exception’ to get Mr. Ingino to talk.

6 interview. But the evidence introduced at the hearing dispels such an argument. Indeed,

he admitted in the interview that he knew the troopers were trying to reach him to discuss

one of the overdoses. So that could not have been coercive here.

Likewise, Mr. Ingino’s claim that the troopers verbally intimidated him does not

cross the line into coercion. The troopers informed him that federal prosecution would

likely yield a greater sentence than he would face in the state system, and the length of a

possible sentence was in some respects dependent on his willingness to answer the

troopers’ questions. Yet these statements were either readily obvious or already known

to Mr. Ingino, a person whose criminal history shows his familiarity with the criminal-

justice system. Plus, “[i]t is appropriate for an investigator to advise a suspect of the

potential course and consequences of a criminal investigation. Suspects frequently

confront difficult decisions about whether to defend against potential criminal charges or

to pursue resolutions that may ameliorate certain unpleasant consequences.” United

States v. Czichray,

(8th Cir. 2004). In other words, discussing future

arrest and criminal penalties “is part and parcel of the interrogation process.”

(quoting

United States v. LeBrun,

(8th Cir. 2004). The statements here fit

squarely within these acceptable areas of inquiry.

Finally, Mr. Ingino’s argument that his statements were involuntary because he

was under the influence of drugs during the interview cannot carry the day. It is true that

his earlier drug test was positive and that one of the troopers said that he “didn’t look too

hot.” App. 208. But the District Court credited the testimony of the two troopers and the

probation officer who, in their respective lines of work, are familiar with the symptoms of

7 someone under the influence, and each stated that Mr. Ingino did not seem like he was

under the influence. (The troopers also testified that they were unaware during the

interview that he had failed his earlier drug test.) And the District Court found, from both

the transcript and the interrogation recording, that he was coherent, articulate, and able to

answer questions with specificity throughout the interview. Mr. Ingino raises no new

grounds to disturb these findings.

* * *

Even if the troopers questioned Mr. Ingino following his probation meeting

because they knew he would be present there, the mandatory probation meeting had

concluded before the troopers spoke with Mr. Ingino. Moreover, Mr. Ingino assented to

their request for an interview, which lasted only 30 minutes. And the troopers did not use

coercive tactics. Based on the duration and nature of questioning, it was objectively

reasonable for Mr. Ingino to feel free to leave. So he was not “in custody” during this

interview. The Court will thus affirm the Order of the District Court, denying the motion

to suppress.

8