659 F.3d 74 (1st Cir. 2011), 09-2405, United States v. Rogers

Docket Nº:09-2405.
Citation:659 F.3d 74
Opinion Judge:SOUTER, Associate Justice.
Party Name:UNITED STATES of America, Appellee, v. Brian K. ROGERS, Defendant, Appellant.
Attorney:Robert C. Andrews was on brief, for appellant. Margaret D. McGaughey, Appellate Chief, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.
Judge Panel:Before BOUDIN, Circuit Judge, SOUTER, Associate Justice,[*] and STAHL, Circuit Judge.
Case Date:October 04, 2011
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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659 F.3d 74 (1st Cir. 2011)

UNITED STATES of America, Appellee,

v.

Brian K. ROGERS, Defendant, Appellant.

No. 09-2405.

United States Court of Appeals, First Circuit.

October 4, 2011

Heard March 7, 2011.

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Robert C. Andrews was on brief, for appellant.

Margaret D. McGaughey, Appellate Chief, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellee.

Before BOUDIN, Circuit Judge, SOUTER, Associate Justice,[*] and STAHL, Circuit Judge.

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SOUTER, Associate Justice.

Brian Rogers sold a personal computer, in which the buyer found what he correctly thought was child pornography. He gave the material to the local police in Brunswick, Maine, who enlisted the help of the state's computer crime unit, and because Rogers was a non-commissioned Naval officer at the Brunswick Naval Air Station, the Naval Criminal Investigative Service (NCIS) was also notified. After a search of his house and interrogation there and at the Brunswick police station by local, state, and federal investigators, he was charged with unlawful possession of child pornography under 18 U.S.C. §§ 2252A(a)(5)(B), 2256(8)(A). He pleaded guilty, though reserving the right to appeal the district court's denial of his motion to suppress his statements as having been taken in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We now hold that the questioning at the house without warning of rights violated Miranda and remand for further consideration of the sufficiency of any curative action in support of the subsequent Miranda warnings, as required by Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004). Given this disposition, it would be premature, and may ultimately be unnecessary, to examine the reasonableness of the five-year prison sentence, which Rogers was also free to challenge.

The Maine authorities obtained a warrant to search the small condominium (including a computer located there) that Rogers occupied with his pregnant wife and small child, and they made plans to conduct the search on a morning when Rogers would be on duty at the Air Station. Two members of the NCIS (one of whom was Heather Ryan) requested Rogers's commanding officer to order him to report to them in the parking lot, where they instructed him that he needed to go home, but gave no further explanation beyond assuring him that his wife was all right.

When he arrived, an unmarked police cruiser with two officers was outside, along with an unmarked van used by Maine's computer crime unit. Inside his house were a local officer in plain clothes and two state officers in battle dress with visible side arms. One of them explained the circumstances to Rogers when he entered the house, and the local officer then joined them in the living room, leaving one state officer with Rogers's wife in the kitchen. The state officer told Rogers that he was not about to be arrested and suggested reassuringly that the police were concerned not with the mere presence of child pornography on the computer but with its production. In response to questions, Rogers first denied he had downloaded the material, but eventually admitted to it. Because of other activity in the room, the Brunswick officer suggested they go elsewhere, and Rogers chose the driveway, where he agreed to speak further. When he asked if Rogers had anything further to tell him on the subject, the officer added, " [t]oday's the day mister, today is the day." In the meantime Ryan arrived, though she asked no questions.

Having interviewed him for about fifty minutes in and outside of his house, the local officer asked if Rogers would come to the police station for more formal questioning, and he agreed. He and his wife drove to the station house, where the officer and Ryan questioned him, after reassurances that he would not be arrested that day and that " we're not forcing you to be right here.... that door's unlocked [and] [n]obody's going to jump out and try to stop ya...." These representations were spliced into Ryan's explanation that Rogers was free to go, that she was a

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civilian NCIS officer who did not work for Rogers's command, and that as an NCIS officer she was required to read from a " Military Suspect's Acknowledgment and Waiver of Rights" form. She proceeded to advise Rogers of his right to remain silent, that incriminating use could be made of any statement, of his right to paid civilian or free military counsel who could be present at the interview, and of the right to stop the interview. Rogers said he just wanted to " get this over with," agreed to talk, and signed a waiver of rights. After a change of location, he answered questions, adding further detail to the answers he had already given at his house, and about an hour after arriving at the station he left with his wife. Throughout the two periods of questioning no voices were raised, and at no time did Rogers show any sign of distress.

Rogers's motion to suppress his...

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