U.S. v. Rogers

• Citation: 659 F.3d 74
• Decision Date: 04 October 2011
• Docket Number: No. 09–2405.,09–2405.
• Parties: UNITED STATES of America, Appellee,v.Brian K. ROGERS, Defendant, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

659 F.3d 74

UNITED STATES of America, Appellee,

v.Brian K. ROGERS, Defendant, Appellant.

No. 09–2405.

United States Court of Appeals, First Circuit.

Heard March 7, 2011.Decided Oct. 4, 2011.

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.

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 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 self-incriminating statements presents three principal issues, the first being whether he was in police custody subject to coercive pressure to speak, during his exchange with the police at his house, so that his statements there should be suppressed as taken without the warning required by Miranda. See United States v. Ellison, 632 F.3d 727, 729 (1st Cir.2010). The second is whether he was likewise in custody when he gave similar statements at the police station; and third, whether the military version of Miranda warnings he was given were ineffective to distinguish the later questioning from the unwarned interrogation at the house, in which case the later statements, too, should be suppressed. The district court concluded that Rogers was not in custody at the house or at the station, Miranda therefore being inapplicable.

Our review of the mixed questions of fact and law is de novo, subject to clear error review of purely fact issues. See United States v. Fernandez–Ventura, 132 F.3d 844, 846 (1st Cir.1998). We also “may accord some deference” to the district court's application of law to particular facts. United States v. Jackson, 608 F.3d 100, 102 (1st Cir.2010).

To begin with, we think Rogers was in custody at the house under conditions that required the Miranda warnings, the want of which compels suppression of the statements given there. Our understanding of those conditions, like the district court's, rests on the careful report of a magistrate's findings, set out in far greater detail than the summary we have just given, and the dispositive basis for our disagreement with the district court goes to the weight to be assigned to the influence of military authority on someone in Rogers's position when subject to the order he was given on the morning he was questioned.

Our assessment of the significance of that order is premised on the psychological insight that prompted adoption of the Miranda requirement to warn of the rights to silence and counsel, and the risks of speaking. The point of Miranda was to preserve the suspect's Fifth Amendment privilege against compelled self-incrimination, be it by confession or admission, during “custodial interrogation,” whether the questioning occurs in traditionally formal custody or while a suspect is “otherwise deprived of his freedom of action in any significant way.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602. Significant deprivation occurs in circumstances carrying a “badge of intimidation,” id. at 457, 86 S.Ct. 1602, or “inherent compulsions,” id. at 467, 86 S.Ct. 1602, or as the Supreme Court later put it, in circumstances that “blur[ ] the line between voluntary and involuntary statements, and thus heighten[ ] the risk” that the Fifth Amendment privilege will not be appreciated, Dickerson v. United States, 530 U.S. 428, 435, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). Over the years the effort to test for custodial conditions that make it hard to tell where willingness to speak would end and unwilling submission to questioning would begin has boiled the enquiry down to two elements: whether a reasonable person in the circumstances would have felt “at liberty to terminate the interrogation and leave,” Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995), and if not, whether those circumstances would have been likely to coerce a suspect to engage in back and forth with the police, as in the paradigm example of traditional questioning, Berkemer v. McCarty, 468 U.S. 420, 436–37, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984).

When events unfold as they did here, the crux of the first element must be liberty to terminate the verbal engagement with the police, not the liberty to leave; Rogers, after all, arrived home to find three police officers in control of his house under the authority of a warrant, questioning his pregnant wife. The test must thus be adjusted to look for a sense of freedom to limit conversation that would have been felt by someone with liberty to depart, and while a suspect questioned on his premises during a search does not necessarily lack that freedom, Rogers would naturally have felt close to the limit of voluntary action. He received no indication that he could avoid the officers then in control of his dwelling, and although he was told that he would not be arrested and taken away, he was not advised that he was free to have nothing to do with the enquiring police officers while they were there. Indeed, as against the vague question, “Still cool talking with me?”, he was told that the time had come to say whatever he might have to say on the subject of his possession of the pornography: “Today's the day mister, today is the day.”

But the most significant element in analyzing the situation is that the military had made certain that Rogers did not walk into it voluntarily, or confront the police with free choice to be where he was. The government was realistic when it wrote in its brief that “Rogers's commander at the ... Naval Air Station ......