US v. Rogers
Filing
OPINION issued by Michael Boudin, Appellate Judge; David H. Souter, Associate Supreme Court Justice and Norman H. Stahl, Appellate Judge. Published. [09-2405]
Case: 09-2405
Document: 00116270092
Page: 1
Date Filed: 10/04/2011
Entry ID: 5584617
United States Court of Appeals
For the First Circuit
No. 09-2405
UNITED STATES OF AMERICA,
Appellee,
v.
BRIAN K. ROGERS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. George Z. Singal, U.S. District Judge]
Before
Boudin, Circuit Judge,
Souter, Associate Justice,*
and Stahl, Circuit Judge.
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.
October 4, 2011
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
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SOUTER, Associate Justice.
Date Filed: 10/04/2011
Entry ID: 5584617
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
Investigative Service (NCIS) was also notified.
Naval
Criminal
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 (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 (2004).
disposition,
it
would
be
premature,
and
may
Given this
ultimately
be
unnecessary, to examine the reasonableness of the five-year prison
sentence, which Rogers was also free to challenge.
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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
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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
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rights.
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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.
729 (1st Cir. 2010).
See United States v. Ellison, 632 F.3d 727,
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.
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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 selfincrimination, 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.”
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Miranda, 384 U.S. at
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444.
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Significant deprivation occurs in circumstances carrying a
“badge of intimidation,” id. at 457, or “inherent compulsions,” id.
at 467, 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
(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
(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 (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
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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
. . . ordered Rogers to return to his home.”
Not only was he under
a military order to be there at the time, but a reasonable person
could not have doubted that the commanding officer had been aware
of what was ahead and was purposely ordering his subordinate into
the company of the police and, shortly, the Naval investigator who
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gave him his particular instructions at the Air Station.
Entry ID: 5584617
Nor was
anything said or done at the house to relieve the force of the
order; the state and local police lacked the authority and NCIS
officer Ryan said nothing to Rogers while there.
See People v.
Kelley, 424 P.2d 947, 958-59 (Cal. 1967) (defendant subject to
military order to report for interrogation was in custody).
As a
consequence, this order reasonably carried at least (and probably
more than) what the Court of Military Appeals has described as the
“subtle coercion,” United States v. Schneider, 14 M.J. 189, 193
(C.M.A. 1982), and “subtle pressures,” United States v. Ravenel, 26
M.J. 344, 348 (C.M.A. 1988), to speak with the representatives of
authority
that
the
judges
of
that
court
understand
to
be
a
significant restraint on the liberty of a member of the armed
forces when questioned by military investigators about criminal
activity.
It is indeed just the inherently coercive force of
military organization implicated in questioning a service member
that
led
Congress,
years
before
Miranda,
to
reach
the
same
conclusions that the Court of Military Appeals thus expressed about
the subtle pressure or coercion to talk that comes with inquiry
conducted
through
channels
of
the
military
structure.
The
congressional response was a statutory requirement to warn of the
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right to silence without regard to any “custody” test before a
person operating under the Uniform Code of Military Justice may
even request a statement from a suspect, 10 U.S.C. § 831(b), lest
the statement be suppressed as evidence, § 831(d).
14 M.J. at 192-93.
the
services
is
See Schneider,
So it is fair to say that whenever a member of
questioned
in
circumstances
mandated
by
a
superior’s order, he is in the situation that Miranda was meant to
address, where the line between voluntary and involuntary response
is at least so blurred that the Fifth Amendment guarantee is in
jeopardy.
We accordingly infer that Rogers’s situation at the house
would have left any member of the armed services reasonably feeling
that he lacked free choice to extricate himself, and sufficiently
compelled to answer to authority.
Rogers was thus in custody for
purposes of Miranda, and for want of the required warnings his
statements made at the house must be suppressed from use in the
Government’s case in chief in any prosecution.
Nor do we see a sufficient reason to treat the subsequent
interrogation at the police station differently on the issue of
custody.
There was, to be sure, one new ingredient in the mix,
prior to the warning of rights, in the statement from Ryan that
Rogers was free to go.
But we do not put much weight on that,
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because Ryan also told Rogers that as a member of NCIS she was not
answerable to his command at the Air Station; by emphasizing that
she did not operate within the military command structure she
tended to undercut the force of her advice that he was free to
leave, which could reasonably have struck him as being contrary to
his commander’s order that placed him in police company to start
with.
It is in this way that the case differs from United States
v. Baird, 851 F.2d 376 (D.C. Cir. 1988), where an assurance of
freedom by a member of the Department of Transportation’s Office of
the Inspector General, with authority over the Coast Guard, could
release a member of the Guard from an order of his military
superior.
Hence, we think the line between perceived freedom to
leave without speaking and obligation to remain and respond is
obscured here, as it was at the house, and conclude that Rogers was
in custody subject to coercive influence to respond to questioning.
That conclusion brings with it the third issue. Although
the content of the subsequent warnings of rights is not claimed to
be inadequate to satisfy Miranda if warnings could be effective in
the circumstances, the motion to suppress raises the issue of their
efficacy.
This issue, in turn, divides into two others, owing to
the very fact that Rogers was questioned at length at the house
without benefit of warnings and was soon questioned on the same
subject after being warned.
Seibert addressed this sequence, and
under Justice Kennedy’s controlling opinion a court confronted with
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these facts must first determine the need for a special test for
Miranda sufficiency, and apply it when called for.
If the pre-warning questions occurred in circumstances
not
clearly
custodial,
without
manifesting
a
preplanned
interrogation, and reflecting no policy to diminish the Miranda
safeguards, the test for admissibility will be the familiar one.
The sufficiency of warnings given after casual questioning and
response, and the adequacy of a suspect’s subsequent agreement to
talk, will be examined under the usual standard of voluntary and
knowing waiver of rights, and no further curative action by the
police will be required for the admissibility of the subsequent
statements despite the suppression of the earlier ones.
Seibert,
542 U.S. at 620 (Kennedy, J., concurring); see Oregon v. Elstad,
470 U.S. 298 (1985). When, however, the police deliberately employ
a sequence of unwarned questioning producing disclosures, followed
by Miranda warnings, followed closely by similar questioning, the
warnings will not be taken as sufficient without curative steps to
demonstrate to a reasonable suspect that in practical terms he has
a genuinely free choice to decline to speak in response to the
subsequent questioning set to follow on the heels of his earlier
responses. Seibert, 542 U.S. at 620-21 (Kennedy, J., concurring).
Here we think the record speaks with a fair measure of
clarity in showing that the combined law enforcement authorities
deliberately planned to subject Rogers to unwarned questioning
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under conditions that would make it difficult for him to avoid
them.
They chose a time for executing the search warrant when
Rogers would not normally be at home and arranged to have him sent
where he would meet with the police by order of a superior military
officer.
As we have already mentioned, there was consequently a
military compulsion behind Rogers’s presence in the midst of the
activity going on at his own house, which is fairly understood to
carry with it that subtle coercion that the Court of Miliary
Appeals has recognized when questioning occurs in a military
setting without the congressionally mandated warnings.
The fact
that the Navy’s own investigator (who took part in the later police
station interrogation) refrained from joining in the questioning at
the house prompts the supposition that she held back there lest she
be required to give the statutory warning (along with a military
version of the Miranda warnings).
Instead, the conduct of the
proceedings was left to the discretion of the state and local
officers, whose calming representations to Rogers were punctuated
with the advice that, “[t]oday’s the day mister, today is the day.”
When the warnings were finally given at the police station, after
Rogers had already made the basic incriminating statements, they
were given in a way that tended to downplay the gravity of Rogers’s
situation.
The warnings came not from the officers who had
questioned him before, but from Ryan, the Naval investigator, who
prefaced them with the suggestion that no warnings would have been
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necessary at all but for the fact that an NCIS officer had to give
cautionary statements that might not have been required of the
regular police.
She thus added one more to a succession of
ambiguous signals, and it would be asking too much to claim that
the course of events was coincidental.
The adequacy of the
warnings must therefore be assessed with attention to the need for
curative action sufficient to apprise Rogers that despite the
incriminating disclosures already given he had a genuine choice
about
speaking
further
with
the
police,
as
required
by
the
controlling and plurality opinions in Seibert.
This requirement of a special test for the efficacy of
the warnings was not, of course, reached by the district court,
since any consideration of it was unnecessary owing to the court’s
conclusions on the custody issues.
We have reached it, instead of
remanding on it, because the basis for our conclusion is apparent
in the portions of the record bearing on those questions of custody
already reviewed.
For the final step raised by the appeal,
however, we think it would be prudent to remand the case to the
trial court for a final determination whether the warnings could be
effective in the circumstances.
So far as counsel before us have focuses attention on the
record, the indications are that the warnings were not up to the
task.
between
Nothing points to any significant break or distinction
the
invalid
questioning
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at
the
house
and
the
later
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interrogation. While Ryan’s participation might have signaled that
a new proceeding was under way, presenting a genuine choice to talk
or not, that view of events was ruled out by the continued presence
of the other police who had asked Rogers to go to the station for
more
formal
questioning,
that
is,
for
a
more
systematic
interrogation on the subject then under discussion. There was only
a very brief lapse of time between the last word at the house and
the resumption at the police station, and nothing points to any
advice to Rogers that he had the option of a fresh beginning
because his prior statements could not be used against him.
But we are still wary of finally concluding here that
adequate curative action was lacking, simply because the subject
got too little attention before us.
The briefs do not discuss the
matter of cure and efficacy, the district court said nothing on the
subject, and the oral argument before us did not address it with
the thoroughness it deserves.
Nor are we confident that the full
record that might be relevant in considering this issue is before
us, or even extant.
whether the
We therefore remand to consider under Seibert
statement
given at
the
police
station
should
be
suppressed along with the results of the preceding interrogation at
the house.
If the answer is no, the district court must determine
whether the conviction may be sustained by application of the
doctrine of harmless error; if yes, it must of course be vacated.
Remanded.
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