United States v. Rogers

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.
 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 (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). 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.

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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. 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.

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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 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

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444. 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. 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). See Schneider,

14 M.J. at 192-93. So it is fair to say that whenever a member of

the services is 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. Nothing points to any significant break or distinction

between the invalid questioning 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. We therefore remand to consider under Seibert

whether the 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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