Opinion
CUMCD-CR-2021-04648
01-08-2024
STATE OF MAINE, Plaintiff v. BRANDON LIBBY, Defendant
MOTION TO SUPPRESS PURSUANT TO M.R.CRIM.P. 41A
The United States Supreme Court categorically prohibits the practice of delayed Miranda warnings. The Supreme Court recognized that a two-part interrogation tactic threatened the Fifth Amendment's guarantee that no one could be forced to incriminate themselves:
Because the question-first tactic effectively threatens to thwart Miranda's purpose of reducing the risk that a coerced confession would be admitted, and because the facts here do not reasonably support a conclusion that the warnings given could have served their purpose, Seibert's post warning statements are inadmissible.Missouri v. Seibert, 542 U.S. 600, 616 (2004). The use of this two-part tactic in the interrogation of Mr. Libby carries with it a consequence under Maine law for police who fail to follow the warn first procedure. Maine has specifically adopted Justice Kennedy's concurrence from Seibert as the standard to be applied in Maine:
We have previously described the holding in Seibert as standing for the proposition that "when the police delay giving a Miranda warning until after confession in a strategic effort to coerce the confession, the police misconduct may sufficiently taint all of the individual's statements, notwithstanding
later warnings, and suppression is required." State v. Dodge, 2011 ME 47, ¶ 18 n. 8,17 A.3d 128 (emphasis added) (citing Seibert, 542 U.S. at 617,124 S.Ct. 2601 (plurality opinion)). We now follow the majority of the federal circuits in applying Justice Kennedy's Seibert analysis. Accordingly, the State bears the burden of demonstrating by a preponderance of the evidence that the two-step procedure was not deliberately employed to undermine the efficacy of the Miranda warnings. Williams, 681 F.3dat41; United States v, Stewart, 536 F.3d 714, 719 (7th Cir.2008); Ollie, 442 F.3d at 1142-43. In determining whether the procedure was deliberate, courts must consider "the totality of the objective and subjective evidence." Williams, 681 F.3d at 41 (quoting United States v. Capers, 621 F.3d 470, 479 (2d Cir,2010)); see also United States v. Elzahabi, 557 F.3d 879, 884 (8th Cir.2009); Williams, 435 F.3d at 1158-59State v. Nightingale, 58 A.3d 1057, 1067-68 (2012). The totality of the circumstances in this case demonstrate that the Maine State Police used a procedure that was designed to undermine the efficacy of the warnings he was eventually given at the hospital
In Berkemer v. McCarty, the Supreme Court indicated that the standard of arrest would afford sufficient protection and require Miranda warnings in the event such a tactic was used,
We are confident that the state of affairs projected by respondent will not come to pass. It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a "degree associated with formal arrest." California v. Beheler, 463 U.S. 1121,1125,103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983) (per curiam). If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him "in custody" for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. See Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711,714, 50 L.Ed,2d 714 (1977) (per curiam).468 U.S. 428,441 (1984). In Berkemer, the Court was addressing the defendant's argument that the fact specific analysis of custody would lead to the police delaying formal arrest until such time as the suspect had made incriminating statements. In Mr.
Libby's case, the issue is also custody and tire timing at which the police were required to provide Miranda warnings. Mr. Libby asserts that he was in custody for purposes of Miranda when Detective Edstrom rode with him to the hospital.
Custody for purposes of Miranda warnings, has generated a significant amount litigation when there is something less than formal arrest. Mr. Libby asserts that his freedom of movement was sufficiently restricted such that he was functionally under arrest:
A subject is "in custody" if he is subjected to either (1) a formal arrest (which the parties agree was not the case here), or (2) "a restraint on freedom of movement to the degree associated with a formal arrest." State v. Michaud, 1998 ME 251, ¶ 4, 724 A.2d 1222 (quotation marks omitted) (alteration omitted). To determine whether Bryant was restrained to the degree associated with a formal arrest, we ask "whether a reasonable person, standing in the defendant's shoes, would have felt he or she was not at liberty to terminate the interrogation and leave." Bragg, 2012 ME 102, ¶ 8, 48 A.3d 769 (quotation marks omitted). In making this objective determination, we consider various factors, viewing them in their totality: (1) the locale where the defendant made the statements; (2) the party who initiated the contact; (3) the existence or non-existence of probable cause to arrest (to the extent communicated to the defendant); (4) subjective views, beliefs, or intent that the police manifested to the defendant, to the extent they would affect how a reasonable person in the defendant's position would perceive his or her freedom to leave; (5) subjective views or beliefs that the defendant manifested to the police, to the extent the officer's response would affect how a reasonable person in the defendant's position would perceive his or her freedom to leave; (6) the focus of the investigation (as a reasonable person in the defendant's position would perceive it); (7) whether the suspect was questioned in familiar surroundings; (8) the number of law enforcement officers present; (9) the degree of physical restraint placed upon the suspect; and (10) the duration and character of the interrogation. Michaud, 1998 ME 251, ¶ 4, 724 A.2d 1222; see also State v. Jones, 2012 ME 126, ¶ 22,55 A.3d 432 ("We consider these factors in their totality, not in isolation." (quotation marks omitted)). 7[¶ 11] The totality of the factors establishes that Bryant was not in custody at any point during the interview conducted in the bedroom by Bosco, the interview conducted in the cruiser by Bosco and Andrews, or the walk-through reenactment in the apartment. Throughout the interviews, the detectives repeatedly asked Bryant's permission to speak with him, and Bryant repeatedly consented. See State v. Nightingale, 2012 ME 132, ¶ 17, 58 A.3d 1057 (suspect was not in custody where he voluntarily participated in an interview with police), cert, denied, __ U.S.___, 133 S.Ct. 2798, 186 L.Ed.2d 864 (2013); State v. Nadeau, 2010 ME 71, ¶ 55, 1 A.3d 445 (suspect was not in custody in his dorm room where he consented to the police's request to enter his room). The detectives did not physically restrain Bryant, see State v. Bleyl, 435 A.2d 1349,1358-59 (Me.1981) (lack of restraint on defendant at the time of questioning is relevant to custody determination), and they repeatedly told Bryant that he was not under arrest and was free to terminate
the conversation and leave at any time; in fact, Bryant did leave at the end of the interviews, see Nightingale, 2012 ME 132, ¶¶ 17-18, 58 A.3d 1057 (suspect was not in custody where the police informed him that he could terminate the interview at any time, and where the suspect did terminate the interview). Both the detectives and Bryant remained calm and non-confrontational throughout the entire encounter. See Nadeau, 2010 ME 71, ¶ 55, 1 A.3d 445 (suspect was not in custody where the police officers' interview style was "relatively low-key and non-confrontational").State V. Bryant, 97 A.3d 595, 599-600 (2014). The fact that the first stage of the interview was non-confrontational and conducted in the ambulance or hospital is not conclusive. The arrest scene itself had many police personnel milling around it and surrounding it:
While Maine has historically found interrogations in familiar surroundings are not custodial, other jurisdictions have not given that factor conclusive weight. The First Circuit has recognized even interrogations in suspects home can objectively be custodial: The government argues that the physical control was necessary to preserve potential evidence within the house and protect the safety of the officers. While that may be so, this justification does not answer the very different question of whether a reasonable person, awakened at 6:25 AM by law enforcement officers (one with an unholstered gun), who is interrogated for up to two hours and not permitted freedom of movement within his own home, would believe he was not at liberty to terminate the interrogation and leave. We believe that a reasonable person in Mittel-Carey's situation would conclude that he was not free to do so.United States v. Mittel-Carey, 493 F.3d 36,40 (1st Cir. 2007). While the appropriate analysis remains a look at the entirety of circumstances, the First Circuit has identified many of the same factors required by Maine. Moreover, the behavior by law enforcement and the effectiveness with which law enforcement control the scene can render a suspect's home as coercive an environment as any other environment:
Other Circuits have taken similar approaches. The Second Circuit has held that an in home interrogation becomes custodial once handcuffs are employed even when the suspect is told he is not under arrest: Having considered all the circumstances presented here, we conclude that a reasonable person would have understood that his interrogation was being conducted pursuant to arrest-like restraints. Although a reasonable person told, as Newton was, that he was not under arrest would likely have understood that he was not about to be removed from his home to the
police station - a significant factor in assessing the degree to which one is at "the mercy" of the authorities, Berkemer v. McCarty, 468 U.S at 438, 104 S.Ct. 3138 - a reasonable person would also have understood that as long as the handcuffs remained in place, his freedom of movement, even within his home, would be restricted to a degree comparable to that of an individual placed under formal arrest.United States v, Newton, 369 F.3d 669, 677 (2nd Cir. 2004). Although recently criticized for an outdated standard, in the Ninth Circuit, accusatory questioning even after the suspect is told they are free to leave and terminate the questioning can turn into custodial interrogation because of the interrogation tactics used.
[The defendant] was questioned in a closed FBI car with two officers for well over an hour while police investigators were in and around his house. The agents allowed him to repeat his exculpatory story, then for 15 minutes confronted him with evidence of his guilt, and told him it was time to tell the truth, but did not advise him of his rights. In such circumstances a reasonably innocent person could conclude that he was not free to leave.United States v. Lee, 699 F.2d 466,468 (9th Cir. 1982) (internal citations omitted). The Problem here is not that the police conducted themselves unprofessionally with respect to Mr. Libby, but that were avoiding the warn first procedure preferred by the United States Constitution. The problem is that the police played it too close to the custody line and then crossed over the line requiring Miranda sooner instead of later.
Justice Souter has suggested that there is some obligation by the police to let suspects know that they need not have any discussion with them. Justice Souter, sitting in the First
Circuit has held similar circumstances amount to custody:
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 bj' 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."
United States v. Rogers, 659 F.3d 74, 78 (2011). While Rogers is ultimately distinguishable from this case because Mr. Rogers was in the military and ordered to go home, they are similar in that Detective Edstrom was not inclined to tell Mr. Libby he did not have to talk with them.
The Maine Supreme Judicial Court has determined that custody can result from requests like the request made by Detective Edstrom. The Law Court has made a finding of custody based on removal from the sight of arrest:
In this case, although Hassan initially agreed to go to the police station, and stated at the beginning of the interview that he felt free to leave, he was interviewed in a small, windowless room in the police station, with the door closed at all times. The police station was eight miles from Hassan's home and he had no means of transportation. Like the defendant in Bridges and unlike the defendant in Higgins, Hassan did not initiate the contact with the police. Three uniformed officers initiated the contact with Hassan at his home and, although he went to the station voluntarily, it was in the back of a police cruiser at the request of the detective. Although the detective initially indicated that Hassan would not be arrested that day, at some point during the interview, the decision was made to keep Hassan in custody. The detective told Hassan that all of the evidence pointed to him, that he was the only suspect, that his voice was on tape, and that he should be a man and "stop bullshitting." Further, during the course of the interview, Hassan manifested his belief that he was not free to leave and the detective did nothing to reassure Hassan at that time that he was still free to leave, Hassan stated several times that he had to go to work, but the detective did not tell him that he could. Importantly, Hassan also stated to the officer, "if I leave right now, I'm going to jail," to which the detective responded, "I don't know that.
Uniformed officers make that decision." Hassan was repeatedly told that all of the evidence pointed to him, and that the police had a recording of his voice making the bomb threat. At least from the time in the interrogation when the detective said, in response to Hassan's question about going to jail, "I don't know," a reasonable person in Hassan's position would have believed that he was the focus of the investigation, and was not free to leave. Although Hassan was never subjected to physical restraint, and the duration of the interview itself was only
forty-five minutes, weighing all of the factors and viewing the totality of the circumstances, including Hassan's status as an immigrant on probation for a juvenile offense, that he was miles from his home without transportation, and that the detective made it clear to Hassan that he was the only suspect, a reasonable person in Hassan's position would not have felt free to leave the police station. Hassan made his potentially incriminating statements after the point in the interview that the interrogation became custodial.State v. Hassan, 925 A.2d 625, 630-31 (2007). Under the objective standard required in such cases, Mr. Libby would have understood that he was not free to terminate his contact with the officers. While Mr. Libby voluntarily engaged in conversation with the officers, it would have been clear that he was being required to talk with Detective Edstrom, that he was not just free to go given the police presence with him in the ambulance, that he had just been just been detain by a police dog. Mr. Libby was in custody when he was in the ambulance.
Mr. Libby asks this Court to review the significance of the failure to scrupulously honor his invocation of the Fifth Amendment as it reflects on the police use of a talk first strategy instead of a warn first strategy. Not all violations of Miranda require suppression of the unwarned statement;
We must conclude that, absent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion. A subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.Oregon v. Elstad, 470 U.S. 298, 314 (1985). Elstad characterized the Miranda violation at issue there, as technical, and used voluntariness to minimize its impact. There is something categorically different from the chance stop in the living room to let his mother know he was being arrested for a burglary that elicited a response and having Detective Edstrom ride in the ambulance to develop rapport and get him talking.
Mr. Libby asserts that the warning given in this case could not have functioned effectively because the warning was never meant to be honored. Under the circumstances here, no one could have believed they had an actual choice to remain silent:
The threshold issue when interrogators question first and warn later is thus whether it would be reasonable to find that in these circumstances the warnings could function "effectively" as Miranda requires. Could the warnings effectively advise the suspect that he had a real choice about giving an admissible statement at that juncture? Could they reasonably convey that he could choose to stop talking even if he had talked earlier? For unless the warnings could place a suspect who has just been interrogated in a position to make such an informed choice, there is no practical justification for accepting the formal warnings as compliance with Miranda, or for treating the second stage of interrogation as distinct from the first, unwarned and inadmissible segment.Seibert, at 611-12. Mr. Libby asserts that the warnings given at the hospital could not have functioned as envisioned by the Supreme Court.
Robert C. Andrews' Bar Number 8980 117 Auburn St., Portland, Maine 04103 207-879-9850