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The Miranda Analysis Is Different For the Military, Says the First Circuit

Brian Rogers learned the hard way that, sometimes, selling a computer has a downside. As many computer experts recommend, if you’re selling a computer you need to wipe the hard drive so that your financial information can’t be found by someone else.

Mr. Rogers, however, should not have been worried about the buyer of his computer finding his financial information. Rather, he should have worried about the purchaser finding his child pornography.

talk_costs_lives_vintage_us_ww2_war_poster-p228616753927944360t5wm_400Mr. Rogers was a non-commissioned Naval Officer at the Brunswick Naval Air Station in Maine. The police worked with the Naval Criminal Investigative Service (NCIS, for those who don’t watch TV). Law enforcement obtained a search warrant.

NCIS and the police worked out that they would search Mr. Rogers condo when he wasn’t there. They went in and searched the house while his pregnant wife and small child were home, but Mr. Rogers wasn’t.

Instead, as the search was going on, NCIS asked Mr. Rogers’ commanding officer to order him to go to the parking lot outside his home. They told him nothing else, except that his wife was ok.

Mr. Rogers went home. Armed police officers were in his house. NCIS wasn’t there, but other police were. An officer asked him if he wanted to talk, after explaining the nature of their search. The office explained that Mr. Rogers wasn’t under arrest, but that if Mr. Rogers was going to talk, “today’s the day.”

While they were talking, an NCIS officer arrived.

During that conversation, Mr. Rogers said that he downloaded the illegal images.

The Miranda Challenge

Mr. Rogers challenged that statement, saying that he was not free to resist the questioning, and the statement was un-Mirandized, so that it ought to be suppressed.

The district court denied the motion. Mr. Rogers entered a conditional plea, allowing him to appeal the district court’s Miranda decision. The district court sentenced him to five years in the meantime.

The First Circuit’s Decision

The First Circuit, in United States v. Rogers – an opinion written by retired Associate Supreme Court Justice Souter – held that Mr. Rogers’ statement should have been suppressed.

First, Justice Souter explained that the issue of whether a person is in custody is not really a question of whether the person is free to leave, but more whether he or she is free to stop talking – “the crux of the first element [of a Miranda violation] must be liberty to terminate the verbal engagement with the police, not the liberty to leave.”

When it comes to the freedom to stop talking, Justice Souter determined that the military is just different. As the court of appeals explained,

“[T]he 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.”

Because Mr. Rogers was ordered, literally, by his commanding officer, to be present for questioning, Justice Souter concluded for the First Circuit that he would not have felt free to terminate the questioning.

Because Mr. Rogers would not have felt free stop answering questions, his Miranda rights were violated.

The case was then remanded to see if a later curative instruction might have taken care of the Miranda violation.

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