State of Maine v. Arbo

Maine Superior

State of Maine v. Arbo

DecidedApril 10, 2009

DocketKENcr-08-534

StatusUnpublished

This text of State of Maine v. Arbo (State of Maine v. Arbo) is published on Counsel Stack Legal Research, covering Superior Court of Maine primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State of Maine v. Arbo, (Me. Super. Ct. 2009).

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Opinion

STATE OF MAINE SUPERIOR COURT CRIMINAL ACTION KENNEBEC, ss. DOCKET NO. CR-08-534 ( ,._ ~"" l./ :.. } (\/\, \) ,..... .,.".' ' w» i"

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STATE OF MAINE

v. DECISION

BRIAN ARBO,

Defendant

Before the court is the defendant's motion to suppress.

On July 14, 2008, the defendant accompanied an Oakland police officer to

Augusta for purposes of taking a polygraph examination. The Oakland police officer

had contacted the defendant regarding allegations made against him by the young

daughter of a former domestic partner. The police officer had indicated to the

defendant that the best way to clear his name was to take a polygraph examination.

Months later, the defendant agreed to the examination. The defendant traveled with

the police officer to Augusta to take the polygraph examination. During the ride, the

Oakland police officer indicated that he did not remember whether they discussed the

allegations. The defendant did not indicate whether or not they discussed the

allegations during the ride down to the examination.

The defendant and the police officer arrived for the polygraph examination at

approximately 9:30 a.m. The defendant indicated in his testimony that he had worked

all night and had not slept since 10:00 p.m. the prior evening. However, on the video he

indicated that he was tired but had taken naps the day before and had been in bed by

7:00 p.m. and then up at 1:30 a.m. to deliver papers. He also indicated that he had eaten

that morning. 2

The defendant stated that he was aware that he did not have to talk to the

polygraph operator. He also acknowledged that the operator told him that they would

discuss the results of the test following his completion of the examination. Prior to the

examination, the defendant signed a written waiver of his Miranda rights. This

occurred at 10:30 a.m. (State's Ex. #2.) Following the completion of the polygraph

examination, including the polygraph examiner's follow-up questions, the defendant

signed a document indicating that he submitted freely to the examination, that he had a

right to leave at any time, and that no promises were made to him. (State's Ex. #3.)

The videotape demonstrates that the examination, the pre-examination

questions, and the post-examination questions were conducted entirely by the polygrah

examiner. The entire interview, both pre-test and post-test questions, was included on

the videotape. The Videotape (State's Ex. #1) also demonstrates that the defendant was

explained his Miranda rights and that he signed the document without any sort of

coercion or confrontation.

The defendant did not relate any statements regarding any coercion or

confrontation that did not appear on the videotape. The Videotape shows the entire

interaction between the operator and the defendant, including both his oral and written

statements. Further, the defendant's written confirmation that he took part in the

examination of his own free will was also on the videotape.

Discussion

The defendant argues that although the defendant may have waived his Miranda

rights to the polygraph examination, he did not waive his Miranda rights to the post

polygraph examination. The defendant also argues that the statements were not

voluntary. The State argues that the defendant was not in custody requiring Miranda 3

and secondly, that in the event that the court finds that he was in custody the defendant

did waive his Miranda rights, and finally that the statements given were voluntary.

Custody

After considering all of the factors in this case, the court finds and concludes that

the defendant was not in custody when he undertook the polygraph examination and

the follow-up questions. In order to find custody, the court must determine that there

was an actual formal arrest, restraint on freedom of movement to the degree associated

with a formal arrest, or that a reasonable person in the circumstances of the defendant

would have believed he was not at liberty to terminate the interrogation and leave.

State v. Higgins, 2002 ME 77,

may consider are set out in State v. Michaud, 1998 ME 251, 724 A.2d 1222, and include,

but are not limited to the following:

(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.

Id.

After considering all these factors, the court finds that the defendant was not in

custody. The videotape shows that although the polygraph examiner was persistent, he

was not confrontational nor was he argumentative during the interview. Furthermore,

the examiner made it very clear prior to the examination and during the examination 4

that the defendant was free to leave and that he was not going to be arrested. On

several occasions, the defendant did leave the room for purposes of using the bathroom

and prior to leaving did telephone someone to indicate that he was returning to the

Oakland Police Department. The defendant was not arrested by the Oakland Police

Department at that time.

Waiver of Miranda

Notwithstanding the court's determination that the defendant was not in

custody, the court will address the defendant's contention that he did not waive his

Miranda rights to the post-polygraph examination. In determining whether or not there

was any waiver of Miranda, the court must look at the totality of the circumstances to

determine whether the defendant did freely and voluntarily waive his Miranda rights.

See Oregon v. Bradshaw, 462 U.s. 1039, 1046 (1983). Wyrick v. Fields, 459 U.s. 42 (1982)

and other cases that follow Wyrick deal with the situation where the defendant is

subjected to custodial interrogation following a polygraph examination. The law quite

clearly indicates that the validity of any post-polygraph examination waiver depends

upon the totality of the circumstances under which the waiver occurs. See United States

v. Leon-Delfts, 203 F.3d 103, 111 (1st Gr. 2000). The rule set out in Wyrick is not a per se

rule but a determination by the court after considering all of the circumstances. Some of

the factors that the court may consider are as follows:

(1) whether the suspect consulted an attorney;

(2) whether the suspect requested the examination;

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