State of Maine v. Arbo
Opinion
STATE OF MAINE SUPERIOR COURT CRIMINAL ACTION
KENNEBEC, ss. DOCKET NO. CR-08-534 (
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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.
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
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, <j[<j[ 12-13, 796 A.2d 50, 54. Objective factors that the court 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. <j[ 4, 724 A.2d at 1226; Higgins, 2002 ME 77, <j[ 13, 796 A.2d at 54-55.
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
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;
(3) whether the waiver form initially presented clearly indicates that the post-
examination questioning is a possibility; and
(4) whether the post-examination was conducted by the polygraph operator or by investigating officers. See id.; United States v. Johnson, 816 F.2d 918, 921 nA (3d Cir. 1987); United States v. Gillyard, 726 F.2d 1426, 1429 (9th Cir. 1984).
After considering all of the circumstances, the court finds and concludes that the defendant waived his Miranda rights regarding the entire process. The court finds significant the fact that the operator of the polygraph was the same person who conducted the followup examination. Furthermore, the defendant acknowledged that he knew the polygraph examiner was going to ask him some questions following his completion of the polygraph test.
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