Opinion
AANCR170093332T
03-19-2019
STATE of Connecticut v. Douglas J. MEHAN
UNPUBLISHED OPINION
OPINION
Wilkerson Brillant, J.
The court rules on the defendant’s motion to suppress confessions, statements and/or admissions. On January 24, 2019, an evidentiary hearing was held on the defendant’s motion regarding the following evidence: (1) a body camera video (Defendant’s Exhibit A, also referred to as "D-Ex. A") the December 21, 2016 execution of a search warrant by the Milford Police Department; (2) the Milford Police Department’s arrest warrant of the defendant issued January 12, 2017; and (3) the Milford Police Department’s incident/investigation and Case supplemental report dated December 29, 2016. No witness testimony was provided. The defendant argues that the statements and confessions that were made during the search of his residence should be suppressed because he was in "custody" akin to a formal arrest and he was not given his Miranda warnings. In response, the State argues that Miranda warnings were not required because the defendant was not in custody akin to a formal arrest. Based on the findings of fact supported by the evidence and for the reasons stated herein, the court finds that the defendant was not in custody which would have entitled him to Miranda warnings as articulated in the following discussion, and denies the motion.
FACTS
The defendant, Douglas J. Mehan, resided at 32 Bray Avenue in Milford, Connecticut (residence). On December 21, 2016 at 6:36 a.m., the Milford Police Department (detectives/officers) executed a search warrant on the defendant’s residence (D-Ex. A). The detectives knocked on the defendant’s door and announced, "Milford Police." When the defendant opened the door, the detectives entered the residence and announced that they had a search warrant and were there to search the premises (D-Ex. A at 00:02:00). Although the detectives’ firearms were visible on their persons, the detectives did not draw their weapons at this time or at any time during the search of the residence (D-Ex. A). The defendant’s wife, Michele Mehan, and their fifteen-year-old juvenile son were present at the residence along with the defendant’s dog (D-Ex. A). A detective asked whether they would "crate" the dog or put him away (D-Ex. A). The dog was placed in the breezeway area of the residence which led to the backyard.
Detective Pecoraro asked the defendant whether he could speak to him separately and whether there were any weapons in the house. The defendant replied there were not except for some Boy Scout knives (D-Ex. A at 00:03:00). While the defendant’s wife and son remained in the living room, the defendant went with the detective to the dining room. The detective said he wanted to spare the defendant embarrassment. Detective Pecoraro told the defendant that someone from the residence had uploaded a video from a website on October 3rd (D-Ex. A at 00:03:15). Detective Pecoraro asked the defendant not to walk around and to keep his hands out of his pockets (D-Ex. A at 00:03:45). Detective Pecoraro told the defendant, "I think you know what I am talking about," and the defendant responded, "Yeah." The detective said the website is called "Omegle" (D- Ex. A at 00:03:46). The detective said, "Based on your reaction you don’t seem surprised," to which the defendant responded, "No ..." (D-Ex.A at 00:04:40) The detective asked the defendant whether he wanted to talk to him about it or at least point them in the right direction as to which device so they do not take all the devices. The defendant said, "Okay," and stood up but was told by the detective to take a seat (D-Ex. A at 00:05:00). Detective Pecoraro explained to the defendant how he conducts the search and told the defendant that if he tells the detective from which device the video was uploaded, the defendant would not "lose all the phones." The defendant sat with his head in his hands and the police told him to relax in a calm voice (D-Ex. A at 00:05:25). Once the defendant raised his head, the detective proceeded to explain that he does a full investigation and stated, "Short of something happening that’s crazy today, you will be with your family for Christmas and whatever we do is done by arrest warrant. Relax on that aspect of it" (D-Ex. A at 00:05:50). The detective stated that he needs the defendant to be upfront with him regarding how long and what devices were uploading it, as he does not want to take the defendant’s wife’s computer if nothing was done from there, "because [he] was going to check them all."
At this time, the defendant said, "Can I talk to you outside or some ..." (D-Ex. A at 00:06:00). The detective responded, "We can go outside." The defendant said, "I need to get shoes on." The detective responded that he just needs to see the shoes. At which time, the other detective asked the defendant whether there was a separate room they could go into instead and put the dog out back since it was "pretty cold outside." The detective said that no one would hear them in the breezeway area. He then and asked the defendant whether they could go into the breezeway area with the dog if the dog was not aggressive. The detectives told the defendant that they needed to maintain a "controlled environment." The defendant responded, "Gentleman, I understand" (D-Ex. A at 00:06:00-00:06:59). They decided to go into the breezeway area where the defendant was allowed to keep his dog with him and the two detectives were present during the questioning of the defendant. The dog became aggressive and was barking too loudly, and thus, the detective asked whether the dog could be placed in the backyard. The defendant responded, "Yes" and placed the dog outside in the back yard. The dog remained at the glass door the entire time looking at the defendant and detectives and scratching at the door (D-Ex. A at 00:07:05).
The detectives stood while the defendant sat on a large, upside down bucket/container and said to the detectives, "Alright, so, what’s the procedure, I know the device, yes, there is some on there ..." (D-Ex. A at 00:07:40). The detectives asked, "How much would you say, thousands?" The defendant responded, "A lot, not thousands and on only one device" (D-Ex. A at 00:07:45-00:08:03). A discussion continued about when the defendant’s interest started to which the defendant said it started a couple of months ago and that it was for "kicks."
Further discussion continued about the "Omegle" website, which the detective stated was a live streaming website. The detectives and the defendant discussed whether the defendant had done anything other than upload the site to his computer and they discussed what the defendant did for a living. The detective explained further that once they get the devices, they do an investigation and then eventually get an arrest warrant, and the defendant would go to court, and there would probably be a press release. The detectives discussed that the defendant’s life would change and that sometimes people get depressed or upset and they wanted to make sure that he is "okay." The defendant said "It’s stupidity." The detectives also explained that when he goes to court, the courts provide services and that he needs some help. The detectives discussed making sure the defendant and his family were safe. They discussed this situation to be like an "addiction." More discussion occurred and then the defendant showed the detectives where the computer was in the residence. The defendant gave the detective the password to the computer. The detectives asked whether there were any guns in the house to which the defendant replied, "No." The defendant stood up from where he was sitting and pointed to where the computer was. The defendant stated that he was the one viewing child pornography and he told the detectives which device possessed the child pornography (D-Ex. A at 00:12:00). The defendant then sat back down and started to ask a question by saying, "Can ..." and the detective asked the defendant whether he would like his wife to come in here so that they could briefly explain things and stated that they could leave his son "totally out" of this. The defendant responded, "Can I talk to her?" The detective then asked him what her first name was, and called for her to come into the breezeway.
When the defendant’s wife entered the breezeway, the defendant immediately gestured for her to come to him. She quickly sat on his lap and held him, physically comforting him by caressing his back and head (D-Ex. A at 00:13:00). The detective started to introduce himself to her, but the defendant raised his hand gesturing to the detective to stop talking and allow him to explain things to her. The detective respectfully and politely complied by allowing the defendant to proceed with the explanation to his wife (D-Ex. A at 00:13:45). The defendant told his wife that the police are there "because of him," because he had been watching child pornography and showed a video. The defendant told her he did something very stupid; that he was on a website called "Omegle;" that he showed a video; and that the laptop has a lot on it and he would be arrested (D-Ex. A at 00:14:00). Instantly upon hearing this, the detective immediately interrupted the defendant and said, "Not today. Not today" to remind the defendant that he would not be arrested that day (D-Ex. A at 00:14:21). Two detectives were present with the defendant and his wife during this discussion.
Soon after, one of the detectives left the defendant and his wife in the breezeway as he proceeded to look for computers, laptops, and electronic devices in the other room. One detective remained with the defendant and his wife. At certain times during the search, one detective was upstairs, out of sight. When Detective Pecoraro returned to the breezeway, the defendant’s wife was still sitting on his lap and the defendant immediately began talking to the detective. The defendant said, "You’re gonna hear this anyway, have you looked at it yet?" The detective replied that he had not seen the video as he did not want to open it in front of the defendant’s son. The detective said he just wants to make sure that he has the right one and he wanted the defendant to show him. Instead of showing him, the defendant began speaking about particulars of the child pornography and said, "I just want to be upfront with you." The defendant continued to discuss the particulars with the detective while his wife sat on his lap. The detective interrupted him by asking the defendant to come with him and told the defendant he can later return to the breezeway (D-Ex. A at 00:20:15-00:23:25).
The defendant showed the detective the devices and at the request of the defendant’s wife, the detectives told the wife that she could get their son ready for school (D-Ex. A at 00:23:25). There was a detective in the living room with the defendant’s son. The defendant’s son had taken his breakfast from the kitchen to drink in the living room, and had been sitting on the sofa having a casual conversation with one of the detectives. He eventually left for school. The detective then asked the defendant to have a seat on the sofa and the detective went outside to retrieve items from his vehicle to scan the information (D-Ex. A at 00:26:23). When the detective re-entered the residence, for the next twenty-five minutes the detective retrieved information from the devices. The defendant and his wife explained to the detective how to connect the computer to the television monitor. While this was transpiring, about ten minutes prior to the end of the search one of the detectives departed the residence and leaving only four detectives in the residence. During this time, the detective, the defendant and his wife discussed taking cruise vacations on Norwegian Cruise Lines as it was brought up while looking at the television monitor (D-Ex. A at 00:53:55).
At the end of the search, the detectives were polite and expressed their concern for the well-being of the defendant by suggesting that his wife stay with him that day and that he seek help (D-Ex. A at 00:57:54). The detective reiterated their assurance to the defendant and his wife that the defendant would not be arrested "today" because it would take the detective a "good week" to go through the computer, and stated again that the defendant will have Christmas, New Year’s etc., with his family and the rest will depend on the judge (D-Ex. A at 00:59:00). During this time, the detectives shared information about the process and answered the questions of the defendant’s wife and they had an informal and casual discussion. The detectives gave them their business cards and everyone said, "Thank you" (D-Ex. A at 1:01:35).
DISCUSSION
Statements made by a defendant during a custodial interrogation may not be used unless procedural safeguards were effectively employed to secure the defendant’s rights against self-incrimination. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). To establish entitlement to Miranda warnings, the defendant has the burden to show (1) that the statements were made while he was in custody, and (2) that the statements were made in response to police questions. See State v. Jackson, 304 Conn. 383, 416, 40 A.3d 290 (2012). The parties agree that the second inquiry has been established in that a police interrogation occurred. Therefore, the issue presented is whether the defendant was in "custody" for purposes of Miranda when the questioning occurred.
"In determining whether a person is in custody in this sense ... the United States Supreme Court has adopted an objective, reasonable person test ... the initial step [of which] is to ascertain whether, in light of the objective circumstances of the interrogation ... a reasonable person [would] have felt [that] he or she was not at liberty to terminate the interrogation and [to] leave." (Citations omitted; internal quotation marks omitted.) State v. Mangual, 311 Conn. 182, 193, 85 A.3d 627 (2014). If the answer to this first question is in the affirmative, then there is no need to inquire further. If not, the next step is to determine "whether a reasonable person in the defendant’s position would believe that there was a restraint on [her] freedom of movement of the degree associated with a formal arrest." (Footnote omitted; internal quotation marks omitted.) Id., 194. "Any lesser restriction on a person’s freedom of action is not significant enough to implicate the core ... concerns [of the fifth amendment to the United States constitution] that Miranda sought to address." (Internal quotation marks omitted.) State v. Edwards, 325 Conn. 97, 110, 156 A.3d 506 (2017). In the present case, the court finds that a reasonable person in the defendant’s position would not think that he was free to leave. During the execution of the search warrant, the police told the defendant to not go into the kitchen, to sit down, keep his hands out of his pockets, and that the detectives needed to maintain a controlled environment.
Therefore, the next inquiry is whether that same reasonable person would also believe that the police’s restraint on his freedom was associated with a formal arrest. State v. Mangual, supra, 311 Conn. 194. To determine whether a suspect was in custody for purposes of requiring Miranda warnings before responding to police questioning, the court considers the following nonexclusive list of factors: "(1) the nature, extent and duration of the questioning; (2) whether the suspect was handcuffed or otherwise physically restrained; (3) whether officers explained that the suspect was free to leave or not under arrest; (4) who initiated the encounter; (5) the location of the interview; (6) the length of the detention; (7) the number of officers in the immediate vicinity of the questioning; (8) whether the officers were armed; (9) whether the officers displayed their weapons or used force of any other kind before or during questioning; and (10) the degree to which the suspect was isolated from friends, family and the public." Id., 196-97.
Connecticut courts have analyzed whether a defendant was in "custody" for purposes of Miranda pursuant to the Mangual factors. In State v. Spence, 165 Conn.App. 110, 118-19, 138 A.3d 1048, cert. denied, 321 Conn. 927, 138 A.3d 287 (2016), the court found the defendant was not in custody where as many as ten police officers were present during the search of the defendant’s home; the defendant was not handcuffed, the questioning was informal and short in duration, and the police officers did not brandish their firearms. In State v. Edwards, 325 Conn. 97, 107-14, 156 A.3d 506 (2017), the court found the defendant was also not in custody where the detectives did not tell the defendant he was free to leave and the police initiated the contact. Additionally, in United States v. Faux, 828 F.3d 130, 139 (2d Cir. 2016), the court held that the defendant was not in custody for purposes of Miranda where there were twelve armed officers present during the search of the defendant’s home. Additionally, the court found that the defendant was "never told that she was free to leave or that she had a choice whether to respond to questioning ... Faux was told 20 minutes into the interview that she was not under arrest. Although Faux was never told she was free to leave in so many words, a lay person can reasonably be expected to have an understanding of what arrest means. [A] reasonable person told ... 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." (Citations omitted; footnote omitted; internal quotation marks omitted.) Id., 138, citing United States v. Newton, 369 F.3d 659, 677 (2d Cir. 2004), cert. denied, 543 U.S. 947, 125 S.Ct. 371, 160 L.Ed.2d 262 (2004).
In analyzing the present matter under the Mangual factors, the court finds that a reasonable person in the defendant’s position would not believe he was in custody similar to a formal arrest. First, in analyzing the nature, extent and duration of the questioning, the detectives informed the defendant and his wife that they were there to execute a search warrant. The questioning by the police of the defendant was courteous, respectful and calm; the tone of the detectives was extremely calm, conversational and without raised voices. The detectives asked the defendant’s wife to "crate" the dog or put the dog away. They asked to speak to the defendant separately to spare him embarrassment. The entire search was less than sixty minutes from the knock at the defendant’s door until the detectives’ departure from the residence. The initial questioning by the detectives was approximately thirteen minutes in length, followed by a short break while a detective searched for devices. The next round of questioning by the detectives of the defendant was for approximately three minutes in length, totaling approximately fifteen minutes of questioning. Although the detectives were present in the residence for less than sixty minutes, approximately forty-five of those minutes dealt with the search of the computers and devices in the residence.
Second, the defendant was never handcuffed and there was no evidence presented that the defendant was ever physically restrained by the detectives. Third, the officers explained to the defendant three separate times that he would not be arrested that day, and at the completion of the search warrant, the defendant was not arrested. The defendant was arrested over three weeks later after the arrest warrant was issued on January 12, 2017. Fourth, the detectives initiated the encounter with the execution of the search warrant of the defendant’s residence. Fifth, the questioning occurred in the defendant’s residence, a very familiar setting. It began in his dining room and at the defendant’s request the questioning moved to the breezeway area by the back door. While in the dining room, the defendant initially asked to go outside but because the weather was cold, a detective asked whether there was another room in which they could speak, that resulted in them going to the breezeway area by the back door. Sixth, the entire search of the home, which included the questioning of the defendant, was less than sixty minutes in length.
Seventh, there were five officers in total in the residence during the execution of the search warrant, and eventually one departed and four remained. While the defendant was being questioned, there were two officers present with him in his immediate vicinity. The other detectives were in the other rooms, at least one remained in the living room with the defendant’s son and allowed his son to get his breakfast from the kitchen. Eighth, the detectives were armed but did not brandish or display their weapons, and there is no evidence that the police used force of any kind at any time before, during or after the questioning. Lastly, the defendant was not isolated from his wife as she was allowed to be present, to sit on his lap and to physically comfort him.
Although the police initiated the encounter and were armed, these two factors are outweighed by the remaining eight Mangual factors which when considered in their totality demonstrate that the defendant was not in custody to the degree associated with a formal arrest. The present matter is distinguishable from the circumstances in Mangual, where the court found that the police created a dominating atmosphere in the defendant’s apartment by conducting a drug raid with seven police officers using a showing of force through brandishing handguns, rifles and tactical vests. State v. Mangual, supra, 311 Conn. 207-09. Ultimately, the court found that these circumstances would cause a reasonable person to believe they were in police custody despite not being placed under formal arrest. Id.
Unlike Mangual, in the present matter there were only five police officers initially present during the execution of the search warrant on the defendant’s residence, and the police did not use force or brandish their weapons. Prior to the search being completed, one detective departed causing four detectives to remain in the home. Therefore, when considering all the facts, the court finds that the defendant was not overwhelmed by the presence of the detectives, and thus, a reasonable person in the defendant’s position would not have believed that he was in police custody parallel to the formal arrest. See State v. Spence, supra, 165 Conn.App. 118 (finding that the defendant was not in custody for purposes of Miranda when as many as ten police officers assisted with the execution of a search warrant in defendant’s home).
Additionally, the defendant asserts that he was in custody for purposes of Miranda because he was not told by the police that he was free to leave. The defendant draws a comparison to the defendant in United States v. Griffin, 922 F.2d 1343, 1350-51 (8th Cir. 1990), where the court found the defendant was not told he was free to leave, and thus found the defendant was in custody. Although the detectives in the present matter did not tell the defendant that he was free to leave during the search of his home, the defendant did not seek to end the encounter or to leave the home, and he was told on three occasions during the search and interrogation that he would not be arrested that day. Thus, the defendant was never "completely at the mercy" of the detectives in his home. (Internal quotation marks omitted.) United States v. Faux, supra, 828 F.3d 139. The defendant assuredly was not arrested on the day of the search warrant and was arrested instead over three weeks later after the arrest warrant was issued on January 12, 2017. The defendant acknowledged this in his memorandum of law by stating that the detectives told the defendant that he would be arrested "in the coming months. That this was relayed to the defendant several times" (Defendant’s Memo, p. 2). In Griffin, the defendant was arrested immediately after the detectives questioned him. Moreover, further comparisons to the factual circumstances in Griffin illustrate the dissimilarity between that decision and the present matter. In Griffin, the detectives did not explain to the defendant the reason they required him to stay in their view at all times; the defendant was questioned for two hours; the defendant was isolated from his family during the questioning, and this environment caused the defendant to be "fearful." United States v. Griffin, supra, 922 F.2d 1355.
Unlike in Griffin, the detectives in the present matter did explain to the defendant the reason for their presence and the reason they required him to remain in their view in order "to have a controlled environment" as they needed to execute their search warrant of the electronic devices. The detectives were present for less than sixty minutes while they searched for the computers and devices which allegedly possessed child pornography. However, the detectives only questioned the defendant for a total of approximately fifteen minutes which occurred during the first twenty-three minutes of their presence in the home. Furthermore, the defendant was not isolated from his family, instead within eleven minutes of their presence in the home he was allowed to be physically comforted by his wife as she sat on his lap and remained on his lap until they moved to the living room to sit on the sofa. Also, unlike Griffin, this environment was not a "fearful" environment, because the defendant was not handcuffed, he was physically comforted by his wife during the questioning and discussion with the detectives, he was allowed to have his dog nearby, he was able to have his son get breakfast and go to school, and was told three different times he would not be arrested and in fact was not arrested that day, and did actually spend the holidays with his family as assured to him by the detectives. Under these present circumstances, it is reasonable to think that the defendant understood he was not under arrest and would not be removed from his home.
Additionally, the defendant argues that all the hallmarks of a formal arrest and custody were present, and thus, the defendant was in custody for purposes of Miranda . In response, the State argues that the detectives did not brandish their weapons nor was the defendant handcuffed or restrained while he was questioned in his home for a short period of time. Courts have recognized the following three "hallmarks" as indicative of a formal arrest: (1) the drawing of guns by the police, see United States v. Ceballos, 654 F.2d 177, 184 (2d Cir. 1981); (2) the use of handcuffs, see State v. Mangual, supra, 311 Conn. 207-08; see also United States v. Newton, supra, 369 F.3d 675; and (3) placing a suspect into a police vehicle, see United States v. Bullock, 632 F.3d 1004, 1015-16 (7th Cir. 2011). "No one factor in a custody analysis is outcome determinative." State v. Mangual, supra, 311 Conn. 208. The court finds that nothing within the evidence submitted suggests that the defendant was ever subject to any of the hallmarks associated with a formal arrest. The detectives did not draw their firearms upon the defendant at any time during the execution of the search warrant or during the interrogation. Furthermore, the defendant was neither handcuffed nor placed into a police vehicle during the execution of the search warrant or interrogation.
Therefore, in applying the factors enumerated in Mangual to the facts of the present matter, the court finds that a reasonable person in the defendant’s position would not have believed that he was in police custody to the extent mirroring a formal arrest. Thus, after considering the totality of the circumstances, the court holds that the defendant was not in custody, and therefore, he was not entitled to Miranda warnings.
CONCLUSION
Based upon the foregoing, the defendant’s motion to suppress is hereby denied.
SO ORDERED.