United States District Court, D. Maine
ORDER ON MOTION TO SUPPRESS
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
Ocean, charged with one count of engaging in a conspiracy to
distribute cocaine base, seeks to suppress statements he made
to law enforcement officers during their investigation on the
grounds that he was in custody during the interrogation and
was never read his Miranda rights and that, in any
event, his statements were not voluntary. The Court held an
evidentiary hearing on May 18, 2016, at which both the
involved officers and Mr. Ocean testified and other record
evidence was admitted. The Court denies the motion to
suppress because it concludes that Mr. Ocean was not in
custody during the police interview and that Mr. Ocean gave
his statements voluntarily.
February 12, 2015, a federal grand jury indicted Akeen Ocean
along with ten others, charging them with engaging in a
conspiracy to distribute cocaine base. Indictment
(ECF No. 3). Mr. Ocean pleaded not guilty to the charge on
February 20, 2015. Entry (ECF No. 74). On September
9, 2015, Mr. Ocean moved to extend the time for filing
pretrial motions, Def.’s Mot. to Re-Open Pretrial
Mots. Deadline (ECF No. 273), and moved to suppress
evidence, the recovery of which he contended violated the
United States and state of Maine constitutions.
Def.’s Mot. to Suppress Statements Obtained in
Violation of Def.’s Const. Rights (ECF No. 275).
On September 10, 2015, the Government moved to strike Mr.
Ocean’s motion to suppress as untimely and failing to
comply with Local Rule 147(a), Gov’t’s Mot.
to Strike Def.’s Mot. to Suppress (ECF No. 276),
and also objected to Mr. Ocean’s late filing and motion
to reopen the pretrial motions deadline.
Gov’t’s Obj. to Reopen Pretrial Mots.
Deadline (ECF No. 277).
September 14, 2015, Mr. Ocean filed an amended motion, asking
the Court to reset the pretrial motions deadline, Am.
Def.’s Mot. to Re-Set Pretrial Mots. Deadline (ECF
No. 280), and also submitted an amended motion to suppress.
Am. Def.’s Mot. to Suppress Statements Obtained in
Violation of Def.’s Constitutional Rights (ECF No.
281) (Def.’s Am. Mot.). On September 17, 2015,
the Government objected to Mr. Ocean’s motion to reopen
the pretrial motions deadline, Gov’t’s Obj.
to Reopen Pretrial Mots. Deadline (ECF No. 283), and on
September 28, 2015, the Government moved to strike Mr.
Ocean’s amended motion to suppress.
Gov’t’s Mot. to Strike Def.’s Am. Mot.
to Suppress (ECF No. 288). On October 14, 2015, Mr.
Ocean responded to the Government’s objection to the
resetting of the pretrial motions deadline, Resp. to
Gov’t’s Obj. to Re-Set Pretrial Mots.
Deadline (ECF No. 310), and on October 15, 2015, Mr.
Ocean responded to the Government’s motion to strike
his motion to suppress. Reply to Gov’t’s Mot.
to Strike Def.’s Mot. to Suppress (ECF No. 312).
December 18, 2015, the Court granted Mr. Ocean’s motion
to reset the pretrial motions deadline, dismissed his
original motion to suppress as moot, and denied the
Government’s motion to strike Mr. Ocean’s motion
to suppress and his amended motion to suppress. Order on
Pending Matters (ECF No. 336). Subsequently, on January
15, 2016, the Government filed a response to Mr.
Ocean’s amended motion to suppress.
Gov’t’s Obj. to Def.’s Am. Mot. to
Suppress (ECF No. 355) (Gov’t’s
Opp’n). Accompanying its response, the Government
filed an affidavit of Detective Martin Podsiad, Aff. of
Martin Podsiad (ECF No. 355-1) (Podsiad Aff.),
an audio recording of an interview of Mr. Ocean conducted by
law enforcement on September 4, 2014, (ECF No. 355-2), and
the transcripts of that interview. 9/4/2014 Interview of
Akeen Ocean. (ECF Nos. 355-3, 355-4) (Tr.).
February 12, 2016, Mr. Ocean filed a motion to request a
hearing on his motion to suppress, Def.’s Mot. to
Request Hr’g on Mot. to Suppress Statements (ECF
No. 373) (Mot. for Hr’g), and an affidavit in
support of his motion to suppress. Aff. in Supp. of Mot.
to Suppress Statements. (ECF No. 373-1)
(Def.’s Aff.). Mr. Ocean filed a reply to the
Government’s response on February 29, 2016.
Def.’s Reply to Gov’t’s Obj. to
Def.’s Mot. to Suppress (ECF No. 380)
(Def.’s Reply). The Government filed a
sur-reply on March 21, 2016. Gov’t’s
Sur-Reply in Obj. to Def.’s Am. Mot. to Suppress
(ECF No. 398). The Court held an evidentiary hearing on Mr.
Ocean’s motion to suppress on May 18, 2016.
Entry (ECF No. 443) (Suppression
FINDINGS OF FACT
early September, 2014, as part of the investigation into the
illegal activities of a New Haven, Connecticut based street
gang known as the Red Side Guerilla Brims (RSGB), several
officers and agents from the New Haven Police Department
(NHPD) and the New Haven Office of the Bureau of Alcohol,
Tobacco, Firearms and Explosives (ATF) travelled to Bangor,
Maine to work with Maine Drug Enforcement Agency (MDEA)
agents in conducting interviews and engaging in enforcement
activity. Podsiad Aff. at 1. On the afternoon of
September 4, 2014, Detectives Martin Podsiad, Josh Kyle, and
Alberto Merced of the NHPD interviewed Mr. Ocean concerning
his knowledge of the RSGB activity. Id.
Detectives were dressed in plain clothes, not wearing
anything that identified them as police officers, and their
service weapons were concealed under their clothing.
Id. at 2. Their badges were on their belts.
Suppression Hr’g. Not long after arriving at
Mr. Ocean’s residence, while walking up the driveway,
the Detectives observed Mr. Ocean and a woman on the porch of
his apartment. Id. The woman went inside the
apartment before the officers arrived. Id. Mr. Ocean
remained standing on the porch and the three detectives
arrived and stood in his driveway, approximately 10-15 feet
away from Mr. Ocean. Id.
Podsiad told Mr. Ocean that they were police officers, that
they were not there to arrest anyone, and that they simply
wanted to talk. Podsiad Aff. at 2. Detective Podsiad
explained to Mr. Ocean that they were from New Haven,
Connecticut and were working on a federal investigation into
some illegal activity in the Bangor and New Haven areas.
Id. Detective Podsiad was the only detective who
spoke to Mr. Ocean while the detectives stood in the
driveway. Suppression Hr’g. Detective Podsiad
provided Mr. Ocean with some additional details, and Mr.
Ocean initially claimed that he did not know anything.
Podsiad Aff. at 2. Detective Podsiad explained to
Mr. Ocean that all he wanted to do was talk and that he was
not there to arrest Mr. Ocean or search his residence.
Id. Upon hearing this, Mr. Ocean indicated that he
would talk to the Detectives. Id.
Detective Podsiad suggested that they get off the porch and
talk in the apartment, Mr. Ocean indicated that he did not
want to do that as his young son was inside. Id.
When Detective Podsiad suggested that they just talk on the
porch, Mr. Ocean expressed reluctance about standing on his
porch and talking to the three Detectives. Id.
Detective Podsiad then suggested that his vehicle was up the
street and they could go sit in the vehicle and talk.
Id. Mr. Ocean agreed, went into his residence for a
moment, and then returned and walked up the street to the
vehicle with Detectives Podsiad, Kyle, and Merced.
Id. From the time the Detectives arrived in Mr.
Ocean’s driveway to the time all four men entered the
vehicle neither the Detectives nor Mr. Ocean raised their
voices or argued. Suppression Hr’g.
vehicle Detective Podsiad was operating was not a marked
patrol vehicle; it was an unmarked SUV rented by ATF.
Podsiad Aff. at 2-3. The vehicle was parked on a
public street within view of Mr. Ocean’s residence.
Id. at 3. The vehicle was not equipped with a cage
or automatically locking rear locks. Id. The doors
were unlocked the entire time Mr. Ocean was in the vehicle.
Suppression Hr’g. There was nothing limiting
Mr. Ocean’s ability to leave the vehicle once he
entered. Podsiad Aff. at 3. Upon arriving at the
vehicle, Detective Podsiad got in the driver’s seat and
activated his recording device. Id. Detective Merced
got in the front passenger seat, while Mr. Ocean and
Detective Kyle got in the back seat. Id. Before
entering the vehicle Mr. Ocean was not searched, and at no
time was Mr. Ocean handcuffed or otherwise restrained.
vehicle Detective Podsiad told Mr. Ocean that they were
investigating a case that spanned the last seven years, that
Mr. Ocean had to "answer up" for everything during
that time, and told Mr. Ocean not lie to him, as they were
there to test his truthfulness. Tr. at 1. Detective
Podsiad informed Mr. Ocean he could lie in two ways: (1)
either directly, at which that point he would tell Mr. Ocean
to "get the fuck out of my car, and we’ll see you
in federal court, " or (2) by omission, by not telling
him information that Mr. Ocean knew. Id. at 2. When
discussing with Mr. Ocean his involvement in the drug
conspiracy under investigation, Detective Podsiad asked Mr.
Ocean not to minimize his estimates of the drug quantities
that he sold or purchased and told Mr. Ocean that he was not
building a drug case against him and that if they wanted to
do a case on him, they already had enough to arrest him.
Id. at 7-8.
half way through the interview Mr. Ocean asked if he was in
trouble, and Detective Podsiad replied that he was not in
trouble at that moment, but that he could potentially be and
that was why the Detectives had come to talk to him.
Id. at 15. Also, in describing the investigation
process, Detective Podsiad told Mr. Ocean that when they
determine "how bad" a person is, sometimes if they
"want to make him a defendant, " they
"don't even fucking tell ya, we just come kick in
your door, throw a couple flashbangs, and drag you out at
gunpoint, " which was how they arrested one of Mr.
Ocean’s now co-defendants a few days before coming to
speak with Mr. Ocean. Id. at 19. Detective Podsiad
followed this up by telling Mr. Ocean that "well
obviously we don't think you're that bad of a person
cause we're sitting here having this conversation."
Podsiad told Mr. Ocean that after their interview the
Detectives would go speak with Assistant United States
Attorney Joel Casey, who would decide whether Mr. Ocean is
"worthwhile to use as a witness, " or if they
"should go after him as a defendant." Id.
at 20. If he were to be made a defendant, Detective Podsiad
described the prison sentence Mr. Ocean faced as "you
could potentially be looking at like ten to fifteen years
somewhere in Dakota." Id. at 21. He then told
Mr. Ocean that "so what is gonna happen is this, Joel
Casey is probably gonna send out one of the local cops to
deliver a letter to you. It's either gonna be a target
letter or a grand jury subpoena. Either way, they're
gonna provide you . . . with an attorney." Id.
Detective Podsiad then told Mr. Ocean that:
The attorney is gonna advise you, you know, as to far as what
you're looking the whole nine, and usually on the federal
side . . . you get to proffer, and what the proffers states
is, listen, we're sitting you down, we want to use you as
a witness, they might have you cop out to some bullshit or
whatever, well what they do is give you full immunity, all
right, on anything you might have done, so they basically
tell you this is your one time deal to tell us fucking
everything you might have done wrong. The only way you could
fuck up a proffer is if you lie.
the end of the interview Mr. Ocean and Detective Podsiad had
the following exchange:
Ocean: All right, um, can I go back home now and like?
Podsiad: We're gonna let you go.
Ocean: I'm just scared, like.
Podsiad: I just wanted to explain all of that to you.
Ocean: All right, so, do I gotta wait until someone come
kicking in my door?
Podsiad: No. That would have happened. We wouldn't have
came and Dated this.
Ocean: All right, yo, I appreciate it. I appreciate it. I be
having my son in here, and I am who I am, but I'm keeping
it real, yeah, I'm scared, that's some shit, like, I
did my drugs or whatever, but I ain't no into guns and no
[kingpin] shit or none of that shit. . . .
Id. at 22.
point during the conversation a marked sheriff’s
vehicle drove past Mr. Ocean’s residence. Podsiad
Aff. at 3; Tr. at 19-20. When Detective Podsiad
asked Mr. Ocean if the sheriff’s office was looking for
him, he indicated that it had something to do with his child
support obligations. Podsiad Aff. at 3. Detective
Podsiad did not alert the ...