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United States v. Ocean

United States District Court, D. Maine

June 9, 2016

UNITED STATES OF AMERICA
v.
AKEEN OCEAN

          ORDER ON MOTION TO SUPPRESS

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.

         Akeen 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[1] 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.

         I. PROCEDURAL BACKGROUND

         On 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).

         On 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).

         On 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.).

         On 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 Hr’g).

         II. FINDINGS OF FACT[2]

         In 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.

         The 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.

         Detective 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.

         When 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.

         The 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. Id.

         In the 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.

         About 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." Id.

         Detective 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.

Id.

         Toward 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.

         At one 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 ...


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