United States District Court, D. Maine
ORDER ON DEFENDANT'S MOTION TO SUPPRESS
LEVY U.S. DISTRICT JUDGE.
Defendant, Larry O'Neal, is charged with possession of
child pornography in violation of 18 U.S.C.A. §
2252A(a)(5)(B) (West 2018). O'Neal moves to suppress
statements that he made on January 19, 2018, to three federal
agents during an interview at the Customs and Border
Protection (CBP) Port of Entry in Houlton, Maine, where he
worked. ECF No. 39. A hearing on the Defendant's motion
was held on September 25, 2018. For the reasons discussed
below, I deny the motion.
is employed as a CBP officer at the Houlton Port of Entry. In
the days leading up to the interview on January 19, Homeland
Security Investigations (HSI) Special Agent Edward Ainsworth
became aware of a computer that was trading in child
pornography. He traced the IP address for that computer to
O'Neal's house and then obtained a search warrant for
the house. Because O'Neal works as a CBP officer and
typically carries a weapon, Agent Ainsworth decided to
execute the warrant when O'Neal would not be at home, as
a matter of officer safety. Agent Ainsworth obtained
O'Neal's work schedule and arranged for O'Neal to
be interviewed at the Houlton Port of Entry during one of his
shifts, simultaneously with the execution of the warrant at
Ainsworth, along with Jonathan Posthumus, a Senior Special
Agent with Immigration and Customs Enforcement (ICE) Office
of Professional Responsibility (OPR), and James Perro, a
Special Agent with the Department of Homeland Security (DHS)
Office of Inspector General (OIG), arrived at the Houlton
Port of Entry just before 7:30 in the morning on January 19.
O'Neal arrived not long afterwards wearing his CBP
uniform, including an outer ballistics vest and duty belt,
which holds a firearm, handcuffs, a baton, pepper spray, and
a multi-tool or knife. O'Neal was scheduled to work that
day at an Enrollment Center located on the other side of the
border in Canada. Officers are not allowed to bring their
firearms and duty gear over the border, so he checked those
items in a lock box upon arriving at the Port of Entry.
O'Neal checked his duty gear in, the Assistant Port
Director, Joseph Ewings, asked O'Neal to go upstairs with
him to retrieve a printer to take over to the Enrollment
Center, a task Ewings had asked O'Neal the previous
evening to see him about when he arrived for work the next
day. Ewings and O'Neal took the elevator up to the second
floor and walked down the hallway until they reached a
doorway that leads to a common area, which serves as a break
and copy room, and through which there are three additional
offices. Agent Ainsworth was waiting just outside the
doorway, and as O'Neal and Ewings approached, he
introduced himself to O'Neal and asked if O'Neal
would be willing to talk with him inside the adjacent room.
O'Neal agreed, and he and Agent Ainsworth walked through
the door into the common area; Ewings turned and walked back
down the hall.
the common area, Agent Posthumus and Agent Perro introduced
themselves to O'Neal. Agent Posthumus then told
O'Neal that he was not under arrest, that he was free to
leave at any time, and that they would like to speak with him
in connection with an active investigation. Agent Posthumus
invited O'Neal to speak with them inside one of the
adjoining offices because the subject matter was sensitive
and private; again, O'Neal agreed, and he and the three
agents entered the largest of the three offices. After they
entered the office, one of the agents closed the door.
office where the interview took place is approximately
fourteen feet by sixteen feet in size. That day, there was a
desk located slightly to the left, from the perspective of a
person walking through the door, that was askew so that one
side of the desk faced the door and the other side faced the
wall and window opposite the door. The front of the desk
faced the right wall of the office but was not parallel to
it. O'Neal sat in a chair facing the front of the desk.
Agent Ainsworth sat in a chair on the far side of the desk,
while Agent Posthumus sat in a chair on the side of the desk
closest to the door; both faced O'Neal. O'Neal would
have had to walk past Agent Posthumus to exit the room, but
nothing obstructed his path to the door. Agent Perro stood
behind the desk during the interview. The agents were dressed
in plain clothes, and although Agent Ainsworth had a
holstered firearm on his person, it was hidden from view.
beginning the interview, Agent Perro explained to O'Neal
his Beckwith rights. See Beckwith v. United
States, 425 U.S. 341, 348 (1976). These rights are
provided to people in the course of internal affairs
investigations before interviews are conducted. The
Beckwith warnings advise that the interviewee has
the right to remain silent, that anything the person says may
be used as evidence in a later administrative or criminal
proceeding, and that the person's silence may be given
evidentiary value in a later administrative proceeding.
O'Neal read and signed a form acknowledging that he had
been read these rights. O'Neal was not provided
Miranda warnings. See Miranda v. Arizona,
384 U.S. 436, 444 (1966). The agents then interviewed
O'Neal for approximately two and a half hours, and in the
course of the interview O'Neal admitted to searching for
and downloading child pornography on his home computer.
During the interview, O'Neal was engaged, cooperative,
and he never asked to leave or to stop the interview.
point during the interview, the agents asked O'Neal
whether he had had any sexual contact with children and he
responded that he had not. When the interview concluded, the
agents asked O'Neal if he would be willing to take a
polygraph test to verify the fact that he had not had any
inappropriate contact with children, and he agreed. Before
O'Neal took the polygraph test, however, he took a break.
While the polygraph machine was being set up in one of the
smaller offices, O'Neal left the office area where the
interview had taken place to use the restroom, then went back
into the then-empty larger office to wait. After the
polygraph test, the agents placed O'Neal under arrest.
moves to suppress the statements that he made during the
interview with Agents Ainsworth, Posthumus, and Perro on
January 19. ECF No. 39. He argues that he was in custody when
he was questioned but was not provided the required warnings
Fifth Amendment requires police to provide a criminal suspect
a Miranda warning before subjecting him to
‘custodial interrogation.'” United States
v. Davis, 773 F.3d 334, 338 (1st Cir. 2014) (citing
Dickerson v. United States, 530 U.S. 428, 432
(2000)). If a suspect is not in custody when he is
questioned, no warning is required. United States v.
Swan, 842 F.3d 28, 31 (1st Cir. 2016). “In this
context, custody is a term of art that specifies
circumstances that are thought generally to present a serious
danger of coercion.” Id. (internal quotation
marks omitted) (quoting Howes v. Fields, 565 U.S.
499, 508-09 (2012)). A person is in custody if, “in
light of the objective circumstances of the interrogation,
” a reasonable person would not have felt “at
liberty to terminate the interrogation and leave.”
Id. (quoting Howes, 565 U.S. at 508-09).
The First Circuit has identified several relevant factors
including “whether the suspect was questioned in
familiar or at least neutral surroundings, the number of law
enforcement officers present at the scene, the degree of
physical restraint placed upon the suspect, and the duration
and character of the interrogation.” Id.
(quoting United States v. Masse, 816 F.2d 805, 809
(1st Cir. 1987)).
O'Neal was questioned at his workplace, which was
familiar territory. More importantly, the agents did not
exercise any physical control over O'Neal; for example,
during the break between the initial interview and the
polygraph test, O'Neal left the immediate area where the
interview was conducted unaccompanied to use the bathroom.
See United States v. Mittel-Carey, 493 F.3d 36, 40
(1st Cir. 2007) (concluding that defendant was in custody in
his home when agents exercised physical control over him by
escorting him everywhere, including to the bathroom).
O'Neal also was not physically restrained: he was not
handcuffed at any point during the interview, his path to the
doorway of the office was not obstructed, and no agent
brandished a weapon. See Swan, 842 F.3d at 33;
United States v. Hughes, 640 F.3d 428, 436 (1st Cir.
2011). Although the interview took place in a closed office,
the agents told O'Neal beforehand that he was free to
leave and offered that location for the sake of privacy.
See Swan, 842 ...