United States v. Brougham

1

UNITED STATES OF AMERICA v. JOSHUA A. BROUGHAM

No. 1:22-cr-00152-JAW-1

United States District Court, D. Maine

January 23, 2024

ORDER ON MOTIONS TO SUPPRESS

JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

A criminal defendant brings two motions to suppress, contesting in the first that his warrantless arrest was not supported by probable cause and arguing in the second that his pre-Miranda confession taints his post-Miranda statements, that police detectives ignored his invocation of the right to remain silent, and that he made involuntary statements while in custody. Viewing the circumstances surrounding the defendant's arrest in the light most favorable to him, the Court nonetheless concludes that the arrest was supported by probable cause and therefore denies the defendant's first motion to suppress. As to the defendant's second motion, the Court agrees that the circumstances surrounding the defendant's pre-Miranda confession render his post-Miranda statements inadmissible and that the defendant unambiguously invoked his right to remain silent. The Court therefore grants the second motion under both bases.

I. PROCEDURAL BACKGROUND

On December 15, 2022, a federal grand jury returned a two-count indictment against Joshua A. Brougham, charging him with 1) armed bank robbery on October 15, 2022 in violation of 18 U.S.C. §§ 2113(a) and (d), and 2) brandishing and using a firearm during and in relation to a crime of violence on October 15, 2022 in violation of 18 U.S.C. §§ 924(c)(1)(A) and 924(c)(1)(A)(ii). Indictment (ECF No. 1).

On June 12, 2023, Mr. Brougham filed two motions to suppress. The first sought to suppress evidence arising out of a warrantless arrest that occurred on October 19, 2022 Mot. to Suppress Re: Warrantless Arrest (ECF No. 41) (Def.'s First Mot. to Suppress), and the second sought to suppress Mr. Brougham's statements to law enforcement after the warrantless arrest. Mot. to Suppress Statements (ECF No. 42) (Def.'s Second Mot. to Suppress). On July 21, 2023, the Government responded to both of Mr. Brougham's motions to suppress. Gov't's Resp. in Opp'n to Def.'s Mot. to Suppress (ECF No. 48) (Gov't's Opp'n to Def.'s First Mot. to Suppress); Gov't's Resp. in Opp'n to Def.'s Mot. to Suppress (ECF No. 49) (Gov't's Opp'n to Def.'s Second Mot. to Suppress). On August 14, 2023, Mr. Brougham replied. Reply Re: Mot. to Suppress Re: Warrantless Arrest (ECF No. 53) (Def.'s Reply in Support of Def.'s First Mot. to Suppress); Reply Re: Mot. to Suppress Statements (ECF No. 52) (Def.'s Reply in Support of Def.'s Second Mot. to Suppress).

Over the Government's objection, the Court held an evidentiary hearing on October 25, 2023. Min. Entry (ECF No. 63). Following the October 25, 2023 evidentiary hearing and the October 30, 2023 filing of a hearing transcript, the Government filed a supplemental brief opposing Mr. Brougham's motions to suppress on December 4, 2023. Gov't's Suppl. Br. in Opp'n to Def.'s Mots. to Suppress (ECF No. 71) (Gov't's Suppl. Br.). On December 18, 2023, Mr. Brougham responded. Resp. to Gov't's Suppl. Br. Re: Mots. to Suppress (ECF No. 72) (Def.'s Resp. to Gov't's Suppl. Br.).

On December 22, 2023, the Government replied. Gov't's Reply Suppl. Br. in Opp'n to Def.'s Mots. to Suppress (ECF No. 73) (Gov't's Reply Suppl. Br.).

II. FACTUAL BACKGROUND

A. The Robbery of Camden National Bank

At approximately 11:33 am on October 15, 2022, officers with the Augusta Police Department (APD) were dispatched to Camden National Bank (CNB), located at 21 N. Armory Street in Augusta, in response to a reported armed robbery. Gov't's Opp'n to Def.'s First Mot. to Suppress, Attach. 2, Suppl. Narrative for Detective Michael S. Unterkoefler at 1 (Unterkoefler Narrative). Responding officers reviewed surveillance footage that showed a man walking south on Armory Street before entering the bank through the south entrance of the building. Id. at 2. This individual was the only person inside the bank-aside from the bank teller and the bank manager-at the time of the robbery. Tr. of Proc. at 14:19-24 (ECF No. 66) (Suppression Tr.). Once inside the bank, the man spoke with the teller for approximately one minute before producing a silver handgun from the front pouch of his hooded sweatshirt and pointing it in the direction of the teller. Unterkoefler Narrative at 2; Suppression Tr. at 15:8-14. The teller then twice placed cash in a newspaper held by the man. Unterkoefler Narrative at 2-3.

APD Detective Unterkoefler spoke with the teller following the robbery, and he testified at the suppression hearing that “her description of what had happened was consistent with the video, except she added the dialog[ue] or the conversation that happened.” Suppression Tr. at 16:2-5. According to the teller, the man asked about opening a checking account, but the teller informed him that CNB could not open any accounts because it was a Saturday. Id. at 16:10-15. The man also asked about cashing a check. Id. at 16:15-16. When the teller asked to see the check, the man pointed the gun at her, at which point the teller placed two stacks of cash on the newspaper the man was carrying. Id. at 16:16-22.

After receiving the money from the teller, the man exited the bank through the south entrance and jogged south through the bank parking lot. Unterkoefler Narrative at 3. The man continued traveling south toward Concentra Urgent Care before going out of view near the front of Caldwell Banker Rizzo Mattson Realtors (CBRMR) located at 219 Capitol Street. Id. CBRMR and Concentra share a building and parking lot. Suppression Tr. at 24:1-11.

Based on surveillance footage and information provided by the bank teller, the investigating officers determined that the person who robbed CNB was a white male with a slim build, short sideburns, and attached ear lobes. Unterkoefler Narrative at 4; Suppression Tr. at 18:9-14. Detective Unterkoefler testified at the suppression hearing that “the suspect had very unique ears . . . the structure and . . . the characteristics of the suspect's right ear was very unique to me.” Suppression Tr. at 18:10-14. He also noted that “the suspect's eyelids were like a half oval shape and very pronounced.” Id. at 18:14-15. The robbery suspect was dressed in a black jacket, a blue hooded sweatshirt, and dark pants with a white stripe down the outer leg. Unterkoefler Narrative at 3-4; Gov't's Opp'n to Def.'s First Mot. to Suppress, Attach. 1, Narrative for Patrol Michael N. Raymond at 3 (Raymond Narrative). He was also wearing a fishing hat with a circular brim and a blue surgical mask. Unterkoefler Narrative at 3; Raymond Narrative at 3.

B. The Robbery Investigation

APD officers and detectives employed a variety of tactics in attempting to locate the person who robbed CNB. On the day of the robbery, officers conducted two canine sniffs near CNB. Raymond Narrative at 3. One was unsuccessful. Id. The other tracked the suspect's scent east, behind Shaw's Supermarket to the Maine Public Employee Retirement System before the suspect's scent dissipated at Florence Street. Id. Based on the second canine sniff, officers searched the dumpsters behind Shaw's but did not locate any evidence related to the bank robbery. Id. At the suppression hearing, Detective Unterkoefler-who is not a K9 handler-noted that the area surrounding CNB was unusually busy on the day of the robbery, which may have affected the accuracy of the canine search. Suppression Tr. at 69:12-70:14.

APD officers also interviewed people in the area of the robbery; two identified the hat worn by the robbery suspect as belonging to an unhoused person living in the area. Id. at 55:11-20. Based on this information, Detective Unterkoefler asked individuals at the Armory, which is located near where the unhoused person was believed to live, to look out for him. Id. at 70:19-71:5. After reviewing surveillance footage in more detail, however, Detective Unterkoefler determined that the unhoused person was not the robbery suspect. Id. at 71:11-20.

APD Detectives Unterkoefler and Chris Guay also searched the wooded area to the east of Concentra Urgent Care, which is located between Shaw's Supermarket and Capitol Street, but did not find any evidence of the robbery. Unterkoefler Narrative at 6. A search of the area to the south of Concentra Urgent Care, including the dumpsters and roofs of various buildings, likewise failed to uncover any evidence. Id. The detectives also searched the areas surrounding the Buker Community Center, the Kings Court Shopping Plaza, and the Big Apple located across from the Kings Court Shopping Plaza but again failed to locate any evidence of the robbery. Id. In response to some publicity concerning the robbery, a local citizen provided a tip that the robbery suspect was his son. Suppression Tr. at 57:11-19.

On October 17, 2022, Detective Unterkoefler obtained surveillance footage from Maine State Credit Union (MSCU), which is located at 200 Capitol Street, across from CBRMR. Unterkoefler Narrative at 7. One of MSCU's surveillance cameras captured the eastern entrance to CBRMR and a small part of the building to the west of the door; however, Detective Unterkoefler determined that there was a blind spot of approximately 100 to 120 feet to the west of this area, not captured by any security cameras. Id. Because of this blind spot, Detective Unterkoefler testified that “it was important for us to try to look at all the vehicle traffic so when it went into the blind spot we knew what to expect when it came out of the blind spot.” Suppression Tr. at 26:8-10.

After viewing the MSCU surveillance footage, Detective Unterkoefler determined that the robbery suspect entered the blind spot but no surveillance footage showed him leaving...