MAINE SUPREME JUDICIAL COURT                                       Reporter of Decisions
Decision: 2014 ME 132
Docket:   Pen-13-323
Argued:   June 10, 2014
Decided:  November 25, 2014

Panel:       SAUFLEY, C.J., and ALEXANDER, SILVER, MEAD, GORMAN, and JABAR, JJ.



                                 STATE OF MAINE

                                          v.

                               SETH M. JOHANSEN

SAUFLEY, C.J.

         [¶1] Seth M. Johansen appeals from a judgment entered in the trial court

(Campbell, J.) revoking his probation based on findings that he committed new

crimes of burglary and theft. Johansen contends that the court erred by admitting a

police officer’s testimony about Johansen’s confessions, despite having found that

the inculpatory statements were obtained following Johansen’s initial in-custody

indication that he did not want to talk with law enforcement. We affirm the

judgment.

                                 I. BACKGROUND

         [¶2] In March 2012, Johansen pleaded guilty to five counts of burglary

(Class B), 17-A M.R.S. § 401(1)(B)(4) (2013), one count of criminal mischief

(Class D), 17-A M.R.S. § 806(1)(A) (2013), and four counts of theft (Class E),

17-A M.R.S. § 353(1)(A) (2013). The trial court (Nivison, J.) sentenced Johansen
2

to two years’ imprisonment with all but sixty days suspended, and imposed two

years of probation. One of the conditions of probation was that Johansen “refrain

from all criminal conduct and violation of federal, state, and local laws.”

        [¶3] On the morning of February 28, 2013, two police officers responded to

a burglary reported by a man who lived in the same apartment building as

Johansen.      The man told a police officer that, the night before the burglary,

Johansen had been in his apartment and asked to borrow five dollars from the

man’s jar of change. On the morning of the burglary, as the man was leaving his

apartment, he saw Johansen coming up the stairs; upon seeing the man, Johansen

awkwardly turned around and hurried away.                        Later that day, when the man

returned home, he found that an entry had been made into his apartment through

the fire escape and that the jar of change was missing.

        [¶4] At some point before the officers spoke with Johansen, they learned

that Johansen was the subject of an outstanding arrest warrant, issued in September

2012, for failure to report to his probation officer.1                      The two officers went

downstairs to Johansen’s apartment and asked him about the burglary. Johansen

denied any knowledge of the burglary. The officers then arrested Johansen on the

outstanding warrant. An officer read Johansen his Miranda rights verbatim from a
    1
     Prior to the events leading to this appeal, the State had filed a motion to revoke Johansen’s probation
due to allegations that he failed to report to his probation officer. Johansen admitted to the failure to
report, and the court deferred disposition until after this case was resolved.
                                                                                  3

card, and Johansen indicated that he understood each paragraph. When asked

whether he would like to speak with the officers, Johansen said, “No. You know

everything already.”

      [¶5]   At that point, the officers allowed Johansen to go back into his

apartment to change clothes and say goodbye to his wife.            When Johansen

returned, one of the officers informed Johansen that he did not “know everything”

and that he still had additional questions for Johansen regarding the burglary. The

officer told Johansen that he could answer the questions that he liked and decline

to answer others. Without again reciting the full Miranda warnings, the officer

asked Johansen, “Now having all those rights in mind, are you willing to speak to

us at this time?” Johansen said yes and confessed to the officers that he had taken

the jar from the neighbor’s apartment. He also told them that the jar was inside his

apartment, and the officers retrieved it from Johansen’s kitchen.

      [¶6] The officers took Johansen to the Penobscot County Jail, where one

officer further questioned Johansen. The officer again reminded Johansen of his

rights without repeating the full Miranda warnings, and Johansen again admitted

that he had committed the burglary. The officer did not threaten or make promises

to Johansen during these interactions. Aside from his initial response, Johansen

did not display any reluctance in answering the police officer’s questions.
4

      [¶7] The State filed a motion to revoke Johansen’s probation, contending

that Johansen had committed new crimes of burglary and theft.             The court

scheduled a probation revocation hearing and assigned Johansen counsel pursuant

to 17-A M.R.S. § 1206(4) (2013). Before the hearing on the State’s motion,

Johansen filed a motion in limine seeking to exclude his confession as obtained in

violation of his Miranda rights. At the probation revocation hearing on May 21,

2013, during which the court also considered Johansen’s motion in limine, the

State offered as the sole witness the officer who first questioned Johansen. The

officer testified to the events described above, including his conversations with

Johansen and the victim. Johansen objected to the officer’s testimony regarding

statements that Johansen had made to the officers after his initial refusal to answer

questions.

      [¶8] At the end of the probation revocation hearing, the court took the

matter under advisement and opined that the admissibility of Johansen’s

confessions would determine the outcome of the State’s motion: “[I]f I allow the

evidence in, as far as the Defendant’s confession, then I [am] going to find that he

committed the probation violation based upon the preponderance of the evidence

standard. . . . If not, then there will not be a probation violation found because

that’s really the thrust of the State’s case.”
                                                                                   5

      [¶9] On June 4, 2013, the court entered a judgment finding that the State

had met its burden of proving, by a preponderance of the evidence, that Johansen

violated his probation conditions by committing the new crimes of burglary and

theft. In denying Johansen’s motion in limine, the court cited State v. James, 2002

ME 86, 797 A.2d 732, and concluded that statements obtained in violation of

Miranda protections are admissible in probation revocation proceedings as long as

the State’s action or actions did not violate the defendant’s due process rights. See

id. ¶ 12 (“Because revocation hearings have the potential to deprive persons of

their liberty . . . minimum guarantees of due process are necessary.”). The court

found that the admission of Johansen’s confessions in the probation revocation

proceeding did not violate his right to due process because (1) the confessions were

made voluntarily and were reliable, and (2) they were corroborated by the

questioning officer’s testimony about his conversation with the victim regarding

Johansen’s behavior.

      [¶10] The court revoked Johansen’s probation and ordered him incarcerated

for the remaining twenty-two months of his original suspended sentence. The

State then dismissed its criminal prosecution of burglary and theft charges against

Johansen. This appeal followed.
6

                                        II. DISCUSSION

        [¶11]     The question presented in this appeal is whether Johansen’s

statements, admitted for the purpose of revoking his probation, should have been

excluded because they were obtained in violation of the prophylactic rules

established to protect an individual’s Fifth Amendment privilege against

self-incrimination.2       Johansen argues that the exclusionary rule should apply

because probation revocation hearings are akin to criminal prosecutions and

because his statements, obtained in violation of Miranda v. Arizona, 384 U.S. 436,

466 (1966), are inherently unreliable. We review the effect of the admission of

testimony on constitutional rights and the interpretation of United States and Maine

Constitutions de novo. State v. Mercier, 2014 ME 28, ¶ 9, 87 A.3d 700; State v.

Elliott, 2010 ME 3, ¶ 17, 987 A.2d 513.

        [¶12] The Fifth Amendment to the United States Constitution provides that

no person “shall be compelled in any criminal case to be a witness against

himself.” U.S. Const. amend. V. The Maine Constitution similarly provides that

“[t]he accused shall not be compelled to furnish or give evidence against himself or

herself.” Me. Const. art. I, § 6. The Maine Constitution is coextensive with the




    2
       The court found, and the State does not challenge, that (1) Johansen was in custody, (2) he
unambiguously invoked his Miranda rights, and (3) police questioning after he invoked these rights, both
at his apartment and later at the jail, was in violation of Miranda.
                                                                                    7

United States Constitution in the Fifth Amendment context. See, e.g., State v.

Millay, 2001 ME 177, ¶¶ 14-20, 787 A.2d 129.

      [¶13]    In Miranda v. Arizona, the Supreme Court of the United States

created procedural safeguards to provide “practical reinforcement” of the right

against compulsory self-incrimination. 384 U.S. at 444-45; Michigan v. Tucker,

417 U.S. 433, 444 (1974).        Pursuant to the safeguards established through

Miranda, a confession by a person in custody may not be admitted in a criminal

prosecution unless the person is warned beforehand “that he has a right to remain

silent, that any statement he does make may be used as evidence against him, and

that he has a right to the presence of an attorney, either retained or appointed.” 384

U.S. at 444.    “[F]ailure to follow [these] procedures requires inexorably the

exclusion of any statement by the accused, as well as the fruits thereof.” Id. at 500.

However, “the invocation of the right to remain silent is not a permanent bar to

further police questioning and . . . incriminating statements given in response to

later questioning may be admissible, so long as the defendant’s rights were

‘scrupulously honored.’” State v. Grant, 2008 ME 14, ¶ 20, 939 A.2d 93 (quoting

Michigan v. Mosley, 423 U.S. 96, 104 (1975)).

      [¶14] In the context of a prosecution for a crime, we determine whether a

suspect’s invocation of his right to remain silent has been “scrupulously honored”

by applying a four-factor balancing test. Grant, 2008 ME 14, ¶ 42, 939 A.2d 93;
8

State v. Rossignol, 627 A.2d 524, 527 (Me. 1993); see Mosley, 423 U.S. at

104-107.      These factors are “(1) whether police immediately cease the

interrogation when the [suspect] invokes the right to remain silent; (2) whether a

significant amount of time passes before questioning is resumed; (3) whether fresh

Miranda warnings are provided; and (4) whether the later ‘interrogation is

restricted to matters distinct from the former.’” Grant, 2008 ME 14, ¶ 42, 939 A.2d

93 (quoting Rossignol, 627 A.2d at 527); see Mosley, 423 U.S. at 104-107.

Applying these factors in the matter before us, as the trial court correctly

determined, the officers cannot be found to have “scrupulously honored”

Johansen’s brief initial indication that he had nothing to say to the officers. It is

clear that the State would not have been able to use Johansen’s statements in a

criminal proceeding charging him with the new burglary.

      [¶15]    Thus, the question directly presented is this: must Johansen’s

confession be suppressed in the probation revocation proceeding? Although the

Supreme Court of the United States has not squarely ruled on this question, in

Minnesota v. Murphy, the Court suggested that the consequences of suppression

will not apply to a probation proceeding standing alone. 465 U.S. 420, 435 n.7

(1984). Specifically, the Court noted that suppression is not required if there is “no

realistic threat of incrimination in a separate criminal proceeding.” Id.
                                                                                  9

      [¶16] Other federal courts have followed Murphy’s lead. See, e.g., United

States v. York, 357 F.3d 14, 24 (1st Cir. 2004) (“[B]ecause revocation proceedings

are not criminal proceedings, [defendant] will not be entitled to refuse to answer

questions solely on the ground that his replies may lead to revocation of his

supervised release.”); United States v. MacKenzie, 601 F.2d 221, 222 (5th Cir.

1979) (per curiam) (“Miranda’s prophylaxis is inapplicable in a probation

revocation proceeding.”); United States v. Johnson, 455 F.2d 932, 933 (5th Cir.

1972) (“A probation revocation hearing is not an adversary or a criminal

proceeding . . . . An injection of the Miranda protection here could be toxic and

produce a paresis in the probation process.”).

      [¶17] Although we have not directly decided whether evidence obtained in

violation of the prophylactic rules and procedural safeguards established to protect

a defendant’s Fifth Amendment rights is admissible in probation revocation

hearings, we have answered a similar question in the Fourth Amendment context.

See State v. Foisy, 384 A.2d 42, 44 (Me. 1978); State v. Caron, 334 A.2d 495,

498-99 (Me. 1975). In State v. Caron, the police recovered several stolen items

from the defendant’s person and his wife’s apartment based on a defective warrant.

334 A.2d at 496-97.      The Superior Court suppressed this evidence in the

defendant’s criminal prosecution but admitted it for purposes of revoking his

probation. Id. We affirmed on two grounds. First, because a probation revocation
10

hearing is not a criminal proceeding, suppression procedures pursuant to the Maine

Rules of Criminal Procedure are not available. Id. at 498-99 (citing Gagnon v.

Scarpelli, 411 U.S. 778, 782 (1973)).       Second, the deterrent purpose of the

exclusionary rule, which acts as protection for Fourth Amendment rights, was

adequately served by the exclusion of the unlawfully seized evidence in the

criminal prosecution.   Id. at 499.    “[T]he additional furtherance of its policy

objectives achieved by extending the rule to hearings for revocation of probation

(or parole) is insufficient to justify the concomitant impairment of the proper

functioning of the probation-parole system.”      Id.   However, we left open the

possibility that the exclusionary rule may apply in probation revocation hearings

when a defendant demonstrates a need to deter “‘widespread police harassment’”

that deprives the probationer of the right to due process. Id. at 499 n.6 (quoting

United States ex rel. Sperling v. Fitzpatrick, 426 F.2d 1161, 1166 (2d Cir. 1970)).

      [¶18] Consistent with the foreshadowing on this issue by the Supreme Court

of the United States, we extend our holding in Caron to the Fifth Amendment

context. See Murphy, 465 U.S. at 435 n.7; 334 A.2d at 496-97. The exclusionary

rule, requiring courts to suppress evidence obtained in violation of the procedural

safeguards established to protect the privilege against self-incrimination, does not

apply to probation revocation proceedings unless the probationer presents proof of

“widespread police harassment” or other proof of a serious due process violation.
                                                                                                          11

See Murphy, 465 U.S. at 435 n.7; cf. Caron, 334 A.2d at 499 n.6 (quoting

Fitzpatrick, 426 F.2d at 1166). As with the rule announced in Caron, this rule

promotes a balance between, on one hand, the proper functioning of the

probation-parole system and, on the other hand, probationers’ rights to due

process. See Caron, 334 A.2d at 499 & nn.5-6; see also United States v. Leon, 468

U.S. 897, 916 (1984) (“[T]he exclusionary rule is designed to deter police

misconduct.”).3

        [¶19]      Accordingly, the court did not err in holding that Johansen’s

confessions were admissible for the purpose of determining whether he had

violated the terms of his probation. Johansen presented no evidence suggesting

that practices engaged in by the police in his case were part of a widespread

practice of probationer harassment, nor did he otherwise allege a serious violation

of his due process rights. The record fully supports the court’s finding that the

confessions the police obtained from him were made voluntarily, as well as the

court’s finding that the police did not threaten or promise leniency in exchange for

his confessions. Although the officers were aware of Johansen’s probationary

status due to an outstanding warrant, there was no evidence that they harassed or

targeted Johansen based solely, or even primarily, on his probationary status. In
   3
       Although we acknowledge that the incarceration that follows a probation revocation feels no
different to the probationer than an original sentence of incarceration, the process of revoking probation is
not identical to the process for obtaining a criminal conviction and does not entail the same extensive
safeguards.
12

these circumstances, we do not disturb the court’s admission of the evidence of

Johansen’s confession in his probation revocation proceeding.

        The entry is:

                           Judgment affirmed.



On the briefs:

        Hunter J. Tzovarras, Esq., Bangor, for appellant Seth M. Johansen

        R. Christopher Almy, District Attorney, and Tracy Collins Lacher, Asst.
        Dist. Atty., Prosecutorial District V, Bangor, for appellee State of Maine


At oral argument:

        Hunter J. Tzovarras, Esq., for appellant Seth M. Johansen

        Tracy Collins Lacher, Asst. Dist. Atty., for appellee State of Maine



Penobscot County Unified Criminal Docket docket number CR-2012-308
FOR CLERK REFERENCE ONLY
