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USCA1 Opinion

UNITED STATES COURT OF APPEALS


FOR THE FIRST CIRCUIT
____________________

No. 96-1268

UNITED STATES,

Appellee,

v.

MICHELLE T. MARENGHI,

Defendant - Appellant.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]


___________________

____________________

Before

Torruella, Chief Judge,


___________

Boudin, Circuit Judge,


_____________

and Lisi,* District Judge.


______________

_____________________

Robert M. Napolitano for appellant.


____________________
Helene Kazanjian,
_________________
whom Jay P. McCloskey,
________________
appellee.

Assistant United

States

Attorney, with

United States Attorney, was on

brief for

____________________

March 19, 1997


____________________

____________________

Of the District of Rhode Island, sitting by designation.

LISI, District Judge.


LISI, District Judge.
______________

Following

a three-day

trial, a

jury

convicted

conspiring

defendant-appellant

to possess

substance

with

intent to

containing cocaine

substantive

841(a)(1).

offense,

in

base,

violation

The appellant

that the

written

T.

Marenghi

distribute a

as well

of

21

She

as the

underlying

U.S.C.

846

to be followed by four

appeals her conviction

district court erred in denying

statement elicited

from her

of

controlled

was thereafter sentenced to a

imprisonment of seventy months,

supervised release.

Michelle

on the

and

term of

years of

ground

a motion to suppress a

shortly after

her arrest.

For the reasons set forth below, we affirm.

I.
I.

BACKGROUND
BACKGROUND

In October 1994, agents from the Maine Drug Enforcement

Agency ("MDEA")

commenced an investigation into the distribution

of crack

cocaine in Portland,

targeted a group

Maine.

of individuals who

Specifically,

the agents

purchased the substance

in

Boston, Massachusetts, transported it to Portland, and thereafter

sold

it out

area.

of various hotel

The investigation

rooms and houses

in the Portland

continued for approximately two months,

and was aided on several occasions by the cooperation of a number

of "concerned citizens."1

The

investigation

culminated

at approximately

p.m. on December 9, 1994, when agents from the MDEA and

11:00

officers

____________________

A detailed account of

July 17,

1995 Memorandum and Order

United States
______________
1995).

the investigation can be

v. Marenghi,
________

896 F.

of the district
Supp.

found in the
court.

207, 209-13

See
___

(D. Me.

-2-

from

the Portland

Police Department pulled

into a

driveway in

Portland behind a vehicle driven by the appellant and occupied by

five others.

All of the occupants, including the appellant, were

removed from the

The

vehicle and separately

agents thereafter proceeded

detained at the

to search the

scene.

vehicle in which

the individuals were riding.

The

appellant was

handcuffed and

placed in

the back

seat of an unmarked

Robert

Pelletier sat.

officer, Scott

into the

Robert

car shortly thereafter.

appellant why

and brother

the MDEA, got

Scott Pelletier

the vehicle had

proceeded to

been stopped

and

she would soon be transported to a Portland police station.

Scott Pelletier informed the

had

Police Officer

Pelletier's brother

Pelletier, a detective assigned to

explain to the

that

police car in which Portland

alerted

to

drugs

on

appellant that a drug-detecting dog

the

bodies

of

two

individuals who had been

riding in the appellant's

that

used

the

dog would

be

to search

her

as

of

the

other

vehicle, and

well.

Scott

Pelletier then exited the vehicle.

At that point, Robert Pelletier told the appellant that

the dog could find drugs

anywhere on a person, even if

a person

was

carrying

the

drugs

responded, stating "I

in

body

don't have

it up

cavity.

there, I

The

appellant

have it

down

here."

Transcript, April 4, 1995 Hearing on Motion to Suppress,

at 174.

Robert Pelletier then got out of the automobile and told

Scott

When

Pelletier

Scott

that the

appellant wanted

Pelletier returned

to

-3-

the

to speak

with him.

vehicle, the

appellant

stated that the officers would not need to use the

dog to search

her and that she did indeed possess crack cocaine.

At several points

during this exchange, the

indicated that she needed to use a bathroom.

advised

384 U.S.

of her Miranda rights, however.


_______

436 (1966).

Approximately

appellant was first detained,

appellant

At no time was she

See Miranda v. Arizona,


___ _______
_______

ninety

minutes after

the

Scott Pelletier transported her to

the Portland Police Department.2

Upon

arriving at

again told Scott Pelletier

Scott Pelletier advised her

accompany

the

police

station, the

that she needed to use

appellant

the bathroom.

that a female officer would

have to

her, but that none were present at the police station.

Scott Pelletier placed the appellant in a room with Officer Bruce

Chase, and left in an effort to locate a female officer.

Scott Pelletier

returned ten

point, he advised the appellant of

of

minutes later.

At that

her Miranda rights, inquiring


_______

the appellant after reading each right if she understood what

it meant.

The appellant indicated that she did.

Scott Pelletier then left to inquire as to whether

efforts to locate

learning that

the

a female

officer had been

they had not,

successful.

Scott Pelletier returned

appellant whether she had

inserted the drugs

the

Upon

and asked

inside a body

____________________

The

MDEA

approximately

agents
11:00

p.m.

stopped

the

Scott

appellant s

Pelletier

arrived at the scene between 11:40 p.m. and


he

departed

with

the

appellant

approximately forty minutes later.

for

vehicle

at

testified that

he

11:50 p.m., and that


the

police

station

See Transcript, April 4, 1995


___

Hearing on Motion to Suppress, at 44 & 111.

-4-

cavity

or whether

they were

appellant stated that the

in

merely inside

her clothing.

narcotics were easily retrievable and,

the presence of Scott Pelletier

and Officer Chase, proceeded

to reach into her pants and remove a plastic bag,

placed on the floor.

The

The appellant was thereafter

which she then

permitted to

use the bathroom without the accompaniment of a female officer.

The appellant was then

where

she

proceeded

involvement

to

moved to a station

dictate

in distributing

crack

statement

cocaine in

lunch room,

concerning

Portland.

her

When

complete, Scott Pelletier had the appellant read each page of the

document for

appellant

inaccuracies.

initialed

After correcting one

the corner

of each

page,

sentence, the

as well

as the

correction, and then signed the statement.

On December 20, 1994, a grand jury returned a two-count

indictment charging the appellant with conspiracy to possess with

intent to distribute

well as

more than

possession with

violation of

21 U.S.C.

five grams of

cocaine base,

as

intent to distribute

cocaine base,

in

On February

9,

846

and 841(a)(1).

1995, the appellant filed a motion to suppress as evidence in her

criminal

trial

"any

and all

statements

and

evidence

. .

obtained

on

the

night of

her

arrest,"

including:

(1)

any

statements that she made to the Pelletiers in the unmarked police

cruiser

and,

(2)

(hereafter referred

the

to as

written statement

the "roadside

made

at

the

statements");

Portland Police

Station (hereafter referred to as the "written statement").

-5-

The district court conducted

the

an evidentiary hearing on

suppression motion and issued a memorandum and order on July

17, 1995 granting the motion in part and denying it in part.

The

district court found that the roadside statements were made while

the appellant

warnings.

The

in custody

See United States


___ _____________

roadside

trial.

was

statements were

and

v. Marenghi, 896 F.
________

therefore

of

Miranda
_______

Supp. at 215.

excluded

from use

at

See id.
___ ___

The district court then

with

without benefit

respect to the written

that the appellant

proceeded to make two findings

statement.

First,

the court found

dictated the written statement

made a voluntary, knowing, and intelligent waiver of

after she had

her Miranda
_______

rights.

See
___

id. at 217-19.
___

Second, the

court found that

the

circumstances surrounding the appellant's written confession were

sufficiently attenuated from the constitutional infirmities which

rendered the

Thus, the

roadside statements inadmissible.

district court

See id. at 216.


___ ___

permitted the government

to introduce

the written statement at trial.

The appellant challenges the district court's denial of

her motion to suppress the written statement.

II.
II.

At

the

outset, it

DISCUSSION
DISCUSSION

is

incumbent upon

delineate the correct standard of its review.

a motion to suppress,

fact

for clear error.

this

In the context

we examine a district court's

See United States v.


___ ______________

court to

of

findings of

Mitchell, 85 F.3d
________

800,

804 (1st Cir. 1996);

United States v.
_____________

Valle, 72 F.3d 210,


_____

-6-

214 (1st Cir.

1995).

into district

court determinations with respect

law,

including those

In contrast, we

involving

conduct de novo inquiries


_______

to questions of

the Constitution.

See
___

United
______

States v. Valle, 72 F.3d at 214; United States v. Zapata, 18 F.3d


______
_____
_____________
______

971, 975 (1st Cir. 1994).

In this case, the

the district court's order

the

written

statements

examine

the

not at

The

issue.

circumstances under

were made, as the

part,

with respect to the

statement.

is

appellant challenges the validity of

suppression

admissibility of

of

the

Nevertheless, this

which the

roadside

court

roadside statements

admissibility of the written statement

dependent upon whether the police

must

is, in

conduct at the roadside

was coercive.

When

engage in

law

coercive or improper

statement, but rather

her

enforcement

Miranda
_______

officials

do

not deliberately

tactics in obtaining

only fail to advise a defendant

warnings,

court's

task

in

an initial

of his or

determining

the

admissibility

of

straightforward.

obtained

subsequent

Such

after the

Miranda rights;
_______

rights.

statement

statement

defendant:

(1)

is

See Oregon
___ ______

relatively

admissible if

was advised

and, (2) knowingly and

is

it

of his

or her

voluntarily waived those

v. Elstad, 470 U.S. 298, 318


______

(1985); Bryant
______

v. Vose, 785 F.2d 364, 366-67 (1st Cir.), cert. denied, 477
____
____________

907

(1986).

neither

This

the initial

little justification

standard reflects

nor

the

the subsequent

exists for permitting

-7-

was

belief that

admission is

U.S.

"[w]hen

coerced,

the highly probative

evidence of a

voluntary confession to

the factfinder."

Oregon v. Elstad,
______
______

circumstances, the

the suspect

finder of

made a

rational and

to

"In such

conclude that

intelligent choice whether

to

Id. at 314.
___

is an enormous difference, however, between "the

uncertain consequences of disclosure

given

470 U.S. at 312.

fact may reasonably

waive or invoke [his or her] rights."

There

be irretrievably lost

in response to

an unwarned but

of a 'guilty secret' freely

noncoercive question" and

"the direct consequences flowing from coercion of a confession by

physical violence

or other deliberate means

the suspect's will

infirmity

failure

to the

. ."

underlying an

Id. at
___

initial

to follow the dictates

admissibility

involved.

warnings

. .

of a

A careful

alone

is

not

and

312.

calculated to break

As

statement transcends

the

the mere

of Miranda, the determination as


_______

subsequent

thorough

statement is

validity of the subsequent statement.

much

administration of

necessarily sufficient

This is so because the

such, when

to

more

Miranda
_______

ensure

the

See id. at 310.


___ ___

danger exists that the coercive

nature of the circumstances under which the initial statement was

obtained lingered

she provided

in the mind of the defendant at the time he or

the subsequent statement, irrespective

that he or she had been advised of the Miranda


_______

of the fact

warnings and made

the subsequent statement in an

compulsion.

See id.
___ ___

atmosphere devoid of coercion

or

In this instance, a court cannot determine

the admissibility of the subsequent statement solely by examining

the circumstances

surrounding that statement.

Instead, it must

-8-

determine

whether

the

subsequent

statement

is

sufficiently

removed

from

the

milieu of

the

coerced

statement

so as

to

preclude any lingering taint.

There

the

is no dispute in

appellant provided

the

this case as

to the fact that

roadside statements

first been advised of her Miranda rights.


_______

The

without having

parties differ as

to whether these statements

were the product of

coercion.

contends that

the

police

threatening to

use

a police

coerced

search

requests

The

the

the

appellant

statement by

appellant

to use

for

drugs and

the bathroom.

The

denying

improper police

the

officers

dog to

appellant's

government discounts

this

notion, arguing instead that at no point was the appellant's will

overborne such that she was not able to act voluntarily.

The district

court examined

the admissibility of

the

written statement as if the roadside statements had been coerced.

The

court

station

concluded that

were

"the

sufficiently

statements made

removed

from

the

in

the police

setting

of

the

illegally obtained . . . inculpatory statements" at the roadside.

United States v. Marenghi, 896 F. Supp. at 216.


______________
________

this

fact, the

court

never explicitly

roadside statements were indeed coerced.

went as

coerced."

far

as

saying that

those

Notwithstanding

determined whether

the

The district court only

statements

were

"possibly
________

Id. (emphasis added).


___

We decline

the parties' invitations to

label, for the

first time, the circumstances surrounding the roadside statements

as either coercive

or noncoercive.

-9-

This exercise

would require

us to make critical

individuals

determinations as to the credibility

present at

the roadside

as, not

surprisingly, the

recitations of the events that transpired that evening

witness to witness.

It would not be

of the

vary from

wise for us to attempt such

an endeavor from a cold record.

Further, a

definitive resolution of this

necessary in the present

case.

We believe that

issue is not

the appellant s

written statement would be admissible even if we were to conclude

that the roadside statements were indeed coerced.

We

therefore

admissibility

and

voluntariness

of

potential

apply

begin

the

our

written

taint that may have

the

heightened

analysis

statement

by

threshold

examining

independent

lingered from the

of

roadside.

of

the

any

The

voluntariness of a statement "depends on 'whether the will of the

defendant

[was] overborne so that the statement was not his free

and voluntary act, and that question [is] to be resolved in light

of the

totality

of

Jackson, 918 F.2d


_______

Vose, 785 F.2d


____

denial of her

the

236, 241

at 367-68).

circumstances.'"

(1st Cir. 1990)

United States
______________

v.

(quoting Bryant
______

v.

The appellant argued

repeated requests to use

below that the

the bathroom constituted

improper

influence.

Indeed, she averred that she was willing to

say anything at the police station to

obtain permission to go to

the bathroom.

The district

court, having the benefit

testimony of both the appellant and

conclusions

on

this point.

First,

-10-

of hearing the

Scott Pelletier, reached two

the

court found

that the

appellant's requests to

ploy

to obtain

States v.
______

an

Marenghi,
________

use the

bathroom were only

opportunity to

896 F.

destroy

Supp. at

part of

evidence."

217.

"a

United
______

Second, the

court

determined that Scott Pelletier's refusal to permit the appellant

to use the

bathroom was

that the appellant might

her person, and did not

prompted solely by

his valid

concerns

dispose of any contraband concealed

amount to improper police conduct.

on

See
___

id.
___

We,

much like

the

district court,

are reluctant

to

excuse the absence of a female officer at the police station that

evening.

It was, at

female officer

since the police

the very

least, imprudent not

immediately available that

knew that

to have

evening, particularly

two females were

going to be

taken

into custody more than

ninety minutes prior to their

arrival at

the police station.

Notwithstanding our concern on this point, the evidence

clearly supports the district court's conclusions with respect to

the

motivations of

appellant

has

not

both the

directed

suggesting

that

effort

induce her

to

she was

to

conclude that the district

officers and

our

attention

denied access

provide

the appellant.

to

to

any

evidence

the bathroom

a statement.

The

in an

As such,

we

court s determination with respect to

the voluntariness of the written statement was correct.

Ordinarily, we

would proceed to inquire

as to whether

the appellant had been advised of, and waived, her constitutional

rights.

In this case, however, the appellant does not challenge

-11-

the

district court's

findings with respect

to her

knowing and

remains, then, is

whether the

intelligent waiver of these rights.3

The sole

written

statement

question that

could

coercion lingering from the

possibly

have

roadside.

been

tainted

In order to

by

any

resolve this

issue, we must compare and contrast the circumstances surrounding

each

of the

factors:

that

two statements.

In so

look to several

the change in the place of the interrogations; the time

passed

between

the

statements; and

identity of the interrogators.

310;

doing, we

United States
_____________

(11th Cir.),

McGinnis,
________

change

in

the

See Oregon v. Elstad, 470 U.S. at


___ ______
______

v. Mendoza-Cecelia,
_______________

cert. denied,
_____________

the

506

963 F.2d

U.S. 964

(1992);

1467, 1475-76

Holland
_______

v.

963 F.2d 1044, 1050 (7th Cir. 1992), cert. denied, 506
____________

U.S. 1082 (1993); United States v. Daniel, 932 F.2d 517, 519 (6th
_____________
______

Cir.),

cert. denied,
____________

Shimoda,
_______

U.S.

502

U.S.

890

(1991);

cf.
___

Medeiros
________

v.

889 F.2d 819, 823-25 (9th Cir. 1989), cert. denied, 496
____________

938 (1990); McFadden v.


________

Cir. 1987).

Garraghty, 820 F.2d


_________

654, 660 (4th

In this

statement

case, these

factors suggest that

the written

was sufficiently attenuated from any possible coercion

____________________

In

the district court, the

the "cognitive

abilities" to

appellant argued that she


validly waive her

lacked

Miranda rights.
_______

In her brief, she makes passing reference to these abilities.

To

the

we

extent

decline.
perfunctory

she
"[I]t

invites this
is

court

apodictic that

manner, unaccompanied

argumentation, are deemed waived.'"

to

visit

'issues
by some

this issue,

adverted to
effort

in

at developed

United States v. Caraballo_____________


__________

Cruz, 52 F.3d 390, 393 (1st Cir. 1995) (quoting United States v.
____
______________
Zannino, 895 F.2d 1,
_______

17 (1st Cir.), cert. denied,


____________

(1990)).

-12-

494 U.S. 1082

at the roadside so

several hours

roadside

statement.

in a

as to ensure that it was not tainted.

elapsed between

statements

and

Second, the

lunch room at the

the

the time

time

she

the appellant

provided

the

police station.

There

written

is no suggestion

"possibly" coercive elements from the

in

the drug-detecting

location.

made the

appellant dictated the written statement

that any of the

particular,

First,

dog,

were

Moreover, the appellant provided

she had been permitted to use a bathroom.

Scott Pelletier's presence at

roadside,

present at

this

the statement after


_____

Finally, the impact of

both locations is not appreciable:

neither

the

appellant

personally responsible

nor

the

for any

record

suggest

that

coercive behavior at

he

was

the police

station.

III.
III.

CONCLUSION
CONCLUSION

A thorough examination of the briefs and record in this

case reveals

nothing to support the

her

statement

written

bolsters

the

voluntarily

district

provided

Accordingly, we affirm.
______

was

coerced.

court's

the

appellant's contention that

Instead,

conclusion

statement

to

the

that the

the

evidence

appellant

authorities.

-13-