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, Assistant United States Attorney, with
_________________
whom Jay P. McCloskey, United States Attorney, was on brief for
________________
appellee.
____________________
March 19, 1997
____________________
____________________
* Of the District of Rhode Island, sitting by designation.
LISI, District Judge. Following a three-day trial, a
LISI, District Judge.
______________
jury convicted defendant-appellant Michelle T. Marenghi of
conspiring to possess with intent to distribute a controlled
substance containing cocaine base, as well as the underlying
substantive offense, in violation of 21 U.S.C. 846 and
841(a)(1). The appellant was thereafter sentenced to a term of
imprisonment of seventy months, to be followed by four years of
supervised release. She appeals her conviction on the ground
that the district court erred in denying a motion to suppress a
written statement elicited from her shortly after her arrest.
For the reasons set forth below, we affirm.
I. BACKGROUND
I. BACKGROUND
In October 1994, agents from the Maine Drug Enforcement
Agency ("MDEA") commenced an investigation into the distribution
of crack cocaine in Portland, Maine. Specifically, the agents
targeted a group of individuals who purchased the substance in
Boston, Massachusetts, transported it to Portland, and thereafter
sold it out of various hotel rooms and houses in the Portland
area. The investigation 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 11:00
p.m. on December 9, 1994, when agents from the MDEA and officers
____________________
1 A detailed account of the investigation can be found in the
July 17, 1995 Memorandum and Order of the district court. See
___
United States v. Marenghi, 896 F. Supp. 207, 209-13 (D. Me.
______________ ________
1995).
-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 vehicle and separately detained at the scene.
The agents thereafter proceeded to search the vehicle in which
the individuals were riding.
The appellant was handcuffed and placed in the back
seat of an unmarked police car in which Portland Police Officer
Robert Pelletier sat. Robert Pelletier's brother and brother
officer, Scott Pelletier, a detective assigned to the MDEA, got
into the car shortly thereafter. Scott Pelletier proceeded to
explain to the appellant why the vehicle had been stopped and
that she would soon be transported to a Portland police station.
Scott Pelletier informed the appellant that a drug-detecting dog
had alerted to drugs on the bodies of two of the other
individuals who had been riding in the appellant's vehicle, and
that the dog would be used to search her as 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 in a body cavity. The appellant
responded, stating "I don't have it up there, I 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 Pelletier that the appellant wanted to speak with him.
When Scott Pelletier returned to the vehicle, the appellant
-3-
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 appellant
indicated that she needed to use a bathroom. At no time was she
advised of her Miranda rights, however. See Miranda v. Arizona,
_______ ___ _______ _______
384 U.S. 436 (1966). Approximately ninety minutes after the
appellant was first detained, Scott Pelletier transported her to
the Portland Police Department.2
Upon arriving at the police station, the appellant
again told Scott Pelletier that she needed to use the bathroom.
Scott Pelletier advised her that a female officer would have to
accompany 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 minutes later. At that
point, he advised the appellant of her Miranda rights, inquiring
_______
of 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 the
efforts to locate a female officer had been successful. Upon
learning that they had not, Scott Pelletier returned and asked
the appellant whether she had inserted the drugs inside a body
____________________
2 The MDEA agents stopped the appellant s vehicle at
approximately 11:00 p.m. Scott Pelletier testified that he
arrived at the scene between 11:40 p.m. and 11:50 p.m., and that
he departed with the appellant for the police station
approximately forty minutes later. See Transcript, April 4, 1995
___
Hearing on Motion to Suppress, at 44 & 111.
-4-
cavity or whether they were merely inside her clothing. The
appellant stated that the narcotics were easily retrievable and,
in the presence of Scott Pelletier and Officer Chase, proceeded
to reach into her pants and remove a plastic bag, which she then
placed on the floor. The appellant was thereafter permitted to
use the bathroom without the accompaniment of a female officer.
The appellant was then moved to a station lunch room,
where she proceeded to dictate a statement concerning her
involvement in distributing crack cocaine in Portland. When
complete, Scott Pelletier had the appellant read each page of the
document for inaccuracies. After correcting one sentence, the
appellant initialed the corner of each page, 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 more than five grams of cocaine base, as
well as possession with intent to distribute cocaine base, in
violation of 21 U.S.C. 846 and 841(a)(1). On February 9,
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 (hereafter referred to as the "roadside statements");
and, (2) the written statement made at the Portland Police
Station (hereafter referred to as the "written statement").
-5-
The district court conducted an evidentiary hearing on
the 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 was in custody and without benefit of Miranda
_______
warnings. See United States v. Marenghi, 896 F. Supp. at 215.
___ _____________ ________
The roadside statements were therefore excluded from use at
trial. See id.
___ ___
The district court then proceeded to make two findings
with respect to the written statement. First, the court found
that the appellant dictated the written statement after she had
made a voluntary, knowing, and intelligent waiver of 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 roadside statements inadmissible. See id. at 216.
___ ___
Thus, the district court 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. DISCUSSION
II. DISCUSSION
At the outset, it is incumbent upon this court to
delineate the correct standard of its review. In the context of
a motion to suppress, we examine a district court's findings of
fact for clear error. See United States v. Mitchell, 85 F.3d
___ ______________ ________
800, 804 (1st Cir. 1996); United States v. Valle, 72 F.3d 210,
_____________ _____
-6-
214 (1st Cir. 1995). In contrast, we conduct de novo inquiries
_______
into district court determinations with respect to questions of
law, including those involving 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 appellant challenges the validity of
the district court's order with respect to the admissibility of
the written statement. The suppression of the roadside
statements is not at issue. Nevertheless, this court must
examine the circumstances under which the roadside statements
were made, as the admissibility of the written statement is, in
part, dependent upon whether the police conduct at the roadside
was coercive.
When law enforcement officials do not deliberately
engage in coercive or improper tactics in obtaining an initial
statement, but rather only fail to advise a defendant of his or
her Miranda warnings, a court's task in determining the
_______
admissibility of a subsequent statement is relatively
straightforward. Such a statement is admissible if it was
obtained after the defendant: (1) was advised of his or her
Miranda rights; and, (2) knowingly and voluntarily waived those
_______
rights. See Oregon v. Elstad, 470 U.S. 298, 318 (1985); Bryant
___ ______ ______ ______
v. Vose, 785 F.2d 364, 366-67 (1st Cir.), cert. denied, 477 U.S.
____ ____________
907 (1986). This standard reflects the belief that "[w]hen
neither the initial nor the subsequent admission is coerced,
little justification exists for permitting the highly probative
-7-
evidence of a voluntary confession to be irretrievably lost to
the factfinder." Oregon v. Elstad, 470 U.S. at 312. "In such
______ ______
circumstances, the finder of fact may reasonably conclude that
the suspect made a rational and intelligent choice whether to
waive or invoke [his or her] rights." Id. at 314.
___
There is an enormous difference, however, between "the
uncertain consequences of disclosure of a 'guilty secret' freely
given in response to an unwarned but noncoercive question" and
"the direct consequences flowing from coercion of a confession by
physical violence or other deliberate means calculated to break
the suspect's will . . . ." Id. at 312. As such, when the
___
infirmity underlying an initial statement transcends the mere
failure to follow the dictates of Miranda, the determination as
_______
to the admissibility of a subsequent statement is much more
involved. A careful and thorough administration of Miranda
_______
warnings alone is not necessarily sufficient to ensure the
validity of the subsequent statement. See id. at 310.
___ ___
This is so because the danger exists that the coercive
nature of the circumstances under which the initial statement was
obtained lingered in the mind of the defendant at the time he or
she provided the subsequent statement, irrespective of the fact
that he or she had been advised of the Miranda warnings and made
_______
the subsequent statement in an atmosphere devoid of coercion or
compulsion. See id. 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 is no dispute in this case as to the fact that
the appellant provided the roadside statements without having
first been advised of her Miranda rights. The parties differ as
_______
to whether these statements were the product of improper police
coercion. The appellant contends that the police officers
coerced the statement by threatening to use a police dog to
search the appellant for drugs and denying the appellant's
requests to use the bathroom. The 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 concluded that "the statements made in the police
station were sufficiently removed from the setting of the
illegally obtained . . . inculpatory statements" at the roadside.
United States v. Marenghi, 896 F. Supp. at 216. Notwithstanding
______________ ________
this fact, the court never explicitly determined whether the
roadside statements were indeed coerced. The district court only
went as far as saying that those statements were "possibly
________
coerced." 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. This exercise would require
-9-
us to make critical determinations as to the credibility of the
individuals present at the roadside as, not surprisingly, the
recitations of the events that transpired that evening vary from
witness to witness. It would not be wise for us to attempt such
an endeavor from a cold record.
Further, a definitive resolution of this issue is not
necessary in the present case. We believe that the appellant s
written statement would be admissible even if we were to conclude
that the roadside statements were indeed coerced.
We therefore apply the heightened threshold of
admissibility and begin our analysis by examining the
voluntariness of the written statement independent of any
potential taint that may have lingered from the roadside. 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 the circumstances.'" United States v.
______________
Jackson, 918 F.2d 236, 241 (1st Cir. 1990) (quoting Bryant v.
_______ ______
Vose, 785 F.2d at 367-68). The appellant argued below that the
____
denial of her repeated requests to use 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 of hearing the
testimony of both the appellant and Scott Pelletier, reached two
conclusions on this point. First, the court found that the
-10-
appellant's requests to use the bathroom were only part of "a
ploy to obtain an opportunity to destroy evidence." United
______
States v. Marenghi, 896 F. Supp. at 217. Second, the court
______ ________
determined that Scott Pelletier's refusal to permit the appellant
to use the bathroom was prompted solely by his valid concerns
that the appellant might dispose of any contraband concealed on
her person, and did not amount to improper police conduct. 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 the very least, imprudent not to have a
female officer immediately available that evening, particularly
since the police knew that 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 both the officers and the appellant. The
appellant has not directed our attention to any evidence
suggesting that she was denied access to the bathroom in an
effort to induce her to provide a statement. As such, we
conclude that the district 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
intelligent waiver of these rights.3
The sole question that remains, then, is whether the
written statement could possibly have been tainted by any
coercion lingering from the roadside. In order to resolve this
issue, we must compare and contrast the circumstances surrounding
each of the two statements. In so doing, we look to several
factors: the change in the place of the interrogations; the time
that passed between the statements; and the change in the
identity of the interrogators. See Oregon v. Elstad, 470 U.S. at
___ ______ ______
310; United States v. Mendoza-Cecelia, 963 F.2d 1467, 1475-76
_____________ _______________
(11th Cir.), cert. denied, 506 U.S. 964 (1992); Holland v.
_____________ _______
McGinnis, 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, 502 U.S. 890 (1991); cf. Medeiros v.
____________ ___ ________
Shimoda, 889 F.2d 819, 823-25 (9th Cir. 1989), cert. denied, 496
_______ ____________
U.S. 938 (1990); McFadden v. Garraghty, 820 F.2d 654, 660 (4th
________ _________
Cir. 1987).
In this case, these factors suggest that the written
statement was sufficiently attenuated from any possible coercion
____________________
3 In the district court, the appellant argued that she lacked
the "cognitive abilities" to validly waive her Miranda rights.
_______
In her brief, she makes passing reference to these abilities. To
the extent she invites this court to visit this issue, we
decline. "[I]t is apodictic that 'issues adverted to in a
perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived.'" 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, 494 U.S. 1082
_______ ____________
(1990)).
-12-
at the roadside so as to ensure that it was not tainted. First,
several hours elapsed between the time the appellant made the
roadside statements and the time she provided the written
statement. Second, the appellant dictated the written statement
in a lunch room at the police station. There is no suggestion
that any of the "possibly" coercive elements from the roadside,
in particular, the drug-detecting dog, were present at this
location. Moreover, the appellant provided the statement after
_____
she had been permitted to use a bathroom. Finally, the impact of
Scott Pelletier's presence at both locations is not appreciable:
neither the appellant nor the record suggest that he was
personally responsible for any coercive behavior at the police
station.
III. CONCLUSION
III. CONCLUSION
A thorough examination of the briefs and record in this
case reveals nothing to support the appellant's contention that
her written statement was coerced. Instead, the evidence
bolsters the district court's conclusion that the appellant
voluntarily provided the statement to the authorities.
Accordingly, we affirm.
______
-13-
