United States v. Marenghi

Opinion

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


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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").


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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,
                                      _____________     _____


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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


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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


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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


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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


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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


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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.
                          ______


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