February 2, 1993
UNITED STATES COURT OF APPEALS For The First Circuit
No. 92-1435
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
JEAN M. TAYLOR,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Morton A. Brody, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
Arlene C. Halliday for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Richard S. Cohen, United States Attorney, and Timothy C. Wing,
Assistant United States Attorney, were on brief for appellee.
CYR, Circuit Judge. Jean Taylor appeals the judgment CYR, Circuit Judge.
of conviction and sentence entered against her on one count of
knowingly and intentionally manufacturing marijuana in violation
of 21 U.S.C. 841(a)(1), 841(b)(1)(B) and 18 U.S.C. 2. We
affirm.
A. Probable Cause for Search Warrant
On the morning of July 17, 1991, Robert Hutchings, Jr.,
a special agent of the Maine Bureau of Intergovernmental Drug
Enforcement ("BIDE"), spoke with a confidential informant who
reported that he recently had visited appellant Taylor and her
husband at property in Levant, Maine, upon which the Taylors
resided in separate mobile homes. The informant observed several
large marijuana plants (up to 4 feet tall) growing in appellant's
vegetable garden and around the perimeter of her mobile home,
several hundred marijuana seedlings (5 to 6 inches tall) growing
in milk cartons and crates and awaiting transplantation to nearby
woods, and an "unusual amount" of zip lock storage bags inside
appellant's residence. During one visit, appellant told the
informant she was concerned because she had started more seed-
lings than she could tend.
The same day he received the tip from the informant,
Agent Hutchings consulted the affidavit submitted in support of a
1986 search warrant application, in which another officer attest-
ed that he had purchased marijuana from Taylor on two occasions
and personally observed marijuana plants growing on her property.
A local drug task force report noted that Taylor had pled guilty
to two counts of marijuana trafficking in October 1986. Incorpo-
rating this evidence into an affidavit, Hutchings obtained a
state court search warrant which was executed later that day.
Appellant ultimately was charged in the United States District
Court for the District of Maine with manufacturing marijuana in
violation of federal law.
The district court denied appellant's motion to sup-
press the physical evidence (marijuana plants and drug parapher-
nalia) based on an alleged absence of probable cause to support
the search warrant. Appellant contends that Agent Hutchings'
sworn statements vouching for the informant's reliability were
conclusory and that the tips provided by the informant were
inadequately corroborated.
The sufficiency of a search warrant affidavit is
appraised against well-established criteria:
The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a par- ticular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for . . . conclud- [ing]" that probable cause existed.
United States v. Caggiano, 899 F.2d 99, 102 (1st Cir. 1990)
(quoting Illinois v. Gates, 462 U.S. 213, 238-39 (1983)) (cita-
tions omitted); see also United States v. Ventresca, 380 U.S.
102, 108 (1965). The reviewing court does not undertake de novo
review, but accords "great deference" to the probable cause
determination. United States v. Ciampa, 793 F.2d 19, 22 (1st
Cir. 1986) (citation omitted).
The Hutchings affidavit tersely attests that the infor-
mant "has provided reliable information [to law enforcement
officials] in the past." Standing alone, so conclusory a state-
ment might not provide an issuing magistrate with the requisite
"'substantial basis for concluding that probable cause existed.'"
Caggiano, 899 F.2d at 103 (quoting Gates, 462 U.S. at 238-39).
On the other hand, an informant's reliability need not invariably
be demonstrated through a detailed narration of the information
previously furnished to law enforcement for example, by
listing the number or names of persons arrested or convicted as a
consequence of the informant's prior assistance. Rather, the
affidavit may disclose an adequate basis for evaluating the
informant's veracity through the very specificity and detail with
which it relates the informant's first-hand description of the
place to be searched or the items to be seized. Id. at 102-03
(reliability of information enhanced if details derived from
informant's personal observation, rather than from hearsay)
(citing Ciampa, 793 F.2d at 24). As was the case in Caggiano,1
the informant provided Agent Hutchings with a detailed descrip-
tion of the premises to be searched, including the exteriors and
1In Caggiano, the informant was a former drug user who
provided the names of occupants of the searched premises and the exact dates of his visits. He reported that he observed fire- arms, as well as glassine bags containing white powder which the defendant had said contained cocaine. Caggiano, 899 F.2d at 101.
interiors of the Taylor residences, noting in particular the 400
to 500 marijuana seedlings being raised in milk cartons and
crates at appellant's residence.
Continuing with the "totality of the circumstances"
analysis mandated by Gates, we find no merit in appellant's
contention that Hutchings conducted an inadequate or superficial
follow-up investigation of the informant's tip. On the contrary,
Hutchings promptly set out to corroborate the informant's tip by
consulting official records relating to appellant's prior convic-
tions for marijuana trafficking. These records indicated that
appellant, five years earlier, admitted to another police officer
that she intentionally cultivated marijuana on the same property,
and later entered a guilty plea to a state trafficking charge.
An affiant's knowledge of the target's prior criminal activity or
record clearly is material to the probable cause determination.
See United States v. Asselin, 775 F.2d 445, 446 (1st Cir. 1985);
United States v. Sumpter, 669 F.2d 1215, 1222 (8th Cir. 1982).
Moreover, the issuing magistrate properly may credit the experi-
ence and pertinent expertise of a law enforcement affiant in
evaluating the authenticity of the informant's description of the
target's modus operandi. See United States v. Soule, 908 F.2d
1032, 1040 (1st Cir. 1990) (citing United States v. Ortiz, 422
U.S. 891, 897 (1975) ("[O]fficers are entitled to draw reasonable
inferences from [] facts in light of their knowledge of the area
and their prior experience . . . .")). In the present case, the
informant's detailed description of the location, manner and
extent of the marijuana cultivation and the presence on the same
premises of an unusually large number of zip lock plastic bags,
cf. United States v. Desmarais, 938 F.2d 347, 352 (1st Cir. 1991)
(presence of plastic baggies supports reasonable inference of
intent to distribute marijuana and hashish found on same premis-
es), combined with Agent Hutchings' extensive experience as a law
enforcement officer in Maine,2 plainly buttressed the informant-
based indicia of probable cause. We accordingly conclude, based
on the totality of the circumstances, that the Hutchings affida-
vit provided a substantial basis for the issuing judicial offi-
cer's practical, common-sense finding that there was a fair prob-
ability that evidence of a crime would be found on appellant's
premises.
B. Admissibility of Pre-Miranda Admissions
While a search team executed the warrant, Agent
Hutchings arrested appellant and placed her in the back seat of a
police vehicle. Hutchings testified that he gave appellant no
Miranda warnings because he did not intend to ask her any ques-
tions. At some point during the trip to the county jail, appel-
lant initiated conversation by asking: "Why is this happening to
me?" Hutchings replied: "You can't be growing dope on your
property like that." Taylor responded: "If you had waited and
come next week, you'd have only gotten half the plants that you
2The Hutchings affidavit fully recited his credentials, including his educational training and eleven years of experience in drug-related cases.
did[,] the way you do is you pull the male plants early." She
added that she was growing the marijuana plants for treatment of
a medical condition. As appellant was speaking, Hutchings turned
on the overhead light in the vehicle and, without stopping the
vehicle, wrote appellant's statements on a pad. Later, during
"booking" at the county jail, appellant spontaneously repeated
some of these statements to a deputy sheriff.
Miranda warnings must be given before a suspect is
subjected to "custodial interrogation." United States v. Ma-
guire, 918 F.2d 254, 262 (1st Cir. 1990), cert. denied, 111 S.
Ct. 1421 (1991).3 "Interrogation" includes not only the asking
of direct questions but also means "any words or actions on the
part of police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect." Rhode Island
v. Innis, 446 U.S. 291, 301 (1980) (emphasis added).4 Since
Hutchings' response to appellant's spontaneous inquiry was not
interrogative, we must determine whether it nevertheless consti-
3The government does not deny that appellant was in "custo- dy" during her conversation with Hutchings.
4Unlike the present case, the issue in Innis was whether the
police had initiated "interrogation" after the defendant invoked Miranda. Although the basic test for custodial "interrogation"
does not differ in the pre-Miranda context, courts should be
particularly alert to the presence of subtle declarations and conduct by the police, such as those challenged in Innis, because
an unwarned defendant may be less alert to her rights or to the risks of "volunteered or spontaneous" admissions.
tuted the "functional equivalent." Id. at 302.5
Appellant argues that Hutchings intended to elicit an
incriminating statement en route to the county jail. As evi-
dence, she points to Hutchings' own testimony that suspects often
engage in conversation or general banter while being transported
to jail. More pointedly, she asserts that, when Hutchings'
expectation was confirmed by appellant's inquiry, he deliberately
narrowed his response by referring directly to the criminal
charge for which appellant had just been arrested.
The "functional equivalence" test does not turn on the
5The government insists that the district court ruling that the Hutchings response did not constitute custodial "interroga- tion" is subject to "clear error" review only. Normally, "clear error" is the standard employed in reviewing findings of fact. See United States v. Falon, 959 F.2d 1143, 1146-47 (1st Cir.
1992); United States v. Sanchez, 943 F.2d 110, 112 (1st Cir.
1991). In the present case, however, none of the relevant facts are in dispute. Hutchings alone testified at the motion hearing, conceding that appellant was not given Miranda warnings and that
the in-transit conversation occurred. Thus, the determination as to whether police "interrogation" occurred depends on the totali- ty of the circumstances, a balancing analysis commonly considered amenable to plenary review. See, e.g., United States v. Calisto,
838 F.2d 711, 717-18 (3d Cir. 1988); United States v. Poole, 794
F.2d 462, 465 (9th Cir. 1986) (holding that, absent factual dispute, totality test "requires us to 'consider legal concepts in the mix of fact and law and to exercise judgment about the values' underlying the Miranda rule and the fifth amendment")
(citation omitted). Indeed, the need for a heightened standard of review seems implicit in some of the seminal "interrogation" cases. See, e.g., Arizona v. Mauro, 481 U.S. 520, 528-29 n.6
(1987) (reversing "interrogation" determination by state supreme court, and challenging dissent's assertion that court improperly disregarded factual findings: "[The] facts of this case do not present a sufficient likelihood of incrimination to satisfy the legal standard articulated in Miranda v. Arizona and in Rhode
Island v. Innis.") (emphasis added); Innis, 446 U.S. at 303
(vacating judgment of state supreme court, noting that "[i]t is our view ['of the facts of the present case'], therefore, that
the respondent was not subjected [to 'interrogation'].") (empha- sis in original).
subjective intent of the particular police officer but on an
objective assessment as to whether the police statements and
conduct would be perceived as interrogation by a reasonable
person in the same circumstances. See Arizona v. Mauro, 481 U.S.
520, 527 (1987); Innis, 446 U.S. at 301-02 n.7; cf. United States
v. Soto, 953 F.2d 263, 265 (6th Cir. 1992) (noting that the
"[a]bsence of intent to interrogate, while not irrelevant, is not
determinative of whether police conduct constitutes interroga-
tion"). Although a different result might obtain were it estab-
lished that the challenged police conduct was designed to elicit
a response, see United States v. Vazquez, 857 F.2d 857, 863 (1st
Cir. 1988) (quoting Innis, 446 U.S. at 302 n.7), the mere fact
that a police officer may be aware that there is a "possibility"
that a suspect may make an incriminating statement is insuffi-
cient to establish the functional equivalent of interrogation.
Mauro, 481 U.S. at 528-29.
Hutchings testified that he "might have anticipated
that [appellant] would make some sort of statement in response to
what [he] said," but because the entire conversation was so
abruptly initiated by Taylor, and so transitory, he "wasn't
thinking of what her next sentence was going to be or what she
was even thinking." Tr. at 38-39. We think Hutchings' conduct
indicates no premeditated or deliberate design, but evidences, at
most, Hutchings' awareness that appellant might continue the
conversation she spontaneously initiated. See, e.g., Innis, 446
U.S. at 303 (noting that police comments were part of "brief
conversation" containing "a few offhand remarks"); Plazinich v.
Lynaugh, 843 F.2d 836, 840 (5th Cir. 1988) (noting brevity and
informality of officer's statement to defendant as evidence of
lack of "interrogation"), cert. denied, 488 U.S. 1031 (1989).6
Nor can we agree that Hutchings' answer unresponsively
"narrowed" appellant's inquiry, or designedly channeled her
attention toward dangerous waters. Viewed objectively, appel-
lant's initial inquiry ("Why is this happening to me?") was a
direct request for an explanation as to why she was under arrest.
Appellant would have us propound a rule that police officers may
not answer direct questions, even in the most cursory and respon-
sive manner. It might well be argued, however, that an officer's
refusal to respond to such a direct question in these circum-
stances would be at least as likely to be perceived as having
been intended to elicit increasingly inculpatory statements from
a disconsolate suspect arrested moments before. Although we do
not rule out the possibility that "interrogation" might occur as
a consequence of a police officer's response to, or relentless
pursuit of, this type of inquiry in other circumstances, cf.,
e.g., Harryman v. Estelle, 616 F.2d 870, 874 (5th Cir.) (relevant
inquiry is whether officer's statement of "surprise," however
posed, "could reasonably have had the force of a question")
6Appellant points to the presence of a writing pad in the vehicle, as further evidence of premeditation. The availability of writing materials in a police vehicle is more reasonably explained by the routine demands of law enforcement work. Without more, the presence of these materials formed an insuffi- cient basis for the proposed inference of premeditation.
(emphasis added), cert. denied, 449 U.S. 860 (1980), in the
present case appellant's inquiry was entirely spontaneous and
the officer's answer was cursory and directly responsive. See
United States v. Jackson, 863 F.2d 1168, 1172 (4th Cir. 1989)
(finding no "interrogation" where police officer responded to
direct inquiry regarding reasons for defendant's arrest, made
during conversation initiated by defendant); United States v.
Crisco, 725 F.2d 1228, 1232 (9th Cir.) (holding that police
officer's informational response to defendant who expressed
general "bewilderment" at arrest was not "interrogation"), cert.
denied, 466 U.S. 977 (1984); cf. Arizona v. Roberson, 486 U.S.
675, 687 (1988) (noting that, after defendant invokes Miranda
rights, there is no "interrogation" if police merely "inform"
defendant about an investigation of a second offense of which he
is suspected).
We thus conclude that appellant's statement was not the
product of custodial interrogation. Miranda v. Arizona, 384 U.S.
436, 478 (1966) ("Volunteered statements of any kind are not
barred by the Fifth Amendment . . .").7
C. Rational Basis for Drug Equivalency Ruling
The district court applied the drug equivalency stan-
dard prescribed in U.S.S.G. 2D1.1(c): "in the case of an
offense involving marijuana plants, if the offense involved 50 or
7We note that appellant made substantially the same spon- taneous admissions later at the county jail, even though the "booking" officer posed only routine "booking" questions.
more plants, [the court should] treat each plant as the equiva-
lent of one kilogram of marijuana." Consequently, appellant was
sentenced to ninety-nine months' imprisonment (offense level 28,
criminal history category II), based on the 661 marijuana plants
seized in and around her residence.
Appellant claims that section 2D1.1(c) is arbitrary and
without a rational empirical basis; hence its application vio-
lates due process. She relies on expert testimony presented in
the case of United States v. Osburn, 756 F. Supp. 571 (N.D. Ga.
1991), to the effect that it is impossible to cultivate a mari-
juana plant whose yield would exceed one kilogram of marijuana.
We disagree with appellant that the equivalency stan-
dard is arbitrary. Congress reasonably may opt for a punitive
deterrent against large-scale marijuana manufacturing operations
which pose a greater threat than small-scale operations, and
warrant exponentially enhanced punishment. See United States v.
McMahon, 935 F.2d 397, 401 (1st Cir. 1991) ("'Congress intended
to punish growers of marihuana by the scale or potential of their
operation and not just by the weight [or size] of the plants
seized at a given moment.'") (citation omitted); see also United
States v. Jordan, 964 F.2d 944, 947 (9th Cir. 1992); United
States v. Holmes, 961 F.2d 599, 601 (6th Cir. 1992); United
States v. Motz, 936 F.2d 1021, 1025-26 (9th Cir. 1991).8 Even
8Whatever precedential weight Osburn had was withdrawn on
direct appeal. See United States v. Osburn, 955 F.2d 1500 (11th
Cir. 1992). To our knowledge, no other court has held 2D1.1(c) unconstitutional on the empirical ground asserted by appellant. In reversing the district court, the Eleventh Circuit held that
were we to conclude, however, that empirical evidence could
undermine the constitutionality of 2D1.1, a conclusion we need
not consider, appellant not only failed to present evidence in
support of such a claim but her borrowed empirical support has
vanished.9 The district court's application of U.S.S.G. 2D1.1
did not constitute error.
Affirmed. Affirmed
neither Congress nor the Commission intended the 2D1.1 equiva- lency test as a predictor of the maximum yield of a marijuana plant. Id. at 1507-08. Rather, the actual weight of the con-
trolled substance derived from any maturing plant was recognized as largely speculative, whereas a non-equivalency rule would
"reward" a marijuana grower for the mere fortuity that her arrest occurred early in the growing season. Id. at 1506.
9The expert who testified in Osburn conceded later that he
had since cultivated a marijuana plant whose actual yield (1152 grams) exceeded the drug equivalency rate adopted in 2D1.1. United States v. Godwin, 779 F. Supp. 561, 565 (N.D. Fla. 1991).