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United States of America v. Kurt Carpentino
Case Number: 18-1969
Judge: Bruce M. Selya
Court: United States Court of Appeals
For the First Circuit
On appeal from The UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Plaintiff's Attorney: Seth R. Aframe, Assistant United States Attorney, with whom
Scott W. Murray, United States Attorney
Boston, MA - Criminal defense lawyer represented defendant charge with transportation of a minor with intent to engage in criminal sexual activity.
We rehearse the facts as supportably found by the
district court following the suppression hearing. See United
States v. Coombs, 857 F.3d 439, 443 (1st Cir. 2017); see also
United States v. Carpentino, No. 17-cr-157-PB, 2018 WL 2768656, at
*1-2 (D.N.H. June 8, 2018).
Around 8:00 a.m. on April 27, 2017, a VSP trooper
received a call informing him that M.H., a fourteen-year-old girl
from New Hampshire, was missing. The call directed him to proceed
to an abandoned motel in Rockingham, Vermont. Upon arrival, the
trooper learned that a search party had spotted M.H. near the motel
in the company of a man. The search party suspected that the
unknown man was the defendant: he was the landlord of the premises
in which M.H. was living, and his family owned the motel near where
M.H. had been seen.
The trooper issued a dispatch asking other law
enforcement personnel in the area to look out for the defendant's
vehicle. A local police officer stopped the defendant's vehicle
shortly after 9:00 a.m. The officer, along with others (including
the trooper), detained the defendant on the side of the road and
questioned him about M.H.'s whereabouts.
- 4 -
In the meantime, the search party located M.H., who
reported that she had been kidnapped and assaulted. The trooper
received this news around 9:50 a.m., arrested the defendant, and
took him to a nearby barracks.
At 12:56 p.m., two troopers assigned to the
investigations unit brought the defendant to an interview room.
The troopers advised the defendant of his Miranda rights, and the
defendant signed a waiver form. He proceeded to tell the troopers
that he had driven alone from New Hampshire into Vermont the night
before. The troopers challenged the defendant's truthfulness,
explaining that they were collecting evidence that would likely
prove his story false. At that point, the defendant said that he
wanted to end the interview and talk to his lawyer. The troopers
immediately ceased their questioning and, at 1:49 p.m., returned
him to the holding cell. On the way to the cell, the defendant
asked to place a telephone call to his lawyer. The troopers said
he could do so. Notwithstanding this assurance, the troopers did
not give the defendant access to a telephone.
Approximately forty minutes after being returned to his
cell and before he was given access to a telephone, the defendant
waved at a camera to get a guard's attention. When the guard
approached the cell, the defendant asked to talk to the troopers
who had previously interviewed him. The troopers came to the
- 5 -
defendant's cell, confirmed that he wished to speak with them, and
brought him back to the interview room.
The following conversation ensued, all of which was
Trooper 2: I'll get you another glass
[of water], and then we have
to re-Mirandize you because
we brought you back in.
Defendant: How much, would, uhm, the
maximum time be for
something like this?
Trooper 1: I'd have to look. You know,
I don't . . . . I know a
lot, but I don't know a lot
of details, so I'm not sure.
Defendant: Alright. Uhm . . .
Trooper 1: Let me just get past this
first, the administrative
part. So I'm just, because
we gotta go over these
again. You've come to us
saying "Hey, I want to talk
to you again." Correct?
Defendant: Yeah, because, uhm, one of
the things that the officer
said that, uhm . . . once I
was done talking with you
was that if [sic] was up to
you if I could have a phone
call to my lawyer.
Trooper 1: Well is that what you're
looking for, is a phone call
to your lawyer or do you
want to talk to us again?
Defendant: Uhm, I kinda need a phone
call to my lawyer, too. I
- 6 -
need to let somebody know
that I'm here.
Trooper 2: Here you go Kurt.
Defendant: Thank you.
Trooper 1: I mean, if you want to talk
to an attorney, then I can't
talk to you. We can't talk
Trooper 1: My understanding is that
you indicated to somebody
that you wanted to speak to
Trooper 2: Is that true, or . . . ?
Trooper 1: Is that what you wanna do or
do you want to talk to an
Defendant: I don't know. Just . . . I
Trooper 2: Well, you know us. We're
just looking for the truth.
That's all we're looking
Defendant: I should probably start
from the beginning.
Trooper 2: Yeah, yeah, but we gotta get
through the Miranda first.
Trooper 1: And Kurt, I have to make
sure that we're clear on
this. You want to talk to
- 7 -
Trooper 1: Okay. To do that, I have to
re-go through that whole
Miranda thing again. And if
you want me to, I will. You
made mention about calling
a lawyer. If that's what
you want, then we can do
that, too. But I can't do
both. I can do one or the
Defendant: I can talk with you with a
Trooper 1: You can, but usually that
Trooper 1: But it's up to you. I just
want you, I want to be clear
with you. I don't want
. . .
Trooper 2: Make sure that it's clear
that it's your choice.
Trooper 1: Yeah, you don't have to talk
Trooper 2: You're in control here,
well, I mean as far as
. . .
Trooper 1: As far as talking to us.
Trooper 2: Right.
Defendant: Yeah. I'll talk.
Trooper 1: You'll talk to us.
Defendant: I'll talk.
- 8 -
Trooper 1: Ok. I'm going to go through
these again for you. You
have the right to remain
silent. Anything you say
can and will be used against
you in a court of law. You
have the right to talk to a
lawyer before questioning
and have a lawyer present
with you during any
questioning. If you cannot
afford to hire a lawyer, one
will be appointed to
represent you at public
expense before any
questioning, if you wish.
In Vermont, that's called a
public defender. If you
decide to answer questions,
you can stop the
questioning at any time. Do
you understand each of
these rights I've explained
Trooper 1: Do you want to talk to me
Defendant: Fuck. I don't know. I'm
scared. I don't know what's
going on. Yeah, I'll talk.
I just . . . I don't know
how long, like, I'd be stuck
here. Like, is there like
an arraignment or
Trooper 1: Yeah. I'll explain all
that. That's no big deal.
Can I just get through this?
Defendant: Am I ready to talk to you,
Trooper 2: What's that?
- 9 -
Defendant: We're at "am I ready to talk
. . . ," "am I willing to
talk to you?"
Trooper 2: Yeah.
Trooper 1: Mmm Hmm. Yes. I'm going to
read you the waiver again.
It says "I have been advised
that I have the right to
remain silent, to be
represented by a lawyer and
to talk with one prior to
questioning and to have one
present during questioning.
Knowing my rights, I agree
to waive them and talk to
you now. No threats or
promises have been made to
me." Do you understand all
Defendant: I understand.
Trooper 1: What time you got? This is
the same thing I read to you
before. If you agree to it,
feel free to read it.
At 3:03 p.m., the defendant signed a second Miranda waiver. The
troopers resumed the interview and, about thirty minutes later,
the defendant confessed to driving M.H. from New Hampshire to
Vermont and having sex with her in Vermont.
On October 4, 2017, a federal grand jury sitting in the
District of New Hampshire returned a four-count indictment against
the defendant. Early in the proceedings, the government
voluntarily dismissed three of the counts. This left only the
- 10 -
charge of interstate transportation of a minor with intent to
engage in criminal sexual activity. See 18 U.S.C. § 2423(a).
In advance of trial, the defendant moved to suppress his
confession on the ground that the second phase of the interview
transpired in violation of his Miranda rights.1 The district court
held an evidentiary hearing and denied the motion to suppress.
The court concluded that, although the defendant had invoked his
right to counsel during the first phase of the interview, he
subsequently initiated an investigation-related conversation with
the troopers; that the defendant did not unambiguously reinvoke
his right to counsel during the second phase of the interview; and
that he knowingly and voluntarily waived his Miranda rights before
confessing. See Carpentino, 2018 WL 2768656, at *2-4. After a
four-day trial during which the government played a recording of
the confession, the jury convicted the defendant. The district
court sentenced him to a 384-month term of immurement. This timely
The defendant's challenge to the denial of his motion to
suppress rests on a claim that the troopers procured his confession
in derogation of his Miranda rights. Miranda and its progeny
1 At the same time, the defendant moved to suppress statements
made during his roadside detention. The district court refused to
suppress those statements, and the defendant does not challenge
that ruling on appeal.
- 11 -
require that law enforcement officers provide warnings concerning
certain Fifth Amendment rights — including the right to remain
silent and the right to consult an attorney — before interrogating
a suspect in a custodial setting. See United States v. Hughes,
640 F.3d 428, 434 (1st Cir. 2011); United States v. Conley, 156
F.3d 78, 82 (1st Cir. 1998). Absent such warnings, most statements
that officers obtain during a custodial interrogation are
inadmissible at trial. See Conley, 156 F.3d at 82. Once a suspect
is advised of his Miranda rights, though, he may waive those rights
and consent to an interrogation. See Edwards, 451 U.S. at 484.
If the suspect invokes his right to counsel at any point during
the interrogation, all questioning must cease either until an
attorney is present or until the suspect initiates further
communication with the officers. See id. at 484-85; Johnston v.
Mitchell, 871 F.3d 52, 57-58 (1st Cir. 2017); Conley, 156 F.3d at
In the case at hand, both parties agree that the
interview at the barracks constituted custodial interrogation and,
thus, that compliance with the imperatives of Miranda and its
progeny serves as a condition precedent to the admissibility of
the confession. Similarly, there is no dispute that the defendant
invoked his right to counsel during the first phase of the
custodial interview and that the troopers, as required,
immediately ended the interview.
- 12 -
The crux of the matter, then, is the second phase of the
interview — and the defendant's asseverational array focuses on
that phase. He challenges each of the three subsidiary findings
upon which the district court rested its denial of his motion to
suppress. Specifically, he contends that he did not initiate a
generalized discussion of the investigation with the troopers;
that he reinvoked his right to counsel; and that he did not
knowingly and voluntarily waive his Miranda rights before
Our standard of review is familiar. We assay a district
court's findings of fact on a motion to suppress for clear error.
See Hughes, 640 F.3d at 434. Within this rubric, we are bound to
accept all reasonable inferences drawn by the district court from
those facts. See Coombs, 857 F.3d at 445-46. Questions of law
engender de novo review. See Hughes, 640 F.3d at 434. Against
this backdrop, we address the defendant's three assignments of
To begin, the defendant argues that the court below erred
in concluding that he initiated communication with the troopers
about the investigation after he had terminated the first phase of
the interview. Even so, the defendant does not deny that he
initiated what would become the second phase of the interview by
waving from his cell at a camera and requesting to speak to the
- 13 -
troopers. He says, though, that he sought to speak with the
troopers for the sole purpose of inquiring about the promised
telephone call to his lawyer. Because he did not initiate a
conversation about the substance of the investigation, his thesis
runs, his invocation of the right to counsel during the first phase
of the interview remained velivolant and barred the troopers from
seeking a renewed Miranda waiver and resuming their interrogation.
The relevant facts are not in dispute and, thus, we
review de novo the district court's conclusion that the defendant
initiated investigation-related communication with the troopers.
See, e.g., United States v. Thongsophaporn, 503 F.3d 51, 56-57
(1st Cir. 2007); United States v. Fontana, 948 F.2d 796, 806 (1st
Cir. 1991); see also United States v. Straker, 800 F.3d 570, 621
(D.C. Cir. 2015) (per curiam).
As previously explained, the Edwards Court held that law
enforcement officers may not continue to interrogate a suspect in
custody who has invoked his right to counsel until an attorney is
present.2 See 451 U.S. at 484-85; see also Johnston, 871 F.3d at
57-58. Any subsequent questioning at the officers' behest without
2 The language that the Supreme Court employed in Edwards
suggested only that law enforcement could resume an interrogation
once "counsel has been made available" to the suspect. 451 U.S.
at 484-85. The Court subsequently clarified that officers "may
not reinitiate interrogation without counsel present, whether or
not the accused has consulted with his attorney." Minnick v.
Mississippi, 498 U.S. 146, 153 (1990).
- 14 -
a lawyer present is impermissible because, even if the officers
obtain a Miranda waiver, that waiver is presumed to be involuntary.
See Maryland v. Shatzer, 559 U.S. 98, 104-05 (2010). This rule is
designed to prevent officers from badgering a suspect into
confessing in the inherently coercive environment of a custodial
interrogation. See id. at 105. Withal, it is common ground that
officers may resume questioning a suspect who has invoked his right
to counsel without an attorney present if the suspect "himself
initiates further communication, exchanges, or conversations."
Edwards, 451 U.S. at 484-85. To qualify for this exception, the
suspect must initiate this further communication without coercion
or probing. See United States v. Montgomery, 714 F.2d 201, 204
(1st Cir. 1983).
Although courts have "broadly interpreted" the
circumstances that constitute initiation under Edwards, Fontana,
948 F.2d at 805, not all communication initiated by a suspect paves
the way for officers to resume investigation-related questioning.
If, say, the suspect makes "merely a necessary inquiry arising out
of the incidents of the custodial relationship," officers may not
commence an uncounseled interrogation. Thongsophaporn, 503 F.3d
at 56 (quoting Oregon v. Bradshaw, 462 U.S. 1039, 1046 (1983)
(plurality opinion)). Such "necessary" inquiries are often
mundane; they include, for example, a request for a telephone,
clamor for food or water, and a declared need for access to a
- 15 -
restroom. Bradshaw, 462 U.S. at 1045 (plurality opinion); see
Fontana, 948 F.2d at 806. Conversely, a suspect opens the door to
further questioning if his comments "evince a willingness and a
desire for a generalized discussion about the investigation."
Thongsophaporn, 503 F.3d at 56 (quoting Bradshaw, 462 U.S. at 1045-
46 (plurality opinion)). The initiation inquiry focuses not on
the suspect's subjective intent but, rather, on the objective
reasonableness of the officer's interpretation of the suspect's
statements. See Straker, 800 F.3d at 623; see also Bradshaw, 462
U.S. at 1046 (plurality opinion).
Here, a reasonable officer in the troopers' shoes could
have understood the defendant to be seeking to resume a generalized
discussion of the investigation. To begin, there is no dispute
that the defendant sought out further communication with the
troopers; he secured their attention by waving at the camera in
his cell and then confirmed that he wanted to speak to them. When
the troopers escorted the defendant to the interview room, his
very first question zeroed in on the crime that the troopers were
investigating: "How much, would, uhm, the maximum time be for
something like this?" A reasonable officer could have interpreted
this case-related question from the defendant as evincing a desire
on his part to discuss the investigation. Indeed, the defendant's
question concerned the investigation far more directly than a
number of vague queries that we previously have held constituted
- 16 -
initiation. See, e.g., Thongsophaporn, 503 F.3d at 56 (asking
"what was going on[?]"); Conley, 156 F.3d at 83 (asking "what's
this all about?"); Fontana, 948 F.2d at 806 (asking "[w]hat's going
to happen to me?"); see also Bradshaw, 462 U.S. at 1045 (plurality
opinion) (asking "what is going to happen to me now?").
The defendant strives to persuade us to look beyond this
investigation-related question.3 He argues that his subsequent
exchange with the troopers makes manifest that his real (and
exclusive) purpose in seeking to speak with the officers was to
facilitate a telephone call to his lawyer. This argument derives
from the defendant's response to the troopers' next question, which
asked whether he wanted to talk to them; he replied, "Yeah,
because, uhm, one of the things that the officer said that, uhm
. . . once I was done talking with you was that if [sic] was up to
you if I could have a phone call to my lawyer." When the troopers
asked for clarification about whether he wished to speak with them
or (alternatively) to call his lawyer, the defendant responded,
"Uhm, I kinda need a phone call to my lawyer, too. I need to let
somebody know that I'm here."
3 The government contends that the initiation inquiry must
end with the defendant's question about the maximum sentence for
the crime and that his subsequent statements are relevant only to
whether he reinvoked his right to counsel. Because these
statements do not alter our conclusion, see infra, we do not
address the government's contention about the proper scope of the
- 17 -
This exchange does not demonstrate that a reasonable
officer would have understood the defendant to be initiating
communication for the purpose of securing a call to his lawyer.
Given the defendant's initial question about the maximum sentence
for the crime, the troopers reasonably could have thought that he
was expressing a desire for a generalized discussion about the
investigation. When the troopers attempted to confirm this desire,
the defendant suggested that he might want to call his lawyer.
Faced with a glaring ambiguity, the troopers sought to resolve it:
they explicitly asked the defendant whether he wanted to speak to
them or to his lawyer. The defendant replied that he needed to
call his lawyer "too." In light of the dual purposes for
initiating communication to which the defendant had just adverted,
a reasonable officer could have interpreted this statement to mean
that the defendant wanted both to speak with the troopers about
the investigation and to call his lawyer. Although the defendant
may subjectively have intended that the conversation with the
troopers take place with his lawyer present, his words do not make
any such intention clear.
The short of it is that the defendant initiated
investigation-related communication with the troopers when he
asked to speak with them and proceeded to inquire about the maximum
sentence for the crime. Nothing in his subsequent exchange with
the troopers would have made clear to a reasonable officer that
- 18 -
the defendant initiated communication for the sole purpose of
securing access to a telephone to call his lawyer. Consequently,
we hold that the troopers did not abridge the defendant's right to
counsel by subsequently seeking a Miranda waiver and resuming the
custodial interrogation without an attorney present.
We turn next to the defendant's challenge to the district
court's determination that he did not reinvoke his right to counsel
during the second phase of the interview. This challenge consists
of the defendant's contention that his two references to calling
his lawyer at the beginning of the conversation constituted
unambiguous requests to speak to his lawyer. Because the troopers
turned a deaf ear to his invocation of the right to counsel and
resumed questioning him, his contention continues, the
interrogation proceeded in derogation of his Miranda rights. The
district court's conclusion that these statements did not
constitute an invocation of the right to counsel is reviewed de
novo. See, e.g., United States v. Sweeney, 887 F.3d 529, 536 (1st
Cir.), cert. denied, 139 S. Ct. 322 (2018); United States v.
Oquendo-Rivas, 750 F.3d 12, 19 (1st Cir. 2014); see also United
States v. Potter, 927 F.3d 446, 450 (6th Cir.), cert. denied, ___
S. Ct. ___ (2019).
It is well-settled that an invocation of the right to
counsel — the trigger that mandates an immediate halt to law
- 19 -
enforcement interrogation under Edwards — requires a clear and
unambiguous request for the assistance of an attorney. See
Obershaw v. Lanman, 453 F.3d 56, 64 (1st Cir. 2006); Bui v.
DiPaolo, 170 F.3d 232, 239 (1st Cir. 1999). If a suspect makes no
more than an ambiguous reference to an attorney, the interrogation
may continue. See Sweeney, 887 F.3d at 536. Like the initiation
inquiry, the test for invocation of the right to counsel is
objective, asking "whether the suspect has 'articulate[d] his
desire to have counsel present sufficiently clearly that a
reasonable police officer in the circumstances would understand
the statement to be a request for an attorney.'" Obershaw, 453
F.3d at 64 (alteration in original) (quoting Davis v. United
States, 512 U.S. 452, 459 (1994)).
Moreover, Miranda and its progeny protect the right of
a suspect to an attorney's assistance only in handling a custodial
interrogation. See Grant-Chase v. Comm'r, N.H. Dep't of Corr.,
145 F.3d 431, 436 (1st Cir. 1998). To invoke the right to counsel
in such a situation, a suspect must therefore "unequivocally demand
assistance, request the lawyer's presence, or otherwise clearly
indicate an unwillingness to make a statement absent presence of
an attorney." Oquendo-Rivas, 750 F.3d at 19. When a suspect makes
a request for a lawyer and that request is ambiguous as to purpose,
officers may — but are not required to — attempt to clarify whether
the suspect wants a lawyer to assist with the custodial
- 20 -
interrogation or for some other reason. See Grant-Chase, 145 F.3d
at 436 & n.5. In sum, law enforcement officers must cease an
interrogation upon a request for an attorney only if the suspect
unequivocally expresses "his wish for the particular sort of
lawyerly assistance that is the subject of Miranda." McNeil v.
Wisconsin, 501 U.S. 171, 178 (1991).
The record makes manifest that the defendant did not
clearly and unambiguously request the assistance of counsel at the
start of the second phase of the interview. When the troopers
sought to confirm that the defendant wanted to speak to them again,
the defendant responded, "Yeah, because, uhm, one of the things
that the officer said that, uhm . . . once I was done talking with
you was that if [sic] was up to you if I could have a phone call
to my lawyer." Although this response suggested that the defendant
wanted to speak with a lawyer at some point, the timing of the
request — "once [he] was done talking with [the troopers]" — was
inherently ambiguous. In light of his prior question about the
maximum sentence for the crime, the defendant could have been
requesting a call to his lawyer either then and there or instead
only after he spoke to the troopers again about the investigation.
Given this temporal ambiguity, the defendant's statement did not
"clearly indicate an unwillingness to make a statement absent
presence of an attorney." Oquendo-Rivas, 750 F.3d at 19.
- 21 -
Nor did the defendant's next statement — "Uhm, I kinda
need a phone call to my lawyer, too. I need to let somebody know
that I'm here." — constitute a clear invocation of the right to
counsel. As we have explained, a reasonable officer could have
interpreted the defendant's use of the word "too" to mean that he
wanted both to speak with the troopers about the investigation and
to call his lawyer after doing so. Moreover, given the sequence
of the two sentences, the troopers reasonably could have understood
the defendant to be seeking a telephone call to his lawyer for the
purpose of letting someone know where he was. To be sure, a
suspect need not refer expressly to the interrogation or to a
desire for legal advice in order to invoke his right to counsel.
Cf. Davis, 512 U.S. at 459 (quoting approvingly Justice Souter's
statement, in dissent, that "a suspect need not 'speak with the
discrimination of an Oxford don'"). And it is possible that the
defendant subjectively wanted to let his lawyer know where he was
so that his lawyer could help him with the interrogation. From
the perspective of a reasonable officer, though, the defendant's
two statements, including the suggestion of his purpose in seeking
the telephone call, failed to make clear that he wanted to speak
with his lawyer in order to secure assistance with the impending
interview. See McNeil, 501 U.S. at 178.
In an effort to blunt the force of this reasoning, the
defendant argues that any reasonable officer would have
- 22 -
interpreted his statement to request his lawyer's assistance with
the interrogation because he had made a clear request to that
effect an hour earlier (at the end of the first phase of the
interview). But the defendant's decision to initiate
investigation-related communication with the troopers undermines
this argument. A reasonable officer could well have thought that
the defendant had changed his mind about his decision not to submit
to further questioning without his lawyer present. What is more,
the defendant knew from the first phase of the interview that the
conversation would end if he requested his lawyer's presence — yet
he still expressed a desire to continue the conversation with the
In a further effort to turn the tide, the defendant
suggests that the setting of the request — during a custodial
interrogation — renders unreasonable any inference that he asked
to speak to his lawyer for a purpose other than to secure
assistance with the interview. This suggestion has a patina of
plausibility: a request to consult an attorney made during a
custodial interrogation is often, as a factual matter, interposed
for the purpose of securing assistance with that interrogation.
See Grant-Chase, 145 F.3d at 436 n.5. But there is no
"irrebuttable presumption" that ascribes this purpose to all such
requests. Id. Given the defendant's intimation that he wanted to
speak to the troopers about the investigation and the reasonable
- 23 -
inference that he sought to call his lawyer to tell somebody where
he was, the defendant's statement was ambiguous as to purpose.
Confronted with this ambiguity, the troopers prudently
explained to the defendant that they could not talk with him if he
wished to speak to his lawyer. Yet at no subsequent point during
the interview did the defendant request the assistance of counsel.
On this record, we conclude that the defendant did not
unambiguously invoke his right to counsel the second time around
and, thus, the troopers were free to proceed with the resumed phase
of the interview. See Sweeney, 887 F.3d at 536.
This brings us to the defendant's contention that he did
not waive his Miranda rights knowingly and voluntarily before
confessing. Although he twice signed a Miranda waiver, the
defendant contends that he did not fully understand the rights he
was relinquishing. And he adds that he was coerced into executing
the second waiver form. The district court rejected these
contentions, concluding that the defendant's waiver was both
knowing and voluntary. Because the factual predicate is
undisputed, we review this conclusion de novo. See United States
v. Rojas-Tapia, 446 F.3d 1, 3 (1st Cir. 2006).
We begin with bedrock: most statements made by a suspect
during a custodial interrogation are inadmissible at trial absent
a valid waiver of Miranda rights. See Berghuis v. Thompkins, 560
- 24 -
U.S. 370, 382 (2010). A suspect does not waive his Miranda rights
merely by initiating investigation-related communication with law
enforcement officers after previously asserting his right to
counsel. See Judd v. Vose, 813 F.2d 494, 497 (1st Cir. 1987)
(explaining that initiation and waiver are separate analytic
steps). Because "[i]nvocation and waiver are entirely distinct
inquiries," James v. Marshall, 322 F.3d 103, 108 (1st Cir. 2003)
(quoting Smith v. Illinois, 469 U.S. 91, 98 (1984) (per curiam)),
the fact that a suspect does not invoke either his right to remain
silent or his right to counsel likewise does not itself establish
the necessary waiver of rights, see Berghuis, 560 U.S. at 382.
"What is required is a clear showing of the intention,
intelligently exercised, to relinquish a known and understood
right." United States v. Garcia, 983 F.2d 1160, 1169 (1st Cir.
It follows that in order to determine the validity of a
Miranda waiver, we must ask whether, appraised in light of all the
circumstances, the waiver was both knowing and voluntary. See
United States v. Bezanson-Perkins, 390 F.3d 34, 39-40 (1st Cir.
2004). A waiver is made knowingly if a suspect has "full awareness
of both the nature of the right being abandoned and the
consequences of the decision to abandon." Sweeney, 887 F.3d at
535-36 (quoting United States v. Rosario-Díaz, 202 F.3d 54, 69
(1st Cir. 2000)). By the same token, a waiver is made voluntarily
- 25 -
if the waiver is "the product of a free and deliberate choice
rather than intimidation, coercion and deception." Id. (quoting
Rosario-Díaz, 202 F.3d at 69). An inquiring court must start with
a presumption that the suspect did not waive his rights, and the
government bears the burden of showing the validity of the waiver
by a preponderance of the evidence. See United States v. DownsMoses, 329 F.3d 253, 267 (1st Cir. 2003).
In the case at hand, we think that the government has
carried its burden of showing that the defendant knowingly and
voluntarily waived his Miranda rights for a second time before
confessing to the troopers. After the defendant initiated the
second phase of the interview, the troopers twice told him that
they would have to end their questioning if he said that he wanted
to talk with his lawyer. Relatedly, the troopers informed the
defendant that he did not have to speak with them. Despite these
forthright statements, the defendant nonetheless declared — not
once but three times — that he wanted to talk. The troopers read
the defendant his Miranda rights twice; the defendant both times
confirmed that he understood those rights; and the defendant then
signed a waiver form and agreed to speak with the troopers. Under
these circumstances, such a written waiver is strong evidence of
the knowing and voluntary nature of the defendant's relinquishment
of his Miranda rights. See North Carolina v. Butler, 441 U.S.
369, 373 (1979). Taken as a whole, the record before us evinces
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an uncoerced choice by the defendant to waive his Miranda rights
with a complete understanding of those rights.
The defendant protests. To put meat on the bones of his
protest, he points to certain conditions of his detention and
certain aspects of his conversation with the troopers that, in his
view, suggest that his second waiver was neither knowing nor
voluntary. But these protestations, whether viewed separately or
in combination, do not undercut the validity of his waiver.
At the outset, the defendant claims that the troopers'
failure to provide him access to a telephone to call his lawyer
clouds the voluntariness of his waiver. He points out that the
troopers must have known that he wanted to call his lawyer because
he had invoked his right to counsel during the first phase of the
interview and, on his way back to the holding cell, had
specifically asked to place such a call. He adds that the troopers
did not arrange this call during the roughly hour-long period that
elapsed before the second phase of the interview got underway.
As an initial matter, we take note that individuals in
law enforcement custody have no absolute constitutional right to
use a telephone. See United States v. Footman, 215 F.3d 145, 155
(1st Cir. 2000). "Miranda does not require that attorneys be
producible on call, but only that the suspect be informed . . .
that he has the right to an attorney before and during questioning
. . . ." Duckworth v. Eagan, 492 U.S. 195, 204 (1989).
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Nevertheless, the failure of law enforcement officers to allow a
suspect to call his attorney may affect the voluntariness of a
Miranda waiver if that failure coerces into acquiescence a suspect
who would not otherwise waive his rights. The defendant contends
that his inability to call his lawyer coerced him in this manner.
This contention lacks force. Here, the record is utterly
devoid of any explanation as to why the troopers did not allow the
defendant to call his lawyer during the hour between the two phases
of the interview. The defendant's failure to develop the record
on this point is fatal to his claim that his inability to call his
lawyer rendered his waiver involuntary. An hour-long delay in
providing a detainee with access to a telephone is not inherently
unreasonable, and the defendant has offered no evidence that the
delay in this case was unjustified. Cf. United States v.
Chapdelaine, 616 F. Supp. 522, 531 (D.R.I. 1985) (Selya, J.)
(finding no waiver of Miranda rights in part because the defendant
was not permitted to call attorney until next day despite multiple
requests to do so), aff'd, 795 F.2d 75 (1st Cir. 1986) (unpublished
table decision). Nor does the record suggest that the troopers
were employing a deliberate stratagem of denying telephone access
to suspects who ask to speak with their lawyers.
In all events, we have no principled way to conclude
that the hour-long delay coerced the defendant into waiving his
Miranda rights on the mistaken belief that he would otherwise never
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be able to call his lawyer. Before the troopers secured the
waiver, they asked the defendant multiple times if he wanted to
speak with his lawyer and emphasized that they would end the
interview if he chose that option. Notwithstanding these
inquiries, the defendant failed unequivocally to invoke his right
to counsel at the start of the second phase of the interview. In
the absence of a developed record, the troopers' clear explanation
of the right to counsel and the defendant's failure to demand the
assistance of his lawyer render implausible the contention that
the absence of the telephone call somehow coerced the defendant
into waiving his rights.
Let us be perfectly clear. We do not in any way condone
the VSP's failure to facilitate the defendant's requested
telephone call. Best police practices plainly entail providing a
suspect with prompt access to an attorney upon request. Here,
though, the lack of a developed record means that we have no
principled way of assessing the practical considerations that may
have been in play in this case. Under these circumstances, the
failure to afford the defendant a more prompt telephone call did
not render the defendant's Miranda waiver involuntary.4
4 Relatedly, the defendant claims that the troopers' failure
to facilitate his contact with his lawyer violated Vermont
statutory law. See Vt. Stat. Ann. tit. 13, § 5234(a). We need
not address this claim. Although the circumstances surrounding
the nonoccurrence of the telephone call are relevant to the waiver
analysis, the defendant identifies no authority — and we are aware
- 29 -
Next, the defendant complains that the repeated urging
by various officers that he should tell the truth and cooperate
coerced him into waiving his Miranda rights. We do not agree.
Neither an admonition to tell the truth (even if repeated) nor a
suggestion that cooperation would lead to favorable treatment is
enough, without more, to constitute impermissible coercion. See
United States v. Jacques, 744 F.3d 804, 809-10 (1st Cir. 2014);
Bezanson-Perkins, 390 F.3d at 42-43.
To be sure, the arresting officer went a step further
and threatened (during the traffic stop) that, if the defendant
withheld information, the officer "would do everything in [his]
power to see that [the defendant] went back to jail for as long as
possible." Such a threat of retaliation, though, is just one
factor relevant to a voluntariness analysis and is probative of
coercion only if it has a significant impact on the suspect. See
Jacques, 744 F.3d at 810-11. Here, the record does not show any
demonstrable impact of the officer's threat on the defendant — or
for that matter, any connection whatsoever between the threat and
of none — suggesting that the violation of a state statute during
a custodial interrogation automatically renders a suspect's
Miranda waiver involuntary. Cf. United States v. Doe, 170 F.3d
1162, 1167-68 (9th Cir. 1999) (upholding Miranda waiver
notwithstanding government's violation of federal statute
requiring arresting officers to notify juvenile's parents of
juvenile's Miranda rights prior to interrogation).
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the defendant's decision (more than six hours later) to waive his
With respect to the conditions of his detention, the
defendant focuses on the lack of food and sleep and the six hours
that passed before he signed the second waiver form. We approach
this aspect of the defendant's argument mindful that the
deprivation of basic necessities, coupled with an unreasonably
prolonged detention or interrogation, can affect the voluntariness
of a Miranda waiver. See Berghuis, 560 U.S. at 387. Even so, a
defendant asserting that a waiver was involuntary on this or any
other basis must show some form of coercive law enforcement conduct
or overreaching. See Colorado v. Connelly, 479 U.S. 157, 170
(1986); Rojas-Tapia, 446 F.3d at 7.
In this instance, the defendant fails to link the
allegedly weakened physical condition he suffered from his lack of
food and sleep to any police misconduct. The troopers did know
that the defendant had not slept much the night before or eaten
that morning — he told them as much during the first phase of the
interview — but the defendant provides no evidence that he appeared
weak or that he asked for and was denied food or an opportunity to
sleep. See United States v. Acosta-Colón, 741 F.3d 179, 200 (1st
Cir. 2013). And the troopers' provision of water for the defendant
on several occasions during the interview weakens any inference
that the failure to feed him during those six hours was coercive.
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So, too, because the interviews transpired during the late morning
and early afternoon hours, the troopers did not coerce the
defendant by failing, on their own initiative, to offer him an
opportunity to sleep. Given the totality of the circumstances,
the defendant has not shown that the troopers either caused or
took advantage of his hunger or exhaustion in a way that rendered
his waiver involuntary.
Nor does the six-hour duration of the detention, in and
of itself, invalidate the defendant's waiver. Courts generally
find involuntariness based on the length of a suspect's detention
or interrogation only when that factor is "accompanied . . . by
other facts indicating coercion, such as an incapacitated and
sedated suspect, sleep and food deprivation, and threats."
Berghuis, 560 U.S. at 387. No such indicia of coercion are present
in this case. Here, moreover, the spells of alternating detention
and questioning (lasting, in the aggregate, just over six hours)
were insufficiently lengthy or numerous to raise an inference that
the defendant's will was overborne.5 See, e.g., Davis v. North
5 The defendant mentions that his detention exceeded the sixhour safe harbor limned in 18 U.S.C. § 3501(c). This provision
modified the McNabb-Mallory rule — which requires suppression of
a confession, even if voluntary, made after an unreasonable delay
in presentment, Mallory v. United States, 354 U.S. 449, 454-55
(1957); McNabb v. United States, 318 U.S. 332, 340, 342-45 (1943)
— to apply only when the defendant confesses more than six hours
after arrest. See Corley v. United States, 556 U.S. 303, 322
(2009). The defendant does not seek suppression based on a delay
in presentment, though, and there is no per se rule rendering
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Carolina, 384 U.S. 737, 742, 746-47 (1966) (finding confession
involuntary when defendant was interrogated daily for sixteen
days); Leyra v. Denno, 347 U.S. 556, 561 (1954) (same when
defendant faced "days and nights of intermittent, intensive police
The defendant's contention that the troopers misled him
about the nature of his Miranda rights is similarly unavailing.
The defendant asserts that the troopers tricked him into believing
that he would lose his only chance to speak with them about the
crime if he did not agree to an uncounseled interview on the spot.
He stresses the troopers' statement that he could speak to them
with an attorney but "usually that doesn't happen." The defendant
posits that this "now-or-never" choice is inconsistent with
Miranda, which protects a suspect's right to have a lawyer present
for any future questioning. See 384 U.S. at 470.
The test for the validity of a Miranda waiver requires
that we examine the troopers' statements in context. Cf.
Duckworth, 492 U.S. at 204-05 (evaluating adequacy of Miranda
warnings by examining entirety of officers' explanations of
suspect's rights). Viewed holistically, the troopers' explanation
of the defendant's rights was clear. They accurately told the
defendant — not once but twice — that they could not question him
invalid any Miranda waiver secured more than six hours after arrest
but before presentment.
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if he requested an attorney. They also told him — not once but
thrice — that he could speak to them with an attorney if he so
desired. The totality of the conversation fails to support a claim
that the troopers tricked the defendant into thinking that his
only chance to speak with them was then and there, without an
If more were needed (and we do not think that it is),
the defendant conceded in the district court that the allegedly
deceptive statement on which he hinges his argument — that he could
speak to the troopers with an attorney but "usually that doesn't
happen" — was true as a matter of fact. Even though "statements
that are literally true can nonetheless be misleading," Hughes,
640 F.3d at 439, this was not such a statement. The troopers told
the defendant several times that he could speak to them with a
lawyer if he wished to do so. The troopers may have thought that
telling the defendant that counseled interviews are rare would
induce him to agree to talk, but even "the use of chicanery does
not automatically undermine the voluntariness" of a Miranda
waiver. Id.; see United States v. Flemmi, 225 F.3d 78, 91 n.5
(1st Cir. 2000) ("[T]rickery can sink to the level of coercion,
but this is a relatively rare phenomenon."). Perscrutation of the
record affords no reason to believe that the troopers' statements
to the defendant distorted his judgment about whether to waive his
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In a last-ditch effort to demonstrate the invalidity of
his waiver, the defendant points to what he claims was the fear
and confusion that he expressed right before signing the waiver
form: "Fuck. I don't know. I'm scared. I don't know what's
going on. Yeah, I'll talk. I just . . . I don't know how long,
like, I'd be stuck here. Like, is there like an arraignment or
something?" But the most plausible inference from this record is
that the fear the defendant voiced came from his realization that
he was facing significant legal trouble. A suspect's decision to
waive his Miranda rights upon such a realization may be foolish,
but that does not make it involuntary or unknowing. See United
States v. Rang, 919 F.3d 113, 120 (1st Cir.) ("The Constitution
guards against compulsion by the state, not poor decision-making
by defendants."), cert. denied, 140 S. Ct. 44 (2019).
And although the defendant expressed confusion about his
right to an arraignment, "[t]he Constitution does not require that
a criminal suspect know and understand every possible consequence
of a waiver of the Fifth Amendment privilege." Colorado v. Spring,
479 U.S. 564, 574 (1987). To show a knowing waiver, the government
need only demonstrate that the defendant knew that he could remain
silent and request a lawyer and that his statements could be used
against him. See id.; Moran v. Burbine, 475 U.S. 412, 422-23
(1986). The government has made that showing here: the
- 35 -
defendant's confusion about his right to an arraignment does not
cast doubt upon his comprehension of his Miranda rights.
That effectively ends this aspect of the matter.6 We
find that the defendant agreed to waive his Miranda rights after
the troopers repeatedly advised him of those rights and the
consequences of his waiver. He made this choice freely, without
coercion on the troopers' part. Accordingly, we hold that the
defendant's second Miranda waiver was both knowing and voluntary
and that his subsequent confession was therefore admissible at
trial. See Berghuis, 560 U.S. at 382; United States v. Faust, 853
F.3d 39, 47-48 (1st Cir. 2017).
Outcome: We need go no further. For the reasons elucidated above,
the judgment of the district court is