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JON R. HUGHES, Defendant, Appellant.No. 09-1646.
United States Court of Appeals, First Circuit.
April 8, 2011.
Jeffrey W. Langholtz for appellant.
Renée M. Bunker, Assistant United States Attorney, with whom Paula D. Silsby, United States Attorney, was on brief, for appellee.
Before Torruella, Selya and Howard, Circuit Judges.
SELYA, Circuit Judge.
Defendant-appellant Jon R. Hughes appeals from the denial of his motion to suppress evidence obtained during a “knock and talk” interview, an ensuing search, and further interrogation at a later date. His appeal presents nuanced questions concerning the nature of the interview, the voluntariness of his statements, the legitimacy of his consent to the search, and the workings of the inevitable discovery doctrine. Applying deferential clear-error review to the district court’s findings of fact, we uphold the denial of the defendant’s motion to suppress in all particulars. Consequently, we affirm the conviction.
We begin by rehearsing the raw facts as supportably found by the district court.
On October 10, 2007, the computer crimes unit of the Maine State Police became privy to a tawdry tale: a fifteen-year-old girl, S.J., who had been the defendant’s ward since age twelve, said that she had found nude photographs of herself on the defendant’s computer. A detective, Laurie Lynn Northrup, interviewed S.J. on October 15. By then, S.J. was no longer living with the defendant.
During the interview, S.J. stated that, in January of 2006, she had accessed the defendant’s computer and saw inappropriate images that depicted her in the bathroom. She then searched the bathroom and discovered a hidden camera. When she confronted the defendant, he sent her an apologetic e-mail and admitted that he had peered at the nude images on his computer.
Detective Northrup consulted with her supervisor, Sergeant Glen Lang. They decided to forgo a search warrant due to the staleness of S.J.’s information and, instead, to conduct a “knock and talk” interview at the defendant’s residence. A “knock and talk” interview, as the appellation implies, consists of knocking on a person’s door, stating the purpose of the visit, and asking the person to agree to an audience. Because of overlapping jurisdictional concerns, the troopers informed both the Knox County sheriff’s office and the Secret Service of their intent.
Up until the time when they involved the sheriff’s office, the state police were unaware of earlier interactions between the defendant and Dr. Scott Schiff-Slater; the two had come in contact in mid-2007, in the course of the latter’s labors as the “tele-med physician” for the town of Isle au Haut (where the defendant resided). These interactions led the doctor to call the sheriff’s office on more than one occasion. Those calls culminated in the receipt by the sheriff’s office, on October 17, 2007, of a facsimile transmission from Dr. Schiff-Slater, attached to which was a copy of an office note memorializing the earlier series of telephone calls. Therein, the doctor had conveyed his concern that the defendant might present a risk of danger to himself or others. As a precaution, the doctor solicited the cooperation of the sheriff’s office in arranging for the defendant’s involuntary commitment to a psychiatric care facility. The doctor’s records disclosed that the defendant had been hospitalized for depression, had suicidal tendencies, and was experiencing stress. In an apparent response to forewarning about the planned “knock and talk,” the fax stated in pertinent part:
All of this, no matter what [Hughes] says, put[s] him in my mind at extreme suicide risk after he is confronted by the state police, as well as . . . extreme homicide risk, even if he states that he is fine. If he was calm in these type[s] of police proceedings, this would not make me feel that he is any less at risk for suicidal/homicidal behavior. . . .
[I]f the state police do not physically remove him from the island after he is confronted for possible accusations of pedophilia then I believe he needs to be blue papered2 for his own safety as well as [that of] others.
The district court found that the troopers knew of Dr. Schiff-Slater’s communications with the sheriff’s office when they went to see the defendant.
On October 18, a party of four the two troopers, a deputy sheriff (Steve Johnson), and a Secret Service agent (Manning Jeter) sojourned to the defendant’s abode on Isle au Haut. Both troopers were in uniform and wore guns in holsters. Johnson and Jeter were dressed in civilian clothing and neither was carrying a visible weapon. Northrup brought along a recording device.
When the quartet arrived at the house in mid-morning, no one intended to arrest the defendant but, rather, to speak with him and then allow Johnson to escort him to a medical facility for involuntary commitment. Lang knocked, and the defendant came to the door. Lang informed him that the state police were conducting an investigation and wished to speak with him. The defendant was fully clothed and did not appear to be under the influence of drugs or alcohol. He freely permitted the officers to enter his home.
Lang and Northrup made it clear that the defendant was neither under arrest nor in custody. The interview took place in the living room and, with the defendant’s acquiescence, was recorded. During most of the session, Lang and Northrup stayed in the living room, Jeter was in the kitchen, and Johnson wandered in and out of the house.
The defendant acknowledged that he had made video recordings of himself and his girlfriend in the bathroom. He also admitted photographing S.J. in the bathroom, but claimed that her involvement had been unintended. The troopers questioned this disclaimer, implying that the defendant had deliberately recorded the images of S.J. and transferred them to his computer.
At that juncture, the defendant said that he felt dizzy and told the troopers, for the first time, that he had not taken his antidepressant medication that day. He asked for a wet cloth, and Lang procured one. The defendant began hyperventilating and lay down on the floor. The troopers immediately called for an emergency medical technician (EMT).
The EMT who responded, Diane Barter, was the defendant’s friend and neighbor. She determined that he had suffered a panic attack. The symptoms of the attack lasted for less than twenty minutes. After the symptoms had subsided, Barter confirmed that the defendant’s vital signs were normal. When asked whether the defendant was “[a]ll good,” Barter replied in the affirmative.
Once Barter left, the defendant asked if he could have a cigarette before the questioning resumed. The troopers escorted him outside for this purpose. While the defendant was smoking, Lang again asked him about the recorded images on his computer. The defendant demurred, stating that he would resume the conversation only after finishing his cigarette. The troopers honored the defendant’s preference. When the defendant finished the smoke, he took the initiative and spontaneously stated, “Okay, back inside.” The protagonists repaired to the living room, and the interview resumed.
Lang asked the defendant to consent to a search of his home and computer. Anticipating what the troopers would find there, the defendant confessed that he had looked at pictures of young girls on the Internet. He called himself a “deviant” and expressed a fear that he would go to prison. He added that he had installed the camera in the bathroom for the purpose of photographing S.J.
These admissions were made without any prompting. In response, the troopers inquired about the location of the videotapes and DVDs on which the salacious images were stored. Instead of responding directly to this query, the defendant explained how the camera was rigged and asked if he would be going to prison. Lang assured him that he was not under arrest and told him that they did not intend to arrest him that day. Lang added, however, that the troopers did not want to leave the contraband in the defendant’s possession.
The defendant clarified that he had recorded images only onto videotapes. He agreed to turn over the tapes, retrieved some of them from their hiding place in the bedroom, and handed them to the troopers.
Lang next asked the defendant to sign a consent-to-search form. The defendant voiced some uncertainty about why a formal consent was needed, saying that he could “voluntarily show [the troopers] everything.” He then asked what would happen if he refused to sign the form. Lang replied that, regardless of whether he consented, the troopers were “probably” going to take “the stuff[]” with them. The defendant then signed the consent form. The troopers conducted a limited search, seizing two laptops (one of which was in plain view in the living room), two cameras, and several videotapes.
At the conclusion of the interview, the troopers informed the defendant that Johnson was prepared to take him to Penobscot Bay Medical Center (PBMC). When the defendant balked, Johnson handcuffed him. The defendant and the four law enforcement officers left Isle au Haut on the same boat.
Johnson brought the defendant directly to PBMC, where he was admitted. On the date of his scheduled discharge from PBMC (October 23), Lang and Northrup interviewed him in a hospital conference room. Prior to this time, the troopers had obtained a search warrant and searched the defendant’s laptops in a forensically secure environment.
At PBMC, the troopers intended to question the defendant about some of the seized materials. This session, too, was recorded. At the outset, the troopers informed the defendant that he was under arrest and read him his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 444 (1966). The defendant executed a waiver of those rights. After some preliminary dialogue, the defendant expressed a reluctance to continue talking without a lawyer. The troopers terminated the questioning at that point.
As the troopers escorted the defendant out of the building and into the parking lot, Lang realized that he had neglected to follow his ordinary practice and instructed Northrup to reactivate the recording device and ask the defendant whether he felt that the state police had treated him fairly. Northrup complied, and the defendant replied, “I feel that I have been treated fairly. I think you’ve explained everything to me. . . . I was pretty distraught when you guys showed up, [be]cause . . . somewhere down in here, I knew what was happening.” The troopers then shut off the recorder, drove the defendant to the station house, and jailed him.
In due season, a federal grand jury in the District of Maine returned an indictment that charged the defendant with transportation and possession of child pornography. See 18 U.S.C. § 2252A(a)(1), (5)(B); see also id. § 2256(8)(A). The defendant moved to suppress all the statements and physical evidence obtained in October of 2007, arguing that the interviewing officers had subjected him to a custodial interrogation without first providing Miranda warnings, that they had exploited his mental condition, and that they had coerced his consent to the search. The district judge referred the motion to a magistrate judge who, following an evidentiary hearing, recommended that the motion be denied. The defendant seasonably objected. The district judge convened a supplementary hearing and adopted the magistrate judge’s proposed findings and recommended decision.
In the wake of this ruling, the defendant entered a conditional guilty plea to both counts, see Fed. R. Crim. P. 11(a)(2), reserving the right to contest the denial of his suppression motion. The district court accepted the conditional plea, found the defendant guilty, and ultimately imposed a 240-month incarcerative sentence on count one, a concurrent 120-month incarcerative term on count two, and a life term of supervised release. This timely appeal followed.
The defendant advances four arguments on appeal. First, he contends that statements made during the “knock and talk” interview, which amounted to a confession, should be suppressed because he was not advised of his Miranda rights. Second, he contends that, in any event, those statements were involuntary and, thus, subject to suppression. Third, he contends that the search of the laptops was invalid because his consent to the search had been coerced. Fourth, he contends that the statements made during the interview at PBMC were inadmissible as the fruit of a poisonous tree. We address each component of this asseverational array separately. We start, however, by limning the standard of review.
In reviewing a trial court’s denial of a motion to suppress, we assess the court’s factual findings for clear error and evaluate its legal rulings de novo. United States v. Fagan, 577 F.3d 10, 12 (1st Cir. 2009); United States v. Chhien, 266 F.3d 1, 5 (1st Cir. 2001). “Under clear error review, we may reverse only if the record, read as a whole, gives rise to a strong, unyielding belief that a mistake has been made.” United States v. Jones, 523 F.3d 31, 36 (1st Cir. 2008) (citation and internal quotation marks omitted). This deferential standard of review portends that when “the district court chooses to draw a reasonable (though not inevitable) inference from a particular combination of facts,” that inference is entitled to respect. United States v. Espinoza, 490 F.3d 41, 46 (1st Cir. 2007) (citing Ornelas v. United States, 517 U.S. 690, 699 (1996)). Thus, “[i]f any reasonable view of the evidence supports the denial of a motion to suppress, we will affirm the denial.” United States v. Boskic, 545 F.3d 69, 77 (1st Cir. 2008).
It is common ground that “a person questioned by law enforcement officers after being `taken into custody or otherwise deprived of his freedom of action in any significant way’ must first” be given Miranda warnings. Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam) (quoting Miranda, 384 U.S. at 444). This bedrock rule recognizes that “in a custodial interrogation, the police have the capacity to dominate the scene to such an extent that the risks of coercion and intimidation are unreasonably high.” United States v. Melendez, 228 F.3d 19, 22 (1st Cir. 2000). The Miranda warnings are designed “to protect against the extraordinary danger of compelled self-incrimination that is inherent in such situations.” Id.
The defendant maintains that his October 18 statements should be suppressed because Miranda warnings, though required, were not administered. The necessity vel non for Miranda warnings turns on whether a suspect is in custody. Oregon v. Mathiason, 429 U.S. 492, 495 (1977) (per curiam); United States v. Quinn, 815 F.2d 153, 160 (1st Cir. 1987). When making such a determination, an inquiring court must examine whether “there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.” Maryland v. Shatzer, 130 S.Ct. 1213, 1224 (2010) (quoting New York v. Quarles, 467 U.S. 649, 655 (1984)).
In the absence of a formal arrest and in this case, none had occurred at the pertinent time determining whether a person is in custody ordinarily requires a nisi prius court to engage in a two-step pavane. First, the court must ascertain the circumstances surrounding the interrogation. Thompson v. Keohane, 516 U.S. 99, 112 (1995). This assessment is factual in nature and, as such, is reviewed for clear error. See United States v. Ventura, 85 F.3d 708, 711 n.2 (1st Cir. 1996). Second, the court must examine whether, viewed objectively, the discerned circumstances constitute the requisite “restraint on freedom of movement of the degree associated with a formal arrest.” California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam) (internal quotation omitted). This second step, which entails the application of law to fact, engenders de novo review. United States v. Fernández-Ventura, 132 F.3d 844, 846 (1st Cir. 1998).
It bears emphasis that the determination of whether custody exists “depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury, 511 U.S. at 323. Thus, the interrogating officer’s intent, not communicated to the individual being questioned, is irrelevant to the inquiry. See Berkemer v. McCarty, 468 U.S. 420, 442 (1984).
This court has identified four factors that, among others, may inform a determination of whether, short of actual arrest, an individual is in custody. These factors include “whether the suspect was questioned in familiar or at least neutral surroundings, the number of law enforcement officers present at the scene, the degree of physical restraint placed upon the suspect, and the duration and character of the interrogation.” Ventura, 85 F.3d at 711 (quoting United States v. Masse, 816 F.2d 805, 809 (1st Cir. 1987)); see generally 3 William E. Ringel, Searches & Seizures, Arrests & Confessions § 27:3, at 27-11 to 27-16 (2d ed. 2010) (collecting cases across the circuits that compile similar lists of factors).
With these precepts in mind, we turn to the circumstances of the October 18 interview. To begin, there was no formal arrest. And it is important to note that the interview occurred in surroundings familiar to the defendant: his own home. Though questioning in a suspect’s dwelling may at times comprise a custodial interrogation, see, e.g., Orozco v. Texas, 394 U.S. 324, 326 (1969), such a location generally presents a less intimidating atmosphere than, say, a police station. See, e.g., United States v. McCarty, 475 F.3d 39, 42, 46 (1st Cir. 2007).
The defendant’s house is small. But there is nothing in the record to suggest that the officers either exploited its cozy confines or invaded the defendant’s personal space. This, too, is entitled to weight. See United States v. Nishnianidze, 342 F.3d 6, 13-14 (1st Cir. 2003).
The number of officers assembled on October 18 was impressive but not overwhelming. See, e.g., id. at 12, 14 (finding interrogation non-custodial when questioning conducted by three officers); Quinn, 815 F.2d at 157, 161 (finding no custody despite presence of five officers). Furthermore, although four officers trekked to the island, only two of them participated in the questioning; the others remained apart.
Nor was there any show of force. Only two carried visible weapons, and those weapons remained in their holsters throughout the visit. No weapon was ever brandished. This tends to support the district court’s finding that the interrogation was non-custodial. Cf. United States v. Mittel-Carey, 493 F.3d 36, 40 (1st Cir. 2007) (finding custody when, inter alia, “the defendant was confronted with an unholstered gun”).
In addition, we think it significant that no meaningful physical restraint was applied to the defendant. See Nishnianidze, 342 F.3d at 14; United States v. Zapata, 18 F.3d 971, 977 (1st Cir. 1994). For aught that appears, no officer made physical contact with him.
To be sure, there are two instances of arguable restraint. Neither affects the determination.
The first instance occurred when Lang and Northrup accompanied the defendant outside so that he could smoke a cigarette. While escorting a suspect throughout his home may have some bearing on the custody inquiry, see, e.g., Mittel-Carey, 493 F.3d at 40, there is no evidence that the troopers followed the defendant so closely as to intrude upon any intimate moment or private activity. Consequently, their foray into the yard, viewed objectively, did not approach the level of physical restraint associated with formal arrest. See United States v. Uzenski, 434 F.3d 690, 704-05 (4th Cir. 2006); cf. United States v. Madoch, 149 F.3d 596, 601 (7th Cir. 1998) (finding that presence of agent while suspect got dressed and pumped breast milk in bathroom was sufficient to establish that she was in custody).
This conclusion is reinforced by the fact that the defendant demonstrated some control over the smoking incident vis-B-vis the ongoing interview. He refused to answer questions while smoking, and the troopers acceded to this refusal. Moreover, it was the defendant not the troopers who decided when the interview should resume. These vignettes support the district court’s determination that the defendant was not unduly intimidated by the interrogating officers. See Quinn, 815 F.2d at 159.
The second instance of arguable restraint occurred when Johnson took the defendant into protective custody.3 This incident took place upon the conclusion of the interview and, up until that time, the defendant was not informed that he would be involuntarily committed. The incident could not, therefore, have had any influence on the defendant’s willingness to speak. The officers’ subjective intent, uncommunicated to the defendant prior to or during the interview, is not germane to the Miranda inquiry. United States v. Trueber, 238 F.3d 79, 92 (1st Cir. 2001); United States v. Streifel, 781 F.2d 953