United States v. Esquilin

United States Court of Appeals
For the First Circuit

No. 99-1826

UNITED STATES,

Appellee,

v.

CARLOS ESQUILIN,

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,
Selya and Lipez, Circuit Judges.

Jane Elizabeth Lee for appellant.
F. Mark Terison, Assistant U.S. Attorney, with whom Jay P.
McCloskey, U.S. Attorney, was on brief, for appellee.

April 5, 2000
 LIPEZ, Circuit Judge. A federal grand jury in the

District of Maine indicted Carlos Esquilin on a charge of

possession of cocaine with intent to distribute in violation of

21 U.S.C. § 841(a)(1). After the district court denied

Esquilin's motion to suppress physical evidence seized in a

search of his motel room and statements he made to the police

after his arrest, see United States v. Esquilin, 42 F. Supp. 2d

20, 34 (D. Me. 1999), he entered a conditional guilty plea.

Esquilin now appeals, challenging the district court's

suppression decision on Fourth Amendment and Miranda grounds.

He argues that the court erred in making the following rulings:

(1) a dog sniff inside Esquilin's motel room was not a search;

(2) his consent to the subsequent search that yielded the

cocaine was voluntary; and (3) a prior Miranda violation by the

police did not render inadmissible a statement he made to police

after Miranda warnings. We find no error in these rulings and

affirm the judgment.

I.

On September 17, 1998, Esquilin was staying at the

Super 8 Motel in Westbrook, Maine. The motel manager suspected

possible drug activity in Esquilin's room because there were a

large number of telephone calls and visitors to the room and

because Esquilin had re-rented the room in his name and that of

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Martin Wright after the room had originally been rented, and

paid for in cash, by Wright alone. The manager telephoned

Detective Kenneth Viger of the Westbrook Police to explain her

suspicions. Knowing that the manager had been a reliable

informant regarding drug activity in the past, Viger went to the

motel accompanied by Officer Philip Hebert and Hebert's drug-

sniffing German shepherd, Zena. In the motel hallway, in

response to Hebert's command to find drugs, Zena went to

Esquilin's door and sniffed deeply. The officers knocked at the

door and Esquilin answered; a smell of marijuana emanated from

the room.

Esquilin consented to the officers and the dog entering

his room so that Viger could ask him some questions.1 Viger told

Esquilin that he was there to investigate suspected drug

activity and asked Esquilin about the reasons for his trip to

Maine. Although Viger and Hebert gave conflicting testimony at

the suppression hearing about what Hebert and Zena were doing

while Viger and Esquilin conversed, the district court accepted

Hebert's testimony that Zena was sniffing throughout the motel

1Esquilin argued before the district court that he did not
voluntarily consent, at least to the entry of the dog. The
court concluded that "Mr. Esquilin voluntarily consented to the
officers and the drug-detection dog entering his motel room," 42
F. Supp. 2d at 29, and Esquilin does not challenge this
conclusion on appeal.

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room while Hebert held her on a six-foot leash. See id. at 25.

She sniffed at all the furniture, especially the bed, at a GAP

shopping bag in the corner of the room, and at Esquilin himself,

who patted her playfully and said he had a dog of his own,

leading the officers to believe that he was trying to distract

her. Esquilin appeared extremely nervous, his hands were

shaking, and he gave evasive replies to Viger's questions.

Believing that Zena had sensed the presence of drugs

in the room, Hebert communicated this to Viger by nodding to

him. Viger asked Esquilin if he had any drugs; when Esquilin

said he did not, Viger asked if Esquilin minded if they looked

around to make sure. Esquilin responded, "No, go ahead, look

anywhere you want." Hebert gave Zena the command to "find the

dope," and she immediately returned to the GAP bag. After

pulling out some clothing, she pulled out a plastic bag

containing white powder and, according to Hebert, "threw it in

the air, [and it] did the somersault and fell in the middle of

the floor." Viger asked Esquilin what was in the bag. He

answered, "coke."

Esquilin was arrested and Viger went to the manager's

office to telephone for backup. After the arrest, Viger and

Hebert neither questioned Esquilin nor gave him Miranda

warnings. Agent Gerard Brady of the Maine Drug Enforcement

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Agency arrived and took over the investigation. Viger told

Brady that no Miranda warnings had been given to Esquilin.

Brady asked Esquilin why he was there and what was going on.

Esquilin gestured at the plastic bag and said, "Because of

cocaine." In response to questions from Brady, Esquilin said

that he was from New York, that the bag contained nine ounces of

cocaine, and that the cocaine was his. Esquilin's pager went

off, prompting Brady to ask Esquilin if he minded if he looked

at the telephone number that was displayed. Esquilin indicated

that he did not; when asked he said that the number was his

girlfriend's. Brady then read Esquilin the Miranda warnings

from a preprinted card. After each warning Esquilin said he

understood his rights, and both Brady and Esquilin signed the

card. Brady asked if Esquilin wanted to speak to him then,

without a lawyer present, and Esquilin answered, "I'll talk to

you man to man." He then made a detailed confession, explaining

that he had purchased the cocaine in the Bronx for $6,000 and

brought it to Maine to sell.

In the district court Esquilin sought suppression of

all the physical evidence discovered in the motel room,

including the cocaine, some cash that was discovered under a

mattress, and a piece of paper found in his clothing. He also

sought to suppress all of the statements he made to police

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before and after the Miranda warnings. The government did not

seek admission of the piece of paper or Esquilin's pre-warning

statements to Brady. The court refused to suppress the other

evidence, and Esquilin preserved the issue for appeal by

entering a conditional guilty plea pursuant to Fed. R. Crim. P.

11(a)(2).

II.

On appeal, Esquilin first contends that the district

court erred by finding that the dog sniff inside the motel room

was not a search and that his subsequent consent to search the

room was voluntary. Both contentions are without merit.

While Viger was conversing with Esquilin, Zena sniffed

around the motel room while held on a six-foot leash by Hebert.

The court ruled that this sniffing behavior was not a search,

relying on United States v. Place, 462 U.S. 696 (1983). In

Place, the Supreme Court held that a dog sniff of luggage in an

airport was not a search. See id. at 707. Esquilin argues

unpersuasively that Place is distinguishable because the dog

sniff there took place in public. On the contrary, the

important factor in applying Place is not whether the sniff

occurs in a public place like an airport, but whether--as in an

officer's "plain view" observation of contraband--"the observing

person or the sniffing canine are legally present at their

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vantage when their respective senses are aroused by obviously

incriminating evidence." United States v. Reed, 141 F.3d 644,

649 (6th Cir. 1998); see also United States v. Rodriguez-

Morales, 929 F.2d 780, 788 (1st Cir. 1991) (holding dog sniff of

exterior of car not a search where car was properly impounded).

Since Esquilin voluntarily consented to the presence of Zena and

the officers in his motel room, the district court correctly

concluded that the sniff was not a search.2

Esquilin argues further that his consent to the full-

blown search of the motel room, in which Zena found and

retrieved the cocaine, was not voluntary. We review the

district court's finding that Esquilin's consent was voluntary

for clear error. See United States v. Coraine, 198 F.3d 306,

308 (1st Cir. 1999). "The voluntariness of a consent to search

turns on an assessment of the totality of the circumstances,"

and "it is not essential that the officers first inform the

consenting party of the right to withhold consent." United

States v. Barnett, 989 F.2d 546, 554-55 (1st Cir. 1993) (citing

Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)).

2
Esquilin also says that a search occurred when Zena moved
various items, particularly the shopping bag, during her initial
sniffing around the room. We need not address the legal theory
behind this contention, raised for the first time on appeal,
because the record is devoid of evidence that Zena moved
anything until after Esquilin consented to a full-scale search.

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 Esquilin expressly consented to the search, and the

evidence amply supports the district court's finding that the

consent was voluntary. On appeal, Esquilin points to no facts

that suggest a contrary conclusion. So far as the record

reveals, his extreme nervousness, rather than the result of any

coercive conduct by Viger or Hebert, was merely the natural

reaction of a person who has inartfully hidden cocaine in his

motel room and is faced with an unexpected visit from two

policemen and a drug-sniffing dog. The district court did not

err in refusing to suppress the physical evidence discovered in

the search.

III.

Esquilin contends that the district court erred by

refusing to suppress the statements he made to Agent Brady after

Brady administered the Miranda warnings. The admission of

Esquilin's pre-warning statement to Brady was not at issue. 3

Conceding that that statement was obtained in violation of

Miranda, the government did not seek to introduce it in

evidence.

3Esquilin does not argue that the statements he made to
Viger before he was arrested, including his admission that the
plastic bag contained "coke," should have been suppressed
pursuant to Miranda.

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 When a defendant's initial statement is obtained in

violation of Miranda, the admissibility of a subsequent

statement made after Miranda warnings is governed by Oregon v.

Elstad, 470 U.S. 298 (1985). In Elstad, the Supreme Court held

that if a statement obtained in violation of Miranda is

nevertheless voluntary, a subsequent statement is not subject to

the "fruit of the poisonous tree" analysis applicable to a

constitutional violation. See id. at 309. Instead, "the

admissibility of any subsequent statement should turn . . .

solely on whether it is knowingly and voluntarily made." Id.

In deciding the voluntariness of the later statement, a valid

waiver of Miranda rights is normally dispositive: "A subsequent

administration of Miranda warnings to a suspect who has given a

voluntary but unwarned statement ordinarily should suffice to

remove the conditions that precluded admission of the earlier

statement." Id. at 314. Relying on Elstad, the district court

concluded that Esquilin's unwarned and warned statements were

voluntary and declined to suppress the latter. See 42 F. Supp.

2d at 34.

Esquilin does not argue on appeal that his first

statement was involuntary or that the subsequent Miranda

warnings he received were deficient. Thus, Elstad would appear

to dictate the admissibility of his post-warning statement.

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Esquilin nevertheless argues that Elstad is distinguishable

because it involved two temporally separate interrogations

(about an hour apart, see 470 U.S. at 301), the first unwarned

and the second warned, whereas in this case there was only one

interrogation, with the warnings occurring mid-stream. In

essence, Esquilin contends that the time lapse between the two

statements that occurred in Elstad is a necessary part of the

case's holding. There is no suggestion of such a limitation in

the Elstad opinion, however. The rule of the case sweeps more

broadly than its particular facts. Indeed, the Court

specifically explained that the factual distinction emphasized

by Esquilin is of no legal consequence.

According to Elstad, the lapse of time between

interrogations is relevant only when the statement obtained in

violation of Miranda was actually coerced. See id. at 310-11.

In that event, "the time that passes between confessions" is one

factor that bears "on whether that coercion has carried over

into the second confession." Id. at 310. On the other hand,

when the prior unwarned statement is not coerced, "a careful and

thorough administration of Miranda warnings serves to cure the

condition that rendered the unwarned statement inadmissible.

The warning conveys the relevant information and thereafter the

suspect's choice whether to exercise his privilege to remain

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silent should ordinarily be viewed as an 'act of free will.'"

Id. at 310-11 (quoting Wong Sun v. United States, 371 U.S. 471,

486 (1963)). In other words, although the elapsed time between

interrogations is one factor that may dissipate the taint of a

coerced confession, the lesser taint of a Miranda violation may

be dissipated by subsequent warnings even if the unwarned and

warned statements are obtained during the same interrogation.

Esquilin also argues that his first, unwarned statement

was the product of "improper tactics." In Elstad, the Court

observed that "absent deliberately coercive or improper tactics

in obtaining the initial statement, the mere fact that a suspect

has made an unwarned admission does not warrant a presumption of

compulsion"4 as to the subsequent statement. Id. at 314.

4 The Elstad Court used the term "presumption of compulsion"
(and, equivalently, "presumption of coercion") in two distinct
ways. When a statement is obtained in violation of Miranda
there arises a presumption of compulsion as to that statement.
See 470 U.S. at 304-07. This presumption is "irrebuttable for
purposes of the prosecution's case in chief," id. at 307, making
the statement inadmissible regardless of whether it was actually
compelled. A presumption of compulsion as to a subsequent
statement does not arise, however, unless the initial statement
was actually compelled. See id. at 314, 318. The latter
presumption is substantially identical to the "fruit of the
poisonous tree" rule. Just as the government can "purge" the
"taint" of an unreasonable search or seizure by showing "a
sufficient break in events to undermine the inference that the
confession was caused by the Fourth Amendment violation," id. at
306, so it can rebut the presumption of compulsion by
demonstrating that the "coercion has [not] carried over into the
second confession," id. at 310.

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Esquilin contends that Brady was guilty of more than a "simple

failure to administer the warnings," id. at 309, because his

conduct was deliberate.5 A deliberate Miranda violation, he

says, constitutes per se "improper tactics" and automatically

warrants a presumption of compulsion as to the subsequent

statement, without regard to the effect of the violation on the

voluntariness of the initial statement.

This argument focuses on some admittedly imprecise

language in Elstad while ignoring the Court's emphasis on

voluntariness throughout the opinion. Although the Court did

not explicitly define "deliberately coercive or improper

tactics," it used several more detailed phrases that in context

are synonymous with that term: "actual coercion or other

circumstances calculated to undermine the suspect's ability to

exercise his free will," id. at 309; "physical violence or other

deliberate means calculated to break the suspect's will," id. at

312; and "inherently coercive police tactics or methods

offensive to due process that render the initial admission

5
The district court did not make a finding that Brady's
Miranda violation was deliberate. Instead, the court stated
that "to the extent [Brady's] conduct is a deliberate or an oft-
repeated strategy, it is an unwise one." 42 F. Supp. 2d at 33
n.5. The court's discussion suggests that it may have assumed
arguendo that the Miranda violation was deliberate, see id. at
33, and we will do the same in evaluating Esquilin's arguments
on appeal.

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involuntary and undermine the suspect's will to invoke his

rights once they are read to him," id. at 317. Contrary to

Esquilin's argument that there are "improper tactics" that can

raise a presumption of compulsion without regard to

voluntariness, the Elstad Court held that "there is no warrant

for presuming coercive effect where the suspect's initial

inculpatory statement, though technically in violation of

Miranda, was voluntary." Id. at 318. If we read Elstad as a

coherent whole, it follows that "deliberately coercive or

improper tactics" are not two distinct categories, as Esquilin

would have it, but simply alternative descriptions of the type

of police conduct that may render a suspect's initial, unwarned

statement involuntary.

Esquilin cites no cases adopting a contrary

interpretation of "improper tactics." His broader contention

that a deliberate failure to give Miranda warnings can mandate

the suppression of a post-warning confession despite the

voluntariness of both statements is supported by language in one

circuit case, United States v. Carter, 884 F.2d 368, 372-74 (8th

Cir. 1989). The passage in Carter that Esquilin relies on,

however, appears to be dicta. See id. at 374 (stating that

confession would be suppressed as fruit of an unconstitutional

search even if suppression not required by Elstad). Furthermore,

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Carter's assertion that the admissibility of a post-warning

confession following a Miranda violation is not necessarily

determined by whether the two statements were voluntary, see id.

(criticizing "endless case-by-case voluntariness inquiries"), is

facially inconsistent with the Supreme Court's holding in

Elstad.

Esquilin does not contend that Brady's allegedly

deliberate Miranda violation made his first statement

involuntary, and he could not reasonably do so. It is part and

parcel of the Elstad holding that a failure to give Miranda

warnings does not, without more, make a confession involuntary.

See Elstad, 470 U.S. at 306 n.1. The addition of a subjective

intent by the officer to violate Miranda, unaccompanied by any

coercive conduct, cannot in itself undermine the suspect's free

will. In the absence of any police coercion, there was nothing

to hinder Esquilin from invoking his right to remain silent

after the Miranda warnings were administered, except perhaps his

own sense that the initial statement (and the discovery of the

cocaine) had "let the cat out of the bag," so that he might as

well confess. The Elstad Court, however, said that this sort of

effect does not qualify as coercion: "This Court has never held

that the psychological impact of voluntary disclosure of a

guilty secret qualifies as state compulsion or compromises the

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voluntariness of a subsequent informed waiver." Id. at 312; see

also Colorado v. Connelly, 479 U.S. 157, 167 (1986) (holding

that confession cannot be involuntary for due process purposes

absent "coercive police activity").

Finally, Esquilin suggests that the deterrence

rationale of the Miranda rule would be undercut if a deliberate

violation by Brady did not result in the suppression of

Esquilin's confession, even going so far as to claim that

"Elstad could not apply to the present situation without

implicitly overruling Miranda." We disagree. Although Elstad

does not permit suppression of Esquilin's voluntary statement

made after he was informed of his Miranda rights and voluntarily

waived them, the basic Miranda rule still operates here to

render Esquilin's initial, unwarned (but voluntary) statement

inadmissible. The Supreme Court has judged that Miranda's

deterrence rationale requires no more than that, see Elstad, 470

U.S. at 308, and we are not free to ignore that judgment.

The district court carefully considered these issues

and correctly determined that Esquilin's unwarned admissions to

Brady were not rendered involuntary by "deliberately coercive or

improper tactics." Because Brady's "careful and thorough

administration of Miranda warnings serve[d] to cure the

condition that rendered the unwarned statement inadmissible,"

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id. at 311, the court was also correct to conclude that

Esquilin's subsequent confession was voluntary. The court did

not err in denying the motion to suppress the post-warning

statements.

Affirmed.

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