United States Court of Appeals
For the First Circuit
No. 09-1234
UNITED STATES OF AMERICA,
Appellee,
v.
RICHARD ELLISON,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Torruella, Circuit Judge,
Souter, Associate Justice,* and Stahl, Circuit Judge.
Stephen Paul Maidman for appellant.
Donald Feith, Assistant United States Attorney, with whom John
P. Kacavas, United States Attorney, was on brief, for appellee.
April 15, 2010
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. While being held at a county
jail charged with attempting to set fire to the building where his
ex-girlfriend lived, defendant Richard Ellison indicated his
willingness to give the police information about a pair of unsolved
robberies elsewhere. At an interview with a detective involved in
the latter cases, Ellison said the girlfriend was the robber and
admitted his own supporting role. After being charged with aiding
and abetting the crimes, he moved to suppress his statement. The
district court denied the motion, and we affirm.
I
On January 24, 2006, a woman attempted to rob a
convenience store in Concord, New Hampshire, and when that effort
went awry she held up the clerk at a nearby grocery store and made
off with $300. The following December Ellison was in jail in the
State’s north country, charged with trying to torch the dwelling of
Robin Theriault, his ex-girlfriend and the beneficiary of a
protective order he had recently been convicted of violating.
Ellison let it be known to a Berlin Police Department detective,
who was speaking with him in connection with an unrelated
investigation, that he could provide information about the Concord
robberies.
The next day a Concord Police detective, Todd Flanagan,
joined the Berlin officer in a second interview of Ellison, which
took place in the jail library. Ellison was brought there in
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restraints, but these were removed at the request of Flanagan, who
stated his understanding that Ellison wished to speak about the
robberies. Flanagan told Ellison that he was not under arrest for
these crimes, did not have to answer any questions, and was free to
end the interview at any time by pushing a button on the table to
summon the guards. Neither officer, however, advised Ellison of
other rights subject to warnings required by Miranda v. Arizona,
384 U.S. 436 (1966). Ellison was calm, showed no surprise, and
consented to a recorded interview, during which he disclosed his
erstwhile romantic involvement with Theriault at the time of the
robberies, identified her as the robber and implicated himself in
a supporting role.
Ellison was then indicted for his part in the crimes,
and, after the district court denied a motion to suppress his
statement, he conditionally pleaded guilty to aiding and abetting
robbery, 18 U.S.C. §§ 1951 and 2, and aiding and abetting the
possession of a firearm in furtherance of a crime of violence, 18
U.S.C. §§ 924(c) and 2. Here, Ellison contends that suppression
was required because there were no Miranda warnings, the statement
was coerced by a broken promise of leniency, and he had invoked his
Fifth and Sixth Amendment rights to counsel during the interview
with Flanagan.
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II
Miranda held that statements are generally inadmissible
against a defendant if obtained during “custodial interrogation”
without prior warnings that the suspect “has a right to remain
silent, that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an
attorney, either retained or appointed.” Miranda, 384 U.S. at 444.
The central issue here is whether the interview in the library was
custodial interrogation, as Ellison says, simply because
incarceration makes any interrogation custodial per se within the
meaning of Miranda.
Determinations about Miranda custody begin by examining
all of the “circumstances surrounding the interrogation” and asking
whether “a reasonable person [would] have felt he or she was not at
liberty to terminate the interrogation and leave,” Thompson v.
Keohane, 516 U.S. 99, 112 (1995). This “initial determination
. . . 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 v. California,
511 U.S. 318, 323 (1994) (per curiam). Once a court finds that a
reasonable person in the suspect’s position would not have felt
free to end the interview and walk away, there is a further
question whether the suspect would reasonably find the
circumstances coercive, thus raising the concern that drove
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Miranda. See Berkemer v. McCarty, 468 U.S. 420, 436-37 (1984)
(acknowledging that “a traffic stop significantly curtails . . .
‘freedom of action,’” and then deciding “whether a traffic stop
exerts upon a detained person pressures that sufficiently impair
his free exercise of his privilege against self-incrimination to
require that he be warned of his constitutional rights”). In the
paradigm example of interrogating a suspect at a police station,
the answer is obvious, in the absence of unusual facts: that was
the situation in Miranda and the warnings are the required antidote
to the stationhouse pressures observed there. Miranda is to be
“enforced strictly . . . in those types of situations in which the
concerns that powered the decision are implicated.” Id. at 437.
But in dealing with a case outside the Miranda paradigm,
it is essential to recall that “the freedom-of-movement test
identifies only a necessary and not a sufficient condition for
Miranda custody.” Maryland v. Shatzer, 130 S.Ct. 1213, 1224
(2010). That is, custody under Miranda means a suspect is not free
to go away, but a suspect’s lack of freedom to go away does not
necessarily mean that questioning is custodial interrogation for
purposes of Miranda.
Never is this distinction more important than when the
subject of interrogation is independently incarcerated. Even when
he is given the option to end the interrogation as he chooses, he
is not in the position of a suspect who is free to walk away and
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roam around where he pleases, see, e.g., Oregon v. Mathiason, 429
U.S. 492, 495 (1977). Still, the restrictions on his freedom do
not necessarily equate his condition during any interrogation with
Miranda custody. While the suspect in a case just like Miranda
may well feel that the only way to end the pressure on him is to
answer the questions, the usual circumstances of someone serving
prison time following a conviction characteristically save him from
any such apprehension; so long as he is not threatened with harsher
confinement than normal until he talks, he knows that the worst
that can happen to him will be his return to prison routine, and
that he will be back on the street (in most cases) whether he
answers questions or refuses. See Shatzer, 130 S.Ct. at 1224-25.
Accordingly, the Supreme Court concluded in Shatzer that “lawful
imprisonment imposed on conviction of a crime does not create the
coercive pressures identified in Miranda,” id. at 1224.1
Shatzer left open the question whether those pressures
are necessarily brought to bear on someone who is incarcerated
1
In Mathis v. United States, 391 U.S. 1 (1968), a suspect’s
answers incriminating him in tax fraud, given to federal
investigators while he was imprisoned on a state conviction, were
held inadmissible because no Miranda warnings had been given. The
Court acknowledged Miranda’s applicability to questioning “‘when an
individual is taken into custody or otherwise deprived of his
freedom by the authorities in any significant way,’” id. at 5
(quoting 384 U.S. at 478), but did not say whether the interview
with Mathis fell within Miranda because of his incarceration or
because of some other deprivation that was significant in the
circumstances. Although it did not address Mathis, the Court’s
opinion in Shatzer forecloses Ellison’s reading of the case for the
former proposition.
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before trial and then interviewed about a crime distinct from the
pending charges. It is true that the condition of someone being
held while awaiting trial, like Ellison, is not exactly the same as
the convict’s position, since the suspect might reasonably perceive
that the authorities have a degree of discretion over pretrial
conditions, at least to the point of making recommendations to a
court. But we see nothing in the facts of this case that would be
likely to create the atmosphere of coercion subject to Miranda
concern. As mentioned, Detective Flanagan told Ellison that he was
not under arrest for the robberies and that he did not have to
answer any questions. He was interviewed in the prison library
(presumably one of its more comfortable areas), he was not
restrained, and he could go from the library at any time after
pressing the button to summon the guards.2
The relatively low atmospheric pressure in these
circumstances is all the more obvious in light of Ellison’s
previously expressed desire to tell the Concord police about the
unsolved crimes; Ellison had suggested such an interview, and
Flanagan was there to take him up on his proposal. And viewed
2
On these facts, there would, of course, be no conclusion of
custodial interrogation in those circuits that have previously
applied the rule that such interrogation of a prisoner occurs only
when the suspect’s restraint is more rigorous than the
institutional norm. See, e.g., Garcia v. Singletary, 13 F.3d 1487,
1491 (11th Cir. 1994); United States v. Conley, 779 F.2d 970, 973
(4th Cir. 1985); Cervantes v. Walker, 589 F.2d 424, 428 (9th Cir.
1978).
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objectively, the record readily shows why someone in Ellison’s
position would wish to be there talking. Theriault, whom he had
assaulted in violation of a protective order, and whose house he
was charged with attempting to set alight, was his ex-girlfriend.
The relationship had obviously gone sharply sour. At the very
least, Ellison would not have hesitated to hurt her (again) and try
to help himself by telling his story to the police. There is no
reason to find the concern of coercion behind Miranda implicated
here.
Ellison’s remaining arguments have no foundation. He
claims that the officers “coerced” him into speaking by means of a
subsequently broken promise that he would not be prosecuted for his
role in the robberies. The short answer to this is that the
district court found that no such promise was made. The court
credited Flanagan’s testimony that Ellison was told only that his
cooperation would be brought to the attention of the prosecutor,
who would determine what benefit, if any, Ellison would receive.
Ellison also argues that the interrogation should have ceased once
he invoked his right to counsel. But the district court found as
a fact that Ellison’s testimony that he had demanded to speak with
counsel “at least five times” was not credible (though the judge
did conclude that “there probably was some discussion of counsel”
that the officer “brush[ed] aside”). But even if Ellison had
clearly expressed a desire to speak with a lawyer, he could not
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have invoked any constitutional right to do that in a non-custodial
interrogation conducted before he was formally charged. See United
States v. Wyatt, 179 F.3d 532, 537 (7th Cir. 1999) (“The Fifth
Amendment right to counsel safeguarded by Miranda cannot be invoked
when a suspect is not in custody . . . .”); United States v.
Boskic, 545 F.3d 69, 84 (1st Cir. 2008) (“The Sixth Amendment takes
hold when the investigation gives way to a prosecution . . . .”).
Suppression could not, therefore, vindicate the Constitution. In
any event, the district court’s finding pretermits any issue based
on the requests alleged.
III
The judgment of the district court is affirmed.
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