United States v. Hughes

United States Court of Appeals
For the First Circuit

No. 09-1646

UNITED STATES OF AMERICA,

Appellee,

v.

JON R. HUGHES,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

[Hon. John H. Rich III, U.S. Magistrate Judge]

Before

Torruella, Selya and Howard,
Circuit Judges.

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.

April 8, 2011
 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.

I. BACKGROUND

We begin by rehearsing the raw facts as supportably found

by the district court.1

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,

1
The suppression hearing was held before a magistrate judge
who made detailed findings of fact. Following objections to the
magistrate judge's recommended decision, the district judge, upon
de novo review, adopted the magistrate judge's findings of fact and
legal conclusions. For ease in exposition, we take an
institutional view and refer to these findings and conclusions in
the aggregate as the findings and conclusions of the district
court.

-2-
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

-3-
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 papered[2] for his
own safety as well as [that of] others.

2
"Blue papering" is shorthand for involuntary commitment due
to mental impairment. See, e.g., United States v. Smith, 511 F.3d
77, 79 n.1 (1st Cir. 2007).

-4-
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.

-5-
 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

-6-
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.

-7-
 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

-8-
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

-9-
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.

II. ANALYSIS

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

-10-
tree. We address each component of this asseverational array

separately. We start, however, by limning the standard of review.

A. 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).

B. Miranda Warnings.

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

-11-
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,

-12-
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

-13-
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

-14-
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

-15-
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-

à-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.

3
We assume, without deciding, that taking the defendant into
protective custody antecedent to an involuntary commitment is the
functional equivalent of an arrest.

-16-
United States v. Trueber, 238 F.3d 79, 92 (1st Cir. 2001); United

States v. Streifel, 781 F.2d 953, 959 (1st Cir. 1986).

Last — but far from least — the record amply supports the

district court's finding that the ambiance was relaxed and non-

confrontational throughout the interview. The troopers' demeanor

remained calm, the time of day (late morning) was not menacing, and

the defendant was appropriately dressed. The troopers were polite

and never hectored the defendant or raised their voices. Details

such as these are entitled to some weight in determining whether a

particular interrogation was custodial. See, e.g., United States

v. Lanni, 951 F.2d 440, 442 (1st Cir. 1991). The relatively short

duration of the interview, which lasted roughly ninety minutes, and

the twenty minutes' pause taken to summon an EMT to minister to the

defendant when he suffered a panic attack are also consistent with

the finding that the interview was not custodial. See, e.g.,

Beckwith v. United States, 425 U.S. 341, 342-43, 347-48 (1976)

(concluding that three-hour interview in suspect's home did not

implicate Miranda); Lanni, 951 F.2d at 443.

We do not mean to suggest that all the circumstances one-

sidedly favor the challenged finding. They do not. Some data

points, taken in isolation, tilt toward a finding of custody.

For one thing, although the defendant was told several

times that he was not under arrest, he was never explicitly told

-17-
that he was free to terminate the interview.4 For another thing,

the defendant had been removed from Isle au Haut in the past by law

enforcement officers. But these facts cannot be viewed in a

vacuum. As we have recounted, a number of other circumstances

point in the opposite direction.

The question is admittedly close, but its very closeness

augurs in favor of affirmance. Where the signals are mixed, the

district court's choice between competing inferences cannot be

clearly erroneous. This is such a case. Given the district

court's factual findings and the deference due to them, the

totality of the circumstances supports its conclusion that the

defendant's freedom was not restrained to such a degree that a

reasonable person in his position would have thought that he was

under arrest. The October 18 interview was, therefore, non-

custodial. Accordingly, we refuse to disturb the district court's

determination that no Miranda warnings were required.

C. Voluntariness.

The defendant next argues that even if Miranda warnings

were not required, the statements that he made during the "knock

and talk" interview should be suppressed on the ground that they

were the product of unlawful coercion. This argument rests in

4
The district court found that the defendant was told that he
did not have to answer any questions. This finding is unsupported
by the record and, thus, is clearly erroneous. Consequently, we
disregard it.

-18-
large part on the fragility of the defendant's mental state at the

time of the interview.

The Supreme Court has admonished that "a defendant's

mental condition, by itself and apart from its relation to official

coercion," can never serve as a sufficient basis for a finding of

involuntariness. Colorado v. Connelly, 479 U.S. 157, 164 (1986).

In an effort to blunt the force of this admonition, the defendant

argues that trickery and deception on the part of the troopers,

coupled with his compromised mental state, added up to unlawful

coercion. In this regard, he accuses the troopers of intimidation

and falsely leading him to believe that he would be allowed to

remain on the island at the conclusion of the session.

It is elementary that a coerced confession cannot be

admitted to prove a defendant's guilt. Blackburn v. Alabama, 361

U.S. 199, 205 (1960); Spano v. New York, 360 U.S. 315, 320-21

(1959). The court below found the defendant's confession to have

been made voluntarily, and the defendant's claim of error requires

us to test the supportability of this finding.

When charged with determining whether a confession was

voluntary, an inquiring court must sift through the totality of the

circumstances, including both the nature of the police activity and

the defendant's situation. See Arizona v. Fulminante, 499 U.S.

279, 285 (1991); United States v. Kimball, 25 F.3d 1, 8 (1st Cir.

1994). Relevant considerations may include the length and nature

-19-
of the questioning, any promises or threats made, and any

deprivation of essentials (e.g., food, water, sleep, bathroom

facilities) imposed upon the suspect. See Culombe v. Connecticut,

367 U.S. 568, 602 (1961). They also may include an appraisal of

the defendant's attributes, such as his age, education,

intelligence, and mental state. Fulminante, 499 U.S. at 286 n.2;

Reck v. Pate, 367 U.S. 433, 441-42 (1961). In short, an inquiring

court must conduct the juridical equivalent of an archeological dig

into the whole of the circumstances. In doing so, we defer to the

district court's factual findings, see Fulminante, 499 U.S. at 287,

and review its ultimate conclusion on voluntariness de novo. Id.

We start with the police activity. The conditions of the

interview, described above, were not ominous. The tone of the

interview was cordial, its length was reasonable, and the defendant

was not deprived of any essentials.5 In addition, no inducements

were offered and no threats were voiced. When the panic attack

occurred, the troopers offered the defendant water and suggested

that he might want to eat something to help mitigate the symptoms.

These are indicia of a lack of coercion, which support the district

court's finding of voluntariness. See, e.g., Boskic, 545 F.3d at

80; United States v. Rojas-Tapia, 446 F.3d 1, 5 (1st Cir. 2006).

5
To be sure, at the time the interview began, the defendant
had neither eaten nor taken his antidepressant medication. But
there is no claim that the officers prevented him from eating or
taking his pills.

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 The majority of the defendant's personal characteristics

likewise support the district court's finding of voluntariness.

The defendant was mature but not elderly. He had a high school

education and had taken some college courses. There is no

indication that he suffered from low intelligence. Finally, he had

a respectable employment history, most recently as a self-employed

contractor and part-time lobsterman.

With the conduct of the police and the personal

characteristics of the defendant tilting in favor of the

voluntariness finding, the defendant's argument reduces to little

more than reliance on his fragile mental state and the onset of the

panic attack. Where, as here, a person's compromised mental state

is known to interrogating officers, a lesser quantum of coercion is

required to call an ensuing confession into legitimate question.

See Hill v. Anderson, 300 F.3d 679, 682 (6th Cir. 2002); United

States v. Sablotny, 21 F.3d 747, 751-52 (7th Cir. 1994); see also

Nickel v. Hannigan, 97 F.3d 403, 410 (10th Cir. 1996).

Nevertheless, some significantly probative evidence of coercion is

required.

Here, the troopers had a modicum of relevant knowledge

when the interview began: they knew, from the sheriff's files, that

the defendant had suicidal ideation and posed a risk to himself if

left alone on the island. There is, however, no indication that

the troopers knew about the defendant's vulnerability to panic

-21-
attacks. Nor was there any evidence that they attempted to exploit

this vulnerability. Indeed, their actions suggest the opposite.

At the first sign of distress, the troopers halted their

questioning, fetched a wet cloth as the defendant requested, and

summoned medical assistance. They did not resume the questioning

until after the EMT (a friend of the defendant's) advised them that

the defendant's condition had stabilized and that his vital signs

were normal. Even factoring the defendant's compromised mental

state into the equation, we cannot say that the district court's

subsidiary findings of fact pertaining to the confession were

clearly erroneous. See Boskic, 545 F.3d at 77; Rojas-Tapia, 446

F.3d at 3. We therefore conclude, upon de novo review, that the

defendant's confession was voluntary. See United States v. Palmer,

203 F.3d 55, 61-62 (1st Cir. 2000); Nickel, 97 F.3d at 411.

The defendant's related claim that the troopers took

advantage of his fragile mental state through false assurances does

not survive scrutiny. It is beyond hope of contradiction that some

aggravated types of police chicanery can render a confession

involuntary. See, e.g., Lynumn v. Illinois, 372 U.S. 528, 534

(1963) (holding confession involuntary when police falsely stated

that suspect's child would be taken away if she did not confess).

But the use of chicanery does not automatically undermine the

voluntariness of a confession. See United States v. Byram, 145

F.3d 405, 408 (1st Cir. 1998). Law enforcement officers often must

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fight fire with fire, and some degree of deception on their part

during the questioning of a suspect is permissible. See, e.g.,

Frazier v. Cupp, 394 U.S. 731, 739 (1969); see also United States

v. Flemmi, 225 F.3d 78, 91 n.5 (1st Cir. 2000) (noting that

although "trickery can sink to the level of coercion, . . . this is

a relatively rare phenomenon"). In this instance, the lower court

supportably found that the troopers did not cross the line.

The defendant complains that the troopers led him to

believe (falsely) that he would be left on the island, but the

government counters that everything the troopers said was literally

true. There was never any plan to arrest the defendant then and

there. But statements that are literally true can nonetheless be

misleading, see, e.g., Byram, 145 F.3d at 408, and we do not rest

our decision on this point alone. What is dispositive is that the

troopers did not say or do anything that would have suggested to

the defendant that his continued stay on the island was contingent

upon his cooperation.

In this case, the key question is whether the troopers'

actions, viewed objectively, coerced the defendant into speaking.

Careful perscrutation of the record fails to disclose any extrinsic

factors introduced by the troopers that could have distorted the

defendant's judgment about whether to speak freely to them. Thus,

the challenged statements can fairly be considered voluntary. See

Boskic, 545 F.3d at 80-81; United States v. Jackson, 918 F.2d 236,

-23-
242 (1st Cir. 1990); see also Bryant v. Vose, 785 F.2d 364, 368

(1st Cir. 1986) (affirming admission of confession even though it

may have been "an emotional response" on the part of the

defendant).

Police officers must, of course, be sensitive to a

suspect's mental condition. They must exercise caution when

dealing with a suspect whose compromised mental state is known to

them. Such sensitivity helps to assure an inquiring court that a

confession is untainted. The record here affords us that

assurance.

D. Inevitable Discovery.

In a parallel vein, the defendant asserts that his

consent to the search of his laptops was involuntary because the

troopers obtained it by taking advantage of his fragile mental

state. The government counters that the defendant had a choice

about whether to consent and that his choice was voluntary. The

district court found that the defendant had voluntarily consented

to the search.

The voluntariness of consent ordinarily turns on

questions of fact. Schneckloth v. Bustamonte, 412 U.S. 218, 227

(1973); United States v. Romain, 393 F.3d 63, 69 (1st Cir. 2004).

Consequently, a district court's determination that consent to a

search was given voluntarily is reviewed for clear error. Romain,

393 F.3d at 69; United States v. Laine, 270 F.3d 71, 74 (1st Cir.

-24-
2001). This means, among other things, that the court's

credibility judgments must be accorded respect. United States v.

Marshall, 348 F.3d 281, 286 (1st Cir. 2003). It also means that

the "court's choice between two plausible competing interpretations

of the facts cannot be clearly erroneous." Romain, 393 F.3d at 69

(quotation omitted). The ultimate inquiry is whether the evidence,

viewed in accordance with these tenets, fairly supports the court's

finding.

While the parties invite us to undertake this inquiry, we

see no need to accept that invitation. The government has urged an

alternative basis for admitting the evidence seized in the search:

the inevitable discovery doctrine. That doctrine applies here.

Thus, even if we assume, favorably to the defendant, that consent

to the search was not voluntarily given, suppression would not lie.

See Zapata, 18 F.3d at 978.

The Supreme Court has stated with conspicuous clarity

that evidence that "would inevitably have been discovered without

reference to the police error or misconduct" may be admitted at

trial. Nix v. Williams, 467 U.S. 431, 448 (1984). Such evidence

is admissible "so long as (i) the lawful means of its discovery are

independent and would necessarily have been employed, (ii)

discovery by that means is in fact inevitable, and (iii)

application of the doctrine in a particular case will not sully the

prophylaxis of the Fourth Amendment." Zapata, 18 F.3d at 978; see

-25-
United States v. Silvestri, 787 F.2d 736, 744 (1st Cir. 1986). In

the case at bar, all three criteria are satisfied.

First, the defendant's voluntary confession, see supra

Part II(C), gave the troopers probable cause to obtain a warrant

for the search of both the house and the laptops. In fact, the

whole purpose of the "knock and talk" interview was to gather

enough information to procure a warrant — and the defendant

provided that information in spades. The troopers had support

staff on stand-by, ready to apply for a warrant, and the warrant

issued the next day. That was sufficient for the inevitable

discovery doctrine to take hold: "[T]here is no necessary

requirement that [a] warrant application process have already been

initiated at the time the illegal search took place." United

States v. Jadlowe, 628 F.3d 1, 10 (1st Cir. 2010), cert. denied,

___ S. Ct. ___, 2011 WL 743064 (2011) (first alteration in

original) (quoting Silvestri, 787 F.2d at 746).

Second, the discovery of the contraband would have

occurred regardless of the defendant's consent. In fact, some of

the videotapes were turned over by the defendant prior to the

discussion about a search. The remaining contraband (and the

laptops themselves) would have remained at the house, no one but

the defendant would have had either access to the property or any

incentive to destroy the images, and the defendant could not have

done so (he was an in-patient at PBMC throughout the week). Nor

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was there any doubt about what to look for; the troopers knew about

the existence of the images both from their conversations with S.J.

and from the defendant's confession. Moreover, the defendant had

informed the troopers of the location of the images. These data

points collectively satisfy the second prong of the test. See

United States v. Almeida, 434 F.3d 25, 29 (1st Cir. 2006).

Third, the application of the inevitable discovery

doctrine here will not erode the prophylactic effect of the

exclusionary rule. Nothing in this application of the doctrine

would encourage police misconduct or significantly weaken Fourth

Amendment protections. Law enforcement officers would be foolhardy

to rely on the inevitable discovery doctrine in the mine-run of

cases in which, unlike in this case, they would be hard-pressed to

show that the evidence would be preserved for later discovery when

left in the suspect's home.

If more were needed — and we doubt that it is — the

record shows that the troopers had no incentive to transgress the

defendant's constitutional rights in order to resort to the

inevitable discovery doctrine. That lack of incentive deserves

weight in considering the third prong of the test. See United

States v. Scott, 270 F.3d 30, 45 (1st Cir. 2001); United States v.

Ford, 22 F.3d 374, 380-81 (1st Cir. 1994). This circumstance,

together with the troopers' efforts to obtain valid consent and the

issuance of a proper search warrant the next day, suggest that any

-27-
failure to adhere to Fourth Amendment standards was wholly

inadvertent. The absence of any such intent helps the government

to carry its burden. United States v. Pardue, 385 F.3d 101, 108

(1st Cir. 2004).

In sum, this is a classic case for application of the

inevitable discovery doctrine. Where, as here, lawful independent

means leading to the discovery of the evidence necessarily would

have been employed, those means undoubtedly would have yielded up

the evidence, and invocation of the inevitable discovery doctrine

would not affect the core values of the Fourth Amendment, it

follows inexorably that the evidence seized was lawfully used

against the defendant.

E. Poisonous Tree.

The defendant's final argument focuses on different

evidence. He insists that statements he made at PBMC on October 23

must be suppressed as the fruit of a poisonous tree (his coerced

confession a week earlier).

We need not tarry. We already have concluded that his

earlier confession was lawfully obtained. See supra Part II(C).

It follows that there is no poisonous tree. See Oregon v. Elstad,

470 U.S. 298, 314 (1985); United States v. Conley, 156 F.3d 78, 84

-28-
(1st Cir. 1998). The arboretum is pristine and, consequently, the

defendant's attack on the October 23 statements fails.6

III. CONCLUSION

We need go no further. Although this case presents close

questions, the inferences drawn by the district court from facts

that can be read in different ways are both reasonable and fairly

supported by the record. Accordingly, the standard of review

requires us to defer to this factfinding and uphold the order

denying the motion to suppress.

Affirmed.

— Concurring Opinion Follows —

6
We note that the single statement that followed the
defendant's invocation of his right to counsel is more problematic.
See Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). The
defendant, however, has not made any separate argument in his brief
devoted to that statement, nor has he relied on the Sixth
Amendment. Accordingly, any free-standing challenge to this single
statement is waived. United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990).

-29-
 TORRUELLA, Circuit Judge (Concurring). As the majority

recognizes, this case presents very close questions and the facts

here can be interpreted differently. I join the majority because

the standard of review on appeal requires us to accept the district

court's findings of fact, see Arizona v. Fulminante, 499 U.S. 279,

287 (1991), but I find that the officers in this case came very

close to stepping over the line into mental coercion territory. I

write separately to emphasize that law enforcement officers ought

to use great care when questioning a suspect who is suffering from

a weakened mental state.

The officers in this case were aware that Hughes was a

suicide risk. Although they did not know about his vulnerability

to panic attacks, the defendant's compromised mental state should

have been evident when he began hyperventilating, gagging and dry

heaving while lying on the floor. The officers should have

refrained from the use of any misrepresentation or trickery at that

point. We are faced with a situation where a physician who treated

the defendant specifically warned the police that their questioning

would render Hughes mentally unstable and yet they still chose to

use misrepresentation as an interrogation technique. Under these

circumstances, where Hughes was so unstable that he had to be

involuntarily committed to a hospital for psychiatric care, the

officers should have used greater care in questioning him, should

have refrained from the use of trickery or misrepresentation and

-30-
should have probably ceased questioning once there was an

indication that he was unstable.

My colleagues correctly point out that some degree of

deception and chicanery is legally permissible in certain

circumstances and that the use of the same does not automatically

undermine the voluntariness of a confession. United States v.

Byram, 145 F.3d 405, 408 (1st Cir. 1998). I do not agree, however,

that the use of deception was acceptable in the circumstances of

this case where the police knew or reasonably should have known

that the defendant was mentally unstable. Nevertheless, I concur

because the district court's findings of fact are subject to clear

error review. Fulminante, 499 U.S. at 287. We must therefore

defer to the district court's finding that the officers neither

engaged in conduct that could reasonably be perceived as

intimidating nor conditioned Hughes' ability to stay at home on his

cooperation with the investigation.

I would also like to emphasize that the statement that

"[l]aw enforcement officers often must fight fire with fire, and

some degree of deception on their part during the questioning of a

suspect is permissible[,]" should not be construed as our attempt

to condone police skulduggery. My colleagues clearly warn that

police officers must be cautious when dealing with a suspect who

has a weakened mental state.

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