United States v. Infante , 701 F.3d 386 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-2156
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT WAYNE INFANTE,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Torruella, Ripple* and Howard,
Circuit Judges.
J. Hilary Billings, Assistant Federal Defender, for
appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty, II, United States Attorney was on brief,
for appellee.
December 11, 2012
*
Of the Seventh Circuit, sitting by designation.
HOWARD, Circuit Judge. Appellant Robert Wayne Infante
was charged with five criminal offenses1 based on the discovery of
marijuana plants and pipe bombs in his home, and on his statements
to law enforcement. Infante moved to suppress the evidence seized
from his home, claiming that it was discovered pursuant to a search
that violated his Fourth Amendment rights. He also moved to
suppress his statements to investigators on the grounds that he was
not advised of his Miranda rights and that the officers continued
to interrogate him after he invoked his rights to remain silent and
to have counsel present. The district court denied both motions,
and Infante subsequently pled guilty to four counts of the
indictment,2 conditioned on his right to appeal the suppression
rulings. Finding no error in the denial of his suppression
motions, we affirm.
I. BACKGROUND
A. The Entry and Search of Infante's Residence
At approximately 8:50 a.m. on June 25, 2010, Infante
placed a 911 call and requested an ambulance at 60 Avery Road in
1
The charged offenses were: (1) being a felon in possession
of a firearm and ammunition, see 18 U.S.C. §§ 922(g)(1) and 924(a);
(2) possession of an unregistered destructive device, see 26 U.S.C.
§§ 5841, 5845(f), 5861(d), and 5871; (3) manufacturing marijuana,
see 21 U.S.C. § 841(b)(1)(B); (4) possession of a destructive
device in relation to a drug trafficking offense, see 18 U.S.C. §
924(c)(1)(B)(ii); and (5) possession of a firearm in relation to a
drug trafficking offense, see 18 U.S.C. § 924(c)(1)(A)(I).
2
The fifth count was dismissed on the government's motion.
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Alfred, Maine. Sounding agitated, he explained that he had just
severed the tip of his finger and lacerated the side of his hand
when a propane tank exploded. When the 911 dispatcher made further
inquiries, Infante added that "a small little hand-held propane
tank exploded on me." He affirmed that he was home alone. Asked
whether anything was still burning or smoldering, he replied, "No,
it just went bang big time." Infante stated that he was out of
danger and was securing his home because he was going to be absent.
The dispatcher advised him that help was on the way.
At 8:53 a.m., the dispatcher broadcast a regional "fire
call and rescue" regarding "a propane explosion" at 60 Avery Road,
where a "[m]ale, by himself, has a large cut, and finger
amputated." The Alfred Fire Department responded, inquiring
whether any fire or structure was involved. The dispatcher
replied, "None that I'm seeing, doesn't list anything, just a
propane explosion, and the finger amputation." The dispatcher did
not disclose the reported size of the propane tank.
At the Alfred fire station, firefighter paramedic Andrew
Stevenson and veteran firefighter George Donovan donned their
firefighting gear and headed for the scene of the emergency within
three minutes of hearing the broadcast. Stevenson drove an
ambulance and Donovan followed in a fire engine. Lieutenant Marc
Cunningham, a volunteer firefighter and the highest-ranking Alfred
Fire Department official responding to the 911 call, reported being
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on his way as well. Two other volunteer firefighters, Greg Roussin
and Robert Plumpton, heard the broadcast and started toward 60
Avery Road in their personal vehicles.
Approximately ten minutes after his initial call, Infante
called 911 again to report that he was driving himself to a
hospital because the ambulance was taking too long. The dispatcher
broadcast a bulletin that the 911 caller had left the area and was
en route to a hospital. Stevenson heard the broadcast at about the
same time as he saw a man drive past him in the opposite direction
with hazard lights flashing. He advised the dispatcher that he
suspected this was the 911 caller. The dispatcher, who was on the
phone with Infante, persuaded him to pull over so that Stevenson
could attend to his hand. Following behind, Donovan assisted
Stevenson.
Stevenson and Donovan observed that Infante had a number
of superficial "shrapnel" wounds on his chest and one hand wrapped
in a bloody towel. Stevenson unwrapped the towel and saw that
Infante was missing the top of the middle finger on his left hand
and had a deep cut between his thumb and index finger. As
Stevenson was bandaging the wounds, he asked Infante how the injury
had occurred. Infante explained that he was filling a butane
lighter when it exploded. He told Stevenson that the incident had
occurred inside his house. When Donovan inquired about the
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location of the explosion, Infante gave a vague response.3 Despite
Stevenson's urging that he should go to the hospital by ambulance,
Infante refused because he did not want anyone else to drive his
car. Once his hand was bandaged, Infante got into his car and
left. Stevenson radioed that he was returning to the fire station,
while Donovan proceeded to 60 Avery Road.
Cunningham, the commander that day, was first to arrive
at Infante's residence. He walked the perimeter of the house,
including about twenty-five feet into the woods behind the house to
the site of a fire pit, to check for signs of a fire or explosion
and found neither.4 The front and rear doors to the house were
locked. The other firefighters joined Cunningham shortly
thereafter. When Donovan arrived, he informed Cunningham that
Infante did not give him a clear answer when he asked where the
explosion had occurred. Although it did not react to the presence
of the two firefighters who arrived first, Infante's loose wolf-dog
hybrid began growling at the firefighters once all four were
present. They could not approach the house until an animal control
officer contained the dog, a process that took about 30 minutes.
3
Donovan was present for most of the conversation between
Stevenson and Infante, but he did not hear Infante tell Stevenson
that the explosion had occurred inside the house.
4
An abandoned school bus was parked near the driveway but
neither Cunningham nor his fellow firefighters checked to see
whether the explosion had occurred there. Plumpton observed
containers filled with fireworks in the bus, and Cunningham was
aware of their presence as well.
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In the meantime, Cunningham verified with Stevenson that
Infante had told him that the explosion had occurred inside the
residence. Cunningham also learned from Donovan that Infante had
stated that a butane lighter had exploded in his hand. Plumpton
observed a broken cigarette lighter in the driveway but it did not
appear to have exploded and there was no blood or human tissue near
it.
Once Infante's dog was contained, the firefighters walked
onto a side porch of the house and looked inside through an open,
screened window. They observed a trail of blood on the floor in a
hallway connecting two doors. The firefighters also heard a
hissing sound, which some of them thought sounded like running
water.
Cunningham made the decision to enter the house to search
for the source of the explosion. He testified that he wanted to
"make sure there was no other hazards to anybody, to the homeowner
if he were to return or to the public around the house." The
firefighters considered it their obligation to enter and inspect
the premises. Cunningham entered first by crawling through the
open window after the screen had been removed. He then unlocked
the door and the others joined him. Approximately an hour elapsed
between Cunningham's arrival at 60 Avery Road and the firefighters'
entry into the house.
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Once inside, the firefighters observed that the blood
trail led from a cellar door to a bathroom, where Cunningham
confirmed that water running from a faucet was causing the hissing
sound that they had heard before entering. After turning off the
faucet, they followed the blood trail down the cellar stairs,
observing droplets of blood on the steps as they descended. Once
at the bottom of the stairwell, the firefighters immediately
observed what appeared to be marijuana plants, alongside growing
equipment. They collectively agreed not to touch the plants.
After instructing Roussin to get a camera from the fire engine,
Cunningham advised the rest to continue to search for the source of
the explosion. One of the firefighters observed more marijuana
plants in another part of the basement.
Donovan walked to the left of the stairwell, following
the blood trail until it stopped. Because there was no indication
that the explosion had occurred at the apparent inception of the
blood trail, Donovan walked further into the cellar until he
accidentally kicked an object that looked like an upside-down
hubcap. He observed underneath it what appeared to be three pipe
bombs and immediately alerted the other firefighters. After
Roussin took photographs of the plants and the apparent pipe bombs,
the firefighters exited the house.
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Cunningham then called for backup from the state police
and the fire marshal's office. Individuals from those agencies
eventually arrived and inspected the cellar. An investigator from
the fire marshal's office ordered an evacuation of the surrounding
area and then arranged for disposal of the pipe bombs.
B. The Hospital Interviews
After refusing ambulance transportation, Infante drove
himself to a hospital in Biddeford, Maine. Once his wounds were
cleaned and bandaged, Infante was transferred to a treatment room
in the emergency department to await surgery for his hand later
that afternoon. In the meantime, Daniel Young, an investigator
with the fire marshal's office, interviewed Infante twice. Paul
Shaw, an agent with the Maine Drug Enforcement Agency, was also
present during both interviews. Neither officer read Infante his
Miranda rights. Both Young and Shaw were in plainclothes. Young
wore a gun and a badge at hip level. Shaw also carried a holstered
weapon.
The first interview occurred at approximately 11:30 a.m.
and lasted about twenty-six minutes. Young and Shaw entered the
treatment room where Infante was lying in a bed with his bandaged
hand elevated. He had been administered morphine for pain prior to
the interview. Upon entering the room, Young turned on a tape
recorder and informed Infante that he was recording their
conversation. Young stood at the foot of the bed, between Infante
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and the closed door to the room. Shaw primarily sat in a chair to
the side of the bed. Young's supervisor, Sergeant Kenneth Grimes,
briefly entered the room. Throughout the interview, Infante was
coherent, responsive, and did not appear impaired. Neither Young
nor Shaw touched him or otherwise restricted his movement.
Young began the first interview by telling Infante:
This is your voluntary statement. You don't
have to give it to me, you don't have to talk
to me if you don't want to. You're in a
hospital bed. Obviously you can't leave. You
have some serious hand injuries. So, we're
giving you the opportunity to talk with us if
you want. There's a couple things I want to
ask you about . . . . Ok, and again this is
all voluntary. You're not in custody. You're
not under arrest at this point. Ok. But I
need to know a couple of things.
Young then asked Infante about a wired battery that had been
observed in his car in the hospital parking lot, explaining that it
had raised a concern "because of some of the stuff we found at your
residence." Infante wanted to know how the officers got into his
house, but Young turned the conversation back to Infante's car.
After Infante consented to a search of his car, Young
indicated that he wanted to ask Infante about his injuries. Young
prefaced the questioning by telling Infante once again that he was
not under arrest or in custody, adding, "[y]ou don't have to [talk
to us] obviously, voluntary." At that point Infante said, "I may
as well just plead the 5th and go for a lawyer." Young
acknowledged the request and informed Infante that firearms, bomb
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squad, and drug enforcement agents were on their way to the
hospital. Infante responded by asking again how the officers got
into his house, and Young explained that the firefighters entered
based on reports of an explosion. When Infante retorted that he
had nothing else to say, Young said he wanted to know how Infante
had injured his hand but could not talk to him unless Infante
revoked his request for counsel. Infante replied, "Yeah, I'll talk
to you," and then explained that a plastic prescription bottle
filled with pyrotechnic powder that he had extracted from "snap
pops" fell off his work bench and exploded in his hand when he
tried to catch it.
At one point during the interview, Infante asked whether
he could smoke a cigarette, and Young replied, “Not in here because
they have oxygen.” Shaw added, “I don't even think right on
hospital property you can anymore.” The interview ended after
Infante asked for more pain medication. Infante invited Shaw to
remain in his room.
Approximately an hour and ten minutes later, Young
returned to Infante's treatment room for a second interview. Shaw
was still there. Young turned on the tape recorder and began by
asking Infante if he would permit investigators to take custody of
his clothing. Young reiterated that Infante was not under arrest
or in custody and that he would be handing over his clothing
voluntarily. He later added, "you don't mind us taking [your
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clothes] voluntarily because you know we can get a warrant." When
Infante agreed, another plainclothes officer came into the room
with evidence bags to collect the clothes. Young then questioned
Infante about the explosion, again prefacing his questioning by
saying, "This is all voluntary. You don't have to talk to us." In
response, Infante explained that he was extracting the powder from
snap pops in order to mix it with gun powder and put it into pipe
bombs.
Young observed no change in Infante's demeanor during the
second interview. Again, neither Young nor any other officer
touched Infante or restrained his freedom of movement in any way.
Hospital personnel came and went during the interview, which lasted
about twenty-one minutes.
II. DISCUSSION
Infante moved to suppress both the evidence seized from
his home and his statements at the hospital. The district court
denied both motions. We review the denial of a motion to suppress
for clear error as to questions of fact; we apply de novo review as
to the application of law to those facts and to conclusions of law.
United States v. Rheault, 561 F.3d 55, 58 (1st Cir. 2009).
Applying these standards, we conclude that the district court did
not err when it denied Infante's motions.
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A. Warrantless Entry and Search
The Fourth Amendment protects the right of the people to
be secure against unreasonable searches and seizures by the
government. Although the paradigmatic Fourth Amendment challenge
involves actions of law enforcement officers, the protection
against unreasonable searches and seizures does not wane "simply
because the official conducting the search wears the uniform of a
firefighter rather than a policeman, or because his purpose is to
ascertain the cause of a fire rather than to look for evidence of
a crime." Michigan v. Tyler, 436 U.S. 499, 506 (1978). Because
"the prophylaxis of the Fourth Amendment is at its zenith with
respect to an individual's home," United States v. Martins, 413
F.3d 139, 146 (1st Cir. 2005), a warrantless search of a private
residence is presumptively unreasonable unless one of a few
well-delineated exceptions applies. United States v. Romain, 393
F.3d 63, 68 (1st Cir. 2004).
One such exception is the emergency doctrine, which we
have recognized as a subset of the traditional exigent
circumstances exception to the warrant requirement. United States
v. Beaudoin 362 F.3d 60, 66 (1st Cir.), cert. denied, 543 U.S. 979(2004); accord Martins, 413 F.3d at 147. Under this doctrine,
warrantless entry is justified when there is reasonable belief that
"swift action is required to safeguard life or prevent serious
harm." Martins, 413 F.2d at 147. The burden is on the government
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to show a reasonable basis, approximating probable cause, both for
the government official's belief in the existence of an emergency
and for associating the perceived emergency with the area or place
to be searched. Id.; Beaudoin, 362 F.3d at 66. "The requisite
inquiry must be undertaken in light of the totality of the
circumstances confronting the [official], including, in many cases,
a need for an on-the-spot judgment based on incomplete information
and sometimes ambiguous facts bearing upon the potential for
serious consequences." Martins, 413 F.3d at 147.
In the present case, the following objective facts were
known to the firefighters before they entered Infante's residence.
They were asked to respond to a "fire call and rescue" at Infante's
residence for a "propane explosion" that had severed Infante's
finger and caused a deep laceration on his hand. Stevenson and
Donovan witnessed Infante's significant injuries, including
multiple shrapnel-type wounds on his chest, albeit without any
metal debris. Infante told them that a butane lighter had exploded
in his hand while he was filling it. Stevenson heard him say that
the explosion had occurred inside his house and conveyed this
information to Cunningham. An inspection of the exterior of the
residence and its immediate surroundings, including the site of a
fire pit located in the woods behind the house, revealed no signs
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that the explosion had occurred outside.5 When they looked into
the house through a window, the firefighters observed a blood trail
in a hallway between two doorways. From that vantage point, they
also heard a hissing sound that, according to the district court's
finding, was "probably, but not necessarily, [] the sound of
running water."
Based on these facts, the firefighters had a reasonable
basis, approximating probable cause, both to believe that there was
an emergency and to associate the emergency with the inside of
Infante's residence. Infante's reports of an explosion involving
volatile gas, whether propane or butane, coupled with his
significant wounds that were consistent with the occurrence of an
explosion, caused the firefighters to reasonably perceive an
emergency -- the prospect of a secondary explosion resulting from
escaping gas. Under these circumstances, the danger of a secondary
explosion is akin to that of a rekindling fire that the Supreme
Court identified in Tyler as a continuing danger that justified
fire officials' remaining in a building for a reasonable time after
extinguishing a fire in order to promptly investigate its cause.
See Tyler, 436 U.S. at 510; see also Michigan v. Clifford, 464 U.S.
5That one of the firefighters observed a broken cigarette
lighter in the driveway does not lend itself to an inference that
the explosion had occurred outside, nor that the cause of the
explosion was a butane lighter rather than a propane tank.
Roussin, who observed the lighter, testified that the lighter did
not appear to have exploded and there was no blood or human tissue
near it, as one would reasonably expect given Infante's injuries.
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287, 293 (1984) ("Because determining the cause and origin of a
fire serves a compelling public interest, the warrant requirement
does not apply in such cases."). Indeed, relying in part on the
Court's reasoning in Tyler, a number of our circuits have held that
the presence of potentially explosive chemicals can justify
warrantless entry into a home. See, e.g., United States v.
Boettger, 71 F.3d 1410, 1414 (8th Cir. 1995) (warrantless search
justified based on "[a] continuing danger [] created by the
apparent presence of explosive chemicals and destructive devices");
United States v. Martin, 781 F.2d 671, 674-75 (9th Cir. 1985)
(citing Tyler for the proposition that warrantless search was
justified when an officer who responded to a report of an explosion
at the defendant's home searched it "to determine the cause of the
explosion and to ensure that additional explosions or fire would
not occur"); United States v. Urban, 710 F.2d 276, 278 (6th Cir.
1983) ("[T]he presence of potentially explosive chemicals in the
defendant's house are exactly the kind of 'continuing dangers' the
Tyler Court had in mind when it ruled that investigating officials
could remain on the premises for a reasonable time after the blaze
to determine its cause."); United States v. Callabrass, 607 F.2d
559, 564 (2d Cir. 1979) (post-fire entry justified in part due to
"need to dispose of the dangerous chemicals quickly so as to render
the premises safe").
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The second prong of the emergency doctrine is satisfied
as well. The firefighters had a reasonable basis, approximating
probable cause, to associate the emergency with the place searched.
Before they stepped onto Infante's porch and peered through his
window, an action that Infante challenges as an unlawful search of
the curtilage of his home, see Oliver v. United States, 466 U.S.
170, 180 (1984), the firefighters had a reasonable basis to believe
that the explosion had occurred inside the house. Not only was
there no indication that the explosion had occurred in the
immediate vicinity of the residence, leading to a reasonable
inference that it had occurred inside, but the responding
firefighters also knew that Infante had told Stevenson that the
explosion had happened in the house.6 Accordingly, the
firefighters were justified in approaching the house and looking
inside through a window. From that lawful vantage point, they
observed a trail of blood leading from one doorway to another,
consistent with Infante's injuries having occurred therein. Armed
6
Infante argues that the firefighters were not sufficiently
thorough in searching for the origin of the explosion outside of
his residence, faulting them for not checking beyond twenty-five
feet into the woods behind the house, or inspecting an apparently
inoperable school bus parked near the driveway. Under the
circumstances, however, the outdoor search for the source of the
explosion, coupled with Infante's statement that the explosion had
occurred inside the residence, was sufficient to establish a
reasonable probability that the explosion had not occurred outside.
See Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 11 (1st Cir.
2004) ("[W]e have made it clear that an officer normally may
terminate her investigation when she accumulates facts that
demonstrate sufficient probable cause.").
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with this further indicium associating the emergency with the
inside of Infante's residence and unable to see the source of the
explosion from their standpoint, the firefighters had sufficient
grounds to enter the residence without a warrant.
Once inside, the firefighters observed that the trail of
blood led from a bathroom to the cellar, and they limited the scope
of their search for the explosion's origin to the cellar. At the
bottom of the stairwell, they observed in plain view marijuana
plants and growing equipment. Donovan then followed the blood
trail to its apparent inception. Because he did not find the
source of the explosion at that location, the justification for the
search continued. Cf. United States v. Brown, 449 F.3d 741, 750
(6th Cir. 2006) (officer who reasonably believed burglary was in
progress in the defendant's basement but found no one in the main
area of the basement justifiably searched the interior room of the
basement). It was therefore reasonable for Donovan to continue the
search further into the cellar, at which point he accidently kicked
an upside-down hubcap containing what appeared to be three pipe
bombs.7
7
Infante does not argue that the firefighters' search beyond
the apparent origin of the blood trail was unreasonable. Although
there is no precise indication in the record as to how much further
Donovan walked beyond the trail when he stumbled upon the pipe
bombs, we are satisfied that the scope of the search was
reasonable. Indeed, given the dispersive nature of explosions, it
would have been questionable to assume that remnants of an
explosion sufficiently forceful to sever Infante's finger would
have necessarily come to rest in the immediate vicinity where the
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Infante seeks to debunk the reasonableness of the
firefighters' warrantless entry by pointing out that there were no
objective signs indicating an ongoing process inside the house, and
that they were merely speculating about potential dangers therein.
But the continuing danger of a secondary explosion qualifies as an
emergency. In light of a substantiated report of a recent
explosion involving a volatile gas in the residence, this danger
was not speculative. Under these circumstances, hinging the
reasonableness of the firefighters' perception of the danger on
their detection of objective signs of an impending explosion,
assuming that there would be any, would improperly raise the
probable cause standard to at least "highly probable." See Acosta
v. Ames Dep't Stores, Inc., 386 F.3d 5, 11 (1st Cir. 2004) ("The
test for probable cause does not require the officers' conclusion
to be ironclad, or even highly probable. Their conclusion that
probable cause exists need only be reasonable." (internal quotation
marks omitted)).
Infante also argues that even if the firefighters were
reasonable in their belief about the risk of a secondary explosion,
the perceived danger is not cognizable under the emergency doctrine
because it involved mere risk of damage to property, as opposed to
risk of harm to persons. The argument is unavailing. In defining
bleeding had started.
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the contours of the emergency doctrine, we have said that it
involves situations where immediate action is required to safeguard
life or prevent serious harm. Martins, 413 F.2d at 147; Beaudoin
362 F.3d at 66. We need not answer here whether danger of harm to
property can constitute a sufficient emergency to permit
warrantless entry because risk of harm to persons was clearly
present. Most obviously, had he returned home, Infante himself
would have been at risk of injury from a secondary explosion. An
explosion at his residence also would have posed a threat to any
third person whom Infante allowed on the premises. The
firefighters therefore had a reasonable basis for believing that
continuing danger of a secondary explosion posed a risk not only to
the house but also to the resident, should he return, and to the
public near the house.
We conclude that the firefighters' warrantless entry into
Infante's residence and their search of his cellar fall within the
emergency exception to the warrant requirement. Accordingly, the
district court did not err in denying Infante's motion to suppress
the evidence that the firefighters observed in plain view.8 See
Clifford, 464 U.S. at 294 ("If evidence of criminal activity is
8
Infante did not argue below or on appeal that the contraband
was not in plain view, nor did he challenge subsequent entries into
his residence by law enforcement. Accordingly, we do not address
those matters.
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discovered during the course of a valid administrative search, it
may be seized under the 'plain view' doctrine.").
B. Hospital Interviews
Infante appeals the district court's denial of his motion
to suppress the statements he made to investigators at the hospital
on two grounds. First, he argues that the hospital interviews
amounted to a custodial interrogation and the officers failed to
advise him of his Miranda rights. Second, he contends that the
interrogation should have ceased once he invoked his rights to
remain silent and to have counsel present. The district court
found that Infante was not in custody during the interviews,
obviating the need for Miranda warnings and for heeding Infante's
invocation of his rights under the Fifth and Sixth Amendments. We
perceive no error in that determination.
Law enforcement officers must give Miranda warnings
before interrogating an individual who is "taken into custody or
otherwise deprived of his freedom of action in any significant
way." Stansbury v. California, 511 U.S. 318, 322 (1994) (internal
quotation marks omitted). In the absence of a formal arrest,
whether an individual is in Miranda custody depends on whether
there is a "restraint on freedom of movement of the degree
associated with a formal arrest." Maryland v. Shatzer, ___ U.S.
___, 130 S. Ct. 1213, 1224 (2010) (internal quotation marks
omitted). The determination involves two distinct inquiries:
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"first, what were the circumstances surrounding the interrogation;
and second, given those circumstances, would a reasonable person
have felt he or she was not at liberty to terminate the
interrogation and leave."9 Thompson v. Keohane, 516 U.S. 99, 112
(1995). When an individual is unable to "leave" the place of the
interrogation solely due to circumstances incident to medical
treatment, the question is said to be slightly different: whether
he or she was at liberty to terminate the interrogation and "cause
the [officers] to leave." United States v. New, 491 F.3d 369, 373
(8th Cir. 2007); see United States v. Jamison, 509 F.3d 623, 628
(4th Cir. 2007) (whether an individual whose freedom of movement is
restricted due to medical treatment is subject to Miranda custody
depends on "whether a reasonable person would feel free to decline
officers' requests or otherwise terminate the encounter" (quoting
Florida v. Bostick, 501 U.S. 429, 436 (1991))). This approach is
consistent with the Miranda custody analysis in other contexts
where factors independent of the interrogating officers' conduct
restrict an individual's freedom of movement. See, e.g., Shatzer,
130 S. Ct. at 1224 (restriction in freedom of movement incident to
incarceration for prior conviction insufficient for Miranda
custody); United States v. Ellison, 632 F.3d 727, 729 (1st Cir.),
9
Because the first inquiry is distinctly factual, we review
the district court's assessment of the circumstances for clear
error. United States v. Hughes, 640 F.3d 428, 435 (1st Cir. 2011).
The latter involves the application of law to fact, warranting de
novo review. Id.-21-
cert. denied, 131 S. Ct. 295 (2010) (that a pre-trial detainee
interrogated on matters unrelated to the pending charges "is not in
the position of a suspect who is free to walk away and roam around
where he pleases" does not "equate his condition during any
interrogation with Miranda custody.").
Bearing in mind that the inquiry into whether an
individual is in custody for purposes of Miranda is one of the
totality of the circumstances, we have identified several factors
that guide the analysis. Those 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.” United
States v. Hughes, 640 F.3d 428, 435 (1st Cir. 2011) (internal
quotation marks omitted).
The district court assessed the circumstances of
Infante's interviews as follows. During both interviews, Young
repeated to Infante several times that the interview was voluntary,
that Infante did not have to talk to him, and that Infante was not
under arrest or in custody. The officers who were present did not
make physical contact with Infante, nor did they impede hospital
personnel from coming and going freely. The interviews were
relatively short. Young and Shaw were in plainclothes and their
weapons remained in their holsters. The atmosphere was non-
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confrontational. Infante even shared several jokes with the
officers and felt comfortable enough to invite Shaw to remain in
his room between interviews. Despite having received pain
medication, Infante was coherent and responsive, showing no sign of
mental impairment. When he asked whether he could smoke a
cigarette, the officers cited the presence of oxygen and hospital
policy against smoking, rather than conveying that they controlled
Infante's environment. Although Young stood between Infante and
the closed door to the room, the remaining circumstances
neutralized any resulting inference of custody. Finally, Young
collected Infante's clothing only after obtaining his permission.
Infante argues that the district court misperceived the
environment that the officers created in his hospital room. He
points to several facts that the district court did not explicitly
address to support his position that the conduct of the officers
was confrontational. Young informed Infante that a search of his
house had revealed incriminating evidence, that agents from various
law enforcement agencies were on their way to the hospital, and
that he was aware of Infante's prior criminal record. When
requesting Infante's clothing, Young stated, "you know we can get
a warrant." And when Infante invoked his rights to remain silent
and have counsel present, the interrogation continued.
To be sure, certain elements, taken in isolation, may
suggest an inference of custody, but the record amply supports the
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district court's finding that the atmosphere was non-
confrontational. See Hughes, 640 F.3d at 437 ("Where the signals
are mixed, the district court's choice between competing inferences
cannot be clearly erroneous."). Accordingly, we find no clear
error in the district court's assessment of the interviews.
Based on the circumstances surrounding the questioning,
a reasonable person in Infante's position would have felt free to
terminate the interviews and ask the officers to leave. See
Jamison, 509 F.3d at 628-29; New, 491 F.3d at 373-74. Although
the hospital room where the interviews occurred may not have been
a surrounding familiar to Infante, we are satisfied that it was at
least a neutral setting. First, Infante went to the hospital of
his own accord to receive treatment for his injuries. See Martin,
781 F.2d at 673 (in finding no Miranda custody where the defendant
was questioned in a hospital, emphasizing that the defendant went
to the hospital with his brother, and that law enforcement was
neither involved in his hospitalization nor in extending his
hospital stay). Second, hospital staff came and went freely during
the course of the interviews, suggesting that the officers were
"not in a position to dominate [the setting] as they are, for
example, an interrogation room at a jailhouse." United States v.
Jones, 187 F.3d 210, 218 (1st Cir. 1999).
The number of officers present during the interviews was
not overwhelming, lending support to a finding that the questioning
-24-
was non-custodial. For the most part, only two officers were in
the room, joined briefly by two others. See Hughes, 640 F.3d at
436 (finding no custody where two officers participated in the
questioning and two others remained apart); United States v. Quinn,
815 F.2d 153, 157, 161 (1st Cir. 1987) (finding no custody despite
presence of five officers).
Although Infante was confined to his hospital bed, with
his bandaged hand elevated, the officers did nothing to restrain
his movement. See Jamison, 509 F.3d at 629 ("[T]o the extent [the
defendant] felt constrained by his injuries, the medical exigencies
they created . . . should not factor into our [Miranda custody]
analysis."); New, 491 F.3d at 373-74 (no custody found where the
defendant was confined to his hospital bed in a neck brace but no
restraint was imposed by the interrogating officer). No officer
made physical contact with Infante. See Hughes, 640 F.3d at 436(considering the same as a relevant factor supporting no-custody
finding). Nor did the officers act in a threatening manner. Young
and Shaw were in plainclothes and their visible weapons remained
holstered at all times. See id. (although officers carried visible
weapons, that no weapon was ever brandished supported a finding
that the interrogation was non-custodial).
The duration and nature of the interviews are also
consistent with a finding that Infante was not in custody. The
interviews were relatively short, lasting approximately twenty-six
-25-
minutes and twenty-one minutes. See id. at 437 (a ninety-minute
interview not found custodial); United States v. Nishnianidze, 342
F.3d 6, 14 (1st Cir. 2003) (interview lasting forty-five minutes
did not implicate Miranda). They occurred in the late morning and
early afternoon, as opposed to a time that might have appeared more
menancing. See Hughes, 640 F.3d at 437 (time of day is a factor in
the custody analysis). Finally, we note here again that Young
informed Infante during each interview that he was not under arrest
or in custody and that he did not have to speak with the officers,
thereby communicating the non-confrontational nature of the
interviews. See United States v. McCarthy, 475 F.3d 39, 46 (1st
Cir. 2007) (emphasizing officers' similar statements in concluding
that the defendant was not in custody). That Infante at times
shared laughs with the officers and even invited one of them to
stay in his room between interviews reinforces the notion that the
officers' approach was non-threatening. Accordingly, because
Infante was not in custody while he was questioned at the hospital,
the officers were not required to give him Miranda warnings.
The absence of custody is also dispositive of Infante's
charge that the officers impermissibly continued to question him
after he invoked his rights to remain silent and to have counsel
present. Because he was not in custody, the officers were not
obligated to respect his attempted invocation of those rights. See
Ellison, 632 F.3d at 731 ("[E]ven if Ellison had clearly expressed
-26-
a desire to speak with a lawyer, he could not have invoked any
constitutional right to do that in a non-custodial interrogation .
. . ."); cf. McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991) ("We
have in fact never held that a person can invoke his Miranda rights
anticipatorily, in a context other than custodial interrogation[.]"
(internal quotation marks omitted)).
III. CONCLUSION
For the foregoing reasons, we affirm the district court's
denial of Infante's motions to suppress evidence.
-Dissenting Opinion Follows-
-27-
TORRUELLA, Circuit Judge (Dissenting). I respectfully
dissent because I believe the majority has stretched the emergency
doctrine beyond its limit, to the point where a warrantless entry
into a person's home is no longer based on a reasonable suspicion
of an ongoing emergency, but rather on speculation-based hypotheses
lacking in objective factual support. The facts of this case, as
found by the magistrate judge, compel me to reach the opposite
conclusion from that of my colleagues, namely that there was no
ongoing emergency inside Infante's home to justify the
firefighters' warrantless entry there. There certainly was a
legitimate need to inspect the inside of Infante's home to
ascertain how the explosion occurred, but absent exigent
circumstances, such a search necessitated an administrative search
warrant to comply with the strictures of the Fourth Amendment.
I begin my analysis with a look at Michigan v. Clifford,
464 U.S. 287 (1984), a plurality opinion cited by the majority,
because I believe it lays the proper framework for resolving the
question on whether the firefighters' warrantless entry in this
case ran afoul of the Fourth Amendment. There, firefighters were
called upon to extinguish a fire at the residence of the
defendants, who were out of town. After the blaze was extinguished
at 7:04 am, all police and firefighting personnel left the vicinity
of the house. Around five hours later, a team of arson
investigators arrived at the residence for the first time to
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investigate the cause of the blaze. Without a warrant, and without
the consent of the defendants, the investigators entered the home
and began an extensive search of the premises, commencing with the
basement. At the basement, they found and seized evidence
suggesting defendants had committed arson, and based on this
evidence they proceeded to search the rest of the house, where they
found additional evidence. The defendants sought to suppress all
of the evidence, arguing that it had been obtained pursuant to a
warrantless search that violated their rights under the Fourth and
Fourteenth Amendments. Id. at 291.
A plurality of the Supreme Court agreed with the
defendants and concluded that, where reasonable expectations of
privacy remain in fire-damaged premises, searches into the cause
and origin of a fire are subject to the warrant requirement of the
Fourth Amendment, absent consent or exigent circumstances. Id. at
291-92, 297. The Justices noted that the constitutionality of
warrantless entries onto fire-damaged premises depended on three
factors, namely: (i) "whether there are legitimate privacy
interests in the fire-damaged property that are protected by the
Fourth Amendment;" (ii) "whether exigent circumstances justify the
government intrusion regardless of any reasonable expectations of
privacy;" and (iii) "whether the object of the search is to
determine the cause of the fire or to gather evidence of criminal
activity." Id. at 292.
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The government in Clifford conceded that there were no
exigent circumstances to justify its post-fire searches, but argued
nonetheless that the Court should exempt all searches aimed at
ascertaining the origin and cause of a fire from the warrant
requirement, or in the alternative that it modify its decision in
Michigan v. Tyler, 436 U.S. 499 (1978), to permit such post-fire
searches. Clifford, 464 U.S. at 296. The Justices declined both
invitations, noting that the post-fire search by the arson
investigators was not merely the continuation of the earlier
search, but rather was an independent search divorced from any need
to attend to an emergency. Id. at 296-97. This set the case apart
from Tyler, where the post-fire entry was held to be a continuation
of the initial entry made by the firefighters, because after
extinguishing the blaze they were not able to secure the premises
and complete their investigation, due to the dark and smoky
conditions. Id. at 296. In the end, the plurality determined that
the investigators' post-fire search of the basement was illegal
because it was conducted without an administrative search warrant
and absent exigent circumstances. Id. at 297-99. The Court
invalidated the ensuing search of the remainder of the house as it
was carried out without a traditional criminal search warrant based
on probable cause. Id.Proceeding to apply the three factors elucidated in
Clifford to the facts of this case, I conclude that: (i) Infante
-30-
had retained a significant privacy interest in his home after he
left for the hospital; (ii) there were no exigent circumstances
compelling the firefighters' warrantless entry; and (iii) the
firefighters' primary object in conducting that entry was to search
for the cause and origin of the explosion, and absent an emergency,
an administrative search warrant was needed to protect Infante's
Fourth Amendment rights.
In Clifford, the plurality noted that "[s]ome fires may
be so devastating that no reasonable privacy interests remain in
the ash and ruins, regardless of the owner's subjective
expectations." Id. at 292. Such is not the case here. The record
reflects that after the explosion, Infante told the 911 dispatcher
that he was going to take care of things and secure his house
because he was not going to be there. When intercepted by
Stevenson and Donovan on the way to the hospital, he also cautioned
them against going to his home, because he kept a wolf-dog loose on
the property. Despite the presence of this animal, the
firefighters were able to approach the house, which had no
appreciable damage, and determine that its exterior doors were
locked. Therefore, it is clear that Infante had time to secure
his house after the explosion occurred, and took precautions to
ensure that no intruders would be able to gain access. After
taking care of his injuries, it would have been highly probable for
-31-
him to return to his home and resume his normal life, an indication
that he still harbored a strong expectation of privacy there.
The record also belies the assertion that an ongoing
emergency was in progress at the time the firefighters arrived.
Under the emergency doctrine, in order to make a valid entry into
Infante's home without a warrant, there must have been an emergency
situation requiring prompt action by the firefighters to "save
someone's life or prevent harm." United States v. Beaudoin, 362
F.3d 60, 66 (1st Cir. 2004), rev'd on other grounds sub nom.
Champagne v. United States, 543 U.S. 1102 (2005); see also United
States v. Moss, 963 F.2d 673, 678 (4th Cir. 1992) (holding that, to
invoke the "emergency doctrine," the official who makes the entry
must have an objectively reasonable belief that an emergency
existed that required immediate action "to render assistance or
prevent harm to persons or property within"); Tierney v. Davidson,
133 F.3d 189, 196 (2d Cir. 1998)("[P]olice officers may enter a
dwelling without a warrant to render emergency aid and assistance
to a person whom they reasonably believe to be in distress and in
need of that assistance."). In Beaudoin we held that an entry
pursuant to the emergency doctrine required "a reasonable basis,
sometimes said to be approximating probable cause, both to believe
in the existence of the emergency and to associate that emergency
with the area or place to be searched." 362 F.3d at 66.
-32-
The majority has concluded that the firefighters in this
case were aware of sufficient objective facts to create a
reasonable belief in their minds that an emergency was in progress
which required their prompt entry into Infante's home. They point
out to the dispatch's broadcast heard by the firefighters
announcing a "fire call and rescue" stemming from a "propane
explosion" that had severed part of an individual's finger and
lacerated his hand. Maj. Slip Op. at 13. The majority also places
much emphasis on the fact the broadcast reported a propane
explosion, while Infante later told Stevenson that the explosion
had occurred when he was filling up a butane lighter. Id. They
further recount how the firefighters observed blood inside the
house and heard a "hissing noise" emanating from within. Id. at
14. From this factual scenario, the majority concludes that
"Infante's reports of an explosion involving volatile gas, whether
propane or butane, coupled with his significant wounds that were
consistent with the occurrence of an explosion, caused the
firefighters to reasonably perceive an emergency -- the prospect of
a secondary explosion resulting from escaping gas." Id.
I find it difficult to subscribe to this view as in this
case there were no objective indicia to suggest that volatile gas
was somehow venting from within the residence. First, the
firefighters testified at the suppression hearing that they knew,
before entering the house, that the "hissing sound" they heard was
-33-
most likely that of a water faucet left on by someone, and not of
"escaping gas," as the majority seems to intimate. Second, the
majority has merely stated that the fact that an explosion
occurred, whether from a propane tank or a butane lighter, and of
sufficient force to sever the tip of Infante's finger, can also
lead to a reasonable belief that volatile gas was creeping inside
the residence, thereby posing an immediate risk of a secondary
explosion. Yet the occurrence of one explosion does not
automatically give rise to an inference that another may follow,
and the majority has not explained how a butane lighter, or a
similar type of container exploding, can conceivably lead to a
danger of that magnitude. And although the firefighters had been
informed by Sanford dispatch that the explosion had originated from
a propane tank of indeterminate proportions, it was highly unlikely
that a propane tank caused Infante's injuries, or at least one
large enough to create the type of risks envisioned by the
majority.
Stevenson himself testified that Infante's injuries were
more consistent with Infante's account of a butane lighter
exploding than with the dispatch's report of a blast from a propane
tank. He later clarified that he thought the injuries were caused
by something "a little bit larger" than a butane lighter, given the
lesions he observed on Infante's chest. In any case, it is
extremely unlikely that the injuries could have been caused by an
-34-
explosion of a propane tank of significant dimensions. Stevenson
testified that it takes a "BLEVE" or a boiling liquid expanding
vapor explosion, for a propane tank to explode, and that this event
normally occurs when a tank is heated to a degree where the liquid
inside will turn into vapor, to a point where the material of the
tank is unable to contain the increase in pressure, which in turn
causes the tank to explode. However, neither Stevenson nor any of
the other firefighters who testified at the suppression hearing
explained how such a potent event could have happened inside
Infante's home without leaving any trace for the firefighters to
observe, either on the exterior of the house or the interior
portion that the firefighters were able to examine through the
window. If a BLEVE did occur, then it most likely originated
inside some kind of container housing flammable gas, small enough
for Infante to hold in his hand, but not large enough to mount an
explosion of the magnitude necessary to create the hazards of a
secondary explosion, fire or gas leak. Since such hazards were
very remote, there was no reasonable basis, much less a reasonable
basis approximating probable cause, to believe there was an ongoing
process inside the home which necessitated immediate entry to save
someone's life or prevent harm.10
10
The majority has also justified the entry on the basis that
it was necessary to protect Infante from bodily injury once he
returned from the hospital. But the fact that a harm may possibly
come into fruition several hours into the future does not fit with
our court's delimitation of the emergency doctrine to those
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I further add that none of the cases cited by the
majority supports their conclusion that the search in this case was
justified. These cases stem from the Supreme Court's decision in
Tyler, where the Court determined that once fire officials make a
warrantless entry onto a building to fight a blaze, they need not
secure a warrant to remain there "for a reasonable time to
investigate the cause of the blaze" after it has been extinguished.
Tyler, 436 U.S. at 511. However, one must distinguish the initial
entries made by officials in Tyler and its progeny -- entries which
were predicated on the presence of objective circumstances that
clearly beaconed the existence of an emergency -- from those
officials' subsequent entries into the premises to search for the
origins and causes of the fires or explosions featured in those
cases. These subsequent warrantless searches have been held to be
valid as long as they are a "continuation" of a valid initial
entry. The problem with the majority's analysis in this case is
that it incorrectly compares the initial warrantless entry into
Infante's home with the subsequent searches effectuated by
officials in Tyler and its progeny. The majority's logic is flawed
in this respect as these latter entries were held to be valid not
as their own independent entries, but as mere continuations of the
situations where "swift action is required to safeguard life or
prevent serious harm." United States v. Martins, 413 F.3d 139, 147
(2005)(emphasis added).
-36-
initial warrantless entries that had been predicated on objective
circumstances signaling an ongoing emergency.
In fact, in all of the cases cited by the majority, there
existed sufficient objective circumstances to compel the conclusion
that an ongoing emergency was present inside the structure to be
searched: United States v. Boettger, 71 F.3d 1410, 1412 (8th Cir.
1995) (defendant had told officers that there was a "chemical
explosion" when he was making a firecracker in his apartment, there
was smoke in the apartment and one of defendant's neighbors had to
help him escape from the apartment);11 United States v. Martin, 781
F.2d 671, 672 (9th Cir. 1985) (initial entry justified because the
police had received a report of a person bleeding inside the home
and an officer who arrived at the scene saw and smelled smoke
coming from the home); United States v. Urban, 710 F.2d 276, 277
(6th Cir. 1983) (initial entry justified because firefighters were
responding to an actual fire, and when they arrived on the scene
they heard hundreds of explosions originating from within the
residence); and United States v. Callabrass, 607 F.2d 559, 563 (2d
11
The Eighth Circuit in Boettger was not clear on whether the
officials in that case were able to see the smoke inside the
apartment before they entered. Yet that court seemed to justify
the initial entry in that case, at least in part, on the fact that
the explosion had occurred in an apartment complex with close
neighbors, a circumstance not present in this case. Id. at 1414(expectations of privacy "must be lowered where a resident admits
working with explosive materials in an apartment complex with close
neighbors").
-37-
Cir. 1979) (initial entry justified due to an actual observable
fire in the apartment).
Conversely, none of those circumstances are present in
the instant case -- as the magistrate judge's report and
recommendation well noted,
[f]rom the time of their respective arrivals
at 60 Avery Road to the time they entered the
residence, none of the four firefighters
observed evidence of an explosion of any kind,
a fire, smoke, or a propane tank as they
walked around the perimeter of the residence.
There was no evidence of damage to the house,
and no sign of the presence of another person.
United States v. Infante, No. 10-cr-123, 2011 WL 31417, at *4 (D.
Me. Jan. 3, 2011). There being no telltale signs of a fire, gas
leak or any other hazard, I have to conclude that the majority's
supposition that there existed a risk of a secondary explosion is
entirely speculative, and such an unsubstantiated inference
practically places the burden on Infante to rule out any
conceivable reason for the firefighters' warrantless search. The
facts of this case and the behavior exhibited by the firefighters
instead give rise to a much stronger inference: that no emergency
existed at all and that the only justification for the entry was to
search for the origin and cause of the explosion. Moreover, the
record seems to reflect that the firefighters entered the premises
almost one hour after arriving on the scene. The purported reason
for the delay was that they needed to wait for an animal control
officer to arrive and secure Infante's dog, but the record shows
-38-
that before this animal control officer arrived, some of the
firefighters were able to roam freely around the house, and were
able to walk right up to the main doorway and determine that it was
locked, with no interference from the animal. Thus, if the
firefighters truly believed that an emergency was in progress, such
that a person's life was in peril, they would not have waited
almost an hour to enter the house. Further, after an hour of
inspecting the residence and finding no noticeable change in the
condition of the structure, it should have been self-evident that
no emergency existed.
Absent an emergency or Infante's consent, the
firefighters were required to obtain an administrative search
warrant to enter Infante's home and search for the cause of the
explosion. Clifford, 464 U.S. at 294. Although the Justices in
Clifford reasoned that determining the cause and origin of a blaze
serves a compelling public interest, they clearly stated that
absent an emergency, "[i]f the primary object of the search is to
determine the cause and origin of a recent fire, an administrative
warrant will suffice." Id. Firefighters will be able to obtain
such a warrant if they can show that a fire of undetermined origin
has occurred on the property and that the search they are proposing
is reasonable in scope and will not overly intrude on the fire
victim's legitimate privacy expectations. Id.; see also Camara v.
Municipal Court, 387 U.S. 523 (1967). I can think of no reason
-39-
that would compel a different requirement when the event that
transpired was a small explosion instead of a fire. Accordingly,
I would have required the authorities in this case to have obtained
an administrative search warrant before searching Infante's home.
On a final note, I admit that the result in this case
would have been different had the explosion occurred in an
apartment complex or at a home located in a densely populated area.
The need for prompt inspection at those locations generally
outweighs a resident's expectations of privacy because of the
serious dangers that a fire or an explosion might pose to neighbors
who are in close proximity, especially in apartment settings.
However, given the rural nature of the home's surroundings in this
case, these dangers were not patently present here, a circumstance
that has been overlooked by the majority.
While I do not condone Infante's conduct or his crimes,
I cannot sit idly by when faced with decisions that effectively
erode some of our most cherished constitutional protections. More
so, when the majority's approach has been to place the burden on
the defendant to prove the absence of an emergency, while making
all possible inferences in the government's favor. This while
disregarding the Supreme Court's teachings that warrantless entries
under the Fourth Amendment must be analyzed by viewing the
circumstances presented objectively, and without regard to
individual officials' subjective intentions, no matter how well-
-40-
intended. See Brigham City v. Stuart, 547 U.S. 398, 404 (2006).
For the foregoing reasons, I would have reversed the district
court's decision to deny Infante's first motion to suppress; and I
would have remanded the case to the district court so that it could
determine whether the statements made by Infante at the hospital
should also have been suppressed as fruits of the poisonous tree.
-41-