295 F.3d 85 (1st Cir. 2002), 01-2276, U.S. v. Faulkingham

Docket Nº:01-2276.
Citation:295 F.3d 85
Party Name:UNITED STATES of America, Appellant, v. David C. FAULKINGHAM, Defendant, Appellee.
Case Date:July 09, 2002
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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295 F.3d 85 (1st Cir. 2002)

UNITED STATES of America, Appellant,


David C. FAULKINGHAM, Defendant, Appellee.

No. 01-2276.

United States Court of Appeals, First Circuit

July 9, 2002

Heard April 3, 2002.

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F. Mark Terison, Senior Litigation Counsel, with whom Paula D. Silsby, United States Attorney, was on brief for appellant.

Kevin Lawrence Barron, with whom Denner-Sayeg, LLP was on brief for appellee.

Before BOUDIN, Chief Judge, LYNCH and LIPEZ, Circuit Judges.

LYNCH, Circuit Judge.

David Faulkmgham is charged with possession with intent to distribute and conspiracy to distribute heroin. On the day of his arrest he made inculpatory statements to agents of the Maine Drug Enforcement Agency (MDEA). The agents did not give the required warning under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), before Faulkingham made the statements. Faulkingham's own statements were thus ordered suppressed under Miranda. His statements, however, also led to the discovery of derivative evidence that was important to the government's case against him. That derivative evidence was testimony by a coconspirator and the drugs themselves, and it is the subject of this appeal.

Faulkingham argued, and the district court agreed, that the "fruit of the poisonous tree" doctrine, common to Fourth Amendment jurisprudence, should also apply to the derivative evidence, given the facts of this particular Miranda violation under the Fifth Amendment. United States v. Faulkingham, 156 F.Supp.2d 60 (D.Me.2001). In the end, the court granted the motion to suppress, believing that "suppression of the derivative evidence . . . will serve to remind law enforcement that even in 'the excitement of the moment' law enforcement retains an important duty to inform an individual taken into custody of his constitutional rights." Id. at 72.

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Individuals in custody should, of course, be informed of their rights. But we disagree that in this case the concerns that animate the Fifth Amendment require the suppression of the derivative evidence, as opposed to the suppression of Faulkingham's own unwarned statements.


We outline the facts in this case as found by the magistrate judge and adopted by the district judge, and supplemented from the record. On July 28, 2000, Mark Leonard, an agent of the MDEA, received information from a confidential informant that Faulkingham was a drug dealer who lived on Route 102 in Tremont, Maine, and drove a tan Lincoln Town Car. The confidential informant also told Leonard that Faulkingham's driver's license was suspended, a fact that Leonard confirmed later that day.

On August 1, Leonard and another MDEA agent, Robert Hutchings, set off for Tremont to follow up on the information Leonard received from the confidential informant. On their way, the agents obtained a 1996 jail photograph of Faulkingham from the Hancock County Sheriff's Department.

When the agents reached the residence, they observed it from their car, which was parked in a driveway not far away. At approximately 3:15 p.m., the agents saw a tan Lincoln Town Car leaving the driveway of the residence. They followed the Town Car, until it slowed down to a stop. Leonard and Hutchings thought the driver of the Town Car matched the person in the photograph of Faulkingham.

Hutchings approached the car, showed his identification shield, said he was an MDEA agent, and told the driver to "shut [his] car off, and get out of the car." Faulkingham identified himself. Hutchings conducted a patdown search and found cash, heroin, and a syringe on Faulkingham. Hutchings then arrested Faulkingham for operating his vehicle after suspension of his license, handcuffed him, and seated him in the back seat of the agents' car. Hutchings said to Faulkingham: "[J]ust sit here. I don't want you to say anything to me at this point. I have some paperwork we're going to have to do. I have some paperwork I'm going to have to read to you." Hutchings also told Faulkingham that he was "seek[ing][his] cooperation." Among the paperwork to which Hutchings referred was a form containing the Miranda warning, which, if signed, would confirm that Faulkingham had received the warning.

Hutchings stored the evidence from the patdown search in the trunk of the car. When he returned to Faulkingham, he did not give him the Miranda warning, even though, as the magistrate judge noted, "Hutchings understood that he had a suspect in custody that he intended to interrogate." United States v. Faulkingham, No. CRIM 01-04-B-S, 2001 WL 586667, at *2 (D.Me. May 29, 2001). Faulkingham told Hutchings that he would be sick in about two hours from heroin withdrawal. Hutchings explained to Faulkingham that if he got sick, the agents would "get him medical attention." Faulkingham did not then show physical signs of being under the influence of any drugs, and the agents "kept checking with" Faulkingham throughout the process to see how he was feeling.

In the meantime, agent Leonard dealt with the two other passengers in the Town Car. After confirming that there were no warrants for the passengers, he told them they could leave, and they left the scene on foot.

Faulkingham told Hutchings that if he was going to cooperate, then the two passengers

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who were walking away would pose a problem. One of the passengers, Faulkingham said, was the roommate of his supplier, and as soon as he returned to his home "the heroin will either be flushed or hidden or something." Faulkingham also asked the agents what type of deal he could get if he decided to cooperate. The agents explained that they were not authorized to make any deals, but would pass on information about his cooperation to the prosecutor, who could work out a deal with Faulkingham's attorney.

Leonard and Hutchings searched Faulkingham's car, but found no other significant evidence. While they were searching the car, Faulkingham's wife, who happened to drive by the scene, stopped in her red pickup truck. She was dismayed when Hutchings told her of Faulkingham's arrest and said Faulkingham had recently completed a drug rehabilitation program. Hutchings gave Faulkingham's wife permission to speak with him. Faulkingham apologized to her, and asked her to get some bail money and to call his attorney.

As the agents were finishing up their search of Faulkingham's car, Faulkingham got the agents' attention, and when they walked up to their car, he told them that if he was going to cooperate and be helpful to them, he would have to be on the phone with his supplier by 3:30 p.m. Hutchings and Leonard both realized that it was already 3:28 p.m. Leonard called the agents' supervisor, Peter Arno, to get instructions on how to proceed. Arno gave the agents permission to have Faulkingham contact his supplier and record the phone call.

Faulkingham asked the agents to leave the roadside so that he would not be seen. After releasing Faulkingham from the handcuffs, Hutchings drove the agents' car, with Faulkingham in it, to a marina about a mile away. Leonard followed them in the Town Car. At the marina, Faulkingham made a few attempts to contact his supplier, but he failed because of bad reception. Faulkingham also suspected that his supplier did not answer the phone because he did not recognize the caller ID number, or because the supplier's roommate had already informed the supplier of Faulkingham's arrest. The agents asked Faulkingham how he was feeling to be sure he was not yet sick. Faulkingham continued to appear normal.

Because Faulkingham could not reach his supplier from the marina, he persuaded the agents to go to his house and make the phone call from there. When they arrived at Faulkingham's house, he did make contact with Mark Power, who he said was his supplier.1 Faulkingham told Power that he had been stopped...

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