701 F.3d 386 (1st Cir. 2012), 11-2156, United States v. Infante

Docket Nº:11-2156.
Citation:701 F.3d 386
Opinion Judge:HOWARD, Circuit Judge.
Party Name:UNITED STATES of America, Appellee, v. Robert Wayne INFANTE, Defendant, Appellant.
Attorney: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.
Judge Panel:Before TORRUELLA, RIPPLE [*] and HOWARD, Circuit Judges. TORRUELLA, Circuit Judge (Dissenting).
Case Date:December 11, 2012
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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701 F.3d 386 (1st Cir. 2012)

UNITED STATES of America, Appellee,


Robert Wayne INFANTE, Defendant, Appellant.

No. 11-2156.

United States Court of Appeals, First Circuit.

December 11, 2012

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[Copyrighted Material Omitted]

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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.

Before TORRUELLA, RIPPLE [*] and HOWARD, Circuit Judges.

HOWARD, Circuit Judge.

Appellant Robert Wayne Infante was charged with five criminal offenses 1 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.


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 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.

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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 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 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

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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.

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.

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.

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

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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 and the closed door...

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