U.S. v. Taylor

• Decision Date: 08 December 1992
• Docket Number: No. 92-1435,92-1435
• Citation: 985 F.2d 3
• Parties: UNITED STATES of America, Plaintiff, Appellee, v. Jean M. TAYLOR, Defendant, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 3

985 F.2d 3

61 USLW 2515

UNITED STATES of America, Plaintiff, Appellee, v. Jean M. TAYLOR, Defendant, Appellant.

No. 92-1435.

United States Court of Appeals, First Circuit.

Heard Dec. 8, 1992.

Decided Feb. 2, 1993.

Arlene C. Halliday, Boothbay, ME, for defendant, appellant.

Margaret D. McGaughey, Asst. U.S. Atty., with whom Richard S. Cohen, U.S. Atty., and Timothy C. Wing, Asst. U.S. Atty., Portland, ME, were on brief, for plaintiff, appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

CYR, Circuit Judge.

Jean Taylor appeals the judgment of conviction and sentence entered against her on one count of knowingly and intentionally manufacturing marijuana in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(B) and 18 U.S.C. § 2. We affirm.

A. Probable Cause for Search Warrant

On the morning of July 17, 1991, Robert Hutchings, Jr., a special agent of the Maine Bureau of Intergovernmental Drug Enforcement ("BIDE"), spoke with a confidential informant who reported that he recently had visited appellant Taylor and her husband at property in Levant, Maine, upon which the Taylors resided in separate mobile homes. The informant observed several large marijuana plants (up to 4 feet tall) growing in appellant's vegetable garden and around the perimeter of her mobile home, several hundred marijuana seedlings (5 to 6 inches tall) growing in milk cartons and crates and awaiting transplantation to nearby woods, and an "unusual amount" of zip lock storage bags inside appellant's residence. During one visit, appellant told the informant she was concerned because she had started more seedlings than she could tend.

The same day he received the tip from the informant, Agent Hutchings consulted the affidavit submitted in support of a 1986 search warrant application, in which another officer attested that he had purchased marijuana from Taylor on two occasions and personally observed marijuana plants growing on her property. A local drug task force report noted that Taylor had pled guilty to two counts of marijuana trafficking in October 1986. Incorporating this evidence into an affidavit, Hutchings obtained a state court search warrant which was executed later that day. Appellant ultimately was charged in the United States District Court for the District of Maine with manufacturing marijuana in violation of federal law.

The district court denied appellant's motion to suppress the physical evidence (marijuana plants and drug paraphernalia) based on an alleged absence of probable cause to support the search warrant. Appellant contends that Agent Hutchings' sworn statements vouching for the informant's reliability were conclusory and that the tips provided by the informant were inadequately corroborated.

The sufficiency of a search warrant affidavit is appraised against well-established criteria:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

United States v. Caggiano, 899 F.2d 99, 102 (1st Cir.1990) (quoting Illinois v. Gates, 462 U.S. 213, 238-39, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527 (1983)) (citations omitted); see also United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 745-46, 13 L.Ed.2d 684 (1965). The reviewing court does not undertake de novo review, but accords "great deference" to the probable cause determination. United States v. Ciampa, 793 F.2d 19, 22 (1st Cir.1986) (citation omitted).

The Hutchings affidavit tersely attests that the informant "has provided reliable information [to law enforcement officials] in the past." Standing alone, so conclusory a statement might not provide an issuing magistrate with the requisite " 'substantial basis for concluding that probable cause existed.' " Caggiano, 899 F.2d at 103 (quoting Gates, 462 U.S. at 238-39, 103 S.Ct. at 2332). On the other hand, an informant's reliability need not invariably be demonstrated through a detailed narration of the information previously furnished to law enforcement--for example, by listing the number or names of persons arrested or convicted as a consequence of the informant's prior assistance. Rather, the affidavit may disclose an adequate basis for evaluating the informant's veracity through the very specificity and detail with which it relates the informant's first-hand description of the place to be searched or the items to be seized. Id. at 102-03 (reliability of information enhanced if details derived from informant's personal observation, rather than from hearsay) (citing Ciampa, 793 F.2d at 24). As was the case in Caggiano, ¹ the informant provided Agent Hutchings with a detailed description of the premises to be searched, including the exteriors and interiors of the Taylor residences, noting in particular the 400 to 500 marijuana seedlings being raised in milk cartons and crates at appellant's residence.

Continuing with the "totality of the circumstances" analysis mandated by Gates, we find no merit in appellant's contention that Hutchings conducted an inadequate or superficial follow-up investigation of the informant's tip. On the contrary, Hutchings promptly set out to corroborate the informant's tip by consulting official records relating to appellant's prior convictions for marijuana trafficking. These records indicated that appellant, five years earlier, admitted to another police officer that she intentionally cultivated marijuana on the same property, and later entered a guilty plea to a state trafficking charge. An affiant's knowledge of the target's prior criminal activity or record clearly is material to the probable cause determination. See United States v. Asselin, 775 F.2d 445, 446 (1st Cir.1985); United States v. Sumpter, 669 F.2d 1215, 1222 (8th Cir.1982). Moreover, the issuing magistrate properly may credit the experience and pertinent expertise of a law enforcement affiant in evaluating the authenticity of the informant's description of the target's modus operandi. See United States v. Soule, 908 F.2d 1032, 1040 (1st Cir.1990) (citing United States v. Ortiz, 422 U.S. 891, 897, 95 S.Ct. 2585, 2589, 45 L.Ed.2d 623 (1975) ("[O]fficers are entitled to draw reasonable inferences from [ ] facts in light of their knowledge of the area and their prior experience....")). In the present case, the informant's detailed description of the location, manner and extent of the marijuana cultivation and the presence on the same premises of an unusually large number of zip lock plastic bags, cf. United States v. Desmarais, 938 F.2d 347, 352 (1st Cir.1991) (presence of plastic baggies supports reasonable inference of intent to distribute marijuana and hashish found on same premises), combined with Agent Hutchings' extensive experience as a law enforcement officer in Maine, ² plainly buttressed the informant-based indicia of probable cause. We accordingly conclude, based on the totality of the circumstances, that the Hutchings affidavit provided a substantial basis for the issuing judicial officer's practical, common-sense finding that there was a fair probability that evidence of a crime would be found on appellant's premises.

B. Admissibility of Pre-Miranda Admissions

While a search team executed the warrant, Agent Hutchings arrested appellant and placed her in the back seat of a police vehicle. Hutchings testified that he gave appellant no Miranda warnings because he did not intend to ask her any questions. At some point during the trip to the county jail, appellant initiated conversation by asking: "Why is this happening to me?" Hutchings replied: "You can't be growing dope on your property like that." Taylor responded: "If you had waited and come next week, you'd have only gotten half the plants that you did[,] the way you do is you pull the male plants early." She added that she was growing the marijuana plants for treatment of a medical condition. As appellant was speaking, Hutchings turned on the overhead light in the vehicle and, without stopping the vehicle, wrote appellant's statements on a pad. Later, during "booking" at the county jail, appellant spontaneously repeated some of these statements to a deputy sheriff.

Miranda warnings must be given before a suspect is subjected to "custodial interrogation." United States v. Maguire, 918 F.2d 254, 262 (1st Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1421, 113 L.Ed.2d 474 (1991). ³ "Interrogation" includes not only the asking of direct questions but also means "any words or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 1690, 64 L.Ed.2d 297 (1980) (emphasis added). ⁴ Since Hutchings' response to appellant's spontaneous inquiry was not interrogative, we must determine whether it nevertheless constituted the "functional equivalent." Id. at 302, 100 S.Ct. at 1690. ⁵

Appellant argues that Hutchings intended to elicit an incriminating statement en route to the county jail. As evidence, she points to Hutchings' own testimony that suspects often engage in conversation or general banter while being transported to jail. More pointedly, she asserts that, when Hutchings' expectation was confirmed by appellant's inquiry, he deliberately narrowed his response by referring directly to the criminal charge for which appellant had just been arrested.

The "functional equivalence" test does not turn on the subjective intent of the particular police officer but on an...