United States v. Simpkins ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1948
UNITED STATES OF AMERICA,
Appellee,
v.
ROBERT SIMPKINS,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, U.S. District Judge]
Before
Torruella, Selya, and Thompson,
Circuit Judges.
Sarah A. Churchill and Nichols & Churchill, P.A. on brief for
appellant.
Halsey B. Frank, United States Attorney, and Julia M. Lipez,
Assistant United States Attorney, on brief for appellee.
October 15, 2020
SELYA, Circuit Judge. When gauging the validity of a
motor vehicle search under the so-called automobile exception to
the warrant requirement of the Fourth Amendment, see U.S. Const.
amend. IV, probable cause furnishes the beacon by which courts
must steer. In this appeal, defendant-appellant Robert Simpkins
asseverates that the district court misfigured the probable cause
equation. Concluding, as we do, that this asseveration is
groundless and that the defendant's other claims of error are
equally futile, we affirm the judgment below.
I. BACKGROUND
We rehearse the facts as supportably found by the
district court following an evidentiary hearing on the defendant's
motion to suppress both physical evidence and statements made at
the scene of a traffic stop. When necessary, we flesh out these
findings with uncontested facts drawn from the record. See United
States v. Dancy, 640 F.3d 455, 458 (1st Cir. 2011).
On March 21, 2018, a traffic stop conducted by the Maine
State Police netted a driver in possession of a large quantity of
oxycodone pills and Suboxone strips. That driver, whom we shall
call "CD," subsequently became a cooperating defendant. He told
the troopers that he had bought the contraband from "Rob," an
individual who lived in Rhode Island. Text messages between CD
and Rob, disclosed to the troopers, discussed prices and quantities
of "pinks," "green ones," and "strips." CD added to the troopers'
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store of knowledge by furnishing a cellphone number for Rob, a
description of Rob's house and car, and an insight that while CD
usually traveled to Rob to buy drugs, Rob sometimes traveled to
Maine.
Working with the federal Drug Enforcement Administration
(DEA), the Maine State Police discovered that the cellphone number
supplied by CD belonged to defendant-appellant Robert Simpkins. A
photograph of the defendant was obtained from the Rhode Island
Department of Motor Vehicles and shown to CD, who confirmed that
the individual depicted was the man who had been selling drugs to
him. Further research confirmed that the defendant's residence
and vehicle matched the descriptions provided by CD.
In April of 2018, CD began working with law enforcement
officers to orchestrate a meeting with the defendant in Maine. On
April 4, CD called the defendant and told him that he was unable
to make a planned trip to Rhode Island and asked that the defendant
advise him about any sojourns he might be taking to Maine. This
call was recorded and, after some further (unmonitored)
communications between the two men, the defendant agreed that he
would come to Maine on April 28.
When April 28 dawned, surveillance of the defendant
commenced outside his Rhode Island home. A DEA task force member
observed the defendant load several items into his car, including
a box that he placed in the trunk. Between loads, the defendant
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locked his car and kept a wary eye on his surroundings. Before
the defendant left for Maine, CD called him and asked for a final
price. The defendant responded by texting that he was "[h]eading
out about 2" and was looking for "3850 if it ain't short."
Once his car was loaded, the defendant drove to a nearby
parking lot, exited his vehicle, and entered another vehicle. The
second vehicle drove a short distance before doubling back and
returning the defendant to his own car. The defendant then started
his drive to Maine, followed surreptitiously by members of the
task force.
Shortly after crossing the border into Maine, the
defendant's vehicle was intercepted by the Maine State Police.
Because they were aware that the defendant owned a number of
firearms, the troopers followed their procedures for high-risk
arrests: they removed the defendant from his car at gunpoint,
ordered him to the ground, and handcuffed him. Asked if he had
"anything on" him, the defendant stated that he had only a
pocketknife. Palpating another item while conducting a pat-down
of the handcuffed defendant, the trooper asked: "What's that?"
The defendant replied that the bulge was "[j]ust a little bit of
fentanyl."
Next, a drug-sniffing dog explored the inside and
outside of the defendant's vehicle. The dog, trained to detect
several types of narcotics but not oxycodone or Suboxone, did not
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alert. Nevertheless, a search of the defendant's vehicle disclosed
an envelope containing Suboxone strips in the passenger
compartment and thereafter a box containing an electrical device
called a ballast in the trunk. Concealed behind a panel on the
ballast was a smell-resistant "Stink Sack" holding quantities of
oxycodone and other illicit substances.
While the vehicle search was underway, a state trooper
spoke with the defendant in a police cruiser. After reading the
defendant his Miranda rights, see Miranda v. Arizona, 384 U.S.
436, 444-45 (1966), the trooper told him that he had been detained
as part of a federal investigation into drug-trafficking and urged
his cooperation. The defendant admitted to possessing the fentanyl
found in his pocket, and he later admitted to possessing the
Suboxone found in his car. He nonetheless disclaimed any
involvement in drug-trafficking. Then — upon seeing a trooper
open the ballast — he blurted out that "[s]he found it all." At
that point, the defendant was arrested.
In due season, a federal grand jury sitting in the
District of Maine returned a superseding indictment charging the
defendant with conspiracy to distribute and possess with intent to
distribute oxycodone, see 21 U.S.C. §§ 841(a)(1), 846, and
possession with intent to distribute oxycodone, see id.§ 841(a)(1). The defendant maintained his innocence and moved to
suppress both the physical evidence found during the search of his
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vehicle and the statements he had made at the scene. In support,
he argued that the authorities lacked probable cause to search his
car and that his statements were obtained in derogation of his
Miranda rights.
After an evidentiary hearing and plethoric briefing, the
district court denied the defendant's motion to suppress. See
United States v. Simpkins, No. 2:18-cr-115, 2019 WL 148650, at *1
(D. Me. Jan. 9, 2019). In the aftermath of that ruling, the
defendant entered a conditional guilty plea to count 2 (possession
with intent to distribute oxycodone), preserving his right to
appeal the denial of his motion to suppress. On September 10,
2019, the district court dismissed count 1 of the indictment on
the government's motion and sentenced the defendant to a twenty-
four-month term of immurement on count 2. This timely appeal
followed.
II. ANALYSIS
Our analysis proceeds in two main parts. First, we
examine the defendant's contention that the authorities lacked
probable cause to search his vehicle. Second, we examine his
Miranda-based claims. We subdivide this latter examination into
distinct segments, focusing separately on statements made before
and after the provision of Miranda warnings.
Our standard of review is familiar. We appraise the
district court's denial of the motion to suppress through a
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bifurcated lens, accepting the court's findings of fact unless
clearly erroneous but subjecting its legal conclusions to de novo
review. See United States v. Arnott, 758 F.3d 40, 43 (1st Cir.
2014); United States v. Chhien, 266 F.3d 1, 5 (1st Cir. 2001). In
the absence of legal error, "we will uphold a refusal to suppress
evidence as long as the refusal is supported by some reasonable
view of the record." United States v. Arthur, 764 F.3d 92, 96
(1st Cir. 2014) (quoting United States v. Lee, 317 F.3d 26, 29-30
(1st Cir. 2003)).
A. The Vehicle Search.
When the so-called "automobile exception" applies — and
this is such a case — a warrantless search of an automobile may
proceed so long as the authorities have probable cause to believe
that contraband is within the particular vehicle.1 See California
v. Acevedo, 500 U.S. 565, 580 (1991); United States v. Silva, 742
F.3d 1, 7 (1st Cir. 2014). A finding of probable cause does not
demand proof beyond a reasonable doubt but, rather, may be made
1 The "automobile exception" recognizes that the "ready
mobility" of motor vehicles makes strict adherence to the Fourth
Amendment's warrant requirement practically impossible. Collins
v. Virginia, 138 S. Ct. 1663, 1669 (2018) (quoting California v.
Carney, 471 U.S. 386, 390 (1985)). As relevant here, the exception
applies when a moving vehicle susceptible of transporting
contraband is lawfully stopped by the police on a public highway.
See, e.g., Carroll v. United States, 267 U.S. 132, 149 (1925). If
at that point the police have probable cause to believe that the
vehicle contains evidence of criminal activity, they may search
the vehicle without first obtaining a warrant. See United States
v. White, 804 F.3d 132, 136 (1st Cir. 2015).
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"when the totality of the circumstances create 'a fair probability
that contraband or evidence of a crime will be found in a
particular place.'" United States v. Almonte-Báez, 857 F.3d 27,
31-32 (1st Cir. 2017) (quoting United States v. Tanguay, 787 F.3d
44, 50 (1st Cir. 2015)). Intelligence supplied by an informant
may support a finding of probable cause when "the probability of
a lying or inaccurate informer has been sufficiently reduced."
United States v. Gifford, 727 F.3d 92, 99 (1st Cir. 2013) (quoting
United States v. Greenburg, 410 F.3d 63, 69 (1st Cir. 2005)).
In order to assist in assessing the credibility of an
informant, we previously have set forth a non-exhaustive
compendium of potentially relevant factors. See United States v.
White, 804 F.3d 132, 137 (1st Cir. 2015). These include:
(1) the probable veracity and basis of
knowledge of the informant; (2) whether an
informant's statements reflect first-hand
knowledge; (3) whether some or all of the
informant's factual statements were
corroborated wherever reasonable and
practicable; and (4) whether a law enforcement
officer assessed, from his professional
standpoint, experience, and expertise, the
probable significance of the informant's
information.
Id. Viewing the record as a whole, we have little difficulty in
concluding that the authorities had probable cause to search the
defendant's vehicle.
CD's information furnished a coherent tale: the
defendant was not only the source of the oxycodone and Suboxone
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that was found in CD's possession but also was an ongoing supplier.
Crucially, CD's account was based upon first-hand knowledge
— knowledge that CD substantiated by referring the troopers to a
series of text messages to and from the defendant. The district
court found that experienced officers reasonably believed that the
"pinks," "greens," and "strips" that CD discussed with the
defendant referred to illicit substances. Simpkins, 2019 WL
148650, at *1 & n.2; see United States v. Dunston, 851 F.3d 91,
96-97 (1st Cir. 2017) (explaining that law enforcement officers
with experience in drug-trafficking investigations may interpret
jargon used in that trade); see also United States v. Tiem Trinh,
665 F.3d 1, 12-13 (1st Cir. 2011) (noting that court may credit
the "particular knowledge and experience" of officers in reviewing
probable cause determinations). Moreover, in an exchange that
occurred on the day before CD was found in possession of Suboxone
strips that he professed to have purchased from the defendant, the
pair discussed "how many strips" the defendant had available for
sale and whether adverse weather conditions would affect the
ability of the two men to meet and "get it over with."
This evidence, compelling in itself, was bolstered by
what transpired after CD began to cooperate with the authorities:
CD contacted the defendant on several occasions, including two
telephone calls aimed at arranging another meeting. These two
calls not only prompted the defendant to make what amounted to a
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sales trip to Maine but also corroborated CD's self-described
relationship with the defendant. In the first call, CD told the
defendant that he "need[ed] to get something" but was unable to
travel to Rhode Island. The defendant responded that he had stored
"those" in his mother's safe because he was not comfortable keeping
"them" in his own house — references that the troopers reasonably
understood to be references to illicit substances.
To cinch the matter, on the day of the defendant's
planned journey to Maine, CD requested that the defendant "send
[him] a price for a total." This was followed by a text message
from the defendant, which read: "Heading out about 2 . . . 3850
if it ain't short."
No more was exigible. At the time the defendant left
for Maine, the authorities had abundant evidence supporting CD's
claims to first-hand knowledge of the defendant's drug-trafficking
activities. So, too, they had solid reason to believe that the
defendant would be transporting to Maine illicit substances for
delivery to a prospective customer (CD). And, finally, the
defendant's behavior before leaving Rhode Island, witnessed at
first hand by task force members, was consistent with the drug-
trafficking scenario. Cf. Illinois v. Gates, 462 U.S. 213, 243
n.13 (1983) ("In making a determination of probable cause the
relevant inquiry is not whether particular conduct is 'innocent'
or 'guilty,' but the degree of suspicion that attaches to
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particular types of noncriminal acts."). It was, therefore,
objectively reasonable for the authorities to believe that the
defendant would have contraband in his vehicle when he arrived in
Maine.
Although this tableau is redolent of probable cause, the
defendant strives to snatch victory from the jaws of defeat. As
an initial matter, he challenges CD's reliability and veracity in
three ways: he adverts to CD's felony record, the fact that CD
may have lied to the authorities, and CD's assertion — not borne
out at the time of the traffic stop — that the defendant
transported contraband in the door panels of his vehicle.
We do not gainsay that all of these points are
potentially relevant and often may be factored into the probable
cause calculus. For instance, the fact that an informant has a
felony record belongs in the mix when analyzing the informant's
reliability. See United States v. Brown, 500 F.3d 48, 55 (1st
Cir. 2007). But probable cause determinations are typically made
on the basis of the totality of the evidence, see Almonte-Báez,
857 F.3d at 31, and a felony record does not preclude a finding of
probable cause where, as here, the informant's story "reasonably
appears to be reliable," Brown, 500 F.3d at 55. And in all events,
CD was "known to the police . . . [and] could have been held
accountable if [the] information proved inaccurate or false." Id.
at 54.
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The defendant's second point seems to refer to CD's
statement, when initially stopped by the police, that he had been
at a Connecticut casino. This statement, even if false — a matter
on which the record is opaque — preceded both the discovery of
contraband in CD's possession and CD's decision to cooperate with
the authorities. Given the substantiated information that CD later
provided, a meaningless fib about where he had been would do little
to skew the probable cause calculus in the defendant's favor.
Finally, the fact that oxycodone was found in the trunk
of the defendant's car, rather than in the door panels, is simply
irrelevant. Although CD told the authorities that the defendant
used the door panels to conceal drugs, there is nothing in the
record indicating either that the authorities placed any
particular weight on that statement or that CD at any time
represented that the defendant used the door panels as a hiding
place to the exclusion of all other hiding places.
The defendant next submits that, even if the authorities
may have harbored suspicions about the presence of contraband when
they stopped his car, those suspicions were neutralized and any
semblance of probable cause dispelled when the drug-sniffing dog
failed to alert. We do not agree. A drug-sniffing dog's failure
to alert is not invariably inimical to the existence of probable
cause; instead, it is merely one fact to be weighed when assessing
the totality of the circumstances. See United States v. Davis,
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430 F.3d 345, 365-67 (6th Cir. 2005) (Sutton, J., concurring in
part and dissenting in part) (collecting cases in support of "a
near universal recognition that a drug-sniffing dog's failure to
alert does not necessarily destroy probable cause"). In the case
at hand, we conclude that the dog's failure to alert did not
vitiate probable cause, given both the strength of the information
previously gleaned from CD and the fruits of the investigation up
to that point. This conclusion becomes inescapable in light of
the fact that the dog was not trained to react to prescription
opiates.2 See id.To say more about the vehicle search would be to paint
the lily. We hold, without serious question, that the authorities
had probable cause to search the defendant's car. Consequently,
the evidence seized during the vehicle search was admissible, and
the district court did not err in denying the defendant's motion
to suppress the fruits of that search.
B. The Challenged Statements.
This brings us to the denial of the defendant's motion
to suppress his statements to the authorities. Our review of the
district court's factfinding is deferential: "In the Miranda
2We note that the district court supportably credited
testimony that, in drug-trafficking investigations, it is the
standard practice of the Maine State Police to employ drug-sniffing
dogs during traffic stops even though the anticipated contraband
is not a substance that the dog was trained to detect. See
Simpkins, 2019 WL 148650, at *3 & n.4.
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context especially, we are reluctant to disturb the district
court's suppression decision, such that 'if any reasonable view of
the evidence supports the denial of a motion to suppress, we will
affirm the denial.'" United States v. Melo, 954 F.3d 334, 339
(1st Cir. 2020) (quoting United States v. Boskic, 545 F.3d 69, 77
(1st Cir. 2008)).
The baseline rule is that Miranda warnings must be given
before "a person [is] questioned by law enforcement officers after
being 'taken into custody or otherwise deprived of his freedom of
action in any significant way.'" Stansbury v. California, 511
U.S. 318, 322 (1994) (per curiam) (quoting Miranda, 384 U.S. at
444). The genesis of this rule is apparent: Miranda warnings are
designed "to protect against the extraordinary danger of compelled
self-incrimination that is inherent in" custodial interrogations.
United States v. Meléndez, 228 F.3d 19, 22 (1st Cir. 2000).
Generally, statements obtained in violation of the Miranda
principles are inadmissible. See United States v. Carpentino, 948
F.3d 10, 20 (1st Cir. 2020).
Despite their importance, Miranda rights may be waived.
A suspect, having been duly advised of his Miranda rights, may
forgo those rights and voluntarily submit to questioning. See id.Even then, the suspect may bring the questioning to a halt by
subsequently invoking his right to remain silent. See United States
v. Thongsophaporn, 503 F.3d 51, 55-56 (1st Cir. 2007).
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Against this backdrop, we turn to the defendant's dual
claims of Miranda error. We take them one by one.
1. The "Fentanyl" Statement. The defendant first
challenges the district court's refusal to suppress a statement
that he made before any Miranda warnings were administered. Some
stage-setting is useful.
We assume arguendo — as the defendant exhorts — that he
was "in custody" from the moment that the troopers ousted him from
his vehicle. On this assumption, the defendant posits that his
statement about having "[j]ust a little bit of fentanyl," made
prior to his receipt of Miranda warnings, should have been
suppressed. We think not.
Like many general rules, the Miranda rule admits of some
exceptions. One such exception allows the admission of unwarned
custodial statements given in response to "questions necessary to
secure [an officer's] own safety or the safety of the public."
United States v. Fox, 393 F.3d 52, 60 (1st Cir. 2004) (alteration
in original) (quoting New York v. Quarles, 467 U.S. 649, 659
(1984)), cert. granted, judgment vacated on other grounds, 545
U.S. 1125 (2005). For this exception to apply, the officers'
questions must relate to an "objectively reasonable need" to
address an "immediate danger" and cannot be "designed solely to
elicit testimonial evidence from a suspect." Quarles, 467 U.S. at659 & n.8.
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The district court concluded that the public safety
exception applied to the defendant's "fentanyl" statement.
Simpkins, 2019 WL 148650, at *4. It found that, during the traffic
stop, the Maine State Police "followed procedures for a high-risk
arrest" because they knew from reports of an August 2017 "mental
wellness check" that the defendant owned firearms and other
weapons.3 Id. at *2 & n.3. Following that high-risk protocol,
the defendant was handcuffed and patted down for weapons
immediately upon exiting his vehicle. See id. at *2. During the
pat-down, the defendant was asked if he had "anything on" him.
Id. Although he replied that he only had a pocketknife, the
trooper conducting the pat-down "noticed" something in the
defendant's pocket, apparently by feel, and asked, "[w]hat's
that?" Id. The defendant replied that it was "[j]ust a little
bit of fentanyl." Id.On this record, it is apparent to us — as it was to the
district court — that the question which elicited the defendant's
"fentanyl" statement arose out of an objectively reasonable
concern for officer safety rather than an effort to obtain
3Reports of that incident indicated that the defendant had
discharged a firearm inside his Rhode Island home and had told the
police that he was being watched by the CIA and the DEA. After
the defendant was remitted for a psychological evaluation, the
police removed a number of firearms and edged weapons from his
residence. Those items were returned to him at some time prior to
the traffic stop that is at issue here.
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testimonial evidence. See Quarles, 467 U.S. at 659 & n.8. As the
defendant conceded below, his personal history justified the
precaution of a pat-down for weapons. Though open-ended in nature,
the trooper's question was posed in furtherance of a reasonable
and briskly conducted check for weapons. What is more, it followed
closely on the heels of the defendant's admission that he possessed
a weapon in the form of a pocketknife. Under the public safety
exception, the trooper was not required to make a split-second
decision about whether to subordinate his immediate safety
concerns to the admissibility of any answers he might receive to
his pat-down-related questions. We conclude, therefore, that the
district court, see Simpkins, 2019 WL 148650, at *4, did not
clearly err in receiving the defendant's "fentanyl" statement into
evidence.4 See Quarles, 467 U.S. at 657–58.
2. Statements in the Cruiser. This leaves the
statements made by the defendant in the police cruiser after he
had received Miranda warnings. With respect to those statements,
the district court rebuffed two arguments made by the defendant in
favor of suppression: that the defendant had not effectively
waived his rights and that, even if he had, he later invoked his
4 The district court noted that there was conflicting evidence
as to whether the fentanyl was in a baggie or a plastic container,
see Simpkins, 2019 WL 148650, at *4 n.6, but made no explicit
finding in this respect. The parties make nothing of this
discrepancy on appeal, and we ascribe no importance to the question
of how the fentanyl was packaged.
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right to remain silent. See Simpkins, 2019 WL 148650, at *4. In
this venue, the defendant renews each of these arguments.5
The defendant's first contention — that he never
effectively waived his Miranda rights — is unconvincing. Although
he says that the trooper segued into substantive questioning
without first obtaining an affirmative Miranda waiver from him,
the relevant question is not whether the defendant explicitly
waived his Miranda rights but, rather, whether the defendant's
conduct, evaluated in light of all the attendant circumstances,
evinced a knowing and voluntary waiver. See Carpentino, 948 F.3d
at 26. To establish such knowledge, the government must show that
the defendant understood "both the nature of the right being
abandoned and the consequences of the decision to abandon" it.
United States v. Rang, 919 F.3d 113, 118 (1st Cir. 2019) (quoting
United States v. Sweeney, 887 F.3d 529, 536 (1st Cir. 2018)), cert.
denied, 140 S. Ct. 44 (2019). And to establish voluntariness, the
government must show that the defendant's waiver was the "product
of a free and deliberate choice." Id.Miranda rights furnish important protections to those in
custody, and waivers of Miranda rights are serious business. Even
5 In his appellate briefing, the defendant also suggests that
an "illegal arrest" invalidated the statements that he made while
in the police cruiser. Because no such argument was ever advanced
in the district court, it is deemed waived. See United States v.
Torres, 162 F.3d 6, 11 (1st Cir. 1998).
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so, a waiver of Miranda rights need not be explicit. See Berghuis
v. Thompkins, 560 U.S. 370, 384 (2010). "Where the prosecution
shows that a Miranda warning was given and that it was understood
by the accused, an accused's uncoerced statement establishes an
implied waiver of the right to remain silent." Id.So it is here. The record makes manifest that the
trooper gave the defendant an adequate explanation of his Miranda
rights. The defendant acknowledged that he understood these
rights. And even though the defendant never explicitly affirmed
that he was willing to answer the trooper's questions, we discern
no clear error in the district court's conclusion that his
subsequent interactions with the officer displayed such a
willingness. See Simpkins, 2019 WL 148650, at *4; see also United
States v. Hinkley, 803 F.3d 85, 91 (1st Cir. 2015) (citing
Thompkins, 560 U.S. at 384) (holding that defendant "made a valid
waiver by making uncoerced statements after acknowledging that he
understood his Miranda rights").
Finally, we come to the defendant's last contention:
that he invoked his right to remain silent during the questioning
but the trooper ran roughshod over his invocation of that right.
We rest this phase of our analysis on bedrock: an accused who
wishes to invoke his right to remain silent must do so in an
unambiguous manner. See Thompkins, 560 U.S. at 381.
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Here, the defendant asserts that he unambiguously
invoked his right to remain silent by telling the trooper more
than once that he had "nothing to say." It is, however, common
ground that "words are like chameleons; they frequently have
different shades of meaning depending upon the circumstances."
United States v. Romain, 393 F.3d 63, 74 (1st Cir. 2004). This
case illustrates the point. The defendant insists that his use of
the phrase "nothing to say" was tantamount to stating "I don't
wish to answer your questions." By contrast, the government
insists that the defendant's use of the phrase "nothing to say"
was simply a convenient means of denying that he possessed any
guilty knowledge. The district court resolved this contretemps in
the government's favor. It found that the larger context of the
interview showed that each time the defendant claimed that he had
"nothing to say," he was in fact "protesting his innocence, not
asserting his right to remain silent." Simpkins, 2019 WL 148650,
at *5.
This finding passes muster. Viewed most charitably to
the defendant, both interpretations of the "nothing to say"
language are plausible. And it is settled beyond hope of
contradiction that "[w]here there are two permissible views of the
evidence, the factfinder's choice between them cannot be clearly
erroneous." Cumpiano v. Banco Santander P.R., 902 F.2d 148, 152
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(1st Cir. 1990) (quoting Anderson v. City of Bessemer City, 470
U.S. 564, 574 (1985)).
We add only that, during the interview, the defendant
found many ways in which to disavow any knowledge of drug-
trafficking and to imply that the authorities were being misled by
"bad information." Seen in this light, it was reasonable for the
district court to infer that the defendant's repeated use of the
"nothing to say" phrase, taken in context, was part and parcel of
this pattern of disavowal.6 The district court's determination
that there was no unambiguous invocation of the defendant's right
to remain silent was fully supportable and, thus, there was no
barrier to continued questioning.
III. CONCLUSION
We need go no further. For the reasons elucidated above,
the judgment of the district court is
Affirmed.
6
A few examples suffice to illustrate the point. For one
thing, after the trooper encouraged the defendant to "think about
being honest," the defendant replied: "Sir, I have nothing to
say. I didn't do anything." For another thing, when confronted
with the discovery of the Suboxone strips, the defendant explained
that: "I forgot all about that" and "[t]here's nothing to say."
Similarly, when asked to cooperate, the defendant responded: "I
have nothing to say. I'm not part of a drug conspiracy. You guys
have the wrong guy."
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