February 2, 1993

                  UNITED STATES COURT OF APPEALS
                      For The First Circuit

                                           

No. 92-1435

                    UNITED STATES OF AMERICA,

                       Plaintiff, Appellee,

                                v.

                         JEAN M. TAYLOR,

                      Defendant, Appellant.

                                           

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                    FOR THE DISTRICT OF MAINE

           [Hon. Morton A. Brody, U.S. District Judge]
                                                     

                                           

                              Before

                       Selya, Circuit Judge,
                                           

                  Coffin, Senior Circuit Judge,
                                              

                     and Cyr, Circuit Judge.
                                           

                                           

   Arlene C. Halliday for appellant.
                     
   Margaret  D. McGaughey,  Assistant United  States Attorney,  with
                         
whom  Richard S. Cohen, United  States Attorney, and  Timothy C. Wing,
                                                                   
Assistant United States Attorney, were on brief for appellee.

                                           

                         February 2, 1993
                                           

          CYR, Circuit  Judge.  Jean Taylor  appeals the judgment
          CYR, Circuit  Judge.
                             

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  seed-

lings 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 attest-

ed 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.  Incorpo-

rating  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 sup-

press the physical evidence  (marijuana plants and drug parapher-

nalia) 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 par-
          ticular 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 (1983)) (cita-
                           

tions omitted);  see also United  States v.  Ventresca, 380  U.S.
                                                      

102, 108 (1965).   The reviewing court does not undertake de novo
                                                                 

                                3

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 infor-

mant  "has  provided  reliable  information  [to  law enforcement

officials]  in the past."  Standing alone, so conclusory a state-

ment 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).
                                          

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 descrip-

tion  of the premises to be searched, including the exteriors and

                    

     1In  Caggiano, the  informant  was a  former  drug user  who
                  
provided  the names of occupants of the searched premises and the
exact dates of  his visits.   He reported that he  observed fire-
arms,  as well as glassine bags containing white powder which the
defendant had said contained cocaine.  Caggiano, 899 F.2d at 101.
                                               

                                4

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 convic-

tions 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 experi-

ence 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 (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

                                5

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 premis-

es), 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 affida-

vit provided  a substantial basis for the  issuing judicial offi-

cer's practical, common-sense finding that there was a fair prob-

ability  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 ques-
       

tions.  At some point during  the trip to the county jail, appel-

lant 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

                    

     2The  Hutchings  affidavit  fully recited  his  credentials,
including his educational training and eleven years of experience
in drug-related cases.

                                6

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. Ma-
                                                                 

guire, 918 F.2d  254, 262 (1st Cir.  1990), cert. denied,  111 S.
                                                        

Ct. 1421 (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 (1980)  (emphasis added).4   Since
         

Hutchings' response to  appellant's spontaneous  inquiry was  not

interrogative, we must determine whether it  nevertheless consti-

                    

     3The  government does not deny that appellant was in "custo-
dy" during her conversation with Hutchings.

     4Unlike the present case, the issue in Innis was whether the
                                                 
police  had initiated "interrogation" after the defendant invoked
Miranda.   Although the basic test  for custodial "interrogation"
       
does  not differ  in the  pre-Miranda context,  courts should  be
                                     
particularly  alert to  the presence  of subtle  declarations and
conduct by the police, such as those challenged in Innis, because
                                                        
an unwarned defendant may be  less alert to her rights or  to the
risks of "volunteered or spontaneous" admissions.

                                7

tuted the "functional equivalent."  Id. at 302.5
                                       

          Appellant argues  that Hutchings intended to  elicit an

incriminating statement en  route to  the county jail.   As  evi-

dence, 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

                    

     5The government insists that  the district court ruling that
the Hutchings  response did not  constitute custodial "interroga-
tion"  is subject to "clear error" review only.  Normally, "clear
error" is the  standard employed in  reviewing findings of  fact.
See  United States  v. Falon,  959 F.2d  1143, 1146-47  (1st Cir.
                            
1992);  United States  v. Sanchez,  943 F.2d  110, 112  (1st Cir.
                                 
1991).  In the present case, however, none of the  relevant facts
are in dispute.  Hutchings alone testified at the motion hearing,
conceding that appellant was not  given Miranda warnings and that
                                               
the in-transit conversation occurred.  Thus, the determination as
to whether police "interrogation" occurred depends on the totali-
ty of the circumstances, a balancing analysis commonly considered
amenable to plenary review.  See, e.g., United States v. Calisto,
                                                                
838 F.2d  711, 717-18 (3d Cir. 1988); United States v. Poole, 794
                                                            
F.2d 462,  465  (9th Cir.  1986)  (holding that,  absent  factual
dispute, totality  test "requires us to  'consider legal concepts
in the  mix of fact  and law and  to exercise judgment  about the
values'  underlying the  Miranda rule  and the  fifth amendment")
                                
(citation omitted).  Indeed,  the need for a  heightened standard
of  review seems implicit in some  of the seminal "interrogation"
cases.   See, e.g., Arizona  v. Mauro,  481 U.S. 520,  528-29 n.6
                                     
(1987)  (reversing "interrogation" determination by state supreme
court, and challenging dissent's assertion that court  improperly
disregarded factual findings:   "[The] facts of this case  do not
present a  sufficient likelihood of incrimination  to satisfy the
legal  standard articulated  in Miranda  v. Arizona and  in Rhode
                                                                 
Island  v. Innis.")  (emphasis  added); Innis,  446  U.S. at  303
                                             
(vacating judgment of state  supreme court, noting that  "[i]t is
our  view ['of the facts  of the present  case'], therefore, that
         
the respondent was not subjected [to 'interrogation'].")  (empha-
sis in original).

                                8

subjective intent  of the  particular  police officer  but on  an

objective  assessment as  to  whether the  police statements  and

conduct  would  be perceived  as  interrogation  by a  reasonable

person in the same circumstances.  See Arizona v. Mauro, 481 U.S.
                                                       

520, 527 (1987); Innis, 446 U.S. at 301-02 n.7; cf. United States
                                                                 

v.  Soto, 953  F.2d  263, 265  (6th Cir.  1992) (noting  that the
        

"[a]bsence of intent to interrogate, while not irrelevant, is not

determinative  of whether  police conduct  constitutes interroga-

tion").   Although a different result might obtain were it estab-

lished that the challenged police conduct was designed to  elicit
                                                      

a response, see United States v. Vazquez,  857 F.2d 857, 863 (1st
                                        

Cir. 1988) (quoting Innis,  446 U.S. at  302 n.7), the mere  fact
                         

that a police officer  may be aware that there is a "possibility"

that  a suspect may  make an incriminating  statement is insuffi-

cient to  establish the  functional equivalent  of interrogation.

Mauro, 481 U.S. at 528-29.
     

          Hutchings testified  that  he "might  have  anticipated

that [appellant] would make some sort of statement in response to

what  [he]  said," but  because  the entire  conversation  was so

abruptly  initiated  by Taylor,  and  so  transitory, he  "wasn't

thinking of  what her next sentence  was going to be  or what she

was even thinking."   Tr. at 38-39.  We think  Hutchings' conduct

indicates no premeditated or deliberate design, but evidences, at

most,  Hutchings'  awareness that  appellant  might  continue the

conversation she spontaneously initiated.   See, e.g., Innis, 446
                                                            

U.S.  at 303  (noting that  police comments  were part  of "brief

                                9

conversation" containing  "a few offhand remarks");  Plazinich v.
                                                              

Lynaugh,  843 F.2d 836, 840  (5th Cir. 1988)  (noting brevity and
       

informality of  officer's statement  to defendant as  evidence of

lack of "interrogation"), cert. denied, 488 U.S. 1031 (1989).6
                                      

          Nor can we agree that Hutchings' answer  unresponsively

"narrowed"  appellant's  inquiry,  or  designedly  channeled  her

attention toward  dangerous waters.   Viewed objectively,  appel-

lant's initial inquiry  ("Why is  this happening to  me?") was  a

direct request for an explanation as to why she was under arrest.
                                                                

Appellant  would have us propound a rule that police officers may

not answer direct questions, even in the most cursory and respon-

sive manner.  It might well be argued, however, that an officer's

refusal to respond  to such  a direct question  in these  circum-

stances  would be at  least as likely  to be  perceived as having

been intended to elicit  increasingly inculpatory statements from

a disconsolate suspect arrested  moments before.  Although  we do

not  rule out the possibility that "interrogation" might occur as

a consequence  of a police  officer's response to,  or relentless

pursuit  of, this  type of inquiry  in other  circumstances, cf.,
                                                                

e.g., Harryman v. Estelle, 616 F.2d 870, 874 (5th Cir.) (relevant
                         

inquiry  is whether  officer's statement  of  "surprise," however

posed,  "could  reasonably have  had  the force  of  a question")
                                                               

                    

     6Appellant  points to the presence  of a writing  pad in the
vehicle, as further evidence  of premeditation.  The availability
of  writing  materials in  a  police vehicle  is  more reasonably
explained  by  the  routine  demands  of  law  enforcement  work.
Without  more, the presence of these materials formed an insuffi-
cient basis for the proposed inference of premeditation.

                                10

(emphasis  added),  cert. denied,  449  U.S. 860  (1980),  in the
                                

present  case appellant's  inquiry was  entirely spontaneous  and

the officer's  answer was cursory  and directly responsive.   See
                                                                 

United States v.  Jackson, 863  F.2d 1168, 1172  (4th Cir.  1989)
                         

(finding  no "interrogation"  where  police officer  responded to

direct inquiry  regarding reasons  for  defendant's arrest,  made

during  conversation initiated  by defendant);  United  States v.
                                                              

Crisco, 725  F.2d  1228, 1232  (9th  Cir.) (holding  that  police
      

officer's  informational  response  to  defendant  who  expressed

general "bewilderment" at arrest was  not "interrogation"), cert.
                                                                 

denied,  466 U.S. 977 (1984);  cf. Arizona v.  Roberson, 486 U.S.
                                                       

675,  687 (1988)  (noting that,  after defendant  invokes Miranda
                                                                 

rights,  there is  no "interrogation"  if police  merely "inform"

defendant  about an investigation of a second offense of which he

is suspected).

          We thus conclude that appellant's statement was not the

product of custodial interrogation.  Miranda v. Arizona, 384 U.S.
                                                       

436,  478 (1966)  ("Volunteered statements  of any  kind are  not

barred by the Fifth Amendment . . .").7

C.  Rational Basis for Drug Equivalency Ruling
                                              

          The  district court applied  the drug equivalency stan-

dard  prescribed  in U.S.S.G.    2D1.1(c):   "in  the case  of an

offense involving marijuana plants, if the offense involved 50 or

                    

     7We note  that appellant  made substantially the  same spon-
taneous  admissions later  at the  county  jail, even  though the
"booking" officer posed only routine "booking" questions.

                                11

more plants, [the court  should] treat each plant as  the equiva-

lent of one kilogram of  marijuana."  Consequently, appellant was

sentenced to ninety-nine months' imprisonment  (offense level 28,

criminal history category  II), based on the 661 marijuana plants

seized in and around her residence.

          Appellant claims that section 2D1.1(c) is arbitrary and

without a  rational empirical  basis; hence its  application vio-

lates due process.   She relies on expert testimony  presented in

the case of  United States v. Osburn, 756 F.  Supp. 571 (N.D. Ga.
                                    

1991), to the effect that it  is impossible to cultivate a  mari-

juana plant whose yield would exceed one kilogram of marijuana.

          We disagree  with appellant that  the equivalency stan-

dard  is arbitrary.  Congress  reasonably may opt  for a punitive

deterrent against large-scale marijuana  manufacturing operations

which  pose a  greater  threat than  small-scale operations,  and

warrant exponentially enhanced punishment.   See United States v.
                                                              

McMahon, 935 F.2d  397, 401 (1st Cir. 1991)  ("'Congress intended
       

to punish growers of marihuana by the scale or potential of their
                                                        

operation and  not just  by the  weight [or  size] of  the plants

seized at a given moment.'")  (citation omitted); see also United
                                                                 

States  v.  Jordan, 964  F.2d 944,  947  (9th Cir.  1992); United
                                                                 

States  v.  Holmes, 961  F.2d 599,  601  (6th Cir.  1992); United
                                                                 

States v. Motz, 936  F.2d 1021, 1025-26  (9th Cir. 1991).8   Even
              

                    

     8Whatever precedential  weight Osburn  had was withdrawn  on
                                          
direct appeal.  See United States v. Osburn,  955 F.2d 1500 (11th
                                           
Cir. 1992).  To our knowledge, no other court has held   2D1.1(c)
unconstitutional on  the empirical ground  asserted by appellant.
In  reversing the district court,  the Eleventh Circuit held that

                                12

were  we  to conclude,  however,  that  empirical evidence  could

undermine the constitutionality of    2D1.1, a conclusion we need

not consider,  appellant not only  failed to present  evidence in

support  of such a claim  but her borrowed  empirical support has

vanished.9  The district  court's application of U.S.S.G.   2D1.1

did not constitute error.

          Affirmed.
          Affirmed
                  

                    

neither Congress nor the  Commission intended the   2D1.1 equiva-
lency test  as a predictor  of the  maximum yield of  a marijuana
plant.   Id. at 1507-08.   Rather, the actual weight  of the con-
            
trolled substance derived from  any maturing plant was recognized
as  largely speculative,  whereas  a  non-equivalency rule  would
                                                          
"reward" a marijuana grower for the mere fortuity that her arrest
occurred early in the growing season.  Id. at 1506.
                                          

     9The expert who testified  in Osburn conceded later  that he
                                         
had  since cultivated a marijuana plant  whose actual yield (1152
grams)  exceeded the  drug equivalency  rate adopted  in   2D1.1.
United States v. Godwin, 779 F. Supp. 561, 565 (N.D. Fla. 1991).
                       

                                13
