                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-6-2004

USA v. Griggie
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3328




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                                                                NOT PRECEDENTIAL




                         IN THE UNITED STATES COURT
                                  OF APPEALS
                             FOR THE THIRD CIRCUIT


                                       NO. 03-3328


                           UNITED STATES OF AMERICA

                                           v.

                             ALBERT PETER GRIGGIE,
                                   Appellant




                           On Appeal From the United States
                                      District Court
                        For the Middle District of Pennsylvania
                         (D.C. Crim. Action No. 02-cr-00150)
                       District Judge: Hon. William W. Caldwell


                                 Argued May 24, 2004

                 BEFORE: ROTH and STAPLETON, Circuit Judges,
                       and SCHWARZER,* District Judge

                      (Opinion Filed      August 6, 2004        )




* Hon. William W Schwarzer, United States District Judge for the Northern District of
California, sitting by designation.
Daniel I. Siegel
Thomas A. Thornton (Argued)
Office of Federal Public Defender
100 Chestnut Street
Harrisburg, PA 17101
 Attorneys for Appellant

Christy H. Fawcett
Theodore B. Smith (Argued)
Office of United States Attorney
Federal Building
228 Walnut Street
P.O. Box 11754
Harrisburg, PA 17108
 Attorneys for Appellee




                               OPINION OF THE COURT




STAPLETON, Circuit Judge:

       Defendant Albert P. Griggie (“Griggie”) appeals his conviction and sentence for

transporting a minor in interstate commerce with the intent of engaging in criminal sexual

activity and illicit sexual conduct with that minor in violation of 18 U.S.C. § 2423(a) &

(b). After the District Court denied his pre-trial motion to suppress certain inculpatory

statements given to a Pennsylvania state trooper, Griggie entered a conditional guilty plea.

As part of the plea, Griggie reserved the right to challenge, and now does so challenge,

the District Court’s denial of his suppression motion. We will affirm.

                                             I.

                                             2
       As the parties are familiar with the facts and procedural history of this case, we

review them only briefly. On March 13, 2002, Pennsylvania State Trooper Ricky L.

Goodling, investigating the reported sexual assault of a seven year old girl, went to the

location of a parked van in which Griggie, the suspected assailant, was reportedly living.

Trooper Goodling approached the van and, after running its registration, learned that it

was not validly registered. He noticed that someone was inside the van and knocked on

one of its doors. When Griggie stepped outside, Trooper Goodling identified himself as a

state trooper. Griggie then provided the trooper with a Virginia identification card and

Trooper Goodling informed him that he was investigating complaints of sexual

misconduct that Griggie might be involved in.

       Trooper Goodling then requested, and Griggie consented to, a search of the van.

During the search, Trooper Goodling observed several specific items that the reported

victim had indicated were used by Griggie in connection with his alleged sexual

misconduct. Trooper Goodling did not seize any of these items.

       Following the search, Trooper Goodling asked Griggie if he would accompany

him back to the State Police Barracks, which was located one half mile down the road.

According to Trooper Goodling’s later testimony, he informed Griggie that he was not

under arrest and that he would be free to leave at any time. Griggie agreed and followed

Trooper Goodling to the barracks in his own van. When they arrived at the barracks, they

proceeded to the second floor and Trooper Goodling placed Griggie in an interview room



                                             3
in the criminal investigation division.

       Trooper Goodling and Griggie later gave differing accounts of what took place in

the interview room, but the dispositive facts are uncontroverted. During the interview,

Trooper Goodling repeated his earlier representation that Griggie was not under arrest and

that he was free to leave regardless of the content of any statement he might give that

night, unless he confessed to a murder. Griggie responded that if the trooper put that

promise in writing, he would give a statement. Trooper Goodling then wrote and signed a

note to Griggie stating: “If Albert Griggie tell[s]/admits what happened with touching

Deseree Trowbridge he will be free to leave tonight from PSP HBG [the barracks].”

       After receiving the note, Griggie gave a confession, and then repeated the

confession for tape-recording. Both parties agree that Griggie was informed of his

Miranda rights and signed a waiver of those rights at 8:30 p.m. Following his tape-

recorded confession, at 9:45 p.m., Griggie gave oral and written consent to a search of his

van. During the search, the items that Trooper Goodling had previously observed in the

van were seized. Griggie was then allowed to leave the barracks in his own van.1

       On June 26, 2002, a federal grand jury returned a two-count indictment against

   1
     There are also several factual issues that are disputed by the parties. Although
Trooper Goodling testified that he informed Griggie of his Miranda warnings as soon as
he entered the interview room, Griggie contends that he was not told of his Miranda
rights until after he gave an inculpatory statement. In addition, Griggie testified that
before he gave the inculpatory statement he requested a lawyer. Trooper Goodling
testified, however, that no such request was made. The District Court was aware of the
conflicting testimony and its opinion resolved the factual disputes in favor of the
Government. We find no error in the District Court’s factual findings.

                                             4
Griggie. Count one charged him with crossing a state line to engage in the aggravated

sexual abuse of a child, in violation of 18 U.S.C. § 2241(c). Count two charged him with

transporting a minor in interstate commerce with the intent of engaging in criminal sexual

activity and illicit sexual conduct with that minor, in violation of 18 U.S.C. § 2423(a) &

(b). Defense counsel thereafter filed a motion to suppress the inculpatory statements

made to Trooper Goodling. Defense counsel argued that the statements were given

involuntarily and were the product of psychological coercion, in violation of the Fifth

Amendment. A suppression hearing was held on September 26, 2002, at which both

Trooper Goodling and Griggie testified.

       The District Court thereafter issued an order and opinion denying Griggie’s

suppression motion. The District Court concluded that Griggie had not been in custody

when he made the inculpatory statements to Trooper Goodling because he was not

restrained in any way and told numerous times that he was free to leave. In any case,

however, the District Court found that Griggie was repeatedly advised of his Miranda

rights and signed a waiver indicating that he understood the right not to give a statement.

According to the District Court, Griggie’s statements were not the product of police

overreaching, and Trooper Goodling did not mislead Griggie or deprive him of the ability

to make a “free and unconstrained choice about whether or not to make a statement.”

Accordingly, the Court held that Griggie’s inculpatory statements were made voluntarily.

       On November 26, 2002, Griggie entered a conditional guilty plea, under Fed. R.



                                             5
Cr. P. 11(a)(1), to count two of the indictment. 2 He was thereafter sentenced to 151

months of incarceration, and he now appeals. 3

                                              II.

         We review the District Court’s denial of a motion to suppress for clear error as to

the underlying factual findings and we exercise plenary review of the District Court’s

application of the law to those facts. United States v. Perez, 280 F.3d 318, 336 (3d Cir.

2002) (citing United States v. Riddick, 156 F.3d 505, 509 (3d Cir. 1998)).

         Griggie argues on appeal that during his interview with Trooper Goodling, he did

not believe that he was free to leave. Once a promise of freedom was before him, and for

that reason only, he contends, his ability to make a free and unconstrained choice as to

whether to waive his Fifth Amendment right against self-incrimination was overborne.

Accordingly, he argues that Trooper Goodling’s promise of freedom rendered his

inculpatory statements involuntary and the District Court therefore erred in denying his

motion to suppress.4


   2
       Count one was dismissed on motion of the United States.
   3
   The District Court had jurisdiction over this case under 18 U.S.C. § 3231, and we
have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
   4
    Griggie also argues that Trooper Goodling subjected him to a custodial interrogation
on the night of March 13, 2002. He does not, however, contend that his inculpatory
statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966). Nor
would such an argument be credible given the District Court’s finding, consistent with
Trooper Goodling’s testimony, that Griggie was repeatedly informed of his Miranda
rights and nonetheless waived those rights. Rather, his arguments with respect to
custodial interrogation are presented as a component of the voluntariness analysis, and we

                                               6
       The Fifth Amendment to the United States Constitution provides that no person

“shall be compelled in any criminal case to be a witness against himself.” U.S. Const.,

amend. V. In accordance with the Fifth Amendment, “[i]t is clear that ‘only voluntary

confessions may be admitted at the trial of guilt or innocence.’” United States v. Swint,

15 F.3d 286, 288-89 (3d Cir. 1994) (quoting Lego v. Twomey, 404 U.S. 477, 478 (1972)). 5

This rule applies regardless of whether an interrogation is custodial or noncustodial, see

id. at 289 (citing Beckwith v. United States, 425 U.S. 341, 347-48 (1976)), and in either

case, “the government ha[s] the burden of ‘proving, by a preponderance of the evidence,

that [the defendant’s] . . . confession was voluntarily given.’” Id. (citing United States ex

rel. Hayward v. Johnson, 508 F.2d 322, 326 (3d Cir.), cert. denied, 422 U.S. 1011


will therefore construe them as such.
   5
    Our Fifth Amendment analysis is, of course, also guided by relevant cases applying
the Fourteenth Amendment:
       [P]rior to the Supreme Court holding that the [Self-Incrimination Clause of
       the] Fifth Amendment applied to the states, it held that the Due Process
       Clause of the Fourteenth Amendment bars the admission of “involuntary”
       confessions. See Colorado v. Connelly, 479 U.S. 157, 163, 107 S. Ct. 515,
       519 (1986). “The Court has retained this due process focus, even after
       holding, in Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed.2d 653
       (1964), that the Fifth Amendment privilege against compulsory self-
       incrimination applies to the States.” Colorado v. Connelly, 479 U.S. at 163,
       107 S. Ct. at 519-20 (citing Miller v. Fenton, 474 U.S. at 109-10, 106 S.Ct.
       at 449). Thus, the Fourteenth Amendment due process cases provide the
       clearest definition of “voluntariness.” See Schneckloth v. Bustamonte, 412
       U.S. 218, 223, 93 S. Ct. 2041, 2045-46 (1973) (“The most extensive
       judicial exposition of the meaning of ‘voluntariness’ has been developed in
       those cases in which the Court has had to determine the ‘voluntariness’ of a
       defendant’s confession for purposes of the Fourteenth Amendment.”).
Swint, 15 F.3d at 289.

                                              7
(1975)).

       “To determine the voluntariness of a confession, the court must consider the effect

that the totality of the circumstances had upon the will of the defendant.” Miller v.

Fenton, 796 F.2d 598, 604 (3d Cir. 1986) (citing Schneckloth v. Bustamonte, 412 U.S.

218, 226-27 (1973)). We apply the totality of the circumstances test to a case like this

one, where we must determine the effect of any direct or implied promise upon the

voluntariness of a suspects’s confession. See id. at 608.6 The potential circumstances to

be considered include: “the length of the interrogation; its location; its continuity; the

defendant’s maturity; education; physical condition; and mental health,” and “the failure

of police to advise the defendant of his rights to remain silent and to have counsel present

during custodial interrogation.” Swint, 15 F.3d at 289 (citations omitted). The crucial

element, however, is that of police coercion. Id. According to the Supreme Court,

“coercive police activity is a necessary predicate to the finding that a confession is not

‘voluntary’ within the meaning of the Due Process Clause . . . .” Colorado v. Connelly,

479 U.S. 157, 167 (1986). Such coercive activity includes “trickery, psychological



   6
     Although Griggie attempts to rely upon the Supreme Court’s statement, in Bram v.
United States, 168 U.S. 532, 542-43 (1897), that in order to be voluntary, a confession
“must not be . . . obtained by any direct or implied promises, however slight,” both this
Court and the Supreme Court have clearly treated such promises as part of the totality of
the circumstances. See Arizona v. Fulminante, 499 U.S. 279, 285 (1991) (“[I]t is clear
that this passage from Bram . . . under current precedent does not state the standard for
determining the voluntariness of a confession . . . .”); Miller, 796 F.2d at 608
(“[P]romises do not trigger an analysis different from the totality of the circumstances
test.”); United States v. Shears, 762 F.2d 397, 401-02 (4th Cir. 1985).

                                              8
pressure, or mistreatment.” Withrow v. Williams, 507 U.S. 680, 708 (1993).

       We have emphasized that the totality of the circumstances approach “is not a but-

for test: we do not ask whether the confession would have been made in the absence of

the interrogation.” Miller, 796 F.2d at 604. Rather, we recognize that the police may use

psychological tactics in order to obtain a confession, and the question to be answered

when such tactics are used is whether they “were so manipulative or coercive that they

deprived [the suspect] of his ability to make an unconstrained, autonomous decision to

confess.” Id. at 605. Psychological ploys by the police “may play a part in the suspect’s

decision to confess, but so long as that decision is a product of the suspect’s own

balancing of competing considerations, the confession is voluntary.” Id.; see also United

States v. Rutledge, 900 F.2d 1127, 1131 (7th Cir.) (“The police are allowed to play on a

suspect’s ignorance, his anxieties, his fears, and his uncertainties; they just are not

allowed to magnify those fears, uncertainties, and so forth to the point where rational

decision becomes impossible.”), cert. denied, 498 U.S. 875 (1990).

       In the case before us, even assuming that Griggie subjectively believed that he was

not free to leave the barracks on the night in question, and that Trooper Goodling’s

promise was the sole reason for Griggie’s confession, we simply cannot conclude that

Trooper Goodling engaged in coercive activity. There is no evidence in the record that

Trooper Goodling attempted to deceive or pressure Griggie into giving an inculpatory

statement. Griggie’s only argument to the contrary is based upon a strained interpretation



                                               9
of Trooper Goodling’s written promise.

       Griggie argues that the written promise – “[i]f Albert Griggie tell[s]/admits what

happened with touching Deseree Trowbridge he will be free to leave tonight from [the

barracks]” – makes clear by implication that Griggie was free to leave that night only if he

gave an inculpatory statement. We disagree. Such an interpretation is supported neither

by logic nor by a reading of the written promise in conjunction with Trooper Goodling’s

oral representations to Griggie.

       The statement embodied in the written promise, and its inverse, are not logical

equivalents. That is, the promise cannot be read logically to mean that, if Griggie refused

to give a statement, he would not be free to leave that night. Nor, we believe, can such a

reading reasonably be implied given Trooper Goodling’s testimony, and the District

Court’s finding, that Griggie was repeatedly informed that he was not under arrest, that he

was free to leave at any time, and that he would continue to be free to leave that night no

matter what he told Trooper Goodling (unless he implicated himself in a murder).

       The import of the written promise, when read together with Trooper Goodling’s

oral representations, was that Griggie could have given a statement that was not

inculpatory, or no statement at all, and he nonetheless would have been free to leave that

night. Accordingly, we conclude that the decision to confess rather than give a non-

inculpatory statement was left entirely within Griggie’s discretion. We therefore hold that

Trooper Goodling’s conduct was not coercive.



                                            10
       Other factors to be considered under the totality of the circumstances test also

counsel against any conclusion that Griggie’s inculpatory statements were made

involuntarily. The interview itself was of relatively short duration, lasting approximately

one hour and fifteen minutes from the beginning of the interview to the completion of

Griggie’s tape-recorded confession. During the interview, Griggie was not subjected to

any threats or physical deprivation. Not only was he informed of his right to remain silent

and his right to counsel, but he also signed a form acknowledging his understanding, and

waiver, of those rights. Accordingly, he understood that any inculpatory statement could

be used against him. Griggie himself, although possessing only a seventh-grade

education, was fifty-two years of age and had no history of mental illness. He was

previously enlisted in the military and also had previous experiences in the criminal

justice system. In short, there is no indication that, under the totality of the

circumstances, Griggie was unable to make an intelligent choice between giving an

inculpatory statement, a non-inculpatory statement, or simply no statement at all.

                                              III.

       For the reasons stated above, we will affirm the judgment of the District Court.




                                              11
