
USCA1 Opinion

	




          February 2, 1993                            UNITED STATES COURT OF APPEALS                                For The First Circuit                                 ____________________                                 ____________________        No. 92-1435        No. 92-1435                              UNITED STATES OF AMERICA,                              UNITED STATES OF AMERICA,                                 Plaintiff, Appellee,                                 Plaintiff, Appellee,                                          v.                                          v.                                   JEAN M. TAYLOR,                                   JEAN M. TAYLOR,                                Defendant, Appellant.                                Defendant, Appellant.                                 ____________________                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                 ____________________                                        Before                                        Before                                 Selya, Circuit Judge,                                 Selya, Circuit Judge,                                        _____________                            Coffin, Senior Circuit Judge,                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                               and Cyr, Circuit Judge.                                        _____________                                 ____________________                                 ____________________             Arlene C. Halliday for appellant.             Arlene C. Halliday for appellant.             __________________             Margaret  D. McGaughey,  Assistant United  States Attorney,  with             Margaret  D. McGaughey,  Assistant United  States Attorney,  with             ______________________        whom  Richard S. Cohen, United  States Attorney, and  Timothy C. Wing,        whom  Richard S. Cohen, United  States Attorney, and  Timothy C. Wing,              ________________                                _______________        Assistant United States Attorney, were on brief for appellee.        Assistant United States Attorney, were on brief for appellee.                                 ____________________                                 ____________________                                   February 2, 1993                                   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          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          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          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
