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,

(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'

- 2 - 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

- 3 - 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

- 4 - 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,

(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

(a)(1), 846, and

possession with intent to distribute oxycodone, see

§ 841(a)(1). The defendant maintained his innocence and moved to

suppress both the physical evidence found during the search of his

- 5 - 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,

, 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

- 6 - 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,

(1st Cir.

2014); United States v. Chhien,

(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,

(1st Cir. 2014) (quoting United States v. Lee,

(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,

(1991); United States v. Silva,

(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,

(2018) (quoting California v. Carney,

(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,

(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,

(1st Cir. 2015).

- 7 - "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,

(1st Cir. 2017) (quoting United States v. Tanguay,

(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,

(1st Cir. 2013) (quoting

United States v. Greenburg,

(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,

(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.

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

- 8 - 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,

, at *1 & n.2; see United States v. Dunston,

(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,

(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

- 9 - 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,

, 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

- 10 - 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,

(1st

Cir. 2007). But probable cause determinations are typically made

on the basis of the totality of the evidence, see Almonte-Báez,

, 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,

. And in all events,

CD was "known to the police . . . [and] could have been held

accountable if [the] information proved inaccurate or false."

.

- 11 - 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,

- 12 -

(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

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,

, at *3 & n.4.

- 13 - 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,

(1st Cir. 2020) (quoting United States v. Boskic,

(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,

(1994) (per curiam) (quoting Miranda,

). 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,

(1st Cir. 2000).

Generally, statements obtained in violation of the Miranda

principles are inadmissible. See United States v. Carpentino,

(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

Even then, the suspect may bring the questioning to a halt by

subsequently invoking his right to remain silent. See United States

v. Thongsophaporn,

(1st Cir. 2007).

- 14 - 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,

(1st Cir. 2004) (alteration

in original) (quoting New York v. Quarles,

(1984)), cert. granted, judgment vacated on other grounds,

(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,

& n.8.

- 15 - The district court concluded that the public safety

exception applied to the defendant's "fentanyl" statement.

Simpkins,

, 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

at *2 & n.3. Following that high-risk protocol,

the defendant was handcuffed and patted down for weapons

immediately upon exiting his vehicle. See

. During the

pat-down, the defendant was asked if he had "anything on" him.

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?"

The defendant replied that it was "[j]ust a little

bit of fentanyl."

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.

- 16 - testimonial evidence. See Quarles,

& 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,

, 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,

, 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.

- 17 - right to remain silent. See Simpkins,

, 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,

. 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,

(1st Cir. 2019) (quoting

United States v. Sweeney,

(1st Cir. 2018)), cert.

denied,

(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,

(1st Cir. 1998).

- 18 - so, a waiver of Miranda rights need not be explicit. See Berghuis

v. Thompkins,

(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."

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,

, at *4; see also United

States v. Hinkley,

(1st Cir. 2015) (citing

Thompkins,

) (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,

.

- 19 - 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,

(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,

,

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.,

, 152

- 20 - (1st Cir. 1990) (quoting Anderson v. City of Bessemer City,

(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."

- 21 -