United States Court of Appeals For the First Circuit

No. 22-1534

UNITED STATES OF AMERICA,

Appellee,

v.

AMANDA COWETTE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge]

Before

Kayatta, Gelpí, and Montecalvo, Circuit Judges.

Hunter J. Tzovarras for appellant. Lindsay B. Feinberg, Assistant United States Attorney, with whom Darcie N. McElwee, United States Attorney, was on brief, for appellee.

December 12, 2023 MONTECALVO, Circuit Judge. Amanda Cowette appeals the

district court's denial of her motion to suppress statements she

made to police officers on July 16 and 17, 2018. Cowette argues

that she unequivocally invoked her Fifth Amendment right to counsel

and any subsequent questioning by law enforcement officers was in

violation of that right and that the district court's ruling to

the contrary was in error. For the reasons that follow, we find

that Cowette invoked her right to counsel, and we, therefore,

vacate the decision of the district court in part, affirm in part,

and remand for proceedings consistent with this opinion.

I. Background1

In 2018, the U.S. Drug Enforcement Administration, the

Somerset County Sheriff's Office ("SCSO"), and other law

enforcement agencies investigated a drug-trafficking operation in

Maine headed by a man named Nicholas Culver. During that

investigation, they identified Cowette as a minor participant in

the conspiracy who permitted Culver to store drugs in her home.

As a result of the investigation, law enforcement agencies obtained

a search warrant for Cowette's home.

1 Because this appeal follows a conditional guilty plea, "we glean the following relevant facts from the plea agreement, the undisputed sections of the presentence investigation report, and the transcripts of the change-of-plea and sentencing hearings." United States v. Spinks,

(1st Cir. 2023) (cleaned up).

- 2 - On the morning of July 16, 2018, several days after

Culver was arrested, law enforcement authorities executed that

search warrant. Lieutenant Carl Gottardi of the SCSO arrived at

the scene shortly after 10 a.m. and observed Cowette standing in

the driveway with Corporal Joseph Jackson, also of the SCSO.

Gottardi directed Cowette, who was handcuffed, to sit in his police

truck. He then read Cowette her Miranda rights. The following

colloquy occurred between Gottardi and Cowette, as recorded on

Gottardi's vehicle's camera:

Gottardi: And if you decide to answer any question now, with or without a lawyer present, you have a right to stop answering at any time until you can talk to a lawyer. Do you understand that?

Cowette: I guess my best bet would probably be to not talk until [I] have a lawyer --.

Gottardi: Well[,] no but do you understand that?

Cowette: Yes.

Gottardi: Okay so basically what your rights are is if you want to say something that's fine, if you want to answer one thing and not another that's fine, nobody's gonna make you say anything you don't want to say, okay? If you don't want to say anything you don't have to say anything, okay? So do you understand all of that?

Cowette: Yes.

Gottardi: So now having all those rights, as I just explained, in your mind, do you wish to speak with me at this time[?]

- 3 - Cowette: I mean, I guess I should probably wait until I have a lawyer, that sounds like the best idea, I don't -- I've never been in court[;] I've never been in trouble, I don't --.

Gottardi: Okay well I'm asking you[,] that's up to you, that's up to you. Uh, do you want to answer any questions at this time?

Cowette: I guess not, I guess I'll wait until I have a lawyer.

Gottardi: Okay great. So what's gonna happen -- that's fine. That's your right, and -- and that's super.

Gottardi later testified that he understood Cowette to have invoked

her right to counsel at that time and did not question Cowette

further. However, Gottardi continued to explain to Cowette what

the officers would be doing during the execution of the search

warrant.

Gottardi then directed Cowette to exit his truck and

remain outside with officers.2 While they stood outside, Detective

Wilfred Dodge exited the residence and told Cowette that the police

had found two safes inside the bedroom. The officers asked Cowette

if she would provide the combinations to the safes. Cowette

provided the combinations and then, a few minutes later, stated

that a small amount of fentanyl located in a drawer belonged to

her. Gottardi reminded Cowette that she had previously said that

The only time for which there is no video recording of 2

Cowette's interactions with the officers is at this point when Cowette was waiting outside of her home during the search.

- 4 - she did not want to speak to the police and that it remained her

decision whether she wished to speak further.

After the search was completed, Gottardi brought Cowette

back to his vehicle and described to her what the police found

during the search. Gottardi reminded Cowette that in their earlier

conversation she "didn't know if [she] wanted to talk to an

attorney or not . . . so [they] didn't talk[,]" but stated that he

wanted to "give [her] an opportunity only if [she wanted to]

. . . , to give [her] version" of the events. Cowette stated that

-- other than the small amount of fentanyl she had mentioned

earlier -- the rest of the seized items were not hers.

Cowette was then transported from the scene by Detective

David Cole. Prior to Cowette and Cole leaving the scene, Gottardi

informed Cole that he had read Cowette her rights and that she

told him that she wanted to speak to an attorney. Cole told

Cowette that he "kn[ew] [she] didn't know if [she] wanted to talk

to a lawyer or not, but if [she wanted to] answer any questions

about [the seized items] . . . [he]'d be more than happy to talk

to [her] about that." Throughout the car ride to the jail, Cowette

and Cole spoke to each other, and Cowette made inculpatory

statements. Cole continued to speak to Cowette at his office, in

the same building as the jail. He explained the charges against

Cowette, and she made several more inculpatory statements related

to the drug trafficking.

- 5 - The search, from Gottardi's arrival to the time Cowette

was taken from the scene, lasted less than two hours. The search

resulted in the seizure of a loaded gun from a hallway windowsill,

multiple bags containing a total of 95.2 grams of fentanyl, cash

totaling $7,444, and drug paraphernalia. Various text messages

were obtained from Cowette's phone related to drug trafficking.

Several confidential informants also corroborated much of

Cowette's alleged involvement in the conspiracy.

The following day, on July 17, 2018, Gottardi and Cole

spoke to Cowette again at their office. Cole read Cowette her

Miranda rights. Approximately forty-five minutes into that

interview, Cowette signed a written waiver of those rights. During

the interview, Cowette made several inculpatory statements to the

officers.

On February 14, 2019, a four-count indictment was filed

in the district court against Cowette. However, a substitute

information was filed on March 24, 2022, charging Cowette with:

(1) conspiracy to distribute and to possess with intent to

distribute forty grams or more of fentanyl; (2) possession with

intent to distribute forty grams or more of fentanyl; and (3)

using/maintaining a drug involved premises.

On June 3, 2019, Cowette filed a motion to suppress the

statements she made to the police. On August 5, 2019, the district

court held a hearing on that motion. The parties agreed that

- 6 - Cowette was in custody at the time of questioning but disagreed as

to whether she unambiguously invoked her right to counsel. Cowette

argued that her use of the phrase "I guess" did not undermine the

clarity of her invocation of her right to counsel under the

circumstances. Cowette further argued that after the invocation,

the officers reinitiated questioning by asking her for the

combinations to the safes found at her residence, which led to her

inculpatory statements.

On August 13, 2019, the district court issued its written

decision on Cowette's motion to suppress. In its analysis of

whether Cowette invoked her right to counsel, the district court

focused on one term Cowette used when she spoke with Gottardi, "I

guess," which the district court labeled a "qualifier." The

district court noted that had Cowette not said "I guess," her

statement would have been an unambiguous invocation of her right

to counsel. But the district court concluded that the term "I

guess" created sufficient ambiguity and was more than a

"meaningless throat clearer," such that reasonable officers could

believe that Cowette merely "might" have been invoking her right

to counsel. Therefore, the district court held that Cowette

failed to effectively invoke her Fifth Amendment right and, as a

result, the officers were not required to halt the interrogation.

Accordingly, the district court denied Cowette's motion to

suppress.

- 7 - Cowette then pled guilty to the three counts of the

substitute information and waived any right to appeal her guilty

plea, except that her plea was conditional on reserving her right

to appeal the adverse judgment on the motion to suppress. See

Fed. R. Crim. P. 11(a)(2); see also United States v. Adams,

(1st Cir. 2020). The court ultimately sentenced

Cowette to a below-guidelines, statutory-minimum term of

imprisonment of five years followed by four years of supervised

release.

II. Discussion

On appeal, Cowette contends that she unequivocally

invoked her right to counsel during her first conversation with

Gottardi, and she seeks the suppression of all statements she made

to the police after that invocation. For the reasons that follow,

we agree that Cowette properly invoked her Fifth Amendment right

to counsel.

A. Standard of Review

In reviewing the denial of a motion to suppress, "we

view the facts in the light most favorable to the district court's

ruling." United States v. Oquendo-Rivas,

(1st

Cir. 2014) (cleaned up) (quoting United States v. Camacho,

(1st Cir. 2011)). Therefore, questions of fact and

credibility determinations are reviewed for clear error.

"Questions of law, in contrast, receive de novo review, as does

- 8 - the district court's application of law to its findings of fact."

This application of law to findings of fact includes whether

particular statements constitute an invocation of the right to

counsel. United States v. Carpentino,

(1st Cir.

2020). "So long as 'any reasonable view of the evidence supports

it,' we will uphold the denial of the motion to suppress." United

States v. Molina-Gómez,

(1st Cir. 2015) (quoting

United States v. Brown,

(1st Cir. 2007)).

B. Fifth Amendment Challenge

A request for counsel must be "clear and unambiguous."

Oquendo-Rivas,

. "Where a request, marred by

ambiguity or equivocation, suggests only 'that the suspect might

be invoking the right to counsel, our precedents do not require

the cessation of questioning.'"

at 19 (quoting Davis v. United

States,

(1994)). The test is an objective one

-- "requiring that the statement be such that 'a reasonable police

officer in the circumstances would understand the statement to be

a request for an attorney.'"

(quoting Davis,

).

We analyze a suspect's words to be "understood as ordinary people

would understand them." Connecticut v. Barrett,

(1987). We keep in mind that we are to give a defendant's request

for counsel "a broad, rather than a narrow interpretation."

(quoting Michigan v. Jackson,

(1986), overruled

on other grounds by Montejo v. Louisiana,

(2009)).

- 9 - Here, as the district court did, we focus on Cowette's

use of the phrase "I guess." As the district court stated, the

remainder of the sentence -- "I'll wait until I have a lawyer" --

is, by itself, a clear invocation of Cowette's right to counsel.

Thus, we must now determine whether the initial phrase "I guess"

imbues ambiguity into the otherwise straight-forward request for

counsel. We have little trouble in holding that, under the

circumstances here, it does not.

The district court analogized Cowette's statements to

those made by the defendant in United States v. Havlik,

(8th Cir. 2013). In Havlik, our sister circuit held that the

statements "I don't have a lawyer. I guess I need to get one,

don't I?" and "I guess you better get me a lawyer then" were

ambiguous phrases that did not amount to an invocation of the

defendant's right to counsel.

. Although the

defendant in Havlik also used the phrase "I guess," there are key

differences between Havlik's attempted invocation and Cowette's

words here.

The initial statement in Havlik -- "I guess I need to

get [a lawyer], don't I?" -- is best understood as a question posed

to the officers as to whether the defendant should seek counsel,

as the Eighth Circuit held.

. There is no similar

interrogatory language here; Cowette only made declarative

statements and did not ask any question of the officers. As to

- 10 - Havlik's second statement -- "I guess you better get me a lawyer

then" -- we agree with our sister circuit that the phrase "I guess"

may inject some ambiguity, especially because it is framed in the

second person. Without commenting on what we construe the ordinary

person's interpretation of that phrase to be, we understand how

someone can guess or posit what another person will or should do

without indicating their own intent. But here, Cowette stated: "I

guess I'll wait until I have a lawyer." The crucial portions of

Cowette's statement are framed in the first person ("I'll wait

until I have a lawyer") and clearly "indicat[e] a certain and

present desire to consult with counsel." United States v. Hunter,

(7th Cir. 2013). Consequently, given the full

context of Cowette's statements, the phrase "I guess" does not

create any ambiguity.

The district court erred by narrowly focusing on whether

the term "I guess" is ambiguous in and of itself without

contextualizing its use in Cowette's sentences. When we shift

focus to Cowette's full sentences, we are convinced that she

clearly invoked her right to counsel. An ordinary person, in

hearing the entirety of Cowette's statement to Gottardi, could

only interpret Cowette's words as plainly expressing her intent to

wait for a lawyer before she spoke with the officer. See Barrett,

. An analogy is instructive on this point. Consider

- 11 - the following fictional colloquy in the context of hosting a guest

for dinner and ice cream:

Host: You can eat your ice cream now or wait until dinner.

Guest: I guess my best bet would probably be to wait until after dinner.

Host: Well, no, but do you understand that?

Guest: Yes.

Host: So do you want to eat ice cream now?

Guest: I guess I should probably wait.

Host: Well, I am asking you.

Guest: I guess not. I guess I'll wait until after dinner.

Host: Okay. Great.

Any reasonable host would at that point do exactly what Gottardi

did -- conclude they had an answer and stop asking questions. In

this analogy, the term "I guess" becomes virtually meaningless or,

at the least, serves as a mere colloquialism. This ordinary-person

interpretation also makes logical sense; a person does not "guess"

what they themselves will or will not do.

Broadening our view further to the entirety of the

interaction only strengthens our conclusion that the phrase "I

guess" does not call into question Cowette's invocation of her

right to counsel. We have noted that when a suspect makes an

unclear or ambiguous statement regarding the request for counsel,

- 12 - "it will often be good police practice for the interviewing

officers to clarify whether or not [they] actually want[] an

attorney." Oquendo-Rivas,

(quoting Davis,

). Although not required of him, Gottardi followed this

best practice and repeatedly sought clarification from Cowette as

to whether she was invoking her right to counsel. At each

opportunity Cowette was given, she indicated that she wanted to

invoke her right to counsel. Cowette never questioned whether she

should wait for a lawyer or suggested that she would speak without

one. And, although at first Cowette used the word "probably" twice

when she spoke to Gottardi -- that her "best bet would probably be

to not talk until I have a lawyer," and that, "I guess I should

probably wait until I have a lawyer" -- she then responded to

Gottardi by dropping the word "probably" and stating

affirmatively, "I guess I'll wait until I have a lawyer." Gottardi

understood that to be an invocation of her right to counsel. See

Robinson v. Borg,

(9th Cir. 1990) (finding

that the defendant's words could "only reasonably be understood as

expressing a desire to obtain counsel and to do so immediately"

and the interrogators understood it to be an invocation).

Of course, we acknowledge that our test here is an

objective one, relying on whether a "reasonable" officer under the

- 13 - circumstances3 would understand that Cowette was invoking her right

to counsel rather than the officer's subjective understanding.

Oquendo-Rivas,

. Here, we find that Gottardi acted

as any reasonable officer would, understanding the affirmative

statement "I guess I'll wait until I have a lawyer" to be an

unambiguous request for counsel, after Cowette made several

"probably" statements and Gottardi repeatedly asked clarifying

questions.

3 We also note that here, we have the benefit of not only the exact words that Cowette used but also a video of the entire encounter. Indeed, a reasonable officer must evaluate the totality of the words spoken, the tone of voice, and body language an arrestee may use. Here, Cowette's firm and curt tone of voice and body language -- looking away from the officer -- add to the reasonableness of the conclusion that Cowette was invoking her right to counsel. Although the district court stated that Cowette was "shrugging her shoulders," it found so while combining all three of the statements she made. We thus do not think this characterization accurately reflects her posture or movements while making all three statements, and particularly misconstrues Cowette's conduct in making her final statement: "I guess I'll wait until I have a lawyer." See Scott v. Harris,

(2007) (drawing facts from video evidence where a party's assertions, adopted by the lower court, contradicted the video evidence); see also O'Brien v. Town of Bellingham,

(1st Cir. 2019) (finding that "when the record contains video evidence, the authenticity of which is not challenged, the court should ordinarily view the facts 'in the light depicted by the video evidence.'" (quoting Underwood v. Barrett,

(1st Cir. 2019) (per curiam))); contra Anderson ex rel. Dowd v. City of Boston,

(1st Cir. 2004) (finding no clear error where the plaintiff did not point to record evidence that contradicted the district court's relevant factual findings).

- 14 - We accordingly find that Cowette clearly and

unequivocally invoked her right to counsel under the circumstances

when she stated, "I guess I'll wait until I have a lawyer."

The government also argued before the district court

that, even if Cowette properly invoked her right to counsel during

her initial conversation with Gottardi, she subsequently waived

her right to counsel at several later points. Because the district

court found that Cowette had not invoked her right to counsel, it

did not reach the government's alternative arguments.4 Nor did

the parties raise these alternative issues on appeal. For this

reason, we do not address those issues now and remand for further

proceedings. We do, though, offer the following guidance to the

district court.

We note that "[i]mmediately after a suspect has invoked

the right to counsel, all questioning must cease until such counsel

is provided." Oquendo-Rivas,

; see Minnick v.

Mississippi,

(1990) (holding that "when counsel

is requested, interrogation must cease, and officials may not

reinitiate interrogation without counsel present"). Further, "the

fact that [a suspect] responds to later interrogation by the police

4 The district court decided the issue of whether Cowette's state of mind allowed her to knowingly and intelligently waive her rights. The court found that Cowette demonstrated the "mental acuity" to waive her rights. This holding has not been challenged on appeal, and, thus, any such challenge is waived. Therefore, this limited portion of the district court's opinion is affirmed.

- 15 - does not, in itself, establish that [they] validly waived that

right." Obershaw v. Lanman,

, 64 (1st Cir. 2006). In

fact, "[a]ny subsequent questioning at the officers' behest

without a lawyer present is impermissible because, even if the

officers obtained a Miranda waiver, that waiver is presumed to be

involuntary." Carpentino,

. The suspect themselves

must be the one to reinitiate any further discussions.

. "To qualify for this exception, the suspect must initiate

this further communication without coercion or probing."

Mindful of the above, the district court, on remand, must determine

whether the police subsequently reinitiated questioning and

whether there was any valid waiver by Cowette.5

With these principles in mind, we vacate the district

court's decision finding that Cowette did not properly invoke her

right to counsel and remand for further proceedings.

III. Conclusion

For the foregoing reasons, we vacate in part and affirm

in part the decision of the district court on Cowette's motion to

suppress and remand for proceedings consistent with this opinion.

So ordered.

5 The district court's holding that Cowette's written waiver on July 17 was valid was based solely on its holding that she had not unambiguously invoked her right to counsel during her July 16 conversation with Gottardi or any other time prior to the written waiver. For the reasons stated herein, that finding is vacated.

- 16 -