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First Circuit: Miranda Waiver Not Valid Where Interrogating Officer Answered ‘No’ to Defendant’s Question — ‘None of this can be used against me, can it?’

by Douglas Ankney

The U.S. Court of Appeals for the First Circuit held that Daniel Donald’s waiver of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), was not valid where an interrogating officer answered “No” to Donald’s question: “None of this can be used against me, can it?”

In May 2019, a federal grand jury indicted Donald on five counts related to drug distribution and one count of possession of a firearm by a felon. Donald moved pretrial to suppress statements he made to law enforcement shortly after his arrest that occurred on November 30, 2017.

At the hearing on the suppression motion, the Government’s sole witness—Worcester, Massachusetts, police officer Gary Morris who was a member of a U.S. Drug Enforcement Agency Task Force (“Task Force”)—testified that Donald was suspected of involvement in a drug distribution operation. In November 2017, Task Force members were executing search warrants at two apartments rented by Donald when he arrived at one of the apartments with two other individuals.

A Task Force member recited the Miranda warnings to the three men. The men were presented with a form titled “Miranda Warnings and Waiver” that asked questions regarding whether the men understood their rights. Donald signed the form but did not place a checkmark next to the statement that read: “Yes, I wish to talk to you now and waive my Fifth Amendment Right pursuant to Miranda.”

In the other apartment, Task Force members found hidden in a wall a kilogram of cocaine, 345 grams of heroin, 80 grams of crack cocaine, 200 fentanyl pills, and a loaded firearm. Morris returned to the apartment where the three men were detained and spoke with another officer about the contraband that was found. It was then that Donald requested to speak with DEA Agent David DiTullio, asking “what can he do to help himself” and that “he would provide information.”

Donald was transported to the Worcester Police Department (“WPD”) and escorted to a room that was both audio and video recorded to be interrogated by DiTullio and Morris. Prior to providing any incriminating statements, Donald asked: “None of this can be used against me, can it?”

What occurred next was disputed by the parties at the suppression hearing. Donald contended that Morris answered “No.” The Government contended that Morris “did not provide that answer, or, at least, that [the record] supportably shows that he did not do so in any ‘intelligible’ manner.”

The U.S. District Court for the District of Massachusetts denied the suppression motion, finding that “based on its review of the recording of the interrogation, that Officer Morris did not so respond and that ‘[i]f there was a response … it was unintelligible.’” (In the recording, Morris, DiTullio, and Donald were all talking simultaneously and over each other, asking questions and not awaiting responses.)

During cross-examination of DiTullio at Donald’s trial, defense counsel played the recording and asked: “Did you hear … Task Officer Morris say any communication on the video?” DiTullio answered, “He said ‘no.’” Defense counsel then clarified: “[W]hat you call to be a response [to] can any of this be used against me, you—after that statement was made, you heard Task Officer Morris say no?” DiTullio responded, “Yes.”

Defense counsel twice moved the District Court to reconsider its suppression ruling—once at the close of the Government’s case and once at the close of the evidence. The District Court denied both motions. The jury convicted Donald of four of the distribution counts and the firearm offense. The District Court denied a post-trial motion for reconsideration of its suppression ruling and imposed a sentence of 192 months’ imprisonment.

On appeal Donald argued, inter alia, that “the government failed to show that he validly waived his Miranda rights before he made the statements that he seeks to suppress.” His argument rested “on the contention that the District Court clearly erred in finding that Officer Morris did not respond ‘No’ to Donald’s question ‘None of this can be used against me, can it?’”

The First Circuit observed “[t]here are ‘two distinct dimensions,’ Moran v. Burbine, 475 U.S. 412 (1986), to the inquiry into whether a Miranda waiver was ‘voluntarily, knowingly and intelligently’ made.” Miranda. First, “the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Moran. Second, “the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.” Id. The Government “bears the burden of showing the validity of the waiver by a preponderance of the evidence,” and the Court noted that it must begin “with a presumption that [Donald] did not waive his rights.” United States v. Carpentino, 948 F.3d 10 (1st Cir. 2020).

In the present case, the parties agreed that “Donald expressly invoked his Miranda rights when he declined to speak to law enforcement after he was given the ‘Miranda Warnings and Waiver’ form.” And the Court concluded—contrary to the Government’s contention raised for the first time on appeal—that he did not implicitly waive his rights when he initiated contact with Task Force members after he had expressly invoked his rights. “A suspect does not waive his Miranda rights merely by initiating investigation-related communication with law enforcement after previously asserting his right to counsel.” Carpentino.

Turning to whether the District Court erred in finding that Morris had not answered Donald’s question with a “No,” the Court stated, “[o]ur review of this factual finding by the District Court is for clear error, which means we must ‘defer to the District Court’s finding unless the record, read as a whole, gives rise to a strong, unyielding belief that a mistake has been made.’” United States v. Negron-Sostre, 790 F.3d 295 (1st Cir. 2015). The Court stated that its own review of the recording “leads us to conclude that it is clear that Officer Morris did say ‘No’ at just the moment that Donald argues that he did.” Consequently, Donald satisfied his burden to demonstrate “clear error” on the part of the District Court.

The Court concluded that, because Morris had answered Donald’s question with a “No,” the Government could not demonstrate by a preponderance of the evidence that his waiver of his Miranda rights “was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Moran. The Government had to show “that the defendant not only ‘knew he could stand mute and request a lawyer’ but also ‘that he was aware of the [Government’s] intention to use his statements to secure a conviction.’” Id. Morris’ answer of “No” created confusion “about the effect under Miranda of [Donald’s] speaking to law enforcement,” the Court explained. Hart v. Att’y Gen. of Fla., 323 F.3d 884 (11th Cir. 2003).

Thus, the Court concluded its opinion as follows: “while we appreciate the District Court’s evident care in considering this fact-dependent Miranda issue, we cannot conclude—given the equivocal nature of the record on the key point—that the government has satisfied its burden to show that Donald validly waived his Miranda rights. And, as this error was not harmless, we agree with Donald that none of his convictions can stand.”

Accordingly, the Court vacated Donald’s convictions and remanded for further proceedings consistent with its opinion. See: United States v. Donald, 84 F.4th 59 (1st Cir. 2023).  

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United States v. Donald



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