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, 63 F.4th 95, 97 (1st Cir. 2023) (cleaned
up).
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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[?]
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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.
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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.
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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
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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.
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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, 971
F.3d 22, 30 (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, 750 F.3d 12, 16 (1st
Cir. 2014) (cleaned up) (quoting United States v. Camacho,
661
F.3d 718, 723 (1st Cir. 2011)). Therefore, questions of fact and
credibility determinations are reviewed for clear error.
Id.
"Questions of law, in contrast, receive de novo review, as does
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the district court's application of law to its findings of fact."
Id. This application of law to findings of fact includes whether
particular statements constitute an invocation of the right to
counsel. United States v. Carpentino,
948 F.3d 10, 23 (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,
781 F.3d 13, 18 (1st Cir. 2015) (quoting
United States v. Brown,
510 F.3d 57, 64 (1st Cir. 2007)).
B. Fifth Amendment Challenge
A request for counsel must be "clear and unambiguous."
Oquendo-Rivas, 750 F.3d at 18. "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.'"
Id. at 19 (quoting Davis v. United
States,
512 U.S. 452, 459 (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.'"
Id. (quoting Davis,
512 U.S. at 459).
We analyze a suspect's words to be "understood as ordinary people
would understand them." Connecticut v. Barrett,
479 U.S. 523, 529
(1987). We keep in mind that we are to give a defendant's request
for counsel "a broad, rather than a narrow interpretation."
Id.
(quoting Michigan v. Jackson,
475 U.S. 625, 633 (1986), overruled
on other grounds by Montejo v. Louisiana,
556 U.S. 778 (2009)).
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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, 710 F.3d
818 (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.
Id. at 821-22. 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. Id. at 821. There is no similar
interrogatory language here; Cowette only made declarative
statements and did not ask any question of the officers. As to
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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,
708 F.3d 938, 942 (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,
479 U.S. at 529. An analogy is instructive on this point. Consider
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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,
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"it will often be good police practice for the interviewing
officers to clarify whether or not [they] actually want[] an
attorney." Oquendo-Rivas, 750 F.3d at 19 (quoting Davis,
512 U.S.
at 461). 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,
918 F.2d 1387, 1391 (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
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circumstances3 would understand that Cowette was invoking her right
to counsel rather than the officer's subjective understanding.
Oquendo-Rivas, 750 F.3d at 19. 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, 550 U.S. 372,
378-79 (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,
943 F.3d 514,
531 (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,
924 F.3d 19, 20
(1st Cir. 2019) (per curiam))); contra Anderson ex rel. Dowd v.
City of Boston,
375 F.3d 71, 94 (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).
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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, 750 F.3d at 18; see Minnick v.
Mississippi,
498 U.S. 146, 153 (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.
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does not, in itself, establish that [they] validly waived that
right." Obershaw v. Lanman, 453 F.3d 56, 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,
948 F.3d at 21. The suspect themselves
must be the one to reinitiate any further discussions.
Id. at
21-22. "To qualify for this exception, the suspect must initiate
this further communication without coercion or probing."
Id.
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.
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