2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 8-6-2004 

# U S A v . Gr i g gie P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-3328

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w . v i l l a no va . e du/thir dc ir c uit_2004/410NOT PRE CEDENT IAL

IN THE UNITED STATES COURT

OF APPEALS FO R T HE TH IRD CIR CU IT

NO. 03-3328

UNITED S TATES OF AMERI CA

v. ALBERT PETER GRIGGIE,

Appellant

On A ppeal From the Un ited States

District Cou rt For the Middle Dis tri ct of Pennsy lvania (D.C. Crim. Action No. 02-cr -00150) Distric t Judg e: Ho n. W illiam W . Cald we ll

Argued May 24, 2004 BE FO RE : RO TH and ST AP LE TO N, Circuit Judges , and SCHW ARZE R,* Distri ct Judge (Opinion Fi led August 6, 2004 )

* Hon. Willi am W Schw arzer, United States District J udge for the Northern Dist rict of California, sitting by

designation.2

Daniel I. Siegel Thomas A. Thornton (Argued) Office of FederalPublic Defender 100 Chestnut St

reet Harrisburg, PA 17101 Attorney s for Appell ant Ch risty H. Fa wc ett Theodore B. Smith ( Argued) Office of United St ates Att orney Federal Bui lding 228 Walnut Stre et P.O. Box 11754 Harrisburg, PA 17108 Attorney s for Appell ee

OPINI ON OF THE COURT

ST AP LE TO N, Circuit

Judge : Defendant Albert

P. Griggi e (“Griggi e”) appeal s his convi ction and sentence for trans porti ng a minor in i nters tate commerce with theintent of engaging i n crimina l sexual activity and illicit

sexual con duct w ith that minor in violation o f 18 U .S.C. § 242 3(a) & (b). After the D istrict Court denied h is pre-trial motion to supp ress certain inculpato ry state me nts g iven to a P enn sylvan ia sta te tro ope r, G rigg ie en tered a co ndi tion al gu ilty plea
. As part of the plea, Griggie r eserved t he right to chal lenge, and now does so chall enge, the D istrict Co urt’s den ial of his s upp ress ion mo tion . W e w ill aff irm. I.3

As t he pa rtie s are fa mi li arwit h the fa ct s a nd p ro ce dur al hi st or y of th is ca se , w e
rev ie w the m onl y b ri efl y. On March 13, 2002, Penns yl vani a St at e Tro oper Ricky L. Goodling, i nvesti gating t he reported sexual a ssault of a seven y ear old girl, went to the loca tion of a par ked van in w hich Gr igg ie, the sus pec ted a ssail ant, w as re por tedly liv ing
. Troo per G ood ling ap proa ched the va n and , after ru nnin g its reg istration, lea rned that it was not vali dly regis tered. He noticed that someone was ins ide the van and knocked on one of its doors. When Griggie stepped outside, Trooper Goodling identified himself as a state trooper . Griggi e then provi ded the trooper with a Virgini a identific ation c ard and Trooper Goodling i nformed him that he was investigati ng complaint s of sexual mis con duc t that Gr igg ie m igh t be in vol ved in. Tro ope r G ood ling then req ues ted, a nd G rigg ie co nse nted to, a s earc h of the v an. During the s earch, Trooper Goodling obs erved sever al speci fic i tems that the repor

ted victi m had indicated were used byGriggie i n connecti on with his alle ged sexual mis con duc t. Tro ope r G ood ling did not seiz e an y of th ese item s. Following t

he search, Trooper Goodling a sked Griggi e if he would accompany him bac k to the S tate P olice Ba rrac ks, w hich wa s loc ated one half mile dow n th e ro ad. According to Tr ooper Goodling’ s later tes timony , he i nformed Griggie that he was not under arr est and t

hat he would be fr ee to l eave at any time. Griggie agreed and foll owed Trooper Goodling to the barr acks in hi s own van. When they arri ved at the barrac ks, they proceeded t o the second f loor and Troope r Goodling pl aced Griggi e in an i ntervi ew room1 There are al so severa l factual is sues that are di sputed bythe part ies. Although Trooper Go odling testi fied that he informed Griggie of his Miranda warnings as s oon as he entered the intervi ew room , Griggie contends that he was not told of his Miranda right s unti l aft er he gave an i nculpat ory statement. I n additi on, Griggi e testifie d that before he gave t

he incul patorystat ement he reques ted a l awyer. Trooper Goodling testifie d, however, that no s uch request was made. The District Court was aware of the confli cting testi mony and it s opini on resol ved the fact ual dis putes i n favor of the Governm ent. We find no error in the Distri ct Court’s factual fi ndings. 4 in the c riminalinvestigati on divis ion. Troo per G ood ling an d G riggie la ter gav e diff ering a ccou nts of wh at took place in th e i nt er vi ew r oom , b utth e d is pos it iv e fac ts ar e u nc ont

ro ve rted . D ur in g the in te rv ie w, Trooper Goodling repeated hi s earl ier represent ation t hat Griggi e was not under ar rest and that he was free to l eave regar dless of the cont ent of anystatement he might give that night, unless he confessed t o a murder. Griggie responded that if the trooper

put that promise i n writi ng, he would gi ve a statement. Troope r Goodling t hen wrote and si gned a note to Gri ggie st ating: “If Albert Griggie tell[ s]/a dmits what happe ned with touc hing Deseree Trowbridge hewill be f ree to l eave toni ght from PSP HBG [the barracks] .” After rece iving t

he note, Griggie gave a confessi on, and then repeat ed the conf ession for tap e-reco rding . Both parties a gree th at Gr iggie w as info rmed of h is Miranda right s and signe d a waiver of those ri ghts at 8:30 p.m. Following hi s taperecord ed co nfes sion, at 9 :45 p .m., G riggie g ave o ral and written cons ent to a search of h is van. During t

he search, the items that Tr ooper Goodling had previousl y obse rved in t he van were seiz ed. Griggi e was then al lowed to le ave the bar racks i n his own van. 1 On June 26 , 2002, a federal grand juryreturned a two-count indictment against5

Griggie. Count one charged hi m with crossi ng a state line to engage i n the aggra vated

sexu al abu se of a child , in viola tion of 18 U .S.C. § 224 1(c). C oun t two charg ed him with trans porti ng a minor in i nters tate commerce with theintent of engaging i n crimina l sexual activity and illicit

sexual con duct w ith that minor, in violation of 18 U .S.C. § 242 3(a) & (b). D efen se co unse l therea fter filed a mo tion to s upp ress the inculp atory statem ents made to Trooper Goodli ng. Defense counse l argued t hat the statements were gi ven invo luntarily an d w ere the prod uct of psycho logica l coerc ion, in v iolation of the Fifth Am endm ent. A supp ression hearin g w as he ld on Sep temb er 26 , 2002 , at wh ich bo th Tro ope r G ood ling and Gr igg ie tes tified
. The D istrict Court thereafter issued an order a nd opin ion denying G riggie’s suppress ion moti on. The District Court concl uded that

Griggie had not

been in custody when he made the incul patorystat ements to Tr ooper Goodling bec ause he was not restrained i n any way and told numer ous ti mes that he was free to l eave. I n any ca se, however, the District Court found that Griggie was repeatedlyadvised of his Miranda righ ts an d sig ned a w aive r ind icatin g th at he und ersto od t he r igh t no t to g ive a state me nt. According to t

he District Court , Griggi e’s st atements were not the product of pol ice

over reach ing, an d Tro oper Go odling did n ot mis lead G riggie o r dep rive him of the ability to make a “fre e and unconstr ained choi ce about whether or not t o make a statement.” A cc or di ng ly, th e C ou rt h eld th at G rig gi e’ s in cu lp ato ry st ate m en ts w er e m ad e v ol un tar ily. On Nove mber

26, 200 2, Gri ggi e en te re d a c ond itio nalgui lty pl ea, und erFed . R.2 Count one w as dismissed on motion of the United States.
3 The Dis tric t C our

t h ad ju ri sd ic ti on o ve r t hi s c as e u nde r 1 8 U. S. C. § 32 31, an d we have juri sdiction over t

his appealpursuant

to 28 U.S.C. § 1291.

4 Griggie al so argues t

hat Trooper

Goodling subj ected hi m to a custodi al interrogation on the nigh t of M arch 13, 20 02. He does no t, howev er, contend tha t his inculpatory statements were obt ained i n violat ion of Miranda v. Arizona , 384 U.S. 436 ( 1966). Nor wo uld su ch an argu men t be cre dible g iven th e D istrict Co urt’s fin ding , cons istent w ith Trooper Go odling’s testimony, that Griggie was repeatedly informed of his Miranda rights a nd n oneth eless w aived those rights. R ather, h is argu men ts with respe ct to cu st odi al in te rr ogati on are pr es en te d a s aco mpo ne ntof th e v ol unt ar in es s a na ly si s, an d we 6 Cr. P . 11(a)( 1), to co unt tw o of the ind ictme nt. 2 He was thereaft er sent enced to 151 months of incarceration, and he now appeals. 3 II. We review the D istrict Co urt’s de nial of a mo tion to s upp ress fo r clear e rror as to the unde rlying factual findings an d we exercise plen ary review of the District Cou rt’s app licatio n of the la w to tho se f acts . United Stat es v. Pere z , 280 F.3d 318, 336 (3d Cir. 2002) (ci ting United Stat es v. Ri ddick , 156 F.3 d 50 5, 50 9 (3 d C ir. 19 98) ). Grig gie arg ues o n app eal tha t during his interv iew w ith Tro oper Go odling , he did not beli eve that

he was free to l eave. Once a promi se of freedom was befor e him, and for that rea son o nly, he co ntend s, his ab ility to make a free and u ncon strained choic e as to wh ethe r to w aive his F ifth A me ndm ent r igh t aga inst s elf- incr imin ation wa s ov erb orn e. Ac cord ingly, he ar gues that T roop er G ood ling’s p rom ise of f reedo m ren dered his inculp atory statem ents inv olun tary and th e D istrict Co urt there fore e rred in denying his motion to suppress. 4will t

herefore c onstrue them as such.
5 Our Fifth Amendment analy sis i s, of cour se, al so guided byrelevant cases apply ing the F ourtee nth A men dm ent: [P]ri or to t

he Supreme Court hol ding that the [Sel f-Incrimination Clause of the] Fifth Amendm ent applied to the st ates, i t held that t he Due P rocess C lau se of th e F ou rte en th A m en dm en t b ar s th e a dm iss io n o f “ in vo lu nt ar y” con fes sion s. See Co lorad o v. C onn elly , 479 U.S. 157, 163, 107 S. Ct. 515, 519 (1986). “The Court has r etai ned this due process focus, eve n after holding, in Malloy v. Hogan , 378 U.S. 1, 84 S. Ct. 1489, 12 L. Ed.2d 653 (1964), that t

he Fifth Amendment pri vilege against compulsoryselfincri minati on applie s to the State s.” Co lorad o v. C onn elly , 479 U.S. at 163, 107 S. Ct. at 519-20 ( citi ng Miller v . Fenton , 474 U .S. at 10 9-10 , 106 S .Ct. at 449). Thus, the Fourteent h Amendment due process cas es provi de the clear est defi niti on of “volunt arines s.” See S chne ckloth v. Bu stam onte , 412 U.S. 218, 223, 93 S. Ct. 2041, 2045-46 (1973) ( “The most extens ive judicia l expo sition o f the m eanin g of ‘volu ntarine ss’ has been deve loped in those cas es in which t

he Court has had to determi ne the ‘voluntari ness’ of a defend ant’s confe ssion for pu rposes of the Fou rteenth Am endm ent.”). Swint , 15 F.3d at

289. 7 The Fifth Amendment to t he United States Constitution provi des that no person “sh all be com pelle d in any c rimi nal c ase to b e a w itnes s ag ains t him self .” U .S. C ons t.,

amen d. V. In acc ordance with the F ifth Am endm ent, “[i]t is clear that ‘only voluntary confessi ons may be admi tted at the t rialof guilt

or innocenc e.’” United Stat es v. Swi nt , 15 F.3d 286, 288- 89 (3d Cir. 1994) (quoting Lego v. Twomey , 404 U .S. 477, 478 (1972)). 5 Th is rul e ap plies reg ard less o f w heth er an inter rog ation is cu stod ial or non cus tod ial, see id . at 289 (citing Beckwith v. United Stat es , 425 U.S. 341, 347-48 (1976)) , and i n eithe r case, “ the government

ha[s] the burden of ‘pr oving, by a prepondera nce of the evi dence, that [ the defendant ’s] . . . c onfessi on was voluntarily given. ’” Id. (citing United Stat es ex rel. Hayward v. Johnson , 508 F.2 d 32 2, 32 6 (3 d C ir.), cert. denied , 422 U.S. 10116 Although Griggi e att empts to relyupon the Supreme Court ’s st atement, in Bram v.

United Stat

es , 168 U.S. 532, 542-43 (1897), that i n order t o be voluntary , a confes sion “mu st not b e . . . obtain ed by an y direct or im plied p rom ises, ho we ver slig ht,” bo th this Court and the Supreme Court have cl early treated such promis es as part of the total ity of the c ircu ms tanc es. See Arizo na v. F ulm inan te , 499 U.S. 279, 285 (1991) (“ [I]t is cl ear th atth is pas sa ge f

ro m Bram . . . under curr ent prec edent does not state the st andard for determ ining th e volu ntarine ss of a conf ession . . . .”); Miller , 796 F.2d at 608 (“[P]r omises do not

tri gger an anal ysi s different from the tota lit y of t he circ umstances test.”); United States v. Shears , 762 F.2d 397, 401 -02 (4th C ir. 1985). 8 (19 75) ). “To determine the volunt arines s of a confess ion, t he court must

consider the effect that t he tota lit y of t he circ umstances had upon t he will of

the defendant .” Miller v
. Fenton , 796 F.2d 598, 604 (3d Cir. 1986) (ci ting Schn ecklo th v. B ustam onte , 412 U. S. 218 , 226- 27 (1 973 )). We apply the totality of the circum stance s test to a c ase like this one, where we must determine the effect of any di rect or

impli ed promise upon t he vol unt arin ess o f a s usp ects ’s co nfe ssio n. See id. at 608. 6 The poten tial circum stance s to be considered incl ude: “the length of the i nterr ogation; its location; i ts continuit y; the defend ant’s maturity; education; ph ysical condition; and m ental health,” and “the failure of polic e to advi se the def endant of hi s right s to re main sil ent and t o have counsel present during cus todialinter

rogati on.” Swint , 15 F.3d at 289 (cit ations omitt ed). The cr ucial elem ent, h ow eve r, is th at of pol ice c oer cion
. Id. Ac cord ing to th e Su prem e Co urt, “coerci ve polic e acti vity is a nece ssarypredicate to t he findi ng that a

confessi on is not ‘volunt ary ’ withi n the meaning of t he Due Process Claus e . . . .” Co lorad o v. C onn elly , 479 U.S. 157, 167 ( 1986). Such coercive activit y i ncludes “t

rickery, psyc hologica l9

pressur e, or mi stre atment. ” Wit hr ow v . W

il li ams , 507 U.S . 680 , 708 (19 93)
. We have emp hasize d that th e totality of th e circu mstan ces ap proa ch “is n ot a bu tfor tes t: we do not a sk whether the confessi on would have been made in the absence of the interrogation.” Miller , 796 F.2d at 604. Rather, we recognize that the police mayuse psyc hologica l tac tics in order to obtai n a confessi on, and the questi on to be answered when such tactics ar e used is whether the y “were s o manipulative or coe rcive t hat the y depr ived [ the su spec t] of his ability to ma ke an unco nstrain ed, au tono mo us de cision to confess. ” Id. at 605. Psycholog ical ploys by the police “may play a part in the susp ect’s de ci si on to c onf

es s, but so lo ng a s tha t d ec is io n i s apr odu ct of th e s us pe ct ’s own balanci ng of competing cons iderat ions, the confes sion i s volunt ary .” Id. ; see als o United Statesv. Rutl edge , 900 F.2d 1127, 1131 (7th Cir .) ( “The police are al lowed to play on a suspect ’s ignor ance, hi s anxieties, his fear s, and hi s uncert ainti es; t hey j ust ar e not allowed t o magnify those fears, uncertainti es, and s o forth t o the point where rati onal dec ision bec om es im pos sible .”), cert. denied , 498 U.S . 875 (19 90)
. In the ca se before us , even ass uming that Griggie s ubjectively

belie ved that

he was not free to leav e the barrack s on the nigh t in question, and th at Troop er Goo dling’s promise was the sole r eason for Gri ggie’s confessi on, we simply cannot concl ude that Trooper Goodling e ngaged in coer cive activit y. There is no e vidence i n the rec ord that Troop er Goo dling attemp ted to deceive or pressure G riggie into giving an inculpatory statement. Gri ggie’s only argument t o the contraryis base d upon a str ained i nterpretation10

of T roo per Go odl ing ’s w ritten pro mis e. Griggie argues that

the writ ten promis e – “[i] f Albert Gri ggie te ll[s ]/admit s what happened with t ouching Deseree Trowbridge he wil l be fre e to le ave toni ght from [the barrac ks]” – mak es clea r by implic ation th at Gr iggie w as fre e to lea ve tha t night only if he gave an inculpatorystat ement. We disa gree. Such an inter pretat ion is supporte d neithe r by logic nor by a reading of the w ritten promise in co njunction w ith Troope r Goo dling’s

ora l rep rese ntati ons to G rigg ie. The stat ement embodied i n the writ ten promis e, and i ts i nverse, are not l ogical equival ents. That is, the promis e cannot be r ead logi call y t o mean that, if Griggi e refused to give a stat ement, he would not be free t o leave that night . Nor, we bel ieve, can such a reading reasonably

be impli ed given Trooper Goodling’s testi mony, a nd the Dist rict Court’s f inding, that Gri ggie was repeatedly informed that he was not unde r arr est, that he was free to l eave at any time, and that

he would conti nue to be fr ee to l eave that night no

ma tter w hat h e told Tro ope r G ood ling (un less h e im plica ted h ims elf in a m urd er). The im port of the w ritten promise, w hen read together w ith Troope r Goo dling’s oral r epresent ations , was that Griggie coul d have given a s tate ment that was not inculpatory , or no s tate ment at al l, a nd he nonethel ess would have been free to l eave that night. Accordingly , we conclude t hat the decisi on to confess rather than give a noninculpatorystat ement was left entirelywithin Gri ggie’s discr etion. We therefore hol d that Trooper Goodling’ s conduct was not coerci ve.11

Other factors to be considered under the total ityof the circumstances test al so counsel aga inst

any conc lusi on that Gri ggie’s inculpatorystatements were made invo luntarily. Th e interv iew itse lf w as of relatively sh ort du ration, las ting ap prox imate ly one hour and fi fteen minutes from the be ginning of t he inte rview to t

he completi on of Grig gie’s tap e-reco rded conf ession . Du ring the intervie w, G riggie w as no t subjec ted to any t hreats or phy sicaldeprivat ion. Not onl y was he i nformed of his right to remain si lent and his right to counsel, but he al so signed a form acknowledging hi s underst anding, and

wa iver, of those rights. A ccord ingly, he u nder stood that an y inculpa tory statem ent co uld be used agai nst hi m. Griggie himself, although pos sessi ng only a seventh- grade educati on, was fift

y- two year s of age and had no hi story of mental i llnes s. He was previous ly enlis ted in t

he mili taryand also had previous experiences i n the cri minal justice sy stem. I n short, there i s no indi cati on that, under the totali ty of the circumst ances, Gri ggie was unable to make an intelli gent choi ce between givi ng an incu lpato ry state me nt, a n on- incu lpato ry state me nt, o r sim ply no state me nt at a ll. III. For th e reaso ns state d abo ve, w e w ill affirm the jud gm ent of the D istrict Co urt.