United States Court of Appeals

For the First Circuit

No. 11-2156

UNITED STATES OF AMERICA,

Appellee,

v.

ROBERT WAYNE INFANTE,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge]

Before

Torruella, Ripple and Howard, *

Circuit Judges.

J. Hilary Billings, Assistant Federal Defender, for 

appellant.

Margaret D. McGaughey, Assistant United States Attorney, with

whom Thomas E. Delahanty, II, United States Attorney was on brief,

for appellee.

December 11, 2012

Of the Seventh Circuit, sitting by designation. *
HOWARD, Circuit Judge. Appellant Robert Wayne Infante

was charged with five criminal offenses based on the discovery of 1

marijuana plants and pipe bombs in his home, and on his statements

to law enforcement. Infante moved to suppress the evidence seized

from his home, claiming that it was discovered pursuant to a search

that violated his Fourth Amendment rights. He also moved to

suppress his statements to investigators on the grounds that he was

not advised of his Miranda rights and that the officers continued

to interrogate him after he invoked his rights to remain silent and

to have counsel present. The district court denied both motions,

and Infante subsequently pled guilty to four counts of the

indictment, conditioned on his right to appeal the suppression 2

rulings. Finding no error in the denial of his suppression

motions, we affirm.

I. BACKGROUND

A. The Entry and Search of Infante's Residence

At approximately 8:50 a.m. on June 25, 2010, Infante

placed a 911 call and requested an ambulance at 60 Avery Road in

The charged offenses were: (1) being a felon in possession 1

of a firearm and ammunition, see 18 U.S.C. §§ 922(g)(1) and 924(a);

(2) possession of an unregistered destructive device, see 26 U.S.C.

§§ 5841, 5845(f), 5861(d), and 5871; (3) manufacturing marijuana,

see 21 U.S.C. § 841(b)(1)(B); (4) possession of a destructive

device in relation to a drug trafficking offense, see 18 U.S.C. §

924(c)(1)(B)(ii); and (5) possession of a firearm in relation to a

drug trafficking offense, see 18 U.S.C. § 924(c)(1)(A)(I). 

 The fifth count was dismissed on the government's motion. 2

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Alfred, Maine. Sounding agitated, he explained that he had just

severed the tip of his finger and lacerated the side of his hand

when a propane tank exploded. When the 911 dispatcher made further

inquiries, Infante added that "a small little hand-held propane

tank exploded on me." He affirmed that he was home alone. Asked

whether anything was still burning or smoldering, he replied, "No,

it just went bang big time." Infante stated that he was out of

danger and was securing his home because he was going to be absent. 

The dispatcher advised him that help was on the way.

At 8:53 a.m., the dispatcher broadcast a regional "fire

call and rescue" regarding "a propane explosion" at 60 Avery Road,

where a "[m]ale, by himself, has a large cut, and finger

amputated." The Alfred Fire Department responded, inquiring

whether any fire or structure was involved. The dispatcher

replied, "None that I'm seeing, doesn't list anything, just a

propane explosion, and the finger amputation." The dispatcher did

not disclose the reported size of the propane tank.

At the Alfred fire station, firefighter paramedic Andrew

Stevenson and veteran firefighter George Donovan donned their

firefighting gear and headed for the scene of the emergency within

three minutes of hearing the broadcast. Stevenson drove an

ambulance and Donovan followed in a fire engine. Lieutenant Marc

Cunningham, a volunteer firefighter and the highest-ranking Alfred

Fire Department official responding to the 911 call, reported being

-3-
on his way as well. Two other volunteer firefighters, Greg Roussin

and Robert Plumpton, heard the broadcast and started toward 60

Avery Road in their personal vehicles.

Approximately ten minutes after his initial call, Infante

called 911 again to report that he was driving himself to a

hospital because the ambulance was taking too long. The dispatcher

broadcast a bulletin that the 911 caller had left the area and was

en route to a hospital. Stevenson heard the broadcast at about the

same time as he saw a man drive past him in the opposite direction

with hazard lights flashing. He advised the dispatcher that he

suspected this was the 911 caller. The dispatcher, who was on the

phone with Infante, persuaded him to pull over so that Stevenson

could attend to his hand. Following behind, Donovan assisted

Stevenson.

Stevenson and Donovan observed that Infante had a number

of superficial "shrapnel" wounds on his chest and one hand wrapped

in a bloody towel. Stevenson unwrapped the towel and saw that

Infante was missing the top of the middle finger on his left hand

and had a deep cut between his thumb and index finger. As

Stevenson was bandaging the wounds, he asked Infante how the injury

had occurred. Infante explained that he was filling a butane

lighter when it exploded. He told Stevenson that the incident had

occurred inside his house. When Donovan inquired about the

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location of the explosion, Infante gave a vague response. Despite 3

Stevenson's urging that he should go to the hospital by ambulance,

Infante refused because he did not want anyone else to drive his

car. Once his hand was bandaged, Infante got into his car and

left. Stevenson radioed that he was returning to the fire station,

while Donovan proceeded to 60 Avery Road.

Cunningham, the commander that day, was first to arrive

at Infante's residence. He walked the perimeter of the house,

including about twenty-five feet into the woods behind the house to

the site of a fire pit, to check for signs of a fire or explosion

and found neither. The front and rear doors to the house were 4

locked. The other firefighters joined Cunningham shortly

thereafter. When Donovan arrived, he informed Cunningham that

Infante did not give him a clear answer when he asked where the

explosion had occurred. Although it did not react to the presence

of the two firefighters who arrived first, Infante's loose wolf-dog

hybrid began growling at the firefighters once all four were

present. They could not approach the house until an animal control

officer contained the dog, a process that took about 30 minutes. 

Donovan was present for most of the conversation between 3

Stevenson and Infante, but he did not hear Infante tell Stevenson

that the explosion had occurred inside the house.

An abandoned school bus was parked near the driveway but 4

neither Cunningham nor his fellow firefighters checked to see

whether the explosion had occurred there. Plumpton observed

containers filled with fireworks in the bus, and Cunningham was

aware of their presence as well.

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In the meantime, Cunningham verified with Stevenson that

Infante had told him that the explosion had occurred inside the

residence. Cunningham also learned from Donovan that Infante had

stated that a butane lighter had exploded in his hand. Plumpton

observed a broken cigarette lighter in the driveway but it did not

appear to have exploded and there was no blood or human tissue near

it.

Once Infante's dog was contained, the firefighters walked

onto a side porch of the house and looked inside through an open,

screened window. They observed a trail of blood on the floor in a

hallway connecting two doors. The firefighters also heard a

hissing sound, which some of them thought sounded like running

water.

Cunningham made the decision to enter the house to search

for the source of the explosion. He testified that he wanted to

"make sure there was no other hazards to anybody, to the homeowner

if he were to return or to the public around the house." The

firefighters considered it their obligation to enter and inspect

the premises. Cunningham entered first by crawling through the

open window after the screen had been removed. He then unlocked

the door and the others joined him. Approximately an hour elapsed

between Cunningham's arrival at 60 Avery Road and the firefighters'

entry into the house.

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Once inside, the firefighters observed that the blood

trail led from a cellar door to a bathroom, where Cunningham

confirmed that water running from a faucet was causing the hissing

sound that they had heard before entering. After turning off the

faucet, they followed the blood trail down the cellar stairs,

observing droplets of blood on the steps as they descended. Once

at the bottom of the stairwell, the firefighters immediately

observed what appeared to be marijuana plants, alongside growing

equipment. They collectively agreed not to touch the plants. 

After instructing Roussin to get a camera from the fire engine, 

Cunningham advised the rest to continue to search for the source of

the explosion. One of the firefighters observed more marijuana

plants in another part of the basement.

Donovan walked to the left of the stairwell, following

the blood trail until it stopped. Because there was no indication

that the explosion had occurred at the apparent inception of the

blood trail, Donovan walked further into the cellar until he

accidentally kicked an object that looked like an upside-down

hubcap. He observed underneath it what appeared to be three pipe

bombs and immediately alerted the other firefighters. After

Roussin took photographs of the plants and the apparent pipe bombs,

the firefighters exited the house.

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Cunningham then called for backup from the state police

and the fire marshal's office. Individuals from those agencies

eventually arrived and inspected the cellar. An investigator from

the fire marshal's office ordered an evacuation of the surrounding

area and then arranged for disposal of the pipe bombs.

B. The Hospital Interviews

After refusing ambulance transportation, Infante drove

himself to a hospital in Biddeford, Maine. Once his wounds were

cleaned and bandaged, Infante was transferred to a treatment room

in the emergency department to await surgery for his hand later

that afternoon. In the meantime, Daniel Young, an investigator

with the fire marshal's office, interviewed Infante twice. Paul

Shaw, an agent with the Maine Drug Enforcement Agency, was also

present during both interviews. Neither officer read Infante his

Miranda rights. Both Young and Shaw were in plainclothes. Young

wore a gun and a badge at hip level. Shaw also carried a holstered

weapon.

The first interview occurred at approximately 11:30 a.m.

and lasted about twenty-six minutes. Young and Shaw entered the

treatment room where Infante was lying in a bed with his bandaged

hand elevated. He had been administered morphine for pain prior to

the interview. Upon entering the room, Young turned on a tape

recorder and informed Infante that he was recording their

conversation. Young stood at the foot of the bed, between Infante

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and the closed door to the room. Shaw primarily sat in a chair to

the side of the bed. Young's supervisor, Sergeant Kenneth Grimes,

briefly entered the room. Throughout the interview, Infante was

coherent, responsive, and did not appear impaired. Neither Young

nor Shaw touched him or otherwise restricted his movement.

Young began the first interview by telling Infante:

This is your voluntary statement. You don't

have to give it to me, you don't have to talk

to me if you don't want to. You're in a

hospital bed. Obviously you can't leave. You

have some serious hand injuries. So, we're

giving you the opportunity to talk with us if

you want. There's a couple things I want to

ask you about . . . . Ok, and again this is

all voluntary. You're not in custody. You're

not under arrest at this point. Ok. But I

need to know a couple of things.

Young then asked Infante about a wired battery that had been

observed in his car in the hospital parking lot, explaining that it

had raised a concern "because of some of the stuff we found at your

residence." Infante wanted to know how the officers got into his

house, but Young turned the conversation back to Infante's car. 

After Infante consented to a search of his car, Young

indicated that he wanted to ask Infante about his injuries. Young

prefaced the questioning by telling Infante once again that he was

not under arrest or in custody, adding, "[y]ou don't have to [talk

to us] obviously, voluntary." At that point Infante said, "I may

as well just plead the 5th and go for a lawyer." Young

acknowledged the request and informed Infante that firearms, bomb

-9-
squad, and drug enforcement agents were on their way to the

hospital. Infante responded by asking again how the officers got

into his house, and Young explained that the firefighters entered

based on reports of an explosion. When Infante retorted that he

had nothing else to say, Young said he wanted to know how Infante

had injured his hand but could not talk to him unless Infante

revoked his request for counsel. Infante replied, "Yeah, I'll talk

to you," and then explained that a plastic prescription bottle

filled with pyrotechnic powder that he had extracted from "snap

pops" fell off his work bench and exploded in his hand when he

tried to catch it. 

At one point during the interview, Infante asked whether

he could smoke a cigarette, and Young replied, “Not in here because

they have oxygen.” Shaw added, “I don't even think right on

hospital property you can anymore.” The interview ended after

Infante asked for more pain medication. Infante invited Shaw to

remain in his room.

Approximately an hour and ten minutes later, Young

returned to Infante's treatment room for a second interview. Shaw

was still there. Young turned on the tape recorder and began by

asking Infante if he would permit investigators to take custody of

his clothing. Young reiterated that Infante was not under arrest

or in custody and that he would be handing over his clothing

voluntarily. He later added, "you don't mind us taking [your

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clothes] voluntarily because you know we can get a warrant." When

Infante agreed, another plainclothes officer came into the room

with evidence bags to collect the clothes. Young then questioned

Infante about the explosion, again prefacing his questioning by

saying, "This is all voluntary. You don't have to talk to us." In

response, Infante explained that he was extracting the powder from

snap pops in order to mix it with gun powder and put it into pipe

bombs.

Young observed no change in Infante's demeanor during the

second interview. Again, neither Young nor any other officer

touched Infante or restrained his freedom of movement in any way. 

Hospital personnel came and went during the interview, which lasted

about twenty-one minutes.

II. DISCUSSION

Infante moved to suppress both the evidence seized from

his home and his statements at the hospital. The district court

denied both motions. We review the denial of a motion to suppress

for clear error as to questions of fact; we apply de novo review as

to the application of law to those facts and to conclusions of law.

United States v. Rheault, 561 F.3d 55, 58 (1st Cir. 2009).

Applying these standards, we conclude that the district court did

not err when it denied Infante's motions.

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A. Warrantless Entry and Search

The Fourth Amendment protects the right of the people to

be secure against unreasonable searches and seizures by the

government. Although the paradigmatic Fourth Amendment challenge

involves actions of law enforcement officers, the protection

against unreasonable searches and seizures does not wane "simply

because the official conducting the search wears the uniform of a

firefighter rather than a policeman, or because his purpose is to

ascertain the cause of a fire rather than to look for evidence of

a crime." Michigan v. Tyler, 436 U.S. 499, 506 (1978). Because

"the prophylaxis of the Fourth Amendment is at its zenith with

respect to an individual's home," United States v. Martins, 413

F.3d 139, 146 (1st Cir. 2005), a warrantless search of a private

residence is presumptively unreasonable unless one of a few

well-delineated exceptions applies. United States v. Romain, 393

F.3d 63, 68 (1st Cir. 2004).

One such exception is the emergency doctrine, which we

have recognized as a subset of the traditional exigent

circumstances exception to the warrant requirement. United States

v. Beaudoin 362 F.3d 60, 66 (1st Cir.), cert. denied, 543 U.S. 979

(2004); accord Martins, 413 F.3d at 147. Under this doctrine,

warrantless entry is justified when there is reasonable belief that

"swift action is required to safeguard life or prevent serious

harm." Martins, 413 F.2d at 147. The burden is on the government

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to show a reasonable basis, approximating probable cause, both for

the government official's belief in the existence of an emergency

and for associating the perceived emergency with the area or place

to be searched. Id.; Beaudoin, 362 F.3d at 66. "The requisite

inquiry must be undertaken in light of the totality of the

circumstances confronting the [official], including, in many cases,

a need for an on-the-spot judgment based on incomplete information

and sometimes ambiguous facts bearing upon the potential for

serious consequences." Martins, 413 F.3d at 147.

In the present case, the following objective facts were

known to the firefighters before they entered Infante's residence. 

They were asked to respond to a "fire call and rescue" at Infante's

residence for a "propane explosion" that had severed Infante's

finger and caused a deep laceration on his hand. Stevenson and

Donovan witnessed Infante's significant injuries, including

multiple shrapnel-type wounds on his chest, albeit without any

metal debris. Infante told them that a butane lighter had exploded

in his hand while he was filling it. Stevenson heard him say that

the explosion had occurred inside his house and conveyed this

information to Cunningham. An inspection of the exterior of the

residence and its immediate surroundings, including the site of a

fire pit located in the woods behind the house, revealed no signs

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that the explosion had occurred outside. When they looked into 5

the house through a window, the firefighters observed a blood trail

in a hallway between two doorways. From that vantage point, they

also heard a hissing sound that, according to the district court's

finding, was "probably, but not necessarily, [] the sound of

running water."

Based on these facts, the firefighters had a reasonable

basis, approximating probable cause, both to believe that there was

an emergency and to associate the emergency with the inside of

Infante's residence. Infante's reports of an explosion involving

volatile gas, whether propane or butane, coupled with his

significant wounds that were consistent with the occurrence of an

explosion, caused the firefighters to reasonably perceive an

emergency -- the prospect of a secondary explosion resulting from

escaping gas. Under these circumstances, the danger of a secondary

explosion is akin to that of a rekindling fire that the Supreme

Court identified in Tyler as a continuing danger that justified

fire officials' remaining in a building for a reasonable time after

extinguishing a fire in order to promptly investigate its cause. 

See Tyler, 436 U.S. at 510; see also Michigan v. Clifford, 464 U.S.

That one of the firefighters observed a broken cigarette 5

lighter in the driveway does not lend itself to an inference that

the explosion had occurred outside, nor that the cause of the

explosion was a butane lighter rather than a propane tank. 

Roussin, who observed the lighter, testified that the lighter did

not appear to have exploded and there was no blood or human tissue

near it, as one would reasonably expect given Infante's injuries.

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287, 293 (1984) ("Because determining the cause and origin of a

fire serves a compelling public interest, the warrant requirement

does not apply in such cases."). Indeed, relying in part on the

Court's reasoning in Tyler, a number of our circuits have held that

the presence of potentially explosive chemicals can justify

warrantless entry into a home. See, e.g., United States v.

Boettger, 71 F.3d 1410, 1414 (8th Cir. 1995) (warrantless search

justified based on "[a] continuing danger [] created by the

apparent presence of explosive chemicals and destructive devices");

United States v. Martin, 781 F.2d 671, 674-75 (9th Cir. 1985)

(citing Tyler for the proposition that warrantless search was

justified when an officer who responded to a report of an explosion

at the defendant's home searched it "to determine the cause of the

explosion and to ensure that additional explosions or fire would

not occur"); United States v. Urban, 710 F.2d 276, 278 (6th Cir.

1983) ("[T]he presence of potentially explosive chemicals in the

defendant's house are exactly the kind of 'continuing dangers' the

Tyler Court had in mind when it ruled that investigating officials

could remain on the premises for a reasonable time after the blaze

to determine its cause."); United States v. Callabrass, 607 F.2d

559, 564 (2d Cir. 1979) (post-fire entry justified in part due to

"need to dispose of the dangerous chemicals quickly so as to render

the premises safe").

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The second prong of the emergency doctrine is satisfied

as well. The firefighters had a reasonable basis, approximating

probable cause, to associate the emergency with the place searched.

Before they stepped onto Infante's porch and peered through his

window, an action that Infante challenges as an unlawful search of

the curtilage of his home, see Oliver v. United States, 466 U.S.

170, 180 (1984), the firefighters had a reasonable basis to believe

that the explosion had occurred inside the house. Not only was

there no indication that the explosion had occurred in the

immediate vicinity of the residence, leading to a reasonable

inference that it had occurred inside, but the responding

firefighters also knew that Infante had told Stevenson that the

explosion had happened in the house. Accordingly, the 6

firefighters were justified in approaching the house and looking

inside through a window. From that lawful vantage point, they

observed a trail of blood leading from one doorway to another,

consistent with Infante's injuries having occurred therein. Armed

Infante argues that the firefighters were not sufficiently 6

thorough in searching for the origin of the explosion outside of

his residence, faulting them for not checking beyond twenty-five

feet into the woods behind the house, or inspecting an apparently

inoperable school bus parked near the driveway. Under the

circumstances, however, the outdoor search for the source of the

explosion, coupled with Infante's statement that the explosion had

occurred inside the residence, was sufficient to establish a

reasonable probability that the explosion had not occurred outside. 

See Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 11 (1st Cir.

2004) ("[W]e have made it clear that an officer normally may

terminate her investigation when she accumulates facts that

demonstrate sufficient probable cause.").

-16-
with this further indicium associating the emergency with the

inside of Infante's residence and unable to see the source of the

explosion from their standpoint, the firefighters had sufficient

grounds to enter the residence without a warrant.

Once inside, the firefighters observed that the trail of

blood led from a bathroom to the cellar, and they limited the scope

of their search for the explosion's origin to the cellar. At the

bottom of the stairwell, they observed in plain view marijuana

plants and growing equipment. Donovan then followed the blood

trail to its apparent inception. Because he did not find the

source of the explosion at that location, the justification for the

search continued. Cf. United States v. Brown, 449 F.3d 741, 750

(6th Cir. 2006) (officer who reasonably believed burglary was in

progress in the defendant's basement but found no one in the main

area of the basement justifiably searched the interior room of the

basement). It was therefore reasonable for Donovan to continue the

search further into the cellar, at which point he accidently kicked

an upside-down hubcap containing what appeared to be three pipe

bombs.7

Infante does not argue that the firefighters' search beyond 7

the apparent origin of the blood trail was unreasonable. Although

there is no precise indication in the record as to how much further

Donovan walked beyond the trail when he stumbled upon the pipe

bombs, we are satisfied that the scope of the search was

reasonable. Indeed, given the dispersive nature of explosions, it

would have been questionable to assume that remnants of an

explosion sufficiently forceful to sever Infante's finger would

have necessarily come to rest in the immediate vicinity where the

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Infante seeks to debunk the reasonableness of the

firefighters' warrantless entry by pointing out that there were no

objective signs indicating an ongoing process inside the house, and

that they were merely speculating about potential dangers therein. 

But the continuing danger of a secondary explosion qualifies as an

emergency. In light of a substantiated report of a recent

explosion involving a volatile gas in the residence, this danger

was not speculative. Under these circumstances, hinging the

reasonableness of the firefighters' perception of the danger on

their detection of objective signs of an impending explosion,

assuming that there would be any, would improperly raise the

probable cause standard to at least "highly probable." See Acosta

v. Ames Dep't Stores, Inc., 386 F.3d 5, 11 (1st Cir. 2004) ("The

test for probable cause does not require the officers' conclusion

to be ironclad, or even highly probable. Their conclusion that

probable cause exists need only be reasonable." (internal quotation

marks omitted)).

Infante also argues that even if the firefighters were

reasonable in their belief about the risk of a secondary explosion,

the perceived danger is not cognizable under the emergency doctrine

because it involved mere risk of damage to property, as opposed to 

risk of harm to persons. The argument is unavailing. In defining

bleeding had started.

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the contours of the emergency doctrine, we have said that it

involves situations where immediate action is required to safeguard

life or prevent serious harm. Martins, 413 F.2d at 147; Beaudoin

362 F.3d at 66. We need not answer here whether danger of harm to

property can constitute a sufficient emergency to permit

warrantless entry because risk of harm to persons was clearly

present. Most obviously, had he returned home, Infante himself

would have been at risk of injury from a secondary explosion. An

explosion at his residence also would have posed a threat to any

third person whom Infante allowed on the premises. The

firefighters therefore had a reasonable basis for believing that

continuing danger of a secondary explosion posed a risk not only to

the house but also to the resident, should he return, and to the

public near the house.

We conclude that the firefighters' warrantless entry into

Infante's residence and their search of his cellar fall within the

emergency exception to the warrant requirement. Accordingly, the

district court did not err in denying Infante's motion to suppress

the evidence that the firefighters observed in plain view. See 8

Clifford, 464 U.S. at 294 ("If evidence of criminal activity is

Infante did not argue below or on appeal that the contraband 8

was not in plain view, nor did he challenge subsequent entries into

his residence by law enforcement. Accordingly, we do not address

those matters.

-19-
discovered during the course of a valid administrative search, it

may be seized under the 'plain view' doctrine."). 

B. Hospital Interviews

Infante appeals the district court's denial of his motion

to suppress the statements he made to investigators at the hospital

on two grounds. First, he argues that the hospital interviews

amounted to a custodial interrogation and the officers failed to

advise him of his Miranda rights. Second, he contends that the

interrogation should have ceased once he invoked his rights to

remain silent and to have counsel present. The district court

found that Infante was not in custody during the interviews,

obviating the need for Miranda warnings and for heeding Infante's

invocation of his rights under the Fifth and Sixth Amendments. We

perceive no error in that determination.

Law enforcement officers must give Miranda warnings

before interrogating an individual who is "taken into custody or

otherwise deprived of his freedom of action in any significant

way." Stansbury v. California, 511 U.S. 318, 322 (1994) (internal

quotation marks omitted). In the absence of a formal arrest,

whether an individual is in Miranda custody depends on whether

there is a "restraint on freedom of movement of the degree

associated with a formal arrest." Maryland v. Shatzer, ___ U.S.

___, 130 S. Ct. 1213, 1224 (2010) (internal quotation marks

omitted). The determination involves two distinct inquiries:

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"first, what were the circumstances surrounding the interrogation;

and second, given those circumstances, would a reasonable person

have felt he or she was not at liberty to terminate the

interrogation and leave." Thompson v. Keohane, 516 U.S. 99, 112 9

(1995). When an individual is unable to "leave" the place of the

interrogation solely due to circumstances incident to medical

treatment, the question is said to be slightly different: whether

he or she was at liberty to terminate the interrogation and "cause

the [officers] to leave." United States v. New, 491 F.3d 369, 373

(8th Cir. 2007); see United States v. Jamison, 509 F.3d 623, 628

(4th Cir. 2007) (whether an individual whose freedom of movement is

restricted due to medical treatment is subject to Miranda custody

depends on "whether a reasonable person would feel free to decline

officers' requests or otherwise terminate the encounter" (quoting

Florida v. Bostick, 501 U.S. 429, 436 (1991))). This approach is

consistent with the Miranda custody analysis in other contexts

where factors independent of the interrogating officers' conduct

restrict an individual's freedom of movement. See, e.g., Shatzer,

130 S. Ct. at 1224 (restriction in freedom of movement incident to

incarceration for prior conviction insufficient for Miranda

custody); United States v. Ellison, 632 F.3d 727, 729 (1st Cir.),

Because the first inquiry is distinctly factual, we review

9

the district court's assessment of the circumstances for clear

error. United States v. Hughes, 640 F.3d 428, 435 (1st Cir. 2011). 

The latter involves the application of law to fact, warranting de

novo review. Id.

-21-
cert. denied, 131 S. Ct. 295 (2010) (that a pre-trial detainee

interrogated on matters unrelated to the pending charges "is not in

the position of a suspect who is free to walk away and roam around

where he pleases" does not "equate his condition during any

interrogation with Miranda custody.").

Bearing in mind that the inquiry into whether an

individual is in custody for purposes of Miranda is one of the

totality of the circumstances, we have identified several factors

that guide the analysis. Those factors include “whether the

suspect was questioned in familiar or at least neutral

surroundings, the number of law enforcement officers present at the

scene, the degree of physical restraint placed upon the suspect,

and the duration and character of the interrogation.” United

States v. Hughes, 640 F.3d 428, 435 (1st Cir. 2011) (internal

quotation marks omitted).

The district court assessed the circumstances of

Infante's interviews as follows. During both interviews, Young

repeated to Infante several times that the interview was voluntary,

that Infante did not have to talk to him, and that Infante was not

under arrest or in custody. The officers who were present did not

make physical contact with Infante, nor did they impede hospital

personnel from coming and going freely. The interviews were

relatively short. Young and Shaw were in plainclothes and their

weapons remained in their holsters. The atmosphere was non-

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confrontational. Infante even shared several jokes with the

officers and felt comfortable enough to invite Shaw to remain in

his room between interviews. Despite having received pain

medication, Infante was coherent and responsive, showing no sign of

mental impairment. When he asked whether he could smoke a

cigarette, the officers cited the presence of oxygen and hospital

policy against smoking, rather than conveying that they controlled

Infante's environment. Although Young stood between Infante and

the closed door to the room, the remaining circumstances

neutralized any resulting inference of custody. Finally, Young

collected Infante's clothing only after obtaining his permission.

Infante argues that the district court misperceived the

environment that the officers created in his hospital room. He

points to several facts that the district court did not explicitly

address to support his position that the conduct of the officers

was confrontational. Young informed Infante that a search of his

house had revealed incriminating evidence, that agents from various

law enforcement agencies were on their way to the hospital, and

that he was aware of Infante's prior criminal record. When

requesting Infante's clothing, Young stated, "you know we can get

a warrant." And when Infante invoked his rights to remain silent

and have counsel present, the interrogation continued. 

To be sure, certain elements, taken in isolation, may

suggest an inference of custody, but the record amply supports the

-23-
district court's finding that the atmosphere was nonconfrontational. See Hughes, 640 F.3d at 437 ("Where the signals

are mixed, the district court's choice between competing inferences

cannot be clearly erroneous."). Accordingly, we find no clear

error in the district court's assessment of the interviews.

Based on the circumstances surrounding the questioning,

a reasonable person in Infante's position would have felt free to

terminate the interviews and ask the officers to leave. See

Jamison, 509 F.3d at 628-29; New, 491 F.3d at 373-74. Although 

the hospital room where the interviews occurred may not have been

a surrounding familiar to Infante, we are satisfied that it was at

least a neutral setting. First, Infante went to the hospital of

his own accord to receive treatment for his injuries. See Martin,

781 F.2d at 673 (in finding no Miranda custody where the defendant

was questioned in a hospital, emphasizing that the defendant went

to the hospital with his brother, and that law enforcement was

neither involved in his hospitalization nor in extending his

hospital stay). Second, hospital staff came and went freely during

the course of the interviews, suggesting that the officers were

"not in a position to dominate [the setting] as they are, for

example, an interrogation room at a jailhouse." United States v.

Jones, 187 F.3d 210, 218 (1st Cir. 1999).

The number of officers present during the interviews was

not overwhelming, lending support to a finding that the questioning

-24-
was non-custodial. For the most part, only two officers were in

the room, joined briefly by two others. See Hughes, 640 F.3d at

436 (finding no custody where two officers participated in the

questioning and two others remained apart); United States v. Quinn,

815 F.2d 153, 157, 161 (1st Cir. 1987) (finding no custody despite

presence of five officers).

Although Infante was confined to his hospital bed, with

his bandaged hand elevated, the officers did nothing to restrain

his movement. See Jamison, 509 F.3d at 629 ("[T]o the extent [the

defendant] felt constrained by his injuries, the medical exigencies

they created . . . should not factor into our [Miranda custody]

analysis."); New, 491 F.3d at 373-74 (no custody found where the

defendant was confined to his hospital bed in a neck brace but no

restraint was imposed by the interrogating officer). No officer

made physical contact with Infante. See Hughes, 640 F.3d at 436

(considering the same as a relevant factor supporting no-custody

finding). Nor did the officers act in a threatening manner. Young

and Shaw were in plainclothes and their visible weapons remained

holstered at all times. See id. (although officers carried visible

weapons, that no weapon was ever brandished supported a finding

that the interrogation was non-custodial). 

The duration and nature of the interviews are also

consistent with a finding that Infante was not in custody. The

interviews were relatively short, lasting approximately twenty-six

-25-
minutes and twenty-one minutes. See id. at 437 (a ninety-minute

interview not found custodial); United States v. Nishnianidze, 342

F.3d 6, 14 (1st Cir. 2003) (interview lasting forty-five minutes

did not implicate Miranda). They occurred in the late morning and

early afternoon, as opposed to a time that might have appeared more

menancing. See Hughes, 640 F.3d at 437 (time of day is a factor in

the custody analysis). Finally, we note here again that Young

informed Infante during each interview that he was not under arrest

or in custody and that he did not have to speak with the officers,

thereby communicating the non-confrontational nature of the

interviews. See United States v. McCarthy, 475 F.3d 39, 46 (1st

Cir. 2007) (emphasizing officers' similar statements in concluding

that the defendant was not in custody). That Infante at times

shared laughs with the officers and even invited one of them to

stay in his room between interviews reinforces the notion that the

officers' approach was non-threatening. Accordingly, because

Infante was not in custody while he was questioned at the hospital,

the officers were not required to give him Miranda warnings.

The absence of custody is also dispositive of Infante's

charge that the officers impermissibly continued to question him

after he invoked his rights to remain silent and to have counsel

present. Because he was not in custody, the officers were not

obligated to respect his attempted invocation of those rights. See

Ellison, 632 F.3d at 731 ("[E]ven if Ellison had clearly expressed

-26-
a desire to speak with a lawyer, he could not have invoked any

constitutional right to do that in a non-custodial interrogation .

. . ."); cf. McNeil v. Wisconsin, 501 U.S. 171, 182 n.3 (1991) ("We

have in fact never held that a person can invoke his Miranda rights

anticipatorily, in a context other than custodial interrogation[.]"

(internal quotation marks omitted)).

III. CONCLUSION

For the foregoing reasons, we affirm the district court's

denial of Infante's motions to suppress evidence.

-Dissenting Opinion Follows-

-27-
TORRUELLA, Circuit Judge (Dissenting). I respectfully

dissent because I believe the majority has stretched the emergency

doctrine beyond its limit, to the point where a warrantless entry

into a person's home is no longer based on a reasonable suspicion

of an ongoing emergency, but rather on speculation-based hypotheses

lacking in objective factual support. The facts of this case, as

found by the magistrate judge, compel me to reach the opposite

conclusion from that of my colleagues, namely that there was no

ongoing emergency inside Infante's home to justify the

firefighters' warrantless entry there. There certainly was a

legitimate need to inspect the inside of Infante's home to

ascertain how the explosion occurred, but absent exigent

circumstances, such a search necessitated an administrative search

warrant to comply with the strictures of the Fourth Amendment.

I begin my analysis with a look at Michigan v. Clifford,

464 U.S. 287 (1984), a plurality opinion cited by the majority,

because I believe it lays the proper framework for resolving the

question on whether the firefighters' warrantless entry in this

case ran afoul of the Fourth Amendment. There, firefighters were

called upon to extinguish a fire at the residence of the

defendants, who were out of town. After the blaze was extinguished

at 7:04 am, all police and firefighting personnel left the vicinity

of the house. Around five hours later, a team of arson

investigators arrived at the residence for the first time to

-28-
investigate the cause of the blaze. Without a warrant, and without

the consent of the defendants, the investigators entered the home

and began an extensive search of the premises, commencing with the

basement. At the basement, they found and seized evidence

suggesting defendants had committed arson, and based on this

evidence they proceeded to search the rest of the house, where they

found additional evidence. The defendants sought to suppress all

of the evidence, arguing that it had been obtained pursuant to a

warrantless search that violated their rights under the Fourth and

Fourteenth Amendments. Id. at 291.

A plurality of the Supreme Court agreed with the

defendants and concluded that, where reasonable expectations of

privacy remain in fire-damaged premises, searches into the cause

and origin of a fire are subject to the warrant requirement of the

Fourth Amendment, absent consent or exigent circumstances. Id. at

291-92, 297. The Justices noted that the constitutionality of

warrantless entries onto fire-damaged premises depended on three

factors, namely: (i) "whether there are legitimate privacy

interests in the fire-damaged property that are protected by the

Fourth Amendment;" (ii) "whether exigent circumstances justify the

government intrusion regardless of any reasonable expectations of

privacy;" and (iii) "whether the object of the search is to

determine the cause of the fire or to gather evidence of criminal

activity." Id. at 292.

-29-
The government in Clifford conceded that there were no

exigent circumstances to justify its post-fire searches, but argued

nonetheless that the Court should exempt all searches aimed at

ascertaining the origin and cause of a fire from the warrant

requirement, or in the alternative that it modify its decision in

Michigan v. Tyler, 436 U.S. 499 (1978), to permit such post-fire

searches. Clifford, 464 U.S. at 296. The Justices declined both

invitations, noting that the post-fire search by the arson

investigators was not merely the continuation of the earlier

search, but rather was an independent search divorced from any need

to attend to an emergency. Id. at 296-97. This set the case apart

from Tyler, where the post-fire entry was held to be a continuation

of the initial entry made by the firefighters, because after

extinguishing the blaze they were not able to secure the premises

and complete their investigation, due to the dark and smoky

conditions. Id. at 296. In the end, the plurality determined that

the investigators' post-fire search of the basement was illegal

because it was conducted without an administrative search warrant

and absent exigent circumstances. Id. at 297-99. The Court

invalidated the ensuing search of the remainder of the house as it

was carried out without a traditional criminal search warrant based

on probable cause. Id.

Proceeding to apply the three factors elucidated in

Clifford to the facts of this case, I conclude that: (i) Infante

-30-
had retained a significant privacy interest in his home after he

left for the hospital; (ii) there were no exigent circumstances

compelling the firefighters' warrantless entry; and (iii) the

firefighters' primary object in conducting that entry was to search

for the cause and origin of the explosion, and absent an emergency,

an administrative search warrant was needed to protect Infante's

Fourth Amendment rights.

In Clifford, the plurality noted that "[s]ome fires may

be so devastating that no reasonable privacy interests remain in

the ash and ruins, regardless of the owner's subjective

expectations." Id. at 292. Such is not the case here. The record

reflects that after the explosion, Infante told the 911 dispatcher

that he was going to take care of things and secure his house

because he was not going to be there. When intercepted by

Stevenson and Donovan on the way to the hospital, he also cautioned

them against going to his home, because he kept a wolf-dog loose on

the property. Despite the presence of this animal, the

firefighters were able to approach the house, which had no

appreciable damage, and determine that its exterior doors were

locked. Therefore, it is clear that Infante had time to secure

his house after the explosion occurred, and took precautions to

ensure that no intruders would be able to gain access. After

taking care of his injuries, it would have been highly probable for

-31-
him to return to his home and resume his normal life, an indication

that he still harbored a strong expectation of privacy there.

The record also belies the assertion that an ongoing

emergency was in progress at the time the firefighters arrived. 

Under the emergency doctrine, in order to make a valid entry into

Infante's home without a warrant, there must have been an emergency

situation requiring prompt action by the firefighters to "save

someone's life or prevent harm." United States v. Beaudoin, 362

F.3d 60, 66 (1st Cir. 2004), rev'd on other grounds sub nom.

Champagne v. United States, 543 U.S. 1102 (2005); see also United

States v. Moss, 963 F.2d 673, 678 (4th Cir. 1992) (holding that, to

invoke the "emergency doctrine," the official who makes the entry

must have an objectively reasonable belief that an emergency

existed that required immediate action "to render assistance or

prevent harm to persons or property within"); Tierney v. Davidson,

133 F.3d 189, 196 (2d Cir. 1998)("[P]olice officers may enter a

dwelling without a warrant to render emergency aid and assistance

to a person whom they reasonably believe to be in distress and in

need of that assistance."). In Beaudoin we held that an entry

pursuant to the emergency doctrine required "a reasonable basis,

sometimes said to be approximating probable cause, both to believe

in the existence of the emergency and to associate that emergency

with the area or place to be searched." 362 F.3d at 66.

-32-
The majority has concluded that the firefighters in this

case were aware of sufficient objective facts to create a

reasonable belief in their minds that an emergency was in progress

which required their prompt entry into Infante's home. They point

out to the dispatch's broadcast heard by the firefighters

announcing a "fire call and rescue" stemming from a "propane

explosion" that had severed part of an individual's finger and

lacerated his hand. Maj. Slip Op. at 13. The majority also places

much emphasis on the fact the broadcast reported a propane

explosion, while Infante later told Stevenson that the explosion

had occurred when he was filling up a butane lighter. Id. They

further recount how the firefighters observed blood inside the

house and heard a "hissing noise" emanating from within. Id. at

14. From this factual scenario, the majority concludes that

"Infante's reports of an explosion involving volatile gas, whether

propane or butane, coupled with his significant wounds that were

consistent with the occurrence of an explosion, caused the

firefighters to reasonably perceive an emergency -- the prospect of

a secondary explosion resulting from escaping gas." Id.

I find it difficult to subscribe to this view as in this

case there were no objective indicia to suggest that volatile gas

was somehow venting from within the residence. First, the

firefighters testified at the suppression hearing that they knew,

before entering the house, that the "hissing sound" they heard was

-33-
most likely that of a water faucet left on by someone, and not of

"escaping gas," as the majority seems to intimate. Second, the

majority has merely stated that the fact that an explosion

occurred, whether from a propane tank or a butane lighter, and of

sufficient force to sever the tip of Infante's finger, can also

lead to a reasonable belief that volatile gas was creeping inside

the residence, thereby posing an immediate risk of a secondary

explosion. Yet the occurrence of one explosion does not

automatically give rise to an inference that another may follow,

and the majority has not explained how a butane lighter, or a

similar type of container exploding, can conceivably lead to a

danger of that magnitude. And although the firefighters had been

informed by Sanford dispatch that the explosion had originated from

a propane tank of indeterminate proportions, it was highly unlikely

that a propane tank caused Infante's injuries, or at least one

large enough to create the type of risks envisioned by the

majority.

Stevenson himself testified that Infante's injuries were

more consistent with Infante's account of a butane lighter

exploding than with the dispatch's report of a blast from a propane

tank. He later clarified that he thought the injuries were caused

by something "a little bit larger" than a butane lighter, given the

lesions he observed on Infante's chest. In any case, it is

extremely unlikely that the injuries could have been caused by an

-34-
explosion of a propane tank of significant dimensions. Stevenson

testified that it takes a "BLEVE" or a boiling liquid expanding

vapor explosion, for a propane tank to explode, and that this event

normally occurs when a tank is heated to a degree where the liquid

inside will turn into vapor, to a point where the material of the

tank is unable to contain the increase in pressure, which in turn

causes the tank to explode. However, neither Stevenson nor any of

the other firefighters who testified at the suppression hearing

explained how such a potent event could have happened inside

Infante's home without leaving any trace for the firefighters to

observe, either on the exterior of the house or the interior

portion that the firefighters were able to examine through the

window. If a BLEVE did occur, then it most likely originated

inside some kind of container housing flammable gas, small enough

for Infante to hold in his hand, but not large enough to mount an

explosion of the magnitude necessary to create the hazards of a

secondary explosion, fire or gas leak. Since such hazards were

very remote, there was no reasonable basis, much less a reasonable

basis approximating probable cause, to believe there was an ongoing

process inside the home which necessitated immediate entry to save

someone's life or prevent harm.10

The majority has also justified the entry on the basis that 10

it was necessary to protect Infante from bodily injury once he

returned from the hospital. But the fact that a harm may possibly

come into fruition several hours into the future does not fit with

our court's delimitation of the emergency doctrine to those

-35-
I further add that none of the cases cited by the

majority supports their conclusion that the search in this case was

justified. These cases stem from the Supreme Court's decision in

Tyler, where the Court determined that once fire officials make a

warrantless entry onto a building to fight a blaze, they need not

secure a warrant to remain there "for a reasonable time to

investigate the cause of the blaze" after it has been extinguished.

Tyler, 436 U.S. at 511. However, one must distinguish the initial

entries made by officials in Tyler and its progeny -- entries which

were predicated on the presence of objective circumstances that

clearly beaconed the existence of an emergency -- from those

officials' subsequent entries into the premises to search for the

origins and causes of the fires or explosions featured in those

cases. These subsequent warrantless searches have been held to be

valid as long as they are a "continuation" of a valid initial

entry. The problem with the majority's analysis in this case is

that it incorrectly compares the initial warrantless entry into

Infante's home with the subsequent searches effectuated by

officials in Tyler and its progeny. The majority's logic is flawed

in this respect as these latter entries were held to be valid not

as their own independent entries, but as mere continuations of the

situations where "swift action is required to safeguard life or

prevent serious harm." United States v. Martins, 413 F.3d 139, 147

(2005)(emphasis added).

-36-
initial warrantless entries that had been predicated on objective

circumstances signaling an ongoing emergency.

In fact, in all of the cases cited by the majority, there

existed sufficient objective circumstances to compel the conclusion

that an ongoing emergency was present inside the structure to be

searched: United States v. Boettger, 71 F.3d 1410, 1412 (8th Cir.

1995) (defendant had told officers that there was a "chemical

explosion" when he was making a firecracker in his apartment, there

was smoke in the apartment and one of defendant's neighbors had to

help him escape from the apartment); United States v. Martin, 781 11

F.2d 671, 672 (9th Cir. 1985) (initial entry justified because the

police had received a report of a person bleeding inside the home

and an officer who arrived at the scene saw and smelled smoke

coming from the home); United States v. Urban, 710 F.2d 276, 277

(6th Cir. 1983) (initial entry justified because firefighters were

responding to an actual fire, and when they arrived on the scene

they heard hundreds of explosions originating from within the

residence); and United States v. Callabrass, 607 F.2d 559, 563 (2d

The Eighth Circuit in Boettger was not clear on whether the 11

officials in that case were able to see the smoke inside the

apartment before they entered. Yet that court seemed to justify

the initial entry in that case, at least in part, on the fact that

the explosion had occurred in an apartment complex with close

neighbors, a circumstance not present in this case. Id. at 1414

(expectations of privacy "must be lowered where a resident admits

working with explosive materials in an apartment complex with close

neighbors").

-37-
Cir. 1979) (initial entry justified due to an actual observable

fire in the apartment).

Conversely, none of those circumstances are present in

the instant case -- as the magistrate judge's report and

recommendation well noted,

[f]rom the time of their respective arrivals

at 60 Avery Road to the time they entered the

residence, none of the four firefighters

observed evidence of an explosion of any kind,

a fire, smoke, or a propane tank as they

walked around the perimeter of the residence.

There was no evidence of damage to the house,

and no sign of the presence of another person.

United States v. Infante, No. 10-cr-123, 2011 WL 31417, at *4 (D.

Me. Jan. 3, 2011). There being no telltale signs of a fire, gas

leak or any other hazard, I have to conclude that the majority's

supposition that there existed a risk of a secondary explosion is

entirely speculative, and such an unsubstantiated inference

practically places the burden on Infante to rule out any

conceivable reason for the firefighters' warrantless search. The

facts of this case and the behavior exhibited by the firefighters

instead give rise to a much stronger inference: that no emergency

existed at all and that the only justification for the entry was to

search for the origin and cause of the explosion. Moreover, the

record seems to reflect that the firefighters entered the premises

almost one hour after arriving on the scene. The purported reason

for the delay was that they needed to wait for an animal control

officer to arrive and secure Infante's dog, but the record shows

-38-
that before this animal control officer arrived, some of the

firefighters were able to roam freely around the house, and were

able to walk right up to the main doorway and determine that it was

locked, with no interference from the animal. Thus, if the

firefighters truly believed that an emergency was in progress, such

that a person's life was in peril, they would not have waited

almost an hour to enter the house. Further, after an hour of

inspecting the residence and finding no noticeable change in the

condition of the structure, it should have been self-evident that

no emergency existed.

Absent an emergency or Infante's consent, the

firefighters were required to obtain an administrative search

warrant to enter Infante's home and search for the cause of the

explosion. Clifford, 464 U.S. at 294. Although the Justices in

Clifford reasoned that determining the cause and origin of a blaze

serves a compelling public interest, they clearly stated that

absent an emergency, "[i]f the primary object of the search is to

determine the cause and origin of a recent fire, an administrative

warrant will suffice." Id. Firefighters will be able to obtain

such a warrant if they can show that a fire of undetermined origin

has occurred on the property and that the search they are proposing

is reasonable in scope and will not overly intrude on the fire

victim's legitimate privacy expectations. Id.; see also Camara v.

Municipal Court, 387 U.S. 523 (1967). I can think of no reason

-39-
that would compel a different requirement when the event that

transpired was a small explosion instead of a fire. Accordingly,

I would have required the authorities in this case to have obtained

an administrative search warrant before searching Infante's home.

On a final note, I admit that the result in this case

would have been different had the explosion occurred in an

apartment complex or at a home located in a densely populated area.

The need for prompt inspection at those locations generally

outweighs a resident's expectations of privacy because of the

serious dangers that a fire or an explosion might pose to neighbors

who are in close proximity, especially in apartment settings. 

However, given the rural nature of the home's surroundings in this

case, these dangers were not patently present here, a circumstance

that has been overlooked by the majority.

While I do not condone Infante's conduct or his crimes, 

I cannot sit idly by when faced with decisions that effectively

erode some of our most cherished constitutional protections. More

so, when the majority's approach has been to place the burden on

the defendant to prove the absence of an emergency, while making

all possible inferences in the government's favor. This while

disregarding the Supreme Court's teachings that warrantless entries

under the Fourth Amendment must be analyzed by viewing the

circumstances presented objectively, and without regard to

individual officials' subjective intentions, no matter how well-

-40-
intended. See Brigham City v. Stuart, 547 U.S. 398, 404 (2006).

For the foregoing reasons, I would have reversed the district

court's decision to deny Infante's first motion to suppress; and I

would have remanded the case to the district court so that it could

determine whether the statements made by Infante at the hospital

should also have been suppressed as fruits of the poisonous tree.

-41-