Opinion
No. 95-2297
Heard May 6, 1996
August 30, 1996
Paul J. Garrity, Londonderry, NH, for appellant.
Dyana J. Crahan, Manchester, NH, with whom Donald E. Gardner and Devine, Millimet Branch were on brief, for appellee.
Appeal from the United States District Court for the District of New Hampshire, [Hon. Paul J. Barbadoro, U.S. District Judge].
This 42 U.S.C. §(s) 1983 action by Michael D. Veilleux, formerly indicted for possession of a firearm, 18 U.S.C. Section(s) 922(g)(1), is brought against Detective Jeffrey Perschau of the Manchester, New Hampshire, Police Department. The court ordered summary judgment for Perschau. We reverse.
At the time in question Perschau was a sergeant.
"footnote 4 I assume without deciding that Judge McAuliffe correctly concluded that Veilleux's statements were involuntary because the statements were induced by Perschau's misrepresentations concerning Veilleux's rights and by Perschau's promises that Veilleux's statements would not be used against him.
"footnote 5 I do not decide whether, in fact, Perschau was obligated to give Veilleux his Miranda warnings under the circumstances of this case.
"footnote 6 Veilleux does not contend that his agreement to cooperate was involuntary. Instead, he contends that the statements he made pursuant to that agreement were involuntary because Perschau did not keep his promise not to use the statements against him.
There is much judicial background. After indictment Veilleux successfully moved to suppress the firearm, a pistol, the judge (hereafter judge 1) finding it had "derived from involuntary statements obtained in a coercive interrogation," by Perschau. United States v. Veilleux, 846 F. Supp. 149, 156 (D.N.H. 1994). The government's loss of the pistol ended the criminal case. The present action, complaining of that interrogation, was terminated by a second judge (hereafter the court) on the ground, (inter alia), that there was no evidence of "egregious police behavior." We must resolve.
For the basic facts favorable to Veilleux we start with the opinion below (hereinafter Order) noting, however, that additional factual findings in the criminal case, based on the same record, as Perschau concedes in his brief, should equally be recognized. And, of course, the record must be taken most favorably to Veilleux. St. Hilaire v. City of Laconia, 71 F.3d 20, 24 (1st Cir. 1995).
According to the Order, "During the evening of January 19, 1993, Manchester Police Officer William Davies heard what he believed to be a gunshot as he was turning a corner on routine patrol. He looked in the direction of the sound and saw a man, later identified as Michael Veilleux, run across the street and into an area of three-decker apartment houses. The officer gave chase over roughly a three block area, by car and then on foot. At one point he saw Veilleux in an alley, near a dumpster, fumbling with his pocket as if to take something out. Veilleux fled when he saw that the officer was in pursuit, and disappeared over a backyard fence. Officer Davies eventually found him a short distance away, lying on the ground next to a vehicle parked at the back of 113 Spruce Street. Veilleux had been drinking heavily and he scuffled with the officer while being arrested. No firearm was found on Veilleux.
Suspecting that Veilleux had been in possession of a firearm, Officer Davies and other officers at the scene searched the area near the place of arrest and along the route Veilleux had taken. The search lasted approximately one hour, but no weapon was found.
The next morning . . . Sergeant Perschau had Veilleux brought to a private office, where they met alone, without counsel present.
Perschau told Veilleux that he wanted to get the gun off the street before a child found it. Veilleux professed ignorance. Perschau persisted, telling Veilleux that he 'wasn't interested in arresting him, [but only] in getting the gun off the street.'" It further appears that Perschau told Veilleux that because he had not read Veilleux his Miranda rights Veilleux could not be charged, but that it was important, because of children, that the pistol be found. Persuaded that he would not, and could not, be charged, Veilleux confessed to having had the pistol, described it, and recounted that he had thrown it under or on a porch. Perschau, with some other officers, then spent two hours, Veilleux accompanying, in a further search, but, again, unsuccessfully. Veilleux was then released on bail. The new watch commander, Lieutenant Stewart, informed by or through Perschau, instructed Officer Suckley to make a further search, stressing Veilleux's recollection that the pistol might be under a porch. Suckley eventually so found it, in a crawl space some five feet in.
It does not appear how the pistol's discovery reached federal ears. However, obviously it would not have done so without Perschau's coercion. This was not an inevitable discovery case, see post. It is clear that Perschau induced Veilleux to believe that his freedom from prosecution was absolute; indeed, both district judges so recognized. Finally, we note the conclusion in the Order, post, that Perschau's "promise [was] something that he could not deliver." We note two further facts. While Veilleux was in detention he was allowed to make a telephone call and was overheard (the court warrantably found lawfully) saying something to his girlfriend suggesting he had had a pistol. He was also heard making similarly implicative remarks to a fellow prisoner. Those are facts we know. We do not, however, know how the federal case came to be brought, or who appeared before the grand jury, but manifestly it had the weapon.
At the expense of some repetition we quote a further portion of the Order, citations omitted, with figures added for purpose of discussion.
COURT'S "DISCUSSION"
[1] "To the extent that Veilleux has a claim against anyone based upon a violation of his constitutional rights, that claim lies against someone other than Perschau. footnote 4 [2] Perschau's failure to read Veilleux his Miranda rights cannot serve as the basis for any damage claim against Perschau pursuant to 42 U.S.C. §(s) 1983 because 'the remedy for a Miranda violation is the exclusion from evidence of any compelled self-incrimination, not a Section 1983 action.' footnote 5 [3] Nor do the facts of this case suggest the kind of egregious police behavior that other circuits have deemed to be actionable on a substantive due process theory because the police misconduct 'shocks the conscience.' [4] Perschau's error in this case was to promise something that he could not deliver. [5] It is a routine and proper law enforcement practice to enter into cooperation agreements with criminal defendants pursuant to which the government agrees not to use a defendant's statements against him in exchange for the defendant's continued cooperation. No one could suggest that such agreements violate a defendant's constitutional rights when a cooperation agreement is entered into voluntarily footnote 6 and the government keeps its promises. [6] If anyone violated Veilleux's rights, it was the government prosecutors who attempted to use Veilleux's statements against him in violation of Perschau's contrary representations. Since there is no evidence in the record to suggest that Perschau played any role in the federal government's later attempt to use Veilleux's statements against him, Veilleux's claim against Perschau must fail.
"[7] Veilleux's claim is also defective because he offers no evidence to suggest that the statements Perschau elicited from him were ever used against him. The Fifth Amendment's self-incrimination clause protects a person only from the use of a compelled statement. There is no evidence in the record to suggest that Veilleux's statements were ever used against him, either directly or indirectly. In the absence of such evidence, his claim cannot survive Perschau's motion for summary judgment.
"[8] In summary, Perschau is entitled to qualified immunity because Veilleux has failed to properly support his claim for damages against Perschau. Defendant's motion for summary judgment (document no. 23) is granted."
OUR DISCUSSION
[1] simply states the court's conclusion. Footnote 4, however, is somewhat miscast. The question is not whether the court agrees with judge 1, but whether judge 1 could be correct. As we read the record he clearly could be.
[2] The court misapprehends the issue. It is not the failure to read the Miranda warning, which is not a constitutional violation, Mahan v. Plymouth County House of Correction, 64 F.3d 14, 17 (1st Cir. 1995), but is precisely what the court assumed correct in its footnote 4.
Judge 1's fuller finding was that Veilleux's "statements were involuntary — his will not to incriminate himself, exercised repeatedly during the interrogation, was overborne by the promises made and distorted legal advice given by Sergeant Perschau. His statements were not his free and voluntary act." Veilleux, 846 F. Supp. at 155.
[3] We postpone.
[4] We agree. Any police officer should know that he could not "deliver" immunity.
[5] The court's observations are correct, but irrelevant. What have lawful cooperative agreements to do with this case? And, incidentally, how does this finding fit with [4]? [6] We disagree. Conduct, or misconduct, by the federal government does not relieve Perschau. To the contrary, it was Perschau's wrongful conduct that led to the pistol, which, ultimately, led to the government's conduct.
[7] This is simply wrong. The grand jury proceeding was use. Weaver v. Brenner, 40 F.3d 527, 535 (2d Cir. 1994). We add, as judge 1 pointed out, 846 F. Supp. at 154-55, that this was not a case of inevitable discovery making Veilleux's disclosure causally inconsequential. There were three searches. That night, for one hour. The next morning, backed by Veilleux's porch account, two hours. Still sparked by Veilleux's story, a third search, this time successful. We must think that had there been nothing but Veilleux's overheard third party conversations, with a populated area that contained many other possible finders the police might well have given up.
[8] While, of course, an official who asserts a qualified immunity may show the right claimed was not clearly established, Siegert v. Gilley, 500 U.S. 226 (1991), it seems a bit backward to say there was qualified immunity because the claim was not supported. The court gave immunity no other treatment.
CONCLUSION
The claim. As thus presented to us the barebones of the matter are that Veilleux, arrested on other grounds and in custody, but suspected by Perschau of having disposed of a firearm, repeatedly denied knowledge, and asked for counsel. It is basic that this was an invocation of his Fifth Amendment right to remain silent. Miranda v. Arizona, 384 U.S. 436, 469 (1966). If, persuaded by the stressed danger to children, Veilleux had responded, that might have been a waiver, see Colorado v. Spring, 479 U.S. 564, 572-73 (1987), but he did not. Rather, he was then "misled," as judge 1 pointed out, by "distorted legal advice," and by a promise of immunity that could not be kept, viz., coerced. "[A]ctually compelled by police conduct which overcame his right to resist," New York v. Quarles, 467 U.S. 649, 654 (1984), post; United States v. DeSantis, 870 F.2d 536, 540 (9th Cir. 1989). Such conduct sets the stage for a Section(s) 1983 action. That the officer's misconduct need not be physical, see Miranda, 384 U.S. at 476 (Trickery).
The court would have it that if there was a Fifth Amendment violation, there was no evidence of Perschau's participation. We can agree that if there had been no grand jury proceedings, viz., no use, the Fifth Amendment would not have been violated simply by Perschau's act of obtaining the incriminating information. See, e.g., Weaver, 40 F.3d at 535. However, the use need not be contemporaneous with the coercion. We find no contradiction of, or reason for contradicting, Weaver's definition of use as "use or derivative use." Id. The natural course of the events shows a clear possibility of such. Perschau's coercion produced the pistol and Veilleux's confession of ownership; the pistol was found by expected hands; Veilleux was an obvious candidate for prosecution; his record and admitted violation of the federal act made it quite possible that the lieutenant would reject a mere policeman's promise. It is enough that the ultimate outcome, even if thought "unlikely, was foreseeable." Lakin v. Daniel Marr Son Co., 732 F.2d 233, 238 (1st Cir. 1984). Indeed, did not a promise absolute in terms, Perschau's choice, deny any exceptions?
Perschau knew Veilleux "had been through the system many times before." 846 F. Supp. at 152.
Our dissenting brother's belief that the liability should be limited to what would appear to a reasonable officer puts the balance, sub silentio, on the coerced victim. With all due respect, we believe this both illogical and unfair.
Immunity. This reasoning leads to the question of qualified immunity, a doctrine designed to protect against reasonable mistakes in foretelling court decisions in the interest of not hamstringing officials in their conduct. Officials are held only to principles already clearly established. Hegarty v. Somerset County, 53 F.3d 1367, 1372-73 (1st Cir. 1995). But this is not a qualified immunity case. Our brother, agreeing that the coerced statement's use before the grand jury was a constitutional wrong, must agree that the coercion itself was at least wrongful, and, we must think, objectively so. We cannot believe that Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)'s protection is intended for objectively wrongful conduct, particularly if its consequence is a violation of constitutional rights.
It is true that we find no case on the present facts, that an official should not mislead by void promises that might not be kept. But, as we said in St. Hilaire, an official does not have to be explicitly told what he cannot do. See 71 F.3d at 25.
Perschau's brief makes three different arguments for immunity, none viable. "[H]is objectively reasonable actions in negotiating a lawful cooperation agreement;" "legitimate questions" exist about not giving Miranda warnings; there was no use in a judicial proceeding. Comment beyond what we have already said is unnecessary. But because Perschau makes so much of his claim that it was legally proper for him to have acted for the public good, we note again New York v. Quarles, a public safety case distinguished by judge 1, and not since mentioned. There the Court held that in locating a weapon the public safety might prevail over a person-in-custody's right to a Miranda warning. This applied, however, only to simple interrogation, the Court saying, as previously noted, that even Miranda would not be excused when a party's statement was "actually compelled by police conduct which overcame his right to resist it." Quarles, 467 U.S. at 654. Still more, constitutional rights could not be sacrificed.
The summary judgment for Perschau on the Fifth Amendment claim was error. Cf. United States v. Rullo, 748 F. Supp. 36, 40-41 (D.Mass. 1990).
The case is remanded for further proceedings consistent herewith.
Dissent follows
This would ordinarily be a concurrence because of the result reached by the court. I, too, feel that summary judgment should be reversed because of Veilleux's sworn statement that Perschau threatened him. I fear that this must be a dissent because the court seems to rule as a matter of law that there would be no qualified immunity.
Veilleux averred that Perschau threatened to turn the matter over to the ATF if Veilleux failed to assist in an additional search for the weapon. In fact, another search was conducted without Veilleux's assistance. It would not be unreasonable to infer that Perschau made good on his threat.
Perschau is entitled to qualified immunity if an objectively reasonable officer, similarly situated, could have believed that the challenged police conduct did not violate Veilleux's constitutional rights. See Hegarty v. Somerset County, 53 F.3d 1367, 1373 (1st Cir. 1995). The court concludes that any officer who makes promises that might not be kept has engaged in such clearly wrongful conduct that qualified immunity is foreclosed.
Perschau's "promise of immunity" consisted of informing Veilleux that without Miranda warnings, nothing he said could be used against him. I note that this is a fairly accurate representation of the law. With this understanding, likely shared by Veilleux, who, have "been through the system many times," was not a novice in these matters, and motivated by safety concerns over prosecutorial ones, Perschau derived information about the gun. Clearly, the use of such statements before the grand jury violated Veilleux's Fifth Amendment rights. But to preclude qualified immunity as a matter of law would require concluding that any reasonable officer would understand his conduct in obtaining the information to be in violation of constitutional law. On this record and at this stage of the proceedings, I cannot reach this conclusion.
Even assuming that reasonable foreseeability of use in a criminal proceeding suffices to subject Perschau to liability, the record is barren on this matter. The court concludes that use before the grand jury was foreseeable because Perschau "had been through the system many times before." Perhaps this fact allows an inference of foreseeability sufficient to defeat summary judgment, but it certainly does not demand a finding of foreseeability as a matter of law. Absent relevant information about the past practices and internal workings of the Manchester police department, and the transfer of information between the state and federal law enforcement agencies, we have no basis to resolve this question. That Perschau should have contemplated that prosecutors of another sovereign would misuse the law to indict Veilleux is not a given. Cf. Duncan v. Nelson, 466 F.2d 939, 942 (7th Cir. 1972) ("To find that [defendant police officers], who knew or should have known this confession was inadmissible, would foresee that the trial judge would erroneously admit this unlawful confession is untenable."). Even if we are to say now that the existence of such a risk must be foreseen by officers in Perschau's position, I do not think we can properly say that such a right has been "clearly established." I respectfully dissent.