USA v. Carpentino

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
United States
v. 	Case No. 17-cr-157-PB
Opinion No. 2018 DNH 114
Kurt Carpentino
MEMORANDUM AND ORDER
Kurt Carpentino was questioned twice while in custody at
the Westminster, Vermont State Police barracks on April 27,
2017. 	In this Memorandum and Order I address Carpentino’s
attempt to suppress the fruits of his second interview.
I. 	BACKGROUND
On April 27, 2017, Carol Pino called the Hinsdale, New
Hampshire Police Department to report that her fourteen-year-old
daughter, M.H., was missing.1 	Pino suspected that Carpentino,
her landlord, may have taken M.H. to another one of his
properties in Vermont. 	After an investigation, Carpentino was
arrested and taken to the State Police barracks in Westminster,
Vermont.
At the barracks, Carpentino waived his Miranda rights and
1 Both parties agree on all facts except where specifically
noted. 	These are the same facts that I found orally after the
May 29, 2018 hearing on Carpentino’s motion to suppress.
Case 1:17-cr-00157-PB Document 73 Filed 06/08/18 Page 1 of 10

agreed to be interviewed. 	He maintained his innocence during
the interview, but invoked his right to counsel after the
investigating detectives challenged his version of what had
transpired. 	This prompted the detectives to end the interview
and Carpentino was then returned to a holding cell.
Approximately 40 minutes later, Carpentino waived at a
camera in his cell several times to get a guard’s attention and
asked the guard, “hey are the detectives still here?” 	The
officer replied, “yeah” and the defendant responded, “can I
speak with them?” 	Carpentino was then returned to the interview
room and the following conversation ensued, all of which was
recorded.
OFFICER 2: 	I’ll get you another glass, and then we have to
re-Mirandize you because 	we brought you back
in.
CARPENTINO: 	How much, would, uhm, the maximum time be for
something like this?
OFFICER 1: 	I’d have to look. You know, I don’t…. I
know a lot, but I don’t 	know a lot of
details, so I’m not sure.
CARPENTINO: 	Alright. Uhm…
OFFICER 1: 	Let me just get past this first, the
administrative part. So I’m just, 	because we
gotta go over these again. You’ve come to us
saying “Hey, I 	want to talk to you again.”
Correct?
CARPENTINO: 	Yeah, because, uhm, one of the things that the
officer said that, 	uhm…once I was 	done
talking with you was that if was up to you if
I 	could have a phone call to my lawyer.
OFFICER 1: 	Well is that what you’re looking for, is a
phone call to your lawyer 	or do you want to
talk to us again?
CARPENTINO: 	Uhm, I kinda need a phone call to my lawyer,
too. I need to let somebody 	know that I’m here.
2
Case 1:17-cr-00157-PB Document 73 Filed 06/08/18 Page 2 of 10

OFFICER 2: 	Here you go Kurt.
CARPENTINO: 	Thank you.
OFFICER 1: 	I mean, if you want to talk to an attorney, then
I can’t talk to you. 	We can’t talk to you.
CARPENTINO: 	Alright.
OFFICER 1: 	My understanding is that you indicated
to somebody that you 	wanted to speak to
us again.
OFFICER 2: 	Is that true, or…?
OFFICER 1: 	Is that what you wanna do or do you want to talk
to an attorney?
CARPENTINO: 	I don’t know. Just… I fucked myself.
OFFICER 2: 	Well, you know us. We’re just looking
for the truth. That’s all 	we’re looking
for.
CARPENTINO: 	Yeah.
(Long pause)
CARPENTINO: 	I should probably start from the beginning.
OFFICER 2: 	Yeah, yeah, but we gotta get through the Miranda
first.
OFFICER 1: 	And Kurt, I have to make sure that we’re clear on
this. You want to talk to us.
CARPENTINO: 	Yeah.
OFFICER 1: 	Okay. To do that, I have to re- go through that
whole Miranda thing again. And if you want me to,
I will. You made mention about 	calling a lawyer.
If that’s what you want, then we can do that,
too. But I 	can’t do both. I can do one or the
other.
CARPENTINO: 	I can talk with you with a
lawyer, right?
OFFICER 1: 	You can, but usually that doesn’t happen.
CARPENTINO: 	Okay.
OFFICER 1: 	But it’s up to you. I just want you, I
want to be clear with you. I 	don’t want…
OFFICER 2: 	Make sure that it’s clear that it’s your choice.
OFFICER 1: 	Yeah, you don’t have to talk to us.
OFFICER 2: 	You’re in control here, well, I mean as far as…
OFFICER 1: 	As far as talking to us.
OFFICER 2: 	Right.
CARPENTINO: 	Yeah. I’ll talk.
OFFICER 1: 	You’ll talk to us.
CARPENTINO: 	I’ll talk.
OFFICER 1: 	Ok. I’m going to go through these again for you.
You have the right to remain silent. Anything you
say can and will be used against you 	in a court
of law. You have the right to talk to a lawyer
3
Case 1:17-cr-00157-PB Document 73 Filed 06/08/18 Page 3 of 10

before questioning 	and have a lawyer present with
you during any questioning. If you cannot 	afford
to hire a lawyer, one will be appointed to
represent you at public 	expense before any
questioning, if you wish. In Vermont, that’s
called a 	public defender. If you decide to answer
questions, you can stop the 	questioning at any
time. Do you understand each of these rights I’ve
explained to you?
CARPENTINO: 	Yes.
OFFICER 1: 	Do you want to talk to me now?
CARPENTINO: 	Fuck. 	I 	don’t 	know. 	I’m 	scared. 	I 	don’t 	know
what’s going on. Yeah, I’ll 	talk. I just… I don’t
know 	how 	long, 	like, 	I’d 	be 	stuck 	here. 	Like, 	is
there 	like an arraignment or something?
OFFICER 1: 	Yeah. I’ll explain all that. That’s no big
deal. Can I just get through 	this?
CARPENTINO: 	Am I ready to talk to you, right?
OFFICER 2: 	What’s that?
CARPENTINO: 	We’re at “am I ready to talk…”, “am I willing to
talk to you?”
OFFICER 2: 	Yeah.
OFFICER 1: 	Mmm Hmm. Yes. I’m going to read you the
waiver again. It says 	“I have been advised
that I have the right to remain silent, to
be represented by a lawyer and to talk with
one prior to questioning and to 	have one
present during questioning. Knowing my
rights, I agree to waive them and talk to
you now. No threats or promises have been
made to me.” 	Do you understand all that?
CARPENTINO: 	I understand.
OFFICER 1: 	What time you got? This is the same thing
I read to you before. If 	you agree to it,
feel free to read it.
OFFICER 2: 	You have nice penmanship.
CARPENTINO: 	Thanks.
After waiving his Miranda rights, Carpentino gave a lengthy
interview and ultimately confessed to bringing M.H. to Vermont
to have sex with her.
4
Case 1:17-cr-00157-PB Document 73 Filed 06/08/18 Page 4 of 10

II. 	ANALYSIS
Carpentino presents three arguments to support his motion
to suppress the fruits of his second interview. 	He first argues
that the interview should never have occurred because he invoked
his right to counsel at the end of the first interview and he
did not thereafter initiate further communication with the
detectives. 	Next, he claims that the interview was improper
even if he initiated further communication because he invoked
his right to counsel again shortly after he was returned to the
interview room. 	Finally, he argues that the interview was
improper because he did not make a knowing, voluntary, and
intelligent waiver of his Miranda rights. 	I address each
argument in turn.
A. 	Did Carpentino Initiate Further Communications With
the Detectives After He Invoked His Right to Counsel?
If a suspect in custody invokes his right to counsel, he
may not be subjected to further questioning without counsel
unless “the accused himself initiates further communications,
exchanges, or conversations with the police.” 	Edwards v.
Arizona, 451 U.S. 477, 485 (1981). 	The purpose of this rule is
to prevent an accused who has invoked his right to counsel from
being badgered by the police into waiving this important right
after it has been invoked. 	Maryland v Shatzer, 559 U.S. 98, 106
(2010).
5
Case 1:17-cr-00157-PB Document 73 Filed 06/08/18 Page 5 of 10

Carpentino does not deny that the second interview happened
because he asked to speak with detectives. 	He nevertheless
argues that he did not initiate further communication with them
in a manner that was sufficient to satisfy Edwards because he
asked to speak with them for the limited purpose of attempting
to arrange a phone call with his attorney. 	I reject this
argument because Carpentino’s claim cannot be squared with what
actually happened.
Carpentino did not demand to speak with a lawyer when he
was brought into the interview room. 	Instead, he first asked
the detectives, “[h]ow much, would, uhm, the maximum time be for
something like this?” 	Although he later told the detectives
that he wanted to arrange a phone call with his attorney “to let
somebody know that I’m here,” he did so in response to the
question, “well is that what you’re looking for, is a phone call
to your lawyer, or do you want to talk with us again?” 	His full
response, which began with the statement, “uhm, I kinda need a
phone call to my lawyer too” (emphasis added) clearly signaled
his desire to both speak with the detectives and to arrange a
telephone call with his attorney for a purpose unrelated to the
proposed interview. 	Any reasonable person viewing these
statements together would conclude that Carpentino was intending
to engage in general conversation with the detectives when he
asked to speak with them, rather than to merely arrange a phone
6
Case 1:17-cr-00157-PB Document 73 Filed 06/08/18 Page 6 of 10

call with his attorney.
Because the detectives could reasonably conclude from
Carpentino’s statements that he was seeking to engage them in
communication on matters other than to merely seek to arrange a
phone call with his attorney, they were justified in questioning
him further to see if he was again willing to waive his Miranda
rights. 	See generally, Oregon v. Bradshaw, 462 U.S. 1039, 1043-
1044 (1983) (plurality)(“well, what is going to happen to me
now?” sufficient to initiate communication); United States v.
Thongsophaporn, 503 F.3d 51, 56 (1st Cir. 2007)(“what is going
on?” same); 	United States v. Fontana, 948 F.2d 796, 806 (1st
Cir. 1991)(“what’s going to happen to me?” same).
B. 	Did Carpentino Invoke His Right to Counsel During the
Second Interview?
Carpentino next argues that the detectives were barred from
questioning him during the second interview even if he initiated
communication with them because he invoked his right to counsel
at the beginning of the interview.
To enjoy the protections of the Fifth Amendment right to
counsel, a defendant must clearly and unambiguously invoke the
right. 	United States v. Dudley, 804 F.3d 506, 512 (1st Cir.
2015) (citing Davis v. United States, 512 U.S. 452, 459 (1994)).
Examples of cases in which this rigorous standard has not been
met abound. 	See, e.g., United States v. Sweeney, 887 F.3d 529,
7
Case 1:17-cr-00157-PB Document 73 Filed 06/08/18 Page 7 of 10

534, 536 (1st Cir. 2018) (“I’m trying to keep myself . . . I
don’t want to dig a hole. 	I need to speak to a lawyer. . . . Do
I need a lawyer?”); United States v. Dudley, 804 F.3d at 512
(“call Gordon to get ahold of Joseph about the – about getting a
lawyer”); United States v. Oquendo-Rivas, 750 F.3d 12, 19 (1st
Cir. 2014) (“I do not understand this, my lawyer speaks”).
Obershaw v. Lanman, 453 F.3d 56, 65 (1st Cir. 2006). 	Moreover,
even an unambiguous request for counsel does not prevent the
police from seeking clarification if it is unclear whether the
suspect is seeking “the assistance of an attorney in dealing
with the forthcoming interrogation.” 	Grant-Chase v. Comm’r New
Hampshire Dep’t of Corrections, 145 F.3d 431, 436 (1st Cir.
1998); see also United States v. Jardina, 747 F.2d 945, 949 (5th
Cir. 1984) (request for attorney to work out a cooperation
agreement not an invocation of right to counsel); Wayne R.
LaFave, Criminal Procedure § 6.9(g)(4th ed.) (“An indication by
the defendant that he will only want counsel at some future time
or for some other purpose is not an assertion of the right to
counsel for Miranda purposes.”).
Carpentino claims that he invoked his right to counsel when
he told the detectives that he needed to place a phone call to
his attorney to “let someone know I’m here.” 	This statement,
however, does not suggest either that Carpentino wanted to have
an attorney present during questioning or that he had made a
8
Case 1:17-cr-00157-PB Document 73 Filed 06/08/18 Page 8 of 10

decision to speak to the detectives through counsel. 	Instead,
it merely expresses Carpentino’s desire to contact his counsel
so that he could let someone know where he was. 	Any concern
that Carpentino might have meant something different was
dispelled when the questioning that followed left no doubt that
Carpentino was willing to speak with the detectives without an
attorney. 	Accordingly, I reject Carpentino’s argument that he
invoked his right to counsel during the second interview.
C. 	Did Carpentino Knowingly, Intelligently, and Voluntarily
Waive his Miranda Rights?
Carpentino’s final claim is that the statements he made
during his second interview must be suppressed because he did
not execute a knowing, intelligent, and voluntary waiver of his
Miranda rights. 	His principal argument is that his Miranda
waiver is invalid because the detectives left him with the
mistaken impression that he would not be allowed to submit to a
later interview with counsel present if he invoked his right to
counsel.
Carpentino rests this argument primarily on the detective’s
statement to Carpentino that he could either invoke his right to
counsel or he could speak to detectives, but he could not do
both. 	This argument, however, fails to properly account for the
question and clarifying answer that followed the detective’s
statement. 	Carpentino asked, “I can talk with you with a
9
Case 1:17-cr-00157-PB Document 73 Filed 06/08/18 Page 9 of 10

lawyer, right?” and a detective answered, “[y]ou can, but
usually that doesn’t happen.” 	At no point following that
exchange did Carpentino express any interest in contacting his
lawyer. 	Instead, he repeatedly stated that he wanted to proceed
with the interview without counsel and affirmatively waived his
Miranda rights. 	Under these circumstances, I find no support in
the record for Carpentino’s claim that he did not knowingly,
intelligently, and voluntarily waive his Miranda rights.
III. 	CONCLUSION
For the reasons stated in this Memorandum and Order, I deny
defendant Carpentino’s motion to suppress the statements he made
during his second interview. 	Doc. 17 (original motion to
suppress); Doc. 62 (supplemental motion to suppress).
SO ORDERED.
/s/Paul Barbadoro___________
Paul Barbadoro
United States District Judge
June 8, 2018
cc: 	Seth R. Aframe, Esq.
Georgiana L. Konesky, Esq.
Jonathan R. Saxe, Esq.
Dorothy E. Graham, Esq.
10
Case 1:17-cr-00157-PB Document 73 Filed 06/08/18 Page 10 of 10