U.S. v. Swanson

• Decision Date: 15 August 2003
• Docket Number: No. 01-1934.,01-1934.
• Citation: 341 F.3d 524
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jason Eric SWANSON, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 524

341 F.3d 524

UNITED STATES of America, Plaintiff-Appellee, v. Jason Eric SWANSON, Defendant-Appellant.

No. 01-1934.

United States Court of Appeals, Sixth Circuit.

Argued: December 5, 2002.

Decided and Filed: August 15, 2003.

Petition for Rehearing Denied En Banc: November 4, 2003. Pursuant to Sixth Circuit Rule 206

COPYRIGHT MATERIAL OMITTED

ARGUED:

Corbett E. O'Meara, O'MEARA & O'MEARA, Grosse Pointe Farms, Michigan, for Appellant.

Carl D. Gilmer-Hill, UNITED STATES ATTORNEY, Detroit, Michigan, for Appellee.

On Brief:

Corbett E. O'Meara, O'Meara & O'Meara, Grosse Pointe Farms, Michigan, for Appellant.

Carl D. Gilmer-Hill, United States Attorney, Detroit, Michigan, for Appellee.

Jason Eric Swanson, Atwater, CA, pro se.

Before: BOGGS, SILER, and GIBBONS, Circuit Judges.

OPINION

BOGGS, Circuit Judge.

Jason Eric Swanson appeals his conviction for being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). After a jury trial, Swanson was sentenced to 90 months of imprisonment. Swanson argues that the district court erred in failing to suppress two pieces of evidence: (1) the firearm that was the basis of his conviction, because it was the fruit of the unlawful seizure of his automobile; and (2) statements attributed to him, because they were elicited in violation of the Miranda rule. Swanson argues that the introduction of the firearm and the statements into evidence rendered his conviction unsound, and that the case should be remanded for a new trial. For the following reasons, we affirm Swanson's conviction.

I

Swanson was prosecuted for possession of a firearm that was discovered in a white Pontiac Grand Am that was seized during the execution in Warren, Michigan, of an arrest warrant for Daniel Rick. Rick was suspected by federal agents of having trafficked in illegal firearms. Rick was seen driving the Grand Am on January 24 and 25, 1998 in the Detroit, Michigan area. The car is registered to Swanson's mother, Sherrie Swanson. On January 25, 1998, Rick was seen driving this vehicle in Effingham, Illinois, to and from a motel where he met with a cooperating witness.

During the meeting, Rick delivered a fully automatic firearm to the cooperating witness, and discussed with him additional transactions involving silencers and weapons. Between January 30 and February 25, 1998, Rick had telephone conversations with the cooperating witness in which they discussed the additional transactions. On February 24, 1998, Rick received a Federal Express package from the cooperating witness that contained money to be used by Rick to buy silencers and automatic weapons.

Federal agents executed an arrest warrant, apparently obtained one or two days earlier, for Rick on February 26, 1998 at his workplace, the Marked for Life tattoo parlor.¹ Agents had been watching the shop and had confirmed Rick's presence. Special Agent Mark Davidson testified at the suppression hearing in Swanson's case that Rick had been seen arriving at work in the same Grand Am he had been seen driving to Illinois, although the car was driven by Swanson.

Due to the small size of the tattoo parlor, the law enforcement officers executing the arrest warrant for Rick ordered the seven or eight people inside the tattoo parlor to come outside so that Rick could be identified and arrested. The officers' weapons were drawn, but Special Agent William Fleming testified at the suppression hearing that the team members were holding their weapons down at their sides. The agents identified themselves to the group from the tattoo parlor, explained that they were executing an arrest warrant for Rick, and explained that the individuals aside from Rick would not be released until they were identified and the agents could verify there were no outstanding warrants for their arrest. The people from inside the shop were put up against the wall of the shop and frisked for weapons. They were ordered to produce identification. The agents identified Rick and arrested him. They also received permission from the owner of the tattoo parlor to search the inside. Agents then ran the names provided by the people through the Law Enforcement Information Network ("LEIN").

Swanson was among those who left the shop. He was approached by Agent Fleming and was interviewed while the agents were identifying the people present and searching the shop. Fleming testified at the suppression hearing that had anyone attempted to walk away before being identified and cleared, the person would have been stopped. Swanson's name was still being run through the LEIN. The conversation took place outside, in public view, in an area on the north side of the shop.

Fleming testified that he advised Swanson that he was not under arrest and did not have to speak with him. He testified that Swanson said that he was willing to talk. Swanson then provided Fleming with background information, and told him that the Grand Am belonged to him. Fleming then asked Swanson whether there were guns or drugs in the car. Fleming's report indicated that Swanson answered, "I don't mess with drugs. Drugs are for niggers." Fleming pressed Swanson regarding whether there were guns in the car. Swanson answered that he didn't want to answer that question². Fleming then reminded Swanson that he didn't have to answer any questions that he didn't want to. Fleming asked Swanson if there was anything in the car that would get him in trouble. Swanson replied yes. Fleming asked Swanson for consent to search the car. Swanson said, "If I talk to you I'm screwed." Swanson did not give consent to law enforcement officers to search the Grand Am.

After agents found that Swanson did not have any outstanding warrants, he was released. The agents seized the Grand Am, and in a subsequent search of the vehicle found a handgun in the front console between the front seats.

On May 10, 2000, a federal grand jury returned a one-count indictment against Swanson charging him with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Swanson filed motions to suppress the statements and the firearm found in his car. After evidentiary hearings, the district court denied both motions. During Swanson's jury trial, the evidence regarding his statements and the weapon was introduced and admitted without objection. The jury found Swanson guilty on the sole count of the indictment. The district court sentenced Swanson to 90 months in prison, and a three-year term of supervised release. Swanson filed a timely notice of appeal.

II

Swanson argues that the agents had no probable cause to seize the Grand Am, and that the introduction of the evidence of the firearm found in the vehicle violated his Fourth Amendment rights. He also argues that the statements introduced against him at trial were elicited in violation of his Fifth Amendment right against self-incrimination because he was in custody and received no Miranda warning.

A. The Miranda argument

Swanson argues that he was in custody at the time that he made his statements to Fleming and was thus entitled to a Miranda warning. He argues that the district court erred by denying his motion to suppress these statements. When reviewing suppression issues, we review a district court's factual findings for clear error, and its legal conclusions de novo. United States v. Crossley, 224 F.3d 847, 860 (6th Cir.2000); United States v. Salvo, 133 F.3d 943, 948 (6th Cir.), cert. denied, 523 U.S. 1122, 118 S.Ct. 1805, 140 L.Ed.2d 943 (1998). The question of whether a defendant was "in custody" is a mixed question of fact and law, and is thus reviewed de novo. Salvo, 133 F.3d at 948 (citing Thompson v. Keohane, 516 U.S. 99, 100-03, 116 S.Ct. 457, 460, 133 L.Ed.2d 383 (1995)).

A defendant may not be "compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. The Supreme Court held in Miranda v. Arizona, 384 U.S. 436, 478-79, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966) that a suspect subject to custodial interrogation must first be given notice of his or her right against self-incrimination. Statements obtained during custodial interrogation in violation of Miranda may not be admitted for certain purposes in a criminal trial. Id. at 479, 86 S.Ct. 1602. However, the obligation to administer a Miranda warning to a suspect only arises "where there has been such a restriction on a person's freedom as to render him `in custody.'" Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977) (per curiam).

As Swanson does not challenge the validity of the investigatory stop that led to his questioning, we assume for the purposes of this appeal that the agents conducted a lawful detention of Swanson, analogous to a Terry stop. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A Terry stop is a "`narrowly drawn' exception to the probable cause requirement of the Fourth Amendment." United States v. Richardson, 949 F.2d 851, 856 (6th Cir.1991) (quoting United States v. Sharpe, 470 U.S. 675, 689, 105 S.Ct. 1568, 1577, 84 L.Ed.2d 605 (1985) (Marshall, J., concurring in the judgment)). An officer may stop a person upon reasonable suspicion of criminal activity. Ibid. "The officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond. And, unless the encounter provides the officer with probable cause to arrest him, he must then be released." Ibid. The very nature of a Terry stop means that a detainee is not free to leave during the investigation, yet is not entitled to Miranda rights. Berkemer v. McCarty, 468 U.S. 420, 439-41, 104 S.Ct. 3138, 3150-51, 82 L.Ed.2d 317 (1984). Therefore, the pertinent question is whether Swanson was "in custody" during the investigatory detention for the purposes of determining whether his Fifth Amendment rights were violated....