U.S. v. Ollie

• Citation: 442 F.3d 1135
• Decision Date: 31 March 2006
• Docket Number: No. 05-2503.,05-2503.
• Parties: UNITED STATES of America, Appellee, v. Johnny Lee OLLIE, Jr., Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

442 F.3d 1135

UNITED STATES of America, Appellee, v. Johnny Lee OLLIE, Jr., Appellant.

No. 05-2503.

United States Court of Appeals, Eighth Circuit.

Submitted: November 15, 2005.

Filed: March 31, 2006.

Colin J. Witt, argued, Des Moines, Iowa, for appellant.

Clifford D. Wendel, argued, Asst. U.S. Attorney, Des Moines, Iowa, for appellee.

Before ARNOLD, BEAM, and RILEY, Circuit Judges.

ARNOLD, Circuit Judge.

Johnny Lee Ollie appeals the district court's denial of his motion to suppress statements that he made to the police. We reverse.

I.

Adel, Iowa, police chief James McNeill responded to a call asking for certain property to be removed from an apartment. When he arrived, Nicola Teed escorted him to a bedroom and directed him to a dresser behind which he discovered a loaded.22 revolver and a holster. Ms. Teed said that neither she nor her boyfriend, Mr. Ollie, owned the gun. During that conversation, she also told Chief McNeill that Mr. Ollie was on parole.

Upon returning to his office, Chief McNeill telephoned Roy Klobnak, Mr. Ollie's parole officer. In their conversation, Chief McNeill stated that he wanted to talk with Mr. Ollie concerning the handgun. Mr. Klobnak had a regularly scheduled meeting with Mr. Ollie the following day and told Chief McNeill that he would order Mr. Ollie to meet the chief at the police station.

The next day, following his parole meeting, Mr. Ollie arrived at the police station and Chief McNeill escorted him to an interview room. Chief McNeill did not give Miranda warnings to Mr. Ollie before beginning an interview. In response to Chief McNeill's questioning, Mr. Ollie twice said that he did not own or possess a gun, but when the chief asked if Mr. Ollie would continue to deny ownership if the police found fingerprints on the weapon that matched Mr. Ollie's, Mr. Ollie admitted that he had handled the gun. Chief McNeill then asked Mr. Ollie if he would be willing to give a written statement. He agreed, and Chief McNeill gave him Miranda warnings. Mr. Ollie then completed a brief written statement, which indicated that he had received the gun in exchange for driving two people to a liquor store.

Before trial, Mr. Ollie moved to suppress statements that he made during his interview with Chief McNeill and his subsequent written statement, arguing that Chief McNeill's failure to give him Miranda warnings at the outset of the interview made all of his statements inadmissible. The district court denied the motion, holding that Mr. Ollie was not in custody when he confessed and therefore Chief McNeill had no obligation to give Mr. Ollie those warnings. After a brief trial, Mr. Ollie was convicted of being a felon in possession of a firearm and a felon in possession of ammunition. He was sentenced to ten years in prison.

II.

When a suspect is interrogated in a custodial setting, the police must advise him of his right not to answer questions and to have an attorney present during questioning. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The clearest example of custody is when a suspect is placed under formal arrest. Absent a formal arrest, the police must give Miranda warnings when the suspect's freedom of movement is restricted to a degree akin to a formal arrest. California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam); United States v. LeBrun, 363 F.3d 715, 720 (8th Cir.2004) (en banc), cert. denied, 543 U.S. 1145, 125 S.Ct. 1292, 161 L.Ed.2d 105 (2005). Whether Mr. Ollie was in custody is not a matter of his own subjective belief, but turns on whether a reasonable person in his shoes would have felt free to end the interview. See Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984). In deciding whether a person is in custody, we consider all the circumstances confronting the person when he or she was questioned. We review the district court's factual findings for clear error and its legal conclusions, including the ultimate question of custody, de novo. LeBrun, 363 F.3d at 719.

We have identified several matters that are relevant to a determination of whether an interview is custodial. See United States v. Axsom, 289 F.3d 496, 500 (8th Cir. 2002); United States v. Griffin, 922 F.2d 1343, 1349 (8th Cir.1990). Some considerations generally act to mitigate the custodial atmosphere: These are, for instance, whether the police told the suspect that he or she was free to leave, was free to refuse to answer questions, or was not under arrest; whether the person's movements were unrestrained during the interview; and whether the person either initiated contact with authorities or voluntarily acquiesced to official requests. Other considerations tend to aggravate the interview's custodial nature: They are, among other things, whether the police used coercive or deceptive tactics that restricted the suspect's freedom to terminate the encounter and whether the questioning occurred in a police-dominated atmosphere. See Axsom, 289 F.3d at 500; see also LeBrun, 363 F.3d at 721. No single consideration is dispositive, nor must they all weigh in the defendant's favor for us to decide that he or she was in custody. Axsom, 289 F.3d at 501.

Both sides agree that Chief McNeill told Mr. Ollie twice that he was not under arrest. At the same time, he did not mention that Mr. Ollie could terminate the interview or refuse to answer questions. While advising someone that he or she is not under arrest helps to mitigate an interview's custodial nature, an explicit assertion that the person may end the encounter is stronger medicine. Such a statement provides an individual with a clear understanding of his or her rights and generally removes any custodial trappings from the questioning. See United States v. Czichray, 378 F.3d 822, 826 (8th Cir.2004), cert. denied, ___ U.S. ___, 125 S.Ct. 2514, 161 L.Ed.2d 1109 (2005). Chief McNeill's statements to Mr. Ollie, while falling short of an ideal, do weigh against a determination that he was in custody.

A suspect will generally feel more able to end an interview when his mobility is unimpeded by the authorities. We thus look to see if Mr. Ollie was free to move about during the interview. When Mr. Ollie arrived at the police station, Chief McNeill took him to a small interview room. In that room, the Chief sat alone with Mr. Ollie and left the door ajar. In its order, the district court found no evidence that the police restrained Mr. Ollie's freedom of movement. Such a negative finding, however, is qualitatively different from stating that Mr. Ollie was free to move about. The record is silent on this issue because Mr. Ollie never tried to move about or leave the interview room. Because the record is thin, we believe that it is impossible to determine if Mr. Ollie retained his freedom of movement throughout the questioning.

We do conclude, however, that Mr. Ollie neither initiated contact with the Adel police nor voluntarily acquiesced to questioning. Chief McNeill told Mr. Ollie's parole officer that he wished to speak with Mr. Ollie concerning the gun found at the apartment. At their meeting the following day, the parole officer ordered Mr. Ollie to go talk with Chief McNeill. Despite this, the district court concluded that Mr. Ollie went to meet Chief McNeill of his own free will. We think that this finding is clearly erroneous. The parole officer testified that it would have been a violation of his parole for Mr. Ollie to refuse to go to the meeting and that a refusal could have led to Mr. Ollie's parole being revoked, and Mr. Ollie testified that because of this order he felt that he had no choice but to meet with Chief McNeill. Faced with such pressures, we think that Mr. Ollie had little choice but to comply. Unlike the suspect in Axsom, 289 F.3d at 498, 502, who (after an officer expressed interest in talking with him "if he would like to speak with her") was "extremely friendly and cooperative" and pointed out incriminating evidence to law enforcement, Mr. Ollie's conduct revealed little more than an absence of resistance. While a defendant does not need to be enthusiastic about an interview for us to conclude that he voluntarily acquiesced, we think it clear here that Mr. Ollie was responding to pressure.

Although Chief McNeill used some deceptive tactics during his interview with Mr. Ollie, we do not believe that the type of deception that he used is relevant to the present inquiry. When the chief asked Mr. Ollie whether his story would change if his fingerprints had been found on the gun, his question contained an implicit factual assertion that the police had matched Mr. Ollie's fingerprints to the weapon. In fact, his fingerprints had not been matched, and the chief acknowledged that his deceptive question was intended to elicit a confession from Mr. Ollie. In LeBrun, 363 F.3d at 721, however, we stated "that the coercive aspects of a police interview are largely irrelevant to the custody determination except where a reasonable person would perceive the coercion as restricting his or her freedom to depart," and the Supreme Court has held that an officer's false statement to a defendant that his fingerprints were found at the scene of the crime had "nothing to do with whether [the defendant] was in custody for purposes of the Miranda rule," Oregon v. Mathiason, 429 U.S. 492, 495-96, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977) (per curiam). Here the chief falsely implied that Mr. Ollie's fingerprints were on the gun. Since this kind of deceit would not have acted to prevent a reasonable person from terminating the interview, it cannot affect our custody determination.

But we do find that the interview took place in a police-dominated atmosphere and that this atmosphere would have restrained a reasonable person's movements. In contrast to Axsom, where the suspect was interviewed at home, in this case the police questioned Mr. Ollie at the police...