U.S. v. Crowder

• Decision Date: 08 August 1995
• Docket Number: No. 94-5936,94-5936
• Citation: 62 F.3d 782
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. James Thomas CROWDER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 782

62 F.3d 782

UNITED STATES of America, Plaintiff-Appellee, v. James Thomas CROWDER, Defendant-Appellant.

No. 94-5936.

United States Court of Appeals, Sixth Circuit.

Argued April 4, 1995.

Decided Aug. 8, 1995.

Richard Leigh Grinalds, Asst. U.S. Atty. (argued and briefed), Jackson, TN, for plaintiff-appellee.

G. William Hymers, III (argued and briefed), Jackson, TN, for defendant-appellant.

Before: BOGGS and BATCHELDER, Circuit Judges; ALDRICH, District Judge. ^*

BATCHELDER, Circuit Judge.

The defendant in this case appeals his conviction for violation of 18 U.S.C. Sec. 922(g) and 26 U.S.C. Secs. 5841, 5861(d), and 5871. The issue on appeal is the admissibility of evidence obtained as a result of a consent to search given by a defendant before hearing Miranda warnings.

I.

James Crowder, the defendant, was charged with being a felon in possession of a firearm in violation of 18 U.S.C. Sec. 922(g) and with possession of a shotgun with a barrel length of less than eighteen inches in violation of 26 U.S.C. Sec. 5841, 5861(d), and 5871. The defendant filed motions to suppress a sawed-off shotgun seized by the officers, oral statements he made to the officers when he was arrested, and a written statement he gave while in custody. The district court overruled these motions and the defendant entered a conditional guilty plea to both counts.

On October 29, 1993, Police Officers Sylvester and Davis and Chief of Police Cannon investigated an incident in which the defendant had allegedly fired a gun over his neighbor's head. At the suppression hearing, the district court found that the police confronted the defendant in front of his home and obtained his permission to search the house. Once inside the house, the officers arrested and handcuffed the defendant and searched the house for the gun, but did not find it.

The defendant then told the police that the gun was at the home of his girlfriend's mother, so the officers placed him in the back of Officer Davis's squad car and took him to that residence. After a consensual search of that home yielded no weapon, the police placed the girlfriend in the back of another squad car, although they did not arrest her. The defendant (who was still handcuffed) then "pecked" at the squad car window to get Chief Cannon's attention and told him, "I will tell you where the gun's at." The defendant stated that the weapon was located "in the wood." Apparently, by "in the wood," the defendant meant that the gun was in the attic of his home. Officer Davis was confused by the phrase "in the wood" and as they were returning to the defendant's house, he asked the defendant questions about the location of the gun. The defendant gave permission to enter his house for a second search and led the police to a sawed-off shotgun. At no time during this series of events did the officers advise the defendant of his Miranda rights.

Ten days later, on November 8, 1993, Criminal Investigator Derr advised the defendant of his Miranda rights and had him sign a full consent to waive those rights. During the ensuing interview, the defendant gave a four-page statement. It is undisputed that this was the first time that Miranda warnings were given to the defendant in connection with these offenses.

II.

In this appeal, the defendant claims that the shotgun and all of his statements were inadmissible because (1) the defendant's consent to search his residence was the product of coercion by the police; (2) the evidence obtained in the search would not have been inevitably discovered absent his consent to search; (3) all of the defendant's oral statements should have been suppressed due to the lack of Miranda warnings; and (4) the defendant's confession resulted from coercion and should have been suppressed. The defendant does not challenge his arrest or the district court's finding that the police officers had probable cause to arrest him. For the following reasons, we hold that the district court did not err in denying the motions to suppress the statements and the shotgun.

On suppression issues, we review the district court's findings of fact for clear error, but we review all conclusions of law de novo. United States v. Bencs, 28 F.3d 555, 558-59 (6th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 915, 130 L.Ed.2d 796 (1995).

A.

The defendant argues that "any oral statements given to the officers after [the defendant] was in custody should have been suppressed." The district court found that the defendant was not subject to custodial interrogation when he "pecked" at the window and stated "I will tell you where the gun's at," but that he was subject to custodial interrogation when he subsequently answered any questions, such as Officer Davis's attempts to clarify what the defendant meant by "in the wood."

We agree. While the defendant was in custody upon his arrest, Miranda warnings were required only when the defendant was in custody and was subject to interrogation, which is defined as "express questioning or its functional equivalent." Rhode Island v. Innis, 446 U.S. 291, 300-01, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980) ("[T]he special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation."); United States v. Montano, 613 F.2d 147, 149 (6th Cir.1980). In this case, the defendant's initiation of contact with Chief Cannon and offer to tell him the location of the gun were not the result of either express questioning or its functional equivalent. His statements relating to the second consent to search his home, and that consent itself, however, were statements made when the defendant was in custody and subject to interrogation.

B.

It is undisputed that the defendant's second consent to search his home and his statements relating to that consent were made prior to his receiving Miranda warnings. The admissibility of the shotgun and the subsequent written confession, therefore, depends on whether the defendant's consent and statements which led to the seizure of the shotgun were voluntary.

In Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), the Supreme Court emphasized that the Miranda exclusionary rule "differs in significant respects" from the Fourth Amendment exclusionary rule. Id. at 306, 105 S.Ct. at 1291. A Fourth Amendment violation taints a subsequent confession, for example, unless the prosecution can demonstrate not only that the confession was voluntary, but also that a sufficient break in the events occurred "to undermine the inference that the confession was caused by the Fourth Amendment violation." Id. By comparison, unwarned statements made during a custodial interrogation are not admissible, regardless of whether the statements were voluntary or whether a constitutional violation occurred. Id. at 307, 105 S.Ct. at 1292. This automatic exclusion, however, does not extend to evidence obtained as a result of the unwarned statement, because the failure to deliver Miranda warnings is not itself a constitutional violation, and the Miranda presumption "does not require that the statements and their fruits be discarded as inherently tainted." Id. Instead, so long as the unwarned statement was voluntary under the Fifth Amendment, the other evidence is admissible. Id. at 309, 105 S.Ct. at 1293.

A suspect's warned confession, given after he made unwarned and inculpatory statements, is admissible if the unwarned statements were voluntary. Id. at 308-09, 105 S.Ct. at 1292-93. In Elstad, the Supreme Court stated that "[a] subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement." Id. at 314, 105 S.Ct. at 1296. ¹

Similarly, non-testimonial physical evidence, such as the shotgun, discovered due to an unwarned statement is admissible if the unwarned statement was voluntary. United States v. Sangineto-Miranda, 859 F.2d 1501 (6th Cir.1988). In Sangineto-Miranda, this Court refused to suppress narcotics found in a suspect's truck, even though the officers' knowledge of the existence and location of the truck was proximately derived from the suspect's unwarned and suppressible answer to a question from the officer. Id. at 1518.

Because the unwarned statements in question involve a consent to search, we apply the test set forth in Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973), and its progeny. Whether a consent to search is voluntary is a question of fact, to be proved by the government, id. at 222, 93 S.Ct. at 2045, and determined from the "totality of all the circumstances." Id. at 227, 93 S.Ct. at 2048; see also United States v. Scott, 578 F.2d 1186, 1189 (6th Cir.), cert. denied, 439 U.S. 870, 99 S.Ct. 201, 58 L.Ed.2d 182 (1978). Those circumstances include "evidence of minimal schooling, low intelligence, and the lack of any effective warnings to a person of his rights," Bustamonte, 412 U.S. at 248, 93 S.Ct. at 2058, as well as evidence concerning "the youth of the accused," "the length of detention," "the repeated and prolonged nature of the questioning," and "the use of physical punishment such as the deprivation of food or sleep." Id. at 226, 93 S.Ct. at 2047. Further, the accused's knowledge of his right to refuse to consent is only one factor--not a prerequisite--in establishing voluntary consent. Id. at 249, 93 S.Ct. at 2059.

In United States v. Watson, 423 U.S. 411, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976), the Supreme Court applied Bustamonte to a defendant who consented to a search while in custody. ² Specifically stating that "the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search," id. at 424, 96 S.Ct. at 828, the Watson Court identified a number of factors that led to a finding of...