U.S. v. Swanson

• Decision Date: 24 March 2011
• Docket Number: No. 10–2178.,10–2178.
• Citation: 635 F.3d 995
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Thomas L. SWANSON, Defendant–Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

635 F.3d 995

UNITED STATES of America, Plaintiff–Appellee,
v.
Thomas L. SWANSON, Defendant–Appellant.

No. 10–2178.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 7, 2011.Decided March 24, 2011.

[635 F.3d 996]

Andrew R. DeVooght (argued), Attorney, Office of the United States Attorney, Chicago, IL, for Plaintiff–Appellee.

[635 F.3d 997]

Carol A. Brook, Attorney, Office of the Federal Defender Program, Chicago, IL, Paul E. Gaziano (argued), Attorney, Federal Defender Program, Rockford, IL, for Defendant–Appellant.Before MANION and WILLIAMS, Circuit Judges, and CLEVERT, District Judge.^*WILLIAMS, Circuit Judge.

In 2009, an arrest warrant was issued for Thomas Swanson. It was based on his 2008 possession of a firearm without a valid Firearm Owner's Identification card, which is a violation of Illinois state law. At the time of his arrest, the police presented Swanson with a state court order to turn over all guns in his possession to them as a condition of bond. A police officer also asked him three times to comply with the turn-over order. The arresting officers did not give Swanson notice of his federal constitutional right not to incriminate himself. Approximately forty-five minutes after Swanson's arrest, while he was being held in custody in an interrogation room of a police station, he said that he wanted to comply with the court turn-over order, and admitted that he had a gun hidden under the back seat of his car. As an officer retrieved the gun, another officer gave Swanson his Miranda warnings. Swanson then submitted to a written question-and-answer interview where he again admitted possession of a gun.

Swanson was eventually charged with the federal crime of possession of an unregistered firearm. He moved to have the gun and any statements he made about the gun suppressed, arguing that the police obtained the evidence in violation of his Fifth Amendment right against self-incrimination. The district court denied Swanson's motion to suppress, finding that his statements about the gun were spontaneous and voluntary. We disagree. Swanson's initial statement was the result of an unwarned custodial interrogation, which excuses his failure to invoke his constitutional protection against self-incrimination. And his second Mirandized written statement was tainted by the unconstitutional manner in which the first statement was obtained. The district court's denial of Swanson's motion to suppress is reversed, and the case is remanded for further proceedings consistent with this opinion.

I. BACKGROUND

In June 2009, Thomas Swanson was charged in a one-count indictment with knowingly possessing a sawed-off shotgun that was not registered to him in the National Firearms Registration and Transfer Record in violation of 26 U.S.C. § 5861(d). Swanson filed a motion to suppress the shotgun and any statements he made about the weapon. The district court granted Swanson a hearing and ultimately denied the motion, finding, among other things, that the statements surrounding the gun were “spontaneously volunteered” and admissible into evidence. On February 5, 2010, Swanson entered into a conditional guilty plea agreement that allowed him to appeal the district court's denial of his motion to suppress.

The events giving rise to the 2010 guilty plea began approximately two years earlier, in April 2008. Sergeant David Ford of the Hinckley, Illinois Police Department received information from a confidential informant that Swanson was planning to rob a bank. Sergeant Ford and an agent from the Federal Bureau of Investigation

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went to Swanson's home in Sandwich, Illinois to interview him. During the interview Swanson said that his family was having financial difficulties and that he had obtained a pistol and had written a bank robbery note. He said he never actually intended to rob a bank, though, because every time he would think of going through with it he would think of his kids and cry. He also said that he was “off [of his] medications.” He told Sergeant Ford that the pistol he obtained for the robbery was in his car, and he gave him permission to search for it. Sergeant Ford searched the car and found the pistol and bank robbery note.

At some point during the interview Sergeant Ford asked Swanson to produce his state issued Firearm Owner's Identification (FOID) card, which is required for an Illinois resident to legally possess or purchase a firearm. Swanson showed Sergeant Ford his FOID card, and Sergeant Ford noticed that the card had expired. He confiscated Swanson's pistol and contacted the DeKalb County State's Attorney's Office to seek criminal prosecution against Swanson for possession of a firearm without a valid FOID card. The office declined to prosecute.

Approximately one year later, in April or May of 2009, Sergeant Ford learned from the same confidential informant that Swanson had resumed his plans to rob a bank. Sergeant Ford contacted the State's Attorney's Office again, and this time charges against Swanson were authorized. Sergeant Ford prepared a criminal complaint for the April 2008 violation of 430 ILCS 65/2(a)(1), which prohibits possession of a firearm without a valid FOID card. Sergeant Ford also prepared an arrest warrant for Swanson for unlawful possession of a firearm. Although the arrest warrant was based on the April 2008 violation, the warrant itself did not state a date of offense.

On May 27, 2009, Sergeant Ford went to a DeKalb County judge to present the complaint and arrest warrant. He was accompanied by an assistant state's attorney. Sergeant Ford did not have any reason to believe that Swanson had firearms in his possession at the time he went to obtain the arrest warrant. The judge, Sergeant Ford, and the assistant state's attorney were the only three persons present when the complaint and arrest warrant were presented. The ex parte hearing occurred in the judge's chambers, and no recording or transcript was prepared. During the hearing, which lasted approximately five to seven minutes, Sergeant Ford detailed the investigation into Swanson's planning of bank robberies. He explained that the criminal complaint was based on an offense that occurred in April 2008, but that he had recently received information that Swanson was in the process of planning to rob a bank again. He also explained that he had checked with the state police and they had not yet issued a new FOID card for Swanson. The judge asked why the government was not pursuing a charge of attempted bank robbery, and the state's attorney responded that there had been no specific attempt on any bank. The judge signed the arrest warrant charging Swanson with unlawful possession of a firearm.¹

After the judge signed the arrest warrant, the assistant state's attorney recommended that Swanson be required to turn over all firearms as a condition of bond. He drafted a handwritten order that said,

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“As further condition of bond, Defendant, Thomas Swanson is directed to turn over any firearms in his possession + control to the Hinckley or Sandwich police department.” The judge signed the order.

Armed with the arrest warrant and the turn-over order that had been signed by the judge, Sergeant Ford went to Swanson's home on May 28, 2009. He was joined by a police officer from Sandwich. When they arrived at the house at 10:01 a.m., they found Swanson outside on the front lawn with his four-year-old son. They asked to speak with Swanson and after Swanson's son went inside, they presented him with the arrest warrant and told him that he was under arrest for unlawful possession of a firearm. Sergeant Ford also presented the turn-over order and explained that the judge had issued a court order as a condition of bond that required Swanson to turn over all firearms. He then asked Swanson if he had any firearms in his possession “that he wanted to turn over in compliance with the court order.” Swanson said that he had two shotgun cases in the house under his bed and gave Sergeant Ford permission to enter the house and retrieve them. One case contained a shotgun and the other contained only a barrel.

After retrieving the shotgun cases Sergeant Ford went back outside, and again encouraged Swanson to comply with the court's turn-over order. As Sergeant Ford later testified, he said “Again, I said—I explained that I didn't want him to be in violation of the court order, that I wanted to make sure that he was in compliance, asked him if there were any other guns or even look-alike guns that he wanted us to secure.” Swanson replied that there was a look-alike BB gun in his car, retrieved it from the center console, and gave it to Sergeant Ford. When Swanson asked Sergeant Ford to explain his arrest, Sergeant Ford said he would explain later when they sat down and talked. Sergeant Ford then urged Swanson to comply with the turn-over order a third time by “ask[ing] him one more time, just to be sure, to give him a moment to think.” Swanson replied that he did not have any other weapons. Swanson remained calm and cooperative throughout the time at his house.

An officer placed Swanson in the back seat of a police car and drove him to the Sandwich Police Department. Swanson was not given Miranda warnings when he was presented with the arrest warrant and turn-over order, while he was at his house, before he was placed in the police car, while he was being driven to the police station, or when he arrived at the police station.

Sergeant Ford stayed at Swanson's house while Swanson was taken to the police station. He interviewed Swanson's wife, searched his car, and did not find any weapons. When he finished his search he went to the Sandwich Police Department where Swanson had been taken.

At approximately 10:45 a.m. Sergeant Ford went to the interrogation room where Swanson was being held. As soon as Sergeant Ford walked in the room, “Mr. Swanson immediately informed me that he wanted to be honest with me, that he...