United States v. Hodge

• Decision Date: 19 April 2013
• Docket Number: No. 12–1173.,12–1173.
• Citation: 714 F.3d 380
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Lonnie HODGE, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

714 F.3d 380

UNITED STATES of America, Plaintiff–Appellee,

v.Lonnie HODGE, Defendant–Appellant.

No. 12–1173.

United States Court of Appeals,Sixth Circuit.

Argued: Jan. 22, 2013.

Decided and Filed: April 19, 2013.

ARGUED:Richard A. Cline, Richard Cline & Co., LLC, Columbus, Ohio, for Appellant. Clay M. West, United States Attorney's Office, Grand Rapids, Michigan, for Appellee. ON BRIEF:Richard A. Cline, Richard Cline & Co., LLC, Columbus, Ohio, for Appellant. Sean C. Maltbie, United States Attorney's Office, Grand Rapids, Michigan, for Appellee.

Before: SUHRHEINRICH, MOORE, and GIBBONS, Circuit Judges.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

Officers from the Calhoun County Sheriff's Department and the Battle Creek Police Department found a pipe bomb in Lonnie Hodge's home while executing a search warrant for evidence of a methamphetamine lab. They also found marijuana, prescription drugs, drug paraphernalia, and a rifle. A federal grand jury indicted Hodge for possession of an unregistered destructive device (the pipe bomb) and possession of a firearm while unlawfully using a controlled substance. Hodge moved to suppress the pipe bomb, arguing that the officers' warrant was not supported by probable cause and that statements he made alerting officers to the pipe bomb were obtained through custodial interrogation without Miranda warnings. The district court denied the motion. Hodge entered a conditional guilty plea to both counts of the indictment and now appeals the denial of his suppression motion. Because probable cause supported the search warrant and the Fifth Amendment does not require suppression of the evidence obtained through Hodge's statements, we affirm the district court's judgment.

I.

A.

On October 18, 2010, Calhoun County Sheriff's Office Deputy Matt Gault receivedword of illegal activity occurring in Hodge's Battle Creek residence from a local resident, Jacob Banks. Banks told Gault that on October 16, he witnessed “the manufacture of methamphetamine, several firearms, and a bomb” at Hodge's home. He observed an associate of Hodge, Brandy Freeze, shaking “two sports drink bottles that appeared to have a grayish, sandy, sludge in the bottom with liquid and pieces of black chunks floating on the top,” characteristic of a “one pot style methamphetamine cook.” Banks also gave Gault a detailed description of a pipe bomb Hodge showed him. Hodge claimed the pipe bomb had enough power to “blow up the entire house” if detonated. Banks also stated that Hodge showed him “an all-black firearm that he identified as an AK–47.” Finally, Hodge allegedly told Banks that if the police confronted Hodge, he “would shoot every cop that he could.”

Gault relayed the tip to Bryan Gandy, a detective in the Sheriff's Office specializing in drug investigations, who immediately set to work corroborating Banks's story. He found that Hodge purchased ephedrine or pseudoephedrine from local stores three times between September 30, 2010 and October 14, 2010. Using police records and Banks's description of Hodge, he confirmed Hodge's identity and residence. Gandy discovered that the Sheriff's Office sought a search warrant for a methamphetamine lab operated by Freeze in Pennfield Township, Michigan on September 10, 2010, and that Battle Creek Police Department officers investigated methamphetamine production by Hodge and Freeze at a different location in Battle Creek on October 5, 2010. Finally, Gandy found two “silent observer” tips from the week of October 10, 2010 stating “that there is a large amount of traffic and it is believed that there is methamphetamine activity and guns” at Hodge's Battle Creek residence.

Gandy prepared an affidavit using his investigative findings and Banks's statements and successfully applied for a warrant from a Calhoun County magistrate to search Hodge's home for evidence of a methamphetamine lab and weapons. The affidavit made no mention of the pipe bomb and gun Banks observed, although it did include the “silent observer” tips mentioning guns. Gandy later testified that he omitted that information to focus on evidence of methamphetamine production because “that is what I had the most evidence for at that time.” Gandy believed the warrant's authorization to search for “[a]ny and all firearms, ammunition, [and] weapons located on the property” was broad enough to cover seizure of a pipe bomb.

Gandy then contacted Matt Robinson, the Battle Creek Police Department's coordinator of methamphetamine investigations, for assistance in executing the warrant on the evening of October 18. Both agreed that the Police Department's Emergency Response Team (“ERT”) would be needed since there were credible allegations of dangerous weapons at Hodge's residence. The planned search would proceed in three phases. First, the ERT would enter the home and secure any persons in it. Second, Robinson would lead other Police Department officers in an initial test of the home for dangerous gases associated with methamphetamine production. Third, once the ERT secured the home and completed the initial sweep for dangerous gases, Gandy and the Sheriff's Office would take over the investigation and execute a thorough search of the residence for evidence specified in the warrant. Gandy explained that during such a search, the police “go into one room and go completely through that room, top to bottom, inside every drawer, [and] inside closets.” Because of the reports about a bomb in the house, Robinson requested that Marc Pierce, a police officer with explosives training, be dispatched with the ERT to Hodge's home.

Robinson, Gandy, and the ERT arrived at Hodge's home in the early evening. They knocked on the front door, announced their presence, and breached the door with a ram when there was no immediate response. As Robinson and several other officers entered a bedroom, Hodge “came around the corner, immediately to [Robinson's] left within probably a foot or two,” wielding a screwdriver and “screaming” incoherently at the officers. Hodge, who is 6' 6? tall and weighs 320 pounds, quickly dropped the screwdriver but continued to scream and ball his fists, after which officers subdued and handcuffed him. The officers handcuffed Hodge behind his back, led him outside the house, and seated him in a chair on the front lawn. This took place just after 7:20 p.m., the time that Pierce arrived at the house.

While Robinson and the ERT officers were re-entering the home to begin their sweep for methamphetamine-related gases, Gandy asked Hodge, without first giving Miranda warnings, “if there is anything in the house that could get anyone there hurt, any active meth labs, meth waste, bombs, anything like [that] at all.” Hodge said no. Pierce also asked about a bomb, and after receiving a similar response, he received permission from his supervisor to leave Hodge's home. Pierce left the scene between 7:25 and 7:30 p.m. Gandy then had a brief conversation with Hodge about whether “anybody else had been staying at the house” because he was concerned about the arrival of other people who could access the guns Hodge allegedly possessed. The discussion hit a lull. Gandy, who was standing about six feet away from Hodge, turned away from Hodge and towards the house, waiting for Robinson and his crew to finish the gas sweep so he could begin the evidentiary search.

One to two minutes after they had stopped talking, Gandy overheard Hodge “blurt[ ] out that there [was] a bomb inside” the house. Gandy immediately pressed Hodge for more information, and Hodge told Gandy that the bomb was wrapped in a towel and sitting on top of a kitchen cabinet in an area where decorative items might be displayed. As Robinson was exiting the house after completing the gas sweep, he overheard Gandy and Hodge talking about a bomb and began asking his own questions about it. Robinson later testified that he asked these questions to learn more about the bomb's construction, appearance, and method of detonation out of a concern for the safety of the officers in the house. Robinson entered the home and observed the object Hodge described.

The officers called Pierce at 7:45 p.m. about fifteen minutes after dismissing him and asked him to return to Hodge's home. Using a robot, Pierce retrieved and neutralized the pipe bomb. While the bomb was a small object—five inches high, with a diameter of two inches—Pierce testified that it was “rather large” for a pipe bomb. Once Pierce neutralized the pipe bomb, Gandy proceeded with the full evidentiary search of the house. While the search did not uncover evidence of a methamphetamine lab as the officers originally anticipated, the officers found marijuana, prescription drugs, drug paraphernalia, and a Marlin .22 caliber long rifle during the search.

B.

The government charged Hodge with (1) knowing possession of an unregistered “firearm,” 26 U.S.C. § 5861(d), and (2) possessing a firearm while being an unlawful user of a controlled substance, 18 U.S.C. § 922(g). The first count refers to the pipe bomb; Congress defined the term “firearm” broadly to include any “destructive device.” See26 U.S.C. § 5845(a)(8). The second count refers to the rifle and drugs found in Hodge's home.

Hodge moved to suppress the pipe bomb and the statements he made leading to its discovery. As an initial matter, the district court rejected Hodge's argument that the search warrant was not supported by “probable cause.” It then conducted a lengthy evidentiary hearing as to Hodge's claim that the bomb should be suppressed because officers found it as a result of statements obtained in violation of Miranda and the Fifth Amendment. Robinson, Gandy, Pierce, and Joy Brown, a nurse who examined Hodge after his arrest, all gave testimony at this hearing. After the presentation of evidence, the district court denied Hodge's motion from the bench. It found that Hodge's injuries did not demonstrate that his will was overborne by the officers when...