93 F.3d 555 (9th Cir. 1996), 95-50341, United States v. Polanco

Docket Nº:95-50341.
Citation:93 F.3d 555
Party Name:D.A.R. 9962 UNITED STATES of America, Plaintiff-Appellee, v. Miguel POLANCO, Defendant-Appellant.
Case Date:August 15, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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93 F.3d 555 (9th Cir. 1996)

D.A.R. 9962

UNITED STATES of America, Plaintiff-Appellee,


Miguel POLANCO, Defendant-Appellant.

No. 95-50341.

United States Court of Appeals, Ninth Circuit

August 15, 1996

Argued and Submitted April 10, 1996.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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H. Dean Steward, Deputy Federal Public Defender, Santa Ana, California, for defendant-appellant.

S. Robert Raskin, Jr., Assistant United States Attorney, Santa Ana, California, for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California, Gary L. Taylor, District Judge, Presiding. D.C. No. CR-95-00023-GLT-1.

Before: GOODWIN and HAWKINS, Circuit Judges, and MARQUEZ, [*] District Judge.


Miguel Polanco appeals his conviction, following a jury trial, on two counts of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). He raises four issues on appeal. He first challenges the district court's reliance on the doctrine of inevitable discovery as a basis for admitting the Mirandized, inculpatory statement he made following his earlier, non-Mirandized inculpatory statement. His next contention is that 18 U.S.C. § 922(g)(1) exceeds the bounds of Congress's Commerce Clause power. Third, he argues that there was insufficient evidence to support his conviction under 18 U.S.C. § 922(g)(1). Finally, he challenges the district court's enhancement of his sentence, under United States Sentencing Guidelines ("U.S.S.G.") § 2K2.1(b)(5), for "use" of a firearm in connection with a felony, arguing, first, that the Supreme Court's narrow construction of the term "use" in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), invalidates the enhancement, and, second, that there was insufficient evidence that he either used or possessed a firearm in connection with a felony.

We have jurisdiction to review Polanco's conviction pursuant to 28 U.S.C. § 1291, and the validity of his sentence under 18 U.S.C. § 3742. We affirm his conviction and we uphold his sentence on the basis of his possession of a firearm in connection with a felony.


While surveilling a Los Angeles commercial neighborhood for illegal drug sales on January 6, 1995, Los Angeles Police Department ("LAPD") officers observed defendant Miguel Polanco engaged in what appeared to be the sale of marijuana. The officers noticed that Polanco occasionally moved from the intersection of Pico Boulevard and Hoover

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Street, where he was apparently selling marijuana, to a maroon Pontiac Grand Am parked in a parking lot on the northwest corner of the intersection. While surveilling the same area on January 12, 1995, the officers again observed Polanco selling marijuana. After observing several transactions by Polanco, the officers followed him to the parking lot near the intersection. There, they watched him open the trunk of the Grand Am, remove a plastic bag from under his jacket, and place it in the trunk. The bag was later found to contain several small plastic bags of marijuana and a scale. When Polanco moved around to the driver's side of the car and opened the door, LAPD officers arrested and handcuffed him. They neither administered Miranda warnings nor questioned him. While the LAPD officers detained Polanco, federal Alcohol, Tobacco and Firearms Agent Carlos Canino, who was assisting the LAPD officers' surveillance, searched the car. Agent Canino discovered a semi-automatic handgun in plain view, wedged between the driver's seat and the center console of the car. The gun was loaded with six rounds of ammunition. The officers also recovered more than $5,000 in cash from the passenger side of the car.

Minutes later, while still in the custody of LAPD officers, Polanco was questioned by Agent Canino, who identified himself as a federal officer but failed to administer Miranda warnings. Agent Canino first asked Polanco his name, date of birth, and address. He then asked Polanco whether he had ever been on probation or parole, and whether he had served time in state prison. Polanco cooperated, answering both questions in the affirmative.

Shortly thereafter, Polanco was taken to LAPD headquarters at Parker Center in Los Angeles. There, Agent Canino obtained Polanco's criminal record, read him his Miranda rights, 1 and questioned him further. In response to Agent Canino's questions, Polanco admitted that he had been convicted of felony drug sales during the mid-1980's, and had been incarcerated in state prison in California for eighteen months. During the interrogation, Agent Canino had a copy of Polanco's criminal record and reviewed items on it with him.

On January 27, 1995, Polanco was indicted on two counts of being a felon in possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1). Before trial, Polanco moved to suppress the inculpatory statements he made to Agent Canino, alleging that Agent Canino failed to give him Miranda warnings before questioning him. In opposing Polanco's motion to suppress, the government conceded that neither Agent Canino nor the LAPD officers had administered Miranda warnings before questioning Polanco at the scene of arrest, and stipulated that it would not introduce at trial Polanco's arrest scene statement. It argued, however, that Polanco received proper Miranda warnings before making the inculpatory statement at Parker Center, and that this later statement was admissible pursuant to Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), because (1) both the first and second statements were made voluntarily, and (2) Polanco was informed of his Miranda rights before making the second statement but voluntarily, knowingly, and intelligently waived those rights.

At Polanco's suppression hearing, the district court found Polanco's first statement was made voluntarily but in violation of Miranda, and was therefore inadmissible. Although the district court found that Agent Canino had given Polanco Miranda warnings before questioning him at Parker Center, it concluded that Polanco's Parker Center statement remained "taint[ed]" by his earlier, non-Mirandized statement, for several reasons: (1) the Parker Center interview took place soon after Polanco made the initial statement at the arrest scene; (2) it involved the same participants; and (3) the officers "ma[d]e use" of Polanco's earlier statement to get him to confirm that statement during the Parker Center interview.

Despite concluding that Polanco's Mirandized Parker Center statement was

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"taint[ed]" by his earlier, non-Mirandized statement, the district court, sua sponte, concluded that the Parker Center statement was nevertheless admissible under the inevitable discovery doctrine. The district court explained:

In my view, the doctrine of inevitable discovery does apply in this case and does salvage this information. At the scene, the officers found marijuana, and they found the gun. It is clear, certainly, by a preponderance of the evidence. And they would probably have been derelict in their duty if they hadn't checked further at that point; so I can't imagine that they wouldn't have. It was inevitable that they would at that point have checked and found out every single thing about this defendant that they all discussed down at the station.

This is a status crime. A status crime was the admissions--the admission of the status, but that status was easily to be found by a whole bunch of other sources, and that status would have inevitably been clear. And for that reason, the Court finds that, under the doctrine of inevitable discovery, this information is not suppressed.

(emphasis added)

At Polanco's March 1995 jury trial, the district court admitted Polanco's Parker Center statement, the handgun and marijuana the officers had seized from Polanco upon arrest, and police records documenting his past felony conviction. The jury convicted Polanco of both counts of being a felon in possession in violation of 18 U.S.C. § 922(g)(1). The district court sentenced Polanco to 68 months imprisonment, assigning him a four-level enhancement under U.S.S.G. § 2K2.1(b)(5) for "use" of a firearm in connection with a felony. Polanco timely appealed his conviction and sentence.


1. Admission of Polanco's Mirandized statement following his prior, non-Mirandized statement

Polanco challenges the district court's admission of his Mirandized, inculpatory statement on the basis of the inevitable discovery doctrine, asserting that the government failed to establish inevitable discovery by a preponderance of evidence. We review de novo the district court's denial of a defendant's motion to suppress, and we review for clear error the court's factual findings underlying that decision. United States v. Manning, 56 F.3d 1188, 1196 (9th Cir.1995) (citation omitted).

Although the well-established general rule is that a defendant's non-Mirandized inculpatory statement is inadmissible at trial, Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), a subsequent, Mirandized inculpatory statement is admissible under the standard set forth in Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985). In Elstad, the Supreme Court held that an initial failure of law enforcement officers to administer Miranda warnings, "unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ... free will," does not, without more, "taint" subsequent statements the suspect made after receiving Miranda warnings and validly waiving his or her rights. Elstad, 470 U.S. at 309, 105 S.Ct. at 1293. To...

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