U.S. v. Dixon

• Decision Date: 20 March 1986
• Citation: 787 F.2d 593
• Parties: Unpublished Disposition NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDWARD DIXON, Defendant-Appellant. 85-1022
• Court: U.S. Court of Appeals — Sixth Circuit

Page 593

787 F.2d 593

Unpublished Disposition

NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDWARD DIXON, Defendant-Appellant.

85-1022

United States Court of Appeals, Sixth Circuit.

3/20/86

AFFIRMED

E.D.Mich.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN

BEFORE: CONTIE and MILBURN, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

PER CURIAM.

Defendant appeals his jury conviction of possession of a firearm by a felon in violation of 18 U.S.C. App. Sec. 1202(a)(1). On appeal defendant makes three arguments. First, defendant asserts that the district court erred in denying his motion to suppress the statements made to an ATF agent. Second, defendant argues that the district court erred in denying his motion for bond pending appeal. Third, defendant points out that the weapons which he possessed were manufactured prior to the enactment of 18 U.S.C. App. Sec. 1202. From this defendant argues that there was no evidence that the guns which he possessed affected interstate commerce after the effective date of the statute. For the reasons that follow, we affirm.

I.

After receiving information that an Edward Dixon, a resident of Inkster, Michigan, was a convicted felon possessing firearms, Special Agent Rodney Tureaud, Jr., of the Bureau of Alcohol, Tobacco and Firearms ('ATF') checked the criminal record files of the Michigan State Police. The record check revealed that an Edward Dixon was a felon. On April 14, 1981, Agent Tureaud, accompanied by Detective Ira Parker, of the City of Inkster Police Department, visited defendant's residence in an attempt to determine if the Edward Dixon believed to be possessing firearms was the same Edward Dixon who had been convicted of a felony.

Once at defendant's residence, Detective Parker identified himself as a police officer. Although defendant refused the officers' request to come in, he agreed to come out and talk with them. Once outside, defendant accompanied the officers to Agent Tureaud's unmarked government car where Detective Parker requested defendant's driver's license for informational purposes. While Detective Parker was running a routine check over his radio, Agent Tureaud told defendant that he 'had reason to believe that [defendant] was a convicted felon illegally in possession of some firearms. And then [Agent Tureaud] asked [defendant] if he ever spent time in prison.' App. at 42. Defendant responded that he was a convicted felon and did have a .22 caliber handgun and two shotguns in his residence. App. at 49. Agent Tureaud then attempted to advise defendant of his Miranda rights, id., but was interrupted by defendant who made further incriminating statements. Shortly thereafter, defendant demanded his driver's license back and left the car. The interview lasted between three and five minutes.

Within hours of defendant's statements, a search warrant was obtained and executed. The search resulted in the seizure of three firearms from defendant's residence. Defendant was subsequently arrested and charged with violation of 18 U.S.C. App. Sec. 1202.

On March 16, 1983, the district court held an evidentiary hearing on defendant's motion to suppress his earlier statement. The district court held that the atmosphere of the interview was coercive and that the officer should have advised defendant of his Miranda rights prior to questioning. The district court granted the motion to suppress, and the government took an interlocutory appeal. Because the district court based its decision on the fact that the interview occurred in a coercive atmosphere, rather than on whether defendant was 'in custody,' this court remanded the case for further consideration in light of Oregon v. Mathiason, 429 U.S. 492, 97 S. Ct. 711 (1977) and California v. Beheler, 463 U.S. 1121, 103 S. Ct. 3517 (1983). On remand the district court denied the motion to suppress and stated that with the exception of the fact that Detective Parker had defendant's driver's license 'there was no indication that [defendant] was not free to leave.' App. at 62.

On September 19, 1984, following a jury trial, defendant was found guilty of possessing a firearm in violation of 18 U.S.C. App. Sec. 1202(a)(1). On November 28, 1984, defendant was sentenced to a term of eighteen months' imprisonment. Defendant's subsequent motion for bond pending appeal was denied by the district court. In so doing the district court held that the request for bond pending appeal was governed by 18 U.S.C. Sec. 3143.

II.

A. Motion to Suppress

Defendant argues that the statements made to Agent Tureaud were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), and thus should have been suppressed. Miranda applies only to 'custodial interrogation.' In the instant case there is no question that defendant was interrogated. Thus, the focus of our inquiry is whether defendant was 'in custody' at the time of the interrogation.

Defendant argues that '[w]hen viewed in the totality of circumstances it is clear that a reasonable, innocent man under the relevant circumstances would have believed that they would not have been free to leave the police automobile.' Brief of Edward Dixon at 22. Whether a reasonable person would have believed that they were free to leave, although possibly relevant to our inquiry here, is not the test for determining the application of Miranda. The test relied on by defendant has been applied to determine whether an individual has been 'seized' for Fourth Amendment purposes. See, e.g., United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980). Miranda warnings, on the other hand, are mandated only when 'a suspect's freedom of action is curtailed to a 'degree associated with a formal arrest." Berkemer v. McCarty, 468 U.S. ----, ----, 104 S. Ct. 3138, 3151 (1984) (emphasis added) (quoting California v. Beheler, 463 U.S. 1121, ----, 103 S. Ct. 3517, 3520 (1983) (per curiam)).

As has been demonstrated by recent Supreme Court decisions, a 'seizure' under the Fourth Amendment involves significantly less involvement on the part of the police than does a 'custodial interrogation' required to trigger Miranda safeguards. Compare Delaware v. Prouse, 440 U.S. 648, 654, 99 S. Ct. 1391, 1396 (1979) ('stopping an automobile and detaining its occupants constitute a 'seizure' within the meaning of [the Fourth Amendment], even though the purpose of the stop is limited and the resulting detention quite brief.') with Berkemer v. McCarty, 468 U.S. ----, ----, 104 S. Ct. 3138, 3148 (1984) ('roadside questioning of a motorist detained pursuant to a routine traffic stop [not] considered 'custodial interrogation" for Miranda purposes). Cf. Hayes v. Florida, 470 U.S. ----, ----, 105 S. Ct. 1643 (1985) (full Fourth Amendment protections--rather than Terry safeguards--apply when police 'forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station where he is detained, although briefly, for investigative purposes. [S]uch seizures . . . are sufficiently like arrests to invoke the traditional rule that arrests may constitutionally be made only on probable cause.').

Turning to the facts of the instant case, defendant contends 'that the taking of his driver's license while in the back seat of a police automobile was such a restriction on his freedom as to render him 'in custody' for purposes of the Miranda safe guards [sic].' Brief of Edward Dixon at 24. Although these facts may at least arguably constitute a 'seizure,' standing alone they are a far cry from a formal arrest. Moreover, the atmosphere of this confrontation must be considered in its totality. The interrogation was conducted by only two officers who were dressed in plain clothes, not uniforms. The interrogation was conducted in an unmarked 'police' car with unlocked doors, in public view, in front of defendant's residence. Finally, we note that the interrogation was brief, lasting between three and five minutes.

The fact that Detective Parker held defendant's driver's license and that defendant was seated in the back of a 'police' car does not begin to approach the 'police dominated' atmosphere required for application of Miranda. Compare New York v. Quarles, 467 U.S. ----, ----, 104 S. Ct. 2626, 2631 (1984) (suspect surrounded by four police officers and handcuffed in a public place is in custody for purposes of Miranda); Orozco v. Texas, 394 U.S. 324, 327, 89 S. Ct. 1095, 1097 (1969) (suspect arrested and questioned by four police officers in his bedroom, Miranda warnings required); Miranda v. Arizona, 384 U.S. 436, 445, 86 S. Ct. 1602, 1612 (1966) (defendants taken into custody and transported to a police station where 'incommunicado interrogation' occurred); with Minnesota v. Murphy, 465 U.S. 420, ----, 104 S. Ct. 1136, 1144-45 (1984) (statement by probationer to probation officer without Miranda warnings admissible although conditions of probation required truthful answers to questions, probationer was required to come to the office, and the officer was seeking incriminating statements); California v. Beheler, 463 U.S. 1121, ----, 103 S. Ct. 3517, 3518-19 (1983) (Miranda warnings not required when suspect voluntarily came into police station and, after a brief interview in a coercive atmosphere, was released); Oregon v. Mathiason, 429 U.S. 492, 493-96, 97 S. Ct. 711, 713-14 (1977) (parolee interrogated at state parole office but told he was not under arrest held not entitled to Miranda warnings).

B. Bond Pending Appeal

Defendant argues that the district court erred in denying his motion for bond pending appeal. Defendant's argument on this issue is made in two...