U.S. v. Kimbrough

• Decision Date: 16 February 2007
• Docket Number: No. 06-4341.,06-4341.
• Citation: 477 F.3d 144
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Damon KIMBROUGH, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

477 F.3d 144

UNITED STATES of America, Plaintiff-Appellant, v. Damon KIMBROUGH, Defendant-Appellee.

No. 06-4341.

United States Court of Appeals, Fourth Circuit.

Argued: October 27, 2006.

Decided: February 16, 2007.

ARGUED: Richard Charles Kay, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellant. Joanna Beth Silver, Assistant Federal Public Defender, Office of the Federal Public Defender, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, Baltimore, Maryland, for Appellant. James Wyda, Federal Public Defender, Baltimore, Maryland, for Appellee.

Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.

Reversed and remanded by published opinion. Judge DUNCAN wrote the opinion, in which Judge WILKINSON and Judge GREGORY joined.

OPINION

DUNCAN, Circuit Judge:

This appeal examines the extent to which the government may rely at trial on statements elicited by a third person— here, a suspect's mother—prior to police giving the suspect a valid warning under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

The United States appeals the district court's order suppressing statements made by Damon Kimbrough ("Appellee") in response to questions asked by his mother. Appellee had been arrested, but he had not yet been adequately advised of his Miranda rights. Appellee's responses to his mother's questions in the presence of police led to the discovery of a firearm.¹ Because Appellee's mother spontaneously asked the questions at issue without direction by, or even a tacit understanding with, the police officers, and because the officers' actions did not constitute interrogation under Miranda and its progeny, we find the Fifth Amendment not offended. We therefore reverse.

I.

On May 28, 2005, Baltimore City Police Officers Robert Himes and Earl Thompson received an anonymous tip that two men were selling drugs on the front steps of 1939 Hollins Street.² The officers parked nearby and saw two men who matched the description provided by the anonymous informant sitting on the front steps. The policemen also saw the men conduct an apparent drug transaction with the occupants of a vehicle.

The officers approached the two men and asked if they resided there. The men replied that they were visiting a friend. Officer Himes knocked on the door of the house, and Tony Kimbrough, Appellee's uncle, answered. He stated that the house belonged to Yolanda Kimbrough ("Ms.Kimbrough").

Ms. Kimbrough insisted there were no drugs in her home. She allowed the officers to enter and at some point signed a written consent form memorializing her authorization.³ Upon entering the house, Officer Thompson heard a disturbance in the basement and both officers proceeded downstairs. The officers found Appellee sitting on a bed, apparently dividing cocaine on a plate with a razor blade; they then arrested and handcuffed him. Appellee was cooperative throughout.

While Officer Thompson took Appellee upstairs, Officer Himes called Ms. Kimbrough down to the basement and showed her what he had found. Ms. Kimbrough appeared genuinely "shocked and surprised" and asked to speak to her son. J.A. 31. When Appellee was brought back downstairs, his mother began asking him such questions as "[W]hat is this[?]" and "[I]s there anything down here?" J.A. 32-33. Officer Himes then attempted to recite Miranda warnings from memory to Appellee, who agreed to speak without a lawyer present.

Appellee responded to questions posed by his mother while looking at Officer Himes. When Ms. Kimbrough asked if there was anything else down in the basement, Appellee replied that there was a gun under the cushion of the couch. Officer Himes recovered the gun, and then asked some follow-up questions that led to the discovery of more cocaine and cocaine-packaging material.

Appellee was arrested and charged with (1) possession of a stolen firearm in violation of 18 U.S.C. § 922(g); (2) possession of a stolen firearm in violation of 21 U.S.C. § 922(j); (3) possession of cocaine with intent to distribute in violation of 21 U.S.C. § 841; and (4) possession of a firearm in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c).

Prior to trial, Appellee moved to suppress the statements made subsequent to his arrest. At the hearing on the motion, the district court found that the attempted Miranda warnings were ineffective, see J.A. 204-05, and the government does not now contest this finding. On appeal, the government further concedes that the follow-up questions posed by Officer Himes after Appellee revealed the location of the gun constituted custodial interrogation. The government therefore does not challenge the suppression of Appellee's responses to such questions.

The government nonetheless argued at the hearing before the district court that Miranda warnings were not required because Ms. Kimbrough, and not the police officers, asked the questions. The district court, however, rejected this characterization:

The court finds and concludes that Miss Kimbrough's involvement in questioning her son was the equivalent of official custodial interrogation. It was obvious to Detective Himes that Miss Kimbrough being upset was really coming after her son, was angry at him, and that he would simply, as he put it, quite candidly in his testimony, she did his questioning for him, that is, Miss Kimbrough did the questioning that [O]fficer Himes otherwise would have done. So this was official interrogation.

J.A. 205. Because of its conclusion that Ms. Kimbrough's involvement in questioning⁴ "was the equivalent of official custodial interrogation," J.A. 205, the district court granted Appellee's motion to suppress the statements he made in response to Ms. Kimbrough.⁵ For the reasons explained below, we reverse.

II.

In considering an appeal of a suppression order,"[w]e review the district court's factual findings for clear error and its legal determinations de novo." United States v. Jarrett, 338 F.3d 339, 343-44 (4th Cir.2003). We view the facts in the light most favorable to the prevailing party below. See United States v. Ellyson, 326 F.3d 522, 527 (4th Cir.2003).

In Miranda, the Supreme Court held that because of the coercion inherent in a custodial setting, before beginning interrogation police must advise suspects of their Fifth Amendment right to remain silent. 384 U.S. at 444, 86 S.Ct. 1602. The Supreme Court made clear in Miranda that "[b]y custodial interrogation, [it] mean[t] questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Id. (emphasis added). If the suspect is not subjected to "official" interrogation, however, the Fifth Amendment is not implicated. See Illinois v. Perkins, 496 U.S. 292, 297, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990) ("It is the premise of Miranda that the danger of coercion results from the interaction of custody and official interrogation.").

Moreover, beyond actual questioning by the police, the Supreme Court has recognized that certain conduct also implicates Miranda. Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (emphasis added). Thus, the Supreme Court has broadened the concept of interrogation to include either "express questioning or its functional equivalent." Id. at 300-01, 100 S.Ct. 1682. In Innis, the defendant was charged with the robbery, kidnapping, and murder of a taxicab driver. Id. at 295, 100 S.Ct. 1682. The murder weapon was believed to be a sawed-off shotgun. After being advised of his Miranda rights and requesting to speak with an attorney, the defendant was placed in a police vehicle with two officers to be driven to the police station. En route, the police officers discussed with each other, but within earshot of the defendant, the missing shotgun, which was believed to be located in an area near a school. One officer lamented the possibility that a child might happen upon the missing weapon and suffer harm as a result, and the other agreed. The defendant then interjected, asking the officers to turn the car around so that he could show them where the gun was located. Id. at 293-95, 100 S.Ct. 1682.

In its analysis in Innis, the Court reviewed the coercive police practices that had triggered the Miranda Court's concerns about the "interrogation environment," such as "the use of line-ups in which a coached witness would pick the defendant as the perpetrator" and "the so-called `reverse line-up' in which a defendant would be identified by coached witnesses as the perpetrator of a fictitious crime." Id. at 299, 100 S.Ct. 1682 (quoting Miranda, 384 U.S. at 453, 457, 86 S.Ct. 1602). The Court held that these "psychological ploys" were likely to "undermine the privilege against compulsory self-incrimination" even in the absence of express questioning. Id. On that reasoning, it extended Miranda's safeguards to behavior constituting the "functional equivalent" of express questioning, while retaining the prerequisite focus on police action as, indeed, the Fifth Amendment requires. See id. at 300-01, 100 S.Ct. 1682.

The Court in Innis defined the functional equivalent of questioning as "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id. at 301, 100 S.Ct. 1682 (emphasis added). It noted that "[t]he latter portion of this definition focuses primarily upon the perceptions of the suspect, rather than the intent of the police." Id. Such focus is appropriate, as the Miranda safeguards were intended to protect suspects from being coerced into waiving their Fifth Amendment rights. See id.

The Supreme Court then applied the functional equivalence test to the facts before it. Although conceding that the officers'...