UNITED STATES of America, Plaintiff-Appellee, v. Michael Lynn CRISP, Defendant-Appellant.
No. 09-5063.
United States Court of Appeals, Tenth Circuit.
April 5, 2010.
925 | 2010 WL 1286925
Allen J. Litchfield, Phillip E. Pinnell, Office of the United States Attorney, Tulsa, OK, for Plaintiff-Appellee.
Barry L. Derryberry, Stephen James Greubel, Esq., Office of the Federal Public Defender, Tulsa, OK, for Defendant-Appellant.
Before BRISCOE, HOLLOWAY, and HOLMES, Circuit Judges.
ORDER AND JUDGMENT*
JEROME A. HOLMES, Circuit Judge.
Defendant-Appellant Michael Lynn Crisp appeals the district court‘s denial of his motion to suppress self-incriminating statements regarding his possession and intent to distribute cocaine base. Mr. Crisp made these statements to law en-
BACKGROUND1
On August 10, 2008, Tulsa police officers stopped a car for speeding in the 3700 block of North Harvard Avenue in Tulsa, Oklahoma. Mr. Crisp, who was a passenger, exited the car during the traffic stop and fled the scene on foot. After a brief pursuit and scuffle, the officers apprehended Mr. Crisp and took him into custody. The officers also recovered a small bag of marijuana along the route that Mr. Crisp had taken while fleeing.
With Mr. Crisp in custody, officers visited the home of his mother. His mother granted the officers permission to enter her home and told them that Mr. Crisp had stayed with her for the past three or four days due to a death in the family. She subsequently gave the officers oral and written consent to search her home. During the ensuing search, officers seized approximately 680 grams of cocaine base and digital scales, which were hidden in the broken sheet rock of the garage ceiling. The officers also seized a shotgun from Mr. Crisp‘s bedroom.
While the officers searched his mother‘s home, Mr. Crisp was transported to the Tulsa Police station. Once the officers had completed the search, Corporal Helton and Corporal Francetic interviewed Mr. Crisp in the early morning hours of August 11. As the three men walked into the interview room, they bantered about the pursuit and how Mr. Crisp had pulled his hamstring as he fled from the officers. After they had settled into their respective chairs, Mr. Crisp asked if the female driver of the car was in trouble. Corporal Helton replied that she had gone home. Corporal Francetic then asked if she had smoked marijuana around him. As Corporal Francetic asked that question, he leaned slightly toward Mr. Crisp and sniffed, implying that he smelled burnt marijuana on him. Mr. Crisp admitted, “I was smoking weed before she picked me up.” Def.-Aplt.‘s Addendum of Exs., Ex. 3; see id., Ex. 4 at 2. He proceeded to describe his social agenda for the evening, admit that he had been drinking liquor in the car, and opine that his female companion had been speeding.
At that point, Corporal Francetic interrupted Mr. Crisp to administer Miranda warnings. Following the warnings, Corporal Francetic asked Mr. Crisp if he understood his rights. Mr. Crisp responded, “[y]es, I do.” Id., Ex. 3; see id., Ex. 4 at 4. The officers also delved into Mr. Crisp‘s ability to understand the warnings, asking him questions relating to his education and present sobriety. Mr. Crisp indicated that he understood the procedure and stated that “this ain‘t my first rodeo.” Id., Ex. 3; see id., Ex. 4 at 3.
Once the officers had clarified that Mr. Crisp understood his rights, they questioned him about his criminal history. Mr. Crisp admitted that he had been arrested for possession of marijuana and for trafficking powder cocaine. When Corporal Francetic remarked that he could smell marijuana on him, Mr. Crisp replied
Mr. Crisp was indicted in the U.S. District Court for the Northern District of Oklahoma on one count of possession with intent to distribute approximately fifty grams or more of cocaine base, in violation of
Mr. Crisp subsequently entered a conditional guilty plea. In the plea agreement, Mr. Crisp reserved the right to appeal the denial of his pretrial motions pursuant to
DISCUSSION
The Fifth Amendment to the U.S. Constitution guarantees that “[n]o person ... shall be compelled in any criminal case to be a witness against himself.”2
On appeal, Mr. Crisp argues that the district court erred in denying the motion to suppress his post-Miranda statements regarding his possession and intent to distribute cocaine base. He contends that the law enforcement officers subjected him to the “Miranda-in-the-middle” or “question-first” technique to elicit these statements in violation of Miranda. Mr. Crisp asserts that he initially admitted to having smoked marijuana in response to questions about his female companion.3 He claims
We hold that Mr. Crisp waived the “Miranda-in-the-middle” or “question-first” argument because he failed to raise it before the district court and has not shown good cause for this failure. Even if Mr. Crisp had not waived this argument, we conclude that he fails to show plain error.
I. Waiver
“When a motion to suppress evidence is raised for the first time on appeal, we must decline review.” United States v. Hamilton, 587 F.3d 1199, 1213 (10th Cir. 2009) (quoting United States v. Brooks, 438 F.3d 1231, 1240 (10th Cir. 2006)). Under
Mr. Crisp waived the “Miranda-in-the-middle” or “question-first” argument because he failed to raise it before the district court. In the motion to suppress his statements, Mr. Crisp argued that the officers had violated his privilege against self-incrimination under the Fifth and Fourteenth Amendments. Although Mr. Crisp couched this argument in terms of a Miranda violation, he asserted only that he did not knowingly and intelligently waive this privilege because he was under the influence of drugs or alcohol at the time of the custodial interrogation. At the suppression hearing, Mr. Crisp proffered no evidence on the “Miranda-in-the-middle” or “question-first” issue and limited his cross-examination to questions regarding whether he had disclosed his marijuana and alcohol use and had affirmatively waived his Miranda rights. Mr. Crisp also presented no argument on this issue at the suppression hearing, stating instead that the interrogation tape “speak[s] for itself.” R., Vol. 2, Doc. 51, at 70. Finally, at oral argument before this court, Mr. Crisp acknowledged that he had not raised the “Miranda-in-the-middle” or “question-first” argument before the district court.
Mr. Crisp also fails to qualify for the narrow exception to this waiver rule. Although
II. Plain-Error Review
“[T]here is no appeal from violation of a waived right.” United States v. Aptt, 354 F.3d 1269, 1281 (10th Cir. 2004). Although
Under the plain-error doctrine, we will reverse the district court‘s judgment only if the party shows (1) an error; (2) that is plain, which means clear or obvious; (3) that affects substantial rights; and (4) that “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Morris, 562 F.3d 1131, 1133 (10th Cir. 2009) (internal quotation marks omitted); accord United States v. A.B., 529 F.3d 1275, 1280 (10th Cir.), cert. denied, U.S. ——, 129 S.Ct. 440, 172 L.Ed.2d 317 (2008). “The plain error standard presents a heavy burden for an appellant, one which is not often satisfied.” United States v. Romero, 491 F.3d 1173, 1178 (10th Cir. 2007).
In this action, Mr. Crisp challenges the district court‘s denial of the motion to suppress his self-incriminating statements regarding his possession and intent to distribute cocaine base. He contends that the district court should have suppressed these statements pursuant to (1) the five-factor test adopted by the plurality opinion in Seibert; (2) the intent-based test adopted by Justice Kennedy‘s concurring opinion in Seibert; or (3) the voluntariness test adopted by Elstad. We need not determine which of these three tests controls here, because we conclude that under any of the tests the district court did not commit clear or obvious error in finding that Mr. Crisp‘s self-incriminating statements were admissible. United States v. Carrizales-Toledo, 454 F.3d 1142, 1151-53 (10th Cir. 2006) (applying all three tests instead of determining whether to apply the Seibert plurality, Seibert concurrence, or Elstad). Thus, Mr. Crisp cannot prevail under plain-error review.
A. Seibert Plurality
Mr. Crisp argues that the self-incriminating statements should be suppressed under the five-factor test adopted by the plurality opinion in Seibert. In Seibert, the plurality held that “[t]he threshold inquiry when interrogators question first and warn later is ... whether it would be reasonable to find that ... the warnings could function ‘effectively’ as Miranda requires.” 542 U.S. at 611-12 (plurality opinion). The plurality established five “relevant facts that bear on whether Miranda warnings delivered midstream could be effective“:
[1] the completeness and detail of the questions and answers in the first round of interrogation, [2] the overlapping content of the two statements, [3] the timing and setting of the first and the second [rounds], [4] the continuity of police personnel, and [5] the degree to which the interrogator‘s questions treated the second round as continuous with the first.
Id. at 615. “These factors, all of which concern the relationship between the first and second interrogations, are intended to aid courts in determining whether an initial, unwarned interrogation operated to ‘thwart Miranda‘s purpose of reducing the risk that a coerced confession would be admitted.‘” Carrizales-Toledo, 454 F.3d at 1150 (quoting Seibert, 542 U.S. at 617).
The second factor also tends to favor the admissibility of the self-incriminating statements because the pre- and post-Miranda statements contain no overlapping content regarding Mr. Crisp‘s possession and intent to distribute cocaine base. Although the law enforcement officers asked Mr. Crisp about his marijuana use in the first and second interrogations, they did not question him about the cocaine base before administering the Miranda warnings. Unlike Seibert, where “there was little, if anything, of incriminating potential left unsaid” after the first interrogation, 542 U.S. at 616, Mr. Crisp provided the officers with “significant new information” regarding the cocaine base in the second, warned interrogation. Carrizales-Toledo, 454 F.3d at 1152; see also United States v. Gonzalez-Lauzan, 437 F.3d 1128, 1138 (11th Cir. 2006) (detecting little overlap under the second Seibert factor where the defendant made “[a]ll the detailed incriminating statements ... after he had waived his Miranda rights“); United States v. Fellers, 397 F.3d 1090, 1098 (8th Cir. 2005) (concluding that the effectiveness of Miranda warnings was not vitiated where the second, warned interrogation “went well beyond the scope of [the defendant‘s] initial statements by inquiring about different coconspirators and different allegations“). The officers also did not ground their post-Miranda questions regarding cocaine base on information gleaned from Mr. Crisp‘s prior marijuana use. Cf. United States v. Pacheco-Lopez, 531 F.3d 420, 428 (6th Cir. 2008) (concluding that the second Seibert factor “support[ed] our finding that the warning was ineffective,” where “the question regarding the transportation of cocaine was not anomalous ... but was the next logical question based on the earlier statements“).
The third and fourth factors appear to weigh against the admissibility of the self-incriminating statements. In particular, the first and second interrogations occurred in the same interview room. See Aguilar, 384 F.3d at 525 (holding that
Finally, the fifth factor tends to favor the admissibility of the self-incriminating statements because the law enforcement officers did not treat the interrogations as continuous with respect to the cocaine base. The officers used none of the pre-Miranda statements from the first interrogation to elicit the post-Miranda statements about the cocaine base in the second interrogation. See Seibert, 542 U.S. at 605, 616-17; Carrizales-Toledo, 454 F.3d at 1152; Fellers, 397 F.3d at 1098. Although Corporal Francetic referred back to Mr. Crisp‘s pre-Miranda admission regarding marijuana use while questioning him during the second interrogation about the marijuana found near the traffic stop, Mr. Crisp was not charged with a marijuana offense.
Thus, under the five-factor test of the Seibert plurality opinion, the record provides strong support for the view that the Miranda warnings functioned effectively in this case. Unlike in Seibert, the efficacy of the Miranda warnings would appear not to have been materially called into question because Mr. Crisp had not confessed to the possession and intent to distribute cocaine base prior to receiving the Miranda warnings. Cf. Seibert, 542 U.S. at 613 (“[T]he sensible underlying assumption is that with one confession in hand before the warnings, the interrogator can count on getting its duplicate....” (emphasis added)). Based on this record, we may conclude with confidence that the district court‘s ruling denying Mr. Crisp‘s motion to suppress did not amount to clear or obvious error.
B. Seibert Concurrence
Mr. Crisp also argues that the statements should be suppressed under Justice Kennedy‘s concurring opinion in Seibert. Under the narrower concurring opinion, Justice Kennedy proposed an intent-based test that would apply only when “the two-step interrogation technique was used in a calculated way to undermine the Miranda warning.” Id. at 622 (Kennedy, J., concurring). “When an interrogator uses this deliberate, two-step strategy, ... postwarning statements that are related to the substance of prewarning statements must be excluded absent specific, curative steps.” Id. at 621. If the interrogator has not deliberately violated Miranda, “[t]he admissibility of postwarning statements should continue to be governed by the principles of Elstad.” Id. at 622.
We conclude that, under Justice Kennedy‘s intent-based test, the district court did not commit clear or obvious error by refusing to grant the motion to suppress.
C. Elstad
If neither Seibert test applies to this action, Mr. Crisp argues that the statements should be suppressed as involuntary under Elstad. Under Elstad, the admissibility of a post-Miranda statement turns on whether it was made knowingly and voluntarily. 470 U.S. at 309, 318. “[A]bsent deliberately coercive or improper tactics in obtaining the initial statement, the mere fact that a suspect has made an unwarned admission does not warrant a presumption of compulsion” as to any post-Miranda statement. Id. at 314. The Court instead held that “[a] subsequent administration of Miranda warnings to a suspect who has given a voluntary but unwarned statement ordinarily should suffice to remove the conditions that precluded admission of the earlier statement.” Id.
Under the voluntariness test of Elstad, the district court did not commit clear or obvious error in denying the motion to suppress. As an initial matter, we must determine whether Mr. Crisp‘s pre-Miranda statement was voluntary. “Courts typically consider five factors in a voluntariness inquiry: (1) the age, intelligence, and education of the defendant; (2) the length of [any] detention; (3) the length and nature of the questioning; (4) whether the defendant was advised of [his or] her constitutional rights; and (5) whether the defendant was subjected to physical punishment.” Carrizales-Toledo, 454 F.3d at 1153 (alteration in original) (internal quotation marks omitted). Mr. Crisp was thirty-nine years old at the time of his arrest and was a high-school graduate. He made the initial self-incriminating statement regarding his recent marijuana use within a few hours after his initial detention and within a few minutes of the start of the interrogation. He also made this self-incriminating statement in response to a question about his female companion‘s marijuana use and in a relatively cordial interrogation environment. Although Mr. Crisp was not read his Miranda rights, he later acknowledged a familiarity with the criminal-justice system by stating that “this ain‘t my first rodeo.” Def.-Aplt.‘s Addendum of Exs., Ex. 3; see id., Ex. 4 at 3. Mr. Crisp also was not subjected to any physical punishment or threats of punishment. Based on the totality of the circumstances, the pre-Miranda statements clearly appear to be voluntary. Thus, if Mr. Crisp‘s pre-Miranda statements were voluntary, the subsequent administration of the Miranda warnings
Mr. Crisp knowingly and voluntarily waived his Miranda rights. Corporal Francetic advised Mr. Crisp of his rights and asked him whether he understood them. Mr. Crisp responded affirmatively. The officers also asked Mr. Crisp several follow-up questions to ensure that he possessed the intelligence and sobriety to understand those rights. As noted above, Mr. Crisp even acknowledged a familiarity with the criminal-justice system, claiming that “this ain‘t my first rodeo.” Id., Ex. 3; see id., Ex. 4 at 3. Finally, after Mr. Crisp discussed his connection to the cocaine base, the officers had him read and sign a written Miranda waiver. Accordingly, under Elstad‘s test for admissibility, the district court did not commit clear or obvious error in denying the motion to suppress.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court‘s order.
JEROME A. HOLMES
UNITED STATES CIRCUIT JUDGE