Lead Opinion
Appellant Master Giddins was convicted of bank robbery and conspiracy to commit bank robbery following a jury trial. Part of the evidence used at trial was a videotaped statement Giddins gave to police during the investigation into the crime. On appeal, Giddins argues that the statement was coerced, and that he did not voluntarily waive his Fifth Amendment rights. We agree, and find that harmless error cannot save the conviction in light of this constitutional trial error. As a result, we reverse Giddins’s conviction. We need not address the additional issues Giddins has raised regarding sentencing.
I.
A.
Over the course of three days in September 2013, three different bank robberies were committed in and around Baltimore, Maryland. The first robbery occurred on September 25, 2013, when someone wearing women’s clothing and a black wig entered the M& T Bank in Baltimore, Maryland. That person handed the teller a note stating that the person had a bomb, and demanded that money be placed into a black and white polka dot cosmetic bag, which was handed to the teller. After obtaining the money, the robber fled the bank, was driven away in a waiting vehicle, and discarded a GPS tracker the teller had placed in the bag, to which wig fibers were attached. Police later determined that the robber was Appellant Master Giddins, that the getaway car was his silver Ford Fоcus, and that the getaway driver was Czekiah Fludd.
The next day, September 26, 2013, Gid-dins lent his car to Fludd and Ashley Fitz, whom Giddins was dating at the time. Fitz and Fludd drove to an Exxon station to obtain blank lottery tickets, on which one
The following day, September 27, 2013, Giddins again lent his car to Fitz and Fludd. They, along with a third person, Alexis Chandler, robbed the Baltimore County Savings Bank in unincorporated Baltimore County, Maryland. Fitz and Chandler both entered the bank wearing wigs, gave notes that they had a bomb, and demanded money. Fitz was given a dye pack along with her money, which exploded on the way back to the car. Fitz threw the bag out of the window, and additional items were discarded. When the three women went back to try to obtain the bags, they were stopped for matching the description of the bank robbery suspects. They were ultimately arrested, and the car was seized.
After their arrest, Fitz and Chandler provided statements to the police and admitted involvement in the September 27th robbery. Fitz additionally admitted to participating in the September 26th robbery and implicated Giddins. Fitz told police that the September 26th robbery was committed using Giddins’s car, that Giddins had been present when both robberies were planned, and that Giddins had been involved in the September 25th robbery.
Based on the statements and evidence, Detective William Taylor of the Baltimore City Police Department applied for and obtained a warrant for Giddins’s arrest from a Commissioner of the District Court of Maryland for Baltimore City. See Gov’t Suppl. Authority Ltr., Attach. 1, ECF No. 65-2 [hereinafter, the “Warrant”]. The Warrant was issued on October 3, 2013 at 10:20 am. Id.
B.
On or about October 4, 2013, Giddins was informed by Baltimore County Police that they had his car and that it had been used in a bank robbery. On the morning of October 4th, Giddins went to Baltimore County Police headquarters in order to retrieve his car. Upon arrival, Giddins was taken to an interview room by Detective Steve Morano of Baltimore County Police Department and an unknown member of the department. Giddins’s interactions with police officers from the time he entered the interrogation room were recorded on video.
1.
After entering the room at 10:17:35 am and sitting down, Det. Morano copied down Giddins’s license information. At 10:17:58, the unknown member of the department left the room through the door behind Giddins, which was also the door through which the three had entered the room. Upon leaving, he audibly locked the door, causing Giddins to turn his head toward the door.
Det. Morano asked Giddins to whom he lent his car, and Giddins replied that he lent it to Fludd. Det. Morano informed Giddins that Fludd was locked up, and continued asking details about when and why Giddins lent Fludd his car, the frequency with which Giddins would lend Fludd his car, and whether Fludd was going through any hard times. At 10:20:55, Giddins asked Det. Morano, “Am I in trouble?” to which Det. Morano replied, “No, you’re here getting your car right?” and went on to explain that he was taking notes for a report because the car was used in a crime. At 10:21:25, Det. Morano got up to leave and informed Giddins that he had to complete some paperwork and would be right back. After checking that the door behind Giddins was in fact locked, Det. Morano left through the second door.
At 10:22:56, Det. Taylor from Baltimore City Police entered the room through the second door, explained that Det. Morano had become busy with something else, and that Det. Taylor would- be taking over.
Det. Taylor produced a Miranda
At the bottom of the form, after reading each individual right, the form required a full signature after the statement, “I have been advised of and understand my rights. I freely and voluntarily waive my rights and agree to talk with police without having an attorney present.” Det. Taylor asked at 10:30:31, “You don’t have any questions with us asking about your car, do you?” Giddins responded, ‘Tes. Is this the procedure for me to get my car back? Like—cause I feel like—,” and Det. Taylor responded, ‘Yeah, we do, but like I said, your car was used in crimes that we need to—we need to dig in and find out what’s going on with your—with these three girls, what your relation with them is, how they came in contact with your car, all that stuff.” Giddins replied that he understood, and Det. Taylor asked, “Do you mind explaining all that stuff to us?”
After then stating that he “d[id]n’t know any of that stuff,” Giddins asked at 10:30:36, “That’s what I’m asking, like, is this, like, the procedure for me to get my car back?” to which Det. Taylor responded, “Yeah—in order for us to ask you questions, because the vehicle was used in a crime, by law, we have to go over these rights. If we start asking you stuff and you don’t want to talk to us, then don’t talk to us. But we’re just trying to figure out some issues.” Giddins asked again, “But do I still get my ear?” and Det. Taylor responded, “Before I release the car to you, I would like to know some answers.... I would like to know some answers before we release your car back to you.” Giddins said, “That’s what I’m asking,” and then Det. Taylor told him, “We’ll explain everything to you.”
Giddins then asked Det. Taylor, “I’m not in trouble or anything, am I?” Det. Taylor answered, “Not at this point, no. We’ll find out what’s going on. So long as you don’t have—you know—you don’t sit there and tell me you were hiding in the trunk and you escaped when the police pulled them over, no. Right? You weren’t hiding in the trunk, were you?”
When Giddins smiled and shook his head, Det. Taylor said, “Then what do you have to worry about?” Giddins said, “I don’t have anything to worry about, I just don’t like how I feel like I’m being interrogated—and y’all just—” and Det. Taylor interrupted, “You’re not being interrogated, you’re free—” to which Giddins interjected, ‘You gotta understand what I’m saying.” Det. Taylor told him, “I know, I understand you, you’re nervous. Because your car was used in a crime. I’d be nervous, too.”
Giddins then said, “I didn’t do anything, and it’s like—” and Det. Taylor interrupted again, “Did I say you did anything?” Giddins responded, “No, I’m like, I’m in a closed room, two guys are here, they locked the doors—” and Det. Taylor, indicating to the door behind him and farthest from Giddins, replied, “The doors aren’t locked, the doors are wide open.” Giddins then grabbed the door handle immediately behind him and showed how the knob was locked. Det. Taylor said, “Well that one is. You can’t get in on the other side of that door. Why you think we have to come in that door?” indicating to the one unlocked door. Giddins said, “But you understand what I’m saying?” Det.' Taylor retorted, “Are you handcuffed?” Giddins responded, “No, but you understand—” and Det. Taylor said, “Oh, I understand you.” Giddins then signed the Miranda waiver at 10:32:10.
During the next fifteen minutes, the questioning continued. Det. Taylor asked Giddins about where he was during each of the three robberies, his relationship with Fludd, Fitz, and Chandler, and other topics. Giddins responded that he was meeting with his parole officer during the September 25th robbery. Det. Taylor periodically asked questions that required Gid-dins to look at his phone, and each time after Giddins finished, Det. Taylor instructed him to put his phone back up and away from him. Giddins also told Det. Taylor that he had been in trouble at work two days previously for using his phone while at work. Additionally, Giddins told Det. Taylor that he had been off from work on September 23rd and 24th, but at work on September 25th.
Finally, at 10:47:31, Det. Taylor showed Giddins a surveillance photo of the robber from the September 25th robbery and told Giddins that he was the robber. When Giddins denied that, Det. Taylor laid out the case for why he suspected Giddins of bank robbery. At 10:50:00, Giddins invoked his Fifth Amendment right to counsel by stаting, “No further questions,” and asking for a lawyer, at which point questioning immediately ceased. Det. Taylor seized Giddins’s cell phone at 10:50:06, prying it from Giddins’s hands and telling him “I’ll take that.” At 10:50:09, Det. Taylor formally informed Giddins that he was under arrest for bank robbery. At 10:50:15, Det. Taylor cuffed Giddins, and at 10:50:36, Det. Morano re-entered the room through the previously locked door. Giddins was taken out of the interrogation room to be taken to Baltimore City jail at 11:11:37, at which point the videotape stops.
C.
Giddins was indicted by a federal grand jury in the District of Maryland on three counts of unarmed bank robbery, in violation of 18 U.S.C. § 2113(a) and (f), and one count of conspiracy to commit bank robbery, in violation of 18 U.S.C. § 371. Gid-dins moved to suppress the statements given to police before trial began. A hearing was held at the start of the trial before jury selection began, and the district court denied the suppression motion by written memorandum opinion. See United States v. Giddins,
During the course of trial, the video was played for the jury, and the government referred to the video and the statements Giddins made in it during both opening statement and closing argument. The jury convicted Giddins on one count of bank robbery for robbing the M&T Bank on September 25th and one count of conspiracy to commit bank robbery, but acquitted him of the other two bank robbery counts. Giddins timely noted this appeal following his sentencing, and we have jurisdiction pursuant to 28 U.S.C. § 1291.
II.
“When reviewing the district court’s denial of a motion to suppress, we
III.
Although Giddins frames the issue in his appeal primarily as whether the statements were voluntary, and discusses the voluntariness of the Miranda waiver only secondarily, in actuality it is the Miranda waiver issue that is decisive in this case. Indeed, all arguments by both Gid-dins and the government are directed toward the remarks made by police in the immediate timeframe of the Miranda waiver. Although Giddins argued below that the pre-waiver statements were also involuntary, that argument is not clearly raised before us here. Further, most of the pre-waiver statements appear to be regarding simple biographical booking information, to which no special concerns under the Fifth Amendment apply. See Pennsylvania v. Muniz,
A.
Concerns under Miranda only arise when a defendant is in custody and subjected to interrogation. Montejo v. Louisiana,
The government first submits that Giddins was never in custody prior to his formаl arrest, so no warnings under Miranda were even necessary. We disagree. “When deciding whether a defendant not under formal arrest was in custody—and thus if the Miranda requirements apply—a court asks whether ‘under the totality of the circumstances, a suspect’s freedom of action was curtailed to a degree associated with formal arrest.’ ” United States v. Hashime,
In concluding that Giddins was not in custody, the district court made findings of fact to support that conclusion:
Giddins voluntarily entered the police station to obtain the return of his car. Giddins was not in handcuffs, and one door was unlocked. Two investigators were present; one asked questions while the other remained silent. No weapons are visible in the recorded interview. Detective Taylor’s tone was nonthreatening. Although an arrest warrant had issued, Giddins was apparently unaware of this fact and, thus, it does not alter the objective inquiry.
Giddins,
These findings are not clearly erroneous, and thus guide this appeal. However, the findings of the district court are not complete on this, and fail to paint the full picture. It is true that one door was unlocked in the interrogation room, but it was the door past the questioning detective. The door immediately behind Giddins was locked, so in order to leave the room, Giddins would have had to walk past Det. Taylor. Additionally, at least twice during the interrogation, Det. Taylor moved Gid-dins’s phone away from Giddins. Although Det. Taylor did tell Giddins that he was free to leave, “such a statement ‘is not talismanic or sufficient in and of itself to show a lack of custody.’” Hashime,
Finally on the custody inquiry, there is the issue of Giddins’s car. The district court rejected the argument, repeated here on appeal, that Giddins was not able to leave the interrogation room because he believed that if he terminated the interview, he would not have his car returned to him. The court found “[t]hat Giddins may have believed that terminating the interview would prevent the return of his car does not mean that Giddins felt unfree to leave.” Giddins,
As stated above, the custody inquiry is an objective one and does not consider “the subjective views harbored by either the interrogating officers or the person being questioned.” J.D.B. v. North Carolina,
B.
Having concluded Miranda warnings were necessary, we now turn our attention to the Miranda waiver. Giddins submits that both the questioning and waiver were involuntary and the result of coercion. We agree.
Coercive police activity is .a necessary finding for a confession or a Miranda waiver to be considered involuntary. United States v. Cristobal,
“[Coercion can be mental as well as physical, and the blood of the accused is not the only hallmark of an unconstitutional inquisition.” Arizona v. Fulminante,
1.
Giddins argues that the police engaged in economic coercion by forcing him to “choose between surrendering his Fifth Amendment rights or incurring adverse economic consequences.” Appellant’s Br. at 14. He bases his argument on two Supreme Court cases: Garrity v. New Jersey,
In Garrity, four police officers were investigated in relation to allegations of ticket fixing in certain boroughs of New Jersey.
The Court in evaluating the situation held that the statutory scheme was coercive:
The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, likе interrogation practices we reviewed in [Miranda,384 U.S. at 464-65 ,86 S.Ct. 1602 ,] is “likely to exert such pressure upon an individual as to disable him from making a free and rational choice.” We think the statements were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions.
Garrity,
A decade later, in Cunningham, a similar situation arose. Under New York law, a political party officer was required to testify about the conduct of his or her office, and failure to do so would result in immediate termination and a five-year prohibition on holding any other party or public office. Cunningham,
The Court explained that its prior cases up until that point “ha[d] established that a State may not impose substantial penalties because a witness elects to exercise his Fifth Amendment right not to give incriminating testimony against himself.” Id. at 805,
Giddins here argues that Garrity and Cunningham control, because the police threatened to indefinitely retain his car if he failed to sign the Miranda waiver and answer their questions. The government argues contrarily that a delay in returning Giddins’s car is not the equivalent of the threatened economic coercion in Garrity and Lefkowitz; however, we cannot agree. We must consider the realities of the circumstances, and compare apples to apples. No one contends that Giddins was enjoying a position of public trust such as the officers in Garrity or the political party official in Cunningham. But we cannot consider the threatened economic con
When Giddins asked whether filling out the Miranda waiver and answering the officers’ robbery-related questions was the normal procedure for obtaining his car, Det. Taylor answered in the affirmative. It does not matter that Det. Taylor’s answer included a truthful statement—that in order to question Giddins they needed him to sign the Miranda waiver. What matters is how a reasonable person would have understood the responses to the questions asked; Det. Taylor’s responses indicated that if Giddins failed to sign the Miranda waiver and answer questions, Giddins would not have had his car returned to him. As such, it was unduly coercive.
2.
Giddins next argues that the officers engaged in unfair coercion by lying to him about whether or not he was in trouble during the course of the interview. The government submits that Det. Taylor never lied to him, but merely omitted the full story. We think the government draws too fine a line between what is permitted and what is not, and we agree with Giddins that Det. Taylor’s actions were improper.
“Ploys to mislead a suspect or lull him into а false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s, concerns.” Illinois v. Perkins,
However, as our sister circuits have acknowledged, “failure to inform [a] defendant that he was the subject of the investigation ... [when the] defendant inquired about the nature of the investigation and the agents’ failure to respond was intended to mislead” results in affirmative deceit. United States v. Serlin,
Giddins inquired twice whether he was in trouble—first to Det. Morano while Det. Morano was taking notes, and later to Det. Taylor when Giddins was presented with the Miranda waiver. Det. Morano responded, “No, you’re here getting your car, right?” Video at 10:20:58. Det. Taylor told him, “Not at this point, no.” Video at 10:31:10. The government argues that these responses by the officers were truthful.
At the time Det. Taylor entered the room, he had an arrest warrant in hand for Giddins. More to the point, Det. Taylor was the affiant on that warrant. And as acknowledged by the government, there is no evidence in the record to suggest that Det. Taylor was not going to execute that arrest warrant during his interview with Giddins. See Oral Argument at 21:27, 23:18, United States v. Giddins, No. 15-4039, (4th Cir. argued Jan. 25, 2017), http://coop.ca4.uscourts.gov/OAarchive/mp 3/15-4039-20170125.mp3.
We have no doubt that Giddins was “in trouble” when he asked both Det. Morano and Det. Taylor whether he was. The fact that an arrest warrant existed for Giddins and that Det. Taylor knew about and possessed the warrant meant that Giddins was, in fact, “in trouble” from the moment he walked into the police station. And the government has not produced evidence sufficient to carry its burden that would suggеst that Det. Morano was not aware of the warrant. Once an arrest warrant issues, there is no question that the person named in that arrest warrant is “in trouble.” Therefore, there can be no question that Det. Morano and Det. Taylor affirmatively misled Giddins as to the true nature of the investigation by failing to inform him that he was the subject of the investigation. This form of deceit thus constitutes coercion.
It is not enough, however, to simply find coercion. As mentioned above, the coercion must rise to a level such that “the defendant’s will has been overborne or his capacity for self-determination critically impaired.” Braxton,
We concluded in Section III.B.l, supra, that Giddins was in custody, although not subject to formal arrest at the time of the interview. Further, the interview took place in a police station under false pretenses that Giddins was required to submit to questioning in order to have his vehicle returned to him, and that he was not “in trouble.” Although the interview was of short duration, the setting and details of the interrogation give us grave concerns.
The government argues that Gid-dins was not new to the criminal justice system, having garnered a number of previous convictions,
Accordingly, we conclude that Giddins’s Miranda waiver and statements were involuntary and the result of police coercion.
C.
Having found Giddins’s statements to the police involuntary, we evaluate the conviction for harmless error as a constitutional trial error. Fulminante,
The Court in Fulminante identified three considerаtions in finding whether admission of statements given by a
The government has failed to meet its burden here, arguing the incorrect test and merely citing to the other evidence in the case as overwhelming.
Even assuming the government had tried to meet its burden, it cannot here. Looking to the record, the government previewed Giddins’s statements to the police in its opening statement, telling the jury that Giddins lied to the police about his whereabouts during the September 25th robbery—the only robbery in which he was an active participant—which damaged Giddins’s credibility before the jury. J.A. 131-32. Also on the first day of trial, during Det. Taylor’s testimony, the video was played by the government, and Det. Taylor was asked to narrate and describe what was happening. J.A. 194-97. On the second day of trial, the government called two witnesses to refute Giddins’s alibi for
During closing arguments, the government relied on Giddins’s repeated use of his phone in the videotape, as well as Giddins’s statement that he had been reprimanded at work for using his phone to prove that Giddins’s cell phone was always with him in order to corroborate the cell site location information and refute any contention that the phone did not accurately represent Giddins’s location at a given time. J.A. 615-16. Finally, at the end of the closing, the government emphasized that “Mr. Giddins lied” when he provided an alibi to the police, and reminded the jury of the witnesses who came in to refute the alibi. J.A. 622-23. The government specifically told the jury, “The Defendant lied to create an alibi for the day of the robbery so that he wouldn’t be caught, and he hoped that no one would be able to prove him wrong.” J.A. 623.
As the Fifth Circuit has recognized, where “the government’s closing argument relied on the very evidence that offends [a constitutional right], we cannot see how the government can conclusively show that the tainted evidence did not contribute to the conviction.” United States v. Jackson,
IV.
For the foregoing reasons, we conclude that Giddins’s waiver of his rights pursuant to Miranda v. Arizona,
REVERSED.
Notes
. The video is contained in the record as a separate attachment to the J.A, with a cover sheet contained at J.A. 64. The government on request of the Court submitted a transcript of the video. Gov’t’s Ltr. re: Transcript Request, Attach., ECF No. 63-2. Although the Court is appreciative of the government's transcript, it was not always entirely accurate based on the Court’s own viewing of the video. As such, quotes from the video contained in this opinion are based on both the government’s submitted transcript and corrections from the Court’s own review. Citations to quotes are therefore given by time stamp rather than citation to a page in the transcript.
. At the time, it was unknown to Giddins that Det. Taylor and Det. Morano were from different agencies.
. Kim was later revealed to Giddins to be FBI Special Agent Sung Kim.
. Miranda v. Arizona,
. Giddins also moved to suppress cell site location information (CSLI) obtained from his cell phone without a warrant, suppression of which was also denied. Giddins appeals that issue to us as well, and this appeal was held in abeyance pending this Court’s decision in United States v. Graham,
. In disagreeing with our conclusion, our dissenting colleague cites to cases where each of the factual circumstances discussed above was alone insufficient to transform an encounter with the police into a custodial situation. We do not disagree that individually each of these factual circumstances would not suffice to establish custody. However, to properly perform the totality of the circumstances analysis, we must consider how the combina
. Our dissenting colleague faults us for relying on this point, and argues that this is not in the record and thus not preserved for appeal. See post at 891-93. We disagree. Although Giddins did not flesh this point out with perfect clarity in the district court below, his attorney made clear to the district court that there was "a certain amount of leveraging of the return of the car as well.” J.A. 109; see also J.A. 53 (“The Detectives ... us[ed] Mr. Giddins’ interest in getting his car returned as leverаge.”). Further, Giddins expressly made this argument in his opening brief to this Court. See Appellant's Br. at 16 ("Mr. Giddins was faced with losing his vehicle, which was his means of maintaining his livelihood, unless he answered the detectives’ questions.”); id. at 17 ("His vehicle enabled him to travel to and from his current job.”). We believe this is enough for Giddins to preserve the issue and enables him to argue it here. Finally, even if not adequately preserved below, the government did not argue before this Court that Giddins had in any way waived this argument in its opposition brief—a position the government clearly knew how to take. Compare Ap-pellee’s Br. at 18-19 (responding to the economic coercion argument) with id. at 25-26 (arguing that Giddins waived his ability to object to his career offender designation). In such circumstances, “[w]e are entitled to excuse a defendant's waiver in the district court if the government fails to properly and timely raise a waiver contention in its brief.” United States v. Palomino-Coronado,
. The government's brief does not actually address the specifics of Det., Morano’s response to Giddins and focuses almost exclusively on Det. Taylor's response. See Appel-lee’s Br. at 19-20. However, because the government’s argument on this point essentially turns on the definition of "trouble” and refers to the conduct of the "officers,” we will read the government’s brief to argue that Det. Morano's response was also truthful. If the government intended to make a different argument as to Det. Morano, any such argument is waived.
. The government argues specifically that Giddins "had completed a federal sentence for arson and at the time of his sentencing for the instant bank robbery, had a criminal history category of IV even before application of the career offender enhancement.” Appellee's Br. at 22 (citations omitted). Although this information was not before the district court at the time of the suppression hearing, we may consider it in deciding whether to affirm the court’s pre-trial denial of a motion to suppress. United States v. Gray,
. The Court in Fulminante did note a distinction between "statements by a defendant [that] may concern isolated aspects of the crime or may be incriminating only when linked to other evidence” and "a full confession in which the defendant discloses the motive for and means of the crime [that] may tempt the jury to rely upon that evidence alone in reaching its decision.”
. The government’s argument consists of one paragraph, which in short says "[assuming arguendo that either Giddins’s statement or his Miranda waiver had been involuntary, he suffered no prеjudice from the introduction of the video recording of his questioning. The government had abundant evidence of Giddins’s guilt even without the admission of his statements.” Appellee's Br. at 24.
.To the extent the government contends that the standard from Thompson is no longer applicable, we note that the holding in Fulminante did not call into question the holding of Thompson, nor has any subsequent en banc opinion of this court. See United States v. Collins,
Dissenting Opinion
dissenting:
The majority holds that the district court erred by allowing the Government to introduce videotaped statements that Gid-dins made to police because they occurred during the course of a custodial interrogation after an involuntary Miranda waiver. Because I conclude that the majority misapplies the relevant case law and fails to adhere to the record, I respectfully dissent.
I.
The majority first errs by determining that Giddins was “in custody” and, therefore, that Miranda warnings were necessary before the officers could question him. Miranda warnings are only required in “custodial interrogations.”
Here, the circumstances show that a reasonable person would have understood that he could choose not to answer the detectives’ questions and leave. Consequently, a reasonable person would have concluded that he was not in custody.
It is important to remember how the interrogation came about: Giddins went to the police station of his own volition because he wanted to retrieve his vehicle, which the police had impounded because it had been used in several bank robberies. Giddins, not the police, initiated the contact because he wanted something from them. From the outset, then, a reasonable person would understand that because he was at liberty to come to the police station for his own purposes, he was equally at liberty to leave. See, e.g., Davis v. Allsbrooks,
Nevertheless, Giddins contends—and the majority agrees—that he was not free to leave because the police told him they needed to ask him a few questions before he could leave with his vehicle. The district court concluded that this argument conflated the issue of whether Giddins could leave with his car with whether he could end the interview and simply leave the police station. J.A. 79-80. Without elaboration or citation to authority, the majority rejects that conclusion as a “distinction without a difference.” Majority Op. 880. To the contrary, that distinction properly centers the analysis on the constitutional inquiry: whether the interviewee can decline to answer questions and walk away from the encounter with the police. See Florida v. Bostick,
That conclusion remains true even though, as it turned out and unknown to Giddins, the police officers also wanted to talk to him. In fact, his co-conspirators had implicated Giddins in the bank robberies
In addition to Giddins’ voluntary appearance at the police station to discuss the return of his vehicle, no other aspect of the encounter would have caused a reasonable person to conclude he was not free to leave. As the district court found: “Giddins was not in handcuffs, and one door was unlocked. ... No weapons are visible[.] Detective Taylor’s tone was nonthreatening.” J.A. 79. See, e.g., United States v. Hargrove,
The majority points to additional facts that have limited relevance to the pertinent inquiry in an attempt to transform Giddins’ questioning into a custodial interrogation. For example, it points out that the open door to the interrogation room was “past the questioning detective” and that Giddins would have had to “walk past” the detective in order to exit through it. Majority Op. 879-81. Though our precedent acknowledges that an officer’s position in a room relative to a suspect may be relevant to the custody determination when additional circumstances are present, it also holds that an officer’s “mere presence” between the suspect and an exit is not enough to transform the encounter into a custodial one. See Hargrove,
Moreover, by affording weight to this factor, the majority comes dangerously close to equating every interview in a police station as per se “custodial.” That course clearly contradicts precedent. See, e.g., California v. Beheler,
The majority also observes that Detective Taylor twice moved Giddins’ phone away from him during the questioning as relevant to a custody inquiry. See Majority Op. 880. But the majority’s focus on Gid-dins’ ability to consult his phone masks the real inquiry. The salient issue is not whether the police momentarily moved Giddins’ phone or asked him to turn it off, but whether a reasonable person would have believed he could stop answering questions and terminate the interview. Here, Giddins asked if he could use his phone, and Detective Taylor said “yes,” but then mentioned that they would put their cell phones aside on the table in a moment. Video at 10:27:00-10:27:10.
For all these reasons, I conclude that Giddins was not “in custody” for Miranda purposes. That conclusion does not end the inquiry, though, because even when Miranda warnings are not required, the Government cannot introduce at trial statements procured in violation of the Due Process Clause of the Fifth Amendment. See, e.g., United States v. Cristobal,
II.
The same inquiry that informs whether a Miranda waiver was voluntary also in
The voluntariness of a waiver looks to “the totality of the circumstances, including the characteristics of the defendant, the setting of the interview, and the details of the interrogation.” United States v. Holmes,
A.
The majority concludes that Giddins only signed the Miranda waiver because the police “engaged in economic coercion” akin to what occurred in Garrity v. New Jersey,
In Lefkowitz, the Supreme Court held unconstitutional a state statute that forced political party officers to testify in certain proceedings (i.e., “waive [their] constitutional privilege against compelled self-incrimination”) or be removed from office and barred for five years from holding other party or public offices.
Lefkowitz and Garrity are inapposite here for at least two reasons. First, neither case directly considered the effectiveness of a Miranda waiver. Second, each case considered a statute that required an individual to make a direct choice between waiving his right against self-incrimination, on the one hand, and knowing he would be removed from a particular livelihood (party office, in Lefkowitz, and public office, position, or employment, in Garrity), on the other. There’s simply no comparison between the consequences in those cases and Giddins’ situation.
To overcome this false equivalency, the majority attempts to elevate the potential economic impact of any delay in recovering one’s vehicle to the certаin and incomparable effect of losing one’s livelihood. The majority then compounds its error by asserting “facts” that are simply not in the record. See, e.g., Fed. R. App. Pro. 10(a); United States v. Kennedy,
Denying Giddins access to his car for an undetermined time simply has no correlation to the compulsive effect that animated the Supreme Court’s conclusions in Lefkowitz and Cunningham.
B.
The majority also concludes that the detectives “affirmatively misled Giddins as
Looking to the complete record, Giddins asked Detective Morano if he was in trouble because Morano was taking notes, as evidenced by the interview video and Mor-ano’s fuller statement: “No, you’re here getting your car, right? No, I’ve got to take notes for my report. I mean, you understand that the car was used in a crime, right?” Cf. Video 10:20:43-10:21:11. The exchange with Detective Taylor was even more comprehensive:
Taylor: ... [Y]our car was used in crimes, we need to dig in and find out what’s going on with your, with these three girls, what your relationship with them is, how they came in contact with your car, all that stuff. Understand that?
Giddins: Yes, I understand that. What I’m asking—
Taylor: OK.... Do you mind explaining that stuff to us?
Giddins: I don’t know any of that stuff.
Taylor: Well we don’t know that until I ask you, right?
Giddins: Right, but I just told you. That’s what I’m asking, like. Is this, like, the procedure to get my ear back?
Taylor: Yes, in order for us to ask you questions because the vehicle was used in a crime, by law, we have to go over these rights.
Giddins: Right.
Taylor: If we start asking you stuff and you don’t want to talk to us, then don’t talk to us.
Giddins: OK.
Taylor: But we’re just trying to figure out some issues.
Giddins: But I can still get my car?
Taylor: There is, before I release the car to you, I would like to know some answers.
Giddins: That’s what I’m asking. That’s what I’m asking.
Taylor: I would like to know some answers before we release your car back.
Giddins: That’s what I’m asking. Yea, that’s all.
Taylor: We’ll explain everything to you.
Giddins: OK, I’m not in trouble or anything, am I?
Taylor: Not at this point, no. We’ll find out what’s going on. So long as you don’t have, you know, sit there and tell me you were hiding in the trunk and you escaped when the police pulled them over, no.
Giddins: Hiding in the trunk—
Taylor: You weren’t hiding in the trunk were you?
Giddins: I was at work.
Taylor: OK, then what do you have to worry about?
Video at 10:30:08-10:31:24.
Viewing the exchanges in context focuses the character of the isolated statements the majority relies on and shows that the totality of the detectives’ responses did not improperly compel or coerce Giddins to speak with them. See Perkins,
What’s more, the Supreme Court has never considered whether an affirmative representation about the scope of an interrogation would render a Miranda waiver involuntary. Colorado v. Spring,
All this is to say, even if part of the detectives’ responses suggested Giddins was not in trouble, that’s not enough to create a constitutional problem. Here, the detectives’ combination of truthful statements and passing reassurances did not rise to the level of deceptiveness that implicated Giddins’ due process rights. See United States v. Holmes,
C.
Even assuming that the majority is correct that either maintaining possession of Giddins’ vehicle or reassuring Giddins gave rise to concerns about coercion, those acts still did not violate Giddins’ due process rights because the totality of the circumstances demonstrate that they did not render his Miranda waiver involuntary. To be sure, Giddins faced a choice, but it remained a voluntary choice so long as the detectives did not cause his “will [to] have been overborne and his capacity for self-determination critically impaired.” See Schneckloth v. Bustamonte,
Based on the full record, I conclude that Giddins voluntarily answered the detectives’ questions. Giddins was not in custody, but rather came voluntarily to the police station desiring to recover his vehicle. He then learned that the police intended to question him about how that vehicle came to be used in a bank robbery, including his relationship with the women who had been arrested. Unlike many subjects of interrogation whose statements are nonetheless deemed voluntary, Giddins knew—and, indeed, anticipated—the true subject matter of the interview. And although the detectives did not tell Giddins he was a suspect or that they had an arrest warrant for his arrest, nothing required them to alert Gid-dins to either fact as part of his decision-making process. See Connelly,
In sum, nothing about the setting, the detectives’ statements, or Giddins’ background suggests that his will was overborne or that his capacity for self-determination was substantially impaired at the time he signed the Miranda waiver and decided to continue talking to police. Instead, the record shows that Giddins made an “essentially free and unconstrained choice” to waive his rights and speak with the detectives. See Abu Ali,
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For all these reasons, I conclude the majority fails to assess correctly the relevant analysis for when an individual’s voluntary statements to law enforcement can be used against him at trial. Therefore, I respectfully dissent and would affirm the judgment of the district court.
. It is undisputed that Giddins was “interro- • gated.”
. For the reasons discussed in the voluntariness section below, infra II.A, any influence the police had because of the impounded car does not rise to a level that would implicate Giddins' Fifth Amendment rights. See United States v. Jamison,
. While the majority correctly quotes our precedent that "such a statement is not talis-manic or sufficient in and of itself to show a lack of custody,” Majority Op. 880 (citing United States v. Hashime,
. I adhere to the majority opinion’s approach of citing to the time stamp for the video exhibit. Cf. Majority Op. 875 n.1.
. Giddins does not argue that his waiver was made unknowingly, as the Miranda waiver set out his constitutional rights.
. To be sure, Giddins asserted in passing that the police used his "interest in getting his car returned as leverage” for talking to them. J.A. 53. But neither his motion to suppress nor his memorandum in reply connect his immediate possession of the vehicle to his ability to maintain employment or any other heightened consequences.
. There’s nothing in the recоrd about the monetary value of Giddins' Ford Focus or even whether it was his only means of transportation. The record is also silent as to what the normal Baltimore County police procedure is for returning property that has been used in a crime. On appeal, Giddins asserts— without any authority—that he would have had to abandon his property interest in the vehicle permanently. There’s no indication in the record that the police had or implied that they had such Draconian authority.
. Because I conclude that no constitutional error occurred, let alone reversible error, affecting Giddins' conviction, I would ordinarily need to address the sentencing issue Gid-dins raised on appeal. That issue challenged the district court’s decision to sentence him as a career offender under U.S.S.G. § 4B1.1. Both Giddins and the Government assumed that U.S.S.G. § 4B1.2's definition of a crime of violence would be modified by Johnson v. United States, - U.S. -,
Lastly, Giddins argues—for the sake of preservation only—that the district court erred by denying his motion to suppress cell site location information obtained from his cell phone. I agree with footnote 5 of the majority’s opinion noting that Giddins has preserved the issue, but that our en banc decision in United States v. Graham,