United States v. Swanson

his failure to invoke his which excuses WILLIAMS, Before MANION and against protection constitutional self-in- CLEVERT, District Judges, and Circuit crimination. And his second Mirandized Judge.* written statement was tainted the un- constitutional manner in which the first WILLIAMS, Judge. Circuit was obtained. The district statement 2009, an arrest warrant was issued In sup- court’s denial of Swanson’s motion to It on his Thomas Swanson. was based reversed, is and the is press case remand- of a firearm without a possession proceedings ed for further consistent with card, valid Firearm Owner’s Identification opinion. state law. is a violation of Illinois which arrest, police pre- the At the time of his I. BACKGROUND with state court order sented Swanson Thomas June Swanson was guns possession turn over all charged in a one-count indictment with police A them as a condition of bond. knowingly possessing shotgun a sawed-off him to com- also asked three times officer him in Na- registered was the the turn-over order. The arrest- ply with Registration tional Firearms and Transfer give did not Swanson notice of ing officers 5861(d). § Record violation of 26 U.S.C. right not to in- his federal constitutional suppress Swanson filed a motion to the forty- Approximately criminate himself. any and statements he made arrest, while five minutes after Swanson’s weapon. about The district court in an being custody he was held interro- granted hearing ultimately Swanson a and station, of a he said that gation room motion, finding, among denied the with the court turn- he wanted surrounding things, the statements gun over and admitted that he had a gun “spontaneously volunteered” his car. As hidden under back seat of and into evidence. On Febru- admissible gun, an officer retrieved the another offi- 5, 2010, ary Swanson entered into a condi- Swanson Miranda warnings. cer guilty plea agreement tional allowed ques- then submitted to a written him to the district court’s denial of appeal again tion-and-answer interview where he suppress. his motion to gun. of a possession admitted eventually charged giving guilty The events rise to the 2010 years earli- possession plea began approximately the federal crime of of an un- two er, Ford of registered April firearm. He moved to have the David Hinckley, Department and statements he made about the Illinois Police arguing received information from a confidential gun suppressed, planning to the evidence in violation of his informant that Swanson was obtained agent an right against Fifth Amendment self-in- rob a bank. Ford and Investigation crimination. The district court denied from the Federal Bureau of * Clevert, Jr., Wisconsin, sitting by Charles N. Chief the Eastern District of The Honorable designation. Judge the United States District Court for Sandwich, Although Illi- ful of a firearm. home

went to Swanson’s inter- During April him. arrest warrant was based on the nois to interview family violation, said that his view itself did not warrant and that he had financial difficulties having a date of offense. state had written a bank pistol obtained a May On Ford went to actually He said he never robbery note. County judge present a DeKalb bank, though, because intended to rob a complaint and arrest warrant. He was going think of every time he would accompanied by an assistant state’s attor- think kids it he would of his through with ney. Sergeant Ford did not have that he “off cry. [of He also said had fire- reason to believe Swanson Sergeant Ford medications.” He told his] in possession arms his at the time he went robbery for the pistol that the he obtained judge, to obtain the arrest warrant. The car, permission in and he him was his Ford, Sergeant and the assistant state’s Sergeant to search for it. Ford searched attorney only persons pres- the three were pistol the and bank the car and found complaint ent when the and arrest warrant robbery note. presented. parte hearing The ex during the interview point At some Ser- chambers, judge’s occurred and no geant produce Ford asked Swanson to his recording transcript prepared. or Firearm Owner’s Identifica- state issued During hearing, which approxi- lasted (FOID) card, required which is for an tion minutes, mately Sergeant five to seven legally possess or pur- Illinois resident investigation Ford detailed the into Swan- chase a firearm. Swanson showed Ser- planning of bank He son’s robberies. ex- card, geant Sergeant his and Ford FOID plained complaint the criminal expired. card Ford noticed that had April based on an offense that occurred in pistol He and con- confiscated Swanson’s recently but that he had received County tacted the DeKalb State’s Attor- information that pro- Swanson was ney’s prosecution Office to seek criminal planning again. cess of to rob a bank He against of a possession Swanson for fire- explained also that he had checked with arm without a valid FOID card. The of- police they yet the state had not is- prosecute. fice declined to sued a new FOID card for Swanson. The later, year Approximately April one judge why government asked was not May Sergeant or Ford learned pursuing charge of attempted bank rob- from confidential informant that the same bery, attorney responded and the state’s plans Swanson had resumed his to rob a specific attempt that there had been no on Sergeant bank. Ford contacted the any signed bank. The judge the arrest Attorney’s again, State’s Office and this charging warrant with unlawful Swanson charges against time Swanson were au- possession a firearm.1 Sergeant prepared thorized. Ford a crim- judge signed After the the arrest war- complaint April inal for the violation rant, 65/2(a)(l), attorney the assistant state’s recom- prohibits of 430 which ILCS required mended that Swanson be to turn possession of a firearm without a valid over all firearms as a condition of prepared FOID card. Ford also bond. said, an arrest warrant for Swanson for unlaw- He drafted a handwritten order that transcript hearing on Because there is no of the hear- district court’s Swanson's motion chambers, ing judge's in the state these facts suppress. testimony come at the from Ford's bond, Defendant, Sergeant Ford said explain “As further condition he would later directed to turn over when sat down and Thomas Swanson is talked. urged + control to then Swanson to firearms his the turn-over order a Hinckley police depart- third time Sandwich time, him “askfing] just one more judge signed

ment.” The order. sure, give him a moment to think.” with the arrest warrant and the Armed replied that he did not have signed by that had been turn-over order weapons. Swanson remained calm judge, Sergeant Ford went Swan- cooperative throughout the time May son’s home on 2009. He was house. joined by officer from Sandwich. An placed officer the back they arrived at the house at 10:01 When seat of a car him and drove to the a.m., they found on Swanson outside Sandwich Police Department. four-year-old front lawn with his son. Miranda warnings when he given was not

They speak asked to with Swanson and presented with the arrest warrant and inside, they pre- after Swanson’s son went house, turn-over while he atwas him sented with the arrest warrant and car, placed before he in the police him told that he was under arrest being while he was police driven to the possession unlawful of a firearm. Ser- station, or when he arrived at geant presented Ford also the turn-over station. explained judge order and that had

issued a court order as a condition of bond Sergeant stayed Ford at Swanson’s required Swanson to turn over all house while Swanson was taken to the firearms. He then asked Swanson he police station. He interviewed Swanson’s any possession had firearms his “that he wife, car, any searched his and did not find to turn in compliance wanted over with the weapons. When he finished his search he court order.” Swanson said that he had went to the Sandwich Police Department shotgun two eases -in the house under his where Swanson had been taken. gave Sergeant permission

bed and Ford At approximately Sergeant 10:45 a.m. enter the house and retrieve them. One interrogation Ford went to the room shotgun case contained a and the other being where Swanson was held. As soon only contained a barrel. Sergeant room, as Ford walked in the retrieving After shotgun cases Ser- “Mr. immediately informed me outside, geant me, Ford went back again and that he wanted to be honest with encouraged comply order, Swanson to with the he wanted with the court court’s Sergeant turn-over order. As and that shotgun there was one more un- testified, Ford later I “Again, he said derneath the rear seat” of his car. Ser- explained said—I that I him geant didn’t want Ford asked Swanson for consent to violation of the court that I again, search the car and he consented. wanted to make sure that he was in com- Sergeant Ford sent another officer back to pliance, asked him if there were weapon. other Swanson’s home to retrieve the guns guns or even look-alike that he want- After the other officer left the sta- tion, replied ed us to secure.” Swanson Sergeant gave Ford Swanson notice car, gun there was a look-alike BB in his rights of his constitutional for the first console, off of a Miranda retrieved it from the center by reading rights and time Sergeant it to Ford. Sergeant always When Swanson card. Ford carried the arrest, him, Sergeant explain asked Ford to ordinarily card with and used it when mately He two months. After Swanson com- of their arrestees advising interview, he pleted signed each and the written individually and after read each to the DeKalb transported what was booked and if he understood one asked County acknowl- Jail. to him. Swanson reading he read, it was and right after edged each eventually charged with he was told. understood what said that he an un- the federal crime of agreed speak He then firearm, felony registered which is a of- Ford. charge only was based on the fense. shotgun that the officers found said that sawed-off During the interview Swanson seat of car after out a bank and had under the back Swanson’s staking he had been he told them its location. Swanson moved the street from it on three parked across gun also said that he to have the and statements occasions. He separate evidence, suppressed made from out another bank. Swan- about had once staked among things, cooperative through- arguing, stayed son calm and in violation of point during interview. At some statements obtained out the interview, right against Fifth Amendment self- or after court denied hallway spoke into the incrimination. The district stepped out suppress had been sent to Swanson’s motion to because it with the officer who back found that the statements about the house. The officer showed Ser- Swanson’s voluntary. spontaneous a sawed-off that he were Swan- geant Ford guilty plea the back seat of Swan- son entered conditional to the found underneath possession charge into which allowed him to son’s car. Ford went back appeal Through room and asked Swanson the court’s denial. interrogation investigation willing provide presentence report a written court he would old, statement, years learned that was 41 and Swanson said that he Swanson was a truck driver trade and a volun- would. fireman, history. teer and had no criminal Sergeant Ford drove Swanson from supposed He to take medication for Department Police to the Hinck- Sandwich disorder, anxiety, depression, bi-polar and ley Department Police where arrived stopped taking approximately but two p.m. approximately at 12:40 months before his arrest because he could lunch brought Swanson and then report not afford the medication. The cal- conducted a written interview. advisory Sentencing culated an Guidelines question, Ford wrote a and Swanson wrote range imprisonment months’ and 18-24 During this written interview answer. the court sentenced Swanson to nine regarding Swanson more details imprisonment years three months’ and surveillance, bank such as where he supervised release. parked he watched the banks. He when timely appealed that he had the sawed-off shot- the district also wrote gun suppress. car “for home defense & to court’s denial of his motion to gun At us protect my me in car because there was a issue before is whether and my any statements made about the going white van down street differ- maybe following gun me in were obtained violation of his Fifth ent times and also my sup- rights, that he Amendment constitutional and car.” And he wrote suppress motion to the evi- posed depression, to take medication for whether his a granted dence should have been as re- anxiety, bi-polar disorder but that he sult. approxi- had been off of his medication for Lile, right.

II. ANALYSIS McKune v. 536 U.S. 65 n. (2002); S.Ct. 153 L.Ed.2d 47 plea agreement Before his United States v. Arrington, 73 F.3d moved to have the found his car (7th Cir.1996). An seeking individual any gun statements he made about the to invoke protections of the Fifth excluded from evidence but his motion was Amendment “must assert the privilege In reviewing denied. the district court’s rather than answer if he desires not to denial of Swanson’s motion we review the himself’; otherwise, incriminate a decision court’s factual findings clear error and to answer is considered voluntary. Mur questions of law de novo. United States phy, 465 U.S. at 104 S.Ct. 1136. (7th Thompson, 496 F.3d Cir. However, there are exceptions to the gen 2007). We conclude that the district court eral rule that the protections of the Fifth granted should have Swanson’s motion to Amendment must be invoked in order to suppress because Swanson’s statements provide protection. Where “some identifi regarding were made as a result able factor deny was held to the individual of an interrogation unwarned custodial admit, a free choice to deny, or to violation of his Fifth right answer”, refuse to a failure to invoke the against self-incrimination. Fifth Amendment can be excused. Id. provides The Fifth Amendment that no (citations omitted). Two of these recog person compelled “shall be criminal exceptions nized are statements made dur against case to be a witness himself.” ing unwarned custodial interrogation and Const, long amend. V. “It has been situations where exercising prohibition held that this only permits would in penalty. result Id. at person to testify against refuse him- 104 S.Ct. 1136. Swanson concedes that he at a self criminal trial in which he is a Amendment, did not invoke the Fifth but defendant, but ‘privileges also him not to argues that both of recognized these ex questions answer official put to him in ceptions excuse his failure to invoke the criminal, proceeding, civil or formal protection. informal, might the answers in- Swanson first argues that his failure to criminate him in proceed future criminal ” exercise his Fifth Amendment privilege ings.’ Murphy, Minnesota v. 465 U.S. should be 420, 426, excused 1136, because his statements 104 S.Ct. 79 L.Ed.2d 409 (1984) regarding shotgun his sawed-off were the (quoting Turley, v. 414 Lefkowitz product of 70, 77, 316, unwarned interroga U.S. 94 custodial S.Ct. 38 L.Ed.2d 274 (1973)). tion. He contends that he did not Sornberger City See also v. receive of Knoxville, Ill., 1006, notice of his rights constitutional pursuant 434 F.3d 1027 n. 15 (7th Cir.2006). Arizona, to 436, Miranda v. protection The that 384 U.S. 86 1602, 16 (1966) provides Fifth Amendment S.Ct. L.Ed.2d 694 “reflects a before he judgment that prosecution incriminating not made should statements and that he case, up subjected be free to build a criminal in was to interrogation. custodial part, whole or in rejected with the assistance of The district court argument this by enforced by finding disclosures the accused.” Doe that Swanson’s statements were States, v. United 487 U.S. 108 not product police of interrogation, but (1988) (citation 2341, S.Ct. 101 L.Ed.2d 184 rather were “spontaneously volunteered.” omitted). and internal punctuation disagree. We The right against constitutional voluntary We note first that in self-executing self-incrimination is not a criminating subject statements are to 1002 that he wanted us to secure.” The third and are admissible as warnings

Miranda Hendrix, Sergeant urged v. 509 time Ford Swanson to States evidence. United (7th Cir.2007); 362, Andersen v. him comply 374 with the order he “asked one F.3d (7th Cir.1990). Thieret, 526, time, sure, just F.2d 531 him give more to be to a applies physical evi- principle also This circum- moment to think.” Under these a defen- that is recovered based on dence stances, objec- we find that “a reasonable voluntary statements. United dant’s tive observer” would believe 643-44, Patane, States were, statements to Swanson at Ford’s (2004). L.Ed.2d 667 We S.Ct. least, in- “reasonably likely” to elicit the that “not all statements obtained also note from criminating response Swanson person a has been taken police after Abdulla, 294 possessed firearms. See custody product are considered the of into therefore un- F.3d 834. Swanson was Hendrix, 509 F.3d at 374. interrogation.” though Even interrogation. der Supreme v. Innis the In Rhode Island did not disclose the sawed-off explained “interrogation” refers Court house, Sergeant while he was at his “any as as “express questioning” well upon walking testified that into part of the words or actions on the interrogation room “Mr. immedi- (other normally than those attendant ately me that he ... informed wanted to custody) that the should arrest and comply with the court order.” This disclo- reasonably an likely know are to elicit forty- sure to Ford came at most response.” 446 U.S. incriminating initially five minutes after Swanson was (1980). 64 L.Ed.2d presented shortly with the court order and employ application The test we our Sergeant Ford him after asked three times objective a Innis is “whether reasonable with the court order. com- observer” would have believed the law pulsory nature the court order com- enforcement officer’s statements to the de- interrogation bined with Ford’s “reasonably likely fendant to elicit an created a cloud of coercion that was raised incriminating response.” United States v. po- at Swanson’s home and carried to the (7th Cir.2002) Abdulla, 294 F.3d station, ultimately leading lice (citation omitted). ... “immediately comply with the court We now turn to this case. When the order” and incriminate himself as soon as they presented officers arrested Swanson again brought together he was with his stating an arrest warrant that he was interrogator. charged with unlawful fire- Further, interrogation came while simultaneously him They arm. custody any in Swanson was and without him turn court order that directed to over right against notice of constitutional his any police. Sergeant firearms to the Ford self-incrimination. It is not contested him if asked he had firearms “that he give that did not his the officers compliance wanted to turn over in with the warnings they until had al- Miranda after Later, Sergeant court di- order.” Ford ready presented him with the arrest war- him rected a second time to reveal wheth- rant, car, in placed police transport- him a any guns possession: er he had in his station, him ed to a and delivered “Again, explained I I said—I didn’t interrogation him room. And the him to an want to be in violation of the court order, spite Sergeant failure to warn came in that I wanted to make sure that he having rights him if Ford a Miranda card on compliance, was asked there were guns guns presented or him when he with the even look-alike presented conjunction turn-over the warrant arrest warrant and with a court-issued order that directed custom- contrary Sergeant to Ford’s was give any guns possession his to the using the card advise ary practice police.2 lawyer Swanson is not and had of their constitutional arrestees never been arrested before. When he re- Also, Sergeant asked Ford when Swanson quested explanation of his arrest arrest, Ford did explain his provide Ford refused to it. Swanson had provide Swanson with notice of been treated for mental illness in the re- In- rights at time. constitutional past cent but had been off of his medi- stead, simply said that he would ex- he approximately cation for two months. He they later when sat down and plain may showing signs have been of active talked. instability mental at the time of the writ- “Later” came after Swanson interrogation Hinckley ten at the Police permission granted Department because when he was asked car, say but we cannot that this search car, why he had a in his replied he voluntary. In determining consent was going it was because of “a white van down search, the voluntariness of a consent to my street at different times and also “totality consider the of the circum we maybe following my me in car.” (1) stances, including such factors as short, Swanson had no formal legal education, age, intelligence, and person’s training experience, or criminal arrest (2) whether she was advised of her consti had not been advised of his constitutional (3) rights, long tutional how she was de rights, was refused information when he (4) consent, gave tained before she her explanation arrest, asked for of his was immediate, consent was or whether her presented with an arrest warrant stating by by prompted repeated requests was firearms, unlawfully possessed he was si (5) authorities, any physical whether coer multaneously shown a court order to turn (6) used, cion was whether the individual firearms, over all repeatedly was directed custody when her was she po with the court order Alexander, consent.” United States officer, lice and had treated for been (7th Cir.2009) (internal punc F.3d mental illness but was at that time un omitted). day tuation On the Swanson medicated. Under these circumstances custody May into he was taken say we cannot that Swanson’s statements presented with a court-issued arrest Department at the Police Sandwich were warrant charged said Mauro, voluntary. Arizona v. Cf. unlawful of a firearm. The ar 95 L.Ed.2d (1987) (statements April rest warrant was based on Swanson’s were volunteered possession, but there was no date of not the result of “com influences, pelling offense listed on the warrant. psychological ploys, Officers argued legality 2. At the district court Swanson on the of the turn-over order and illegal order the turn-over under Illinois found that there was no Fourth Amendment argued He state law. also that the order was shotgun lawfully violation because the a tantamount to search warrant issued with- pursuant voluntary seized to a to consent probable out cause in violation of his Fourth It did not search. address whether the turn- against unreasonable effectively a over order was search warrant government search and seizure. The coun- probable issued without cause. legal that order law tered the under state does not raise either of these two issues on a and that the order did not constitute search appeal and we decide decline to them here. court declined rule warrant. The district passes that between such as “the time argument At oral questioning.”) direct confessions, in interro change place Sergeant that noted government change identity in of the gations, and the throughout their to Swanson was cordial 314, true; interrogators.” Id. at 105 S.Ct. Sergeant Ford This is interaction. Stewart, v. 1285. See also United States son went inside until Swanson’s waited Cir.2004) (7th 1079, 1089 (quoting the arrest 388 F.3d presented house before Seibert, 600, 618, 124 v. 542 U.S. lunch at Missouri offered Swanson warrant and he (2004) (Brey But S.Ct. 159 L.Ed.2d Department. Police Hinckley er, J., concurring) (“truly ‘effective’ Mi compel finding a do not these facts voluntary. warnings only ... will occur when randa statements Swanson’s time, lapse in a behavior are certain circumstances —a force and abusive Violent officer, interrogating infringing upon change an in- location or prerequisites not questioning— a shift in the focus of the Constitutional violations or dividual’s question between the unwarned they are cloaked intervene can occur even when Reed, statement.”)); ing any postwarning v. United States kindness. See (7th Cir.2003) (“misconduct DeTella, v. 122 F.3d 454-55 Watson F.3d cases). (7th Cir.1997) po- (collecting limited to situations is not threatening or co- outright act in an lice Here, lapse approxi- a time there was manner.”). ercive mately two ini- hours between Swanson’s and his incriminating tial oral statements government contends Al- post-Miranda written statement. initial statements admit even Swanson’s though change place there was a shotgun of the were the ting possession interrogations because Swanson was taken interrogation, custodial result of unwarned Department from the Sandwich Police gun is still admissible because of the Hinckley Department, his inter- Police provided that Swanson written statement Ford, rogator, Sergeant remained the Although Mirandized. after he was ag- in the Examining same. these factors merit, ultimately we argument has some do, Watson, 122 gregate as we must F.3d post conclude that the -Miranda statement elapsed we conclude that the time does render evidence admissible. the taint from was insufficient remove raising argument government its improperly the first obtained confession Supreme notes the Court’s decision Ore interrogation where the scene of Elstad, a gon which held that “subse interroga- moved from one station quent warnings administration of Miranda interrogator, tion room to another and the suspect given voluntary to a who has a but Ford, remained constant ordinarily unwarned statement should suf ac- throughout. Our decision takes into preclud fice to remove the conditions the fact that Ford’s inter- count of the earlier statement.” ed admission began year action with Swanson before 470 U.S. his arrest and Swanson evinced a (1985) added). (emphasis L.Ed.2d particular responsiveness However, we have found that Swanson’s “immediately” Ford because he disclosed voluntary. initial statements were not So upon to him the location of his deciding Miran whether Swanson’s being their reunited at the Sandwich Po- second written statement is insulat dized Department. lice ed from the taint of the first statements we conclude that Swanson’s we consider whether there has been Because were the result of unwarned sufficient “break in the stream of events” statements

1005 interrogation, suppress not decide we will and Swanson’s custodial confes- sion. his failure to invoke his Fifth whether be- right should be excused

Amendment provides, The Fifth Amendment rele- in invoking right would have sub- cause no part, person vant “shall com- penalty. to a jected him pelled in criminal case to be a witness

against protects himself.” This a person from being testify against called himself III. CONCLUSION permits at trial and his own him to refuse The district court’s denial of Swanson’s questions put “answer official to him suppress Reversed, motion to is criminal, any other civil proceeding, for- proceedings case is Remanded for further informal, mal or might the answers opinion. with this consistent him future proceed- incriminate criminal 70, ings.” v. Turley, 414 U.S. Lefkowitz MANION, concurring. Circuit Judge, 77, 316, (1973). 94 S.Ct. 38 If L.Ed.2d 274 a person wants to exercise right, this simple It as a warrant. started arrest not, must assert it. Swanson did and nor- moment, But the last prosecutor at mally keep this claiming would him from suggested judge language. add some protection. But that failure is excused So, warrant, on the bottom of the person when a would have punished been judge scribbled he exercised his com- This is bond, condition of Defen- further [a]s monly called the “penalty exception.” dant, Thomas Swanson is directed 439, Murphy, 420, Minnesota v. 465 U.S. turn over firearms in his 1136, (1984). 104 79 S.Ct. L.Ed.2d 409 Hinckley + control to the or Sandwich occurs, When this the defendant’s failure department. excused, privilege assert the is an- his compelled, swers are deemed are This turned the arrest warrant into some- prosecution. in a criminal inadmissible Id. thing is unclear what. It main- more—it 435, 104 1136. In penalty- S.Ct. most the essential character an arrest tained of cases, exception person a is forced to testi- warrant, language but with that additional fy of with the threat some sort of economic the added effect of mutated being had sanction.3 tecum, subpoena conditioning duces Swan- to bond production

son’s on the The seminal case on this Mur- issue is incriminating evidence. it is unclear While phy, the fact despite case complies law, if this with Illinois it is clear Supreme penalty Court found that the ex- order situation penalty created ception apply. Murphy, did where, exercising by his Fifth Amendment participate defendant had sex offend- rights, would be be- punished pro- er and be truthful treatment reason, bail. For that I “in all ing denied would bation officer matters.” one During 801, Cunningham, (finding po- U.S. See 431 Fifth violation when Amendment Lefkowitz 804-05, (1977); 97 S.Ct. 53 L.Ed.2d lice officer threatened with and subse- discharged quently employment see Ass’n v. from did also Sanitation Men if he Uniformed Sanitation, 280, 283-84, immunity Comm’r 392 U.S. not waive Fifth Amendment (find- (1968) conjunction grand jury investigation); 20 L.Ed.2d 1089 with a ing city Jersey, Garrity Amendment violation Fifth when em- v. New 385 U.S. (1967) discharged ployees invoking (finding Fifth L.Ed.2d S.Ct. privilege against self-incrimina- Fifth Amendment violation when offi- tion); Broderick, Gardner v. cers coerced confessions under threat (1968) S.Ct. discharge). 20 L.Ed.2d 1082 at dur- points mur- three different rape emphasizes, admitted to a he treatment arrest, This years earlier. he of his ing committed the reminded Swanson he had der officer, who the probation to reported comply was order. The to with the bond need him about Murphy and reminded met with not on power coercive also lost order’s Murphy probation. of his the conditions uttering” before “spontaneously Swanson: charged and he was later confessed then was, prefaced the The held Supreme Court murder. with with that “he want- the fact his statement “truthful all requirement the to be court’s order.” fully comply with the ed was no probation with the officer matters” wanted to with Clearly Swanson grand a a subpoena than before different re- because he wanted be the order the always tell jury that the defendant bond, and that if he didn’t leased on he felt context, grand jury it is well In the truth. on bond. comply he wouldn’t be released must that while a defendant established noting crime Swanson It bears truthful, always can invoke always be misdemeanor, for a was arrested Thus, the Fifth Amendment his Illinois law a to receive under he had it unreason- Supreme Court held that was 65/14(a) (first vio- 430 ILCS FOID bond. that he would be Murphy for fear able misdemeanor); a ILCS lation constitutes talking taking Fifth when penalized for 1, § 9; Art. 725 ILCS Const. 5/110-4 See also Unit- probation with his officer. bond). produced Had Swanson (right F.3d Cranley, v. ed States firearms, have been would (7th Cir.2003) penalty excep- no (finding 65/14(b) a felony. evidence of 430 ILCS Mur- near facts as tion under identical (second FOID constitutes a felo- violation ). context, is unreason- phy “a fear ny). it flies face of settled able when in the Ollie, 442 F.3d law.” United States cases, penalty In most the threat is ex- (8th Cir.2006). Thus, 1135, 1139 we look If invoke person you told: plicit. is if it to the order to would bond determine Fifth, you will The Su- punished. that he would be cause Swanson fear counseled, however, has preme Court and we punished exercising rights, it explicit, threat does not to be can a have precedent wheth- look our to determine state, If expressly “the either be veiled: is er that fear reasonable. implication, that invocation of by asserts Here, unusual —to the bond order was would to revocation of privilege lead by say very hasty suggestion least. A it would the classic probation, have created at the bot- prosecutor, was scrawled Murphy, situation.” 465 U.S. at penalty arrest and conditioned tom of the warrant added); (emphasis 104 S.Ct. 1136 turning on him over his Swanson’s bond Saechao, States v. 418 F.3d United assumed that probably firearms. Swanson Cir.2005) (9th the order created a (finding firearms. Sgt. Ford knew about the other “although the invocation penalty situation all, Sgt. After Ford knew explicitly not is Fifth and al- of planning robbery, bank added)). Here, (emphasis prohibited.” though without a some banks are robbed in- order did not state that normally one And the

gun, is used. Fifth, get bond. he would not voked having charged that Swanson was would explicit probably an statement Such year earli- Sgt. was confiscated at the bot- not have been found scribbled er, looking Sgt. obviously so Ford was necessary. an one tom of such nor is Sgt. for that For Ford used part, one. of, Rather, form “if the court the order here took the the order as an tool: as effective 1007 bond, you you produce want must incrimi- when probable have cause and are nating evidence.” armed with a search warrant. Sgt. Ford knew that Swanson did not have a valid reading

An honest of the order suggests registration. firearm So additional that to comply failure would have resulted firearms he turned over would be bond, evidence regardless in no of whether Swanson crimes, of other this time a felony invoked his Fifth Amendment offense. He way, In this had to turn over all the act of producing his firearms —that’s all the fire the order concerned and that’s all arms Sgt. that constituted testimonial self-incrimi Thus, objective- Ford cared about. it was Doe, nation. See United States v. 465 U.S. ly understandable for Swanson to antici- 605, 612-13, 104 1237, S.Ct. 79 L.Ed.2d 552 Fifth, pate by taking Sgt. that (1984). Ford By complying with the turn-over would assume Swanson complying was not order, Swanson would concede the exis with the order and bond would have been tence, control, and his of the firearms. point, very denied.4 On this it is telling Hubbell, See United States v. 530 U.S. that repeated the command three 36-37, 120 S.Ct. L.Ed.2d times, including after Swanson turned over (2000). And such a would, testimonial act addition, the initial firearms. after be- course, protected under the Fifth ing holding forty-five alone cell for Amendment, if Swanson had asserted his prefaced minutes Swanson his confession right. Id. he had another in the car with very unusual order has features of a the fact that “he to fully comply wanted subpoena tecum, duces but certainly Thus, with the court’s order.” the order doesn’t qualify for that process. See Fed. fairly can be read as a threat to Swanson R.Crim.P. 17. Yet the testimonial act he invoked his Fifth Amendment producing the rights he would not firearms is receive bond. somewhat analo- gous to requirement subpoena. of a The issue then turns on whether Swan- While Swanson could invoke his Fifth son’s fear was prece- reasonable under our rights Amendment against a subpoena Cranley, dent. 350 F.3d at 622. Again, tecum, duces the contours of right are this is an unusual order. It primarily is an confusing always and not clear. See Fisher arrest warrant but with the bond’s condi- States, v. United 409-10, 425 U.S. bottom, tion scribbled at aspects it has (1976); S. Hubbell, Ct. 48 L.Ed.2d 39 subpoena of a duces tecum and a search 36-38, 530 U.S. at 120 S.Ct. 2037 (survey- warrant. purpose The stated of the order ing the intricacies that attach to claiming is that probable there is cause to arrest Fifth privilege when spells Swanson and it re- out the conditions sponding subpoenas); for him to post bond. The Baltimore City effect of the Dep’t however, flawed Social v. Bouknight, is Services produce evidence, 554-56, must this incriminating (1990)(same). evidence that is normally not turned L.Ed.2d 992 over The intricacies suspect but gathered by may of who privilege, assert the when it deed, It is unclear from the bond order government or the concedes in its brief briefs who would make the more, determination of that had nothing Sgt. Swanson said complied. whether Swanson Naturally, had fully Ford would have assumed he complied magistrate judge makes sense that a So, posted and Swanson could have bond. would make that determination but such a Sgt. impression Ford’s was critical to Swan- finding rely heavily Sgt. would on Ford’s in- receiving son bond. vestigation and statement on the issue. In- penal- within the asserted, reason I believe falls and what constitutes may be ty completely exception. is lost probably act testimonial certainly not as clear It is public. on Thus, I with the respectfully concur enjoys to invoke as and that the firearm Swan- court’s decision questions ex- refuse to answer Fifth and sup- son’s should have been statements The Cranley. and Murphy amined pressed. plead and to remain silent grand jury or is at trial before Fifth known our case and throughout law

well States, v. Dickerson United

culture. See 120 S.Ct. U.S. (2000) (“Miranda has become

L.Ed.2d police practice in routine

embedded warnings have become point RENNELL, Richard J. Jr. and R.E. culture.”). The situa- of our national part LLC, Management Group, Fund distinct from the faced was tion Swanson Plaintiffs-Appellants, Murphy Cranley. and examined issues v. Indeed, com- no document similar conditional arrest warrant and bond bined ROWE, al., K. et Defendants- Randall that I can any legal precedent has order Appellees. find, government has cited to and the No. 10-1388. unfortunately unique It and none. is short, nothing In repeated. not should Appeals, United States Court it make unreason- precedent would our Seventh Circuit. he to fear that would be able for Swanson Argued Sept. if he exercised his Fifth bond denied rights admitting instead Amendment 25, 2011. Decided March of the other firearms. the location placed troubling in a posi-

Swanson was Although not exposed

tion. he was calls cruel Supreme Court “the

what self-accusation, con- perjury

trilemma of or Tucker, Michigan

tempt,”

444-45, L.Ed.2d

(1974), choose he was forced to between

self-incrimination, potential obstruction justice charge he was under since time, being at the or denied for

oath bond words,

a misdemeanor offense. Fifth

he was forced either sacrifice his rights forego bond out, jail matter to be sorted

wait could take time. fact that

which some faced such a and ceded to threat compelled

means his statements have been For that suppressed.

should

Case Details

Case Name: United States v. Swanson

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Mar 24, 2011

Citation: 635 F.3d 995

Docket Number: 10-2178

Court Abbreviation: 7th Cir.