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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 10, 2003 Decided February 13, 2004
No. 02-3062
UNITED STATES OF AMERICA,
APPELLEE
v.
JAMES ISAAC GASTON,
APPELLANT
Consolidated with
No. 02–3063
Appeals from the United States District Court
for the District of Columbia
(01cr00259)
(01cr00259–01)
Neil H. Jaffee, Assistant Federal Public Defender, argued
the cause for appellant James Isaac Gaston. Paul H. Zuker-
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
berg argued the cause for appellant Jacqueline V. Shelton.
With them on the briefs was A. J. Kramer, Federal Public
Defender.
Lisa H. Schertler, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher and Thomas J.
Tourish, Jr., Assistant U.S. Attorneys.
Before: RANDOLPH and ROGERS, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RANDOLPH.
Opinion concurring in part and concurring in the judgment
filed by Circuit Judge ROGERS.
RANDOLPH, Circuit Judge: James I. Gaston and Jacqueline
V. Shelton appeal their convictions for possessing heroin with
intent to distribute it, and for possessing a firearm during a
drug trafficking offense. Gaston also appeals his conviction
for unlawful possession of a firearm by a felon. The issues
deal with the legality of the search of Gaston’s residence, with
the admission into evidence of statements he made during the
search, with the sufficiency of the evidence, and with Shel-
ton’s motion to disclose the identity of a confidential infor-
mant.
I.
An agent of the Bureau of Alcohol, Tobacco and Firearms
(‘‘ATF’’), in his affidavit supporting a search warrant, stated
that a confidential informant – ‘‘CI–1’’ – contacted the agent
‘‘[w]ithin the last 72 hours,’’ gave the address of a house in
which ‘‘Jimmy’’ resided, and reported observing a handgun
there. The affidavit further stated that CI–1 had provided
reliable information to ATF in the past, leading to the execu-
tion of four search warrants and the recovery of firearms,
narcotics and money; that CI–1 had never provided inaccu-
rate information; and that in the agent’s experience, those
who illegally possess firearms do not regularly dispose of
them. The affidavit reported that ATF’s investigation, using
the computer-based Washington Area Law Enforcement Sys-
3
tem, indicated that ‘‘Jimmy’’ was James Isaac Gaston, an
individual who ‘‘ha[d] been arrested numerous times in the
past for weapon and drug violations,’’ and had ‘‘felony convic-
tions’’ for carrying a ‘‘pistol without a license in 1982, 1987
and 1990.’’
A judge of the Superior Court of the District of Columbia
issued a search warrant on June 19, 2001, finding probable
cause to believe that there was a firearm in the two-story row
house Gaston occupied. Later in the day, officers of ATF
and the United States Park Police executed the warrant,
seizing among other things two pistols, heroin, a scale and
cash.
Gaston and Shelton claim the search violated their Fourth
Amendment right against unreasonable searches and seizures
because the affidavit did not support the judge’s finding of
probable cause. They identify several defects in the affidavit:
the affidavit did not say when CI–1 saw the handgun; it did
not explain why CI–1 was in the house, or where in the house
CI–1 saw the weapon; and it did not indicate that the agents
had corroborated CI–1’s information before seeking the war-
rant. Also, the statement that Gaston had felony convictions
in 1982, 1987 and 1990 for unlawfully possessing firearms
turned out to be incorrect; the presentence report stated that
he had only one such conviction, in 1984.
In none of the pretrial proceedings did Gaston alert the
district court to the affidavit’s mistake about the number of
his felony convictions for firearms offenses, something one
would expect Gaston to know. His attorney merely said to
the court, first, that he ‘‘had joined’’ Shelton’s pretrial motion
to suppress, which the court earlier had denied without a
hearing, and second: ‘‘we would also challenge the evidence
seized from the home on the basis of a Franks violation
contained in the warrant. I think there are some factual
inaccuracies in the warrant.’’ The court responded that
counsel had not triggered a ‘‘Franks hearing.’’
The district court was surely right. Under Franks v.
Delaware, 438 U.S. 154, 171 (1978), a defendant is entitled to
an evidentiary hearing only if his attack on the accuracy of
4
the affidavit is ‘‘more than conclusory’’ and is accompanied by
‘‘allegations of deliberate falsehood or of reckless disregard
for the truth, and those allegations must be accompanied by
an offer of proof.’’ Gaston made no offer of proof. He did
not allege deliberate falsehood or reckless disregard of the
truth. He directed his claim of ‘‘inaccuracies’’ at the ‘‘war-
rant,’’ rather than the affidavit. And even if he had the
affidavit in mind, he identified no particular inaccuracy, let
alone a deliberate or reckless one. Shelton’s motion to
suppress filled in none of these gaps. Her motion merely
asserted, in general terms, that the warrant was not sup-
ported by probable cause ‘‘with respect to Ms. Shelton.’’
Given this record, the government urges us to review the
district court’s refusal to suppress the evidence for plain
error only. At oral argument, Gaston conceded that plain
error was the proper standard. In the normal course, we
would sustain the district court’s findings of fact unless they
were clearly erroneous and would examine its legal conclu-
sions de novo. See United States v. Pindell, 336 F.3d 1049,
1052 (D.C. Cir. 2003). In this case, it hardly matters which of
these standards of review we employ. There is no possible
way for these defendants to overcome United States v. Leon,
468 U.S. 897 (1984). The Supreme Court there assumed that
the affidavit in support of the warrant did not supply proba-
ble cause because it relied on a confidential informant of
unproven credibility; because some of his information was
stale; and because the police had not corroborated other
information the informant provided. But Leon held that if
the officers had gathered evidence in objectively reasonable
reliance on the search warrant, the evidence should not be
suppressed despite the affidavit’s inadequacy. Id. at 922–24.
Here the defendants offered no reason to believe that the
ATF agent, in preparing his affidavit, knew that what he
wrote about Gaston’s felony convictions was false, or that he
acted in reckless disregard of the truth. Id. at 926. Neither
defendant formally moved for an evidentiary hearing under
Franks, or even attempted to make the sort of showing that
would have entitled them to one. We also doubt that it
mattered much whether Gaston had ‘‘only’’ one prior convic-
5
tion, rather than three. But even if it did matter, there is no
evidence to support attributing the error to the deliberate or
reckless action of the officers involved in the search. The
affidavit indicated that the information about Gaston’s convic-
tions came not from the officers, but from information in a
computer system. The defendants’ arguments rest on unsup-
ported factual inferences, unsupported because they never
made their evidentiary case in the district court.
There is nothing to the defendants’ further point that
Leon’s good-faith exception is inapplicable because the affida-
vit was ‘‘so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable.’’ Leon,
468 U.S. at 923 (quoting Brown v. Illinois, 422 U.S. 590, 610–
11 (1975)). The ATF agent’s affidavit was as strong as the
affidavit in Leon, and in important respects stronger. The
ATF agent at least established the informant’s reliability.
And fairly read, his affidavit indicated that the informant’s
information was fresh. The affidavit said CI–1 had contacted
the agent within the last ‘‘72 hours’’ about observing a
handgun in ‘‘Jimmy’s’’ residence. It is a fair reading, though
not the only one, that the report and the observation occurred
within the last three days. See United States v. Ventresca,
380 U.S. 102, 108 (1965). Besides, the affidavit stated that in
the agent’s experience, individuals who come into possession
of firearms tend to keep possession of them. If ‘‘Jimmy’’ had
a gun in his house three days before the search, or three
weeks before the search, that information would support
probable cause. On the other hand, in Leon the informant’s
first-hand knowledge concerned drugs sold out of home five
months before the search, which is why the court of appeals
treated the information as stale. 468 U.S. at 904.
We therefore hold that under Leon, defendants were not
entitled to suppression of the evidence seized in the search of
Gaston’s residence.
II.
Gaston claims the district court should have suppressed
statements he made to an officer during the search.
6
Ten to fifteen officers entered the row house. They found
three adults and three children. The three children were
Gaston’s and Shelton’s. Gaston and Shelton were in the
doorway of the second floor master bedroom. The officers
handcuffed them and moved them to the first floor living
room. There Officer David Hurley interviewed Gaston, who
remained handcuffed. At the time, the search of the premis-
es had not begun. Officer Hurley asked Gaston for his name,
address, date of birth, and social security number. Gaston
gave his present location as his address. Officer Hurley also
asked Gaston if he owned the house, to which Gaston replied
that he co-owned the house with his sisters, who lived else-
where. The government introduced Gaston’s statements at
trial.
Before questioning Gaston about his address and ownership
of the house, no officer gave him the warnings set forth in
Miranda v. Arizona, 384 U.S. 436, 444 (1966). The govern-
ment defends the omission on several grounds, one of which is
that Miranda did not apply because Gaston was not in
custody. The ‘‘ultimate inquiry,’’ the Court said in California
v. Beheler, 463 U.S. 1121, 1125 (1983), ‘‘is simply whether
there is a formal arrest or restraint on freedom of movement
of the degree associated with a formal arrest.’’ ‘‘Custody’’ is
determined objectively: would a reasonable person have un-
derstood his situation to be comparable to a formal arrest?
Berkemer v. McCarty, 468 U.S. 420, 441–42 (1984). Gaston
was handcuffed when Officer Hurley questioned him although
the officers had not yet formally arrested him. The govern-
ment argues that handcuffing does not automatically consti-
tute custody, but is merely one factor to be considered.
There is authority to this effect, see, e.g., United States v.
Leshuk, 65 F.3d 1105, 1109–10 (4th Cir. 1995), United States
v. Bautista, 684 F.2d 1286, 1291–92 (9th Cir. 1982), but we do
not have to decide whether to follow it because the question-
ing fell within an exception to Miranda.
The Supreme Court held in Pennsylvania v. Muniz, 496
U.S. 582, 601–02 (1990), that officers asking routine booking
questions ‘‘reasonably related to the police’s administrative
concerns’’ are not engaged in interrogation within Miranda’s
7
meaning and therefore do not have to give Miranda warn-
ings. Gaston’s address and ownership interest in the house
also related to ‘‘administrative concerns.’’ 496 U.S. at 601–02.
The questions dealt as much with record-keeping as the
similar booking questions asked in Muniz. Under FED. R.
CRIM. P. 41(f)(3)(A), the ‘‘officer executing the warrant must
TTT give a copy of the warrant and a receipt for the property
taken to the person from whom, or from whose premises, the
property was takenTTTT’’ In order to comply with Rule 41,
the officers sought to find out who owned the house. While
public records would show this, we believe Muniz allowed the
officers to ask routine questions about the subject without
having to advise Gaston of his right to counsel and his
privilege against self-incrimination. We do not agree with the
concurring opinion that the officers should have performed an
analysis, based on the law of real property, of the difference
between residency and ownership in order to determine – in
the words of Rule 41 – ‘‘whose premises’’ they were search-
ing. At any rate, the incriminating fact was that Gaston
resided in the house and, on that subject, the government
introduced ample other evidence, some of which is summa-
rized below, thus rendering any error in receiving Gaston’s
statement harmless.
III.
Gaston and Shelton assert that their convictions under 18
U.S.C. § 924(c) for possessing a firearm in furtherance of a
drug trafficking offense are not supported by the evidence.
Section 924(c)(1)(A) imposes a mandatory five-year sentence
for ‘‘any person who, during and in relation to any crime of
violence or drug trafficking crime TTT for which the person
may be prosecuted in a court of the United States, uses or
carries a firearm, or who, in furtherance of any such crime,
possesses a firearm.’’ 18 U.S.C. § 924(c)(1)(A).
When the officers entered the house they found Gaston and
Shelton standing in the doorway of the master bedroom on
the second floor. In the bedroom, the officers recovered a
clear ziplock bag from the floor between the bed and the wall;
8
the bag contained forty smaller ziplock bags of heroin. They
also found two firearms: a loaded semiautomatic pistol be-
tween the box spring and the mattress of the bed, and a
loaded .38 caliber revolver in a pillowcase on the floor in front
of the bed. The pillowcase also contained $9,650 in cash.
Elsewhere in the bedroom officers collected items linking
Gaston and Shelton to the residence, including a dry-cleaning
ticket in Gaston’s name attached to a shirt hanging beside a
closet; in a purse on the floor, Shelton’s driver’s license
identifying the search address as her residence; bills for
utilities addressed to Gaston at the search address; and a
copy of Shelton’s income tax return for 2000 listing the same
address as her place of residence. In the kitchen officers
recovered a scale and two more ziplock bags of heroin. The
government presented all of this evidence to the jury.
The facts of this case are similar to those in United States
v. Wahl, 290 F.3d 370 (D.C. Cir. 2002). Officers executing a
search warrant at a residence found the defendant standing
in front of an entertainment center on top of which was a
firearm. Drugs were recovered from the VCR’s videotape
slot and from the pockets of another person in the residence.
Id. at 373. In affirming the defendant’s § 924(c) conviction,
we held that the jury could find that the defendant had
constructive possession of the firearm. Officers found the
firearm in close proximity to him, and ‘‘a jury is entitled to
infer that a person exercises constructive possession over
items found in his home.’’ Id. at 376; see also United States
v. Jenkins, 928 F.2d 1175, 1179 (D.C. Cir. 1991) (‘‘The natural
inference is that those who live in a house know what is going
on insideTTTT’’). The ‘‘in furtherance of’’ language of § 924(c)
means that ‘‘the weapon must promote or facilitate the
crime.’’ See Wahl, 290 F.3d at 376 (citing United States v.
Mackey, 265 F.3d 457, 460–61 (6th Cir. 2001)). This require-
ment can be satisfied by ‘‘a showing of some nexus between
the firearm and the drug selling operation.’’ Mackey, 265
F.3d at 462. In Wahl, we considered the factors the Sixth
Circuit cited in Mackey: ‘‘whether the gun was loaded, the
type of weapon, the legality of its possession, the type of drug
activity conducted, and the time and circumstances under
9
which the firearm was found.’’ Wahl, 290 F.3d at 376 (citing
Mackey, 265 F.3d at 462, and United States v. Ceballos–
Torres, 218 F.3d 409, 414–15 (5th Cir. 2000)). ‘‘The list of
factors is not exclusive, but it helps to distinguish possession
in furtherance of a crime from innocent possession of a wall-
mounted antique or an unloaded hunting rifle locked in a
cupboard.’’ Mackey, 265 F.3d at 462.
The firearm in Wahl was loaded and ‘‘in close proximity’’ to
cocaine and a small amount of cash, and the defendant
possessed the gun illegally. Wahl, 290 F.3d at 376. So here.
Both pistols were illegally possessed; both were loaded; both
were in the bedroom Gaston and Shelton occupied; and both
pistols were close to drugs, and – so the jury could have
found – drug proceeds. Here, as in Wahl, the pistols were
‘‘strategically located so that [they were] quickly and easily
available for use’’ in furtherance of the drug crimes. Wahl,
290 F.3d at 376 (quotations omitted). We therefore uphold
the defendants’ § 924(c) convictions.
IV.
Shelton challenges the district court’s denial of her motion
for disclosure of the identity of the confidential informant
mentioned in the search warrant affidavit.
Roviaro v. United States, 353 U.S. 53, 59 (1957), approved –
in the exercise of the Court’s supervisory power – an ‘‘inform-
er’s privilege’’ protecting the identity of individuals who pro-
vide the government with information about crimes. ‘‘The
privilege recognizes the obligation of citizens to communicate
their knowledge of the commission of crimes to law-
enforcement officials and, by preserving their anonymity,
encourages them to perform that obligation.’’ Id. However,
‘‘fundamental requirements of fairness,’’ id. at 60, limit use of
the privilege at trial. McCray v. Illinois, 386 U.S. 300, 309
(1967). When ‘‘the disclosure of an informer’s identity TTT is
relevant or helpful to the defense of an accused TTT the
privilege must give way.’’ Roviaro, 353 U.S. at 60–61.
One must be careful not to read too much into this last
statement from Roviaro. In speaking of evidence ‘‘relevant
10
or helpful to the defense’’ the Court could hardly have meant
that the privilege covers only irrelevant and unhelpful evi-
dence. The Court supported its statement with a footnote
citing, among other cases, Scher v. United States, 305 U.S.
251 (1938), from which it quoted the following: ‘‘public policy
forbids disclosure of an informer’s identity unless essential to
the defenseTTTT’’ 353 U.S. at 61 n.9 (citing Scher, 305 U.S. at
254). The Court also described three appellate decisions as
holding that an informant’s identity ‘‘must be disclosed when-
ever the informer’s testimony may be relevant and helpful to
the accused’s defense.’’ 353 U.S. at 61–62. Again the Court
dropped a footnote and again it described one of the appellate
cases as holding disclosure must be ordered when it ‘‘was
essential to the defense.’’ Id. at 62 n.12. And in concluding
its general discussion of the privilege, the Court stated that
‘‘no fixed rule with respect to disclosure is justifiable.’’ Id. at
62.
In Rugendorf v. United States, 376 U.S. 528 (1964), a stolen
property prosecution after Roviaro, the Court refused to
order disclosure of the identity of an informant who allegedly
saw the stolen property in the defendant’s basement. Id. at
534–35. The Court distinguished Roviaro ‘‘where the infor-
mant had played a direct and prominent part, as the sole
participant with the accused, in the very offense for which the
latter was convicted.’’ Id. at 534. By contrast, in Rugendorf
the Court could not ‘‘say on this record that the name of the
informant was necessary to his defense.’’ Id. at 534–35.
In light of Rovario and Rugendorf, we have required, as a
prerequisite to disclosure, that the informant have had some
sort of direct connection, either as a participant or an eyewit-
ness, to the crime charged. The issue in United States v.
Skeens, 449 F.2d 1066 (D.C. Cir. 1971), was whether a defen-
dant charged with armed robbery had the right to learn the
identity of an informant who three weeks after the crime
provided officers with, inter alia, information about the
whereabouts of the shotgun involved and details of the rob-
bery. Skeens refused to require disclosure because ‘‘[u]nlike
Roviaro, nothing in this record establishes that the informant
was a participant, an eyewitness, or a person who was other-
11
wise in a position to give direct testimony concerning the
crime TTT [A]ll the evidence discloses is that the informer was
an informer and nothing more.’’ Id. at 1070 (quotations
omitted). The defendant has a ‘‘heavy burden TTT to estab-
lish that identity of an informant is necessary to his defense.’’
449 F.2d at 1071 (citing Rugendorf, 376 U.S. at 535). With
respect to search warrants we have not required the govern-
ment to disclose the identity of an informant who saw the
fruits of the search prior to execution of the warrant but who
had no involvement in the charged crime. In United States v.
Warren, 42 F.3d 647 (D.C. Cir. 1994), the informant advised
police that within the past seven days crack cocaine had been
stored and sold at a specified residence. The informant also
participated in a controlled drug buy. The police recited this
information in an affidavit submitted to a magistrate, who
then issued a search warrant. 42 F.3d at 652. When the
search of the residence uncovered drugs and a firearm,
Warren was charged with (and later convicted of) possession
of crack cocaine with intent to distribute and use of a firearm
during and in relation to a drug offense. Id. at 652. While
we recognized that the informant’s testimony ‘‘might have
been helpful to Warren,’’ particularly since the informant was
the sole witness besides Warren to the controlled drug buy,
we did not require disclosure. Warren had not been charged
with an offense arising from the drug transaction with the
informant. He was convicted only of crimes arising from the
search and the informant was not a participant in, or eyewit-
ness to, those crimes. Id. at 654. The ‘‘informant’s role was
limited to providing the information that justified issuance of
the search warrant.’’ Id.
In the district court Shelton argued that because the
government relied on the informant to obtain the search
warrant, it was ‘‘essential’’ for her ‘‘to investigate whether the
government’s reliance on such sources was reasonable.’’ The
district court quite clearly did not abuse its discretion – the
standard of review (see Warren, 42 F.3d at 654) – in denying
Shelton’s disclosure motion. The case is indistinguishable
from Warren. As here, the offenses charged in Warren were
possession of illegal drugs and use of a firearm in relation to
12
the drug offense. As here, the informant provided informa-
tion leading to a search warrant. The offenses charged in the
Warren indictment and the indictments of Gaston and Shel-
ton occurred not when the informant made his observations,
but at the time of the search, when the illicit items were
discovered. We therefore held in Warren and hold in this
case that because the informant neither participated in nor
witnessed the offenses, the district court properly denied the
disclosure motion. Id.
Shelton has a rather a different argument on appeal re-
garding why the district court should have ordered the gov-
ernment to identify the informant. Now the claim is that the
informant’s testimony could exculpate her if the informant
linked only Gaston, or someone else, to the firearms and
drugs found during the search. If the warrant affidavit is to
be believed, she claims, the informant would have testified
that Gaston was in either actual or constructive possession of
the firearms. The district court did not commit plain error in
failing to anticipate this argument and in declining to order
the government to reveal the informant’s identity. It was
incumbent upon Shelton to shoulder the ‘‘heavy burden’’ of
showing why the informant’s testimony was ‘‘necessary’’ to
her defense at trial. Skeens, 449 F.2d at 1070. She did
nothing of the sort. Her motion did not even describe the
nature of her defense; still less did it mention how she
expected the informant to advance her cause.
We have considered and rejected the defendant’s remaining
contentions.
For the foregoing reasons, the judgments of conviction are
affirmed.
So ordered.
1
ROGERS, Circuit Judge, concurring in part and concurring
in the judgment: It is well established that law enforcement
officers must give Miranda warnings when questioning is
initiated once ‘‘ ‘a person has been taken into custody or
otherwise deprived of his freedom of action in any significant
way.’ ’’ Beckwith v. United States, 425 U.S. 341, 347 (1976)
(quoting Miranda v. Arizona, 384 U.S. 436, 444 (1966)). The
court does not decide whether Gaston was in custody when he
was questioned by the police while in handcuffs prior to being
informed of his Miranda rights. It holds that the questions
Gaston was asked fall within the exception to Miranda recog-
nized by the Supreme Court in Pennsylvania v. Muniz, 496
U.S. 582, 600–02 (1990), for routine booking questions. See
Op. at 6–7. I write separately to clarify two points regarding
Gaston’s Fifth Amendment claim: first, whether Gaston was
in custody when he was questioned by the police while in
handcuffs; and second, whether Gaston’s Fifth Amendment
rights were violated when the police asked him whether he
resided in or owned the searched premises before advising
him of his Miranda rights.
First, the cases relied on by the court to the effect that in
determining whether a defendant is in custody the fact that
he is in handcuffs is only one factor are not dispositive here.
See Op. at 6 (citing United States v. Leshuk, 65 F.3d 1105,
1109–10 (4th Cir. 1995); United States v. Bautista, 684 F.2d
1286, 1291–92 (9th Cir. 1982)); see also United States v.
Fountain, 2 F.3d 656, 666 (6th Cir. 1993). Although, under
this line of authority, the police acted reasonably in handcuff-
ing all adults in the premises as a protective measure when
executing the search warrant for a firearm, by the time the
police officer questioned Gaston, without Miranda warnings,
the initial justification for handcuffing him that is recognized
in these cases, namely the officers’ safety, no longer existed.
By this time, the police had located all persons who were in
the premises and brought them to a central location in the
premises, with at least three or four police officers (not
including the officer who questioned Gaston) standing guard.
There was no evidence to suggest that the police had any
concern that these persons were armed, would be uncoopera-
2
tive, destroy evidence, or escape. Cf. Bautista, 684 F.2d at
1289–90. Under the circumstances, as ‘‘there was nothing to
suggest that any of the officers were any longer concerned
with their own physical safety,’’ Gaston was ‘‘in police custo-
dy.’’ New York v. Quarles, 467 U.S. 649, 655 (1984). Unlike
in the only case cited by the government in which a statement
was taken at the premises from a defendant in handcuffs at
the time of the execution of a search warrant, United States
v. Newton, 181 F. Supp. 2d 157, 160, 174 (E.D.N.Y. 2002),
Gaston was not informed that he was not under arrest or that
the handcuffs were for his and the officers’ safety.
Second, the routine booking exception under Muniz applies
only to questions that are necessary to assist the police in
carrying out administrative functions. Muniz, 496 U.S. at
592–600, 602 n.14. In Muniz, the Supreme Court distin-
guished between routine booking questions ‘‘to secure the
biographical data necessary to complete booking or pretrial
services,’’ id. at 601 (citations omitted), and the type of
question that, while related, goes beyond what is necessary
for booking purposes. While the exception extends to ques-
tions ‘‘reasonably related to the police’s administrative con-
cerns,’’ id. at 601–02, the Court instructed that ‘‘the police
may not ask questions, even during booking, that are de-
signed to elicit incriminating admissions.’’ Id. at 602 n.14
(citations omitted). The police not only had asked Muniz,
who was suspected of driving while intoxicated, questions
about his name, address, height, weight, eye color, date of
birth, and current age, but also asked whether he knew the
date of his sixth birthday. Id. at 585–86. The Court held
that the sixth birthday question was ‘‘testimonial in nature,’’
id. at 594, causing the defendant to ‘‘reveal, directly or
indirectly, his knowledge of facts relating him to the offense,’’
id. at 595, and because that question was unnecessary for
administrative purposes, it did not fall within the routine
booking exception. Id. at 592–602.
The court holds that the questions Gaston was asked by the
police fall within the routine booking exception under Muniz.
See Op. at 6–7. As Muniz makes clear, whether a question
falls within the exception depends on the particular circum-
3
stances. 496 U.S. at 602. When the police officer asked
Gaston whether he resided in and whether he owned the
premises being searched, the questions were potentially in-
criminating given the object of the search warrant, namely a
firearm and any related paraphernalia at the premises. See
United States v. Disla, 805 F.2d 1340, 1346–47 (9th Cir. 1986);
see also Muniz, 496 U.S. at 602; United States v. Doe, 878
F.2d 1546, 1551–52 (1st Cir. 1989); United States v. Mata–
Abundiz, 717 F.2d 1277, 1280 (9th Cir. 1983); United States
ex rel. Hines v. LaVallee, 521 F.2d 1109, 1112–13 (2nd Cir.
1975). The court therefore must scrutinize the administrative
need for the questions, applying an objective standard, partic-
ularly where, as here, the questioning did not occur at a
police station. See Doe, 878 F.2d at 1551.
In support of its holding that the questions were related to
administrative concerns, the court cites FED. R. CRIM. P.
41(f)(3)(A), which requires that ‘‘[t]he officer executing the
warrant must TTT give a copy of the warrant and a receipt for
the property taken to the person from whom, or from whose
premises, the property was taken.’’ (emphasis added). See
Op. at. 7. On its face, the Rule would appear to indicate that
there was a ‘‘legitimate administrative need,’’ Doe, 878 F.2d at
1551, to ask Gaston both whether he resided in and whether
he owned the premises. However, once Gaston told the
officer that he resided at the searched premises, the Rule
simply required the notice of any property taken from his
residence to be given to him or another occupant present at
the time. It was unnecessary to determine if Gaston also
owned the premises. The language of the Rule does not
require the notice to be given to the property owner whenev-
er the seized property is not taken from the immediate
possession of the defendant or another occupant of the prem-
ises. Further, the ownership question was potentially incrim-
inating. Although Gaston’s residence at the premises may
suffice to establish his constructive possession of the seized
items, to the extent it did not, then evidence of his ownership
of the property would fill the evidentiary gap. See United
States v. Heckard, 238 F.3d 1222, 1228–29 (10th Cir. 2001);
see also United Mergerson, 4 F.3d 337, 348–49 (5th Cir. 1993);
4
United States v. Foster, 783 F.2d 1087, 1089–90 (D.C. Cir.
1986); United States v. Whitfield, 629 F.2d 136, 142–43 (D.C.
Cir. 1980). Contrary to the suggestion of the court, the police
did not need to perform ‘‘an analysis, based on the law of real
property, of the difference between residency and owner-
ship.’’ Op. at 7. Instead, consistent with the limited excep-
tion to the Miranda requirement that Muniz recognizes, the
police had to limit their questioning to the information that
was necessary for their legitimate administrative purposes.
To the extent the Rule is the underpinning of the court’s
conclusion that all of the questions the police asked Gaston
were within the Muniz exception, the Rule does not support
the conclusion.
It is unnecessary, however, to resolve whether the owner-
ship question falls within Muniz’s limited exception to the
Miranda requirement. Even if Gaston was in custody when
he was asked if he owned the premises and the question was
unnecessary and potentially incriminating, and thus did not
fall within Muniz’s routine booking exception, any error was
harmless beyond a reasonable doubt. See Chapman v. Cali-
fornia, 386 U.S. 18, 24 (1967). At trial, the government used
the evidence of Gaston’s ownership of the premises to show
only that he resided at or possessed the premises as a means
of linking Gaston to the seized contraband. There was ample
other evidence that Gaston resided at the premises, including
his clothes and receipts, and bills and other mail in his name.
See Op. at 8. Under the circumstances, the court can confi-
dently conclude that admission into evidence of Gaston’s
statement concerning ownership, even if violative of his Fifth
Amendment rights, had no effect on the jury’s verdict. Id.