In the
United States Court of Appeals
For the Seventh Circuit
No. 10-2178
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
T HOMAS L. S WANSON,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 3:09-CR-50026—Frederick J. Kapala, Judge.
A RGUED JANUARY 7, 2011—D ECIDED M ARCH 24, 2011
Before M ANION and W ILLIAMS, Circuit Judges, and
C LEVERT, District Judge.
W ILLIAMS, Circuit Judge. In 2009, an arrest warrant was
issued for Thomas Swanson. It was based on his 2008
possession of a firearm without a valid Firearm Owner’s
The Honorable Charles N. Clevert, Jr., Chief Judge of the
United States District Court for the Eastern District of Wis-
consin, sitting by designation.
2 No. 10-2178
Identification card, which is a violation of Illinois state
law. At the time of his arrest, the police presented
Swanson with a state court order to turn over all guns
in his possession to them as a condition of bond. A
police officer also asked him three times to comply with
the turn-over order. The arresting officers did not give
Swanson notice of his federal constitutional right not to
incriminate himself. Approximately forty-five minutes
after Swanson’s arrest, while he was being held in
custody in an interrogation room of a police station, he
said that he wanted to comply with the court turn-over
order, and admitted that he had a gun hidden under
the back seat of his car. As an officer retrieved the gun,
another officer gave Swanson his Miranda warnings.
Swanson then submitted to a written question-and-
answer interview where he again admitted possession of
a gun.
Swanson was eventually charged with the federal crime
of possession of an unregistered firearm. He moved to
have the gun and any statements he made about the
gun suppressed, arguing that the police obtained the
evidence in violation of his Fifth Amendment right
against self-incrimination. The district court denied
Swanson’s motion to suppress, finding that his state-
ments about the gun were spontaneous and voluntary.
We disagree. Swanson’s initial statement was the result
of an unwarned custodial interrogation, which excuses
his failure to invoke his constitutional protection against
self-incrimination. And his second Mirandized written
statement was tainted by the unconstitutional manner
in which the first statement was obtained. The district
No. 10-2178 3
court’s denial of Swanson’s motion to suppress is
reversed, and the case is remanded for further pro-
ceedings consistent with this opinion.
I. BACKGROUND
In June 2009, Thomas Swanson was charged in a one-
count indictment with knowingly possessing a sawed-
off shotgun that was not registered to him in the Na-
tional Firearms Registration and Transfer Record in
violation of 26 U.S.C. § 5861(d). Swanson filed a motion
to suppress the shotgun and any statements he made
about the weapon. The district court granted Swanson a
hearing and ultimately denied the motion, finding,
among other things, that the statements surrounding
the gun were “spontaneously volunteered” and admis-
sible into evidence. On February 5, 2010, Swanson entered
into a conditional guilty plea agreement that allowed
him to appeal the district court’s denial of his motion
to suppress.
The events giving rise to the 2010 guilty plea began
approximately two years earlier, in April 2008. Sergeant
David Ford of the Hinckley, Illinois Police Depart-
ment received information from a confidential informant
that Swanson was planning to rob a bank. Sergeant
Ford and an agent from the Federal Bureau of Investiga-
tion went to Swanson’s home in Sandwich, Illinois to
interview him. During the interview Swanson said that
his family was having financial difficulties and that he
had obtained a pistol and had written a bank robbery
note. He said he never actually intended to rob a bank,
4 No. 10-2178
though, because every time he would think of going
through with it he would think of his kids and cry. He
also said that he was “off [of his] medications.” He told
Sergeant Ford that the pistol he obtained for the
robbery was in his car, and he gave him permission
to search for it. Sergeant Ford searched the car and
found the pistol and bank robbery note.
At some point during the interview Sergeant Ford asked
Swanson to produce his state issued Firearm Owner’s
Identification (FOID) card, which is required for an
Illinois resident to legally possess or purchase a firearm.
Swanson showed Sergeant Ford his FOID card, and
Sergeant Ford noticed that the card had expired. He
confiscated Swanson’s pistol and contacted the DeKalb
County State’s Attorney’s Office to seek criminal pros-
ecution against Swanson for possession of a firearm
without a valid FOID card. The office declined to prose-
cute.
Approximately one year later, in April or May of
2009, Sergeant Ford learned from the same confidential
informant that Swanson had resumed his plans to rob a
bank. Sergeant Ford contacted the State’s Attorney’s
Office again, and this time charges against Swanson
were authorized. Sergeant Ford prepared a criminal
complaint for the April 2008 violation of 430 ILCS
65/2(a)(1), which prohibits possession of a firearm
without a valid FOID card. Sergeant Ford also prepared
an arrest warrant for Swanson for unlawful possession of
a firearm. Although the arrest warrant was based on the
April 2008 violation, the warrant itself did not state a
date of offense.
No. 10-2178 5
On May 27, 2009, Sergeant Ford went to a DeKalb
County judge to present the complaint and arrest warrant.
He was accompanied by an assistant state’s attorney.
Sergeant Ford did not have any reason to believe that
Swanson had firearms in his possession at the time he
went to obtain the arrest warrant. The judge, Sergeant
Ford, and the assistant state’s attorney were the only
three persons present when the complaint and arrest
warrant were presented. The ex parte hearing occurred in
the judge’s chambers, and no recording or transcript
was prepared. During the hearing, which lasted approxi-
mately five to seven minutes, Sergeant Ford detailed
the investigation into Swanson’s planning of bank rob-
beries. He explained that the criminal complaint was
based on an offense that occurred in April 2008, but
that he had recently received information that Swanson
was in the process of planning to rob a bank again. He
also explained that he had checked with the state police
and they had not yet issued a new FOID card for
Swanson. The judge asked why the government was not
pursuing a charge of attempted bank robbery, and the
state’s attorney responded that there had been no
specific attempt on any bank. The judge signed the
arrest warrant charging Swanson with unlawful posses-
sion of a firearm.1
1
Because there is no transcript of the hearing in the state
judge’s chambers, these facts come from Sergeant Ford’s
testimony at the district court’s hearing on Swanson’s motion
to suppress.
6 No. 10-2178
After the judge signed the arrest warrant, the assistant
state’s attorney recommended that Swanson be required
to turn over all firearms as a condition of bond. He
drafted a handwritten order that said, “As further condi-
tion of bond, Defendant, Thomas Swanson is directed
to turn over any firearms in his possession + control to
the Hinckley or Sandwich police department.” The
judge signed the order.
Armed with the arrest warrant and the turn-over
order that had been signed by the judge, Sergeant Ford
went to Swanson’s home on May 28, 2009. He was
joined by a police officer from Sandwich. When they
arrived at the house at 10:01 a.m., they found Swanson
outside on the front lawn with his four-year-old son.
They asked to speak with Swanson and after Swanson’s
son went inside, they presented him with the arrest
warrant and told him that he was under arrest for
unlawful possession of a firearm. Sergeant Ford also
presented the turn-over order and explained that the
judge had issued a court order as a condition of bond
that required Swanson to turn over all firearms. He then
asked Swanson if he had any firearms in his possession
“that he wanted to turn over in compliance with the
court order.” Swanson said that he had two shotgun
cases in the house under his bed and gave Sergeant Ford
permission to enter the house and retrieve them. One
case contained a shotgun and the other contained only
a barrel.
After retrieving the shotgun cases Sergeant Ford went
back outside, and again encouraged Swanson to comply
No. 10-2178 7
with the court’s turn-over order. As Sergeant Ford later
testified, he said “Again, I said—I explained that I didn’t
want him to be in violation of the court order, that
I wanted to make sure that he was in compliance, asked
him if there were any other guns or even look-alike
guns that he wanted us to secure.” Swanson replied that
there was a look-alike BB gun in his car, retrieved it
from the center console, and gave it to Sergeant Ford.
When Swanson asked Sergeant Ford to explain his
arrest, Sergeant Ford said he would explain later when
they sat down and talked. Sergeant Ford then urged
Swanson to comply with the turn-over order a third
time by “ask[ing] him one more time, just to be sure, to
give him a moment to think.” Swanson replied that he
did not have any other weapons. Swanson remained
calm and cooperative throughout the time at his house.
An officer placed Swanson in the back seat of a police
car and drove him to the Sandwich Police Department.
Swanson was not given Miranda warnings when he
was presented with the arrest warrant and turn-over
order, while he was at his house, before he was placed
in the police car, while he was being driven to the
police station, or when he arrived at the police station.
Sergeant Ford stayed at Swanson’s house while
Swanson was taken to the police station. He inter-
viewed Swanson’s wife, searched his car, and did not
find any weapons. When he finished his search he went
to the Sandwich Police Department where Swanson
had been taken.
At approximately 10:45 a.m. Sergeant Ford went to the
interrogation room where Swanson was being held. As
8 No. 10-2178
soon as Sergeant Ford walked in the room, “Mr. Swanson
immediately informed me that he wanted to be honest
with me, that he wanted to comply with the court
order, and that there was one more shotgun under-
neath the rear seat” of his car. Sergeant Ford asked
Swanson for consent to search the car again, and he
consented. Sergeant Ford sent another officer back to
Swanson’s home to retrieve the weapon. After the other
officer left the police station, Sergeant Ford gave
Swanson notice of his constitutional rights for the first
time by reading off of a Miranda rights card. Sergeant
Ford always carried the card with him, and ordinarily
used it when advising arrestees of their rights. He read
each right individually and after each one asked
Swanson if he understood what he was reading to him.
Swanson acknowledged each right after it was read, and
said that he understood what he was told. He then
agreed to speak with Sergeant Ford.
During the interview Swanson said that he had been
staking out a bank and had parked across the street from
it on three separate occasions. He also said that he had
once staked out another bank. Swanson stayed calm and
cooperative throughout the interview. At some point
during or after the interview, Sergeant Ford stepped out
into the hallway and spoke with the officer who had
been sent back to Swanson’s house. The officer showed
Sergeant Ford a sawed-off shotgun that he found under-
neath the back seat of Swanson’s car. Sergeant Ford
went back into the interrogation room and asked
Swanson if he would be willing to provide a written
statement, and Swanson said that he would.
No. 10-2178 9
Sergeant Ford drove Swanson from the Sandwich
Police Department to the Hinckley Police Department
where they arrived at approximately 12:40 p.m. Sergeant
Ford brought Swanson lunch and then conducted a
written interview. Sergeant Ford wrote a question, and
Swanson wrote the answer. During this written inter-
view Swanson gave more details regarding his bank
surveillance, such as where he parked when he watched
the banks. He also wrote that he had the sawed-off
shotgun in his car “for home defense & to protect me
in my car because there was a white van going down
my street at different times and also maybe following
me in my car.” And he wrote that he was supposed to
take medication for depression, anxiety, and bi-polar
disorder but that he had been off of his medication for
approximately two months. After Swanson completed
and signed the written interview, he was booked and
transported to the DeKalb County Jail.
Swanson was eventually charged with the federal crime
of possession of an unregistered firearm, which is a
felony offense. The charge was based only on the sawed-
off shotgun that the officers found under the back seat
of Swanson’s car after he told them its location.
Swanson moved to have the gun and any statements
he made about it suppressed from evidence, arguing,
among other things, that the statements were obtained
in violation of his Fifth Amendment right against self-
incrimination. The district court denied Swanson’s
motion to suppress because it found that the statements
about the gun were spontaneous and voluntary. Swanson
entered a conditional guilty plea to the possession
10 No. 10-2178
charge which allowed him to appeal the court’s denial.
Through the presentence investigation report the court
learned that Swanson was 41 years old, was a truck
driver by trade and a volunteer fireman, and had no
criminal history. He was supposed to take medication
for anxiety, depression, and bi-polar disorder, but
stopped taking it approximately two months before his
arrest because he could not afford the medication. The
report calculated an advisory Sentencing Guidelines
range of 18-24 months’ imprisonment and the court
sentenced Swanson to nine months’ imprisonment
and three years of supervised release.
Swanson timely appealed the district court’s denial of
his motion to suppress. At issue before us is whether the
gun and any statements Swanson made about the gun
were obtained in violation of his Fifth Amendment con-
stitutional rights, and whether his motion to suppress
the evidence should have been granted as a result.
II. ANALYSIS
Before his plea agreement Swanson moved to have
the shotgun found in his car and any statements he
made about the gun excluded from evidence but his
motion was denied. In reviewing the district court’s
denial of Swanson’s motion we review the court’s
factual findings for clear error and questions of law
de novo. United States v. Thompson, 496 F.3d 807, 809
(7th Cir. 2007). We conclude that the district court should
have granted Swanson’s motion to suppress because
Swanson’s statements regarding the gun were made as
No. 10-2178 11
a result of an unwarned custodial interrogation in viola-
tion of his Fifth Amendment right against self-incrim-
ination.
The Fifth Amendment provides that no person “shall
be compelled in any criminal case to be a witness
against himself.” U.S. Const. amend. V. “It has long
been held that this prohibition not only permits a person
to refuse to testify against himself at a criminal trial in
which he is a defendant, but also ‘privileges him not
to answer official questions put to him in any other pro-
ceeding, civil or criminal, formal or informal, where the
answers might incriminate him in future criminal pro-
ceedings.’ ” Minnesota v. Murphy, 465 U.S. 420, 426
(1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)).
See also Sornberger v. City of Knoxville, Ill., 434 F.3d
1006, 1027 n.15 (7th Cir. 2006). The protection that the
Fifth Amendment provides “reflects a judgment that
the prosecution should not be free to build up a criminal
case, in whole or in part, with the assistance of enforced
disclosures by the accused.” Doe v. United States, 487 U.S.
201, 212 (1988) (citation and internal punctuation omitted).
The constitutional right against self-incrimination is
not a self-executing right. McKune v. Lile, 536 U.S. 24, 65
n.10 (2002); United States v. Arrington, 73 F.3d 144, 149 (7th
Cir. 1996). An individual seeking to invoke the protec-
tions of the Fifth Amendment “must assert the privilege
rather than answer if he desires not to incriminate him-
self”; otherwise, a decision to answer is considered volun-
tary. Murphy, 465 U.S. at 429. However, there are excep-
tions to the general rule that the protections of the
12 No. 10-2178
Fifth Amendment must be invoked in order to provide
protection. Where “some identifiable factor was held to
deny the individual a free choice to admit, to deny, or to
refuse to answer”, a failure to invoke the Fifth Amend-
ment can be excused. Id. (citations omitted). Two of
these recognized exceptions are statements made during
unwarned custodial interrogation and situations where
exercising the right would result in a penalty. Id. at 429,
434. Swanson concedes that he did not invoke the Fifth
Amendment, but argues that both of these recognized
exceptions excuse his failure to invoke the protection.
Swanson first argues that his failure to exercise his
Fifth Amendment privilege should be excused because
his statements regarding his sawed-off shotgun were
the product of unwarned custodial interrogation. He con-
tends that he did not receive notice of his constitutional
rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966)
before he made incriminating statements and that he
was subjected to custodial interrogation. The district
court rejected this argument by finding that Swanson’s
statements were not the product of police interrogation,
but rather were “spontaneously volunteered.” We disagree.
We note first that voluntary incriminating statements
are not subject to Miranda warnings and are admissible as
evidence. United States v. Hendrix, 509 F.3d 362, 374 (7th
Cir. 2007); Andersen v. Thieret, 903 F.2d 526, 531 (7th
Cir. 1990). This principle also applies to physical evidence
that is recovered based on a defendant’s voluntary state-
ments. United States v. Patane, 542 U.S. 630, 643-44 (2004).
We also note that “not all statements obtained by the
No. 10-2178 13
police after a person has been taken into custody are
considered the product of interrogation.” Hendrix, 509
F.3d at 374. In Rhode Island v. Innis the Supreme Court
explained that “interrogation” refers to “express question-
ing” as well as “any words or actions on the part of the
police (other than those normally attendant to arrest
and custody) that the police should know are reasonably
likely to elicit an incriminating response.” 446 U.S. 291, 301
(1980). The test we employ in our application of Innis is
“whether a reasonable objective observer” would have
believed that the law enforcement officer’s statements
to the defendant were “reasonably likely to elicit an
incriminating response.” United States v. Abdulla, 294
F.3d 830, 834 (7th Cir. 2002) (citation omitted).
We now turn to this case. When the officers arrested
Swanson they presented an arrest warrant stating that
he was charged with unlawful possession of a firearm.
They simultaneously gave him a court order that
directed him to turn over any firearms to the police.
Sergeant Ford asked him if he had any firearms “that
he wanted to turn over in compliance with the court
order.” Later, Sergeant Ford directed him a second time
to reveal whether he had any guns in his possession:
“Again, I said—I explained that I didn’t want him to be
in violation of the court order, that I wanted to make
sure that he was in compliance, asked him if there were
any other guns or even look-alike guns that he wanted
us to secure.” The third time Sergeant Ford urged
Swanson to comply with the order he “asked him one
more time, just to be sure, to give him a moment to
think.” Under these circumstances, we find that “a reason-
14 No. 10-2178
able objective observer” would believe that Sergeant Ford’s
statements to Swanson were, at least, “reasonably likely”
to elicit the incriminating response from Swanson that
he possessed firearms. See Abdulla, 294 F.3d at 834.
Swanson was therefore under interrogation. Even
though Swanson did not disclose the sawed-off shotgun
while he was at his house, Sergeant Ford testified
that upon his walking into the interrogation room
“Mr. Swanson immediately informed me that he wanted
to . . . comply with the court order.” This disclosure to
Sergeant Ford came at most forty-five minutes after
Swanson was initially presented with the court order
and shortly after Sergeant Ford asked him three times
to comply with the court order. The compulsory nature
of the court order combined with Sergeant Ford’s inter-
rogation created a cloud of coercion that was raised at
Swanson’s home and carried to the police station, ulti-
mately leading Swanson to “immediately . . . comply
with the court order” and incriminate himself as soon as
he was again brought together with his interrogator.
Further, this interrogation came while Swanson was
in custody and without any notice of his constitutional
right against self-incrimination. It is not contested that
the officers did not give Swanson his Miranda warnings
until after they had already presented him with the
arrest warrant, placed him in a police car, transported
him to a police station, and delivered him to an inter-
rogation room. And the failure to warn came in spite
of Sergeant Ford having a Miranda rights card on him
when he presented Swanson with the arrest warrant and
turn-over order, and was contrary to Sergeant Ford’s
No. 10-2178 15
customary practice of using the card to advise arrestees
of their constitutional rights. Also, when Swanson asked
Sergeant Ford to explain his arrest, Sergeant Ford
did not provide Swanson with notice of his constitu-
tional rights at that time. Instead, he simply said that he
would explain later when they sat down and talked.
“Later” came after Swanson granted Sergeant Ford
permission to search his car, but we cannot say that
this consent was voluntary. In determining the volun-
tariness of a consent to search, we consider the “totality
of the circumstances, including such factors as (1) the
person’s age, intelligence, and education, (2) whether
she was advised of her constitutional rights, (3) how
long she was detained before she gave her consent,
(4) whether her consent was immediate, or was
prompted by repeated requests by the authorities,
(5) whether any physical coercion was used, (6) whether
the individual was in police custody when she gave her
consent.” United States v. Alexander, 573 F.3d 465, 477 (7th
Cir. 2009) (internal punctuation omitted). On the day
Swanson was taken into custody in May 2009, he was pre-
sented with a court-issued arrest warrant that said he
was charged with unlawful possession of a firearm.
The arrest warrant was based on Swanson’s April 2008
possession, but there was no date of offense listed on the
warrant. Officers presented the warrant in conjunction
with a court-issued order that directed Swanson to give
16 No. 10-2178
any guns in his possession to the police.2 Swanson is not
a lawyer and had never been arrested before. When he
requested explanation of his arrest Sergeant Ford
refused to provide it. Swanson had been treated for
mental illness in the recent past but had been off of his
medication for approximately two months. He may
have been showing signs of active mental instability at
the time of the written interrogation at the Hinckley
Police Department because when he was asked why he
had a shotgun in his car, he replied it was because of
“a white van going down my street at different times
and also maybe following me in my car.”
In short, Swanson had no formal legal training or crimi-
nal arrest experience, had not been advised of his con-
stitutional rights, was refused information when he
asked for explanation of his arrest, was presented with
2
At the district court Swanson argued that the turn-over
order was illegal under Illinois state law. He also argued that
the order was tantamount to a search warrant issued without
probable cause in violation of his Fourth Amendment right
against unreasonable search and seizure. The government
countered that the order was legal under state law and that
the order did not constitute a search warrant. The district court
declined to rule on the legality of the turn-over order and
found that there was no Fourth Amendment violation because
the shotgun was lawfully seized pursuant to a voluntary
consent to search. It did not address whether the turn-over
order was effectively a search warrant issued without prob-
able cause. Swanson does not raise either of these two issues
on appeal and we decline to decide them here.
No. 10-2178 17
an arrest warrant stating he unlawfully possessed
firearms, was simultaneously shown a court order to
turn over all firearms, was repeatedly directed to
comply with the court order by a police officer, and
had been treated for mental illness but was at that
time unmedicated. Under these circumstances we cannot
say that Swanson’s statements at the Sandwich Police
Department were voluntary. Cf. Arizona v. Mauro, 481 U.S.
520, 529 (1987) (statements were volunteered where they
were not the result of “compelling influences, psycho-
logical ploys, or direct questioning.”) At oral argument
the government noted that Sergeant Ford was cordial
to Swanson throughout their interaction. This is true;
Sergeant Ford waited until Swanson’s son went inside
the house before he presented the arrest warrant and
he offered Swanson lunch at the Hinckley Police Depart-
ment. But these facts do not compel a finding that
Swanson’s statements were voluntary. Violent force
and abusive behavior are not prerequisites to infringing
upon an individual’s rights. Constitutional violations
can occur even when they are cloaked in kindness. See
United States v. Reed, 349 F.3d 457, 465 (7th Cir. 2003)
(“misconduct is not limited to situations where the
police act in an outright threatening or coercive manner.”).
The government contends that even if Swanson’s
initial statements admitting possession of the shotgun
were the result of unwarned custodial interrogation,
the gun is still admissible because of the written state-
ment that Swanson provided after he was Mirandized.
Although this argument has some merit, we ultimately
18 No. 10-2178
conclude that the post-Miranda statement does not
render the evidence admissible. In raising its argument
the government notes the Supreme Court’s decision in
Oregon v. Elstad, which held that a “subsequent admin-
istration of Miranda warnings to a suspect who has
given a voluntary but unwarned statement ordinarily
should suffice to remove the conditions that precluded
admission of the earlier statement.” 470 U.S. 298, 314
(1985) (emphasis added). However, we have found that
Swanson’s initial statements were not voluntary. So in
deciding whether Swanson’s Mirandized second written
statement is insulated from the taint of the first state-
ments we consider whether there has been a sufficient
“break in the stream of events” such as “the time that
passes between confessions, the change in place of inter-
rogations, and the change in identity of the interrogators.”
Id. at 310, 314. See also United States v. Stewart, 388
F.3d 1079, 1089 (7th Cir. 2004) (quoting Missouri v. Seibert,
542 U.S. 600, 618 (2004) (Breyer, J., concurring) (“truly
‘effective’ Miranda warnings . . . will occur only when
certain circumstances—a lapse in time, a change in loca-
tion or interrogating officer, or a shift in the focus
of the questioning—intervene between the unwarned
questioning and any postwarning statement.”)); Watson
v. DeTella, 122 F.3d 450, 454-55 (7th Cir. 1997) (collecting
cases).
Here, there was a time lapse of approximately two
hours between Swanson’s initial incriminating oral state-
ments and his post-Miranda written statement. Although
there was a change in place of interrogations because
No. 10-2178 19
Swanson was taken from the Sandwich Police Depart-
ment to the Hinckley Police Department, his inter-
rogator, Sergeant Ford, remained the same. Examining
these factors in the aggregate as we must do, Watson,
122 F.3d at 454, we conclude that the elapsed time
was insufficient to remove the taint from the first im-
properly obtained confession where the scene of inter-
rogation was moved from one police station interroga-
tion room to another and the interrogator, Sergeant
Ford, remained constant throughout. Our decision takes
into account the fact that Sergeant Ford’s interaction
with Swanson began a year before his arrest and that
Swanson evinced a particular responsiveness to Sergeant
Ford because he “immediately” disclosed the location of
his shotgun to him upon their being reunited at the
Sandwich Police Department.
Because we conclude that Swanson’s statements were
the result of unwarned custodial interrogation, we will
not decide whether his failure to invoke his Fifth Amend-
ment right should be excused because invoking the
right would have subjected him to a penalty.
III. CONCLUSION
The district court’s denial of Swanson’s motion to
suppress is R EVERSED, and the case is R EMANDED for
further proceedings consistent with this opinion.
20 No. 10-2178
M ANION, Circuit Judge, concurring. It started as a simple
arrest warrant. But at the last moment, the prosecutor
suggested the judge add some language. So, on the
bottom of the warrant, the judge scribbled
[a]s further condition of bond, Defendant, Thomas
Swanson is directed to turn over any firearms in his
possession + control to the Hinckley or Sandwich
police department.
This turned the arrest warrant into something more—
it is unclear what. It maintained the essential character
of an arrest warrant, but with that additional language
it had the added effect of being a mutated subpoena
duces tecum, conditioning Swanson’s right to bond on
the production of incriminating evidence. While it is
unclear if this complies with Illinois law, it is clear that
this order created a penalty situation where, by exer-
cising his Fifth Amendment rights, Swanson would be
punished by being denied bail. For that reason, I would
suppress the gun and Swanson’s confession.
The Fifth Amendment provides, in relevant part, that
no person “shall be compelled in any criminal case to be
a witness against himself.” This protects a person from
being called to testify against himself at his own trial
and permits him to refuse to “answer official questions
put to him in any other proceeding, civil or criminal,
formal or informal, where the answers might incrim-
inate him in future criminal proceedings.” Lefkowitz v.
Turley, 414 U.S. 70, 77 (1973). If a person wants to
exercise this right, he must assert it. Swanson did not,
and normally this would keep him from claiming the
No. 10-2178 21
protection. But that failure is excused when a person
would have been punished if he exercised his rights.
This is commonly called the “penalty exception.” Minnesota
v. Murphy, 465 U.S. 420, 439 (1984). When this occurs,
the defendant’s failure to assert the privilege is ex-
cused, his answers are deemed compelled, and they are
inadmissible in a criminal prosecution. Id. at 435. In
most penalty-exception cases, a person is forced to testify
with the threat of some sort of economic sanction.3
The seminal case on this issue is Murphy, despite the
fact that in that case the Supreme Court found that
the penalty exception did not apply. In Murphy, the
defendant had to participate in sex offender treatment
and be truthful with his probation officer “in all mat-
ters.” During one treatment he admitted to a rape and
murder he had committed years earlier. This was
reported to the probation officer, who met with Murphy
and reminded him about the conditions of his proba-
3
See Lefkowitz v. Cunningham, 431 U.S. 801, 804-05 (1977); see
also Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation, 392
U.S. 280, 283-84 (1968) (finding Fifth Amendment violation
when city employees were discharged for invoking Fifth
Amendment privilege against self-incrimination); Gardner v.
Broderick, 392 U.S. 273, 279 (1968) (finding Fifth Amendment
violation when police officer was threatened with and subse-
quently discharged from employment if he did not waive his
Fifth Amendment immunity in conjunction with a grand jury
investigation); Garrity v. New Jersey, 385 U.S. 493, 497 (1967)
(finding Fifth Amendment violation when police officers
gave coerced confessions under threat of discharge).
22 No. 10-2178
tion. Murphy then confessed and he was later charged
with murder. The Supreme Court held that the require-
ment to be “truthful in all matters” with the proba-
tion officer was no different than a subpoena before a
grand jury that the defendant always tell the truth. In
the grand jury context, it is well established that while
a defendant must always be truthful, he can always
invoke his Fifth Amendment rights. Thus, the Supreme
Court held that it was unreasonable for Murphy to fear
that he would be penalized for taking the Fifth when
talking with his probation officer. See also United States
v. Cranley, 350 F.3d 617, 622 (7th Cir. 2003) (finding
no penalty exception under near identical facts as
Murphy). In this context, “a fear is unreasonable when it
flies in the face of settled law.” United States v. Ollie, 442
F.3d 1135, 1139 (8th Cir. 2006). Thus, we look to the
bond order to determine if it would cause Swanson to
fear that he would be punished for exercising his rights,
and we look at our precedent to determine whether
that fear is reasonable.
Here, the bond order was unusual—to say the very
least. A hasty suggestion by the prosecutor, it was
scrawled at the bottom of the arrest warrant and condi-
tioned Swanson’s bond on him turning over his firearms.
Swanson probably assumed that Sgt. Ford knew about
the other firearms. After all, Sgt. Ford knew that
Swanson was planning a bank robbery, and although
some banks are robbed without a gun, normally one is
used. And the gun that Swanson was charged with
having was confiscated by Sgt. Ford a year earlier, so
Sgt. Ford was obviously not looking for that one. For
No. 10-2178 23
his part, Sgt. Ford used the order as an effective tool:
as the court emphasizes, at three different points
during the arrest, he reminded Swanson of his need to
comply with the bond order. The order’s coercive
power was also not lost on Swanson: before “spontane-
ously uttering” where the shotgun was, Swanson
prefaced his statement with the fact that “he wanted to
fully comply with the court’s order.” Clearly Swanson
wanted to comply with the order because he wanted to
be released on bond, and he felt that if he didn’t comply
he wouldn’t be released on bond. It bears noting that
the crime Swanson was arrested for was a misdemeanor,
and under Illinois law he had a right to receive bond.
430 ILCS 65/14(a) (first FOID violation constitutes a
misdemeanor); ILCS Const. Art. 1, § 9; 725 ILCS 5/110-4
(right to bond). Had Swanson produced any other fire-
arms, they would have been evidence of a felony. 430
ILCS 65/14(b) (second FOID violation constitutes a felony).
In most penalty cases, the threat is explicit. The person
is told: If you invoke the Fifth, you will be punished. The
Supreme Court has counseled, however, that a threat
does not have to be explicit, it can be veiled: If “the state,
either expressly or by implication, asserts that invocation
of the privilege would lead to revocation of probation,
it would have created the classic penalty situation.”
Murphy, 465 U.S. at 435 (emphasis added); United States
v. Saechao, 418 F.3d 1073 (9th Cir. 2005) (finding the
order created a penalty situation “although the invocation
of the Fifth Amendment is not explicitly prohibited.” (em-
phasis added)). Here, the order did not state that if
Swanson invoked the Fifth, he would not get bond. Such
24 No. 10-2178
an explicit statement probably would not have been
found scribbled at the bottom of such an order, nor is
one necessary. Rather, the order here took the form of, “if
you want bond, you must produce incriminating evi-
dence.”
An honest reading of the order suggests that failure
to comply would have resulted in no bond, regardless of
whether Swanson invoked his Fifth Amendment rights.
He had to turn over all his firearms—that’s all the
order concerned and that’s all that Sgt. Ford cared about.
Thus, it was objectively understandable for Swanson
to anticipate that by taking the Fifth, Sgt. Ford would
assume Swanson was not complying with the order
and bond would have been denied.4 On this point, it is
very telling that Ford repeated the command three
times, including after Swanson turned over the initial
firearms. In addition, after being alone in the holding
cell for forty-five minutes Swanson prefaced his con-
fession that he had another gun in the car with the fact
that “he wanted to fully comply with the court’s order.”
4
It is unclear from the bond order or the briefs who would
make the determination of whether Swanson had complied.
Naturally, it makes sense that a magistrate or judge would
make that determination but such a finding would rely
heavily on Sgt. Ford’s investigation and statement on the
issue. Indeed, the government concedes in its brief that had
Swanson said nothing more, Sgt. Ford would have assumed
he fully complied and Swanson could have posted bond. So,
Sgt. Ford’s impression was critical to Swanson receiving bond.
No. 10-2178 25
Thus, the order can fairly be read as a threat to Swanson
that if he invoked his Fifth Amendment rights he would
not receive bond.
The issue then turns on whether Swanson’s fear was
reasonable under our precedent. Cranley, 350 F.3d at 622.
Again, this is an unusual order. It is primarily an arrest
warrant but with the bond’s condition scribbled at the
bottom, it has aspects of a subpoena duces tecum and
a search warrant. The stated purpose of the order is that
there is probable cause to arrest Swanson and it spells
out the conditions for him to post bond. The effect of
the flawed order, however, is that Swanson must
produce this incriminating evidence, evidence that is
normally not turned over by a suspect but gathered by
the police when they have probable cause and are armed
with a search warrant. Sgt. Ford knew that Swanson
did not have a valid firearm registration. So any addi-
tional firearms he turned over would be evidence of
other crimes, this time a felony offense. In this way, the
act of producing the firearms constituted testimonial self-
incrimination. See United States v. Doe, 465 U.S. 605, 612-
13 (1984). By complying with the turn-over order,
Swanson would concede the existence, and his control,
of the firearms. See United States v. Hubbell, 530 U.S. 27, 36-
37 (2000). And such a testimonial act would, of course,
be protected under the Fifth Amendment, if Swanson
had asserted his right. Id.
The very unusual order has features of a subpoena
duces tecum, but certainly doesn’t qualify for that
process. See Fed. R. Crim. P. 17. Yet the testimonial act of
26 No. 10-2178
producing the firearms is somewhat analogous to the
requirement of a subpoena. While Swanson could invoke
his Fifth Amendment rights against a subpoena duces
tecum, the contours of that right are confusing and not
always clear. See Fisher v. United States, 425 U.S. 391, 409-10
(1976); Hubbell, 530 U.S. at 36-38 (surveying the intricacies
that attach to claiming the Fifth Amendment privilege
when responding to subpoenas); Baltimore City Dep’t of
Social Services v. Bouknight, 493 U.S. 549, 554-56 (1990)
(same). The intricacies of who may assert the privilege,
when it may be asserted, and what constitutes a testimo-
nial act is probably completely lost on the public. It is
certainly not as clear as the right Swanson enjoys to
invoke the Fifth and refuse to answer questions exam-
ined in Murphy and Cranley. The right to remain silent
and to plead the Fifth at trial or before the grand jury
is well known throughout our case law and culture. See
Dickerson v. United States, 530 U.S. 428, 443 (2000) (“Miranda
has become embedded in routine police practice to
the point where the warnings have become part of our
national culture.”). The situation Swanson faced was
distinct from the issues examined in Murphy and Cranley.
Indeed, no document similar to this combined arrest
warrant and conditional bond order has any legal prece-
dent that I can find, and the government has cited to
none. It is unfortunately unique and should not be re-
peated. In short, nothing in our precedent would make
it unreasonable for Swanson to fear that he would be
denied bond if he exercised his Fifth Amendment
rights instead of admitting the location of the other fire-
arms.
No. 10-2178 27
Swanson was placed in a troubling position. Although
he was not exposed to what the Supreme Court calls “the
cruel trilemma of self-accusation, perjury or contempt,”
Michigan v. Tucker, 417 U.S. 433, 444-45 (1974), he was
forced to choose between self-incrimination, a potential
obstruction of justice charge since he was not under oath
at the time, or being denied bond for a misdemeanor
offense. In other words, he was forced to either sacrifice
his Fifth Amendment rights or forego bond and wait in
jail for the matter to be sorted out, which could take
some time. The fact that he faced such a threat and ceded
to it means his statements were compelled and should
have been suppressed. For that reason I believe this
falls within the penalty exception.
Thus, I respectfully concur with the court’s decision
that the firearm and Swanson’s statements should have
been suppressed.
3-24-11