United States v. Swanson

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 United States v. Swanson No. 01-1934
ELECTRONIC CITATION: 2003 FED App. 0289P (6th Cir.)
File Name: 03a0289p.06 _________________
OPINION
UNITED STATES COURT OF APPEALS _________________
FOR THE SIXTH CIRCUIT BOGGS, Circuit Judge. Jason Eric Swanson appeals his
_________________ conviction for being a felon in possession of a firearm, in
violation of 18 U.S.C. § 922(g)(1). After a jury trial,
UNITED STATES OF AMERICA , X Swanson was sentenced to 90 months of imprisonment.
Plaintiff-Appellee, - Swanson argues that the district court erred in failing to
- suppress two pieces of evidence: (1) the firearm that was the
- No. 01-1934 basis of his conviction, because it was the fruit of the
v. - unlawful seizure of his automobile; and (2) statements
> attributed to him, because they were elicited in violation of
, the Miranda rule. Swanson argues that the introduction of the
JASON ERIC SWANSON, -
Defendant-Appellant. - firearm and the statements into evidence rendered his
conviction unsound, and that the case should be remanded for
N a new trial. For the following reasons, we affirm Swanson’s
Appeal from the United States District Court conviction.
for the Eastern District of Michigan at Detroit.
No. 99-80890—Patrick J. Duggan, District Judge. I

Argued: December 5, 2002 Swanson was prosecuted for possession of a firearm that
was discovered in a white Pontiac Grand Am that was seized
Decided and Filed: August 15, 2003 during the execution in Warren, Michigan, of an arrest
warrant for Daniel Rick. Rick was suspected by federal
Before: BOGGS, SILER, and GIBBONS, Circuit Judges. agents of having trafficked in illegal firearms. Rick was seen
driving the Grand Am on January 24 and 25, 1998 in the
_________________ Detroit, Michigan area. The car is registered to Swanson’s
mother, Sherrie Swanson. On January 25, 1998, Rick was
COUNSEL seen driving this vehicle in Effingham, Illinois, to and from
a motel where he met with a cooperating witness.
ARGUED: Corbett E. O’Meara, O’MEARA & O’MEARA,
Grosse Pointe Farms, Michigan, for Appellant. Carl D. During the meeting, Rick delivered a fully automatic
Gilmer-Hill, UNITED STATES ATTORNEY, Detroit, firearm to the cooperating witness, and discussed with him
Michigan, for Appellee. ON BRIEF: Corbett E. O’Meara, additional transactions involving silencers and weapons.
O’MEARA & O’MEARA, Grosse Pointe Farms, Michigan, Between January 30 and February 25, 1998, Rick had
for Appellant. Carl D. Gilmer-Hill, UNITED STATES telephone conversations with the cooperating witness in
ATTORNEY, Detroit, Michigan, for Appellee. which they discussed the additional transactions. On

1
No. 01-1934 United States v. Swanson 3 4 United States v. Swanson No. 01-1934

February 24, 1998, Rick received a Federal Express package agents were identifying the people present and searching the
from the cooperating witness that contained money to be used shop. Fleming testified at the suppression hearing that had
by Rick to buy silencers and automatic weapons. anyone attempted to walk away before being identified and
cleared, the person would have been stopped. Swanson’s
Federal agents executed an arrest warrant, apparently name was still being run through the LEIN. The conversation
obtained one or two days earlier, for Rick on February 26, took place outside, in public view, in an area on the north side
1998 at his workplace, the Marked for Life tattoo parlor.1 of the shop.
Agents had been watching the shop and had confirmed Rick’s
presence. Special Agent Mark Davidson testified at the Fleming testified that he advised Swanson that he was not
suppression hearing in Swanson’s case that Rick had been under arrest and did not have to speak with him. He testified
seen arriving at work in the same Grand Am he had been seen that Swanson said that he was willing to talk. Swanson then
driving to Illinois, although the car was driven by Swanson. provided Fleming with background information, and told him
that the Grand Am belonged to him. Fleming then asked
Due to the small size of the tattoo parlor, the law Swanson whether there were guns or drugs in the car.
enforcement officers executing the arrest warrant for Rick Fleming’s report indicated that Swanson answered, “I don’t
ordered the seven or eight people inside the tattoo parlor to mess with drugs. Drugs are for niggers.” Fleming pressed
come outside so that Rick could be identified and arrested. Swanson regarding whether there were guns in the car.
The officers’ weapons were drawn, but Special Agent Swanson answered that he didn’t want to answer that
William Fleming testified at the suppression hearing that the question2. Fleming then reminded Swanson that he didn’t
team members were holding their weapons down at their have to answer any questions that he didn’t want to. Fleming
sides. The agents identified themselves to the group from the asked Swanson if there was anything in the car that would get
tattoo parlor, explained that they were executing an arrest him in trouble. Swanson replied yes. Fleming asked
warrant for Rick, and explained that the individuals aside Swanson for consent to search the car. Swanson said, “If I
from Rick would not be released until they were identified talk to you I’m screwed.” Swanson did not give consent to
and the agents could verify there were no outstanding law enforcement officers to search the Grand Am.
warrants for their arrest. The people from inside the shop
were put up against the wall of the shop and frisked for After agents found that Swanson did not have any
weapons. They were ordered to produce identification. The outstanding warrants, he was released. The agents seized the
agents identified Rick and arrested him. They also received Grand Am, and in a subsequent search of the vehicle found a
permission from the owner of the tattoo parlor to search the handgun in the front console between the front seats.
inside. Agents then ran the names provided by the people
through the Law Enforcement Information Network
(“LEIN”).
Swanson was among those who left the shop. He was 2
Swanson’s counsel asked several leading questions at this point
approached by Agent Fleming and was interviewed while the suggesting that Swanson had indicated a desire not to answer any more
questions. Fleming initially answere d these questions in a manner that
suggested that Swanson had indicated a desire for the questioning to stop,
1
but, shortly thereafte r, he testified that Swanson had only said that he
The validity of the warrant is not at issue. didn’t want to answer the question ab out drugs.
No. 01-1934 United States v. Swanson 5 6 United States v. Swanson No. 01-1934

On May 10, 2000, a federal grand jury returned a one-count A defendant may not be “compelled in any criminal case to
indictment against Swanson charging him with being a felon be a witness against himself.” U.S. Const. amend. V. The
in possession of a firearm, in violation of 18 U.S.C. Supreme Court held in Miranda v. Arizona, 384 U.S. 436,
§ 922(g)(1). Swanson filed motions to suppress the 478-79, 86 S. Ct. 1602, 1630 (1966) that a suspect subject to
statements and the firearm found in his car. After evidentiary custodial interrogation must first be given notice of his or her
hearings, the district court denied both motions. During right against self-incrimination. Statements obtained during
Swanson’s jury trial, the evidence regarding his statements custodial interrogation in violation of Miranda may not be
and the weapon was introduced and admitted without admitted for certain purposes in a criminal trial. Id. at 479.
objection. The jury found Swanson guilty on the sole count However, the obligation to administer a Miranda warning to
of the indictment. The district court sentenced Swanson to 90 a suspect only arises “where there has been such a restriction
months in prison, and a three-year term of supervised release. on a person’s freedom as to render him ‘in custody.’” Oregon
Swanson filed a timely notice of appeal. v. Mathiason, 429 U.S. 492, 495, 97 S. Ct. 711, 714 (1977)
(per curiam).
II
As Swanson does not challenge the validity of the
Swanson argues that the agents had no probable cause to investigatory stop that led to his questioning, we assume for
seize the Grand Am, and that the introduction of the evidence the purposes of this appeal that the agents conducted a lawful
of the firearm found in the vehicle violated his Fourth detention of Swanson, analogous to a Terry stop. See Terry
Amendment rights. He also argues that the statements v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968). A Terry stop is a
introduced against him at trial were elicited in violation of his “‘narrowly drawn’ exception to the probable cause
Fifth Amendment right against self-incrimination because he requirement of the Fourth Amendment.” United States v.
was in custody and received no Miranda warning. Richardson, 949 F.2d 851, 856 (6th Cir. 1991) (quoting
United States v. Sharpe, 470 U.S. 675, 689, 105 S. Ct. 1568,
A. The Miranda argument 1577 (1985) (Marshall, J., concurring in the judgment)). An
officer may stop a person upon reasonable suspicion of
Swanson argues that he was in custody at the time that he criminal activity. Ibid. “The officer may ask the detainee a
made his statements to Fleming and was thus entitled to a moderate number of questions to determine his identity and
Miranda warning. He argues that the district court erred by to try to obtain information confirming or dispelling the
denying his motion to suppress these statements. When officer’s suspicions. But the detainee is not obliged to
reviewing suppression issues, we review a district court’s respond. And, unless the encounter provides the officer with
factual findings for clear error, and its legal conclusions de probable cause to arrest him, he must then be released.” Ibid.
novo. United States v. Crossley, 224 F.3d 847, 860 (6th Cir. The very nature of a Terry stop means that a detainee is not
2000); United States v. Salvo, 133 F.3d 943, 948 (6th Cir.), free to leave during the investigation, yet is not entitled to
cert. denied, 523 U.S. 1122, 118 S. Ct. 1805 (1998). The Miranda rights. Berkemer v. McCarty, 468 U.S. 420, 439-41,
question of whether a defendant was “in custody” is a mixed 104 S. Ct. 3138, 3150-51 (1984). Therefore, the pertinent
question of fact and law, and is thus reviewed de novo. Salvo, question is whether Swanson was “in custody” during the
133 F.3d at 948 (citing Thompson v. Keohane, 516 U.S. 99, investigatory detention for the purposes of determining
100-03, 116 S. Ct. 457, 460 (1995)). whether his Fifth Amendment rights were violated.
No. 01-1934 United States v. Swanson 7 8 United States v. Swanson No. 01-1934

In determining whether a defendant was subject to custodial contact with the police . . . [or] acquiesced to their
interrogation we look to the totality of the circumstances “to requests to answer some questions.
determine ‘how a reasonable man in the suspect’s position
would have understood the situation.’” Salvo, 133 F.3d at Ibid. (quoting Salvo, 133 F.3d at 950).
948 (quoting United States v. Phillip, 948 F.2d 241, 247 (6th
Cir. 1991), cert. denied, 504 U.S. 930, 112 S. Ct. 1994 The place of the questioning was not hostile or coercive.
(1992)). The “ultimate inquiry is simply whether there is a The questioning took place outside, in a public space, with
formal arrest or restraint on freedom of movement of the other agents and at least seven or eight other people from
degree associated with a formal arrest.” United States v. inside the shop nearby. The Supreme Court addressed
Knox, 839 F.2d 285, 291 (6th Cir. 1988) (quoting California detentions in public spaces in Berkemer in the context of
v. Beheler, 463 U.S. 1121, 1125, 103 S. Ct. 3517, 3520 detentions during traffic stops. Berkemer, 468 U.S. at 438-39,
(1983) (per curiam) (internal quotation marks omitted)). 104 S. Ct. at 3149-50. The Court noted that “exposure to
public view both reduces the ability of an unscrupulous
After considering the totality of the circumstances of this policeman to use illegitimate means to elicit self-
investigatory detention, we conclude that Swanson was not incriminating statements and diminishes the [detainee’s] fear
subject to custodial interrogation. Although Swanson was not that, if he does not cooperate, he will be subjected to abuse.”
free to leave during the questioning, the restraint exercised Id. at 438, 104 S. Ct. at 3149.
never reached the level associated with “formal arrest or a
coercive context tantamount to custody.” Salvo, 133 F.3d at The place of the questioning in the present case is
953. substantially less hostile or coercive than in other cases in
which this court or the Supreme Court has held that a detainee
The first factor this court considers is whether a reasonable was not entitled to a Miranda warning. See Beheler, 463 U.S.
person in the defendant’s position would feel free to leave. at 1125-26, 103 S. Ct. at 3520 (detainee not “in custody”
Crossley, 224 F.3d at 861. However, as noted above, in the although questioning took place in a police station);
context of a Terry-style investigatory detention, a person is Mathiason, 429 U.S. at 495-96, 97 S. Ct. at 714 (questioning
not free to leave, at least temporarily. Thus, the first factor in at State Police offices behind closed doors not a custodial
the determination weighs in favor of defining Swanson’s interrogation where defendant was informed he was not under
detention and questioning as a custodial interrogation. Other arrest and was allowed to leave at the conclusion of the
factors we take into consideration include: interview); Mason v. Mitchell, 320 F.3d 604, 632 (6th Cir.
2003) (defendant not in custody although transported to
(1) the purpose of the questioning; (2) whether the place police station in police car as defendant voluntarily agreed to
of the questioning was hostile or coercive; (3) the length answer questions, was told he was free to leave, and was not
of the questioning; and (4) other indicia of custody such under arrest during interview). Moreover, this case is
as whether the suspect was informed at the time that the analogous to Salvo, in which this court noted that the
questioning was voluntary or that the suspect was free to locations of defendant’s interviews, his dormitory computer
leave or to request the officers to do so; whether the room and a Burger King parking lot, were not hostile or
suspect possessed unrestrained freedom of movement coercive environments. Salvo, 133 F.3d at 950-51.
during questioning; and whether the suspect initiated
No. 01-1934 United States v. Swanson 9 10 United States v. Swanson No. 01-1934

Swanson also possessed unrestrained freedom of movement to the witness, the man appeared to be angry or was arguing
during the questioning by Fleming. While he was not free to with his female companion. Ibid. The witness gave the
leave until his name was cleared through the LEIN, he was police a description of the car and a license plate number.
not in handcuffs or in any other way restrained. Moreover, he Ibid. One unmarked and two marked police cars, all with
was not arrested at the conclusion of the interview. While it lights flashing, stopped Jones in a way that his car was
is unclear from the testimony how long the questioning lasted, physically prevented from leaving the scene. Ibid. During
it is clear that the questioning only lasted as long as the time the brief encounter with the police, Jones, a convicted felon,
that it took to clear Swanson’s name through the LEIN. It admitted that he had a gun back at his apartment. Ibid. He
was not a prolonged interrogation, and Swanson was told that then followed the police back to his apartment in his own car.
he would be free to leave as soon as his name was cleared. Id. at 360. After a policeman looked for the gun in the
apartment and could not find it, Jones showed them where it
Most important to our analysis, though, is that Swanson was and he was arrested. Ibid.
was explicitly told by Fleming that he was not under arrest
and that he did not have so speak with him if he did not The issue on appeal in Jones was whether Jones gave
choose to. Swanson readily acquiesced, and seemed very voluntary consent to the search of his apartment. The court
cooperative and willing to talk. As noted in Salvo, a held that he did not. Id. at 362. It also held, unnecessarily,
statement by a law enforcement officer to a suspect that he is that Jones was in custody when questioned and brought back
not under arrest is an important part of the analysis of whether to his apartment, because the police had deprived Jones of his
the suspect was “in custody.” Salvo, 133 F.3d at 951 (suspect “freedom of action” in a “significant way.” Id. at 361. First,
not in custody where he was advised he was not under arrest this holding might be considered dicta in that it was not
and was free to leave at any time); see also Mathiason, 429 necessary to the determination of the issue on appeal.
U.S. at 495, 97 S. Ct. at 713-14 (defendant who was Second, a bare conclusion that Jones was in custody because
questioned at police station was not in custody where officer he had been deprived of his “freedom of action” in a
informed him that he was not under arrest and was free to “significant way” would be in direct contradiction to the
leave at the end of the interview); United States v. Sivils, 960 Supreme Court’s holding in Berkemer. In Berkemer, the
F.2d 587, 598 (6th Cir. 1992) (defendant not in custody where Court held that a motorist temporarily detained in a traffic
he was informed before questioning that he was not under stop does not have the right to a Miranda warning even
arrest); United States v. Macklin, 900 F.2d 948, 951 (6th Cir.) though a “traffic stop significantly curtails the ‘freedom of
(record would not support finding that defendants were in action’ of the driver . . . .” Berkemer, 468 U.S. at 436, 441,
custody where told that they were not under arrest and were 104 S. Ct. at 3148, 3150.
free to terminate questioning at any time), cert. denied, 498
U.S. 840, 111 S. Ct. 116 (1990). Therefore, the court in Jones must have concluded that the
stop at issue was something more than the routine traffic stop
Swanson argues that the facts in his case are analogous to addressed in Berkemer. Indeed, a routine traffic stop does not
the facts in United States v. Jones, 846 F.2d 358 (6th Cir. usually involve three police cars blocking the stopped vehicle.
1988). In Jones, the defendant was stopped by three police In comparing Jones to the present case, however, it is clear
cars after the police received a call from a citizen who that there are significant differences. In Jones, the
reported that he had witnessed a man place a long-barreled questioning took place in a coercive atmosphere because
rifle or gun in the front seat of his car. Id. at 359. According Jones was surrounded by three police cars with lights
No. 01-1934 United States v. Swanson 11 12 United States v. Swanson No. 01-1934

flashing. There is also no indication that he was told that the States v. Leake, 998 F.2d 1359, 1362 (6th Cir. 1993)
questioning was voluntary, or that he would be free to leave (citations omitted).
at the end of it, although he was told that he did not have to
let the police officers search his car. Contrary to Swanson’s A warrantless seizure of an automobile is reasonable if
assertion, the test for whether a person is in custody for there is “probable cause that an automobile contains evidence
Miranda purposes is not simply whether a reasonable person or fruits of a crime plus ‘exigent circumstances.’” United
would have felt free to leave in the circumstances surrounding States v. Beck, 511 F.2d 997, 1001 (6th Cir. 1975). The
the interrogation. Although the “felt free to leave” inquiry government urges us to hold that the “automobile exception”
may be a factor for consideration, see Crossley, 224 F.3d at to the warrant requirement justified the seizure and
861; Salvo, 133 F.3d at 949-50, the “ultimate inquiry is subsequent search of Swanson’s car. However, the question
simply whether there is a formal arrest or restraint on freedom requires more than a mere invocation of the automobile
of movement of the degree associated with a formal arrest.” exception. The Supreme Court in Coolidge v. New
Knox, 839 F.2d at 291 (quoting California v. Beheler, 463 Hampshire, 403 U.S. 443, 91 S. Ct. 2022 (1971), stated that
U.S. 1121, 1125, 103 S. Ct. 3517, 3520 (1983) (per curiam) “[t]he word ‘automobile’ is not a talisman in whose presence
(internal quotation marks omitted)). the Fourth Amendment fades away and disappears.” Id. at
461, 91 S. Ct. at 2035. The Court in Coolidge distinguished
The court in Jones concluded that based on the totality of between the seizure of an automobile parked in the
the circumstances, there was “a restraint of movement of the defendant’s driveway and one that the police have stopped
degree associated with formal arrest.” In reviewing the and is readily mobile. Id. at 461 n.8, 91 S. Ct. at 2036.
totality of the circumstances, we conclude that Swanson was
not in custody for Miranda purposes, and that the district The Supreme Court’s holding in Carroll v. United States,
court did not err when it denied the motion to suppress his 267 U.S. 132, 45 S. Ct. 280 (1925), extended only to
statements. warrantless searches of automobiles where the searching
officer had probable cause and the car was stopped on the
B. The Fourth Amendment argument highway. Id. at 156, 45 S. Ct. at 286. In Chambers v.
Maroney, 399 U.S. 42, 90 S. Ct. 1975 (1970), the Court held
Swanson argues that the seizure of his car was without any that if a warrantless search is justified under Carroll, the
legal justification, as the agents did not have probable cause. police may seize the car and search it at the station house
He argues that at the time of the seizure, the agents did not without a warrant. Id. at 52. In Coolidge, the Court stated
have any information that Rick (the target of the agents’ arrest that the automobile exception to the warrant requirement
warrant) had been in the car for over a month, and had no extended only to circumstances in which “it is not practicable
information that there was evidence of a crime inside the car. to secure a warrant.” Coolidge, 403 U.S. at 462, 91 S. Ct. at
2036 (quoting Carroll, 267 U.S. at 153, 45 S. Ct. at 285). It
We review the district court's decision on Swanson’s held that Carroll would not have justified a warrantless
motion to suppress under “two complementary standards. search of Coolidge’s car at the time of his arrest, and thus, the
First, the district court's findings of fact are upheld unless subsequent search at the station house was also illegal. Id. at
clearly erroneous. Second, the court's legal conclusion as to 463, 91 S. Ct. at 2036.
the existence of probable cause is reviewed de novo.” United
No. 01-1934 United States v. Swanson 13 14 United States v. Swanson No. 01-1934

The reasons the Court ultimately concluded that a guns. When asked if there was anything in the car that could
warrantless search of Coolidge’s car would not have been get him into trouble, he replied yes. There was “a fair
justified by the automobile exception are instructive in the probability that contraband or evidence of a crime” would be
analysis of the present case. The Court stated that what found inside the automobile. Illinois v. Gates, 462 U.S. 213,
distinguished the seizure of Coolidge’s car from the search in 238, 103 S. Ct. 2317, 2332 (1983).
Carroll was that there was “no alerted criminal bent on flight,
no fleeting opportunity on an open highway after a hazardous There were also exigent circumstances that justified the
chase, no contraband or stolen goods or weapons, no warrantless seizure and search. The Supreme Court has noted
confederates waiting to move the evidence, not even the that “[t]he mobility of automobiles, . . . creates circumstances
inconvenience of a special police detail to guard the of such exigency that, as a practical necessity, rigorous
immobilized automobile.” Id. at 462, 91 S. Ct. at 2036. The enforcement of the warrant requirement is impossible.”
police knew where the car was regularly parked, they arrested California v. Carney, 471 U.S. 386, 391, 105 S. Ct. 2066,
Coolidge and escorted his wife to another location, had the 2069 (1985) (internal quotation marks omitted). In this case,
premises guarded by two policemen throughout the night, and the agents were not arresting Swanson. He would have been
the evidence seized consisted of vacuum sweepings. Id. at free to drive the car away, and perhaps destroy or dispose of
448, 460-61, 91 S. Ct. at 2028, 2035. The Court assumed the evidence, or even the car itself. The evidence they believed
police had probable cause for the purposes of delineating the they would find in the car was contraband or weapons. See
automobile exception. Id. at 458, 91 S. Ct. at 2034. Coolidge, 403 U.S. at 460, 91 S. Ct. at 2035 (distinguishing
the objects the police expected to find in the automobile from
We conclude that the agents had both probable cause and objects that are “stolen [or] contraband [or] dangerous”).
justification for seizing and searching Swanson’s automobile Indeed, the agents could have guarded both Swanson and the
without a warrant. First, the agents had probable cause to car until a warrant could be obtained. However, that is no
seize and search the vehicle. Rick had used the Grand Am to less of an intrusion than the seizure and subsequent search of
deliver an automatic weapon thirty days earlier to a the car. See Chambers, 399 U.S. at 51-52, 90 S. Ct. at 1981.
confidential informant; thus the vehicle was used as an
instrumentality of the crime. The agents also had ample facts While it is true that the agents had known for some time the
at their disposal to support their belief that there was further role the Grand Am played in their investigation of Rick, from
evidence of a crime inside the car. Only two days earlier, a review of the testimony at the suppression hearing, it
Rick had received a Federal Express package from the appears that the warrant to arrest Rick issued only one or two
confidential informant containing money as payment for days before it was executed and the automobile seized.
automatic weapons and silencers that Rick was to deliver by Moreover, the package containing the purchase money had
United Parcel Service. The agents had seen Rick arrive for arrived only two days before the execution of the warrant. As
work at the tattoo parlor in the Grand Am that day. When the agents testified, it was the belief that this money or the
they searched the tattoo parlor, the empty Federal Express automatic weapons Rick was selling would be in the car that
package was found in the trash. They also found three formed the basis of their probable cause to seize it.
handguns, but not any automatic weapons that might be the
ones that were to be delivered to the confidential informant. The agents would have been justified in searching the car
Moreover, the agents had just spoken with Swanson. at the scene according to Carroll. Therefore, they were
Swanson had given evasive answers only to questions about justified in seizing the car and searching it at a later time.
No. 01-1934 United States v. Swanson 15

Chambers, 399 U.S. at 51-52, 90 S. Ct. at 1981; Autoworld
Specialty Cars, Inc. v. United States, 815 F.2d 385, 389 (6th
Cir. 1987) (upholding the warrantless seizure of cars out of a
showroom because the officers had probable cause and
because of the inherent mobility of cars); see also United
States v. Graham, 275 F.3d 490, 511 (6th Cir.) (affirming
district court’s denial of motion to suppress evidence
recovered from a pickup truck because the agent had probable
cause to search the truck and the inherent mobility of the
truck), cert. denied, 535 U.S. 1026 (2001).
III.
For the foregoing reasons, we AFFIRM Swanson’s
conviction.