NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0321n.06
Case No. 13-5593
FILED
May 01, 2015
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA, )
)
Plaintiff-Appellee, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE EASTERN DISTRICT OF
LESLIE ASHMORE, ) TENNESSEE
)
Defendant-Appellant. )
) OPINION
)
BEFORE: MERRITT, MOORE, and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. Leslie Ashmore, a convicted felon, was
charged with two counts of being a felon in possession of a firearm, in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). Count One related to two firearms found in Ashmore’s constructive
possession on October 7, 2011, and Count Two related to a firearm found in Ashmore’s
constructive possession on October 20, 2011. A jury acquitted Ashmore on Count One, but
convicted him on Count Two. Ashmore filed a post-trial motion to dismiss Count Two, arguing
that the government, at trial, improperly introduced evidence that had been suppressed by the
district court. The district court denied Ashmore’s motion to dismiss. Ashmore appeals the
district court’s denial of the motion to dismiss, its denial of his motion to suppress, and the
sentence imposed, and he seeks dismissal of Count Two with prejudice. We AFFIRM the
Case No. 13-5593
United States v. Ashmore
district court’s denial of Ashmore’s motion to dismiss, REVERSE the district court’s denial of
Ashmore’s motion to suppress, VACATE Ashmore’s conviction, and REMAND for a new trial.
I.
A.
On October 7, 2011, an officer with the Kingsport Police Department (“KPD”) responded
to a call from the Super 8 Motel on Lynn Garden Drive in Kingsport, Tennessee, regarding a
welfare check for a person reportedly passed out inside of a vehicle. The officer found Leslie
Ashmore asleep inside a silver Buick LeSabre. The officer noticed Ashmore’s constricted pupils
and asked him to perform a variety of field sobriety tests. An eventual search of Ashmore’s
person uncovered what appeared to be crack cocaine, drug paraphernalia, and a large amount of
cash. An eventual search of the Buick uncovered drug paraphernalia and two firearms found
inside a lock box to which Ashmore had the key. Ashmore was charged with various state drug
and weapon offenses. These state charges were ultimately dismissed, however, due to ensuing
federal charges.
Based on the evidence obtained by the KPD on October 7, 2011, a federal criminal
complaint and arrest warrant were issued for Ashmore on October 20, 2011. That same day,
officers with the KPD and special agents with the Bureau of Alcohol, Tobacco, Firearms and
Explosives (“ATF”), led by Special Agent Jamie Jenkins (“Agent Jenkins”), executed the arrest
warrant. The KPD advised Agent Jenkins that Ashmore had a violent criminal history,
dangerous tendencies, and a history of encounters with local law enforcement. As such, a team
of 10 to 20 officers, including KPD’s SWAT team, was deployed to apprehend Ashmore.
In an effort to locate Ashmore, the team directed a confidential source to arrange to
purchase crack cocaine from Ashmore. Ashmore and the confidential source arranged to meet at
-2-
Case No. 13-5593
United States v. Ashmore
a Wal-Mart on Stone Drive in Kingsport. Officers observed Ashmore exit the Wal-Mart with a
white female and get into a Cadillac. The officers conducted a traffic stop on the Cadillac when
it left Wal-Mart; the white female, Misty Hutchins, was driving, and Ashmore was in the
passenger seat. The officers ordered Hutchins out of the vehicle and immediately arrested her.
Officers ordered Ashmore out of the vehicle, and he complied. Armed SWAT team
officers then approached Ashmore, immediately took him to the ground, and handcuffed him.
After Ashmore was handcuffed by other officers, Agent Jenkins approached, identified himself,
and informed Ashmore about the federal arrest warrant. Agent Jenkins testified at a later
suppression hearing that, at this point, he asked Ashmore if he “had any firearms on his person or
in his car or any other dangerous items” and if his fingerprints would be on any weapons found
“like there were on the two guns found a couple of weeks earlier.” Ashmore responded that the
car “possibly” or “probably” contained a revolver that belonged to his wife. It is undisputed that
Agent Jenkins had not advised Ashmore of his Miranda rights prior to asking this question.
Agent Jenkins then stepped aside to report that Ashmore had been arrested; meanwhile, a KPD
officer, Hank McQueen, requested and obtained Ashmore’s consent to search the vehicle.
An officer escorted Ashmore to a police cruiser,1 and Agent Jenkins advised Ashmore of
his Miranda rights. According to Agent Jenkins’ suppression hearing testimony, he then asked
Ashmore if he was a convicted felon and whether he knew that he could not lawfully possess
firearms. Ashmore responded affirmatively to each of those questions. Agent Jenkins asked
Ashmore whether he used illegal narcotics, to which Ashmore responded that he smoked crack
cocaine daily and took pain pills. By this time, the officers searching the vehicle had
“immediately” located a weapon under the driver’s seat. According to Agent Jenkins, the
1
It is unclear from Agent Jenkins’ testimony who escorted Ashmore to the police cruiser.
-3-
Case No. 13-5593
United States v. Ashmore
firearm was in a location where it would have been more accessible to the front passenger than to
the driver. In response to questioning, Ashmore stated that the firearm was loaded and that the
firearm belonged to his wife. Various drugs and drug paraphernalia were also found on
Ashmore’s person and in the vehicle.
B.
In April 2012, a federal grand jury re-indicted Ashmore on two counts of possessing a
firearm after having been convicted of a felony, in violation of 18 U.S.C. §§ 922(g)(1) and
924(e). Count One related to the two firearms found on October 7, 2011, while Count Two
related to the firearm found on October 20, 2011.
On July 31, 2012, Ashmore moved to suppress any statements he made to law
enforcement officers on October 20, 2011, before he was advised of his Miranda rights.
Ashmore argued that, before he received Miranda warnings, he had been questioned “about
whether any guns were in the car.” The government argued that, under Miranda’s “public
safety” exception, suppression was not required for Ashmore’s answer to the pre-Miranda
question about whether he possessed any firearms or other dangerous items.
A magistrate judge conducted an evidentiary hearing on the motion on September 28,
2012, and found that, before Ashmore received Miranda warnings on October 20, 2011, “Agent
Jenkins asked defendant, ‘Do you have anything dangerous or any weapons on you or in the
car?’ To that question defendant responded, ‘My wife may have a gun in the car.’” United
States v. Ashmore, No. 2:12-CR-34, 2012 WL 5450447, at *3 (E.D. Tenn. Oct. 2, 2012). Noting
that Ashmore had already been handcuffed and removed from the vicinity of the Cadillac, the
magistrate judge concluded that Agent Jenkins could not have had any objectively reasonable
fear for his safety. Id. at *5 (relying on United States v. Williams, 483 F.3d 425 (6th Cir. 2007)).
-4-
Case No. 13-5593
United States v. Ashmore
Accordingly, the magistrate judge rejected the government’s argument that the public safety
exception applied, and recommended suppression of Ashmore’s “statement subsequent to his
arrest.” Id. The magistrate judge did not recommend suppression of the gun itself2 because
(1) the vehicle driven by Hutchins could have been lawfully searched without a warrant and with
no further showing of probable cause, and (2) the firearm would, in any event, have been
inevitably discovered. Id. (citing New York v. Belton, 453 U.S. 454 (1981), superseded by
Arizona v. Gant, 556 U.S. 332 (2009) and United States v. White, 871 F.2d 41 (6th Cir. 1989)
superseded by Arizona v. Gant, 556 U.S. 332 (2009)).
The government filed a motion for clarification of the report and recommendation, on the
grounds that the report did not explicitly state that Ashmore’s post-Miranda statement was not
excluded from the government’s proof at trial. The magistrate judge then issued a supplemental
report and recommendation, recommending that Ashmore’s motion to suppress his statements to
Agent Jenkins after being Mirandized be denied. United States v. Ashmore, No. 2:12-CR-34,
2012 WL 5450449, at *2 (E.D. Tenn. Oct. 11, 2012). Specifically, the magistrate judge found:
The vehicle was searched. Whether it was searched incident to
defendant’s arrest, or pursuant to the consent obtained by Officer McQueen is
beside the point; in either event, it was lawfully searched and the firearm found.
After the firearm was found, and as noted above, Agent Jenkins
Mirandized defendant. Agent Jenkins asked defendant if the gun was loaded, and
defendant responded that it was. He also told Jenkins that he smoked crack daily,
took various pain pills, and knew that as a convicted felon he could not lawfully
possess firearms.
A “follow-up” incriminating statement made after a previous un-warned
statement, even if the follow-up statement was made after administration of a
2
Ashmore’s motion to suppress, and memorandum in support, did not seek to suppress the gun
itself—only his statements. At the suppression hearing, however, Ashmore orally moved to
suppress the gun as fruit of the poisonous tree.
-5-
Case No. 13-5593
United States v. Ashmore
Miranda warning, must be suppressed if the second, albeit warned, statement
inexorably flowed from the earlier statement. It is the “cat-out-of-the-bag”
situation. But that is not the case here. The gun itself was lawfully found.
Jenkins’ question regarding whether the gun was loaded logically would have
been asked even if the first question had never been asked. In other words, the
second question was independent of, and legally unrelated to, Jenkins’ first
question to defendant. Jenkins’ post-Mirandized question was “purged of the
[initial] taint.” Wong Sun v. United States, 371 U.S. 471, 487-88[ ](1963).
Id. at *1-2.
Ashmore objected to the magistrate judge’s conclusion, arguing that all of his statements,
as well as the firearm itself, should be suppressed because Agent Jenkins did not provide
Miranda warnings before asking his initial question. After conducting de novo review, the
district court adopted the magistrate judge’s report and recommendations—i.e., it suppressed only
Ashmore’s pre-Miranda statement (“that the car might contain a revolver belonging to his wife”)
and denied Ashmore’s suppression motion in all other respects. United States v. Ashmore, No.
2:12-CR-034, 2012 WL 5450446, at *5 (E.D. Tenn. Nov. 7, 2012).
Ashmore’s trial began and ended on December 13, 2012. Agent Jenkins testified about
Ashmore’s October 20, 2011, arrest and about the conversation he had with Ashmore after
advising him of his Miranda rights. Agent Jenkins testified that, during that conversation,
Ashmore stated the firearm in the vehicle belonged to his wife, that the firearm was loaded, that
the firearm was a .38 caliber revolver, that Ashmore was a convicted felon, and that he knew he
was not supposed to possess firearms. Ashmore did not object during this testimony.
Instead, during cross-examination, defense counsel sought to impeach Agent Jenkins on the
grounds that, when he testified during the suppression hearing, Agent Jenkins had not
specifically mentioned that Ashmore had identified the caliber of the revolver.
-6-
Case No. 13-5593
United States v. Ashmore
On re-direct examination, Agent Jenkins explained that he had taken notes while or
immediately following talking with Ashmore following his arrest, and that the notes showed
that he never asked Ashmore about the caliber of the firearm, but Ashmore had volunteered
that there was a loaded .38 caliber revolver in the car.
The jury acquitted Ashmore of unlawful firearm possession on October 7, 2011
(Count One), and convicted Ashmore of unlawful firearm possession on October 20, 2011
(Count Two). Ashmore then filed a motion to dismiss Count Two with prejudice, complaining
that the government had violated the district court’s suppression ruling because: (1) Agent
Jenkins testified at trial that Ashmore told him the firearm was a .38 caliber revolver, and
(2) Agent Jenkins had not mentioned the caliber of the weapon during the suppression hearing
and, even if Ashmore had made such a statement, he did so before Miranda warnings had been
given. The government responded in opposition, emphasizing that the caliber of the firearm
was referenced in Agent Jenkins’ contemporaneous notes and that Agent Jenkins testified at
trial that he made those notes while speaking with Ashmore after having advised him of his
Miranda rights.
The district court denied Ashmore’s motion to dismiss, crediting Agent Jenkins’ trial
testimony that Ashmore had been Mirandized before he made the statements that Agent
Jenkins recounted at trial. United States v. Ashmore, No. 2:12-CR-034, 2013 WL 256752, at
*2 (E.D. Tenn. Jan. 23, 2013). The district court found that, contrary to Ashmore’s assertions,
“there were no ‘government actions’ at trial which ‘circumvented and ignored the court’s
previous rulings.’” Id. The court also noted that Ashmore had not objected to Agent Jenkins’
testimony that Ashmore mentioned the caliber of the firearm, that Ashmore had not disputed
the government’s assertion that the basis for that testimony was in the notes provided during
-7-
Case No. 13-5593
United States v. Ashmore
discovery, and that the defense had instead elected only to cross-examine Agent Jenkins about
the veracity of his testimony, rather than objecting to it. Id. at *2-3.
On April 30, 2013, the district court sentenced Ashmore to 240 months of
imprisonment, within the advisory guidelines range applicable to him, and five years of
supervised release. This timely appeal followed.
II.
A.
We first address Ashmore’s contention that the government violated the district court’s
suppression order when it presented Agent Jenkins’ trial testimony regarding the caliber of the
weapon. Because Ashmore did not object during Agent Jenkins’ testimony, we review the
district court’s denial of Ashmore’s subsequent motion to dismiss for plain error.3 See Fed. R.
Crim. P. 52(b) (“A plain error that affects substantial rights may be considered even though it
was not brought to the court’s attention.”); see also Meador v. Cabinet for Human Res., 902 F.2d
474, 477 (6th Cir. 1990) (“A federal appellate court can resolve an issue not passed on below
where the proper resolution is beyond any doubt or where injustice . . . might otherwise result.”)
(internal quotation marks omitted).
At the suppression hearing, Agent Jenkins testified that he asked Ashmore a single,
compound pre-Miranda question: if he “had any firearms on his person or in his car or any other
3
We discern no support for Ashmore’s argument, raised for the first time in his reply brief, that he
timely objected at trial. Rather than object, Ashmore instead attempted to demonstrate, during
cross-examination, that when he testified during the suppression hearing, Agent Jenkins had not
specifically mentioned that Ashmore had identified the caliber of the revolver. There is only one
reasonable reading of defense counsel’s questions on cross and re-recross: defense counsel was
trying to impeach Agent Jenkins by suggesting that he, for the first time at trial, was claiming that
Ashmore told him that the firearm was a .38 caliber. Nothing in defense counsel’s questioning
suggests that he was arguing that the court’s suppression ruling was violated.
-8-
Case No. 13-5593
United States v. Ashmore
dangerous items” and if his fingerprints would be on any weapons found “like there were on the
two guns found a couple of weeks earlier.” Ashmore responded that the car “possibly” or
“probably” contained a revolver that belonged to his wife. Agent Jenkins further testified that he
asked Ashmore a slew of questions post-Miranda: whether he was convicted felon, whether he
knew that he could not lawfully possess firearms, whether he used illegal narcotics, and—after
the firearm had been found—whether the weapon was loaded.
At trial, Agent Jenkins testified to the following:
[The government] Okay. And where was he taken after he was placed under
arrest?
[Agent Jenkins] Immediately he was walked back to a transport unit, a Narc Unit
with the Kingsport Police Department.
[The government] Okay. And was he placed inside the vehicle, or did he stay
outside?
[Agent Jenkins] At some point he was. I’m not sure exactly what point. I had a
conversation with him at that one point and at that time he was outside of the
vehicle.
[The government] Now at some point did you have a conversation with Mr.
Ashmore?
[Agent Jenkins] Yes, I did.
[The government] Okay. Did you read him his Miranda [r]ights before you had
that conversation?
[Agent Jenkins] Yes, I did.
[The government] And will you tell the Jury about, about that conversation?
[Agent Jenkins] Sure. Mr. Ashmore stated to me that the firearm in the car
belonged to his wife. He also stated to me that it was loaded, and that it was [a]
-9-
Case No. 13-5593
United States v. Ashmore
38 caliber revolver. He also stated to me that he was a convicted felon, and that
he knew that he was not supposed to possess firearms.
Agent Jenkins’ trial testimony ostensibly complies with the district court’s suppression order in
that it does not allude to any question posed or response made before Ashmore was Mirandized.
The problem, however, is that Agent Jenkins’ trial testimony includes a statement that
previously—at the suppression hearing, in the magistrate judge’s report and recommendations,
and in the district court’s suppression order—had consistently been categorized as pre-Miranda.
That is, Agent Jenkins represented in his trial testimony—uncorrected by the government—that
all of Ashmore’s alleged statements occurred post-Miranda.
B.
Agent Jenkins’ trial testimony also presents an additional problem: it may or may not be
consistent with the version of the facts Agent Jenkins has presented elsewhere. In this case, there
is a clear disconnect between what information the parties had in their possession leading up the
Ashmore’s trial and what information was communicated to the magistrate judge and the district
court in the lead-up to trial. To reach this conclusion, we need only note that both the
government and the defense now rely on the same documents to support their conflicting
positions on appeal: Agent Jenkins’ contemporaneous notes and grand jury testimony.
At trial, on re-direct examination, and in reaction to Ashmore’s questions on cross-
examination, the government had Agent Jenkins explain that he had taken notes while or
immediately following talking with Ashmore following his arrest, and that the notes showed that
while he never asked Ashmore about the caliber of the firearm, Ashmore had volunteered that
there was a loaded .38 caliber revolver in the car. Likewise, in its response in opposition to
Ashmore’s motion to dismiss, the government argued that the caliber of the firearm was
- 10 -
Case No. 13-5593
United States v. Ashmore
referenced in Agent Jenkins’ contemporaneous notes and that Agent Jenkins testified at trial that
he made those notes while speaking with Ashmore after having advised him of his Miranda
rights. Thus, the government argues, Ashmore should have known Agent Jenkins could testify
to the caliber of the firearm—even though he did not so testify at the suppression hearing.
Conversely, Ashmore argued in his motion to dismiss that Agent Jenkins had not
mentioned the caliber of the weapon during the suppression hearing, and, even if Ashmore had
made such a statement, he did so before Miranda warnings had been given. Ashmore further
argued that, “[g]iven the previous factual findings and rulings by the [c]ourt, counsel for Mr.
Ashmore were surprised by the government’s questioning and Agent Jenkins’ testimony
regarding Mr. Ashmore stating that his wife had a .38 revolver in the car and that Mr. Ashmore
made the statement before the firearm was seized by law enforcement officers.” Now, on appeal,
Ashmore concedes that he referenced the caliber of the weapon, but asserts that he did so pre-
Miranda. Ashmore contends that Agent Jenkins’ contemporaneous notes taken after Ashmore’s
arrest (referenced by the government at trial) and his grand jury testimony (furnished by the
government during discovery as Jencks4 material and referenced in the government’s response in
opposition to Ashmore’s motion to dismiss) support this conclusion.
Neither the government, nor Ashmore, nor Agent Jenkins referenced these documents or
made them available to the magistrate judge or district court at any time prior to Agent Jenkins’
testimony at trial—as the district court noted in its memorandum and order denying Ashmore’s
motion to dismiss. Ashmore, 2013 WL 256752, at *2. Likewise, these documents also have not
been produced as evidence on appeal. The parties seem generally to agree, however, on the
content of these documents.
4
18 U.S.C. § 3500.
- 11 -
Case No. 13-5593
United States v. Ashmore
C.
Under the plain-error standard, “an appellate court may, in its discretion, correct
an error not raised at trial only where the appellant demonstrates that (1) there is
an error; (2) the error is clear or obvious, rather than subject to reasonable dispute;
(3) the error affected the appellant’s substantial rights, which in the ordinary case
means it affected the outcome of the district court proceedings; and (4) the error
seriously affects the fairness, integrity or public reputation of judicial
proceedings.”
United States v. Brooks, 628 F.3d 791, 797 (6th Cir. 2011) (quoting United States v. Marcus,
560 U.S. 258, 262 (2010)). Applying this standard, we find the district court did not plainly err
in denying Ashmore’s motion to dismiss.
Even assuming the district court erred in denying the motion (first prong), that error is
neither clear nor obvious (second prong). Agent Jenkins’ notes and grand jury testimony do not
fully support either the government’s position on appeal or Ashmore’s position on appeal. This
is because Agent Jenkins’ notes and grand jury testimony exhibit a level of specificity that is not
apparent in his suppression hearing testimony or his trial testimony. Thus, when the magistrate
judge recommended to the district court suppression of the pre-Miranda statements, the
magistrate judge was not aware that Ashmore ever referenced the caliber of the weapon.
Because the magistrate judge was unaware of this information, he did not make specific findings
of fact as to when Ashmore referenced the caliber of the firearm.
The end result is that Agent Jenkins’ trial testimony about the caliber of the weapon does
not clearly fall inside or outside the district court’s suppression of pre-Miranda statements. The
magistrate judge and the district court discerned only one pre-Miranda statement: “that the car
might contain a revolver belonging to [Ashmore’s] wife.” Ashmore, 2012 WL 5450446, at *5.5
5
Although Ashmore has not raised this argument on appeal, we note that in both his notes and his
grand jury testimony, Agent Jenkins claimed that Ashmore twice said that the firearm belonged
to his wife. Jenkins asserted that Ashmore said it once pre-Miranda (there might be a .38 caliber
- 12 -
Case No. 13-5593
United States v. Ashmore
Similarly, the magistrate judge discerned only one post-Miranda statement related to the firearm:
that the firearm was loaded. Ashmore, 2012 WL 5450449, at *2. The district court, in adopting
the report and recommendations, did not explicitly identify any post-Miranda statements; rather,
the district court generally ruled any pre-Miranda statements were suppressed and all post-
Miranda statements were allowed. Ashmore, 2012 WL 5450446, at *5.
There is some logic to Ashmore’s argument that a chronological reading of Agent
Jenkins’ notes and grand jury testimony suggests that Ashmore referenced the caliber of the
firearm pre-Miranda. That is, Ashmore told Agent Jenkins the caliber of the firearm at the same
time he told Agent Jenkins the firearm belonged to his wife—in response to Agent Jenkins’
initial question, pre-Miranda. Nonetheless, we need not resolve this question of what Ashmore
said and when. Even assuming Ashmore referenced the caliber of the weapon pre-Miranda, and
Agent Jenkins’ testimony to that effect violated the court’s suppression order, Ashmore did not
object during Agent Jenkins’ testimony. Ashmore concedes that Agent Jenkins’ notes and grand
jury testimony, both of which reference the caliber of the weapon, were provided to him during
discovery. As such, he cannot now claim to have been “surprised” by Agent Jenkins’ trial
testimony concerning the caliber of the weapon.
In sum, because it is not clear whether the caliber statement was pre-Miranda or post-
Miranda—and because, critically, Ashmore did not object in order to allow the district court to
revolver belonging to my wife in the car) and again post-Miranda (the firearm is loaded and it
belongs to my wife). This version of events, if true, would render the district court’s suppression
ruling almost completely meaningless. The district court would have suppressed a pre-Miranda
statement (the weapon belongs to Ashmore’s wife) that, under the suppression order, could still
have been admitted into evidence because it was allegedly repeated post-Miranda. We question
why the government—despite filing a motion before the magistrate judge seeking clarification
that post-Miranda statements were admissible, but curiously neglecting to specify what these
alleged post-Miranda statements were—failed to inform the district court of this redundancy.
- 13 -
Case No. 13-5593
United States v. Ashmore
make that determination—any error that might have been made by the district court could not
have been obvious. The admission of Agent Jenkins’ testimony as to Ashmore’s reference to the
caliber of the firearm therefore cannot amount to plain error.
III.
We next address Ashmore’s claim that his post-Miranda statements should have been
suppressed because of improper pre-Miranda questioning by law enforcement.6 To briefly
recap, the KPD, generally familiar with Ashmore—due in part to his October 11, 2011, arrest—
believed him to be armed and dangerous. After the KPD imparted this information to the ATF,
Agent Jenkins deployed a team of 10 to 20 officers, including KPD’s SWAT team, to apprehend
Ashmore. The SWAT team surrounded the vehicle in which Ashmore was a passenger.
Ashmore exited, was taken to the ground, and then handcuffed. Ashmore was then questioned
by Agent Jenkins about the presence of weapons in the vehicle; then, after a break of mere
minutes and after being provided Miranda warnings, Ashmore was again questioned more
extensively by Agent Jenkins.
In reviewing the “denial of a motion to suppress, we review [the district court’s]
conclusions of law and application of the law to the facts . . . de novo.” United States v. Bowers,
594 F.3d 522, 525 (6th Cir. 2010) (alteration in original) (quoting United States v. Hardin,
6
We find no basis for the government’s claim that Ashmore has waived this argument. The
government’s waiver argument is based on its incorrect assertion that, before the district court,
Ashmore “only argu[ed] generally that his pre-Miranda statements should be suppressed.” In
reality, Ashmore argued in his motion to suppress that no Miranda warnings were ever given.
The government, in response, did not contend any Miranda warnings were ever given. Rather, it
relied on the public safety exception to Miranda. The magistrate judge found Agent Jenkins’
suppression hearing testimony that he Mirandized Ashmore credible, but rejected the
government’s argument that the public safety exception applied to the facts of this case.
- 14 -
Case No. 13-5593
United States v. Ashmore
539 F.3d 404, 416 (6th Cir. 2008) (internal quotation marks omitted)). We review the district
court’s factual findings for clear error. Id.
The Supreme Court’s decisions in Oregon v. Elstad, 470 U.S. 298 (1985) and Missouri v.
Seibert, 542 U.S. 600 (2004), address the admissibility of post-Miranda admissions relating to
statements made by a defendant prior to receiving Miranda warnings. In Elstad, the defendant
was interrogated in his home without being Mirandized, where he first confessed to a crime.
470 U.S. at 301. He was then taken to the police station, given proper warnings, and again
confessed. Id. The issue presented in that case was whether the second confession should not
have been admitted because it was the fruit of the first tainted confession. The Supreme Court
held the second confession admissible. The Court reasoned that “absent deliberately coercive or
improper tactics in obtaining the initial statement, the mere fact that a suspect has made an
unwarned admission does not warrant a presumption of compulsion.” Id. at 314. When the pre-
Miranda statement is coerced, however, “the time that passes between confessions, the change in
place of interrogations, and the change in identity of the interrogators all bear on whether that
coercion has carried over into the second confession.” Id. at 310. Applying this test, the Court
held the change in location and circumstances, the lack of a coercive environment for either
interrogation, and the lack of evidence suggesting that police exploited the suspect’s unwarned
admission to secure the second admission, supported its conclusion that the second confession
was not tainted by the first confession. Id. at 310, 315.
In Seibert, the Court addressed a similar issue—whether a police officer’s interrogation
strategy of eliciting pre-Miranda statements, Mirandizing the suspect “midstream,” and then
asking similar questions so the suspect will restate pre-Miranda admissions is proper. A
majority of the Court rejected this strategy and held that, in this situation, all statements—pre-
- 15 -
Case No. 13-5593
United States v. Ashmore
and post-Miranda—must be suppressed. Seibert, 542 U.S. at 604 (plurality opinion); id. at 618
(Kennedy, J., concurring). In doing so, five justices recognized that “[t]he object of question-
first is to render Miranda warnings ineffective by waiting for a particularly opportune time to
give them, after the suspect has already confessed.” Id. at 611; see also id. at 620 (Kennedy, J.,
concurring) (“As Justice Souter points out, the two-step technique permits the accused to
conclude that the right not to respond did not exist when the earlier incriminating statements
were made.”). As the plurality of four justices explained, “it would ordinarily be unrealistic to
treat two spates of integrated and proximately conducted questioning as independent
interrogations subject to independent evaluation simply because Miranda warnings formally
punctuate them in the middle.” Id. at 614; see also id. at 620-21 (Kennedy, J., concurring) (“The
technique used in this case distorts the meaning of Miranda . . . .”). Indeed, consistent with
Elstad, the Court recognized that Miranda warnings generally will be ineffective in a successive
interrogation that is “close in time and similar in content” to the pre-Miranda confession. Id. at
613; see also id. at 622 (Kennedy, J., concurring) (noting that “a substantial break in time and
circumstances between” pre- and post-Miranda statements may cure any failure to give pre-
Miranda warnings).
The four-justice plurality and Justice Kennedy, however, applied different tests to
determine whether a post-Miranda confession should be suppressed because of improper pre-
Miranda questioning. The plurality explained that “[t]he threshold issue when interrogators
question first and warn later is . . . whether it would be reasonable to find that in these
circumstances the warnings could function ‘effectively’ as Miranda requires.” Id. at 611-12. In
making this determination, the plurality set forth “a series of relevant facts that bear on whether
Miranda warnings delivered midstream could be effective enough to accomplish their object”:
- 16 -
Case No. 13-5593
United States v. Ashmore
(1) the completeness and detail involved in the first interrogation; (2) the overlapping content of
the pre- and post-Miranda statements; (3) the timing and setting of the interrogations; (4) the
continuity of police personnel during the two interrogations; and (5) the degree to which the
interrogator’s questions treated the second round as continuous with the first. Id. at 615.
In a concurring opinion, Justice Kennedy rejected the plurality’s objective approach for
one that turns on whether “the two-step interrogation technique was used in a calculated way to
undermine the Miranda warning.” Id. at 622 (Kennedy, J., concurring). Under this approach,
“[t]he admissibility of postwarning statements should continue to be governed by the principles
of Elstad unless the deliberate two-step strategy was employed.” Id. If the two-step strategy is
used, post-Miranda statements relating to the substance of pre-Miranda statements must be
excluded unless curative measures—such as “a substantial break in the time and circumstances”
between pre- and post-Miranda statements or an additional warning covering the inadmissibility
of pre-Miranda statements—are taken before the post-warning statement is made. Id.
In the present case, neither the magistrate judge nor the district court considered Elstad
and Seibert in concluding that Ashmore’s post-Miranda statements could be admitted against
him. In his first report and recommendation, the magistrate judge recommended that Ashmore’s
“motion to suppress his statement subsequent to his arrest should be granted.” Ashmore,
2012 WL 5450447, at *5. But as the government noted in its subsequent motion for
clarification, Ashmore made statements after his arrest both pre-Miranda and post-Miranda.
Accordingly, the government sought clarification that Ashmore’s “post-Miranda statement [was]
not excluded from the [government’s] proof at trial.” The magistrate judge, in granting the
government’s request, recommended admission of post-Miranda statements, and the district
court adopted this recommendation. Thus, the government’s request for admission of post-
- 17 -
Case No. 13-5593
United States v. Ashmore
Miranda statements was granted even though the government had not made an evidentiary
showing under Elstad and Siebert that admission was appropriate. This was error. See Seibert,
542 U.S. at 608 n.1 (“[T]he burden of showing admissibility rests, of course, on the prosecution.
The prosecution bears the burden of proving, at least by a preponderance of the evidence, the
Miranda waiver, and the voluntariness of the confession.” (alteration in original) (citations and
internal quotation marks omitted)). Applying both Elstad and Seibert, we find that the post-
Miranda statements made by Ashmore about the weapon should have been excluded. See
United States v. Pacheco-Lopez, 531 F.3d 420 (6th Cir. 2008) (declining to resolve the issue of
whether the plurality or concurring approach in Siebert controls because the statement would be
suppressed under any applicable framework).7
First, Ashmore’s post-Miranda statements about the weapon should have been
suppressed under Seibert. Under the plurality’s test, all of the factors suggest that Agent
Jenkins’ question-first, Mirandize-later tactic requires suppression of the post-Miranda
admission. See Pacheco-Lopez, 531 F.3d at 428-29 (applying plurality test). As to the first
factor, although the questioning was not as detailed as in Seibert, Agent Jenkins asked pre-
Miranda the one compound question relevant to a felon-in-possession charge: is there a gun in
the car and are your fingerprints on it? The second, third, and fourth factors favor suppression
7
As this Court has recognized, “there has been some confusion about whether the plurality or
concurring opinion controls” in Seibert. Pacheco-Lopez, 531 F.3d at 427 n.11 (noting circuit
split and citing cases that describe the problem with adopting Justice Kennedy’s approach); see
also United States v. Wooten, --- Fed. Appx. ----, No. 13-1566, 2015 WL 794278, at *5 (6th Cir.
Feb. 25, 2015) (noting that “this circuit and the First Circuit have avoided ruling on the issue in
cases in which the outcome would be the same under either framework”); United States v.
Heron, 564 F.3d 879, 884 (7th Cir. 2009) (concluding “that the Marks [v. United States, 430 U.S.
188, 193 (1977)] rule is not applicable to Seibert” because “Justice Kennedy’s intent-based test
was rejected by both the plurality opinion and the dissent”); United States v. Carrizales-Toledo,
454 F.3d 1142, 1152 (10th Cir. 2006). But, as in Pacheco-Lopez, because the post-Miranda
evidence should be suppressed under either test, we need not resolve this issue here.
- 18 -
Case No. 13-5593
United States v. Ashmore
because the pre- and post-Miranda questioning was materially the same; the second interrogation
followed shortly after the first; the setting of both interrogations was the same; and Agent
Jenkins conducted the questioning both times. Finally, under the fifth factor, Agent Jenkins
picked his line of questioning up post-Miranda right where he left off pre-Miranda—he wanted
to know what Ashmore knew about the gun that, by that time, had been found. All of this
suggests that “the Miranda warnings did not ‘effectively advise [Ashmore] that he had a real
choice about giving an admissible statement’ because the unwarned and warned interrogations
blended into one ‘continuum.’” Bobby v. Dixon, 132 S. Ct. 26, 31-32 (2011) (per curiam)
(quoting Seibert, 542 U.S. at 612, 617); see also Seibert, 542 U.S. at 616 (suppressing evidence
where “[t]he warned phase of questioning proceeded after a pause of only 15 to 20 minutes, in
the same place as the unwarned segment”).
Even under the deliberateness test set forth in Justice Kennedy’s concurrence, the post-
Miranda evidence should have been suppressed. Justice Kennedy’s test would suppress
evidence where “the two-step interrogation technique was used in a calculated way to undermine
the Miranda warning.” Seibert, 542 U.S. 622 (Kennedy, J., concurring). In determining whether
law enforcement agents deliberately employed the two-step interrogation tactic under this test,
courts “consider whether objective evidence and any available subjective evidence, such as an
[agent’s] testimony, support an inference that the two-step interrogation procedure was used to
undermine the Miranda warning.” United States v. Barnes, 713 F.3d 1200, 1205 (9th Cir. 2013)
(per curiam) (alteration in original) (quoting United States v. Williams, 435 F.3d 1148, 1158
(9th Cir. 2006)); see also United States v. Capers, 627 F.3d 470, 479 (2d Cir. 2010) (“[J]oin[ing]
[the Fifth, Ninth, and Eleventh] circuits in concluding that a court should review the totality of
the objective and subjective evidence surrounding the interrogations in order to determine
- 19 -
Case No. 13-5593
United States v. Ashmore
deliberateness [under Justice Kennedy’s deliberateness test], with a recognition that in most
instances the inquiry will rely heavily, if not entirely, upon objective evidence.”); Seibert,
542 U.S. at 616 n.6 (recognizing that “the intent of the officer will rarely be as candidly admitted
as it was here”).
Here, prior to the arrest, Agent Jenkins knew that Ashmore was recently found in
possession of firearms. He knew Ashmore’s criminal history, which indicated he was a felon.
(Id.) And he knew that Ashmore was sitting in the passenger seat of the car, suggesting that the
car was not his. With this knowledge, Agent Jenkins began questioning Ashmore about the
presence of weapons in the car and whether his fingerprints would be on any weapons found—
just seconds after Ashmore was unexpectedly surrounded by between 10 to 20 armed law
enforcement agents, arrested, taken to the ground, and handcuffed. Agent Jenkins has admitted
that his inquiry about fingerprints was a “trick” question because no fingerprints had been
discovered on the two weapons the KPD officers found on October 7, 2011. Questioning
Ashmore about the weapon at this time was unnecessary because, as the district court properly
found, Ashmore was already handcuffed, so there was no public safety rationale for the pre-
Miranda interrogation. Ashmore, 2012 WL 5450447, at *5; Ashmore, 2012 WL 5450446, at *5.
Instead, the timing and circumstances suggest that Agent Jenkins was attempting to induce
Ashmore to admit pre-Miranda that any weapons in the car belonged to him. At the very least,
the government has not put forward any evidence to rebut this conclusion. See, e.g., Capers, 627
F.3d at 480 (holding, under Justice Kennedy’s deliberateness test, “that the government must
meet its burden of disproving the deliberate use of a two-step interrogation technique [to
undermine the Miranda warning] by a preponderance of the evidence”).
- 20 -
Case No. 13-5593
United States v. Ashmore
Then, shortly after the pre-Miranda questioning, Agent Jenkins instructed officers to
bring Ashmore to a police cruiser. But instead of transporting Ashmore back to the station per
the initial plan, Agent Jenkins gave a Miranda warning and immediately began asking Ashmore
about the weapon again, getting him to repeat his prior admission. The government has
identified no need to continue the questioning at the scene of the arrest, just minutes after the
pre-Miranda interrogation, rather than at the police station. And because Agent Jenkins took no
“[c]urative measures . . . designed to ensure that a reasonable person in [Ashmore’s] situation
would understand the import and effect of the Miranda warning and of the Miranda waiver,”
Seibert, 542 U.S. 622 (Kennedy, J., concurring), the post-Miranda statements about the weapon
should therefore have been suppressed.
Second, suppression of the post-Miranda statements is also required under Elstad
because the pre-Miranda statements were obtained through “coercion or improper tactics” and
the coercion “carried over into the second confession.” Elstad, 470 U.S. at 308, 310. Again,
Agent Jenkins knew there could be a firearm in the car and attempted to elicit an admission from
Ashmore that he possessed the firearm prior to Miranda warnings by getting him to admit that
his prints would be on the gun. And, again, he did so seconds after Ashmore was unexpectedly
surrounded by armed agents and a convoy of law enforcement vehicles, taken to the ground, and
handcuffed. Thus, the “environment and manner” in which the pre-Miranda questioning
occurred suggests that the initial admission was obtained through coercion or improper tactics.
Id. at 305 (recognizing that “[t]he Miranda Court . . . presumed that interrogation in certain
custodial circumstances is inherently coercive”).
“When a prior statement is actually coerced, the time that passes between confessions,
the change in place of interrogations, and the change in identity of the interrogators all bear on
- 21 -
Case No. 13-5593
United States v. Ashmore
whether that coercion has carried over into the second confession.” Id. at 310. Here, all three of
these factors suggest that the coercion carried over: very little time passed between the first
confession and second; Ashmore remained in essentially the same place throughout both
interrogations; and Agent Jenkins questioned Ashmore both times about the weapon in the car.
Under this scenario, the second confession was not “sufficiently an act of free will to purge the
primary taint.” Id. at 306 (quoting Taylor v. Alabama, 457 U.S. 687, 690 (1982)) (internal
quotation marks omitted); see also Pacheco-Lopez, 531 F.3d at 429-30 (suppressing a second
confession under Elstad because “there was no change in the time or place of the interrogation,
or the identity of the interrogators”); cf. Coomer v. Yukins, 533 F.3d 477, 490-91 (6th Cir. 2008)
(finding suppression not warranted under Elstad and Seibert because of the changed
circumstances, which included a “time lapse of approximately three hours between the written
statement in Coomer’s apartment and her confession at the police station”).
Accordingly, Ashmore’s post-Miranda statements should also have been suppressed.
IV.
For the foregoing reasons, we AFFIRM the district court’s denial of Ashmore’s motion
to dismiss, REVERSE the district court’s denial of Ashmore’s motion to suppress, VACATE
Ashmore’s conviction, and REMAND for a new trial.
- 22 -