In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-2183
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KYRON MURDOCK,
Defendant-Appellant.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 05 CR 10067—Joe Billy McDade, Judge.
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ARGUED JUNE 13, 2007—DECIDED JULY 3, 2007
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Before COFFEY, FLAUM, and WILLIAMS, Circuit Judges.
FLAUM, Circuit Judge. Kyron Murdock was caught
with marijuana and crack cocaine in his pocket after
fleeing from police, and later admitted that the drugs, as
well as a gun police found in a nearby garbage can,
belonged to him. Prior to his jury trial on drug and gun
possession charges, Murdock moved to suppress his
confession, claiming that it was involuntary because the
police did not first administer Miranda warnings. Follow-
ing a suppression hearing in which Murdock presented no
evidence, the district court found that he had received
Miranda warnings and denied the motion. On appeal,
Murdock presents a different theory in support of his
motion to suppress. For the following reasons, we uphold
2 No. 06-2183
the denial of Murdock’s motion to suppress and affirm his
convictions.
I. BACKGROUND
Prior to trial, Murdock filed a motion to suppress in
which he asserted simply that the officers did not read him
the Miranda warnings before he confessed, and that, as a
consequence, he “made various incriminating oral state-
ments while in custody” that were “involuntary and were
obtained in violation of . . . [his] rights as guaranteed
under the Fifth Amendment.” At the suppression hearing,
the district court began by asking whether either party
wished to make a statement. Murdock responded only that
he stood on his written motion. Murdock’s sole argument
was that the officers failed to read him the Miranda
warnings.
During the remainder of the suppression hearing, the
government presented the testimony of Officers Carey
Hightower and Joshua Allenbaugh, and Sergeant Douglas
Theobald, all of the Peoria, Illinois police department.
Officer Hightower was the first to testify. He explained
that on August 25, 2005, he was patrolling a high-crime
area in Peoria with Officers Allenbaugh and Lee Edward
Braun when he noticed that a passing car was missing its
front license plate and that both the driver and front-seat
passenger were not wearing seatbelts. The officers sig-
naled for the car to pull over, and the driver immediately
complied. According to Hightower, as soon as the car
stopped, the front-seat passenger—whom he identified as
Murdock—jumped out and started running. Officers
Allenbaugh and Hightower gave chase and caught him
on a nearby porch.
Officer Hightower claimed that, as he handcuffed
Murdock and conducted a protective pat-down, Murdock
No. 06-2183 3
told him that he ran because he had “dope” in his right
pants pocket and did not want to get caught violating his
parole. With Murdock’s permission, Hightower searched
the pocket and recovered one baggie containing crack
and another containing marijuana. Hightower then put
Murdock in the squad car, and Officer Braun drove
Murdock and Hightower back to where the chase began. As
Hightower completed the necessary paperwork, Sergeant
Theobald arrived. Hightower told him about the chase
and the drugs he had found in Murdock’s pocket and
then returned to his paperwork while Theobald and
another officer retraced the chase route with a dog.
After Sergeant Theobald recovered a gun at the scene,
Officer Hightower and Officer Allenbaugh drove Murdock
to the police station. Once outside the station, the three
men remained in the car and Allenbaugh read Murdock
the Miranda warnings. Hightower maintained that he
heard Murdock tell Allenbaugh that he understood his
rights and wished to talk to the officer, but neither officer
asked Murdock to sign a written waiver. Moments later,
Hightower left the car to secure the drugs he found in
Murdock’s pocket. Accordingly, he did not hear Murdock’s
confession.
Officer Allenbaugh also testified at the suppression
hearing. He confirmed that he read Miranda warnings to
Murdock in the patrol car, and that Murdock said he
understood his rights and wished to talk. Allenbaugh did
not ask Murdock to sign a written Miranda waiver be-
cause he believed Murdock wished to speak to him.
Allenbaugh testified that he did not tape-record Murdock’s
statements because he typically does not do so absent a
specific request. Allenbaugh also stated that he never
made any threats or promises to Murdock in exchange for
a statement and that Murdock never requested to have
an attorney present during their conversation.
4 No. 06-2183
Officer Allenbaugh testified that during their conversa-
tion, Murdock told him that he ran from the officers
because he was on parole, and that the drugs in his pocket
belonged to him. When Allenbaugh advised Murdock that
possession of marijuana and crack violated his parole,
Murdock “started to get agitated.” Allenbaugh then asked
Murdock whether he knew that the police had recovered a
weapon, and Murdock said that he “never had a gun so
he didn’t know what [the officer] was talking about.”
Allenbaugh asked if the weapon belonged to the driver of
the car. Murdock responded that he would not “pin that
on him,” blurted some expletives, and then asked to
speak with Allenbaugh’s sergeant. Allenbaugh testified
that he contacted Sergeant Theobald and, while he waited
for him to arrive, called the Department of Corrections
from the car to request that they issue a parole-violation
warrant for Murdock.
Once Sergeant Theobald arrived, Officer Allenbaugh
repeated the Miranda warnings, exited the patrol car, and
informed Theobald that he had read Murdock his
rights. Allenbaugh explained that he left the car because
Murdock had been cursing and screaming at him and
he did not think his presence would be helpful. While
Murdock spoke to Theobald, he sat in Theobald’s car
until the sergeant signaled him back to the squad car.
Theobald left and Allenbaugh reentered the car. He
reminded Murdock of his rights, but did not ask any
further questions. Instead, while Allenbaugh waited for
the transport wagon, Murdock volunteered that his
brother had been killed by a gun and that if Allenbaugh
needed to check the gun for fingerprints, he would not
find any on the trigger but that he might find some on
the rest of the gun.
Finally, Sergeant Theobald testified to his involve-
ment with the case. He stated that upon arriving at the
scene he was briefed by Officer Hightower and requested
No. 06-2183 5
that a dog be brought to the area because they had found
crack in Murdock’s pocket and because the police previ-
ously had recovered handguns from the driver’s car. When
the dog and its handler arrived, Theobald accompanied
them along the path that Murdock took when he ran from
the car. Inside a garbage can, Theobald found a brown-
handled, chrome, semiautomatic handgun sitting in a
small amount of water.
While still at the scene, Sergeant Theobald received a
call from Officer Allenbaugh that Murdock wanted to talk.
Sergeant Theobald drove to the station where Allenbaugh
was parked with Murdock and got into the passenger
side of the police car. As Allenbaugh left the car, he told
Theobold that he had given Murdock the Miranda warn-
ings. Sergeant Theobald confirmed with Murdock that
he had been read his rights and told Murdock that he
found a gun along the path that Murdock had fled.
Murdock responded that if the gun was chrome with a
brown handle, it was his. Theobald then asked why he
was carrying a gun and where he got it. Murdock re-
sponded that he had received the gun the day before from
a drug addict during a drug transaction. Murdock also
told Theobald that he had admitted to Officers Allenbaugh
and Hightower that the drugs found in his pocket be-
longed to him.
When asked why he did not obtain a written statement,
ask a witness to be present, or videotape his conversa-
tion with Murdock, Sergeant Theobald responded that
when he entered the car, he did not know where the
conversation was going to go. He further explained that
in the street-crimes unit officers do not typically obtain
written statements and do not videotape interviews ex-
cept during homicide investigations. Theobald also testi-
fied that he did not take Murdock into the station because
Officer Allenbaugh was awaiting the transport wagon to
take Murdock to the county jail.
6 No. 06-2183
The district court credited the officers’ testimony and
denied Murdock’s motion to suppress, explaining that
there was no evidence to suggest that he did not receive
Miranda warnings before making his admissions. The
court also credited Sergeant Theobald’s testimony that
the street-crimes unit does not routinely obtain Miranda
waivers in writing, but it suggested that in the future the
police should attempt to have at least one other officer
present to witness statements. Following a jury trial,
Murdock was convicted and sentenced to a total of 41
months’ imprisonment.
II. ANALYSIS
On appeal, Murdock has abandoned his argument that
the confession was not preceded by Miranda warnings.
Instead, he now contends that his waiver of his Fifth
Amendment rights and subsequent confession were
involuntary, and thus unreliable, due to the “suspect,
intimidating, and overreaching” conditions under which
he was held. The government counters that Murdock
waived this new argument—or alternatively forfeited
it—because in the district court he merely argued that the
police did not administer Miranda warnings and never
contended that his confession was coerced.
The use of the word “waiver” when one actually means
“forfeiture” has led to some difficulty distinguishing the
two terms. See, e.g., United States v. Johnson, 415 F.3d
728, 730 (7th Cir. 2005); United States v. Clarke, 227 F.3d
874, 880-81 (7th Cir. 2000). To clarify the distinction, we
have explained that waiver “is canonically defined as an
intentional relinquishment of a right,” whereas forfeiture
“is where the right is taken away from its holder as a
penalty for failure to assert it in a clear and timely man-
ner.” United States v. Johnson, 223 F.3d 665, 668 (7th Cir.
2000). The distinction is important because an argument
No. 06-2183 7
that has been waived is unreviewable on appeal, whereas
a forfeited argument may be reviewed for plain error.
Clarke, 227 F.3d at 881.
The government asserts that Murdock waived the
issue of police coercion that he raises for the first time on
appeal. In his motion to suppress, Murdock argued only
that his confession was involuntary because it was not
preceded by Miranda warnings, an allegation refuted
by the uncontested evidence and rejected by the district
court. At the evidentiary hearing on his motion, Murdock
did not expand his contention, though the court gave him
the opportunity to elaborate on his motion. One might
argue that counsel’s silence when invited to speak consti-
tuted a waiver of any additional theories of suppression,
but an equally plausible reading is that counsel simply
declined to expound on his Miranda theory without
consciously waiving all other theories. On balance, we
think this case presents a forfeited argument for which
review is not automatically foreclosed.
Forfeited suppression arguments present a special
situation because of the operation of Federal Rule of
Criminal Procedure 12(e): before we will review a forfeited
suppression argument for plain error, the defendant must
first show good cause for failing to make that argument
in the district court. Johnson, 415 F.3d at 730-31. In this
case, Murdock filed a timely motion to suppress in which
he limited the court’s consideration to whether police
administered Miranda warnings. He did not ask the
court to consider whether the conditions under which he
waived his Fifth Amendment rights were coercive, and his
appellate counsel offers no explanation for his previous
attorney’s failure to do so. Instead, in his reply brief,
appellate counsel contends that Murdock’s argument at
his suppression hearing was sufficient to encompass his
argument on appeal. However, we see no reason why trial
counsel could not have broadened his argument, and by
8 No. 06-2183
failing to do so he gave the government no reason to offer
evidence to rebut his new allegation.
But even assuming that Murdock could demonstrate
good cause for failing to raise his coercion argument at his
suppression hearing, he cannot demonstrate plain error.
Murdock argues that the totality of the circumstances
surrounding his Miranda waiver and subsequent confes-
sion rendered his confession involuntary. Specifically, he
argues that his confession was coerced because he re-
mained handcuffed in the back seat of the police car for
a “considerable period of time” instead of being taken
into the station, and because Officer Allenbaugh “threat-
ened” to charge him with possessing the gun even
though—according to Murdock—there was no evidence
linking him to the weapon. Murdock also points to the
lack of witnesses during each interrogation and the
absence of a written Miranda waiver.
We do not rule on voluntariness questions in the first
instance. The voluntariness of a confession is a question of
fact for the district court, not a legal determination for
this Court. See United States v. Ceballos, 302 F.3d 679,
694 (7th Cir. 2002); United States v. Huerta, 239 F.3d 865,
871 (7th Cir. 2001). A confession is involuntary only
where it was obtained through police coercion or over-
reaching that overbore the accused’s free will. See
Dickerson v. United States, 530 U.S. 428, 434 (2000);
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973);
Conner v. McBride, 375 F.3d 643, 651 (7th Cir. 2004).
Relevant circumstances include, but are not limited to,
whether the defendant received Miranda warnings; the
defendant’s age, intelligence level, education, and mental
state; the conditions under which the defendant was
interrogated (i.e., duration, environment, and access to
restroom facilities and food); and whether the defendant
was physically punished. See Schneckloth, 412 U.S. at 226;
No. 06-2183 9
United States v. Charles, 476 F.3d 492, 497 (7th Cir. 2007);
Conner, 375 F.3d at 651.
The district court considered all of the evidence pre-
sented at the suppression hearing, credited the officers’
testimony, and found that Murdock made his state-
ments voluntarily after receiving Miranda warnings.
Nothing in the record suggests that the district court erred
by denying Murdock’s motion to suppress. Contrary to
Murdock’s contention, there was no evidence presented at
the suppression hearing that Murdock was confined to the
back seat of the police car for a “considerable period of
time.” The record is notably silent on the length of his
confinement in the police car, although that does not make
a difference in this case. See Huerta, 239 F.3d at 872
(noting that eleven hours of detention was not so oppres-
sive to render a confession involuntary where the defen-
dant was not continuously interrogated and where no
credible evidence existed that she was too tired, medicated,
or hungry to understand the proceedings); United States
v. Doe, 149 F.3d 634, 639 (7th Cir. 1998) (holding that
questioning a handcuffed defendant in the back of a police
car in a remote location for more than an hour was not
sufficient to render a waiver involuntary).
Nor was there any evidence that Officer Allenbaugh
psychologically coerced Murdock into confessing by
threatening to charge him with possession of the gun. The
record shows that, when Murdock asked what he would
be charged with, Allenbaugh responded that Murdock
would be charged with possession of drugs and a gun. This
was not a threat, but rather a truthful response to
Murdock’s question based on the evidence the police
found during their investigation. See United States v.
Miller, 450 F.3d 270, 272 (7th Cir. 2006) (holding that
where police had probable cause to arrest a suspect’s
girlfriend, the suspect’s confession was not coerced where
10 No. 06-2183
police threatened to arrest the girlfriend if he did not con-
fess, stating “suspects are not entitled to full informa-
tion . . . but they can’t complain when they get it and
learn that some of the options are unpalatable”).
Finally, the officers’ failure to obtain a written waiver
from Murdock does not render his oral waiver or sub-
sequent confession involuntary. See United States v.
Gell-Iren, 146 F.3d 827, 830 (10th Cir. 1998) (upholding
the validity of an oral Miranda waiver and finding
that the failure to sign a waiver-of-rights form does not
render a waiver involuntary); United States v. Bosby, 675
F.2d 1174, 1182 n.13 (11th Cir. 1982) (same); see also
North Carolina v. Butler, 441 U.S. 369, 373 (1979) (holding
that an explicit statement of waiver was not necessary
to support a finding that the defendant waived his right
to remain silent); Gorham v. Franzen, 760 F.2d 786, 794-
95 (7th Cir. 1985) (explaining that the failure to sign a
written waiver was not dispositive of the waiver issue
and that the suspect’s failure to invoke his rights, which
he knew and understood, may amount to a waiver of the
right to remain silent). Furthermore, although the dis-
trict court offered its view that in the future the Peoria
Police Department should, to the extent practicable,
require that another officer witness a Miranda waiver and
confession, that advice has no legal significance. What
matters here is that the court credited the testimony of
three different officers that after Murdock received
Miranda warnings, he chose to waive his rights and
confess.
III. CONCLUSION
No plain error is shown on this record, and we therefore
uphold the district court’s denial of Murdock’s motion to
suppress, and AFFIRM his convictions.
No. 06-2183 11
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-3-07