In the
United States Court of Appeals
For the Seventh Circuit
No. 11-1205
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JAKE R ICHARDSON, III,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 3:09-cr-00149—Jon E. DeGuilio, Judge.
A RGUED JUNE 8, 2011—D ECIDED S EPTEMBER 2, 2011
Before P OSNER, K ANNE, and H AMILTON, Circuit Judges.
K ANNE, Circuit Judge. On November 12, 2009,
Jake Richardson III was charged with possession with
intent to distribute more than five grams of cocaine
base in violation of 21 U.S.C. § 841(a)(1). Before trial,
Richardson moved to suppress the narcotics and
currency that had been found on his person and all post-
arrest statements that he had made to law enforce-
ment officials. The district court granted Richardson’s
2 No. 11-1205
motion in part, but denied it as to some of his statements
and as to the physical evidence. A jury ultimately found
Richardson guilty. He now appeals his conviction,
arguing that the district court should have suppressed
the physical evidence and all of his post-arrest statements.
I. B ACKGROUND
LaPorte County Deputy Dallas Smythe stopped Richard-
son for driving 80 miles per hour in a 55 miles-per-
hour zone. Because Richardson and his passenger were
behaving oddly, Deputy Smythe had his canine partner,
Marko, conduct a free-air search of the vehicle. Marko
alerted on both sides of the vehicle, so Deputy Smythe
asked Richardson for consent to search the car, which
Richardson granted. Before searching the car, Deputy
Smythe performed a protective pat-down of Richardson’s
person. During the pat-down, Deputy Smythe felt a
hard object in Richardson’s left pants pocket. When he
removed the object, he saw that it was a bundle of
paper currency. Continuing the pat-down, Deputy Smythe
felt a hard object in Richardson’s right pants pocket, and
Richardson immediately tried to pull away from the
officer. When Deputy Smythe removed the object, he
saw it was a packet containing an off-white, rocky sub-
stance.
After Deputy Smythe had looked at the object, he
asked Richardson what it was, and Richardson re-
sponded, “You know what it is.” Deputy Smythe also
asked why Richardson’s shirt smelled like marijuana,
and Richardson responded that he had been with
No. 11-1205 3
people who were smoking marijuana. Deputy Smythe
arrested and handcuffed Richardson without further
question. While being handcuffed, Richardson said that
he could get more cocaine and marijuana and that he
“would do anything to make this go away.” He said
he could get significant amounts of cocaine, and as
proof he reported his involvement in an aborted cocaine
transaction in Merrillville, Indiana. Deputy Smythe
asked Richardson if he wanted to speak with someone.
Richardson said he did, so Deputy Smythe called
Sergeant Timothy Shortt.
While waiting for Sergeant Shortt, Richardson sat in
the back of a squad car, with Deputy Lowell Boswell
standing outside. Richardson repeatedly asked
Deputy Boswell to open the door and talk to him.
When Deputy Boswell entered the car to escape the
cold, Richardson told him that he could get a lot of
cocaine from a mall in Merrillville where people were
coming with a U-Haul truck.
After his arrival, Sergeant Shortt approached Richardson
in the squad car and asked Richardson how he was
doing. Richardson responded, “Are you the guy we’re
waiting on?” Sergeant Shortt confirmed that he was.
Richardson then told him he could buy a large amount
of cocaine from someone in Michigan City, Indiana,
or from a cocaine-filled U-Haul truck in Merrillville.
Richardson also told Sergeant Shortt he was planning
to buy some cocaine next Sunday, and he offered to buy
it for the police. After Richardson volunteered this infor-
mation, Sergeant Shortt asked Richardson where he
4 No. 11-1205
had gotten the cocaine base found in his pocket. Richard-
son told him he had gotten it in South Bend, Indiana.
After speaking with Sergeant Shortt, Richardson
was taken to LaPorte County Jail for booking. During
an inventory search, officers found a small bag of
cocaine base in Richardson’s sock. From arrest to booking,
Richardson received no Miranda warnings.
Richardson was charged with possession with intent
to distribute more than five grams of cocaine base.
Before trial, he moved to suppress the two packets of
cocaine base, the bundle of currency, and his post-
arrest statements. The district court granted Richardson’s
motion as to the statements—“You know what it is”;
“Are you the guy we’re waiting on?”; and “South
Bend”—he had made in direct response to Deputy
Smythe’s and Sergeant Shortt’s questions, but denied
the motion as to everything else. A jury ultimately
found Richardson guilty. He was sentenced to 236
months’ imprisonment, based in part on his 24 prior
convictions, his career offender status, and the fact that
he had interacted with the criminal justice system
every year of his life from age 12 to age 43—his age
at sentencing.
II. A NALYSIS
Richardson seeks a new trial, claiming the district
court should have suppressed all physical evidence and
all of his statements. When reviewing the district court’s
denial of a motion to suppress evidence, we review
factual findings for clear error and legal conclusions de
No. 11-1205 5
novo. United States v. Vasquez, 635 F.3d 889, 894 (7th
Cir. 2011).
A. Physical Evidence
Richardson claims the district court erred by not sup-
pressing all physical evidence—the bundle of currency,
the cocaine base in his pocket, and the cocaine base in
his sock—seized on the day of his arrest. The district
court ruled that the cocaine base in his sock was dis-
covered during a lawful inventory search and that law
enforcement officials inevitably would have discovered
the currency in the same search. See United States v. Cart-
wright, 630 F.3d 610, 613-14 (7th Cir. 2010). Because the
cocaine base in Richardson’s pocket gave the officers
probable cause for Richardson’s arrest, which in turn
led to the inventory search, the government and Richard-
son correctly focus their arguments on whether
Deputy Smythe lawfully inspected the cocaine base in
Richardson’s pocket during the protective pat-down.
Richardson does not dispute that Deputy Smythe
lawfully initiated a stop and pat-down of Richardson’s
person. See Terry v. Ohio, 392 U.S. 1 (1968). Rather, he
claims Deputy Smythe’s pat-down became an impermis-
sible exploratory search when Deputy Smythe removed
the cocaine base from Richardson’s right pants pocket
and inspected it. Richardson’s argument misapplies
Minnesota v. Dickerson, 508 U.S. 366 (1993). Richardson
focuses on Dickerson’s pronouncement that an officer
cannot go beyond a protective pat-down to manipulate
an object concealed in a pocket unless “the incriminating
6 No. 11-1205
character of the object [is] immediately apparent.” 508
U.S. at 379. But that restriction does not apply until the
officer concludes that the object at issue is not a weapon.
Dickerson, 508 U.S. at 378; see United States v. Muhammad,
604 F.3d 1022, 1026-27 (8th Cir. 2010) (seizure and inspec-
tion of object not unlawful under Dickerson because
officer was uncertain whether object was a weapon).
Deputy Smythe testified that, after the protective pat-
down, he “wasn’t sure what [the object] was. It was just
an unfamiliar lump, [a] hard lump.” Based on this testi-
mony, the district court found Deputy Smythe was
unsure whether the hard object in Richardson’s pocket
was a weapon. That finding was not clearly erroneous.
See United States v. Swann, 149 F.3d 271, 275 (4th Cir.
1998) (deferring to district court’s finding that the officer
had not determined whether the object was a weapon
when testimony was “entirely ambiguous” as to whether
the officer “suspected or did not suspect a weapon”).
Richardson could have—but did not—argue that
Deputy Smythe could not have reasonably suspected the
object in Richardson’s pocket was a weapon. See United
States v. Brown, 188 F.3d 860, 866 (7th Cir. 1999). The test
for reasonable suspicion is an objective one. Id.; United
States v. Robinson, 615 F.3d 804, 807-08 (7th Cir. 2010).
But Richardson disputes only whether Deputy Smythe
actually believed the object was a weapon—an issue
irrelevant to reasonable suspicion, see Brown, 188 F.3d at
866—and does not dispute that a reasonable officer
in Deputy Smythe’s position would have been “war-
ranted in the belief that his safety or that of others was
in danger.” Terry, 392 U.S. at 27.
No. 11-1205 7
Even if Richardson had argued that Deputy Smythe
could not have had reasonable suspicion, his argument
likely would have failed. Courts, including ours, have
concluded that an officer who encounters a small,
hard object during a pat-down may have reasonable
suspicion to believe the object is a weapon. See, e.g., United
States v. Holmes, 385 F.3d 786, 790-91 (D.C. Cir. 2004)
(officer could reasonably suspect small digital scale in
jacket pocket was a weapon); Brown, 188 F.3d at 865-66
(officer could reasonably suspect hard object smaller
than a ping-pong ball in suspect’s groin area was a
weapon). In close cases, we have taken the same ap-
proach that a field officer likely takes during a protective
pat-down: “Better safe than sorry.” See Brown, 188 F.3d
at 866.
B. Custodial Statements
The district court suppressed all statements Richardson
made in direct response to officers’ questions. See Miranda
v. Arizona, 384 U.S. 436 (1966). Richardson argues the
custodial interrogation made all of his subsequent state-
ments involuntary and thus inadmissible. Alternatively,
he argues that his conversation with Sergeant Shortt was
the functional equivalent of an interrogation, thus ren-
dering his statements to Sergeant Shortt inadmissable
under Miranda.
Deputy Smythe’s and Sergeant Shortt’s questions
may have been Miranda violations, but such violations
do not render all later statements automatically inad-
8 No. 11-1205
missible. See Oregon v. Elstad, 470 U.S. 298, 318 (1985);
United States v. Abdulla, 294 F.3d 830, 835-37 (7th Cir.
2002). The test for admitting a later statement—one not
made in response to unwarned custodial interroga-
tion—depends on whether the prior statements made
in response to Miranda-violating interrogation were
nonetheless voluntary. If so, any later voluntary state-
ment is admissible; if not, any later statement is
admissible only if there was “a sufficient break in the
stream of events to insulate the second confession from
the earlier taint.” Watson v. DeTella, 122 F.3d 450, 454
(7th Cir. 1997) (quotation marks omitted).
The first step in our analysis, then, is to determine
whether the three statements Richardson made in
response to custodial interrogation—“You know what it
is”; “Are you the guy we’re waiting on?”; and “South
Bend”—were voluntary. A statement is voluntary if, “in
light of the totality of the circumstances, [it] is the
product of a rational intellect and free will and not the
result of physical abuse, psychological intimidation, or
deceptive interrogation tactics that have overcome the
defendant’s free will.” United States v. Dillon, 150 F.3d
754, 757 (7th Cir. 1998). Moreover, “coercive police
activity is a necessary predicate to the finding that a
confession is not voluntary.” Id. (quotation marks omitted).
To show coercive police activity, Richardson claims
that he was nervous, handcuffed, and (safely) on the
side of the highway for 51 minutes. These circumstances
do not show coercive police activity sufficient to
overcome Richardson’s will. See United States v. Montgom-
No. 11-1205 9
ery, 555 F.3d 623, 632 (7th Cir. 2009) (coercive police
activity includes physical punishment, psychological
intimidation, and sometimes deceit). Rather, Richardson
describes a fairly ordinary law enforcement-suspect
interaction. We strongly doubt that this encounter
fazed Richardson, given his frequent-flyer status with
the criminal justice system—evidenced by his career
offender status, 24 prior convictions, and 31 years of
regular interaction with law enforcement. See United
States v. Swanson, 635 F.3d 995, 1003 (7th Cir. 2011) (con-
sidering defendant’s experience in voluntariness in-
quiry); United States v. Ross, 510 F.3d 702, 710 (7th Cir.
2007) (same).
Richardson’s other statements are therefore admissible
as long as they were also voluntary. Abdulla, 294 F.3d at
836-37. Once handcuffed, Richardson eagerly shared
his expertise of past, present, and future Northwest
Indiana drug deals with anyone who would listen. These
statements were voluntary and thus admissible. See id.
(subsequent statements voluntary when made “spontane-
ously and not as the result of interrogation”).
In his alternative argument, Richardson claims the
entire conversation he had with Sergeant Shortt was
functionally equivalent to a custodial interrogation,
thus triggering Miranda’s warning requirement. An
officer can “interrogate” a suspect for Miranda purposes
without uttering a question. Rhode Island v. Innis, 446
U.S. 291, 300-01 (1980). A custodial conversation is an in-
terrogation when the officer knows or should know
that his “words or actions . . . are reasonably likely to
elicit an incriminating response.” Id. at 301.
10 No. 11-1205
But “the police are not prohibited from ‘merely listen-
ing’ to [a suspect’s] voluntary statement.” United States v.
Jones, 600 F.3d 847, 855 (7th Cir. 2010) (quoting Edwards
v. Arizona, 451 U.S. 477, 485 (1981)). And that is
precisely what Sergeant Shortt did—with the exception
of an isolated question, the response to which was
correctly suppressed. He traveled to the scene of Richard-
son’s arrest only because Richardson wanted to speak
with someone who might help him “make this go
away.” Sergeant Shortt did not violate Miranda by
obliging Richardson’s desire to talk, and the district court
did not err by admitting Richardson’s statements to
Sergeant Shortt.
III. C ONCLUSION
Richardson has not shown that the district court erred
by admitting the physical evidence found on
Richardson’s person or by admitting evidence of the
statements Richardson volunteered to Deputy Smythe,
Deputy Boswell, and Sergeant Shortt. Accordingly, we
A FFIRM Richardson’s conviction.
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