United States v. Jones

FILED
United States Court of Appeals
Tenth Circuit

April 23, 2008
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v. No. 07-4141
TAMARA YVONNE JONES,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:05-CR-534-TS)

Scott K. Wilson, Assistant Federal Public Defender (Steven B. Killpack, Federal
Public Defender, with him on the briefs), Office of the Federal Public Defender,
Salt Lake City, Utah.

Stephen J. Sorenson, Assistant United States Attorney (Brett L. Tolman, United
States Attorney, with him on the brief), Office of the United States Attorney, Salt
Lake City, Utah.

Before O’BRIEN, TYMKOVICH, and HOLMES, Circuit Judges.

TYMKOVICH, Circuit Judge.

The question in this case presents a variation on when a police encounter

evolves into a custodial interrogation, requiring officers to issue a warning under
Miranda v. Arizona, 384 U.S. 436 (1966). Tamara Yvonne Jones challenges

statements she made to a federal officer, Agent Jeff Bridge, who interrogated her

in connection with her recent purchase of iodine crystals, a chemical used in

methamphetamine production. During the encounter, Jones explained she had

ordered the iodine hoping to resell it to another person who would use it to

produce drugs. On the basis of her statements to Bridge, Jones was later charged

with possessing iodine knowing it would be used to manufacture

methamphetamine, a violation of 21 U.S.C. §§ 841(c) and 846.

Before trial, Jones moved to suppress the statements given without a

Miranda warning. The district court denied the motion. Because Jones was not

in custody when she spoke with Bridge inside his unmarked patrol car, we

conclude Miranda does not apply.

We therefore AFFIRM the district court’s denial of the motion to suppress.

I. Background

Agent Bridge testified at the suppression hearing and at trial about the

circumstances surrounding his encounter with Jones. We construe all facts in the

light most favorable to the prevailing party, in this case the government. United

States v. Hudson, 210 F.3d 1184, 1190 (10th Cir. 2000).

The Initial Investigation

On March 16, 2005, customs agents in Buffalo, New York, intercepted a

FedEx package containing iodine crystals. The agents were concerned the

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chemicals were intended for either explosives or methamphetamine manufacture,

since iodine is a precursor chemical in cooking methamphetamine. Because the

package was addressed to Jones in Sandy, Utah, the Buffalo office contacted

Agent Bridge, stationed in Utah, to conduct further investigation.

Bridge checked Jones’s criminal history, which revealed recent drug arrests

involving methamphetamine. Assisted by other customs agents, Bridge attempted

to deliver the iodine to Jones’s address listed on the package but failed, as Jones

had apparently moved. From local court records, Bridge determined Jones had a

court hearing in Salt Lake City on an unrelated matter scheduled for the afternoon

of April 7, 2005. He decided to attend the hearing and try to speak with Jones

about the package.

Unable to speak with Jones in the courthouse, Bridge and one other agent

followed Jones and her companion in their car. Two other agents, in another car,

joined them. Both cars were unmarked, and all four agents were in plain clothes.

Gas Station Encounter

After dropping off her companion at a nearby business, Jones pulled into a

gas station at the intersection of two major streets. She parked by a gas pump and

went into a convenience store. The agents pulled in after her and parked between

the convenience store and a car wash, thus situating themselves in a public area

with “people coming back and forth.” R., Vol. II at 31. The encounter took place

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in the afternoon daylight. At no time during the encounter did the agents’ two

unmarked cars block Jones’s vehicle.

When Jones came out of the convenience store, with a drink and snack in

her hands, Bridge was sitting on the hood of his car. Although three more agents

were nearby, either in or out of their cars, Bridge alone initiated contact with

Jones. Addressing her by her first name, he showed his badge and said, “I’m a

federal agent. Can I talk to you?” Id. at 9. Jones, initially nervous that a

stranger used her first name, nevertheless said “yes” and approached Bridge. He

showed her the package and asked if she knew what it was and whether she

wanted it. She said “no” at first, but then quickly replied “yeah.” Id. at 43.

For the sake of Jones’s privacy, Bridge asked if he could speak with her in

his car. She agreed. To ensure she was unarmed before they got in the car,

Bridge asked if he could quickly frisk her and check her purse for weapons. She

declined to let Bridge search her purse but agreed to a pat-down. Not wanting to

take a chance that Jones could surprise the agents with a gun in her purse, Bridge

asked Jones to leave her purse outside next to the car, right where she had placed

her drink and snack during the pat-down. Jones got into the backseat of the car,

on the right, and Bridge sat next to her, behind the driver’s seat. One agent

remained outside to make sure no one stole Jones’s belongings. Two other agents

got in the front seats, but did not participate in the conversation and mostly sat

looking forward. Only Bridge spoke with Jones.

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 Inside the car, Bridge told Jones she was not under arrest, did not have to

talk to him, and was free to leave. To that end, he motioned to her door, made

sure it was unlocked, and told her so. Bridge then gave Jones the standard

instruction that it was a crime to lie to a federal agent. At some point, after

“establishing the basics of what [he] wanted to talk to her about,” id. at 50,

Bridge also noted the seriousness of the encounter by pointing out he could arrest

Jones based on the iodine package. Throughout the whole conversation, however,

Bridge’s tone remained polite, calm, and conversational. And other than the

police radio, which remained mostly silent during the conversation, nothing inside

Bridge’s car revealed it was a police vehicle.

After briefly talking about Jones’s methamphetamine addiction, Bridge

asked about the package. Jones explained she had ordered the iodine on Ebay,

hoping to profit by reselling it to a man named Jetti. Jetti would then deliver the

iodine to a methamphetamine producer. Bridge asked if Jones would help the

agents get in touch with Jetti, and Jones agreed to cooperate to the extent she

could. She provided a physical description of Jetti and said she would try to

reach him to arrange a controlled delivery by the agents. She gave Bridge her cell

phone and work phone numbers and provided the address where she was living at

the time.

At some point during the conversation, Jones asked the agents to roll down

her window, which they readily did. Bridge then again told Jones she was free to

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terminate the encounter and leave. She asked if she needed an attorney, and

Bridge said it was up to her; Jones did not ask for one. The agents also handed

Jones her food, which she consumed while speaking with Bridge inside the car.

Agent Bridge managed to put Jones at ease, and after the conversation

inside the car, she allowed the agents to search her purse and vehicle. She said

she had methamphetamine in her purse, which the agents quickly found along

with other drug-use paraphernalia.

In its entirety, the gas station encounter lasted about 45 minutes to an

hour. 1 At no point did the agents brandish or unholster their concealed weapons,

raise their voices, or in any other way indicate that Jones was required to submit

to their authority. She was never handcuffed, remained cooperative throughout

the interview, and never asked to leave or said she did not want to talk to Agent

Bridge. After the search, Jones left in her own car. She was not arrested that

day. Later, she was charged with possession of iodine knowing it would be used

to manufacture methamphetamine.

II. Analysis

Prior to trial, Jones sought to suppress her statements to Agent Bridge as a

violation of her Miranda rights, and the subsequently discovered evidence as a

violation of her Fourth Amendment rights. The district court denied Jones’s

1
The record is unclear about the duration, but the parties agreed during
oral argument that 45 to 60 minutes is a good estimate.

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suppression motion on both grounds. On appeal, she challenges only the Miranda

issue.

A. Legal Framework

“In reviewing a district court’s ruling on a motion to suppress, this court

accepts the district court’s factual findings unless clearly erroneous and views the

evidence in the light most favorable to the prevailing party,” the government in

this case. United States v. Hudson, 210 F.3d 1184, 1190 (10th Cir. 2000). In our

review, “[w]e are permitted to consider evidence introduced at the suppression

hearing, as well as any evidence properly presented at trial.” United States v.

Harris, 313 F.3d 1228, 1233 (10th Cir. 2002). The ultimate question of whether

Miranda applies, however, is reviewed de novo. Hudson, 210 F.3d at 1190.

Police officers need not administer Miranda warnings to everyone they

question. Id. On its own terms, Miranda applies only to “custodial

interrogation[s].” Miranda v. Arizona, 384 U.S. 436, 444 (1966). Thus,

“Miranda rights need only be given to a suspect at the moment that suspect is ‘in

custody’ and the questioning meets the legal definition of ‘interrogation.’”

United States v. Chee, 514 F.3d 1106, 1112 (10th Cir. 2008) (quoting United

States v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993)). Because the government

conceded Bridge’s conversation with Jones was in the form of an interrogation, in

resolving Jones’s appeal we need only determine whether she was in custody.

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 Whether a person is in custody for Miranda purposes depends on the type

of the encounter with police. Of the three types of police-citizen

encounters—voluntary cooperation, an investigatory detention under Terry v.

Ohio, 392 U.S. 1 (1968), and a formal arrest—Miranda’s custody element is

triggered only in situations associated with formal arrests. In other words, “[c]ase

law is well established that a defendant is not in custody under either of the first

two encounters and therefore Miranda warnings need not usually be given.”

United States v. Griffin, 7 F.3d 1512, 1516 (10th Cir. 1993) (citing Berkemer v.

McCarthy, 468 U.S. 420, 437–40 (1984)). “It is settled that the safeguards

prescribed by Miranda become applicable [only when] a suspect’s freedom of

action is curtailed to a ‘degree associated with formal arrest.’” Berkemer, 468

U.S. at 440 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)). Only

then can we say a suspect is in custody.

Whether a suspect is in custody represents an objective determination. See

generally 2 Wayne R. LaFave et al., Criminal Procedure § 6.6(c) (3d ed. 2007)

[Criminal Procedure]. “We therefore must determine whether ‘a reasonable

person in the suspect’s position would have understood the situation as the

functional equivalent of formal arrest.’” Chee, 514 F.3d at 1112 (quoting

Berkemer, 468 U.S. at 442) (internal brackets and ellipsis removed). A

reasonable person “does not have a guilty state of mind and does not have

peculiar mental or emotional conditions that are not apparent to the questioning

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officer.” Hudson, 210 F.3d at 1190 (quoting United States v. Erving L., 147 F.3d

1240, 1246 (10th Cir. 1998)).

“The determination of custody, from an examination of the totality of the

circumstances, is necessarily fact intensive.” Griffin, 7 F.3d at 1518. We thus

avoid hard line rules and instead allow several non-exhaustive factors to guide us.

First, we consider “the extent to which the suspect is made aware that he or she is

free to refrain from answering questions or to end the interview at will.” Id.

Second, we look at “the nature of questioning,” where “prolonged accusatory

questioning is likely to create a coercive environment from which an individual

would not feel free to leave.” Id. Finally, by using the following helpful

guideposts, we check whether police dominate the encounter:

[S]eparation of the suspect from family or colleagues who could
offer moral support; isolation in nonpublic questioning rooms;
threatening presence of several officers; display of a weapon by an
officer; physical contact with the subject; and an officer’s use of
language or tone of voice in a manner implying that compliance with
the request might be compelled.

Id. at 1518–19. Although these factors are useful, we emphasize that we must

look to the totality of the circumstances and consider the police-citizen encounter

as a whole, rather than picking some facts and ignoring others.

B. Application

We agree with the district court’s conclusion that Jones was not in custody

when she spoke with Agent Bridge.

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 Suspect’s Freedom to Leave

The first factor weighs against a finding of custody. Shortly after Bridge

initiated the encounter, he informed Jones she was not under arrest, did not have

to talk to him, and could leave if she wanted. He specifically motioned to the

door on Jones’s side of the car and made sure it was unlocked. A bit later in the

encounter, Bridge again told Jones she was free to leave. “That a person is told

repeatedly that he is free to terminate an interview is powerful evidence that a

reasonable person would have understood that he was free to terminate the

interview.” United States v. Czichray, 378 F.3d 822, 826 (8th Cir. 2004); United

States v. Brown, 441 F.3d 1330, 1347–48 (11th Cir. 2006) (quoting Czichray, 378

F.3d at 826).

Our cases likewise establish the importance of telling suspects they are not

under arrest and can terminate the encounter at will. For example, our recent

decision in Chee, 514 F.3d at 1106, is instructive. In that case, the police asked

Chee to visit the police station for questioning about a firearm Chee found in a car

he had purchased at a government auction. Id. at 1110. The officers, however,

intended to question Chee as a suspect of a sexual assault. Id. Chee was

interrogated in a police-station office, with two officers in the room. Id. at 1111.

But despite the location of the interview, we found the totality of the

circumstances supported a finding of no custody when, during the interview, the

suspect was told, among other things, that “he was not under arrest and was free to

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leave.” Id. at 1114; cf. Griffin, 7 F.3d at 1519 (concluding suspect to be in

custody when she “was not told that she could refuse to answer the officer’s

questions or terminate the interview at any time and leave the . . . room”).

Jones seeks to undercut the importance of Agent Bridge’s

statements—informing her she did not have to talk to him—by focusing on

Bridge’s comment he could arrest her based on the iodine package. She argues a

reasonable person would not feel at liberty to terminate the encounter in light of

two seemingly contradictory statements: (1) not under arrest, but (2) could be

arrested. Although the question is a close one, we ultimately cannot agree that, on

the totality of the facts here, the second statement undercuts the objective force of

the first one.

In support of her argument, Jones relies on the fact pattern set forth in

United States v. DiGiacomo, 579 F.2d 1211 (10th Cir. 1978). But DiGiacomo is

quite different. There, in addition to being “told he could be arrested and jailed

that evening,” the suspect was given an explicit choice. Id. at 1214. The officers

told DiGiacomo “he could choose between immediate arrest and ‘voluntary’

appearance at the Secret Service office the following morning.” Id. Presented

with a Hobson’s choice, DiGiacomo, we concluded, was in custody and should

have been given a Miranda warning. Id.

The facts here suggest a far less coercive environment. When Bridge told

Jones he had enough to arrest her, he did not follow it up by saying anything to

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indicate Jones had to cooperate, or else. Bridge did not, for example, say to Jones,

“We can do this the easy way or the hard way. I think we have enough to arrest

you now and let the courts figure it out, or you can talk to us and tell us what’s

going on and, you know, it might be better for you in the long run.” United States

v. Williams, 435 F.3d 1148, 1151 (9th Cir. 2006) (internal ellipsis omitted).

Construing Bridge’s statement in the light most favorable to the government, we

conclude Bridge was simply describing to Jones the seriousness of the encounter.

To be sure, in saying he could arrest her, Bridge might have reminded Jones of the

police’s coercive powers. But “[a]ny interview of one suspected of a crime by a

police officer will have coercive aspects to it, simply by virtue of the fact that the

police officer is part of a law enforcement system which may ultimately cause the

suspect to be charged with a crime.” Oregon v. Mathiason, 429 U.S. 492, 495

(1977). An unstated threat of coercion inherent in the officers’ power to arrest is,

taken alone, not enough.

Agent Bridge, in other words, was merely laying the groundwork by

explaining to Jones why the agents were focusing their investigation on her

purchase of iodine. Focus, however, does not mean custody. 2 Criminal

Procedure, supra, § 6.6(a) (“The ‘focus’ approach [to deciding whether a suspect

is in custody for Miranda purposes] was expressly rejected by the Court in

Beckwith v. United States[, 425 U.S. 341, 347 (1976)].”). “Even a clear statement

from an officer that the person under interrogation is a prime suspect is not, in

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itself, dispositive of the custody issue, for some suspects are free to come and go

until the police decide to make an arrest.” Stansbury v. California, 511 U.S. 318,

325 (1994). Bridge’s statement is in relevant respects very similar to telling a

sexual assault suspect the police “had obtained DNA evidence,” Chee, 514 F.3d at

1111 (no custody), or informing a burglary suspect his “fingerprints were found at

the scene,” Mathiason, 429 U.S. at 493 (no custody). A reasonable person in

Jones’s situation, we conclude, would understand the agents were not there to

arrest her.

Nature of Questioning

Nothing in the record suggests Agent Bridge’s conversation with Jones was

marked by “prolonged accusatory questioning . . . likely to create a coercive

environment from which an individual would not feel free to leave.” Griffin, 7

F.3d at 1518. Bridge asked for Jones’s cooperation in the agents’ investigation of

a methamphetamine production ring. Although focusing on Jones’s iodine order,

the agents obviously wanted to get to Jetti. She agreed to cooperate to the extent

she could and to try to put the agents in touch with Jetti. We therefore cannot

conclude Bridge’s questioning, focusing primarily on someone other than Jones,

would have made a reasonable person in Jones’s shoes believe she was effectively

under arrest. This factor thus also points away from a finding of custody.

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 Lack of Police Domination

Although some factors indicate possible police domination of the encounter,

the totality of the circumstances suggests the opposite. Jones did encounter

multiple agents, but she was not confronted by them simultaneously or

aggressively, as was the suspect in DiGiacomo, for example. 579 F.2d at 1214.

Only Agent Bridge spoke to her as she came out of the convenience store. In fact,

Bridge was the only one to speak with her throughout the encounter.

And because the agents were in plain clothes, their guns concealed, we

cannot necessarily conclude she immediately apprehended the presence of four

agents. Two agents may have been still sitting in their unmarked car when Bridge

first spoke to Jones. No guns were ever drawn (or even displayed). Except for a

quick pat-down to ensure Jones would not bring a weapon into Bridge’s car, the

agents did not touch Jones. Indeed, Jones felt unthreatened enough to refuse

consent to search her purse when asked by Bridge. Throughout the interview,

Bridge’s “tone remained calm and conversational.” Chee, 514 F.3d at 1114.

Overall, the facts of this case do not reveal a threatening presence of several

officers.

Nor is the fact that most of the conversation took place inside Bridge’s

unmarked car dispositive of the custody issue. “Although the vehicle belonged to

the agents, location alone does not compel the conclusion that a defendant is in

custody, so long as his freedom was not curtailed to a degree similar to arrest.”

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United States v. Lamy, No. 07-2048, 2008 WL 852799, at *5 (10th Cir. Apr. 1,

2008). Police need not administer Miranda warnings simply “because the

questioning is conducted in a certain place, i.e., a patrol car.” 2 Id. (quoting United

States v. Boucher, 909 F.2d 1170, 1174 (8th Cir. 1990)).

Similar to the suspect in Lamy, Jones was not ordered into Agent Bridge’s

car. Rather, she was politely asked to speak with the agents inside one of their

vehicles, and she agreed. “This voluntary decision to accompany police argues

against police domination.” Id. (citing United States v. Plumman, 409 F.3d 919,

924 (8th Cir. 2005), and United States v. Scheets, 188 F.3d 829, 842 (7th Cir.

1999)). And it was perfectly sensible for Bridge to be cognizant of Jones’s

privacy and ask to speak inside his car, thus preventing passersby from learning of

Jones’s methamphetamine use. Cf. United States v. Manbeck, 744 F.2d 360, 379

(4th Cir. 1984) (“The reason for detaining [the suspect] in the patrol

2
In two cases the Ninth Circuit found custody when the suspect was
questioned inside a police car, but both are readily distinguishable and thus do not
affect this case. The issue was “easily resolved” in United States v. Henley, 984
F.2d 1040, 1042 (9th Cir. 1993), where the suspect, unlike Jones, was handcuffed.
The other case involved prolonged accusatory questioning inside “a closed FBI
car . . . while police investigators were in and around [the suspect’s] house.”
United States v. Lee, 699 F.2d 466, 468 (9th Cir. 1982). As we have already
explained, Jones, unlike Lee, did not face prolonged accusatory questioning.
Moreover, Lee was “decided under an outmoded standard of review.” Czichray,
378 F.3d at 826. “Under Berkemer, the question is not whether a reasonable
person would believe he was not free to leave, [which was the question the Lee
court asked,] but rather whether such a person would believe he was in police
custody of the degree associated with formal arrest.” 2 Criminal Procedure,
supra, § 6.6(c).

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car—specifically, the inclement weather—derogates from whatever coercive

elements are otherwise normally attendant thereto.”). Thus, the circumstances

surrounding Bridge’s polite request to speak with Jones inside his vehicle do not

support a finding of custody.

What is more, Bridge’s car lacked virtually any official indicia that might

normally intimidate a person placed into a fully equipped police vehicle—lights,

radio, computer, cage, radar, etc. Besides the police radio, which “wasn’t even

blaring” (and was inconspicuously located below the dashboard, between the front

seats), R., Vol. II at 15, nothing inside the car revealed it to be a police unit.

Bridge’s car alone, therefore, would not intimidate a reasonable person sitting

inside.

Jones argues the agents situated themselves in a way calculated to

intimidate. While she sat next to Bridge in the backseat of his car, two agents sat

in the front, and one remained outside next to Jones’s purse and food. Jones

argues she was effectively surrounded by the agents. But a more plausible

assessment of the situation is that a reasonable person would have understood the

two agents sitting in the front seats were there merely to listen to the interview,

not to intimidate or block off possible exit points (lest we think a suspect is likely

to leap from the back of the car into the front seat area and escape through the

front doors). Neither agent ever turned around to face Jones or spoke to her. At

most, while generally facing forward, these two agents may have turned their

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upper bodies slightly towards the back of the car. And the agent who remained

outside was apparently there to ensure no one walked off with Jones’s purse and

food. This was, after all, a public area with people going back and forth. On these

facts, a reasonable person would not necessarily feel restrained by the agents’

placement to a degree associated with formal arrest.

Jones further argues the agents were clearly in charge of the situation

because they followed her from the earlier court appearance, waited for her to drop

off her passenger, surrounded her at the gas station when Bridge first addressed

her, and would not leave her alone when she said she was on her way to work.

The record, construed in the light most favorable to the government, does not

support these arguments.

First, Jones did not know the agents had followed her from the courthouse

all the way to the gas station. We thus cannot attach any significance to this fact.

Second, while Agent Bridge testified it was possible that one agent stood directly

behind Jones when Bridge first addressed her, he was not sure of that. We

construe this ambiguity against Jones. Finally, Bridge could not recall whether

Jones had said she needed to get to work. We likewise construe this ambiguity

against Jones.

Several additional factors suggest Jones at all times remained in control of

the situation, and was thus not in custody. She at first refused to let the agents

look in her purse. Indeed, the agents were able to search her purse and car only

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after her later consent. When Jones asked that the agents roll down the window on

her side of the car and give her the food, the agents promptly complied. Lastly, at

the end of the interview, she freely left in her own car, a fact we found telling in

Chee, 514 F.3d at 1114, where the suspect freely left after police-station

interrogation. See also 2 Criminal Procedure, supra, § 6.6(c) (noting “the

Supreme Court and the lower courts have relied upon the fact that the suspect was

allowed to leave following the interrogation as strong evidence that the

interrogation was not custodial” (internal footnotes omitted)). All in all, we

cannot say the agents dominated the encounter.

* * *

In sum, the totality of the circumstances convinces us Jones was not in

custody for Miranda purposes. A reasonable person in her position would not feel

her liberty was restricted to a degree associated with formal arrest. Bridge clearly

told Jones she could freely walk away, his questioning focused mostly on Jetti’s

involvement, and the agents did not dominate the encounter to a degree associated

with formal arrest. The conversation, as a result, was either a consensual

encounter or, at most, a Terry stop. Neither though is enough to trigger the

Miranda requirements.

III. Conclusion

Accordingly, we AFFIRM the district court’s denial of Jones’s motion to

suppress her statements to Agent Bridge.

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