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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