United States of America v. Terry Ray

Denver, CO - Criminal defense lawyer represented defendant with a h being a felon in possession of explosives.

Custer County (Oklahoma) Deputy Dylan King arrested Defendant for a traffic

violation.2

While searching Defendant, Deputy King discovered methamphetamine.

Deputy King asked Defendant whether he had any other contraband and Defendant

replied that he did in his vehicle. After Defendant realized he was going to jail, he

cried and made suicidal comments. Deputy King handcuffed Defendant, placed

Defendant in his patrol vehicle, and started an inventory search of Defendant's

vehicle.

Custer County Deputy Quinton Short soon arrived to assist Deputy King.

Deputy Short counseled Defendant and assisted with the inventory search of

2 Body camera footage on file with the Court captured the entire interaction.

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Defendant's vehicle, repeatedly returning to the patrol vehicle to ask Defendant about

the presence of contraband. When Deputy Short asked Defendant what else was in

the vehicle, Defendant hesitantly admitted that he had a blasting cap (an explosive) in

the vehicle. Deputy Short recovered the blasting cap from Defendant's vehicle. At

no time during this roadside encounter did either deputy issue Miranda warnings to

Defendant.

Defendant also told Deputy Short that, although he had only one blasting cap

in the vehicle, he had a lot more at another, undisclosed location. Deputy Short

relayed to Deputy King and others that Defendant said he had more blasting caps at

his house. Upon referring the case to the Bureau of Alcohol, Tobacco, Firearms and

Explosives ("ATF”), Deputy King repeated Deputy Short's misstatement to ATF

Special Agent Brenden Taylor.

Shortly thereafter, Special Agent Taylor and a colleague twice interviewed

Defendant at the Custer County Jail. Each time, the ATF agents read Defendant

Miranda warnings and Defendant signed a waiver of those rights prior to questioning.

Defendant admitted that he had one hundred or so blasting caps, but refused to

disclose their specific location. Defendant also admitted using a blasting cap in his

yard, but suggested the blasting caps were not at his house because he did not own

that house. After the first interview, the agents observed evidence of the use of a

blasting cap outside Defendant's residence. There, the agents also met Heath Justice,

a family friend of Defendant. The next day, Justice informed law enforcement that

Defendant placed a recorded call to him from jail asking Justice to retrieve an item

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law enforcement was looking for from the couch in Defendant's residence. Special

Agent Taylor then obtained a warrant to search the residence. Upon execution of the

warrant, agents discovered three boxes of blasting caps.

A grand jury indicted Defendant with being a felon in possession of explosives

in violation of 18 U.S.C. § 842(i)(1), as well as an unrelated offense. Defendant filed

two motions to suppress: one to suppress evidence from his roadside encounter with

the deputies and his subsequent statements to the ATF agents, and a second to

exclude evidence recovered pursuant to the search warrant. The district court denied

the motions, except as to Defendant's unwarned statements to the deputies.

Thereafter, Defendant pleaded guilty to a Superseding Information charging him with

being a felon in possession of a destructive device in violation of 18 U.S.C.

§ 922(g)(1). The district court sentenced him to 108 months' imprisonment.

Defendant appealed the denials of his motions.

II.

Defendant contends the district court erred in denying his motions to suppress

the physical fruit of his unwarned statements, his statements made to ATF agents

while in custody, and evidence discovered pursuant to a search warrant. Specifically,

Defendant argues that he did not voluntarily make his statements to either the

deputies or ATF agents. Defendant also argues that law enforcement obtained a

search warrant based on materially false information.

"When reviewing an order granting or denying a motion to suppress, we accept

the district court's factual findings unless clearly erroneous, and view the evidence in

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the light most favorable to the district court's findings.” United States v. Elliott, 107

F.3d 810, 813 (10th Cir. 1997). We review de novo "the ultimate issue of whether a

statement was voluntary” under the Fifth Amendment. United States v. Pettigrew,

468 F.3d 626, 633 (10th Cir. 2006) (citation omitted). We likewise review de novo

the reasonableness of a search warrant under the Fourth Amendment. United States

v. Kennedy, 131 F.3d 1371, 1375 (10th Cir. 1997). Our review grants particular

deference to the district court's determinations "regarding the truth or falsity of

statements in the affidavit and regarding the intentional or reckless character of such

falsehoods.” United States v. Campbell, 603 F.3d 1218, 1228 (10th Cir. 2010).

A.

The Self-Incrimination Clause of the Fifth Amendment states that no person

"shall be compelled in any criminal case to be a witness against himself.” U.S.

Const. Amend. V. The Supreme Court has interpreted this clause to provide a

"privilege against self-incrimination during custodial interrogation.” Miranda, 384

U.S. at 490; see also United States v. Patane, 542 U.S. 630, 636 (2004) (explaining

that the Supreme Court created the Miranda rule as "a prophylactic employed to

protect against violations of the Self-Incrimination Clause”). "The SelfIncrimination Clause, however, is not implicated by the admission into evidence of

the physical fruit of a voluntary statement.” Patane, 542 U.S. at 636. Accordingly,

the failure to provide a suspect with Miranda warnings does not require suppression

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of the physical fruit of a "suspect's unwarned but voluntary statements.” Id. at 634

(requiring suppression of only the physical fruit of coerced statements (id. at 644)).3

We have routinely applied this principle to affirm the admission of "physical

evidence seized as a result of a Miranda violation.” See, e.g., United States v.

Pettigrew, 468 F.3d 626, 635 (10th Cir. 2006) (also observing that the Supreme Court

"recognized that custodial statements made prior to the delivery of Miranda warnings

do not necessitate exclusion of any subsequent confession”). Although "a Miranda

violation raises a presumption of coercion,” Patane, 542 U.S. at 646, the test is

"whether a [suspect's] will was overborne by the circumstances surrounding the

giving of a confession,” Dickerson v. United States, 530 U.S. 428, 434 (2000)

(internal quotation marks and citation omitted). See also Colorado v. Connelly, 479

U.S. 157, 167 (1986) (concluding "that coercive police activity is a necessary

predicate to the finding that a confession is not voluntary” (internal quotation marks

omitted)). The test, based upon the totality of the circumstances, considers "both the

characteristics of the accused and the details of the interrogation.” United States v.

Toles, 297 F.3d 959, 966 (10th Cir. 2002). Relevant factors can include: "(1) the

age, intelligence, and education of the defendant; (2) the length of detention; (3) the

length and nature of the questioning; (4) whether the defendant was advised of his

3 Defendant asserts that Patane was wrongly decided and advances the

argument so as to preserve it. Of course, we cannot overrule a Supreme Court

opinion, and will not attempt to do so here. See, e.g., Burrell v. Armijo, 456 F.3d

1159, 1171 n.9 (10th Cir. 2006).

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constitutional rights; and (5) whether the defendant was subjected to physical

punishment.” Id.

Here, Defendant contends that the admission of the blasting cap recovered

from his vehicle violates his Fifth Amendment rights. Specifically, Defendant

contends that the deputies physically and psychologically coerced him into making

involuntary statements about the blasting caps. Although the district court

suppressed Defendant's unwarned statements about the blasting caps obtained in

violation of Miranda, it concluded that Defendant made these statements voluntarily

and, therefore, declined to suppress the actual blasting cap found in his vehicle. We

agree with the district court.

First, the deputies did not physically coerce Defendant into disclosing the

blasting cap in his vehicle. Supreme Court and Tenth Circuit precedent establishes

that while "arresting and handcuffing are coercive acts,” the statements "of a

handcuffed arrestee may well be voluntary,” even in the absence of Miranda

warnings. See United States v. Silva-Arzeta, 602 F.3d 1208, 1215 (10th Cir. 2010);

see also United States v. Watson, 423 U.S. 411, 424 (1976) (observing that "the fact

of custody alone has never been enough in itself to demonstrate a coerced

confession”). Indeed, the proper inquiry centers on whether an arrestee suffered

"physical mistreatment, use of violence or threats of violence,” or similar intrusions

on his person. United States v. Dozal, 173 F.3d 787, 796 (10th Cir. 1999).

In this case, Defendant made his incriminating statements while handcuffed

inside a patrol vehicle. See Silva-Arzeta, 602 F.3d at 1215. However, neither deputy

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physically mistreated, threatened, or otherwise contacted Defendant in any

impermissible way. See Dozal, 173 F.3d at 796. Instead, the deputies acted in a

restrained manner towards Defendant and did not draw their weapons at any time.

See Silva-Arzeta, 602 F.3d at 1215 (10th Cir. 2010) (following case law "finding

consent to be voluntary when guns were holstered before request to search”).

Accordingly, the deputies' lack of physical coercion weighs in favor of the

conclusion that Defendant made his roadside statements voluntarily.

Likewise, the deputies did not coerce Defendant's statements through nonphysical means. In considering the characteristics of a defendant, his "diminished

mental state is only relevant to the voluntariness inquiry if it made mental or physical

coercion by the police more effective.” United States v. Guerro, 983 F.2d 1001, 1004

(10th Cir. 1993). "[T]o find a statement involuntary, the police must somehow

overreach by exploiting a weakness or condition known to exist.” Id. (emphasis

added). The Fifth Amendment does not "protect a defendant from his own

compulsions or internally-applied pressures which are not the product of police

action.” Id. Indeed, if law enforcement is reasonably unaware of a defendant's

mental vulnerabilities, law enforcement cannot be responsible for exploiting them.

See Connelly, 479 U.S. at 164 (reasoning that a "mental condition, by itself and apart

from its relation to official coercion, should [n]ever dispose of the inquiry into

constitutional 'voluntariness'”).

Here, Defendant's mental health history and emotional reaction to his arrest

cannot alone demonstrate that the deputies took advantage of his mental state. See

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id. Even though Deputy Short knew of Defendant, and Defendant had received

mental health treatment in the past, Defendant identifies no evidence that Deputy

Short exploited Defendant's mental health status.

4

See Guerro, 983 F.2d at 1004.

Although Defendant made suicidal comments upon realizing he was under arrest, he

concedes that Deputy Short first "counseled him in a[n] amicable conversation”

before questioning him about contraband. As a result, Defendant appeared composed

when Deputy Short questioned him about contraband in his vehicle. See United

States v. Lamy, 521 F.3d 1257, 1262 (10th Cir. 2008) (reasoning that evidence a

person "was capable of understanding the agents' questions” indicated that he was

also capable of "assessing the risks of answering or declining to answer those

questions” voluntarily). Deputy Short's body camera footage further confirms that

he did not press Defendant about his mental health, but rather focused his brief

inquiries on the presence and location of contraband—a topic wholly divorced from

Defendant's mental health status. Thus, the record indicates that the deputies did not

take "unfair advantage” of Defendant's mental state or coerce his statements by

pressing on any expressed vulnerabilities. See Guerro, 983 F.2d at 1004.

4 The record indicates that Deputy Short was generally aware of Defendant

from a previous arrest and once overheard a conversation with other law enforcement

officers that Defendant had visited Red Rock. Deputy Short was also aware that Red

Rock provides a variety of services, including mental health treatment, drug

treatment, and counseling. Indeed, Deputy Short knew Defendant had drugs on him

before he questioned Defendant. The record does not indicate, however, that Deputy

Short was aware of specific diagnosis or treatment information, or that any such

information influenced how he questioned Defendant about contraband.

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Accordingly, the deputies' lack of psychological coercion also weighs in favor of the

conclusion that Defendant made his roadside statements voluntarily.

Moreover, the limited and conversational nature of the interaction weigh in

favor of the voluntariness of Defendant's statements. See Toles, 297 F.3d at 966.

After placing Defendant under arrest, the deputies only spoke with him in short

increments. See Supp. ROA Vol. I. (Deputy Short's body camera footage) at 1:20–

8:22 (counseling Defendant), 9:30–10:00 (inquiring about contraband), 11:05–11:55

(inquiring about the blasting cap). Deputy Short solicited the incriminating

statements about ten minutes after he arrived on the scene, and Defendant's roadside

detention lasted about forty minutes from when Deputy King first stopped Defendant.

See Lamy, 521 F.3d at 1262 (considering an interview that "lasted less than an hour”

to be short in length). Although two deputies were present for most of the encounter,

only one deputy spoke to Defendant at a time. See Silva-Arzeta, 602 F.3d at 1215

(observing that the presence of several officers is "unlikely to have produced much of

a coercive effect” because only one officer spoke to the subject). The deputies' tone

and demeanor were also conversational throughout the encounter. See Lamy, 521

F.3d at 1262 (reasoning that the "nonthreatening nature of questioning” limits the

coercive effects of a law enforcement encounter). Altogether, the deputies' nonthreatening approach, conversational tone, and short duration of conversation limit

the coerciveness of the interaction and, therefore, demonstrate the voluntariness of

Defendant's statements.

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To be sure, the Supreme Court has generally required much more aggressive

law enforcement tactics to support a determination of unconstitutional coercion. See

Connelly, 479 U.S. at 165 (observing that undue police coercion includes the

administration of "a drug with truth-serum properties” or subjecting a suspect to an

"eight- to nine- hour sustained interrogation”). Thus, we conclude that Defendant

made his roadside statements voluntarily, even though the statements themselves

were inadmissible in the absence of Miranda warnings. Accordingly, the district

court correctly concluded the physical evidence recovered pursuant to Defendant's

inadmissible statements was admissible under Patane.

B.

We next consider whether Defendant's later statements to ATF agents at the

Custer County Jail were admissible. Defendant contends that he remained under the

influence of police coercion from his unwarned roadside encounter, so any

subsequent statements to the agents are likewise the product of coercion. The district

court found that Defendant participated freely in the county jail interviews and

declined to suppress Defendant's statements therefrom. We agree with the district

court for two reasons: (1) the deputies did not subject Defendant to undue police

coercion during his roadside encounter, see supra Part II(A), and (2) even if they had,

coerciveness—as a matter of Supreme Court precedent—does not generally carry

over to a later, unrelated interview, see Oregon v. Elstad, 470 U.S. 298, 313 (1985).

Preliminarily, we reject the initial premise of Defendant's argument by

concluding that Defendant made his roadside statements voluntarily, rather than as a

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product of coercion. See supra Part II(A). Nevertheless, the Supreme Court has held

that even where Miranda requires a court to suppress an unwarned statement, "the

admissibility of any subsequent statement should turn . . . solely on whether it is

knowingly and voluntarily made.” Elstad, 470 U.S. at 309. Moreover, "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. Therefore, a "subsequent administration of Miranda

warnings to a suspect who has given a voluntary but unwarned statement ordinarily

should suffice to remove the conditions that precluded admission of the earlier

statement.” Id.

In this case, Defendant made unwarned but voluntary statements to the

deputies. See supra Part II(A). Defendant then provided additional statements to

ATF agents after the agents read Defendant Miranda warnings and Defendant signed

a waiver of those rights. Defendant does not identify any actions by the ATF agents

that independently coerced him into waiving his Miranda rights or otherwise

involuntarily speaking to them. Instead, Defendant's coercion argument as to these

statements relies exclusively on the effects of his unwarned, roadside encounter—an

argument that the Supreme Court expressly rejected as a basis to suppress

subsequent, warned statements. See United States v. Carrizales-Toledo, 454 F.3d

1142, 1149 (10th Cir. 2006) (recognizing that the Supreme Court "rejected the theory

that the initial, unwarned statement creates a 'lingering compulsion' based on 'the

psychological impact of the suspect's conviction that he has let the cat out of the bag

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and, in so doing, has sealed his own fate'” (quoting Elstad, 470 U.S. at 311 (1985)).

Accordingly, Defendant's prior unwarned statement to the deputies did not taint his

later, voluntary statements to ATF agents. Thus, we conclude that Defendant's later

statements to ATF agents at the Custer County Jail were admissible.

C.

We finally consider whether evidence—more blasting caps—that agents

recovered from Defendant's home pursuant to a search warrant was admissible.

Defendant contends that the ATF agents obtained the additional blasting caps in

violation of his Fourth Amendment rights because the search warrant was based on

materially false information. Specifically, Defendant challenges two statements in

Special Agent Taylor's search warrant affidavit: (1) Defendant told deputies that he

had more blasting caps "at his residence” after his roadside arrest; and (2) Defendant

told the agents that he was keeping blasting caps "in a secret location at the subject

residence” during his April 3 interview. The district court declined to excise the

challenged statements from the search warrant affidavit and, therefore, declined to

suppress evidence recovered from the subsequent search of Defendant's residence.

We again agree with the district court.

The Fourth Amendment protects the right of the people to be secure in their

houses and effects against unreasonable searches and seizures. U.S. Const. Amend.

IV. The text requires that the issuance of a search warrant be based upon probable

cause. Id.; Illinois v. Gates, 462 U.S. 213, 231 (1983). We exclude evidence

discovered pursuant to a search warrant when: (1) "a defendant proves by a

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preponderance of the evidence the affiant knowingly or recklessly included false

statements in or omitted material information from an affidavit in support of a search

warrant;” and (2) "after excising such false statements and considering such material

omissions . . . [we conclude] the corrected affidavit does not support a finding of

probable cause.” Campbell, 603 F.3d at 1228 (alterations in original) (internal

quotation marks and citation omitted).

Concerning the first challenged statement, Defendant undisputedly did not tell

Deputy Short that he had more blasting caps "at his residence.” Instead, the record

confirms that Defendant said he only had one blasting cap in his vehicle, but had "a

lot more than that” without disclosing a location. Although Defendant does not argue

that Deputy Short knowingly misquoted Defendant, he contends that Deputy Short

and those who relied on his hearsay statement acted recklessly. Specifically,

Defendant asserts that Deputy Short was reckless in misquoting Defendant and

Special Agent Taylor was likewise reckless in failing to confirm the quote with

Deputy Short's body camera recording of the interaction. Defendant, however, fails

to carry his burden of demonstrating that Special Agent Taylor knowingly or

recklessly included false statements in his search warrant affidavit because we

conclude the record does not establish: (1) that Deputy Short was reckless in

misquoting or conveying Defendant's statement, or (2) that Special Agent Taylor was

reckless in relying on that information. See Campbell, 603 F.3d at 1228.

First, the hasty nature of Deputy Short's roadside conversation with Defendant

suggests that Deputy Short's original misstatement was accidental. See Franks v.

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Delaware, 438 U.S. 154, 165 (1978) (recognizing that affiants must often rely upon

hearsay or other information "that sometimes must be garnered hastily,” so we

consider information to be truthful if "the information put forth is believed or

appropriately accepted by the affiant as true”). Within seconds of hearing

Defendant's statement about additional blasting caps, Deputy Short told Deputy King

that Defendant said he had "a whole lot more of them at his house.” See Christopher

B. Mueller & Laird C. Kirkpatrick, 4 Fed. Evid. § 8:67 (4th ed. June 2019 Update)

(evidence law recognizes that "a small delay” between observation and retelling

makes a statement particularly trustworthy because such a delay "is not enough to

allow reflection”). Deputy Short consistently repeated this misstatement to other law

enforcement personnel, who conveyed the misstatement to Special Agent Taylor.

Presumably, in light of Deputy Short's immediate and consistent retelling of

the misstatement, Defendant does not dispute whether Deputy Short or Special Agent

Taylor believed the misstatement to be true. See Franks, 438 U.S. at 165. Indeed,

the conveyance of incorrect information appeared to be, at most, the product of

negligence, which is insufficient to justify the exclusion of evidence. See Campbell,

603 F.3d at 1228 (recognizing that a defendant must do more than identify "the

existence of the [misstatements] themselves” to demonstrate "an intent to mislead or

recklessness on the part of the officers” (id. at 1229)). Thus, we conclude Deputy

Short's misstatement does not provide a valid basis to excise the first challenged

statement from the search warrant affidavit because the record does not show Deputy

Short intentionally or recklessly misquoted Defendant. Id.

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Next, Special Agent Taylor's inclusion of Deputy Short's misstatement in the

search warrant affidavit likewise does not rise to the level of recklessness. As a

matter of course, affiants routinely rely on information relayed to them from other

law enforcement personnel. See, e.g., United States v. Tisdale, 248 F.3d 964, 974

(10th Cir. 2001) (observing that an affiant's inclusion of assumed but unverified

information relayed to him by another officer was "reasonable”). Defendant asserts

that Special Agent Taylor's failure to check Deputy Short's body camera footage

before including a representation in an affidavit constitutes recklessness, but he does

not identify any authority to support that proposition. Conversely, the Supreme

Court has recognized that the rule for exclusion "leaves a broad field where . . .

police have been merely negligent in checking or recording the facts relevant to a

probable-cause determination.” Franks, 438 U.S. at 170. Deputy King repeated

Deputy Short's misstatement to Special Agent Taylor, which both deputies' police

reports contained. Thus, Special Agent Taylor was not reckless in relying on

information relayed to him from other law enforcement sources.

Concerning the second challenged statement, Defendant asserts that he did not

actually tell ATF agents that he had blasting caps at his residence during his

interview. The government counters that Defendant admitted using a blasting cap at

his residence and engaged in a game of semantics, which Special Agent Taylor

reasonably interpreted as an admission that the additional blasting caps were at his

residence. Specifically, Defendant suggested that the agents would not find the

blasting caps in a search of his house because the subject residence was "not my

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house.” Special Agent Taylor interpreted this exchange as a game of semantics

regarding who owned the residence at which Defendant lived, rather than a denial

that the blasting caps were in Defendant's residence.

Although Special Agent Taylor exercised some measure of interpretation to

construe Defendant's interview statements to mean that the blasting caps were at his

residence, his conclusion was not necessarily knowingly false or reckless. See

Campbell, 603 F.3d at 1229 (10th Cir. 2010) ("Where there are two permissible

views of the evidence, the factfinder's choice between them cannot be clearly

erroneous.”). Rather, Special Agent Taylor reasonably believed that Defendant

previously told the deputies the blasting caps were at his residence and saw evidence

of the use of a blasting cap at his residence, so his subsequent belief that Defendant

was again referring to his residence during the interview was likewise reasonable.

See Franks, 438 U.S. at 165. Additionally, Defendant called Justice the day after he

spoke with Special Agent Taylor to ask Justice to retrieve an item law enforcement

was looking for—the blasting caps—from the couch of his residence. This

uncontested information, which Special Agent Taylor separately included in his

affidavit, further corroborated Special Agent Taylor's belief that Defendant knew he

was discussing blasting caps at his residence during the interview. Thus, we

conclude that the district court correctly declined to excise either challenged

statement from the search warrant affidavit. Accordingly, the blasting caps

recovered from Defendant's residence pursuant to the execution of a valid search

warrant were also admissible.

For the foregoing reasons, we AFFIRM the district court’s orders denying, in

pertinent part, Defendant’s motions to suppress