United States v. Cash , 733 F.3d 1264 ( 2013 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS November 4, 2013
Elisabeth A. Shumaker
TENTH CIRCUIT Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. Nos. 12-7072 and 12-7079
MICHAEL LYNN CASH,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
(D.C. Nos. 6:11-CR-00057-JHP-1 & 6:11-CR-00028-JHP-1)
William D. Lunn, Tulsa, Oklahoma, appearing for Appellant.
Christopher Wilson, Assistant United States Attorney (Mark F. Green, United States
Attorney, Shannon L. Henson and Linda A. Epperley, Assistant United States Attorneys,
on the brief), Office of the United States Attorney for the Eastern District of Oklahoma,
Muskogee, Oklahoma, appearing for Appellee.
Before KELLY, MATHESON, and BLACKBURN,* Circuit Judges.
MATHESON, Circuit Judge.
*
Honorable Robert E. Blackburn, District Court Judge, District of Colorado,
sitting by designation.
On March 22, 2011, Defendant-Appellant Michael Lynn Cash was pulled over
after Officer Timothy McEachern observed him commit a traffic violation. During the
stop, Officer McEachern saw in plain view an artificial bladder device. He also learned
that Mr. Cash was on the way to take a drug test for Steve Brittingham, his federal
probation officer. Suspecting that Mr. Cash was planning on using the bladder device to
defeat a urine drug test—a violation of Oklahoma state law—Officer McEachern
detained him until Officer Brittingham arrived at the scene.
Shortly after Officer Brittingham arrived, he observed a firearm in plain view in
the back seat of Mr. Cash’s car—a clear violation of the terms of Mr. Cash’s supervised
release. A scuffle ensued in an effort to take Mr. Cash into custody and to render the
firearm safe. Mr. Cash was eventually subdued and placed in the back of Officer
McEachern’s cruiser. He was not given warnings under Miranda v. Arizona, 384 U.S.
436 (1966). The officers conducted an inventory search of Mr. Cash’s vehicle and found
methamphetamine, Lortab, and used syringes in addition to the firearm. In the meantime,
Mr. Cash called Officer Brittingham over to the police cruiser and initiated a brief
conversation with him. During this interaction, Mr. Cash told Officer Brittingham that he
had been dealing drugs and feared for his life.
A federal grand jury indicted Mr. Cash on three counts: possession with intent to
distribute methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C);
possession of a firearm in furtherance of a drug trafficking crime in violation of 18
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U.S.C. § 924(c)(1)(A); and as a felon in possession of firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(e). Mr. Cash moved to suppress both (1) the physical evidence
obtained from the search and (2) his statements to Officer Brittingham. The district court
denied both motions, holding that neither Mr. Cash’s Fourth nor Fifth Amendment rights
were violated. Mr. Cash was convicted on all counts after a jury trial. He now appeals
the district court’s denial of both motions to suppress. Exercising jurisdiction under 28
U.S.C. § 1291, we affirm.
I. BACKGROUND
Because Mr. Cash appeals “from the denial of motions to suppress, we recite the
facts in the light most favorable to the government and accept the district court’s findings
of fact unless they are clearly erroneous.” United States v. Briggs, 720 F.3d 1281, 1283
(10th Cir. 2013).
A. Factual History
At approximately 3:30 p.m. on March 22, 2011, Officer McEachern, a patrol
officer with the City of Durant Police Department, stopped Mr. Cash for a routine traffic
violation. Roughly thirty minutes before the stop, Officer McEachern had been advised
that several narcotics officers observed Mr. Cash’s vehicle—a green Jeep Liberty—
outside a known drug house. Officer McEachern was instructed to “develop his own
[probable cause]” and pull Mr. Cash over. ROA, Vol. I at 64. At the time, Officer
McEachern was aware that the vehicle belonged to Mr. Cash, and he learned through
safety bulletins that Mr. Cash was known to use drugs and possess guns. Officer
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McEachern also knew that Mr. Cash had previously been arrested for both possession of
methamphetamine with intent to distribute and public intoxication.
When Officer McEachern observed the traffic violation, he activated the lights on
his patrol cruiser (“cruiser”).1 After stopping Mr. Cash’s vehicle, Officer McEachern
notified the police dispatcher and approached Mr. Cash’s vehicle. At the suppression
hearing, Officer McEachern testified that he told Mr. Cash why he had been stopped and
then asked for his driver’s license and insurance verification. He also testified that he
observed in plain view on the front passenger seat a device consisting of an elastic band
with a rubber bladder, a tube, and a clamp, which he recognized from his prior experience
as a device for defeating a urine drug test (“bladder device”).
According to Officer McEachern, Mr. Cash told him that he was late for a
urinalysis appointment with his federal probation officer, Steve Brittingham. Officer
McEachern observed that Mr. Cash’s behavior—“jittery, moving about, talking rapidly,
seem[ing] very nervous”—was consistent with being under the influence of a controlled
substance. ROA, Vol. I at 66.
Roughly 34 seconds into the video, Captain Chris Cicio, Officer McEachern’s
1
The video camera system in a police cruiser is designed to begin recording
automatically upon activation of the car’s lights. The video camera system in Officer
McEachern’s car, however, was not working properly. In particular, the magistrate judge
found that the video recording “began approximately 30 seconds after” Officer
McEachern activated the lights on his vehicle. ROA, Vol. I at 65. Moreover, the
camera’s audio did not function at all during the stop.
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backup, arrived at the scene. Shortly thereafter, at 47 seconds into the video, Officer
McEachern returned to his patrol cruiser to run a license check and fill out a citation.
During this time, Officer McEachern could see Mr. Cash “fidgeting around” in the
vehicle through Mr. Cash’s rear window. ROA, Vol. I at 66. Based on Officer
McEachern’s prior experience, this behavior raised his concern for officer safety.
Approximately 4 minutes, 5 seconds into the video—after completing the citation
and verifying that Mr. Cash’s license, tag, and warrant checks were clear—Officer
McEachern returned to the driver’s side window of Mr. Cash’s vehicle while Captain
Cicio approached the passenger window. Rather than give Mr. Cash the citation,
however, Officer McEachern asked Mr. Cash to exit the vehicle. Mr. Cash refused,
telling Officer McEachern either to write him a ticket or let him go. He also informed
Officer McEachern that he had to get to the Kiamichi Counseling Center for a drug test.
Officer McEachern believed this statement conflicted with Mr. Cash’s earlier statement
that he was going to see Officer Brittingham. Mr. Cash also denied having any drugs or
guns in the vehicle. When asked if Officer McEachern could search his vehicle, Mr.
Cash declined consent, stating that he was already late.
Approximately 5 minutes, 47 seconds into the video, Officer McEachern
determined that he needed Officer Brittingham at the scene. He returned to his car and
radioed dispatch. Officer McEachern testified that he suspected that Mr. Cash was on his
way to cheat a drug test (a violation of Oklahoma state law) and that Mr. Cash was under
the influence of narcotics. Officer McEachern also testified that he wanted Officer
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Brittingham to handle any parole violation; he stated that he would have given Mr. Cash
a citation and let him go if Officer Brittingham had not come to the scene.
While waiting for Officer Brittingham’s arrival—approximately 11 minutes, 30
seconds into the video—Officer McEachern convinced Mr. Cash to get out of the vehicle
and patted him down for weapons. At this time, Officer McEachern informed Mr. Cash
that he had seen the bladder device and asked Mr. Cash to sit on the curb behind the
vehicle.
At 18 minutes, 45 seconds into the video, Officer Brittingham arrived. The three
officers—McEachern, Cicio, and Brittingham—approached the passenger side of Mr.
Cash’s vehicle and looked in the unopened window. Officer Brittingham asked Mr. Cash
to retrieve the device from the front seat. The passenger side door was locked, so Mr.
Cash—at approximately 23 minutes, 29 seconds into the video—entered the driver’s side
of the vehicle, rolled down the passenger window, and handed Officer Brittingham the
bladder device. Mr. Cash claimed that he did not know what the device was, why it was
in his car, or who put it there. Officer Brittingham placed the device on top of Mr.
Cash’s car and called his superior to advise him of the situation.2
At this time, Officer McEachern noticed Mr. Cash pull a clear, Murine-brand eye
drop bottle with yellow liquid inside from his pocket while he was searching for a
2
The terms of Mr. Cash’s supervised release required that he allow his probation
officer to visit him at any time at home or elsewhere and that he permit confiscation of
any contraband the probation officer observed in plain view. ROA, Vol. II at 85.
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cigarette. He asked Mr. Cash what was in the bottle, and Mr. Cash responded that it was
Visine. When asked to hand it over to Office McEachern, Mr. Cash declined and stuck it
back in his pocket. Officer McEachern testified that he suspected the bottle contained
urine for use with the bladder device.
Still on the phone, Officer Brittingham observed what he thought to be the butt of
a pistol under a gym bag on the back seat of Mr. Cash’s vehicle. He motioned for
Captain Cicio to come to him, communicated what he had just seen, and asked Captain
Cicio to confirm the presence of a gun. After looking into the back seat, Captain Cicio
yelled “gun!” He drew his service weapon and instructed Mr. Cash not to move. The
officers told Mr. Cash to get out of the vehicle. After he failed to comply—at
approximately 25 minutes, 30 seconds into the video—Officer McEachern pulled Mr.
Cash out himself. Mr. Cash resisted by refusing to put his hands behind his back, and a
struggle ensued.
Officer McEachern, Captain Cicio, and Officer Blackshear—who had recently
arrived at the scene—forced Mr. Cash’s arms behind his back. Officer McEachern
repeatedly employed a technique called an “elbow strike” against Mr. Cash’s upper body,
including his head. Two other officers arrived and tackled Mr. Cash around the legs. Mr.
Cash was eventually subdued, handcuffed, and put into the back of Officer McEachern’s
police cruiser. Over the course of the scuffle, Mr. Cash was hit “several” times. ROA,
Vol. II at 148.
Officer McEachern then retrieved a Beretta .22 LR pistol from underneath the
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gym bag in the backseat of Mr. Cash’s vehicle. The pistol’s chamber was loaded, the
hammer was cocked, the safety was off, and the magazine had six rounds in it. After
Officer McEachern rendered the firearm safe, the officers conducted an inventory of Mr.
Cash’s vehicle. They found 10 grams of methamphetamine in the front seat, divided
unequally into 11 baggies inside a camera bag; three Xanax pills; half of a Lortab pill;
and used syringes.
Meanwhile, Officer Blackshear informed Officer Brittingham that Mr. Cash—then
handcuffed in the back of Officer McEachern’s police cruiser—wanted to speak with
him. Officer Brittingham approached the open passenger side window of the cruiser and
asked Mr. Cash “what was going on[?]” ROA, Vol. II at 137. According to Officer
Brittingham, Mr. Cash responded, “[y]ou’ve got to help me. They’re going to kill me.”
Id. Officer Brittingham then asked, “[w]hat’s the deal?” Id. He testified that Mr. Cash
replied, “I’ve been dealing drugs, I’ve been messing with some really bad people, they’re
going to kill me, you’ve got to help me, you’ve got to get me out of here.” Id. at 138.
Mr. Cash was not Mirandized before this conversation.
Officer Brittingham testified that, during this conversation, Mr. Cash was not as
agitated as earlier and seemed more serious and sincere, but that he was sweating
profusely, perhaps from the exertion of the fight. He also testified that he did not see any
injuries on Mr. Cash, and although he did not ask Mr. Cash if he needed medical
assistance, Mr. Cash did not request any assistance either.
At the suppression hearing, Mr. Cash testified that he did not remember making
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these statements. In particular, he testified that someone hit him in the head during the
fight and he could not remember anything that happened between the time of the
altercation outside his vehicle and when he reached the booking area of the county jail.
Jessica Edwards, a confinement officer at the county jail, testified that she was
surprised when Mr. Cash came in and did not recognize her because they had previously
met each other.3 She stated that Mr. Cash was “very confused” and told her that he had a
headache and that the lights were too bright. Id. at 163. Officer Edwards also testified
that Mr. Cash had a cut by his left eye, which was almost swollen shut, and significant
bruising on the left side of his head. She thought that Mr. Cash might have suffered a
concussion because her children had displayed similar symptoms when they had suffered
concussions in the past. Accordingly, Officer Edwards notified her sergeant of Mr.
Cash’s possible need for medical treatment. He told her that the nurse would see Mr.
Cash when she had time. After work, she called Mr. Cash’s father to inform him that his
son was in jail, and she also told him about the injuries she had observed. Mr. Cash
neither complained to his father about nor sought medical treatment for his injuries.
B. Procedural History
On August 9, 2011, a federal grand jury indicted Mr. Cash on three counts:
possession with intent to distribute methamphetamine in violation of 21 U.S.C.
§§ 841(a)(1) and 841(b)(1)(C) (Count One); possession of a firearm in furtherance of a
3
The two had spent a total of four or five hours together at a mutual friend’s house
“a couple of times.” ROA, Vol. II at 161.
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drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A) (Count Two); and as a
felon in possession of firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(e) (Count
Three).
1. Motion to Suppress Seized Evidence
Mr. Cash moved to suppress the firearm and the drugs found during the traffic
stop as fruit of an illegal detention. The magistrate judge conducted an evidentiary
hearing at which Officers McEachern and Brittingham testified. On November 14, 2011,
the magistrate judge entered Findings and Recommendation advising the district court to
deny Mr. Cash’s motion. In particular, the magistrate judge recommended upholding
both (1) the initial stop; and (2) the prolonged detention of Mr. Cash.
First, the stop itself was deemed constitutional because Officer McEachern
“observed the violation of a traffic ordinance”—failing to come to a complete stop at a
stop sign. ROA, Vol. I at 71 (citing United States v. Botero-Ospina, 71 F.3d 783, 787
(10th Cir. 1995) (en banc)).
Second, the magistrate judge held that Officer McEachern’s decision to detain Mr.
Cash for 25 minutes was not unreasonable. Specific and articulable facts, including the
bladder device and Mr. Cash’s own admissions that he was on his way to take a drug test
for his federal probation officer, raised Officer McEachern’s suspicion that Mr. Cash was
on his way to defeat a urine drug test—a possible violation of Oklahoma law and his
supervised release. See ROA, Vol. I at 51, 73; Okla. Stat. tit. 63, § 7002(A)(2). Further,
“[a]dditional factors such as the noticeable nervousness, jittery movement, and
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talkativeness only served to increase [Officer] McEachern’s suspicion and justification
for continued detention.” ROA, Vol. I at 73-74. He was therefore justified in extending
the encounter to confirm certain facts with Officer Brittingham—Mr. Cash’s probation
officer. Accordingly, because no Fourth Amendment violation occurred, the magistrate
judge recommended denying Mr. Cash’s motion to suppress.
On January 3, 2012, the district court entered an order adopting the magistrate
judge’s Findings and Recommendation in full. Although the district court expressed
frustration with the dysfunction of the patrol cruiser’s video and audio system, it
nonetheless was “persuaded that the present record present[ed] sufficient clarity” for the
court to “rule with confidence.” ROA, Vol. I at 106. The court was troubled by Officer
McEachern’s failure to retrieve the bladder device when he first saw it in plain view and
his testimony that he would have let Mr. Cash go if Officer Brittingham had not arrived.
But the court nevertheless concluded that Officer McEachern “could have arrested [Mr.
Cash] and seized the item, without waiting” for Officer Brittingham. Id. Because Officer
McEachern had an independent basis and reasonable suspicion for the detention, this case
did not involve the search of “a parolee qua parolee.” Id. (citing United States v.
Freeman, 479 F.3d 743, 748-49 (10th Cir. 2007)). Accordingly, the district court held
that the stop and detention were reasonable.
2. Motion to Suppress Statements
On February 1, 2012, five days before trial was scheduled to begin, the
Government informed Mr. Cash that it intended to offer Officer Brittingham’s testimony
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about Mr. Cash’s incriminating statements in the cruiser. Mr. Cash moved to suppress
his statements, arguing that they were (1) taken in violation of Miranda v. Arizona, 384
U.S. 436 (1966), and (2) made involuntarily because he was under the influence of
narcotics, had suffered a traumatic beating, and was “hog-tied” when the conversation
took place. ROA, Vol. I at 137.
On February 6, 2012, the district court held a hearing to address these arguments;
Officer Brittingham, Officer Edwards, Mr. Cash’s father, and Mr. Cash testified. At the
end of the hearing, after a one hour recess, the district court denied the motion to suppress
in an oral order on the record. After discussing the legal standards governing confessions
and considering “the briefs, the testimony presented by both parties, and the argument of
counsel,” the court denied Mr. Cash’s motion without further analysis. ROA, Vol. II at
278.
3. Trial and Sentencing
On February 7, 2012, the parties tried the case before a jury. Three days later, the
jury found Mr. Cash guilty on all three counts. The district court entered judgment on
October 11, 2012, sentencing Mr. Cash to 240 months imprisonment on Count One, 60
months on Count Two, and 360 months on Count Three.4 The district court also ordered
Mr. Cash to pay $300 in penalties. Finally, the court sentenced Mr. Cash to three years
4
The court further specified that the term of imprisonment on Counts One and
Three must be served concurrently, and the term of imprisonment on Count Two must be
served consecutively to the terms imposed on Counts One and Three.
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of supervised release on Counts One and Three, and five years of supervised release on
Count Two, to be served concurrently.
Mr. Cash now appeals.5 Exercising jurisdiction under 28 U.S.C. § 1291, we
affirm.
II. DISCUSSION
Mr. Cash argues that the district court should have suppressed (A) the drug and
weapon evidence because it was retrieved from his car in violation of the Fourth
Amendment; and (B) his statements to Officer Brittingham because they were obtained in
violation of the Fifth Amendment. We address these issues in turn.
A. Motion to Suppress the Drugs and Firearm
1. Standard of review
When reviewing a district court’s denial of a motion to suppress seized evidence,
we consider “the totality of the circumstances and view[] the evidence in the light most
5
On October 29, 2012, the district court considered whether to hold a revocation
of supervised release hearing. Mr. Cash waived his right to an evidentiary hearing and
admitted to the offenses in the Government’s report. On October 31, the district court
entered judgment and commitment, sentencing Mr. Cash to 60 months imprisonment, to
be served consecutively with his other sentence. Mr. Cash appealed this order, see Case
No. 12-7079, and we consolidated the appeals on February 5, 2013. However, both Mr.
Cash and the Government agree that there is no merit to the appeal in Case No. 12-7079.
See Aplt. Br. at 40-41; Aplee. Br. at 39-40. We agree, and therefore dismiss it. See 18
U.S.C. § 3583(e); U.S.S.G. § 7B1.3(f); see also United States v. Rodriguez-Quintanilla,
442 F.3d 1254, 1256, 1258 (10th Cir. 2006) (district court neither abused its discretion
nor imposed an unreasonable sentence by imposing fifteen month consecutive sentence
where defendant admitted violating terms of his supervised release by illegally reentering
the country).
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favorable to the government. The district court’s factual findings are reviewed for clear
error.” United States v. Madden, 682 F.3d 920, 924 (10th Cir. 2012) (citations omitted).
“The credibility of witnesses, the weight to be given evidence, and the reasonable
inferences drawn from the evidence fall within the province of the district court.” United
States v. Kimoana, 383 F.3d 1215, 1220 (10th Cir. 2004). “A district court’s factual
finding is clearly erroneous when it is without factual support in the record or if, after
reviewing all the evidence, we are left with a definite and firm conviction that a mistake
has been made.” United States v. Tafoya, 557 F.3d 1121, 1126 (10th Cir. 2009)
(quotations omitted).
“The ultimate determination of reasonableness under the Fourth Amendment,
however, is a question of law reviewed de novo.” Madden, 682 F.3d at 924-25.
2. Applicable law
The Fourth Amendment protects “persons, houses, papers, and effects[] against
unreasonable searches and seizures.” U.S. Const. amend. IV. “A traffic stop is a
‘seizure’ within the meaning of the Fourth Amendment,” and we “analyze such stops
under the principles developed for investigative detentions in Terry v. Ohio, 392 U.S. 1
(1968).” United States v. Trestyn, 646 F.3d 732, 741-42 (10th Cir. 2011) (citations
omitted); see also Delaware v. Prouse, 440 U.S. 648, 653-55 (1979).
When evaluating the reasonableness of a traffic stop, we ask “first whether the
officer’s action was justified at its inception, then second whether it was reasonably
related in scope to the circumstances which justified the interference in the first place.”
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Trestyn, 646 F.3d at 742 (quotations omitted). “Under our cases, [the initial] traffic stop
is valid under the Fourth Amendment if it is based on an observed traffic violation.”
Swanson v. Town of Mountain View, Colo., 577 F.3d 1196, 1201 (10th Cir. 2009)
(quotations omitted); see also United States v. Botero-Ospina, 71 F.3d 783, 787 (10th
Cir. 1995) (en banc).
As to the second inquiry, a traffic stop generally “must last no longer than is
necessary to effectuate the purpose of the stop.” United States v. Pena-Montes, 589 F.3d
1048, 1052 (10th Cir. 2009) (quotations omitted); see also Illinois v. Caballes, 543 U.S.
405, 407 (2005). A law enforcement officer conducting a routine traffic stop “may
generally request a driver’s license, registration, and other required papers, run requisite
computer checks, and issue citations or warnings as appropriate.” United States v.
Rosborough, 366 F.3d 1145, 1148 (10th Cir. 2004); see also United States v. Cervine,
347 F.3d 865, 871 (10th Cir. 2003) (stating that an officer may also inquire about travel
plans). But an officer may not prolong the detention unless (1) he or she “develops an
objectively reasonable and articulable suspicion that the driver is engaged in some illegal
activity, or (2) the initial detention becomes a consensual encounter.” Rosborough, 366
F.3d at 1148 (quotations omitted).
Reasonable suspicion is an objective standard that inquires, based on the totality of
circumstances, “whether the facts available to the detaining officer, at the time, warranted
an officer of reasonable caution in believing the action taken was appropriate.” United
States v. McGehee, 672 F.3d 860, 867 (10th Cir. 2012) (quotations and citations omitted).
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“[D]eference is to be accorded a law enforcement officer’s ability to distinguish between
innocent and suspicious actions.” Id. (quotations omitted). Although “the level of
suspicion required is considerably less than proof by a preponderance of evidence or that
required for probable cause,” it must be based on “something more than an inchoate and
unparticularized suspicion or hunch.” United States v. Chavez, 660 F.3d 1215, 1221
(10th Cir. 2011) (quotations omitted). The “government bears the burden of proving the
reasonableness of [an] officer’s suspicion.” United States v. Simpson, 609 F.3d 1140,
1146 (10th Cir. 2010).
3. Analysis
Mr. Cash argues that even if the initial stop were legal,6 its duration was not, and
therefore any physical evidence seized by the police is inadmissible. We disagree.
Although the magistrate judge correctly found that Mr. Cash did not consent to a longer
encounter (see ROA, Vol. I at 72), an officer may nonetheless extend a detention when he
6
It is not clear whether Mr. Cash challenges on appeal the legality of his initial
stop, but because he has not clearly waived this issue, we will address it briefly. Officer
McEachern witnessed Mr. Cash’s vehicle fail to come to a complete stop at a stop sign—
a traffic violation under local law. See Okla. Stat. tit. 47, § 11-403(B). This provided a
sufficient objective justification to pull over Mr. Cash and issue him a traffic citation.
See United States v. Callarman, 273 F.3d 1284, 1286 (10th Cir. 2001) (“A traffic stop is
valid under the Fourth Amendment if the stop is based on an observed traffic violation.”
(quotations omitted)). This conclusion remains even if Officer McEachern’s subjective
motivation for the stop may have been based on knowledge that Mr. Cash’s vehicle was
recently spotted outside a known drug house. See Whren v. United States, 517 U.S. 806,
813 (1996) (subjective motivations of officers are irrelevant for evaluating “constitutional
reasonableness of traffic stops” under the Fourth Amendment); Botero-Ospina, 71 F.3d at
787 (same). The initial stop itself was therefore constitutional.
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or she observes specific and articulable facts supporting a reasonable suspicion that the
driver is engaged in illegal activity. See United States v. Rosborough, 366 F.3d 1145,
1148 (10th Cir. 2004).
Here, Officer McEachern observed sufficient articulable facts to justify continuing
the detention. First, at the very outset of the stop, he observed the bladder device in plain
view on the passenger seat in Mr. Cash’s vehicle. Officer McEachern testified that he
immediately associated it with being used to cheat a drug test. Second, Mr. Cash told
Officer McEachern at the beginning of the stop that he was on his way to a drug test with
Officer Brittingham, whom Officer McEachern knew to be a federal probation officer.
Officer McEachern therefore knew that Mr. Cash was either on federal probation or
supervised release. Taken together, these facts led Officer McEachern to reasonably
believe that Mr. Cash was on his way to “[a]ttempt to foil or defeat a urine, drug, or
alcohol screening test,” Okla. Stat. tit. 63, § 7002(A)(2)—conduct that Officer
McEachern knew to violate Oklahoma state law.
Mr. Cash argues that possessing a bladder device without urine is akin to
possessing an empty holster and thus was not a “substantial step” required to constitute
the crime of attempt. See Aplt. Br. at 30-31. But Officer McEachern was not required to
conclude a crime had been committed. He needed only reasonable suspicion. The
bladder device and Mr. Cash’s own admission that he was on his way to take a drug test
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provided sufficient reasonable suspicion that he was on his way to defeat that drug test.7
See United States v. Chavez, 660 F.3d 1215, 1221 (10th Cir. 2011) (“[T]he level of
suspicion required is considerably less than proof by a preponderance of the evidence or
that required for probable cause.” (quotations omitted)).
Mr. Cash’s inconsistent statements and nervousness—although far from
dispositive themselves8—contributed to the totality of circumstances. At the beginning
of the stop, Mr. Cash told Officer McEachern that he was late for a drug test at Officer
Brittingham’s office. Several minutes later, Mr. Cash said that he was late for a drug test
at the Kiamichi Counseling Center. These statements gave rise to a reasonable inference
7
Although we agree that the eye drop bottle filled with yellow liquid cannot factor
into the reasonable suspicion analysis because it was not seen until after Officer
McEachern extended the detention, this does not alter our conclusion that the other
information available to Officer McEachern provided reasonable suspicion to detain Mr.
Cash.
8
Contrary to Mr. Cash’s assertions, see Aplt. Br. at 25-27, neither of these factors
was the primary basis for the magistrate judge’s conclusion that the prolonged detention
was lawful. First, although the magistrate judge listed Mr. Cash’s inconsistent statements
as one of the reasons given by Officer McEachern to justify prolonging the detention, she
did not rest her legal conclusion on that factor. See ROA, Vol. I at 72, 74. Second, the
magistrate judge observed that Mr. Cash’s nervousness merely “served to increase
[Officer] McEachern’s suspicion and justification for continued detention” after the
bladder device had already provided Officer McEachern with “the requisite reasonable,
articulable suspicion of criminal activity.” ROA, Vol. I at 73-74.
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of inconsistency, and in turn, evasiveness.9 See United States v. Kitchell, 653 F.3d 1206,
1219 (10th Cir. 2011) (observing that a motorist’s “inconsistent statements in response”
to questions about the motorist’s travel plans “can give rise to reasonable suspicion of
criminal activity”).
Additionally, Officer McEachern testified that Mr. Cash was visibly nervous, and
Officer Brittingham—who was familiar with Mr. Cash—confirmed this observation in
his testimony. See ROA, Vol. II at 93 (stating that Mr. Cash appeared “clearly agitated”
and was “sweating profusely, which is not normal”); see also id. at 145-46. Although we
have recognized that nervousness is “a common and natural reaction to an interaction
with a police officer, whether one is innocent or guilty,” Kitchell, 653 F.3d at 1220
(citing Simpson, 609 F.3d at 1147), it can nevertheless “contribute marginally to a
reasonable suspicion of illegal activity,” United States v. Davis, 636 F.3d 1281, 1291
(10th Cir. 2011), when it is “unusually severe or persistent,” Kitchell, 653 F.3d at 1220
(quotations omitted).
Where, as here, circumstances during a routine traffic stop give rise to reasonable
suspicion that a driver is involved in illegal activity before law enforcement officers have
finished the citation process, we have upheld detentions that stretch well beyond the time
required to run a license check and write a citation. See, e.g., Kitchell, 653 F.3d at 1218-
9
Later testimony revealed that the probation office contracted with Kiamichi for
their drug tests (ROA, Vol. II at 96), but Officer McEachern reasonably believed Mr.
Cash had stated two distinct destinations. See ROA, Vol. II at 37-38.
-19-
21 (21 minutes and 45 seconds not unreasonable where inconsistent travel plans,
nervousness, and use of a rental car gave rise to reasonable suspicion of criminal
activity); United States v. Villa-Chaparro, 115 F.3d 797, 802-03 (10th Cir. 1997) (38
minutes to await arrival of canine unit not unreasonable where defendant failed to pull
over promptly or provide proof that he could lawfully operate the vehicle, and the officer
observed soap crystals—a common masking agent—on the floorboard); United States v.
Cervine, 347 F.3d 865, 872-74 (10th Cir. 2003) (50 minutes); see also United States v.
Sharpe, 470 U.S. 675, 685 (1985) (“[O]ur cases impose no rigid time limitation on Terry
stops.”).
In this case, after observing facts giving rise to reasonable suspicion that Mr. Cash
was on his way to defeat a drug test, Officer McEachern requested—at 5 minutes, 47
seconds into the video—Officer Brittingham’s presence at the scene. Officer Brittingham
arrived roughly 13 minutes later. Although the record indicates that Officer
Brittingham’s office was only five to six blocks from where Mr. Cash was stopped
(ROA, Vol. II at 86), his delay was not unreasonable. See United States v. Patterson, 472
F.3d 767, 776 (10th Cir. 2006) (courts “need not make a time and motion study of traffic
stops; we consider the detention as a whole and the touchstone of our inquiry is
reasonableness”), vacated on other grounds, 555 U.S. 1131 (2009). As the Government
explains, “he was the only person in the office at the time” and “had to shutdown the
computers, lock up and set the alarm, which took 10 to 15 minutes.” Aplee. Br. at 10 n.4;
see also ROA, Vol. II at 86.
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Accordingly, we hold that the prolonged detention of Mr. Cash was not
unreasonable and affirm the district court’s denial of Mr. Cash’s motion to suppress the
physical evidence retrieved from his car.
B. Motion to Suppress Mr. Cash’s Statements to Officer Brittingham
Mr. Cash also appeals the district court’s denial of his motion to suppress his
incriminating statements to Officer Brittingham about “dealing drugs,” ROA, Vol. II at
138. He argues that his confession was (1) obtained in violation of Miranda v. Arizona,
384 U.S. 436 (1966); and (2) involuntary. See Aplt. Br. at 35-39, 41. We address these
issues in turn.
1. Mr. Cash’s entitlement to a Miranda warning
a. Standard of review
As with Fourth Amendment motions to suppress evidence, when reviewing the
district court’s order denying a motion to suppress statements under the Fifth
Amendment, we accept the district court’s factual findings unless clearly erroneous and
view the evidence in the light most favorable to the Government. United States v. Jones,
523 F.3d 1235, 1239 (10th Cir. 2008). In doing so, “[w]e are permitted to consider the
evidence introduced at the suppression hearing, as well as any evidence properly
presented at trial.” Id. (quoting United States v. Harris, 313 F.3d 1228, 1233 (10th Cir.
2002)). We review the “ultimate question of whether Miranda applies, however,” de
novo. Id. (citing United States v. Hudson, 210 F.3d 1184, 1190 (10th Cir. 2000)).
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b. Applicable law
The Fifth Amendment provides, in part, that “no person . . . shall be compelled in
any criminal case to be a witness against himself.” U.S. Const. amend. V. In Miranda v.
Arizona, 384 U.S. 436 (1966), the Supreme Court held that “when an individual is taken
into custody or otherwise deprived of his freedom by the authorities in any significant
way and is subjected to questioning, the privilege against self-incrimination is
jeopardized.” Id. at 478. Thus, “any confession obtained during a ‘custodial
interrogation’ may not be used by the prosecution against the defendant unless the
prosecution demonstrates the use of procedural safeguards effective to secure the Fifth
Amendment privilege against self-incrimination.” United States v. Chee, 514 F.3d 1106,
1112 (10th Cir. 2008) (citing Miranda, 384 U.S. at 444).
For Miranda’s protections to apply, “custodial interrogation must be imminent or
presently occurring.” United States v. Rambo, 365 F.3d 906, 909 (10th Cir. 2004).
Miranda is therefore only applicable when (1) the suspect is in “custody,” and (2) any
“questioning [] meet[s] the legal definition of interrogation.” United States v. Benard,
680 F.3d 1206, 1211 (10th Cir. 2012) (quotations omitted). To be in custody, a person
must be under formal arrest or have “his freedom of action . . . curtailed to a degree
associated with formal arrest.” Id. (quotations omitted).
“The fact that [a defendant is] in custody,” however, “does not automatically
render [an] exchange an interrogation.” Fox v. Ward, 200 F.3d 1286, 1298 (10th Cir.
2000). Rather, “interrogation” refers to “either express questioning or its functional
-22-
equivalent”—i.e., “words or actions on the part of the police (other than those normally
attendant to arrest and custody) that the police should know are reasonably likely to elicit
an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 300-01
(1980).
The Supreme Court has not since elaborated on the meaning of “express
questioning,” and the Tenth Circuit has refused to read the term literally. Rather, we
have determined that “interrogation extends only to words or actions that the officers
should have known were reasonably likely to elicit an incriminating response.” Fox, 200
F.3d at 1298 (emphasis added); see also United States v. Roman-Zarate, 115 F.3d 778,
782 (10th Cir. 1997). Other circuits have adopted similar positions. See, e.g., United
States v. Allen, 13 F.3d 105, 109-10 (4th Cir. 1993); United States v. Briggs, 273 F.3d
737, 740-41 (7th Cir. 2001); United States v. Fleck, 413 F.3d 883, 892-93 (8th Cir. 2005);
United States v. Gonzalez-Mares, 752 F.2d 1485, 1489 (9th Cir. 1985).
This approach is consistent with both Miranda and Innis, which stated that
“[i]nterrogation . . . must reflect a measure of compulsion above and beyond that inherent
in custody itself.” Innis, 446 U.S. at 300; see also W. LaFave et al., 2 Crim. Proc.
§ 6.7(b) (3d ed.) (“The underlying rationale of Innis is that Miranda covers only police
conduct likely to be coercive when coupled with defendant’s custody, which cannot be
said of a question that does nothing more than seek clarification of what the defendant
has already volunteered.”). Not every sentence punctuated by a question mark constitutes
an interrogation. “Express questioning” cannot sweep so broadly. Asking “how’s it
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going?” is a far cry from “where were you on the night of the murder?” Indeed, “a
definition of interrogation that included any question posed by a police officer would be
broader than that required to implement the policy of Miranda itself.” United States v.
Foster, 227 F.3d 1096, 1102-03 (9th Cir. 2000) (quotations omitted).
Thus, although asking a question is relevant to determining whether an
interrogation has occurred, it is neither sufficient nor necessary. Instead, we must inquire
whether law enforcement officials should have known that their words or actions—
whether framed as a question or not—were reasonably likely to elicit an incriminating
statement. See Fox, 200 F.3d at 1298; see also Briggs, 273 F.3d at 741 (“Only questions
that are ‘reasonably likely to elicit an incriminating response from the suspect’ are
improper.” (quoting Innis, 446 U.S. at 301-02)). This inquiry is “an objective one,” and
we focus on the “perceptions of a reasonable person in the suspect’s position rather than
the intent of the investigating officer.” United States v. Rambo, 365 F.3d at 909 (citation
omitted).
c. Analysis
Mr. Cash argues that his unwarned statements in response to Officer Brittingham’s
questions should be inadmissible under Miranda. We disagree. Although the
Government concedes that Mr. Cash was in custody when he was subdued in the back of
the police cruiser (Aplee. Br. at 35), the conversation between Mr. Cash and Officer
Brittingham did not meet the legal definition of interrogation.
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i. First exchange
First, their initial exchange did not constitute interrogation. Mr. Cash began the
conversation when he beckoned Officer Brittingham to the squad car. By its plain terms,
Miranda only applies to “questioning initiated by law enforcement officers after a person
has been taken into custody.” Miranda, 384 U.S. at 444 (emphasis added); see also
United States v. Roman-Zarate, 115 F.3d 778, 782 (10th Cir. 1997) (“The agents did not
interrogate [the defendant. The defendant] initiated communication with Agent Bakios
who simply responded to his questions.”); United States v. Withorn, 204 F.3d 790, 796
(8th Cir. 2000) (no interrogation where defendant in custody “initiated the [incriminating]
conversation” with his federal probation officer and presented no evidence of police
manipulation).
In response to Mr. Cash’s request to see him, Officer Brittingham asked “what
was going on[?]” (ROA, Vol. II at 137). Although phrased as a question, this was merely
an innocuous attempt to understand why Mr. Cash wanted to speak with him. See United
States v. Jones, 600 F.3d 847, 854 (7th Cir. 2010) (no interrogation where defendant in
custody requested to speak to detective and detective “asked [the defendant] why he
wanted to see him, but asked no leading questions of any sort”); see also W. LaFave et
al., 2 Crim. Proc. § 6.7(b) (3d ed.) (exclusion of “innocuous question[s]” from the
definition of interrogation is “certainly correct” given the Innis Court’s admonition that
“‘police surely cannot be held accountable for the unforeseeable results of their words or
actions.’” (quoting Innis, 446 U.S. at 301-02)). It was not “reasonably likely to elicit an
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incriminating response,” Innis, 446 U.S. at 301. Mr. Cash’s answer—“You’ve got to
help me. They’re going to kill me.” (ROA, Vol. II at 137)—was therefore not the
product of interrogation, and Miranda does not forbid its admission against Mr. Cash.
ii. Second exchange
Second, Officer Brittingham’s follow up question—“[w]hat’s the deal?” (id.)—did
not elevate the brief encounter into an interrogation. Rather, this question was simply an
attempt to clarify Mr. Cash’s dramatic statement about threats to kill him so that Officer
Brittingham could assist his supervisee. Although he phrased it as a question, Officer
Brittingham was following up in response to Mr. Cash’s spontaneous statement and was
not engaged in interrogation. See Andersen v. Thieret, 903 F.2d 526, 532 (7th Cir. 1990)
(no interrogation where unwarned defendant voluntarily stated “I stabbed her,” police
responded “Who?,” and defendant gave an incriminating name); United States v. Rhodes,
779 F.2d 1019, 1032 (4th Cir. 1985) (no interrogation where unwarned drug dealer saw
police officers confiscating his notebook and said, “You can’t take that,” to which a
police officer responded, “Why” and drug dealer stated, “I can’t run my business without
that”); see also W. LaFave & J. Israel, 2 Crim. Proc. § 6.7(d) & n.153 (3d ed.) (follow-up
questions are not interrogation when they are only neutral efforts to clarify).
Moreover, Officer Brittingham’s follow up question was not “reasonably likely to
elicit an incriminating response,” Innis, 446 U.S. at 301. Officer Brittingham was Mr.
Cash’s probation officer and was merely responding to an abstract statement about people
wanting to harm him. Indeed, the most reasonable and probable understanding of Mr.
-26-
Cash’s statement about people trying to kill him was that he was referring to his
immediately preceding altercation with police officers. Although an incriminating
response to “[w]hat’s the deal?” was possible, the question was not so likely to produce
an incriminating response that Miranda warnings were required. The interaction
unfolded quickly and spontaneously at Mr. Cash’s behest, and we cannot say that Officer
Brittingham “should have known” that his follow up question would have elicited an
incriminating response. See id. at 302; cf. United States v. Scalf, 725 F.2d 1272, 1275-76
(10th Cir. 1984) (“on-the-scene” inquiry to find out what happened after alleged prison
assault is not interrogation). Thus, Miranda does not prohibit the admission of Mr.
Cash’s second statement about dealing drugs.
* * * *
We hold that neither of Mr. Cash’s statements to Officer Brittingham occurred
during interrogation.10 Accordingly, Miranda does not render them inadmissible, and the
district court properly denied Mr. Cash’s motion to suppress on this ground.
2. Voluntariness
Although we conclude Mr. Cash’s Miranda rights were not violated, our inquiry is
not over because Mr. Cash also claims his statements were made involuntarily. He
10
Because of this conclusion, we need not address Mr. Cash’s argument that he
did not voluntarily waive his Miranda rights, see Aplt. Br. at 36; see also Innis, 446 U.S.
at 298 n.2. An inquiry into waiver is only appropriate if a suspect has actually been given
Miranda warnings. Consequently, Mr. Cash’s argument about waiver is better
understood as a voluntariness argument, which we address below.
-27-
contends that the injuries sustained from his altercation with the arresting officers
prevented him from making a voluntary statement during his later conversation with
Officer Brittingham.
a. Standard of review
We review de novo “the ultimate issue of whether a statement was voluntary,
taking into account the totality of the circumstances surrounding the confession.” United
States v. Lopez, 437 F.3d 1059, 1062 (10th Cir. 2006) (quotations omitted). In
conducting this review, we “must examine the entire record and make an independent
determination of the issue of voluntariness.” Id. at 1062 (quotations omitted); see also
Davis v. North Carolina, 384 U.S. 737, 741-42 (1966). But we must accept, unless they
are clearly erroneous, the district court’s rulings on “subsidiary factual questions, such as
whether the police intimidated or threatened a suspect or whether the suspect was
particularly susceptible to police coercion.” United States v. Chalan, 812 F.2d 1302,
1308-09 (10th Cir. 1987).
b. Applicable law
Before Miranda, the Supreme Court had “recognized two constitutional bases for
the requirement that a confession be voluntary to be admitted into evidence: the Fifth
Amendment right against self-incrimination and the Due Process Clause of the
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Fourteenth Amendment.” Dickerson v. United States, 530 U.S. 428, 433 (2000).11
Although “Miranda changed the focus of much of the inquiry in determining the
admissibility of suspects’ incriminating statements,” the Supreme Court “never
abandoned [the] due process jurisprudence, and thus continue[s] to exclude
confessions . . . obtained involuntarily.” Id. at 434. Nor has it departed from its pre-
Miranda holding in Malloy v. Hogan, 378 U.S. 1 (1964), that the privilege against self-
incrimination forbids the introduction of coerced confessions. See Arizona v.
Fulminante, 499 U.S. 279, 285 (1991) (citing Arizona Supreme Court’s reliance on
Malloy—among other decisions—as “accurately describ[ing] the State’s burden of proof
for establishing voluntariness”). Thus, even if a defendant is not subject to custodial
interrogation—and therefore not entitled to Miranda warnings—his incriminating
statements, if involuntarily produced, are inadmissible. See, e.g., id. at 287-88.
Like the Supreme Court, the Tenth Circuit has evaluated involuntary confessions
through the lenses of both the privilege against self-incrimination and the Due Process
Clause. Compare United States v. Toles, 297 F.3d 959, 965 (10th Cir. 2002) (“When the
government obtains incriminating statements through acts, threats, or promises which
cause the defendant’s will to be overborne, it violates the defendant’s Fifth Amendment
11
In Malloy v. Hogan, 378 U.S. 1 (1964), for example, the Court held that the
Fifth Amendment privilege against self-incrimination prohibits the states from using
coerced confessions in criminal trials. Id. at 6. Relatedly, in Haynes v. Washington, 373
U.S. 503 (1963), the Court held that the Due Process Clause of the Fourteenth
Amendment forbids the use of involuntary confessions at trial. Id. at 513-14.
-29-
rights and the statements are inadmissible at trial as evidence of guilt.” (citing Malloy,
378 U.S. at 7)), and United States v. Short, 947 F.2d 1445, 1449 (10th Cir. 1991) (same),
with Chalan, 812 F.2d at 1307 (observing that use of a confession that is not “the product
of an essentially free and unconstrained choice by its maker . . . offends due process”
(quotations omitted) (emphasis added)), and Lopez, 437 F.3d at 1063 (same), and United
States v. Perdue, 8 F.3d 1455, 1466 (10th Cir. 1993) (same).
Mr. Cash’s brief does not clearly convey whether he challenges the voluntariness
of his confession under the privilege against self-incrimination or the Due Process
Clause.12 Our inquiry is the same under either theory. The voluntariness of a statement
“depends upon an assessment of ‘the totality of all the surrounding circumstances’
including ‘both the characteristics of the accused and the details of the interrogation.’”
12
At first glance, Mr. Cash appears to confuse the issue of waiver under Miranda
with that of involuntary confessions in violation of the privilege against self-
incrimination and/or the Due Process Clause. As we discuss above, whether a suspect
has “voluntarily, knowingly, and intelligently” waived his Miranda rights, see Colorado
v. Spring, 479 U.S. 564, 577 (1987), is only relevant when an accused has received
Miranda warnings. See supra note 10. But even when a confession is not obtained in
violation of Miranda, it must nonetheless be voluntary to be admissible. And regardless
of whether we evaluate the voluntariness of a statement through the lens of Miranda
waiver, the privilege against self-incrimination, or the Due Process Clause, our inquiry is
the same—we consider the totality of the circumstances. See Colorado v. Connelly, 479
U.S. 157, 169-70 (1986) (“There is obviously no reason to require more in the way of a
‘voluntariness’ inquiry in the Miranda waiver context than in the Fourteenth Amendment
confession context.”); Dickerson v. United States, 530 U.S. 428, 434 (due process test
considers “the totality of all the surrounding circumstances—both the characteristics of
the accused and the details of the interrogation” (quotations omitted)).
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Chalan, 812 F.2d at 1307 (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226
(1973)).
In applying a totality of circumstances analysis, we have considered “(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 constitutional
rights; and (5) whether the defendant was subject to any physical punishment.” Lopez,
437 F.3d at 1063-64 (quotations omitted); see also Schneckloth, 412 U.S. at 226; Chalan,
812 F.2d at 1307.
The Supreme Court in Colorado v. Connelly, 479 U.S. 157 (1986), “clarified and
refined” this test. United States v. Erving L., 147 F.3d 1240, 1249 (10th Cir. 1998). The
Connelly Court held that “coercive police activity is a necessary predicate to the finding
that a confession is not ‘voluntary.’” Connelly, 479 U.S. at 167. The Due Process Clause
is not implicated without the “crucial element of police overreaching.” Id. at 163.
“Accordingly, it is clear after Connelly that a confession is only involuntary . . . if the
police use coercive activity to undermine the suspect’s ability to exercise his free will.”
Erving L., 147 F.3d at 1249. But “[e]ven where there is causal connection between
police misconduct and a defendant’s confession, it does not automatically follow that
there has been a violation of the Due Process Clause.” Connelly, 479 U.S. at 164 n.2.
c. Analysis
We conclude that Mr. Cash’s statements to Officer Brittingham were voluntary.
Although Mr. Cash had recently been hurt while resisting arrest, there is no evidence that
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the police coerced him into making any of his statements—a necessary predicate for an
involuntary confession claim.
Mr. Cash relies on United States v. Morris, 287 F.3d 985 (10th Cir. 2002), a
Miranda waiver case, to support his argument that one’s “voluntariness could be affected
by a severe injury.” Aplt. Br. at 39. We do not dispute that statement of the law. Nor do
we disagree with Mr. Cash that Morris’s voluntariness analysis is relevant to this case
even though Morris is a Miranda waiver case. See Connelly, 479 U.S. at 169-70 (“There
is obviously no reason to require more in the way of a ‘voluntariness’ inquiry in the
Miranda waiver context than in the [Due Process Clause] confession context.”). But
Morris supports the lack of coercion in the present case.
In Morris, an undercover FBI agent shot the defendant twice in the back while he
attempted to flee arrest. 287 F.3d at 987, 989. Because of the injuries, the defendant
spent a week in the intensive care unit (“ICU”). See id. After the defendant got out of
the ICU, but while he was still hospitalized and on pain medication, FBI agents secured a
Miranda waiver and elicited incriminating statements from him. See id. We held that the
defendant’s Miranda waiver was voluntary because the evidence “overwhelmingly
show[ed] a lack of any government coercion, either intentional or unintentional.” Id. at
989. In particular, there was “no evidence of FBI misconduct,” and the FBI exercised
“great caution” by waiting ten days to speak with the defendant. Id.
Although the interaction between Mr. Cash and Officer Brittingham, unlike the
interview in Morris, occurred shortly after Mr. Cash’s tussle with the arresting officers
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while resisting arrest, there was no evidence of police misconduct here. Mr. Cash did not
get out of his vehicle when ordered to do so after the officers saw a firearm in the
backseat. Even after Officer McEachern removed Mr. Cash from the vehicle, Mr. Cash
resisted arrest by refusing to put his arms behind his back. Once the officers subdued and
handcuffed Mr. Cash, they placed him in the back of Officer McEachern’s cruiser and
left him alone until Mr. Cash asked to speak with Officer Brittingham.13 Officer
Brittingham himself threatened no physical coercion during their conversation, and
merely responded to Mr. Cash’s entreaties. Nor did Officer Brittingham elicit Mr. Cash’s
statements through manipulation or false promises of leniency. See Lopez, 437 F.3d at
1064 (“[A] promise of leniency is relevant to determining whether a confession was
involuntary and . . . may render a confession coerced.”).
Further, Officer Brittingham testified that Mr. Cash did not appear injured or
confused during their conversation. See United States v. Hack, 782 F.2d 862, 866 (10th
Cir. 1986) (no coercion where agent interviewing defendants at hospital two days after
one had sustained gunshot wound in the mouth “observed that both defendants remained
mentally alert and were conversant with the details of the hijacking” under investigation);
United States v. Robertson, 19 F.3d 1318, 1321 (10th Cir. 1994) (no coercion where FBI
agent observed that defendant, who had recently awoken from a 31-day coma, “seemed
responsive and coherent when he was asked about himself, his relatives and the
13
Although Mr. Cash asserts he was “hog-tied,” Aplt. Br. at 13, Officer
McEachern testified that no leg restraints were used. See ROA, Vol. II at 521, 553.
-33-
geographical area” even though defendant mistakenly gave his age as 27 when in fact he
was 38 years old). Indeed, Mr. Cash’s injuries were not visible until he was taken in for
booking. And although Mr. Cash purportedly did not recognize Officer Edwards at the
county jail, the two had spent only a total of four to five hours together in a group of
several people at a mutual friend’s home.14
Finally, Mr. Cash’s assertion that Officer Brittingham improperly took advantage
of him while he was under the influence of narcotics has no merit. Although it was
“possible that [Mr. Cash] had illegal drugs in his system,” there was “no way that
[Officer Brittingham] could say that [Mr. Cash] was actually under the influence to a
degree.” ROA, Vol. II at 146; see also Short, 947 F.2d at 1450 (no coercion where
defendant on painkillers for serious injuries conversed “freely and intelligently on several
subjects” with questioning officers and “never told his questioners that he felt too ill or
groggy to answer questions”).
When viewed as a whole, the record does not support that police coercion caused
Mr. Cash’s confession. This is “not a case where the police beat a confession out of a
defendant, but rather a situation where the police were required to use force to subdue a
fighting suspect,” United States v. Carroll, 207 F.3d 465, 472 (8th Cir. 2000) (no
coercion where use of force was limited to restraining defendant and subsequent
questioning was not backed by a threat of additional force); see also United States v.
14
Mr. Cash neither filed an excessive force claim nor sought medical attention for
his injuries after his arrest.
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Slater, 971 F.2d 626, 636-37 (10th Cir. 1992) (confession taken at headquarters upon
completion of police chase deemed voluntary even though defendant resisted arrest and
some officers “hit or kicked the defendant once he was apprehended” after “physically
pulling [him] through his car window”).
In sum, we hold that Mr. Cash’s statements to Officer Brittingham were voluntary.
Although Mr. Cash sustained injuries while resisting arrest, the record does not indicate
that police coercion caused him to make incriminating statements. Accordingly, we
affirm on this issue.
III. CONCLUSION
For the foregoing reasons, we affirm the district court’s denial of Mr. Cash’s
motions to suppress. Case No. 12-7072. We also dismiss Mr. Cash’s appeal from the
district court’s revocation of his supervised release. Case No. 12-7079.
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