United States v. Latz ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
12-27-2005
USA v. Latz
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3952
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-3952
UNITED STATES
v.
CHRISTOPHER W. LATZ,
Appellant
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 03-cr-00302)
District Judge: Honorable William W. Caldwell
Argued November 15, 2005
Before: ROTH, FUENTES, and BECKER, Circuit Judges.
December 27, 2005
ROBERT N. TARMAN (ARGUED)
106 Walnut Street
Harrisburg, PA 17101
Attorney for Appellant
THOMAS A. MARINO
United States Attorney
ERIC PFISTERER
Assistant United States Attorney
THEODORE B. SMITH III (ARGUED)
Assistant United States Attorney
United States Attorney’s Office
Middle District of Pennsylvania
228 Walnut Street, Suite 220
P.O. Box 11754
Harrisburg, Pennsylvania 17108
Attorneys for Appellee
OPINION OF THE COURT
BECKER, Circuit Judge.
This is an appeal by Defendant Christopher W. Latz from
a judgment in a criminal case pursuant to a conditional nolo
contendere plea reserving his right to challenge the denial of his
motion to suppress statements and physical evidence that
suggested that he owned a rifle and an explosive device. The
statements, which Latz made both before and after he was given
Miranda warnings, contained admissions that he owned a rifle and
an explosive device, which police later seized during a search of
Latz’s home conducted pursuant to a warrant. This search
occurred after an initial warrantless search, which, Latz asserts,
was illegal. Latz further contends that the warranted search was
tainted both by the initial search and by an unmirandized
interrogation.
We conclude that the District Court erred in refusing to
2
suppress Latz’s unmirandized statements. However, because the
“fruit of the poisonous tree” doctrine does not extend to physical
evidence discovered as a result of voluntary but unmirandized
statements, and because the initial search of Latz’s home was a
valid limited search incident to arrest, we conclude that the District
Court properly refused to suppress the physical evidence. We also
find that the District Court correctly declined to suppress
mirandized statements that Latz made after his unmirandized
statements, because the mirandized statements were tainted neither
by the prior unmirandized statements nor by an illegal search. We
thus conclude that the District Court erred only in refusing to
suppress Latz’s unmirandized statements. However, because we
also conclude that the admission of these statements was not
material, we will affirm the judgment of the District Court.
I. Facts
Latz was indicted for being a felon in possession of a
firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and
for possession of an explosive device, in violation of 26 U.S.C. §
5861(d). He moved to suppress all evidence discovered during a
warrantless search of his home, all evidence seized during a
3
subsequent search conducted pursuant to a warrant, and all
statements that he made to law enforcement officers in his home,
in a police car, and at a booking center.
The District Court held a suppression hearing, which
revealed the following sequence of events. On June 17, 2003,
Officer Brian Staley of the New Cumberland, Pennsylvania Police
Department responded to a complaint that Latz had attempted to
remove an air conditioning unit from the window of a home. The
complainant mentioned that Latz had guns in his home. At 12:30
a.m. on the following day, Staley visited Latz’s home. Latz told
Staley that he had been at home at the time in question and that
Patricia Roth, who lived with him, could confirm this alibi.
After leaving Latz’s home, Staley ran a National Crime
Information Center (NCIC) check on Latz, which disclosed (1) the
existence of warrants for Latz’s arrest, (2) that Latz was in
possession of two guns (a .22 millimeter and a .9 millimeter), and
(3) that Latz was considered “armed and dangerous.” In order to
arrest Latz under the warrants disclosed by the NCIC check, Staley
returned to the area where Latz’s home was located. He was
joined by four other officers, including New Cumberland Police
4
Chief Oren Kauffman, who was holding a twelve-gauge shotgun.
Staley, Kauffman, and one other officer went to the front door; two
other officers went to the back door.
Staley knocked on Latz’s front door, and Latz opened it.
Staley told Latz that he needed to talk with him, and Latz’s eyes
shifted toward Kauffman, presumably because Kauffman was
holding the shotgun. According to Staley, Latz moved forward,
and his arms started to move away from his sides. After Latz
moved, Staley seized his left arm, and the officers told him to get
down. The officers brought Latz down on his front porch, and
Staley handcuffed him.
Kauffman testified that he “stepped in the doorway just to
make sure there were no other issues.” Roth, who lived with Latz,
came down the stairs. Kauffman stated that he “looked to [his]
left-hand side to make sure there wasn’t somebody around the
corner and to make sure that that area was safe,” and he saw a
homemade knife laying on a television stand just inside the front
door. Upon entering, Kauffman also saw a “broken-down” rifle.
Kauffman then handcuffed Roth.
Kauffman opened the back door to admit the officers
5
positioned outside. Latz, still handcuffed, was placed on his
couch, which Kauffman thought to be a safer location than the
porch. Kauffman ordered Staley to conduct a full sweep of the
house, and Staley did so.
Kauffman told Latz that he was not obligated to speak, but
then questioned him without giving Miranda warnings. Kauffman
may have been holding his shotgun during the questioning, which
he described as follows:
I basically advised him that he was under arrest, we
had warrants from Cambria County, and he was
considered armed and dangerous due to those
warrants.
I advised him briefly he didn’t have to talk
with me, but we had some situations we had to get
squared away before we move him out of the
residence and take him to the West Shore Booking
or Cumberland Jail, whichever.
Q. And did he say anything in response
to what you just said?
A. I continued on from that point and
advised him that obviously there was some concern
since he was considered armed and dangerous.
My secondary concern was not only the
safety of the officers, but also since Mr. Latz was
going to be leaving the residence and if Ms. Roth
proved that everything was okay and she was not
going to be arrested for anything, that if there was
anything left behind in the residence that may
implicate her in anything, we need to know about it
now so she wasn’t left holding the bag, in quotes,
for something that he may have in the residence.
6
In response to this questioning, Latz mentioned the rifle and
the homemade knife, both of which Kauffman had already seen.
Latz also mentioned that there were knives in a backpack in the
dining room closet. Kauffman located the backpack and removed
its contents, including an explosive device. The officers then
evacuated the house, and called both a bomb team and the Bureau
of Alcohol, Tobacco, Firearms and Explosives.
Latz was placed in Staley’s patrol car. In the patrol car,
Latz stated that the explosive device belonged to him, and Staley
then gave him Miranda warnings. Next, in response to
questioning, Latz admitted to Staley that the rifle, the homemade
knife, the explosive device, and a marijuana pipe spotted in his
home belonged to him. Kauffman was not present during this
round of questioning. Less than fifteen minutes separated Latz’s
unmirandized statements to Kauffman from the mirandized
statements he made in Staley’s patrol car.
Latz was taken to a booking center, again given Miranda
warnings, and questioned about the explosive device by Kauffman
and other individuals, including an officer of the Pennsylvania
state bomb squad. It is not clear how much time separated this
7
second round of mirandized questioning from the initial
unmirandized questioning, but it must have been at least three
hours and twenty minutes.1
Notably, no evidence was seized during the June 18 entry
into Latz’s home. The rifle and the explosive device were seized
in a subsequent search, for which police had a warrant. However,
the warrant application reflected discoveries made or information
obtained during the warrantless search, listing both firearms and
explosive devices as objects to be seized. The Affidavit of
Probable Cause also stated that Latz had told Kauffman about the
rifle and that Kauffman had discovered the explosive device in the
backpack.
The District Court denied Latz’s motion to suppress the
unmirandized statements, both sets of mirandized statements, and
the physical evidence. It only explained its rationale for
suppressing the physical evidence, stating that the “fruit of the
poisonous tree” doctrine does not extend to derivative physical
1
This can be inferred because the second mirandized
interrogation occurred at approximately 11 a.m., and the first
mirandized interrogation (which transpired after the unmirandized
interrogation) occurred at approximately 7:40 a.m.
8
evidence. Latz then entered a conditional plea of nolo contendere
to felon in possession of a firearm and was sentenced to 48 months
in prison. He filed a timely notice of appeal.
II. Standard of Review
The government bears the burden of showing that a search
is reasonable under the Fourth Amendment. United States v.
Ritter, 416 F.3d 256, 261 (3d Cir. 2005) (citing United States v.
Johnson, 63 F.3d 242, 245 (3d Cir.1995)). We review the District
Court factual findings for clear error; our review of legal
conclusions is plenary. See Id. at 261 (citations omitted).
III. Analysis
A. The Unmirandized Statements
Latz moved to suppress the unmirandized statements that he
made to Kauffman while handcuffed and seated on his couch.
Under Miranda v. Arizona, 384 U.S. 436 (1966), a defendant’s
statements made in the course of a custodial interrogation are not
admissible as evidence unless the defendant receives appropriate
warnings, or an exception applies. See, e.g., United States v.
Leese, 176 F.3d 740, 743 (3d Cir. 1999).
The government contends that Kauffman’s questioning of
9
Latz did not constitute a custodial interrogation under United
States v. Benton, 996 F.2d 642 (3d Cir. 1993), a case in which a
law enforcement officer mentioned to the defendant that he had
seen the defendant bend over near the location where a gun had
been discovered. In response, the defendant made a statement
suggesting that he owned the gun. Id. at 643. We rejected the
argument that the officer’s statement to the defendant constituted
an interrogation. Id. at 664. Instead, the defendant’s “remarks
were unforeseeable.” Id. at 664. In this case, in contrast, it was
forseeable that Latz would respond to Kauffman’s questioning.
Kauffman told Latz that he was not required to talk (suggesting
that Kauffman thought he might). But Kauffman was attempting
to gain information about firearms in Latz’s house. Because we
believe that Kauffman’s statements constituted an interrogation,
and because Latz was clearly in custody, we conclude that the
District Court erred in declining to suppress Latz’s unmirandized
statements.
B. The Explosive Device
Chief Kauffman learned about the explosive device as a
result of his unmirandized interrogation of Latz, who was
10
handcuffed and sitting on his couch. The District Court declined
to suppress the explosive device on the ground that physical
evidence discovered through a custodial interrogation need not be
suppressed even if the defendant did not receive
Miranda warnings.
This Court has held that the Fourth Amendment does not
require suppression of physical evidence discovered as a result of
unmirandized but voluntary statements. See United States v.
DeSumma, 272 F.3d 176, 180-81 (3d Cir. 2001). The Supreme
Court recently reached the same holding in United States v.
Patane, 542 U.S. 630 (2004). This holding results from
combining the plurality opinion of Justice Thomas with the slightly
more narrow concurrence in the judgment of Justice Kennedy,
joined by Justice O’Connor. See Patane at 641 (plurality opinion)
(“[P]olice do not violate a suspect’s constitutional rights (or the
Miranda rule) by negligent or even deliberate failures to provide
full Miranda warnings. Potential violations occur, if at all, only
upon the admission of unwarned statements into evidence.”)
(emphasis added); id. at 645 (Kennedy, J., concurring in the
judgment) (“In light of the important probative value of reliable
11
physical evidence, it is doubtful that exclusion can be justified by
a deterrence rationale sensitive to both law enforcement interests
and a suspect’s rights during an in-custody interrogation.”).
Patane thus validates DeSumma.
To distinguish Patane and DeSumma, Latz argues that his
statements were involuntary, as opposed to merely unmirandized.
See DeSumma, 272 F.3d at 180-81 (“We hold that the fruit of the
poisonous tree doctrine does not apply to derivative evidence
secured as a result of a voluntary statement obtained before
Miranda warnings are issued.”) (emphasis added). As we have
explained, “a statement is involuntary when the suspect’s ‘will was
overborne in such a way as to render his confession the product of
coercion.’” Lam v. Kelchner, 304 F.3d 256, 264 (3d Cir. 2002)
(quoting Arizona v. Fulminante, 499 U.S. 279, 288 (1991)). To
determine whether Latz’s unmirandized statements were
involuntary, we consider the totality of the circumstances in which
they were made. Id. at 264.
The challenged interrogation was far from exemplary, and
Latz should have been mirandized. Before he made the
unmirandized statements, Latz had been placed on his porch by
12
three police officers, handcuffed, and then moved to his couch.
Kauffman, who did the questioning, may have been holding a
shotgun. However, nothing suggests, and Latz does not contend,
that Kauffman pointed the shotgun at Latz during the questioning.
Furthermore, there is no evidence that Latz was threatened, and
Kauffman told Latz that he did not have to talk. Under these
circumstances, we cannot find that Latz’s will was overborne.
Accordingly, we conclude that the District Court did not err in
denying Latz’s motion to suppress the explosive device.
C. The Rifle and Homemade Knife
Kauffman learned about Latz’s rifle and homemade knife
when he entered the house immediately after he and other officers
brought Latz down on his front porch. The government argues
that this initial entry into the house was a valid search incident to
arrest. The Supreme Court has stated that during an arrest in a
suspect’s home, officers may conduct a limited search incident to
arrest: “[A]s a precautionary matter and without probable cause or
reasonable suspicion, [police officers may] look in closets and
other spaces immediately adjoining the place of arrest from which
an attack could be immediately launched.” Maryland v. Buie, 494
13
U.S. 325, 334 (1990) (emphasis added). Thus, a limited search of
the immediate adjoining area, unlike a broader protective sweep,
does not require reasonable suspicion.
Kauffman’s initial search was limited: It extended only to
the area immediately inside the door, and it occurred while Latz
was on the porch, which adjoins the door. This constitutes a
limited search incident to arrest, and reasonable suspicion therefore
is not required.
Latz relies on this Court’s decision in United States v.
Myers, 308 F.3d 251, 253 (3d Cir. 2002), in which a police officer
searched the bag of a defendant who had been arrested in his
residence and who was lying on the floor handcuffed during the
search. We first held that the police officer did not have probable
cause to arrest the defendant. Id. at 254. We then issued what
appears to be an advisory opinion on whether opening the bag
would have been a valid search incident to arrest if, hypothetically,
there were probable cause for the arrest. Id. at 266; see also id. at
284 (Alarcon, J., dissenting) (“In a discussion which lacks any
precedential value because it is unnecessary to its decision . . . the
Majority has opined that the search of the backpack was not
14
incident to Myers’s arrest.”) (emphasis added).
Even if Myers’ discussion of searches incident to arrest
were not dicta, Myers would not control this case. First, Myers
involved opening a bag, not a visual sweep. Second, in contrast to
this case, Myers involved a search that was not contemporaneous
with the arrest. Id. at 274. Most critically, we stated in Myers,
“[n]othing on this record suggests that [the officer] was concerned
that any confederate was lurking about.” Id. at 274. In this case,
by contrast, the police had reason to fear an attack by a third party.
They knew that Latz lived with Roth, they knew from the initial
complaint regarding the air conditioning unit that Latz had guns in
his house, and they knew from the NCIC background check that
Latz owned two guns and was considered armed and dangerous.
Kauffman testified that he “stepped in the doorway just to make
sure there were no other issues,” and that he “looked to [his] left-
hand side to make sure there wasn’t somebody around the corner
and to make sure that that area was safe.” Under Buie, this is a
search of “spaces immediately adjoining the place of arrest from
which an attack could be immediately launched.” Buie, 494 U.S.
at 334. Reasonable suspicion therefore is not required.
15
Latz argues that Kauffman’s entry into the home was illegal
because Latz was on the porch. But an attack could easily have
been launched through the open door. For the foregoing reasons,
we conclude that Kauffman’s search was not illegal. Accordingly,
the subsequent warranted search was not tainted by an illegal prior
search, and the District Court did not err in refusing to exclude the
rifle and homemade knife.2
D. Mirandized Statements
Latz submits that the District Court erred in refusing to
suppress his mirandized statements in the police car and at the
booking center because these statements resulted from the initial
umirandized interrogation by Kauffman. The Supreme Court
recently considered a two-step interrogation process in Missouri v.
Seibert, 542 U.S. 600 (2004). In step one, officers questioned a
suspect without giving Miranda warnings and obtained a
confession; in step two, they obtained a second confession in a
mirandized interrogation. Id. at 604. The Court held that
2
We do not address whether Staley’s full sweep of Latz’s
house conducted after Kauffman’s initial entry violated the Fourth
Amendment. Police officers did not discover any evidence during
the full sweep, and thus the full sweep did not provide a basis for
the subsequent search warrant.
16
statements obtained during the second interrogation are
inadmissible if “the two step interrogation was used in a calculated
way to undermine the Miranda warning.” Id. at 622 (Kennedy, J.,
concurring in the judgment).
Because only four Justices joined the opinion of the
Supreme Court in Seibert, and because Justice Kennedy’s
concurrence in the judgment is more narrow than the plurality
opinion, Justice Kennedy’s opinion is the holding of the Court.
United States v. Naranjo, 426 F.3d 221, 231-32 (3d Cir. 2005).
Therefore, we inquire whether Kauffman’s failure to provide
Miranda warnings was “a simple failure to administer the
warnings rather than an intentional withholding that was part of a
larger, nefarious plot.” Reinert v. Larkins, 379 F.3d 76, 91 (3d
Cir. 2004). Kauffman testified that he asked Latz about weapons
in the house due to officer safety concerns, and no evidence
contradicts this testimony. Thus, Seibert does not apply because
Kauffman did not deliberately attempt to circumvent Miranda.
This does not end our inquiry. Although we see no
evidence of a deliberate withholding of Miranda warnings under
Seibert, we must still apply the traditional rule of Oregon v. Elstad,
17
470 U.S. 298 (1985). See Naranjo, 426 F.3d at 232 (“[U]nless the
agents deliberately withheld warnings, Elstad controls [the
defendant’s] Miranda claim.”). Under Elstad, “[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.” 470 U.S. at 314. To determine whether the
subsequent Miranda warnings are sufficient, we must consider
“who initiated the [initial] interrogation, the time that elapsed
between the two interrogations, the extent to which the same
police were involved in both interrogations, the manner in which
the [initial] interrogation was conducted,” and any other relevant
factors. United States v. Tyler, 164 F.3d 150, 158 (3d Cir. 1998)
(footnote omitted).
Considering all of these factors, we do not think that Elstad
requires the suppression of either set of mirandized statements. As
discussed above, Kauffman’s statements to Latz were sufficiently
probing to constitute an interrogation. However, we glean from
Kauffman’s testimony that he did not question Latz directly, but
instead stated his concern about possible weapons in Latz’s home.
18
Furthermore, the unmirandized interrogation appears to have been
brief. Less than fifteen minutes separated Kauffman’s
unmirandized interrogation from the first mirandized interrogation
(in Staley’s police car), but Kauffman was not in Staley’s car.
Kauffman did participate in the second round of mirandized
questioning (at the booking center), but this occurred at least three
hours and twenty minutes after the unmirandized interrogation.
Thus, we find that both sets of mirandized statements are
admissible.
Relying on Taylor v. Alabama, 457 U.S. 687 (1982), Latz
also argues that District Court erred in refusing to suppress his
mirandized statements because “they were inextricably intertwined
with the illegal search.” Leaving aside the fact that Taylor
addresses the taint of illegal arrests, as opposed to illegal searches,
we see no connection between Latz’s mirandized statements and
any illegal search. As discussed above, Kauffman’s initial entry
into Latz’s home was not an illegal search. The full protective
sweep may (or may not) have been illegal, but none of the items
about which Latz were questioned were discovered during the
sweep. Thus, the questioning and the sweep were not intertwined,
19
and the District Court did not err in refusing to suppress Latz’s
mirandized statements.
E. Application of Federal Rule of Criminal Procedure
11(a)(2)
Finally, given our determination that the District Court
erred in refusing to suppress Latz’s unmirandized statements but
ruled correctly on the balance of the suppression motion, we must
determine what becomes of Latz’s conditional plea. The plea is
governed by Federal Rule of Criminal Procedure 11(a)(2), which
provides:
Conditional Plea. With the consent of the court and
the government, a defendant may enter a conditional
plea of guilty or nolo contendere, reserving in
writing the right to have an appellate court review an
adverse determination of a specified pretrial motion.
A defendant who prevails on appeal may then
withdraw the plea.
The Rule makes it clear that when the Court of Appeals
reverses the denial of a suppression motion in full, the defendant
has the right to withdraw his plea. In such circumstances, the
defendant has “prevail[ed] on appeal.” However, the Rule does
not state whether a defendant can withdraw his plea if he
persuades the Court of Appeals that the District Court erred in
denying part of his motion to suppress. See United States v.
20
Leake, 95 F.3d 409, 420 (6th Cir. 1996) (“The question not
addressed is the effect of a partially successful appeal.”).
The Ninth Circuit has suggested that a defendant has the
right to withdraw his plea when the Court of Appeals reverses any
part of the denial of a suppression motion. “If any ruling that
forms a basis for the conditional plea is found to be erroneous, we
are required to permit the defendant to withdraw his plea.” United
States v. Mejia, 69 F.3d 309, 316 n.8 (9th Cir. 1995). Meija,
however, involved two suppression motions, both of which were
critical to the defendant’s case. See id. at 311.
In Leake, the Sixth Circuit held that the defendant had the
right to withdraw his plea because the District Court had
erroneously admitted “what appears to be the most damning
evidence against him.” Leake, 95 F.3d at 420. The Court then
stated:
We do not mean to imply that every time a
defendant manages to exclude any evidence on
appeal following a conditional plea of guilty, he is
entitled to withdraw his plea. The inquiry requires
an examination of the degree of success and the
probability that the excluded evidence would have
had a material effect on the defendant’s decision to
plead guilty.
Id. at 420 n.21.
21
We agree with the Sixth Circuit that a defendant “prevails
on appeal” only when he persuades the Court of Appeals to
exclude a piece of evidence that is material to his case. Here, we
have stated that the District Court erred in admitting Latz’s
unmirandized statements regarding the rifle, the homemade knife,
and the knives in the backpack. However, the District Court
properly admitted the rifle, the explosive device, and Latz’s
mirandized admissions that he owned the rifle and the explosive
device. These were the very items that he was charged with
possessing. Thus, Latz’s unmirandized statements were entirely
cumulative, and not material. We therefore conclude that Latz has
not “prevail[ed] on appeal” under Rule 11(a)(2), and he does not
have the right to withdraw his plea.
The judgment of the District Court will therefore be
affirmed.
22
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