United States v. Anthony Walker ( 2015 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4739
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ANTHONY WALKER,
Defendant - Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. James K. Bredar, District Judge.
(1:12-cr-00579-JKB-1)
Argued: December 11, 2014 Decided: April 29, 2015
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Wilkinson and Judge Duncan joined.
ARGUED: Julie L.B. Johnson, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant. Michael Clayton
Hanlon, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee. ON BRIEF: James Wyda, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:
The defendant-appellant, Anthony Walker, challenges the
district court’s denial of his pre-trial motions to suppress
statements made and a firearm obtained after his arrest for
drunk driving and the subsequent search of his vehicle. Because
we find no clear error in the district court’s rulings, we
affirm.
I.
Walker was charged on November 1, 2012, in a one count
indictment with possession of a firearm and ammunition under 18
U.S.C. § 922(g)(1). He pleaded not guilty, and later filed
motions to suppress statements that he made during the course of
his arrest, as well as tangible and derivative evidence.
On May 13, 2013, the district court held a hearing on
Walker’s motions to suppress. During the hearing, the
government presented testimony from the two arresting officers,
Officers Ryan Hill and Erin Masters, and their supervisor,
Sergeant Kevin Toliver.
Officer Hill testified that he and Officer Masters were on
patrol in a marked police car in the early hours of June 3,
2012. They were headed northbound on Division Street in West
Baltimore, when they observed a white Mazda make a wide right
turn into the southbound lane of Division Street. Both officers
2
identified Walker in court as the driver of the vehicle.
According to Officer Hill, Walker “actually kind of came over
into the right lane, my lane of traffic, and then came back over
and sped -- went at a high rate of speed southbound on
Division.” J.A. 50; 1 see also J.A. 51 (“[T]he car was at least
halfway over into my side of the street . . . .”); J.A. 121
(Officer Masters’ testimony that “the right turn was very wide,
and the vehicle got very close to our patrol car”). Officer
Hill made a U-turn and began following Walker. As they were
following Walker, Officer Hill observed Walker’s vehicle slow
down but fail to stop at two stop signs. J.A. 52-53 (“Q. So
there was no complete stop? A. No. Not -- not close.”); see
also J.A. 121 (Officer Masters’ testimony that the white Mazda
“[f]ailed to stop at two stop signs”). Officer Hill thereafter
activated the police cruiser’s lights and siren and pulled
Walker over. Walker parked his vehicle at an angle from the
curb. The front of the vehicle was about four feet from the
curb, and the rear of the vehicle was about twelve feet from the
curb.
Officer Masters approached the passenger side of the car
and Officer Hill approached the driver’s side door. Officer
1
Citations to the J.A. refer to the parties’ Joint Appendix
filed in this case.
3
Hill asked Walker for his license and registration. Walker
responded by presenting a “passenger-for-hire ID, not an actual
driver’s license.” J.A. 63. Officer Hill testified that he
twice handed the passenger-for-hire ID back to Walker, but
Walker again presented the same ID. J.A. 66; J.A. 123 (Officer
Masters’ testimony that “[t]he Defendant was trying to hand him
-- I didn’t know at the time what it was, but later found out it
was a sedan license, and Officer Hill said, ‘No, I need your
driver’s license’”).
Officer Hill stated that Walker’s eyes were bloodshot and
glassy and that he was not fully complying with instructions.
Additionally, Officer Hill smelled an alcoholic odor on Walker
and emanating from Walker’s vehicle. Officer Masters testified
that she also smelled alcohol on Walker’s breath, but not until
Walker was outside of the vehicle. Officer Hill additionally
testified that Walker repeatedly leaned toward the center
console of the vehicle, was pulling on the emergency brake and
“he was just doing odd . . . hand motions towards the center of
the car.” J.A. 67-68.
Upon observing Walker’s movements, and given also the odor
of alcohol, Officer Hill asked Walker to exit his vehicle.
Walker did not do so. Hill thus reached inside, turned off the
ignition, and again requested that Walker step outside. Officer
Hill stated that Walker instead leaned further toward the center
4
of the car and put his hands down. Officer Hill then “grabbed
[Walker’s] arm and pulled him out of the car.” J.A. 69; see
also J.A. 125 (Officer Masters’ testimony that, “initially,
[Officer Hill] asked the Defendant to exit the vehicle. When he
did that, I observed the Defendant lean towards the center
console. He did not comply. Officer Hill then removed the
Defendant from the vehicle”).
As the officers accompanied Walker to the rear of his car,
he stumbled at least one time. Officer Hill inquired whether
Walker had consumed any alcohol. Walker first denied drinking
anything, but when asked again, he admitted to having a beer and
a vodka. Officers Hill and Masters handcuffed and arrested
Walker once he reached the back of his car. Officer Hill did
not recall whether he formally advised Walker that he was under
arrest at that time, but Officer Masters recalled that Officer
Hill did so. Officer Hill did not conduct any field sobriety
tests because he is “not certified through the State of Maryland
to give a field sobriety test.” 2 J.A. 73. He also testified
2
Officer Hill testified that he was “in the U.S. Coast
Guard as a boarding officer” and that, while he “was field
sobriety test trained” through the Coast Guard, “that doesn’t
make [him] certified to do it in Maryland.” J.A. 74. In his
capacity as a United States Coast Guard boarding officer, his
“dut[ies] include[d] observing people and making judgments about
whether or not a person is intoxicated or under the influence
while operating a seacraft.” J.A. 74. He was trained “to
(Continued)
5
that because it was a weekend night, it was unlikely that other
law enforcement officials could come to the scene to conduct the
tests. He noted, however, that he “received training in the
Police Academy for observations for impaired drivers.” J.A. 74.
Officer Masters remained at the rear of the vehicle with
Walker, while Officer Hill returned to the driver’s side door of
Walker’s car. Officer Hill testified that he was compelled to
check the car because Walker’s actions immediately prior to
being removed from the car suggested that he was attempting to
conceal evidence. He stated that he thought he would find “some
kind of alcohol or -- my biggest thing, I figured it was some
kind of a controlled dangerous substance.” J.A. 76. Instead of
alcohol or a controlled substance, Officer Hill discovered a
firearm when he opened the center console. He stated that the
firearm was next to a bag of rubber gloves with the pistol grip
facing upward and the barrel facing down into the console. He
also saw a cell phone and a dollar bill under the driver’s seat.
At some point, Officer Hill also located both Walker’s Maryland
driver’s license, as well as his vehicle registration.
Officer Hill testified that the car had to be towed. Thus,
even if he had not expected to find any evidence in the car, he
observe . . . gait, the ability to stand up, speech, being
talkative, having mussed-up clothing,” and the like. J.A. 74.
6
would still have entered the vehicle to retrieve the
registration. Moreover, he stated that the Baltimore Police
Department’s procedures require officers to “fill out a towed
vehicle report that gives all the information of the vehicle,
why it’s being towed, and then you do an inventory of the car
before towing the vehicle.” J.A. 77; see also J.A. 35-43
(Baltimore Police Department General Order I-2: Towing
Procedures). 3 The search would have encompassed the passenger
compartment, including the center console.
Upon discovering the firearm, Officer Hill signaled to
Office Masters that he had found a gun. After removing the gun
3
The policy statement in the Towing Procedures provides:
“It is the policy of the Baltimore Police Department to request
medallion towing services for civilian vehicles that have been
involved in traffic incidents and are creating a traffic hazard,
are found to be stolen or are being held for evidence.” J.A.
35. Prior to towing a car that must be moved due to an
accident, disability, and/or emergency, officers must “[r]emove
and inventory all property of value left in the trunk and the
interior of the car.” J.A. 36; see also J.A. 37 (“Itemize all
property, removed from the vehicle, on the Vehicle Report and
process according to departmental procedure.”); J.A. 40
(providing that when a vehicle must be towed due to the arrest
of the owner/operator, officers should “have the vehicle towed
to the City Yard in keeping with procedures for ‘Vehicles
Disabled As A Result Of an Accident, Disability, and/or
Emergency’ section of this Order”). The Towing Procedures
further state that “[a]n inventory is not conducted for the
purpose of searching for contraband, but to secure the contents
of the vehicle and to protect the officer against civil suits
arising from claims of loss or damage. Remove any property of
value from the interior of the car. When looking for evidence
of a crime, get a warrant.” J.A. 36.
7
from Walker’s car and unloading it, Officer Hill advised Walker
of his Miranda rights. He did so from memory, and recited his
standard warning during the suppression hearing as follows:
You have the right to remain silent. Anything you say
can and will be used against you in a court of law
. . . . You have the right to an attorney. If you
cannot afford an attorney, one will be appointed to
you. At any point during questioning, you can feel
free to stop answering questions. At any point during
questioning, you can feel free to request a lawyer.
J.A. 81. He stated that he normally then asks if the arrestee
understands the rights. In this case, Walker indicated that he
understood his rights. Officer Hill then asked Walker if he
nonetheless would like to answer some questions, and Walker said
that he would. Officer Hill acknowledged that he did not recall
the exact words Walker used in stating that he understood his
rights and was still willing to answer questions, but he was
certain that Walker had verbally affirmed his understanding.
Walker did not request a lawyer.
Walker initially denied any knowledge of the gun. Officer
Hill thus asked his supervisor, Sergeant Toliver, to come to the
scene to speak with Walker, and Walker eventually stated to
Sergeant Toliver that he found the gun in an alley. Sergeant
Toliver testified that he asked Walker, “If you found it, why
didn’t you call the police instead of picking it up and driving
around with it?” J.A. 137. Walker allegedly replied, “Why
would I call the police?” J.A. 137. Sergeant Toliver testified
8
that, “[a]t that time, [Walker] didn’t appear to be in a stable
frame of mind,” and he thus advised Officers Hill and Masters
that he would take Walker to the station. J.A. 137. He stated
that, “on the ride to the station, [Walker] was just talking and
babbling.” J.A. 137; see also J.A. 141-42 (describing Walker’s
speech as “hyper” and “fast” and “all over the place”).
Sergeant Toliver testified that he did not ask Walker any more
questions, but that, throughout the ride to the station, Walker
“kept making up or saying different stories of how he got in
possession of the handgun.” J.A. 139; J.A. 141. Walker did not
request an attorney or invoke his right to remain silent while
he was with Sergeant Toliver.
Later, at the station, Officer Hill filled out paperwork,
including citations for failure to stop at two stop signs and
driving while under the influence, as well as an “advice of
rights” form that Baltimore police officers must provide prior
to administering a breathalyzer. J.A. 84-86. The citations did
not include any information about Walker reaching toward the
center console of the vehicle, or about why Officer Hill ordered
Walker to exit his vehicle. Officer Hill stated that he failed
to include the “furtive gestures” in his report because “[t]hat
wasn’t part of [his] probable cause for arresting [Walker].”
J.A. 94. Additionally, Officer Hill’s reports failed to state
that he was not qualified in the State of Maryland to conduct
9
field sobriety tests; rather, they stated only that Walker was
unable to perform the tests. Finally, the towed vehicle report,
which Officer Masters completed, failed to record the dollar
bill and the cell phone that Officer Hill discovered when he
searched Walker’s car. Officer Hill stated that he forgot to
tell Officer Masters about the two items in the excitement
surrounding the discovery of the gun. According to Officer
Hill, Walker refused to take a breathalyzer or to sign any of
the paperwork.
On cross examination, Officer Hill testified that he had
conducted four or five DUI traffic stops prior to stopping
Walker, and Officer Masters testified that she had conducted two
or three DUI stops. Officer Hill stated that on each prior
occasion, the drivers were arrested, and the vehicles were
subsequently searched because the officers “have to go into the
car either way . . . before we tow it, . . . we always go
through the car once . . . .” J.A. 113. He further stated that
he “always tow[s] the car on DUIs . . . .” J.A. 113.
Before the district court, Walker argued that the
statements he made both before and after his arrest were
obtained in violation of his Fifth and Sixth Amendment rights,
were involuntary, and were the fruit of his illegal arrest. He
additionally argued that even if his arrest was lawful, the
10
search of his car was a violation of his Fourth Amendment rights
under Arizona v. Gant, 556 U.S. 332 (2009).
The district court judge denied both of Walker’s motions to
suppress from the bench. First, the district judge found that
there was probable cause to arrest Walker based on: his erratic
driving; failure to stop at two stop signs; strong odor of
alcohol; failure to comply with requests made by Officer Hill
for his license; furtive gestures toward the center of the car
“consistent, in the officer’s experience, with someone who is
trying to conceal or hide something or dispose of something”;
failure to exit the vehicle when asked; and stumbling or
staggering when walking to the rear of his vehicle. J.A. 155-
56. The court further concluded that Officer Hill had probable
cause to reenter Walker’s vehicle based on the “ample evidence
. . . that the Defendant was operating that vehicle while he was
impaired by some substance.” J.A. 157 (highlighting the “odd
movements” Walker was making with his hands and the “suspicion
on the officer’s part that the Defendant was trying to conceal
something”). The district judge found alternatively that,
“given how that car was parked on that road with that defendant
now lawfully having been arrested, that car had to be moved out
of Division Street.” J.A. 158. Accordingly, the court found
that it was appropriate for the officers to have the car towed.
J.A. 157-58. Specifically, even if Officer Hill had not
11
conducted the search at issue, he or another officer would have
conducted an inventory search prior to towing, and discovery of
the firearm was thus inevitable.
As to Walker’s motions to suppress his statements, the
court found that the preliminary statements made by Walker were
responses to appropriate preliminary questions that may be asked
without a Miranda advisement. Moreover, Officer Hill’s verbal
Miranda advisement complied with the requirements of Miranda.
Finally, the district court found that, based on the testimony
offered, “the Defendant was not falling down, incoherently
drunk, but, at the same time, was sufficiently impaired that it
was . . . unlawful for him to operate a motor vehicle.” J.A.
161. The court continued:
I don’t find that from the evidence presented at this
hearing that the Defendant was so inebriated that he
really had no meaningful understanding of what he was
being told or what he was being asked, and . . . he
had enough residual competency, despite his
impairment, to understand the advisement that he
received and to knowingly and intelligently waive his
Miranda warnings and participate in the conversations
that he participated in with the police officers.
J.A. 161.
Walker was tried by a jury from May 28-30, 2013 on one
count of violating 18 U.S.C. § 922(g)(1). On May 30, 2013, the
jury found him guilty, and he was later sentenced to 72 months’
imprisonment, to be followed by 3 years of supervised release.
This appeal followed.
12
II.
We review the district court’s factual findings underlying
a motion to suppress for clear error, and the court’s legal
determinations de novo. See United States v. Wilson, 484 F.3d
267, 280 (4th Cir. 2007) (citing Ornealas v. United States, 517
U.S. 690, 699 (1996)). When a suppression motion has been
denied, we review the evidence in the light most favorable to
the government. See United States v. Seidman, 156 F.3d 542, 547
(4th Cir. 1998).
Walker advances four arguments. He argues first that there
was no probable cause for his arrest; second, that the firearm
should have been suppressed as the fruit of the unlawful arrest;
third, that he was so intoxicated that any waiver of his Miranda
rights was involuntary, unknowing, and unintelligent; and
finally, that his statements should have been suppressed as a
result of the unlawful arrest and search. 4 We address each
argument in turn.
A.
Walker contends that Officer Hill’s stated reasons for
probable cause were “ambiguous” and did not create probable
cause for the arrest. Probable cause for arrest exists when
4
Walker does not challenge the statements that he made
prior to his arrest.
13
“facts and circumstances within the officer’s knowledge . . .
are sufficient to warrant a prudent person, or one of reasonable
caution, in believing, in the circumstances shown, that the
suspect has committed, is committing, or is about to commit an
offense.” Michigan v. DeFillippo, 443 U.S. 31, 37 (1979).
“While probable cause requires more than ‘bare suspicion,’ it
requires less than that evidence necessary to convict.” United
States v. Gray, 137 F.3d 765, 769 (4th Cir. 1998) (citing
Brinegar v. United States, 338 U.S. 160, 175 (1949)). “It is an
objective standard of probability that reasonable and prudent
persons apply in everyday life.” Id. Moreover, because
probable cause is an “objective” test, we thus “examine the
facts within the knowledge of arresting officers to determine
whether they provide a probability on which reasonable and
prudent persons would act; we do not examine the subjective
beliefs of the arresting officers to determine whether they
thought that the facts constituted probable cause.” Id.; see
also Whren v. United States, 517 U.S. 806, 813 (1996)
(reiterating that “subjective intent alone does not make
otherwise lawful conduct illegal or unconstitutional” (internal
alteration and ellipsis omitted)).
Walker argues that Officer Hill’s testimony that he smelled
a “strong odor” of alcohol emanating from Walker and his vehicle
is contradicted by Officer Masters’ testimony that she only
14
smelled alcohol on Walker’s breath once he was outside of the
car. He also takes issue with the fact that Officer Masters did
not testify, as Officer Hill did, that Walker’s eyes were
bloodshot or glassy, despite spending more time in close
proximity with him than Officer Hill. These differences are not
enough to call the district court’s factual findings into
question, especially given the consistency between the two
officers’ stories, as well as the defendant’s own admissions.
First, both officers smelled alcohol on Walker’s breath.
Second, both testified that Walker stumbled at least once on his
walk to the rear of the vehicle. Third, it is undisputed that
Walker was driving erratically: he made a very wide right turn
such that his vehicle crossed into the opposing lane of traffic,
and then proceeded at a high rate of speed through two stop
signs without coming to a complete stop. Finally, the defendant
admitted to consuming two alcoholic beverages. Thus, regardless
of the alleged inconsistency in their testimony, the two
officers indeed had probable cause “sufficient to warrant a
prudent person, or one of reasonable caution, in believing, in
the circumstances shown, that the suspect has committed, is
committing, or is about to commit an offense.” DeFillippo, 443
U.S. at 37.
Walker argues next that upon observing his apparent
impairment, the appropriate course of conduct would have been
15
for the officers to conduct field sobriety tests. However, he
cites no legal authority for this argument. Indeed, other
circuits (albeit in unpublished opinions) have found that there
existed probable cause to arrest in cases where police had not
conducted field sobriety tests prior to arrest. See Ankele v.
Hambrick, 136 F. App’x 551, 552-53 (3d Cir. 2005) (finding
probable cause to arrest for driving under the influence where
officer observed defendant walked with “staggered gait,” had
bloodshot eyes, had alcohol on his breath, and admitted that he
had been drinking alcohol); Otero v. Town of Southampton, 194 F.
Supp. 2d 167, 172, 178 (E.D.N.Y. 2002), aff’d, 59 F. App’x 409
(2d Cir. 2003) (finding probable cause to arrest for driving
while intoxicated where police officer observed bus driver cross
double yellow line, make a wide turn into oncoming lane of
traffic, and fall to the ground when exiting his bus).
Performance on field sobriety tests, while undoubtedly helpful,
is but one factor among many that might serve as a proper
foundation for probable cause for an officer to arrest a driver
on suspicion of driving under the influence. See, e.g., 1
Donald H. Nichols & Flem K. Whited III, Drinking/Driving
Litigation § 5:5 (2d ed. 2006) (“Following a stop the officer
will be looking for additional information to establish probable
cause for arrest. Information an officer may use to establish
probable cause includes an erratic driving pattern or a driving
16
offense accompanied by various symptoms of intoxication. Poor
performance on the field sobriety test, an odor of alcohol on
the breath, unsteadiness, a flushed face, and bloodshot eyes are
factors that following a stop constitute adequate grounds for
arrest.” (footnotes omitted)). Even if, as Walker argues,
“Officer Hill was simply not interested in establishing how Mr.
Walker would perform on those tests,” Appellant’s Br. 13,
Officer Hill’s subjective intent is immaterial in light of the
ample indicia of intoxication. The district court did not
clearly err in finding that a reasonably prudent person could
assume from Walker’s actions that he was driving while under the
influence of alcohol, and that there was thus probable cause for
his arrest.
B.
Walker next contends that the district court erred when it
denied his motion to suppress the firearm as the fruit of an
unlawful arrest. 5 However, as discussed above, there was
5
Although Walker’s motion before the district court also
challenged the search of his car under Arizona v. Gant, 556 U.S.
322 (2009), J.A. 15, he has not advanced that argument on
appeal. We thus deem the issue waived and do not reach the
district court’s rulings concerning Gant. Schlossberg v.
Barney, 308 F.3d 174, 182 n.6 (4th Cir. 2004). Even if Walker
had not waived his Gant argument, there would be no need to
decide whether a Fourth Amendment violation had occurred.
Rather, we are persuaded by the district court’s analysis
concluding that, because Walker’s vehicle was blocking traffic
and had to be towed, it was inevitable that police would have
(Continued)
17
probable cause for Walker’s arrest. Accordingly, we reject his
argument that the search was the fruit of an unlawful arrest.
C.
Walker also argues that, even if there was probable cause
for his arrest, his statements must be suppressed because he was
too intoxicated to waive his Miranda rights. In making his
arguments, Walker concedes that “[a]t the suppression hearing,
the government presented uncontested evidence that Officer Hill
recited from memory a Miranda warning to Mr. Walker after he was
placed under arrest.” Appellant’s Br. 23. He does not
challenge the sufficiency of the Miranda warning, but focuses
instead on the effectiveness of his waiver.
“Miranda held that once given the now familiar warnings of
his rights under the fifth and sixth amendments, a suspect could
‘waive effectuation of these rights, provided the waiver is made
voluntarily, knowingly and intelligently.’” United States v.
Smith, 608 F.2d 1011, 1012 (4th Cir. 1979) (citing Miranda v.
Arizona, 384 U.S. 436, 444 (1966)). The Supreme Court has
reiterated that while requiring Miranda warnings “does not, of
course, dispense with the voluntariness inquiry[,] . . .
‘[c]ases in which a defendant can make a colorable argument that
discovered the firearm while conducting an inventory search
pursuant to Baltimore Police Department procedure.
18
a self-incriminating statement was ‘compelled’ despite the fact
that the law enforcement authorities adhered to the dictates of
Miranda are rare.’” Dickerson v. United States, 530 U.S. 428,
444 (2000) (quoting Berkemer v. McCarty, 468 U.S. 420, 433 n.20)
(internal citation omitted).
As we have previously observed, our “inquiry into whether
an individual waived effectuation of the rights conveyed in the
Miranda warnings has two distinct dimensions.” United States v.
Cristobal, 293 F.3d 134, 139 (4th Cir. 2002) (citing Edwards v.
Arizona, 451 U.S. 477, 482 (1981)). “First, the relinquishment
of the right ‘must have been voluntary in the sense that it was
the product of free and deliberate choice rather than
intimidation, coercion, or deception.’” Id. at 139 (quoting
Moran v. Burbine, 475 U.S. 412, 421 (1986)). Second, in
addition to being voluntary, “the waiver must have been made
with a full awareness of both the nature of the right being
abandoned and the consequences of the decision to abandon it.”
Id. at 140. We determine whether a Miranda waiver is voluntary,
knowing, and intelligent by examining the totality of the
circumstances. “Only if the ‘totality of the circumstances
surrounding the interrogation’ reveal both an uncoerced choice
and the requisite level of comprehension may a court properly
conclude that the Miranda rights have been waived.” Moran, 475
U.S. at 421.
19
i.
The voluntariness of a waiver depends on “the absence of
police overreaching, not on ‘free choice’ in any broader sense
of the word.” Colorado v. Connelly, 479 U.S. 157, 170 (1986).
A defendant’s “incriminating statement is deemed involuntary
only if induced by such duress or coercion that the suspect’s
‘will has been overborne and his capacity for self-determination
critically impaired.’” United States v. Locklear, 829 F.2d
1314, 1317 (4th Cir. 1987). “To determine whether a defendant’s
will has been overborne or his capacity for self determination
critically impaired, courts must consider the ‘totality of the
circumstances,’ including the characteristics of the defendant,
the setting of the interview, and the details of the
interrogation.” Cristobal, 293 F.3d at 140 (quoting United
States v. Pelton, 835 F.2d 1067, 1072 (4th Cir. 1987)). As
relevant to this case, we have held that consumption of pain
killers and narcotics are alone insufficient to render a waiver
involuntary. Id. at 141. Rather, the focus of the
voluntariness determination remains “whether one’s will has been
overborne.” Id. (“[A] deficient mental condition (whether the
result of a pre-existing mental illness or, for example, pain
killing narcotics administered after emergency treatment) is
not, without more, enough to render a waiver involuntary.”
(citing Connelly, 479 U.S. at 164-65)). Similarly, other
20
circuits have held that intoxication does “not automatically
render a confession involuntary; rather, the test is whether
[this] mental impairment[] caused the defendant’s will to be
overborne.” United States v. Casal, 915 F.2d 1225, 1229 (8th
Cir. 1900); see also United States v. Montgomery, 621 F.3d 568,
574 (6th Cir. 2010) (citing Casal); United States v. Muniz, 1
F.3d 1018, 1022 (10th Cir. 1993). “The Government has the
burden of proving, by a preponderance of the evidence, that the
defendant’s waiver of his Miranda rights was knowing and
voluntary.” United States v. Robinson, 404 F.3d 850, 859 (4th
Cir. 2005).
Here, Walker has presented no evidence that Officers Hill
or Masters engaged in any “intimidation, coercion, or
deception.” Burbine, 475 U.S. at 421. Rather, the uncontested
evidence before the district court showed that Officer Hill
advised Walker of his Miranda rights, and that Walker thereafter
consented to answer questions. The interview took place on the
side of the road, and comprised questions about what the
officers found in Walker’s car, as well as whether he had been
drinking. Although Walker was placed in handcuffs, there are no
allegations that any officers deceived Walker or elicited
statements from him in a coercive manner. Moreover, there is no
evidence in the record that the officers sought to exploit
Walker’s intoxication in order to unlawfully obtain
21
incriminating statements from him. See Cristobal, 293 F.3d at
141 (finding waiver voluntary where evidence did “not show that
law enforcement officials exploited Cristobal’s weakened
condition with coercive tactics,” where he did not request not
to be interviewed, and where “[n]o officer harmed or threatened
to harm Cristobal if he did not waive his rights and answer
. . . questions”). On reviewing the record in this case, we
find that Walker’s waiver was voluntary.
ii.
We next determine whether the waiver was “made with a full
awareness of both the nature of the right being abandoned and
the consequences of the decision to abandon it.” Cristobal, 293
F.3d at 140. Put differently, we must consider whether the
waiver was made knowingly and intelligently. Id. “Unlike the
issue of voluntariness, police overreaching (coercion) is not a
prerequisite for finding that a waiver was not knowing and
intelligently made.” Id. at 142. We must consider, however,
whether Walker’s intoxication was such that it impaired his
ability to give a knowing and intelligent waiver of his Miranda
rights. Id. (“Because we find no coercive police activity (and
thus the waiver was voluntary), it is in our inquiry into
whether Cristobal’s waiver was knowing and intelligent that his
mental condition due to the pain killers and narcotics is the
22
most relevant.”). As with voluntariness, we consider the
totality of the circumstances. Id.
“The test of whether a person is too affected by alcohol or
other drugs voluntarily and intelligently to waive his rights is
one of coherence, of an understanding of what is happening.”
United States v. Smith, 608 F.2d 1011, 1012 (4th Cir. 1979); see
also id. at 1012-13 (finding district court did not clearly err
in concluding that Miranda waiver was valid where defendant
testified that he had “drunk enormous quantities of alcohol in
the twenty-four hour period before the interview” with police,
because district court found that “while Smith appeared to be
drinking . . . he was sober enough to know where he was and to
recognize who the people around him were” (internal quotation
marks omitted)). In Cristobal, we explicitly declined to
“stat[e] that whenever a defendant can show that he was given
medication, his Miranda waiver was per se ineffective.” 293
F.3d at 142. While medication is certainly different from
alcohol in some respects, we see no reason to announce a per se
rule that intoxication, without more, is sufficient to render a
Miranda waiver ineffective. “Other circuits, in likewise
upholding Miranda waivers, have done so despite drug
impairment.” Montgomery, 621 F.3d at 572-73 (citing Cristobal,
and cases from the Seventh, Eighth and Tenth Circuits); United
States v. Burson, 531 F.3d 1254, 1258 (10th Cir. 2008) (holding
23
that “[t]he mere fact of drug or alcohol use will not suffice”
to show that a defendant’s Miranda waiver is ineffective, but
rather the defendant “must produce evidence showing that his
condition was such that it rose to the level of substantial
impairment”).
The totality of the circumstances here does not suggest that
the district court’s factual findings were clearly erroneous.
The court credited Officer Hill’s indication in his report that
Walker’s intoxication was “obvious, but not extreme.” J.A. 161.
The court found that Walker’s driving was erratic, and that he
had at least some trouble walking. The district court
additionally acknowledged Sergeant Toliver’s observations “that
some of [Walker’s] answers to the questions were a little –
suggested that the guy was a little bit out of it.” J.A. 161.
However, the court did not “find from the evidence presented
. . . that the Defendant was so inebriated that he really had no
meaningful understanding of what he was being told or what he
was being asked.” Id.
To be sure, and as just described, there is evidence in the
record of the effects of alcohol consumption on Walker. But
viewing the evidence in the light most favorable to the
government, Seidman, 156 F.3d at 547, the district court did not
clearly err in finding that those effects were not substantial
enough to render Walker’s Miranda waiver unknowing or
24
unintelligent. Walker’s own words and actions suggested that he
was aware of the import of the traffic stop, arrest, and the
Miranda warning. He pulled his car over immediately when
Officer Hill turned on the police cruiser’s lights. He first
denied consuming alcohol, and then admitted to having two
drinks. He initially denied knowledge of the firearm, and then
later made several inconsistent statements about how he had
obtained the gun. Though Walker answered some questions, he
affirmatively refused to sign any paperwork or to take a
breathalyzer at the police station. Although Sergeant Toliver
characterized Walker’s speech as “hyper” and “fast,” J.A. 141,
Walker’s responses and actions were more in line with an
individual attempting to avoid detection than one who was
unaware of what he was doing or saying. Cf. United States v.
Boon San Chong, 829 F.2d 1572, 1574 (11th Cir. 1987) (“An
accused’s decision to answer some questions, but not others,
further supports a finding of an implied waiver -- the accused’s
selective responses suggest an understanding of the right not to
respond.”). Importantly, in addition to what can be gleaned
from Walker’s actions and words, Officer Hill’s testimony, which
the district court credited, was that Walker was not so
intoxicated that he was not aware of his rights or did not
understand them.
25
We thus conclude that the district court did not clearly err
in finding that Walker’s Miranda waiver was knowing and
intelligent. Because Walker does not otherwise challenge the
Miranda warning that he received, we find that the district
court did not err in denying his motion to suppress his
statements.
D.
Finally, Walker argues that his post-arrest statements
should have been suppressed as fruit of an unlawful arrest and
search, even assuming that the Miranda warning was properly
given, understood, and waived. In so arguing, Walker predicates
his argument that the search of his vehicle was unlawful on the
assumption that his arrest was unlawful. But as we concluded
above, there was probable cause for Walker’s arrest. The
district court thus did not err in denying Walker’s motion to
suppress the statements at issue.
Moreover, even if the district court did err in refusing to
suppress Walker’s statements, we would review the admission of
the statements at trial for harmless error beyond a reasonable
doubt. United States v. Mobley, 40 F.3d 688, 693 (4th Cir.
1994). At trial, Walker did not dispute Officer Hill’s
testimony that the barrel of the gun was facing down into the
center console, and the pistol grip was facing upward. Nor did
he dispute that the firearm was loaded. And, importantly, the
26
car that Walker was driving was registered in his name. Given
the positioning and easily reachable location of the gun, the
fact that Walker was the only individual in the vehicle at the
time of the arrest, and the fact that Walker was driving his own
vehicle at the time of the arrest, the admission of the
statements at issue was harmless error. The government provided
sufficient evidence aside from the statements “to establish
constructive possession under § 922(g)(1)” because a reasonable
jury could find beyond a reasonable doubt that he “intentionally
exercised dominion and control over the firearm, or had the
power and the intention to exercise dominion and control over
the firearm.” United States v. Scott, 424 F.3d 431, 435-36 (4th
Cir. 2005) (affirming conviction on the basis of constructive
possession of a firearm in violation of § 922(g)(1) where a
passenger in the defendant’s car was carrying a gun and the
defendant advised the passengers that he refused to continue
driving if the gun was not removed); see also United States v.
Branch, 537 F.3d 328, 343 (4th Cir. 2008) (“As we have held,
‘[a] person has constructive possession over contraband when he
has ownership, dominion, or control over the contraband itself
or over the premises or vehicle in which it [is] concealed.’”
(quoting United States v. Singleton, 441 F.3d 290, 296 (4th Cir.
2006)). Accordingly, even if it was error to allow Walker’s
post-arrest statements concerning the firearm, such error was
27
harmless. See Mobley, 40 F.3d at 694 (finding that it was
harmless error to admit defendant’s statement about presence of
weapon in his apartment at trial where evidence showed that
defendant “was the sole occupant of the apartment,” the
apartment was leased in his name, and the gun was located among
the defendant’s clothing).
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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