United States v. Delmond Cunningham

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4546
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DELMOND CUNNINGHAM,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Frank D. Whitney,
District Judge. (3:10-cr-00040-FDW-1)
Submitted: September 19, 2013 Decided: November 13, 2013
Before TRAXLER, Chief Judge, MOTZ, Circuit Judge, and Gina M.
GROH, United States District Judge for the Northern District of
West Virginia, sitting by designation.
Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.
Henderson Hill, Executive Director, Joshua B. Carpenter, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellant. Anne M. Tompkins, United States
Attorney, Charlotte, North Carolina, Amy Elizabeth Ray,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Appellant Delmond Cunningham appeals his conviction
following a conditional guilty plea to being a felon in
possession of a firearm in violation of 18 U.S.C. § 922(g)(1).
He now challenges the district court’s denial of his motion to
suppress the firearm, as well as the district court’s partial
denial of his motion to suppress statements he made to a police
officer while in custody. We affirm in part, reverse in part,
and remand.
I.
On September 21, 2009, Corporal David Johnston with the
Mecklenburg County Sheriff’s Department was attempting to serve
several outstanding arrest warrants and a domestic violence
protection order on Cunningham. He happened to encounter
Cunningham at a gas station in Charlotte, North Carolina, and
observed Cunningham begin to pump gas into a pickup truck that
was parked in front of Corporal Johnston’s patrol car. Based on
Corporal Johnston’s earlier conversations with acquaintances of
Cunningham, he expected Cunningham to be armed. Corporal
Johnston was also aware of Cunningham’s criminal history, which
included gun charges and gun-related offenses.
When Corporal Johnston approached Cunningham and attempted
to talk to him, Cunningham fled on foot. Corporal Johnston gave
chase and caught up with him about 25 yards away from the gas
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station. A physical struggle ensued. Corporal Johnston used a
taser to subdue Cunningham during the struggle and, with the
assistance of additional responding officers, handcuffed
Cunningham and took him into custody. Both Cunningham and
Corporal Johnston sustained minor injuries and were treated at
the scene.
Corporal Johnston then returned with Mecklenburg County
Sheriff’s Deputy John Forrest to the pickup truck, which was
still parked at the gas pump. Corporal Johnston approached the
driver’s side of the truck. He testified that he looked into
the driver’s side window and observed a black .45 caliber pistol
sitting in plain view on the bench seat of the truck. Corporal
Johnston then entered the truck and seized the firearm. Deputy
Forrest approached the passenger’s side of the truck but did not
see the firearm until Corporal Johnston retrieved it. However,
it was his understanding that the firearm was found on the bench
seat between the passenger’s side and driver’s side of the
truck. He also recalled that there was a middle console that
had been folded down onto the bench seat.
Meanwhile, back at the scene of the arrest, Cunningham
began to complain of chest pains, and Deputy Forrest was asked
to transport him to the emergency room at a nearby hospital. It
is undisputed that Cunningham was not read his Miranda rights
prior to being taken to the hospital. While waiting in the
3
treatment room, Deputy Forrest commented to Cunningham “that he
was smart for not trying to go back to the truck because a
handgun was found in the front seat and it could have made the
situation a lot worse than it was.” J.A. 134. According to
Deputy Forrest, Cunningham responded that “that was one of the
reasons why he ran from Corporal Johnston because he didn’t want
nothing bad to happen.” J.A. 135. Deputy Forrest added that
“shortly after” he made the statement to Cunningham, Cunningham
asked “two [or] three times if he was going to be charged with
possession of the handgun, because he stated he was a convicted
felon.” J.A. 136. Deputy Forrest told Cunningham that he did
not know.
Prior to entering his conditional guilty plea, Cunningham
moved to suppress the firearm seized by Corporal Johnston at the
scene and the statements he made to Deputy Forrest at the
hospital. The district court denied the motion to suppress the
firearm based upon the plain-view exception to the warrant
requirement and, in the alternative, on the basis that
Cunningham abandoned the truck when he ran and the firearm would
have been inevitably discovered when the truck was moved and
inventoried. The truck was not registered to Cunningham.
The district court granted in part and denied in part the
motion to suppress the statements. Although finding that Deputy
Forrest did not actually intend to elicit an incriminating
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response when he initiated the conversation with Cunningham, the
court held that Deputy Forrest’s comment constituted custodial
interrogation because it was reasonably likely to elicit such an
incriminating response. Thus, the district court suppressed
Cunningham’s initial response explaining why he did not return
to the truck. However, with regard to Cunningham’s follow-up
questions -- as to whether he would be charged with possessing
the gun -- the district court held that they “were not [made] in
response to any form of statement or question or comment,” and
the court declined to suppress them. J.A. 190. 1 This appeal
followed.
II.
In considering the denial of a motion to suppress, we
review the district court’s legal determinations de novo and its
factual findings for clear error, viewing the evidence in the
light most favorable to the government. See United States v.
Kelly, 592 F.3d 586, 589 (4th Cir. 2010). “[W]e accord
particular deference to a district court’s credibility
determinations. This deference is based on the district court’s
role of observing the witnesses and of weighing their
1
The district court also denied Cunningham’s motion to
suppress a statement he made to his mother in the presence of
Deputy Forrest. Cunningham has not appealed this portion of the
ruling.
5
credibility.” United States v. Hilton, 701 F.3d 959, 964 (4th
Cir. 2012) (citation omitted).
A.
“The Fourth Amendment protects ‘[t]he right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.’” United States v.
Rumley, 588 F.3d 202, 205 (4th Cir. 2009) (quoting U.S. Const.
amend. IV). The “plain-view” exception to the warrant
requirement, however, allows the warrantless seizure of evidence
when an officer is lawfully in the area in which he sees the
object, has lawful access to the object, and the incriminating
nature of the object is apparent. See id.
In this case, Cunningham argues only that the district
court clearly erred in crediting Corporal Johnston’s testimony
that he observed the .45 caliber firearm in plain view through
the driver’s side window before entering the vehicle and,
therefore, that the court erred in denying his motion to
suppress the firearm. We disagree.
In the post-arrest affidavit, Corporal Johnston stated that
the firearm was located “on [the] front passenger seat in plain
view.” J.A. 194. According to a report prepared by an ATF
agent several months after the seizure, Corporal Johnston “went
back to the truck Mr. Cunningham was at and looked in the
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window” and “[b]etween the driver’s seat and the center console,
in plain view, was a loaded .45 caliber pistol.” J.A. 195.
At the evidentiary hearing, Corporal Johnston testified,
consistent with the earlier reports, that he observed the
firearm in plain view through the truck window before entering
the vehicle. His testimony varied slightly as to the exact
location of the firearm on the bench seat; for example, he
described the area variously as “between the passenger and
driver’s seat in plain view,” J.A. 67, “right past the driver’s
seat in between – where you buckle your seat at” or “[t]o the
right of the driver’s seat . . . [n]ext to the buckle.” J.A.
71. On cross-examination, Corporal Johnston testified that the
seat was “one long seat” or a “running seat” and that “[i]f it’s
past the buckle, [he] consider[ed] that the passenger seat.”
J.A. 103. Corporal Johnston did not recall a center console and
did not recall telling the ATF agent that there was a center
console.
Deputy Forrest testified that he did not see the firearm on
the seat from the passenger’s side but did recall that the
center console had been folded down onto the seat when he
entered the vehicle. It was his understanding that the firearm
was located between the passenger’s side and the driver’s side
of the truck seat.
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Cunningham argues that the district court clearly erred in
crediting Corporal Johnston’s testimony and denying the motion
to suppress on “plain view” grounds because Corporal Johnston’s
testimony was inconsistent with his earlier statements and
Deputy Forrest’s testimony regarding precisely where the firearm
was observed on the seat of the truck and whether a center
console was up or down on the bench seat when the firearm was
observed. The district court, however, specifically considered
and rejected Cunningham’s credibility argument, as follows:
The officer today was absolutely consistent about
the weapon being on the other side of the buckle, and
. . . you argued that that’s inconsistent. It’s not
necessarily inconsistent. People don’t have exact
perfect recollection of every minute fact. And you’re
saying it’s the passenger side, can’t . . . be the
driver’s side. But the officer said it was one
continuous seat. And then the deputy came back and
said it was one continuous seat. There was
disagreement . . . about the console. But the salient
facts are the officer consistently testified that the
weapon was in plain view and he saw it on the other
side of the buckle. . . . [T]oday he was subject to
intense cross-examination and he still came back with
what the Court viewed as a consistent answer.
J.A. 183-84. The district court went on to find that Corporal
Johnston was “highly credible” and that, while there were
“modest inconsistencies,” J.A. 186, Corporal Johnston “stood
firm” on “cross-examination on those allegedly prior
inconsistent statements . . . as to the weapon being on the
other side of the buckle.” J.A. 187. Further explaining his
credibility determination, the district court noted:
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None of us are vehicle designers. We don’t know what
different parts of a long seat are called. . . . [H]e
used the term “passenger seat” . . . in one of his
earlier statements. He explained today exactly what
he saw and when he was asked specifically about
passenger seat, I thought his explanation [w]as highly
credible. I thought his testimony is highly credible,
and so I do credit it and find that it survived a very
excellent cross examination. And thus he saw the
weapon in plain view from outside the vehicle.
J.A. 187.
We hold that the district court did not clearly err in
crediting Corporal Johnston’s testimony that he observed the
firearm on the seat of the truck in plain view before opening
the driver’s side door, providing probable cause to conduct the
warrantless search and seize the loaded firearm. The district
court clearly considered all of the evidence when rendering its
credibility determination, including Corporal Johnston’s prior
statements and Deputy Forrest’s testimony. Furthermore,
Corporal Johnston’s prior statements are consistent with his
testimony that he observed the firearm in plain view through the
driver’s side window before entering the vehicle, and the
alleged inconsistencies pertain only to what one might call the
area of the seat where the firearm was observed and whether
there was a center console folded down at the time. Such minor
discrepancies do not so undermine his testimony that we would
upset the district court’s comprehensive credibility
determination. Cunningham’s argument that Corporal Johnston’s
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testimony was internally inconsistent or implausible on its face
is devoid of evidentiary support and clearly without merit. 2
Accordingly, we affirm the district court’s order denying
Cunningham’s motion to suppress the firearm. 3
B.
It is well established that persons subjected to custodial
interrogation are entitled to the safeguards prescribed by
Miranda v. Arizona, 384 U.S. 436 (1966). In Miranda, the
Supreme Court afforded protection to the Fifth Amendment
privilege against compelled self-incrimination “from the
coercive pressures that can be brought to bear upon a suspect in
the context of custodial interrogation.” Berkemer v. McCarty,
468 U.S. 420, 428 (1984). A suspect interrogated while in
police custody “‘must be warned that he has a right to remain
silent, that any statement he does make may be used as evidence
against him, and that he has a right to the presence of an
2
Cunningham’s attempt to rely upon factual representations
contained in the government’s pre-hearing memorandum in
opposition to the motion to suppress also does not avail him.
The memorandum is not evidence and Corporal Johnston was never
questioned about any pre-hearing contacts or interviews he may
have had with the prosecution.
3
In light of our ruling, we need not consider the district
court’s alternative finding that Cunningham abandoned the truck
when he ran from Corporal Johnston and that the firearm would
have been inevitably discovered when the truck was moved from
the gas station and inventoried.
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attorney, either retained or appointed.’” Id. at 429 (quoting
Miranda, 384 U.S. at 444). Statements made by a suspect during
custodial interrogation are inadmissible as evidence of guilt
unless prior Miranda warnings were given. See id. at 429.
However, “Miranda does not protect an accused from a spontaneous
admission made under circumstances not induced by the
investigating officers or during a conversation not initiated by
the officers.” United States v. Rhodes, 779 F.2d 1019, 1032
(4th Cir. 1985) (internal quotation marks omitted).
It is undisputed that Cunningham was in custody and that
Miranda warnings had not been given prior to his conversation
with Deputy Forrest at the hospital. It is also undisputed that
Deputy Forrest initiated the conversation about the firearm and,
in doing so, informed Cunningham that the firearm had been
recovered from the truck. The district court found that Deputy
Forrest’s statement to Cunningham about the firearm, while not
intended to elicit a response, nonetheless constituted
“custodial interrogation” for purposes of Miranda. See Rhode
Island v. Innis, 446 U.S. 291, 300-01 (1980) (holding “that the
Miranda safeguards come into play whenever a person in custody
is subjected to either express questioning or its functional
equivalent,” including “any words or actions on the part of the
police . . . that the police should know are reasonably likely
to elicit an incriminating response from the suspect”) (footnote
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omitted). And the government has not challenged this
determination on appeal.
Thus, the only issue before us is whether Cunningham’s
follow-up questions, as to whether he would be charged with the
firearm because he was a convicted felon, were also required to
be suppressed because they too were made in response to Deputy
Forrest’s initial statement, or whether the follow-up questions
amounted to a spontaneous admission that falls outside of the
protection of Miranda. In light of Deputy Forrest’s testimony
that Cunningham’s questions were posed “shortly after the
statement [Deputy Forrest] made,” J.A. 136, we are constrained
to hold that the district court erred in denying Cunningham’s
motion to suppress the follow-up questions. Although the
questions did pertain more to Cunningham’s concerns about how
the discovery of the firearm might affect his future, they were
nonetheless directly related to the subject of Deputy Forrest’s
initial statement about the firearm, which the district court
found was reasonably likely to elicit just such an incriminating
admission. Accordingly, we reverse the district court’s order
denying Cunningham’s motion to suppress the follow-up questions
posed by Cunningham to Deputy Forrest.
III.
For the foregoing reasons, we affirm the district court’s
order denying Cunningham’s motion to suppress the firearm. We
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reverse the district court’s order denying Cunningham’s motion
to suppress the follow-up questions he asked of Deputy Forrest
at the hospital, and remand for further proceedings. We
dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
AFFIRMED IN PART,
REVERSED IN PART,
AND REMANDED
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