* This order and judgment is not binding precedent, except under the doctrines of

law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### APR 10 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 97-6332

v. (W.D. Oklahoma) STEVIE JEROME WILLIAMS,

Defendant - Appellant. (D.C. No. CR-96-152-M)

ORDER AND JUDGMENT *

Before ANDERSON , McKAY , and LUCERO , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. Stevie Jerome Williams appeals his convictions foll owing a jury trial for bank robbery, attempted bank robbery, being a felon in possession of a firearm,1 Although he characterizes his contention in terms of probable cause, Williams’

argument actually goes to the investigatory stop and detention. Seediscussion infra. -2- carrying a firearm during a crime of violence, and knowingly transporting a firearm in interstate commerce with intent to commi t armed robbery. He contends that the district court erred in finding 1) there w as probable cause to arrest him, 1 and 2) his confession was voluntary. We affirm.

BACKGROUND On August 27, 1996, Williams flagged down an Altus, Oklahoma, citizen. He asked for directions to the Red River Federal Cr edit Union, stating that he wanted to “make a loan.” R. Vol. III at 163. The citizen gave him the directions, but became alarmed when she observed the outline of a gun in Williams’ front pants pocket. Following their conversation, she co ntacted the sheriff’s office to report her suspicion that a man carrying a gun was going to rob the credit union. She described the man as a stocky, bald, black male weighing about 250 pounds. Id. at 162, 167. The Altus police department immediately dispatched Officer Stephen Sollis to the credit union. Id. at 174-75. As he drove into the parking lot in hi s police car, Sollis observed Williams approaching the credi t union front door and looking over in Sollis’ direction. Id. at 176-77. As Sollis watched Williams enter the-3-

building, Sollis noted that he was wearing a floppyblue fishing hat and sunglasses, and that he fit the dispatched descript ion—a black male about six feet tall, weighing approximately 250 pounds. Id. Additionally, Sollis observed a bulge in Williams’ right front pocket which was con sistent with his information that Williams was carrying a gun. Id. at 179. Sollis then parked in the nearest space in front of the credit union. As Sollis was getting out of his patrol car, Williams came back out of the credit union “without any commotion or any urgency.” Appe llant’s Br. at 3. Sollis approached him and asked him what he was doing; Wil liams responded that he was getting a job application. Sollis then asked i f he was carrying a gun. When Williams said no, Sollis stated that he would have to frisk him. At that point, Williams admitted he was carrying a gun. Sollis th en retrieved a .380 caliber semiautomatic pistol from Williams’ pocket and plac ed him under arrest for carrying a concealed weapon. R. Vol. III at 179-81

. That evening, two FBI agents conducted an interviewwith Williams. According to Agent Manns’ testimony at the suppress ion hearing, when the agents first entered the room, Williams said, “I know my r ights. I have the right to an attorney.” Id. at 6. The agents agreed and indicated that they w ould like to advise him further of his rights, and they did so, following a specific Advice of2At trial, Agent Damron also testified about the encounter:

I told him that we wanted to visit with him about the circumstances of his arrest. I explained to him that because he was in custody that it was necessary for me to advise him of certain Constitutional rights. He immediately said, I know what my rights are. I have a right to an attorney. I told him that was true but there were other important rights that I wanted to explain to him so he knew what all of his rights were so he could make a decision as to whether or not he would talk with us. R. Vol. III at 83. -4- Rights form. 2 Id. at 6-8, 83. Manns testified that Williams refused to sign the form, but stated that he would answer certain quest ions. Id. at 8-9. Manns further testified that Williams gave no reason for his refusal to sign the form, and Manns specifically stated that, once he was fully i nformed of his rights, Williams never asked for a lawyer. Id. at 8, 13. According to Manns’ testimony, after reading the form to Williams and obtaining Williams ’ response, Agent Damron wrote the following notation on the Advice of Right s form: “Williams stated he understood his rights and would answer certain ques tions. He was assured that he could stop at any question and was free to return t o his cell at any time. He stated he would not sign anything.” Id. at 78. The form itself provided that “[i]f you decide to answer any questions now without a lawyerpresent, you will still have the right to stop answering at any time.” Id. at 8, 52. Both agents signed the form as witnesses. Id. at 8, 77-78. The agents did not actually begin th eir-5-

interrogation until after they had read Williams hi s rights and obtained his agreement to answer certain questions. Id. at 9. Although Williams had told the Altus police that hi s name was Earl Williams, he told the FBI agents that his real name was Stevie Jerome Williams. Williams also told the agents that he was in Altus looking for a job, and that the car he was driving had been rented by his girlfrien d, Kathryn Williams, who also owned the gun which he was simply carrying for prot ection; he also gave the address where they lived in Lubbock, Texas. Id. at 9-11, 79, 89, 96. When the agents asked him if he had committed any b ank robberies, Williams said no. Id. at 12. The agents then showed him a picture taken by a bank security camera, and they asked him if he was the person in the picture. At first Williams became upset and refused to look at the picture, but finally he did look at it, and then he said, no, he was not the pe rson in the picture, although he conceded that the person did look like him. Id. According to Manns, on two occasions during the interview Williams became upse t and stated that he did not want to answer any more questions. Id. at 13. On each occasion, the agents told Williams “that was his right” and he was “free to r eturn to his cell,” and the agents got up to leave. Id. However, according to Manns, each time that the agents stood up, Williams would stay seated and simply volunteer something else and continue talking, even though the agents had no t asked him any further-6-

questions. In each instance, the information that Williams volunteered was insignificant, and the agents felt that the intervi ew “wasn’t going anywhere.” Id. at 13-14. The entire interview lasted about an hou r. Id. at 12, 21. At the suppression hearing, Williams acknowledged that Agent Damron read him his rights from the form. However, Willia ms disagreed with Agent Manns’ testimony regarding his response: “I told h im that I didn’t have nothing to say to him. I preferred a lawyer to be present concerning anything that he had to ask me.” Id. at 37. “I got upset. I beated on the table. It didn’t do no good. I told them to return me to my cell. They disregarde d it. They allowed me to sit there. Then they begin to ask me questions concern ing bank robberies.” Id. at 50-51. In any event, Williams testified that the next morn ing he told one of his jailers he wanted to talk to the FBI agents. Id. at 14, 38. The agents returned. Again they advised Williams of his rights, and agai n he refused to sign the form. In accord with his practice the day before, Agent D amron wrote the following notation on the form: “Stated that he did not wantto sign the form but wanted to furnish information. He stated he understood his r ights.” R. Vol. III at 16, 100. According to Manns’ testimony, Williams told them h e had called them back to tell them about some illegal activity he wa s aware of. Id. at 16. The agents told him that they had no authority to tell him whether any information3 According to Damron’s testimony at trial, Williams said he was offering the

information, in the hope that it would help “the situation he was in.” R. Vol. III at 101. After Williams finished relating his information, Williams asked about his girlfriend, and the agents advised him that another agent had spoken to her. Id. at 102. Williams indicated that she had not done anything, and the agents told him that they had to investigate anyone who might be involved. Id. At that point, “[Williams] became very quiet. He looked away for several seconds and then he just said, I did it.” Id. at 102-03. -7- could help him, but they would pass it on to the U. S. Attorney’s office. Id. at 17, 101. Manns specifically testified that they made n o threats or promises. 3 Id. at 16-17. Williams then told the agents about gambling and dr ug activity in Texas and Florida. Id. at 17, 39. After he finished telling them about t hose activities, the agents again discussed the bank robberies with him, id. at 17, which included a discussion about Williams’ girlfriend. Id. at 32. Shortly after the interview began, Williams confessed to four bank robberies. Id. at 19-20; 101-03. At the suppression hearing, Williams admitted he ha d understood his rights that were read to him from the Advice of Rights for ms, and he specifically acknowledged that he understood he could stop answe ring questions at any time. Id. at 51-52, 49. Additionally, he stated, “I didn’t agree to talk to them on the first day. The second day I agreed to talk with th em.” Id. at 50. However, he claimed that he was coerced into confessing on the second day because the FBI agents threatened to prosecute his girlfriend and p romised him lenient treatment. Id. at 41-43, 47. According to Williams’ testimony, t he agents “got to the point to-8-

as Kathryn being a participant in the bank robbery, ” and “[i]n some way” the agents were saying “as her being an accomplice to t hese crimes.” Id. at 41-42. Williams also testified that “they gave an impressi on that that was—uhm a high[er] official than them if I—if I confessed to the crime, that they would be lenient on prosecuting me for the charges that theywas charging me with.” Id. at 46.

DISCUSSION A. The Investigatory Stop As his first claim of error, Williams contends thatneither the overly general description that was dispatched nor his actions whi ch Sollis actually observed were sufficient to support the investigatory stop and detention. In reviewing the denial of a motion to suppress, we consider the totality of the circumstances in the light most favorable to th e government, and we accept the district court’s factual findings unless clearl y erroneous. United States v. Gutierrez-Daniez , 131 F.3d 939, 940-41 (10th Cir. 1997), cert. deni ed , No. 97-8044, 1998 WL 86531 (U.S. March 23, 1998). Howe ver, the ultimate determination of reasonableness under the Fourth Am endment is a question of law which we review de novo. Id. at 941.-9-

It is well-settled that “a police officer may in ap propriate circumstances and in an appropriate manner approach a person for purp oses of investigating possibly criminal behavior even though there is no probable cause to make an arrest.” Terry v. Ohio , 392 U.S. 1, 22 (1968). Thus, “police can stop an d briefly detain a person for investigative purposes if the officer ha s a reasonable suspicion supported by articulable facts that criminal activi ty ‘may be afoot,’ even if the officer lacks probable cause.” United States v. So kolow , 490 U.S. 1, 7 (1989). To justify such an investigative detention, “the po lice officer must be able to point to specific and articulable facts which, take n together with rational inferences from those facts, reasonably warrant [th e particular] intrusion.” Terry , 392 U.S. at 21. Additionally, in such cases, a fri sk is justified as a means of assuring the officer’s safety. Adams v. Williams , 407 U.S. 143, 146 (1972) (citing Terry , 392 U.S. at 30); see also Minnesota v. Dickerson , 508 U.S. 366, 373-74 (1993). In determining whether an investigational detention is reasonable, we examine, first, whether the stop was justified at its inception, and, second, whether the scope of the stop was reasonably relate d to the circumstances which justified it originally. United States v. Toro-Pel aez , 107 F.3d 819, 824 (10th Cir.) (citing Terry , 392 U.S. at 20), cert. denied , 118 S. Ct. 129 (1997). In this case, we conclude that the dispatched descr iption was sufficiently detailed to give rise to a reasonable articulable s uspicion that Williams was the-10-

person who had been described as carrying a gun pos sibly for the purpose of robbing the credit union which Sollis observed him entering. Moreover, even if we completely disregarded any inferences regarding Williams’ particular purpose, we would still conclude that the stop was reasonabl e. That is, as the government correctly argues, Sollis observed a bulge which acc orded with his information that Williams was armed. Therefore, at the very least, once Williams entered the credit union, Sollis reasonably believed him to be in violation of Oklahoma law respecting the carrying of concealed weapons. See Okla. Stat. Ann. tit. 21, §§ 1290.4, 1290.22; 25 Okla. Op. Atty. Gen. 245 (19 96) (noting that § 1290.22, which expressly allows businesses to restrict or pr ohibit weapons on their premises, constitutes a limitation upon the right t o carry a concealed weapon under the Oklahoma Self-Defense Act); R. Vol. III at 207-08. Accordingly, we agree with the district court’s con clusion that the detention was justified, and its scope was appropriate under the circumstances. Thereafter, upon verifying that Williams was, in fact, carrying a concealed weapon, Sollis had probable cause to arrest him on a weapons charg e. B. Waiver of Miranda Rights and the Confession After hearing the testimony of Williams and the FBI agent, the district court found that, “[w]hile defendant refused to sig n the Advice of Rights forms, defendant orally waived his rights.” Appellant’s B r., App. at 4 (citing North-11-

Carolina v. Butler , 441 U.S. 369, 373 (1979)). The district court fu rther found that “there is simply no evidence to suggest defend ant was coerced into making a confession on August 28, 1996. Under the totalityof the circumstances, the Court finds defendant’s waiver of his Mirandarights was voluntary.” Id. Williams contends that the district court erred in concluding that he orally waived his Fifth Amendment rights and in finding that his confession was not coerced. Williams’ argument appears to challenge both the di strict court’s findings of facts as well as its legal conclusions. “The determination of whether a valid waiver of Fif th Amendment rights has occurred is a question of law which we review d e novo; subsidiary factual determinations are reviewed under the clearly erron eous standard.” United States
v. Roman-Zarate , 115 F.3d 778, 782 (10th Cir. 1997). Whether a co nfession was voluntary also presents a legal question which we r eview de novo. United States v. Short , 947 F.2d 1445, 1449 (10th Cir. 1991). In making our determination, we review the evidence in the light most favorable to the government, United States v. Robertson , 19 F.3d 1318, 1321 (10th Cir. 1994), and we uphol d the district court’s factual findings unless they are clearly er roneous. United States v. Glover , 104 F.3d 1570, 1578-79 (10th Cir. 1997).-12- 1. Disputed Facts As to any critical subsidiary factual findings, ourstandard of review gives great deference to the district court who observed the witnesses. At the suppression hearing, Williams testified that, in th e first interview, he refused to answer any questions without an attorney present, and he claims that he confessed in the second interview because the agents threaten ed him and promised him leniency. However, the agent testified that once W illiams had been fully advised of his rights, he did not request an attorney. Acc ording to the agent, Williams agreed to answer the agents’ questions in the firstinterview with the understanding that he could stop at any time, and t hat, in fact, Williams did stop the questioning on two occasions, although each tim e he continued volunteering information without further questioning. Additiona lly, the agent testified that they made no threats or promises in either intervie w. Obviously, the court believed the agent’s testimonythat Williams orally waived his rights as to both interviews, and that the agents made no promises or threats. These are credibility findings, and, take n in the light most favorable to the government, those findings are not clearly erro neous.-13-

2. Voluntariness Having accepted the district court’s finding that W illiams did in fact orally waive his Fifth Amendment rights and that the agent s neither threatened him nor made any promises, we now consider de novo whether that waiver and the subsequent confession were voluntary. “If a defendant talks to police after being advised of his right to remain silent, the government bears the burden of proving by a preponderance of the evidence that the waiver of the right was voluntary .” Toro-Pelaez , 107 F.3d at 825 (citing Colorado v. Connelly , 479 U.S. 157, 168 (1986)). However, “[a]n express statement of waiver by the defendant is notrequired; instead, waiver can be inferred from the defendant's actions and words. ” Id. (citing North Carolina v. Butler , 441 U.S. 369, 373 (1979)). Nonetheless, a defend ant’s waiver of Fifth Amendment rights can be effective only if the total ity of the circumstances surrounding the interrogation shows both an uncoerc ed choice and the requisite level of comprehension. Moran v. Burbine , 475 U.S. 412, 421 (1986); United States v. Hernandez , 93 F.3d 1493, 1501 (10th Cir. 1996). Likewise, i n determining whether a confession is voluntary, we r eview the totality of all the surrounding circumstances, including the characteri stics of the accused and the tactics employed by the police. Toro-Pelaez , 107 F.3d at 825-26; Glover , 104 F.3d at 1579 (noting important factors such as age, intelligence, and education of4 We note that the agent testified that, when he and his partner entered the room for

the first interview, Williams stated, “I know my rights. I have the right to an attorney.” The district court did not address the significance, if any, of that statement which was made before the agents read Williams his full rights. However, in its brief to us, the government argues that Williams’ initial statement did not constitute an unequivocal request for counsel which would have required the agents to cease questioning. Appellee’s Br. at 15-16 (citing Davis v. United States , 512 U.S. 452, 459 (1994)). We need not reach this argument, since subsequent circumstances demonstrate a voluntary waiver in any event. Seediscussion and note 5 infra

. -14- the defendant; length of the detention; length and nature of questioning; whether a Miranda warning was given; and whether physical pun ishment was involved) (citing Schneckloth v. Bustamonte , 412 U.S. 218, 226 (1973)).

a. The Waiver In this case, the totality of the circumstances dem onstrates a voluntary waiver of Fifth Amendments rights. 4 That is, although Williams refused to sign the Advice of Rights forms, he admitted understandi ng his rights. Additionally, that he fully appreciated the extent of those right s is demonstrated by the evidence that, in the first interview, he actually did cut o ff questioning. Moreover, although he disputed (unsuccessfully) the facts surrounding that first interview, he readily admitted that he initiated the second in terview, that the agents read him his rights, that he fully understood those rights, and that he agreed to talk to the agents when they had finished reading him his right s. See Edwards v. Arizona , 451 U.S. 477, 486 n.9 (1981). The totality of circ umstances in both interviews demonstrates “an uncoerced choice” and “requisite l evel of comprehension,”5Furthermore, even if Williams’ original waiver and agreement to the first

interview were conditional and limited, once he summoned the agents back for the second interview, “nothing in the Fifth and Fourteenth Amendments would prohibit the [agents] from merely listening to his voluntary, volunteered statements and using them against him at the trial.” Edwards , 451 U.S. at 485; accordRoman-Zarate , 115 F.3d at 782; Glover, 104 F.3d at 1581. -15- sufficient to find, by a preponderance of the evide nce, that Williams voluntarily waived his rights and agreed to talk to the agents. 5

b. The Confession A defendant’s confession is involuntary “if the gov ernment’s conduct causes the defendant’s will to be overborne and ‘hi s capacity for selfdetermination critically impaired’.” United States v. McCullah , 76 F.3d 1087, 1101 (10th Cir. 1996) (quoting Schneckloth v. Bustamonte , 412 U.S. 218, 225-26 (1937)). The FBI agents testified they told Williams that hi s girlfriend, who had rented the car he drove and who owned the gun he ca rried, would be the subject of further investigation as a potential witness or accomplice. Additionally, they testified that they advised Williams they would pas s on any information regarding his cooperation. Williams contends that the statem ents about his girlfriend coerced him into confessing, and he also argues that promises of leniency rendered his confession involuntary. In its brief to us, the government responds that neither the statements related to Williams’ gi rlfriend, nor the statements6 We readily distinguish this case from the situation in Harris v. South Carolina ,

338 U.S. 68, 69-70 (1949), in which the defendant, an illiterate, was questioned in relays for up to twelve-hour periods over two days in a hot cubicle, without ever being advised of his rights, and finally confessed when threatened with the arrest of his mother on unrelated charges. -16- about possible benefits of cooperation, constitute improper or coercive conduct. We agree. Even if Williams’ confession was motivated by a des ire to spare his girlfriend from an investigation and its possible c onsequences, such motivation does not render the confession involuntary. 6 See Glover , 104 F.3d at 1580 (considering a defendant’s desire to help a co-defe ndant, and finding that “[t]hese types of personal psychological pressures do not am ount to official coercion rendering a confession involuntary”); see also United States v. Westbrook , 125 F.3d 996, 1006 (7th Cir.) (holding that agent’s sug gestion that defendant’s cooperation would help defendant’s wife did not con stitute undue coercion), cert. denied , 118 S. Ct. 643 (1997); Allen v. McCotter , 804 F.2d 1362, 1364 (5th Cir. 1986) (holding that defendant’s confession was “notinvoluntary by reason of his desire to extricate his wife from a possible good f aith arrest”). Furthermore, the fact that agents state in general that cooperation may have benefits does not compel a finding that a defendant’s statement is in voluntary. See Roman-Zarate , 115 F.3d at 782; Glover , 104 F.3d at 1582.-17-

In assessing the voluntariness of a confession, we consider all the circumstances, including the following factors in this case: Williams was advised of his Miranda rights, the length of the interview was short, and no physical punishment or improper threats were involved. Base d on our review of the entire record and the totality of the circumstances, we co nclude that the district court did not err in finding that Williams’ confession wa s voluntary.
AFFIRMED.
ENTERED FOR THE COURT
Stephen H. Anderson Circuit Judge