In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1690

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CALVIN C. MONTGOMERY,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Illinois.

No. 06-30071-DRH—David R. Herndon, Chief Judge.

ARGUED DECEMBER 12, 2008—DECIDED FEBRUARY 13, 2009

Before CUDAHY, FLAUM, and WOOD, Circuit Judges.

FLAUM, Circuit Judge. A federal jury convicted Calvin

Montgomery of being a felon in possession of a firearm.

Montgomery now appeals the district court’s denial of

his motion to suppress his statement implicating himself

for that crime. He argues that his statement was involuntary because it was given in response to promises of

leniency, invoking a supposed per se rule prohibiting

the police from making promises to a suspect in order to

extract a confession. Alternatively, Montgomery argues
2 No. 08-1690

that his statement was involuntary under a totality of the

circumstances approach. He also argues that the police

failed to honor his right to silence and to cut off questioning.

For the following reasons, we affirm the district court’s

denial of the motion to suppress.

I. Background

In the early morning hours of April 13, 2004, Aubrey

Keller of the East St. Louis Police Department made a

traffic stop of the car that Montgomery was riding in.

Montgomery, without being told to do so, got out of the

car and dropped something (Keller claimed it sounded

like a beer bottle) on the ground. When Keller demanded

that Montgomery make his hands visible, Montgomery

began turning towards Keller and then dropped a

second object on the ground. From the sound that

second object made, Keller surmised that it was a gun.

Keller then saw Montgomery kick at the second object,

and Keller then heard the sound of the gun skittering

across the pavement, and saw it stop on the ground near

the driver’s side of the car. Keller arrested Montgomery

and took him to the East St. Louis police station, booking

him for unlawful use of a weapon by a felon. Keller

testified in later proceedings that during the course of his

contact with appellant, Montgomery did not appear to be

drunk or under the influence of drugs, and in fact that

Montgomery executed the turn-around-while-kicking-thegun maneuver without having any problems with his

balance.
No. 08-1690 3

A. First police interview

Later that morning, Marion Riddle, a detective with

the East St. Louis police department, attempted to interview Montgomery. Riddle gave Montgomery a form

containing the standard Miranda warnings and had Montgomery sign the form to indicate that he understood

his rights. Montgomery then told Riddle he did not wish

to give a statement, and Riddle ended the interview.

The interview was not videotaped, and Riddle later

testified that police department policy at that time did

not require officers to videotape all interviews. This

first interview, which began a little after 8:00 on the

morning of October 13, ended by about 8:10.

B. Roll call room discussion

Riddle informed Desmond Williams, another detective

with the East St. Louis Police Department, that Montgomery did not wish to make a statement. Riddle also told

Williams that, based upon the information they had on

hand, Montgomery may have been a felon in possession

of a firearm, and thus subject to federal criminal charges.

Williams then called in Paul Heiser, a special agent with

the Bureau of Alcohol, Tobacco, Firearms and Explosives

(ATF) to assist with Montgomery’s case. Heiser went to

the police department building, where Williams briefed

him on the case and ran Montgomery’s criminal history

through a database. Heiser, along with Williams, conducted interviews with Sean Bell and Nathaniel Holmes,

two other passengers in the car with Montgomery at the

time of the traffic stop. Sometime between 2:30 and 3:00,
4 No. 08-1690

Heiser and Williams then went down to the department’s

jail, where Montgomery was present in a cell with some

of the other people arrested during that morning’s traffic

stop. Because they could not speak to him with his

cellmates present, Williams and Heiser walked Montgomery up to the roll call room at the station.

Williams introduced Heiser to Montgomery and explained why he was in the police station. Williams

said that they wanted to talk to Montgomery, but not

directly about the facts of his case. Heiser testified that the

discussion touched on Montgomery’s marital problems

and his drinking, and Montgomery also asked why

federal authorities were getting involved. The two investigators claimed that because they did not intend to speak

with Montgomery about the specifics of his case, they

did not give him a set of Miranda warnings before this

discussion.

When Heiser told Montgomery that he was present at

the station because the police had reviewed his criminal

history report and suspected he was a felon in possession

of a firearm, Montgomery told the two investigators, “Well,

that’s not my firearm.” Heiser responded that the other

two passengers in the car had given statements, and that

the police would examine the gun for fingerprints and

would trace the gun back to Montgomery if they found

his fingerprints on it. Montgomery again said that the

weapon was not his, and Heiser said that if Montgomery

wanted to “explain [his] side of the story,” Heiser could

take him upstairs, advise him of his rights, and let him

give a statement.
No. 08-1690 5

During this conversation in the roll call room, Montgomery asked Heiser what sort of jail time he could expect

if the case went federal. Heiser replied that the statutory

maximum was ten years. (Heiser claims that he was

unaware at this time that Montgomery would be sentenced under an Armed Career Criminal provision of the

sentencing guidelines, resulting in a longer prison sentence than ten years.) Montgomery told Heiser, “I don’t

want ten years.” After some additional back-and-forth on

the consequences of state versus federal charges, Montgomery agreed to accompany the officers upstairs for a

videotaped interview.

C. Formal statement

Around 4:00 pm, Heiser, Williams, and Montgomery

went upstairs from the roll call room to a police interview

room in order to give a videotaped statement. Heiser

testified at the suppression hearing that Montgomery did

not have any trouble navigating his way upstairs, nor did

he look drunk, sleepy, or in any other way impaired

during this time.

As the interview began, Heiser placed an ATF Advice

of Rights form in front of Montgomery. Montgomery

immediately noticed that the ATF form was different

from the form he had signed earlier that day in his interview with Riddle. To show the basic similarity of the

forms, Williams left the room to retrieve an East St. Louis

Police Department advice of rights form. The videotape

in the interview room continued to roll when Williams

left. Heiser asked Montgomery to give him his address
6 No. 08-1690

and a few other personal details. Montgomery asked

Heiser if Bell and Holmes, the other two passengers in the

car, also had to give statements. Heiser, evidently

thinking that Montgomery had asked whether the two

had given statements, not if they had to give statements,

replied that they did.

Montgomery continued to express his puzzlement

about why his case had to go federal, asking Heiser, “Can’t

you just help me?” Heiser told Montgomery in response,

“I’m helping you more than you know.” Heiser testified

at the suppression hearing that he meant to say that he

was helping Montgomery by bringing charges against

him. If Montgomery took advantage of the substance

abuse treatment and vocational training available to him

in prison, he would be able to turn his life around;

Heiser did not offer this more fulsome explanation to

Montgomery, however. Montgomery again asked Heiser

why the case couldn’t just be a state case, and Heiser

told him, “It is what it is and it can’t be unraveled.”

Taking a different tack, the interview video then showed

Heiser telling Montgomery, “Think positive. You’re

looking at every negative thing about this.” Heiser

clarified this statement during his testimony at the suppression hearing as well, stating that he meant that Montgomery should be glad that neither he nor anyone else

was hurt, despite the fact that he had a gun in his possession during a traffic stop by a police officer. Montgomery

again told Heiser, “I don’t want a federal case,” and Heiser

this time told him, “The state could be worse.” Heiser

testified at the suppression hearing that in his experience
No. 08-1690 7

as an investigator, state penalties for unlawful possession

of a firearm could be worse than federal penalties. Then,

in reference to the prison sentence that Montgomery

faced in the federal system, Heiser added, “[w]ell, if you

get time, you’re not going to get 10 years.” Heiser made

this statement based on his knowledge of Montgomery’s

criminal history, but as with the statement in the roll call

room, he apparently did not know that Montgomery

would qualify as an Armed Career Criminal and that

Montgomery instead faced a mandatory minimum sentence of fifteen years.

Immediately following this comment, Williams

returned with the East St. Louis advice of rights form.

Williams told Montgomery to initial each line of the

form if he understood the accompanying right. Williams

advised Montgomery that he had the right to remain

silent. Montgomery then asked the officers if he had to

talk to them if he initialed the form. Williams told him

that he had to initial the form to indicate that he understood his rights whether he wanted to talk to them or

not, and that initialing the form did not mean that he

had to talk to the investigators.

After signing the form, Montgomery asked if he was

doing something to incriminate himself. Heiser then

produced the advice of rights form again and directed

Montgomery to the portion of the form telling him that

anything he said to the police could be used against him

in court. Montgomery then asked the investigators

whether he could speak to a lawyer if he chose not to say

anything. They responded that he could. Montgomery
8 No. 08-1690

Montgomery argues in his appellate briefs that Heiser and

1

Williams purposely minimized the importance of counsel by

telling Montgomery that invoking his right to counsel would

just give him a chance to tell his side of the story (in essence, that

counsel would only act as a sounding board for Montgomery’s

version of events). The district court found at the suppression

hearing, however, that when the investigators referred to

Montgomery’s ability to tell his side of the story they were

referring to the opportunity to give a statement, not his opportunity to speak to counsel. The statement is slightly ambiguous but because the finding is not clearly erroneous, we

will not disturb this finding on appeal.

then asked whether things would be worse if he chose to

talk to a lawyer. The investigators responded that they

could not say what it would do, and that giving a statement would just give him an opportunity to tell his side

of the story. Montgomery then agreed to go ahead, and 1

gave a statement of approximately thirty minutes. He told

the investigators that he and the other occupants of the

car had been drinking and smoking marijuana prior to

the traffic stop, and that his fingerprints were on

the weapon dropped at the scene because the other passengers had given him the gun to get rid of, and that he

threw it out the window.

Heiser and Williams both testified at the suppression

hearing that Montgomery did not appear to be drunk or

under the influence of drugs at the time of their interview, nor did he appear to be tired, sleepy, or otherwise

impaired. The district court’s ruling on Montgomery’s

suppression motion found that he was coherent during
No. 08-1690 9

the course of the interview and was not intoxicated or

under the influence of drugs when he was advised of

his Miranda rights.

The district court denied Montgomery’s motion to

suppress his statement on October 31, 2007, holding that

Montgomery’s statement to law enforcement officers

was voluntary and made after a knowing and voluntary

waiver of his Miranda rights. Montgomery then pled

guilty to the charge of unlawful possession of a firearm

by a previously convicted felon, reserving the right to

appeal the suppression of his statement. The district

court sentenced Montgomery to 188 months’ imprisonment, five years’ supervised release, and ordered him

to pay a fine and special assessment. This appeal followed.

II. Discussion

When reviewing a motion to suppress, we review

questions of law de novo and questions of fact for clear

error. United States v. Scheets, 188 F.3d 829, 836 (7th Cir.

1999). The voluntariness of a confession is a matter of

law that we review de novo. United States v. Gillaum,

372 F.3d 848, 855 (7th Cir. 2004).

Montgomery raises three challenges to his statement.

First, he claims that Heiser and Williams induced his

statement with false promises of leniency; second, he

claims that the statement was not voluntary under the

totality of the circumstances; and third, he claims that the

police did not scrupulously honor his invocation of his

right to remain silent in his first interview with Riddle.

We take each point in turn.
10 No. 08-1690

A. False promises of leniency

Montgomery first argues that his statement was

induced by false promises of leniency from Heiser. Montgomery is specifically referring to Heiser’s assurances

that he would not receive a ten year sentence in the

federal system. The district court found that the

promises were not objectionable because there was no

misrepresentation and because, even assuming that there

was a misrepresentation, Heiser’s speculation about

sentencing was not enough to make the statement involuntary.

A confession is involuntary if it is the result of coercive

police conduct. See Gillaum, 372 F.3d at 856. The use

of deceit to obtain a confession does not make the confession involuntary as long as the police interrogation

was not coercive. See Sotelo v. Indiana State Prison,

850 F.2d 1244, 1251 (7th Cir. 1988). As a fundamental

matter, a confession must be voluntary under the

totality of the circumstances, and a court evaluating the

voluntariness of a confession must consider any promises or representations made by interrogating officers.

United States v. Springs, 17 F.3d 192, 194 (7th Cir. 1994);

Holland v. McGinnis, 963 F.2d 1044, 1050-52 (7th Cir. 1992).

Given the right circumstances, a false promise of

leniency may be sufficient to overcome a person’s ability

to make a rational decision about the courses open to

him. See United States v. Montgomery, 14 F.3d 1189, 1194

(7th Cir. 1994) (A confession is considered voluntary if

the state demonstrates that it “ ‘was not secured through

psychological or physical intimidation but rather was
No. 08-1690 11

Heiser was asked on re-direct examination if his statement

2

that “you’re not going to get ten years” was linked to Montgomery’s cooperation, and Heiser testified that it was not. Other

testimony indicates that the statement was based on Heiser’s

confusion about the maximum statutory penalty, not about

any deal that he planned to arrange with the U.S. Attorney’s

Office if Montgomery gave a statement.

the product of a rational intellect and free will.’ ”)

(quoting United States v. Haddon, 927 F.2d 942, 945 (7th

Cir. 1991)). “[A]n empty prosecutorial promise could

prevent a suspect from making a rational choice by ‘distorting the alternatives among which the person under interrogation is being asked to choose.’ ” Sprosty v. Buchler,

79 F.3d 635, 646 (7th Cir. 1996) (quoting Weidner v. Thieret,

866 F.2d 958, 963 (7th Cir. 1989)); see also United States v.

Baldwin, 60 F.3d 363, 365 (7th Cir. 1995) (generally, false

promise of leniency made in order induce a confession

is a forbidden tactic).

The parties agree that Heiser told Montgomery that if

he was sentenced to prison time on the federal charges he

would not get ten years. However, as the testimony at the

suppression hearing bore out, those proclamations were

not tied to any confession or statement on Montgomery’s

part. Heiser did not promise Montgomery that he would

not receive a ten year sentence if he confessed; he said that

Montgomery would not receive ten years from the

federal system. Montgomery frequently raised concerns 2

about being tried on federal charges rather than state

charges, and Heiser told him (incorrectly, it turned out)

that the most he could expect for federal felon-in-posses-
12 No. 08-1690

sion charges was ten years. The information that Heiser

gave him was inaccurate, but Montgomery was not

promised a ten year sentence if he confessed or made a

statement. This court has previously acknowledged that

an illusive promise of leniency in exchange for a confession presents “a difficult case.” United States v.

Kontny, 238 F.3d 815, 818 (7th Cir. 2001). The mere fact

that Heiser misstated the potential sentences in the

federal system does not make the interrogation coercive,

however, especially when the purported sentence was

not linked to Montgomery’s willingness to talk to the

investigators. See, e.g., Frazier v. Cupp, 394 U.S. 731, 739

(1969) (police misrepresentation of another suspect’s

statement was relevant to voluntariness of confession,

but insufficient to make the confession involuntary); Sotelo,

850 F.2d at 1251 (“deception by an interrogator does not

automatically invalidate a confession”).

Montgomery contends that this case should be decided

under a per se rule of suppression derived from Bram v.

United States, 168 U.S. 532 (1897). The Supreme Court held

in Bram, citing various common law authorities, that a

confession procured “either by flattery or hope . . . however slightly the emotions may be implanted, is not

admissible evidence; for the law will not suffer a prisoner

to be made the deluded instrument of his own conviction.”

Id. at 547. This particular statement, which was not a

statement by the Court but rather a quotation from a

treatise cited in the opinion’s review of common law

sources, is one that criminal defendants frequently use

to support a broad reading of the case creating a requirement of per se reversal if investigators made any sort of
No. 08-1690 13

promise at all to a suspect prior to a confession. See

United States v. Long, 852 F.2d 975, 980 (7th Cir. 1988)

(Easterbrook. J., concurring) (“Bram has not excluded a

confession in decades; it is a derelict, offering false hope

to suspects and vexing judges who must distinguish it

on the way to decisions reached on other grounds. It is a

source of pointless litigation . . .”). Indeed, Bram’s statement that “[t]he law cannot measure the force of the

influence used, or decide upon its effect upon the mind

of the prisoner, and therefore excludes the declaration

if any degree of influence has been exerted,” Bram, 168

U.S. at 565, is inconsistent with the current totality of the

circumstances approach. See Frazier, 394 U.S. at 739.

This circuit has not read Bram as creating a per se rule

requiring suppression whenever a promise or inducement is made to a suspect. Long, 852 F.2d at 977; see also

United States v. Baldwin, 60 F.3d 363, 365 (7th Cir. 1995).

Montgomery’s reading of Bram was decisively rejected

by the Supreme Court in Arizona v. Fulminante, 499 U.S.

285 (1991), when the Court stated that Bram “under current

precedent does not state the standard for determining

the voluntariness of a confession . . .” Id. at 285. Montgomery objects that the Supreme Court cited no authority

for its abandonment of Bram, but the Court’s statement

about Bram came in the context of a discussion of the

state supreme court’s decision on Fulminante’s case,

including that court’s citations to the modern case law

establishing the totality of the circumstances as the relevant test. Id. at 285-86. And, in any event, the Supreme

Court does not need to cite authority when revising or

limiting its own case law.
14 No. 08-1690

Montgomery then claims that Bram was revived by the

Supreme Court’s recent decision in District of Columbia v.

Heller, 128 S. Ct. 2783 (2008). Heller struck down Washington D.C.’s handgun ban because it was inconsistent

with the original understanding of the Second Amendment. The opinion in Heller also took issue with a dissenting opinion’s use of United States v. Miller, 307 U.S. 174

(1939), since that opinion did not purport to be a thorough

discussion of the history of the Second Amendment.

Heller, 128 S. Ct. at 2815. Montgomery now claims that the

originalist opinion in Heller revived opinions such as

Bram, which he claims was a thorough history of the Fifth

Amendment in contrast to Fulminante, and thus overrules

Fulminante or limits its application to Fourteenth Amendment Due Process Clause cases. (The latter, we note, is

an odd suggestion that would seriously undermine the

jurisprudence incorporating the Fifth Amendment

through the Due Process Clause.) To the extent that

Montgomery believes that Heller adopts a new canon

of constitutional interpretation for amendments wholly

separate from that discussed in the case, and that it

overrules or limits unrelated lines of case law sub silentio,

we decline to read that much into the opinion and do not

find it controlling on the issues presented.

In short, while Heiser was mistaken about the prison

sentence that Montgomery faced in the federal court

system, his statements that Montgomery would not serve

ten years pursuant to federal charges was not made in

order to induce a confession. We agree with the district

court that Montgomery did not make an involuntary

statement in response to them.
No. 08-1690 15

B. Voluntariness under the totality of the circumstances

Montgomery makes a number of points in an effort to

show that his statement was involuntary under the

totality of the circumstances. He states that Heiser incorrectly informed him that other passengers in the car had

to give statements, when in reality neither had, and falsely

claimed his prints were found on the gun. He also

cites the investigators’ claim that it was a possibility

that federal charges may not have been brought if Montgomery had given a statement to Riddle earlier that day,

and argues that the investigators wanted to give Montgomery the impression that he was hurting himself by

refusing to speak to them. He acknowledges that the

investigators told him he could speak with a lawyer, but

says they should have told him the interview would

terminate if he requested to speak with a lawyer. He

also states that the procedure of having him read and

initial an advice of rights form undermined the

significance of the procedure. Finally, he cites his borderline intelligence and claims that this places him in the

low borderline range of intellectual abilities, and thus

made him more susceptible to police coercion.

This court has held that “[a] confession is voluntary if,

in the totality of circumstances, it is the ‘product of a

rational intellect and free will and not the result of physical

abuse, psychological intimidation, or deceptive interrogation tactics that have overcome the defendant’s free will.’ ”

United States v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001)

(quoting United States v. Dillon, 150 F.3d 754, 757 (7th Cir.

1998)). Finding that the police engaged in coercive
16 No. 08-1690

activity is a necessary predicate to finding that a

suspect’s confession was involuntary. See Colorado v.

Connelly, 479 U.S. 157, 167 (1986). We determine whether

police conduct was coercive by examining factors such as

“the defendant’s age, education, intelligence level, and

mental state; the length of the defendant’s detention, the

nature of the interrogations; the inclusion of advice

about constitutional rights; and the use of physical punishment, including deprivation of food or sleep.” Huerta,

239 F.3d at 871.

As we explained above, we do not find that the investigators promised a lighter sentence or more favorable treatment in exchange for a confession or statement from

Montgomery. Montgomery does not claim that he

suffered any kind of physical punishment or coercion, or

that the investigators deprived him of food or sleep prior

to the interviews. With respect to Heiser’s incorrect

answer to Montgomery’s question about whether the

other passengers in the car “had” to give a statement,

that would not overbear Montgomery’s free will. Montgomery had already been advised of his right not to give

a statement earlier that day in his meeting with Riddle,

and was once more advised of his right not to speak to the

investigators prior to giving his videotaped statement.

Montgomery’s decision not to speak to Riddle earlier

that day, and his back-and-forth with Heiser and

Williams on his right to remain silent prior to giving

the videotaped statement, demonstrate that he understood this right.

The mere fact that Heiser was wrong when he stated

that the two other suspects had given statements would
No. 08-1690 17

not render Montgomery’s statement involuntary, either.

Heiser did not say that those statements implicated

Montgomery, and the district court did not find any effort

“rising to the level of trickery.” Even if Heiser had told

Montgomery that the other passengers implicated him,

there is no rule finding such conduct necessarily coercive.

In fact, precedent holds that a police officer may “actively

mislead” a suspect prior to obtaining a statement or

confession so long as a rational decision remains possible.

United States v. Rutledge, 900 F.2d 1127, 1131 (7th Cir. 1990);

see also United States ex rel. Hall v. Director, Dep’t of Corrections, 578 F.2d 194 (7th Cir. 1978) (no ipso facto coercion

when police told a suspect, wrongly, that co-defendants

had implicated him as the ringleader). In this case Montgomery was fully advised of his rights prior to making

a statement, and any belief that his two fellow passengers

had also spoken to the police would not prevent him

from making a rational decision about his options.

Heiser and Williams’ statements that an earlier statement may have kept the case at the state level, and that

they could not say what a lawyer’s presence would effectuate were not false promises of leniency in exchange for

cooperation nor even really deceptive. Both statements

were non-committal. While they may not have fully

apprised Montgomery of the legal landscape, such omissions are not inherently coercive behavior on the part of

the police.

The government acknowledges that Montgomery has

borderline intelligence, but this factor alone does not

result in a finding of coercion. At the time of his arrest,
18 No. 08-1690

Montgomery was approximately forty years old and had

prior experience with the criminal justice system. He

appeared well aware of what was going on throughout

the questioning: He understood the difference between

the federal and state criminal justice system, he understood that he did not need to give a statement in his

interview with Riddle, and in fact did not; and he

noticed the differences between the two advice of rights

forms he was asked to sign. Perhaps most significant of

all, he asked relevant questions about his rights prior to

giving his statement to the officers. While we take

account of Montgomery’s intelligence when determining

whether his statement was voluntary, we do not find

that it fatally affected the statement in this case.

Finally, we note that the district court found no

evidence that Montgomery was intoxicated, exhausted or

otherwise incapacitated. The witnesses at the suppression hearing, from Keller to Riddle to Williams and

Heiser, all testified that Montgomery was coherent and

did not appear to be intoxicated or sleep deprived. While

he and the other occupants of the car were, according to

statements, drinking and smoking marijuana prior to

Keller’s traffic stop, this behavior apparently did not

affect his choice to give a statement.

In light of the totality of the circumstances, we concur

with the district court that Montgomery made a rational

choice to give a statement to Williams and Heiser and

that his statement was not involuntary or the result of

police coercion.
No. 08-1690 19

C. Scrupulously honoring Montgomery’s right to cut

off questioning

Montgomery’s last argument is that the investigators

did not scrupulously honor his invocation of his right to

remain silent. In Michigan v. Mosley, 423 U.S. 96 (1975), the

Supreme Court held that the admissibility of statements

obtained after a defendant invokes his right to remain

silent is dependent on whether the defendant’s right to

cut off questioning was “scrupulously honored.” 423

U.S. at 103. The Court set forth several nonexclusive

factors to determine whether interrogation was properly

resumed. Id. These factors include “an inquiry into the

amount of time that lapsed between interrogations; the

scope of the second interrogation; whether new Miranda

warnings were given; and the degree to which police

officers pursued further interrogation once the suspect

had invoked his right to silence.” United States v.

Schwensow, 151 F.3d 650, 658 (7th Cir. 1998) (citing Mosley,

423 U.S. at 104-05); accord United States v. Gillaum, 372

F.3d 848, 856 (7th Cir. 2004). In Schwensow, after the

defendant invoked his right to remain silent, officers

later questioned him about the same crime. Schwensow, 151

F.3d at 659. We held that “the constitutionality of a subsequent police interview depends not on its subject

matter but rather on whether the police, in conducting

the interview, sought to undermine the defendant’s

resolve to remain silent.” We concluded that such an

approach “naturally follows from Mosley” because Mosley

did not elevate “any one factor as predominant or

dispositive nor suggest[] that the enumerated factors

are exhaustive.” Id.
20 No. 08-1690

Montgomery invoked his right to remain silent in his

interview with Riddle, and questioning then ceased.

However, later in the roll call room Heiser and Williams

spoke to Montgomery without re-appraising him of his

Miranda rights. Ostensibly, the investigators did not

intend to question Montgomery about the specifics of his

case. Heiser did, however, state that he was at the

police station because it appeared that Montgomery was

a felon in possession or a firearm. He also told Montgomery that the gun would be tested for fingerprints and

that Montgomery’s prints might be on it (in which case

the charges would come back to him). Eventually, Montgomery agreed to give a statement, was given a second set

of Miranda warnings, and then gave a videotaped statement in which he discussed his possession of the gun.

The defendant admits that the facts of this case are very

similar to United States v. Wyatt, 179 F.3d 532 (7th Cir.

1999). In that case, defendant invoked his right to remain

silent and the police ceased questioning him. However,

after several hours passed the officers confronted the

defendant again and outlined the evidence against him.

The defendant then agreed to make a statement, and gave

one after a second round of Miranda warnings. We noted

that the officers’ discussion of the evidence against the

defendant, before the second round of warnings, was a

“misstep,” but was not by itself a violation of Mosley. Id.

at 538. We also rejected defendant’s contention that

Mosley requires officers to restrict renewed interrogation

to crimes unrelated to those a suspect had earlier

refused to discuss. Rather, as we stated in Schwensow, the

test was not the subject matter but whether the police
No. 08-1690 21

sought to undermine the suspect’s resolve to remain

silent. This test accords with the broader purpose of the

Supreme Court’s opinion in Mosley. That opinion sought

a middle ground between, on the one hand, a blanket

immunity from further custodial questioning by any

officer on any subject once a suspect has invoked the

right to silence, and, on the other hand, repeated rounds

of interrogation with only momentary respites when

a suspect breaks off questioning. See Mosley, 423 U.S.

at 102-03.

Like Wyatt, in this case two factors weigh in favor of

suppression: The officers outlined the evidence against

Montgomery before giving him renewed Miranda warnings, and the discussion involved the same crime as Montgomery’s first interview with Riddle. We conclude that

these factors are insufficient to require suppression. When

Heiser questioned Montgomery in the roll call room,

he tried to limit the subject matter by stating that he did

not want to discuss the facts of Montgomery’s case.

Outlining the evidence against Montgomery (or discussing such evidence hypothetically, in the case of the

fingerprint evidence) was a misstep, similar to the misstep

in Wyatt. The possibility of Montgomery giving a statement, however, arose only because Montgomery volunteered the information that the gun did not belong to him.

Montgomery argues that the police conduct in this

case was worse than the conduct in Wyatt because here,

unlike in Wyatt, the police waited until Montgomery was

upstairs in an interview room before giving him a second

set of Miranda warnings. We do not see anything suspi-
22 No. 08-1690

cious in the timing of the warnings. Montgomery did

receive a second set of Miranda warnings before giving

his videotaped statement and the lapse in time between

the end of the discussion in the roll call room and the

second set of warnings in the interview room may well

have been to Montgomery’s benefit, as it would give

him time to collect himself and consider whether he

wanted to give a statement before committing to doing

so. While the police work in this case was not exemplary,

the circumstances do not suggest that the investigators

attempted to undermine Montgomery’s resolve to

remain silent. Montgomery’s right to cut off questioning

was respected, and he was apprised of his rights before

giving a statement. We find no violation of Mosley, and

no basis for suppressing the statement.

III. Conclusion

For the foregoing reasons, we AFFIRM the district court’s

ruling on the motion to suppress.

2-13-09