* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, or coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

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

### DEC 28 1999 

### PATRICK FISHER Clerk 

### UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JEFFREY ANTONIO SALAS, Defendant-Appellant. Nos. 98-4226 and 99-4002 (D.C. No. 98-CR-171-C) (Utah)



### ORDER AND JUDGMENT *

Before SEYMOUR , Chief Judge, BALDOCKand HENRY , 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)(2); 10th Cir. R. 34.1(G). Th e cause is therefore ordered submitted without oral argument. In January of 1998, police officers executed a sear ch warrant at the home of Jeffrey Antonio Salas, a convicted felon. An unreg istered sawed-off rifle was-2-

found in a bedroom believed to be that of Mr. Salas

. Approximately one month later Mr. Salas was stoppedby police for driving an unregistered car. Because the officers knew that he was driving on a suspended license, they ordered Mr. Salas out of th e car, handcuffed him, and then searched the car. During the course of this s top, Mr. Salas asked why he was being handcuffed. Officer James Schmidt explained that he was being handcuffed because the officers thought he was a dangerous per son, and that they thought he was dangerous because they had previously found the sawed-off rifle in his home. Mr. Salas replied, “I didn’t know it was illegal to have a sawed-off rifle in my – you know, in my house.” Appellant’s Br., at 12. T his statement was subsequently introduced against Mr. Salas at trial. A jury foun d Mr. Salas guilty of being a felon in possession of a firearm, in violation of 1 8 U.S.C. § 922(g), and possessing an unregistered firearm, in violation of 26 U.S.C. §§ 5861(d) and 5871. He now appeals. First, Mr. Salas argues that statements he made to a police officer during the stop should have been suppressed because they w ere involuntary, made in response to custodial interrogation by the police, and made without the benefit of Miranda warnings. We review de novo the trial court’s determination of the ultimate issue of voluntariness. See United States v. Muniz , 1 F.3d 1018, 1021 (10th Cir. 1993). The court’s rulings with respectto factual questions, such as-3-

whether the police behavior was likely to elicit an incriminating response, are subject to review under the clearly erroneous stand ard. See id. Two conditions must be met before Mirandawarnings are required. The suspect must be in custody, and the questioning mus t meet the legal definition of interrogation. United States v. Perdue , 8 F.3d 1455, 1463 (10th Cir. 1993). The Supreme Court has clarified that the term “interrog ation” refers to “express questioning or its functional equivalent,” includin g “any words or actions on the part of the police . . . that the police should kn ow are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis , 446 U.S. 291, 300-01 (1980). The Fifth Amendment does not bar t he admission of volunteered statements which are freely given. Miranda v. Arizona , 384 U.S. 436, 478 (1966). We are not persuaded the district court erred in de ciding that Mr. Salas was not “interrogated” within the meaning of Miranda . Mr. Salas “was not subjected to compelling influences, psychological ploys, or d irect questioning.” Arizona v. Mauro , 481 U.S. 520, 529 (1987). “There were no accusat ory statements or questions posed by law enforcement officials.” United States v. De La Luz Gallegos , 738 F.2d 378, 380 (10th Cir. 1984). Officer Schm idt was not engaging in the functional equivalent of express questioning . He was merely answering Mr. Salas’ question about the handcuffs and he coul d not have expected this to elicit an incriminating statement. Mr. Salas’ stat ement was unprovoked,1 Because we determine that there was no interrogatio n, it is unnecessary for

us to reach the issue of whether Mr. Salas was in “ custody” at the time he made the statement. -4- spontaneous, and voluntary, and thus not the resultof interrogation requiring Mirandawarnings. 1 Next, Mr. Salas argues that his motion for a mistri al based on improper testimony was erroneously denied. At trial, Office r Schmidt testified about his perception of Mr. Salas as a “dangerous person.” H e clarified that this perception was based on the fact that the sawed-off rifle had been found in Mr. Salas’ home. Mr. Salas objected, and the court gave a curative i nstruction. Mr. Salas now contends the curative instruction was not sufficien t to prevent the jury from being prejudiced by the testimony. Because the trial jud ge is in the best position to evaluate the effect of the offending testimony on t he jury, we review the denial of Mr. Salas’ motion for mistrial for abuse of discret ion. See United States v. Laymon , 621 F.2d 1051, 1053 (10th Cir. 1980). A cautionary instruction by the trial judge is ordi narily sufficient to cure any alleged prejudice to the defendant. See United States v. Peveto , 881 F.2d 844, 859 (10th Cir. 1989). A mistrial should not b e ordered unless the testimony will “create so strong an impression on the minds o f the jurors that they will be unable to disregard it in their consideration of th e case, although admonished to do so.” Maestas v. United States , 341 F.2d 493, 496 (10th Cir. 1965).-5-

In this case, the evidence against Mr. Salas was st rong: the officers had found the rifle in Mr. Salas’ home, and there was a mple evidence that the bedroom where the rifle was found was used by Mr. S alas. The prosecutor made sure that Officer Schmidt limited his explanation o f why he thought of Mr. Salas as dangerous to the fact of the discovered rifle. Moreover, the trial court correctly pointed out that, without this explanatio n, the jury would be left wondering why Mr. Salas was handcuffed during an otherwise routine traffic stop. Finally, the court gave a limiting instruction to t he jury immediately after this testimony. In light of these facts, we hold that t he court did not abuse its discretion in refusing to grant a mistrial after Of ficer Schmidt’s testimony. See, e.g., United States v. Lopez , 576 F.2d 840, 846 (10th Cir. 1978) (mistrial not necessary after witness made single remark that def endant was “involved in everything”). It was not error for the trial court to admit Mr. S alas’ statement to Officer Schmidt into evidence. Nor did the trial court errin denying Mr. Salas’ motion for a mistrial based on Officer Schmidt’s testimony . Accordingly, we AFFIRM Mr. Salas’ conviction. ENTERED FOR THE COURT Stephanie K. Seymour Chief Judge