[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

________________________ No. 18

- 12258 Non

- Argument Calendar

________________________ D.C. Docket No. 5:17

- cr - 00017

- RH

- 1

UNITED STATES OF AMERICA , Plaintiff

- Appellee ,
versus ARKELIUS CANTRELL GRAY , Defendant

- Appellant

.

________________________ Appeal from the United States District Court for the Northern District of Florida

________________________ ( June 7, 2019 ) Before TJOFLAT, WILLIAM PRYOR , and GRANT , Circuit Judges.
PER CURIAM :

Case: 18-12258 Date Filed: 06/07/2019 Page: 1 of 132 Arkelius Cantrell Gray was convicted by a jury o n two counts of drug and firearm offenses. See 18 U.S.C. §§ 922(g)(1), 924(a)(2); 21 U.S.C. §§ 841(a)(1), (b)(1)(B)(viii), (b)(1)(D). Before trial, Gray filed a motion to suppress incriminating statements that he made to Florida Highway Patrolman Jonathan Gentry (the “Primary Officer”)

. The Primary Officer lawfully pulled over a car that Gray occupied along with his girlfriend (the “Girlfriend”) and another occupant . After effecting the stop, the Primary Officer smelled marijuana as he interacted with the car’s occupants . He then lawfully handcuffed Gray and the other occupant and lawfully
searched t he car’s trunk

. Before conducting the search, however, the Primary Officer called for backup and waited until that backup, Deputy Sheriff Wade Boan (the “ Secondary Officer”) , reported to the scene

. During the search, the Primary Officer recovered from the car’s trunk three items

— marijuana, pills, and a firearm

— and placed those items

— one at a time

— on the car’s roof. Gray then made various incriminating statements in two separate intervals , which we refer to as the first set of statements and the second set of
statements. The District Court conducted a pre

- trial suppression hearing. Gray contend ed that both sets of statements were elicited through questioning and that

Case: 18-12258 Date Filed: 06/07/2019 Page: 2 of 133 he was never read his Miranda rights. 1 The Government concede d that the Primary Officer eventually questioned Gray. It asserted , however, that (1) only the second set of statements was the product of questioning and (2) those statements

were made only after the Primary Officer had read Gray his Miranda rights

. At the hearing, the Court received testimonial evidence from various persons, including the Primary Officer and the Secondary Officer . It also received documentary evidence in the form of the officers’ police reports and of dashboard

- camera footage from the Primary Officer’s patrol car . The Court denied Gray’s motion to
suppress . After the trial, Gray renewed his motion to suppress, based largely on inconsistencies between the Secondary Officer’s testimony at the suppression hearing and his testimony at trial

. The District Court denied that motion, too. We affirm the District Court’s denial of Gray’s renewed motion to suppress because the Court’s f actual findings, which are the only issues in dispute, were not clearly erroneous

. Because we write for the parties, we set out facts only as they are needed to support our analysis.
I.
A.

1 Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602 (1966). Case: 18-12258 Date Filed: 06/07/2019 Page: 3 of 134 The Fifth Amendment guarantees that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. 2 In Miranda v. Arizona , 384 U.S. 436, 86 S. Ct. 1602 (1966) , the Supreme Court held that “ the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self

incrimination. ” Id. at 444, 86 S. Ct. at 1612. These safegua rds normally require that “[p] rior to any questioning, the person 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 attorney, either retai ned or appointed. ” Id. The se rights are known as “ Miranda rights , ” and a perso n to whom the rights are read is said to be “ Mirandized .” The Government bears the
burden of prov ing compliance with Miranda by a preponderance of the evidence

. Lego v. Twomey , 404 U.S. 477, 486, 92 S. Ct. 619, 625 (1972)

. B.
A motion to suppress evidence obtained in violation of Miranda involves questions of both law and fact, United States v. Shabazz , 887 F.3d 1204, 1213 (11th Cir. 2018) , but the issues here

— w hen Gray was questioned and whether he

2 The right against self

- incrimination applies to the States through the Fourteenth Amendment

. Malloy v. Hogan , 378 U.S. 1, 3, 84 S. Ct. 1489, 1491 (1964).

Case: 18-12258 Date Filed: 06/07/2019 Page: 4 of 135 was Mirandized

— are purely factual. We review a district court’s factual findings for clear error. Id. In so doing, we “construe all facts ‘ in the light most favorable to the party prevailing below, ’ which, in this appeal, is the government. ” Id. (quoting United States v. Johnson , 777 F.3d 1270, 127 4 (11th Cir. 2015) ). To reverse, we must be left with the “ definite and firm conviction that a mistake has been committed.” United States v. Thomas , 818 F.3d 1230, 1239 (11th Cir. 2016) (quoting United States v. Rothenberg , 610 F.3d 621, 624 (11th Cir. 2010) ). “Our review is not moored to the evidence presented at the suppression hearing; we are free to look at the whole record.” United States v. C ampbell , 912 F.3d 1340, 1349 (11th Cir. 2019).
II. Miranda demands not the suppression of all incriminating statements, only those that were made by a person in “custody” in response to “express questioning or its functional equivalent.” See Rhode Island v. Innis , 446 U.S. 291, 300

– 01, 100 S. Ct. 1682, 1689 (198 0) . The Government concedes that Gray, who was handcuffed on the side of the road when both sets of statements were made, was in custody. As explained, t his appeal entails two sets of statements, those made before Gray was allegedly Mirandized and those m ade after. We review each set of statements in turn.

Case: 18-12258 Date Filed: 06/07/2019 Page: 5 of 136 A. When the Primary Officer removed the marijuana, pills, and firearm from the car’s trunk, he placed those items on the car’s roof

. Gray asserted ownership of each item after it was placed on the roof

. Under Miranda , “[v] olunteered statements of any kind are not barred by the
Fifth Amendment .” Id. at 300, 100 S. Ct. at 1689 (quoting Miranda , 384 U.S. at 478, 86 S. Ct

. at 1630). The only issue on appeal regarding the first set of statements is whether the Primary Officer asked Gray any questions to elicit his assertions of ownership. 3
We find no clear error with the District Court ’s finding that the first set of statements was not the product of questioning. The Primary Officer testified at the suppression hearing and at trial that he did not ask Gray any questions when he placed the items on the car’s roof. The Secondary Officer testified that neit her the Primary Officer nor he asked Gray any questions before Gray claimed the three items as his. The record contains a single piece of contrary evidence that the

3 Gray offers a half

- hearted argument that the Primary Officer elicited Gray’s statements through non

- ve rbal interrogation. See, e.g. , Innis , 446 U.S. at 301, 100 S. Ct. at 1689

– 90 (“[T]he term ‘interrogation’ under Miranda refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” (footnotes omitted)). But the only fact that he marshals in support of that argument

— that the Primary Officer placed the items on the car’s roof

— do es not amount to interrogation. See United States v. Glen

- Archila , 677 F.2d 809, 815 (11th Cir. 1982) (holding that a defendant was not subjected to Miranda interrogation when, among other things, law

- enforcement officers told him they knew that drugs were on board his ship).

Case: 18-12258 Date Filed: 06/07/2019 Page: 6 of 137 Primary Officer questioned Gray during this sequence of events. At trial, defense counsel asked the Girlfriend about the marijuana. Immediately a fter t he Girlfriend testified that Gray claimed ownership of the marijuana, the following exchange took place between her and defense counsel : Q: When the defendant stated, “That’s min e ,” was that in response to a question the officer asked?
A: No, he didn’t ask a question

— oh, yeah, he did. He asked who it belonged to. This mid

- sentence about

- face was the only evidence presented either at the suppression hearing or at trial that the Primary Officer questioned Gray as he placed the three items on the car’s roof. The District Court did not commit clear error when it credited the Primary Officer’s and the Secondary Officer’s unequivocal testimony over the Girlfriend’s wavering testimony

. Cf. Shabazz , 887 F.3d at 1215 ( “We accord great deference to

a district court’s credibility determinations.” (alteration omitted) (quoting United States v. Gregg , 179 F.3d 1312, 1316 (11th Cir. 1999) ))

. We now address the second set of statements , which turns out to be a thornier issue

. B. After Gray asserted ownership over the three items, he made further incriminating statements. He (again) asserted ownership of the marijuana , pills

Case: 18-12258 Date Filed: 06/07/2019 Page: 7 of 138 (which he stated were ecstasy) , and firearm ; he estimated the weight of the marijuana and the pill count of the ecstasy ; he stated that the firearm was for self

defense ; and he indicated that he had recently been released from prison. The Government concedes that the Primary Officer questioned Gray to elicit this second set of statements but insists that Gray was Mirandized before any questions were asked

. Gray disputes that he was ever Mirandized

. We summarize the evidence presented at the suppression hearing and at trial

. We then analyze whether , considering this evidence, the District Court’s factual finding that Gray had been Mirandized was clearly erroneous.
1. The Primary Officer testified at both the suppression hearing and at trial that he Mirandized Gray before questioning him

. The Primary Officer’s written arrest reports memorialize the same. If that were it, affirming the District Court’s factual findings would be a cakewalk. After all, w e d o not ordinarily disturb a court’s resolution of a he said , she said. See id. (“ [W] here ‘ the officers ’ testimonies are in direct conflict with the defendant’s testimony,

. . . a “ trial judge’s choice of whom to believe is conclusive on the appellate court unless the judge credits exceedingly improbable testimony. ” ’” (alterations omitted) (quoting United States v. Ramirez

Chilel , 289 F.3d 744, 749 (11th Cir. 2002) )). But as described below, the record

Case: 18-12258 Date Filed: 06/07/2019 Page: 8 of 139 contains other evidence , evidence that r enders the Primary Officer’s testimony suspicious. First, evidence pulled from the Primary Officer’s dashboard camera and on body microphone cast doubt on his testimony. When an officer activates his patrol car’s cruiser lights, two things immediately ha ppen . First, the dashboard camera begins recording video. And second, the officer’s microphone, attached to his tactical vest, begins recording audio. Or so it should. Here, t he dashboard camera did not capture the moment when the Primary Officer supposedly Mirandized Gray. We see the Primary Officer approach a man on the boundary of the screen and reach near his right chest pocket as he does so

. The Primary Officer then dire cts the man completely off screen . T he Primary Officer reemerges onto the screen about thirty seconds later with an item in his hand. Finally, a bout fifteen seconds later, he places a card into his right chest pocket

. The viewer, curious as to what transpired off screen, might turn to the captured audio to listen to what was said. But t he viewer would be sorely disappointed: T he microphone malfunctioned, with no indication in the record as to why. Second, the Second ary Officer offered inconsistent testimony on whether Gray had been Mirandized

. At the suppression hearing, the Secondary Officer testified that he heard the Primary Officer Mirandize Gray. This testimony was unequivocal: Case: 18-12258 Date Filed: 06/07/2019 Page: 9 of 1310 Q: Now, I asked you this morning whether you observed any Miranda rights or you heard any Miranda rights being read. A: Yes, sir. Q: Were you in the vicinity at that point? A: I remember him reading the rights. If my memory serves me correctly, I was s ear ch ing the vehicle behind [the Primary Officer]. He had asked me

— he had already found everything, everything was done. He said, “Just go behind me and make sure I didn’t miss anything.” I was in the backseat of the car looking through it. I remember hearing it, but I can’t tell you specifically where I was standing or anything of that nature. I remember it, but just don’t remember where I was. At trial, however, the Secondary Officer told a wholly different story: Q: [I]n terms of the search, did yo u also search the vehicle? A: I did. After everything was conducted with [the Primary Officer], he asked me to research the vehicle. He said, “Just go back through it and make sure I didn’t miss anything.” And briefly I went back through the vehicle; y es, sir. Q: And while you were in the vehicle, could you hear the conversation that [the Primary Officer] was having with the defendant at that time? A: I did not; no sir. The traffic going by

— that was spring break traffic on 231

— and from where I was, the driver’s side mainly was where I did most of the search, I couldn’t hear.
Th ese pieces of evidence cast doubt on the Primary Officer’s testimony

. We find it troubling that the Primary Officer ushered Gray off screen, where the
dashboard camera would not capture their interaction

. We find it troubling that t he microphone

— which presumably would have conclusively resolved the factual

Case: 18-12258 Date Filed: 06/07/2019 Page: 10 of 1311 question before us and which was in the Primary Officer’s exclusive control

— failed to function. And we find it troubling that the Secondary Officer testified that
he heard Gray be Mirandized only to later testify that he could not in fact hear anything because the traffic was so loud

. B ut as troubling as this evidence is, “troubling” is not the leg al standard. Rather, w e review a district court’s factual findings for clear error

. Shabazz , 887 F.3d at 1213

. 2. The District Court , after considering the entire record, reached a thoughtful conclusion that we cannot conclude was clearly erroneous. The District Court chose to credit the Primary Officer’s testimony over Gray’s testimony and reconciled the Primary Officer’s testimony with the video footage . The Primary Offi cer testified during the suppression hearing that he keeps a card imprinted with the Miranda rights (a “ Miranda card”) in his right chest pocket. Indeed, he pulled a Miranda card out of his pocket during the hearing. The Court found that the Primary Officer Mirandized Gray during the thirty

second interval when the two were off camera. The Court reasoned that thirty seconds is about the amount of time required to read a defendant his Miranda rights. “ [T] he most likely explanation for the scenes on the video , ” the Court found, was that the Primary Officer

Case: 18-12258 Date Filed: 06/07/2019 Page: 11 of 1312 took the Miranda card from his pocket

. . ., read it to the defendant within the next 30 seconds, reached up to put it away

. . . but did not get it into the pocket, carried the card as h e walked over to look at or do something at the car, then turned toward the camera and put the card away

. . . . The Girlfriend’s testimony further supports this finding. She testified at trial that she heard the Primary Officer say to Gray, “Because you don’t want to shut your mouth, let me go ahead and read you your rights.” Th e testimony allowed the Court to infer that because the Primary Officer said he would Mirandize Gray, he in fact did so . The Secondary Officer’s initial testimony is not necessary for us to affirm
the District Court’s finding that Gray was Mirandized . This is so because in a credibility face

- off between the Primary Officer and Gray, the Court was free to select Gray as the winner withou t other corroborating evidence

. See id. at 1216 (“ The absence of corroborating evidence, standing alone, does not permit us to reverse the credibility determination by the finder of fact. ”). 4

4 Though the Secondary Officer’s inconsistent testimony does not factor into our review , it is not for the reason the Government p roffers . The District Court acknowledged the inconsistency in the Secondary Officer’s testimony and chose to ignore all aspects of his testimony in making its finding . The Government asserts that whenever a district court discredits all inconsistent test imony, the testimony plays no role in our clear

- error analysis. If only it were so clear cut

. The significance of “internally inconsistent or implausible” testimony, see Anderson v. Bessemer City , 470 U.S. 564, 575 , 105 S. Ct. 1504, 151 2 (1985) , like the Secondary Officer’s, turns on context. Sometimes, as is the case here, the inconsistency simply prevents any meaningful inference from being drawn from the testimony at all. The testimony disappears from the evidentiary picture entirely. Other times, however, the fact of inconsistency is itself evidence. Case: 18-12258 Date Filed: 06/07/2019 Page: 12 of 1313 At the end of the day, the District Court determined that the Primary Officer was more credible than Gray and found, using the video footage and the Girlfriend’s testimony , that Gray was Mirandized before he was questioned

. Because the Court adopted a “permissible view[] of the evidence,” its fin ding was not clearly erroneous. See Easley v. Cromartie , 532 U.S. 234, 259, 121 S. Ct. 1452, 1471 (2001) (quoting Anderson v. Bessemer City , 470 U.S. 564, 57 4 , 105 S. Ct. 1504, 1511 (1985) )

. III. For these reasons, the District Court’s denial of Gray’s renewed motion to
suppress his statements is AFFIRMED. SO ORDERED.

Say, for example, that Gray had presented evidence at his suppression hearing or at trial that the Primary Officer had directed the Secondary Officer to falsely testify that he heard the Prim ary Officer Mirandize Gray. The fact that the Secondary Officer testified one way at the suppression hearing and another way at trial would bolster the evidence that the Primary Officer solicited the perjured testimony as a means of covering up the fact t hat he did not in fact Mirandize Gray. In that evidentiary context, we could not ignore the Secondary Officer’s inconsistent testimony simply because the D istrict C ourt discredited all his testimony. Rather, w e would be forced to analyze whether the C ourt’s finding was clearly erroneous in light of the inconsistency

. Here, Gray does not argue that we should draw any inference from the inconsistent testimony. For this reason, the Secondary Officer’s testimony does not factor into our clear

- error analysis

. Case: 18-12258 Date Filed: 06/07/2019 Page: 13 of 13