UNPUBLISHED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Affirmed in part, reversed in part, and remanded by unpublished 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Unpublished opinions are not binding precedent in this circuit.
2

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 
3

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 
4

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 
5

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.
6

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 
7

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.
8

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:
9

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 
10

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.
11

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 
12

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 
13

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