In the

United States Court of Appeals

For the Seventh Circuit

No. 11-1205

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

JAKE RICHARDSON, III,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 3:09-cr-00149—Jon E. DeGuilio, Judge.

ARGUED JUNE 8, 2011—DECIDED SEPTEMBER 2, 2011

Before POSNER, KANNE, and HAMILTON, Circuit Judges.

KANNE, Circuit Judge. On November 12, 2009,

Jake Richardson III was charged with possession with

intent to distribute more than five grams of cocaine

base in violation of 21 U.S.C. § 841(a)(1). Before trial,

Richardson moved to suppress the narcotics and

currency that had been found on his person and all postarrest statements that he had made to law enforcement officials. The district court granted Richardson’s
2 No. 11-1205

motion in part, but denied it as to some of his statements

and as to the physical evidence. A jury ultimately found

Richardson guilty. He now appeals his conviction,

arguing that the district court should have suppressed

the physical evidence and all of his post-arrest statements.

I. BACKGROUND

LaPorte County Deputy Dallas Smythe stopped Richardson for driving 80 miles per hour in a 55 miles-perhour zone. Because Richardson and his passenger were

behaving oddly, Deputy Smythe had his canine partner,

Marko, conduct a free-air search of the vehicle. Marko

alerted on both sides of the vehicle, so Deputy Smythe

asked Richardson for consent to search the car, which

Richardson granted. Before searching the car, Deputy

Smythe performed a protective pat-down of Richardson’s

person. During the pat-down, Deputy Smythe felt a

hard object in Richardson’s left pants pocket. When he

removed the object, he saw that it was a bundle of

paper currency. Continuing the pat-down, Deputy Smythe

felt a hard object in Richardson’s right pants pocket, and

Richardson immediately tried to pull away from the

officer. When Deputy Smythe removed the object, he

saw it was a packet containing an off-white, rocky substance.

After Deputy Smythe had looked at the object, he

asked Richardson what it was, and Richardson responded, “You know what it is.” Deputy Smythe also

asked why Richardson’s shirt smelled like marijuana,

and Richardson responded that he had been with
No. 11-1205 3

people who were smoking marijuana. Deputy Smythe

arrested and handcuffed Richardson without further

question. While being handcuffed, Richardson said that

he could get more cocaine and marijuana and that he

“would do anything to make this go away.” He said

he could get significant amounts of cocaine, and as

proof he reported his involvement in an aborted cocaine

transaction in Merrillville, Indiana. Deputy Smythe

asked Richardson if he wanted to speak with someone.

Richardson said he did, so Deputy Smythe called

Sergeant Timothy Shortt.

While waiting for Sergeant Shortt, Richardson sat in

the back of a squad car, with Deputy Lowell Boswell

standing outside. Richardson repeatedly asked

Deputy Boswell to open the door and talk to him.

When Deputy Boswell entered the car to escape the

cold, Richardson told him that he could get a lot of

cocaine from a mall in Merrillville where people were

coming with a U-Haul truck.

After his arrival, Sergeant Shortt approached Richardson

in the squad car and asked Richardson how he was

doing. Richardson responded, “Are you the guy we’re

waiting on?” Sergeant Shortt confirmed that he was.

Richardson then told him he could buy a large amount

of cocaine from someone in Michigan City, Indiana,

or from a cocaine-filled U-Haul truck in Merrillville.

Richardson also told Sergeant Shortt he was planning

to buy some cocaine next Sunday, and he offered to buy

it for the police. After Richardson volunteered this information, Sergeant Shortt asked Richardson where he
4 No. 11-1205

had gotten the cocaine base found in his pocket. Richardson told him he had gotten it in South Bend, Indiana.

After speaking with Sergeant Shortt, Richardson

was taken to LaPorte County Jail for booking. During

an inventory search, officers found a small bag of

cocaine base in Richardson’s sock. From arrest to booking,

Richardson received no Miranda warnings.

Richardson was charged with possession with intent

to distribute more than five grams of cocaine base.

Before trial, he moved to suppress the two packets of

cocaine base, the bundle of currency, and his postarrest statements. The district court granted Richardson’s

motion as to the statements—“You know what it is”;

“Are you the guy we’re waiting on?”; and “South

Bend”—he had made in direct response to Deputy

Smythe’s and Sergeant Shortt’s questions, but denied

the motion as to everything else. A jury ultimately

found Richardson guilty. He was sentenced to 236

months’ imprisonment, based in part on his 24 prior

convictions, his career offender status, and the fact that

he had interacted with the criminal justice system

every year of his life from age 12 to age 43—his age

at sentencing.

II. ANALYSIS

Richardson seeks a new trial, claiming the district

court should have suppressed all physical evidence and

all of his statements. When reviewing the district court’s

denial of a motion to suppress evidence, we review

factual findings for clear error and legal conclusions de
No. 11-1205 5

novo. United States v. Vasquez, 635 F.3d 889, 894 (7th

Cir. 2011).

A. Physical Evidence

Richardson claims the district court erred by not suppressing all physical evidence—the bundle of currency,

the cocaine base in his pocket, and the cocaine base in

his sock—seized on the day of his arrest. The district

court ruled that the cocaine base in his sock was discovered during a lawful inventory search and that law

enforcement officials inevitably would have discovered

the currency in the same search. See United States v. Cartwright, 630 F.3d 610, 613-14 (7th Cir. 2010). Because the

cocaine base in Richardson’s pocket gave the officers

probable cause for Richardson’s arrest, which in turn

led to the inventory search, the government and Richardson correctly focus their arguments on whether

Deputy Smythe lawfully inspected the cocaine base in

Richardson’s pocket during the protective pat-down.

Richardson does not dispute that Deputy Smythe

lawfully initiated a stop and pat-down of Richardson’s

person. See Terry v. Ohio, 392 U.S. 1 (1968). Rather, he

claims Deputy Smythe’s pat-down became an impermissible exploratory search when Deputy Smythe removed

the cocaine base from Richardson’s right pants pocket

and inspected it. Richardson’s argument misapplies

Minnesota v. Dickerson, 508 U.S. 366 (1993). Richardson

focuses on Dickerson’s pronouncement that an officer

cannot go beyond a protective pat-down to manipulate

an object concealed in a pocket unless “the incriminating
6 No. 11-1205

character of the object [is] immediately apparent.” 508

U.S. at 379. But that restriction does not apply until the

officer concludes that the object at issue is not a weapon.

Dickerson, 508 U.S. at 378; see United States v. Muhammad,

604 F.3d 1022, 1026-27 (8th Cir. 2010) (seizure and inspection of object not unlawful under Dickerson because

officer was uncertain whether object was a weapon).

Deputy Smythe testified that, after the protective patdown, he “wasn’t sure what [the object] was. It was just

an unfamiliar lump, [a] hard lump.” Based on this testimony, the district court found Deputy Smythe was

unsure whether the hard object in Richardson’s pocket

was a weapon. That finding was not clearly erroneous.

See United States v. Swann, 149 F.3d 271, 275 (4th Cir.

1998) (deferring to district court’s finding that the officer

had not determined whether the object was a weapon

when testimony was “entirely ambiguous” as to whether

the officer “suspected or did not suspect a weapon”).

Richardson could have—but did not—argue that

Deputy Smythe could not have reasonably suspected the

object in Richardson’s pocket was a weapon. See United

States v. Brown, 188 F.3d 860, 866 (7th Cir. 1999). The test

for reasonable suspicion is an objective one. Id.; United

States v. Robinson, 615 F.3d 804, 807-08 (7th Cir. 2010).

But Richardson disputes only whether Deputy Smythe

actually believed the object was a weapon—an issue

irrelevant to reasonable suspicion, see Brown, 188 F.3d at

866—and does not dispute that a reasonable officer

in Deputy Smythe’s position would have been “warranted in the belief that his safety or that of others was

in danger.” Terry, 392 U.S. at 27.
No. 11-1205 7

Even if Richardson had argued that Deputy Smythe

could not have had reasonable suspicion, his argument

likely would have failed. Courts, including ours, have

concluded that an officer who encounters a small,

hard object during a pat-down may have reasonable

suspicion to believe the object is a weapon. See, e.g., United

States v. Holmes, 385 F.3d 786, 790-91 (D.C. Cir. 2004)

(officer could reasonably suspect small digital scale in

jacket pocket was a weapon); Brown, 188 F.3d at 865-66

(officer could reasonably suspect hard object smaller

than a ping-pong ball in suspect’s groin area was a

weapon). In close cases, we have taken the same approach that a field officer likely takes during a protective

pat-down: “Better safe than sorry.” See Brown, 188 F.3d

at 866.

B. Custodial Statements

The district court suppressed all statements Richardson

made in direct response to officers’ questions. See Miranda

v. Arizona, 384 U.S. 436 (1966). Richardson argues the

custodial interrogation made all of his subsequent statements involuntary and thus inadmissible. Alternatively,

he argues that his conversation with Sergeant Shortt was

the functional equivalent of an interrogation, thus rendering his statements to Sergeant Shortt inadmissable

under Miranda.

Deputy Smythe’s and Sergeant Shortt’s questions

may have been Miranda violations, but such violations

do not render all later statements automatically inad-
8 No. 11-1205

missible. See Oregon v. Elstad, 470 U.S. 298, 318 (1985);

United States v. Abdulla, 294 F.3d 830, 835-37 (7th Cir.

2002). The test for admitting a later statement—one not

made in response to unwarned custodial interrogation—depends on whether the prior statements made

in response to Miranda-violating interrogation were

nonetheless voluntary. If so, any later voluntary statement is admissible; if not, any later statement is

admissible only if there was “a sufficient break in the

stream of events to insulate the second confession from

the earlier taint.” Watson v. DeTella, 122 F.3d 450, 454

(7th Cir. 1997) (quotation marks omitted).

The first step in our analysis, then, is to determine

whether the three statements Richardson made in

response to custodial interrogation—“You know what it

is”; “Are you the guy we’re waiting on?”; and “South

Bend”—were voluntary. A statement is voluntary if, “in

light of the totality of the 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. Dillon, 150 F.3d

754, 757 (7th Cir. 1998). Moreover, “coercive police

activity is a necessary predicate to the finding that a

confession is not voluntary.” Id. (quotation marks omitted).

To show coercive police activity, Richardson claims

that he was nervous, handcuffed, and (safely) on the

side of the highway for 51 minutes. These circumstances

do not show coercive police activity sufficient to

overcome Richardson’s will. See United States v. Montgom-
No. 11-1205 9

ery, 555 F.3d 623, 632 (7th Cir. 2009) (coercive police

activity includes physical punishment, psychological

intimidation, and sometimes deceit). Rather, Richardson

describes a fairly ordinary law enforcement-suspect

interaction. We strongly doubt that this encounter

fazed Richardson, given his frequent-flyer status with

the criminal justice system—evidenced by his career

offender status, 24 prior convictions, and 31 years of

regular interaction with law enforcement. See United

States v. Swanson, 635 F.3d 995, 1003 (7th Cir. 2011) (considering defendant’s experience in voluntariness inquiry); United States v. Ross, 510 F.3d 702, 710 (7th Cir.

2007) (same).

Richardson’s other statements are therefore admissible

as long as they were also voluntary. Abdulla, 294 F.3d at

836-37. Once handcuffed, Richardson eagerly shared

his expertise of past, present, and future Northwest

Indiana drug deals with anyone who would listen. These

statements were voluntary and thus admissible. See id.

(subsequent statements voluntary when made “spontaneously and not as the result of interrogation”).

In his alternative argument, Richardson claims the

entire conversation he had with Sergeant Shortt was

functionally equivalent to a custodial interrogation,

thus triggering Miranda’s warning requirement. An

officer can “interrogate” a suspect for Miranda purposes

without uttering a question. Rhode Island v. Innis, 446

U.S. 291, 300-01 (1980). A custodial conversation is an interrogation when the officer knows or should know

that his “words or actions . . . are reasonably likely to

elicit an incriminating response.” Id. at 301.
10 No. 11-1205

But “the police are not prohibited from ‘merely listening’ to [a suspect’s] voluntary statement.” United States v.

Jones, 600 F.3d 847, 855 (7th Cir. 2010) (quoting Edwards

v. Arizona, 451 U.S. 477, 485 (1981)). And that is

precisely what Sergeant Shortt did—with the exception

of an isolated question, the response to which was

correctly suppressed. He traveled to the scene of Richardson’s arrest only because Richardson wanted to speak

with someone who might help him “make this go

away.” Sergeant Shortt did not violate Miranda by

obliging Richardson’s desire to talk, and the district court

did not err by admitting Richardson’s statements to

Sergeant Shortt.

III. CONCLUSION

Richardson has not shown that the district court erred

by admitting the physical evidence found on

Richardson’s person or by admitting evidence of the

statements Richardson volunteered to Deputy Smythe,

Deputy Boswell, and Sergeant Shortt. Accordingly, we

AFFIRM Richardson’s conviction.

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