Of the Federal Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 07-2510

UNITED STATES OF AMERICA,

Appellee,

v.

DAVID JACKSON,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Torruella, Boudin, and Dyk, Circuit Judges. *

Eric A. Vos, Assistant Federal Public Defender, for appellant.

Margaret D. McGaughney, Appellate Chief, with whom Paul D.

Silsby, United States Attorney, was on brief for appellee.

October 8, 2008
- 2 -

DYK, Circuit Judge. David Jackson (“Jackson”) appeals

from his conviction, under 18 U.S.C. §§ 922(g)(1) and 924(e), as a

felon in possession of a firearm. Pursuant to Federal Rule of

Criminal Procedure 11(a)(2), Jackson entered a conditional guilty

plea, reserving the right to appeal the district court’s underlying

decision on Jackson’s motion to suppress. Jackson sought to

suppress several incriminating statements that he made to the

police and guns discovered as a result of those statements,

alleging that the statements were taken in violation of Miranda v.

Arizona, 384 U.S. 436 (1966). The focus was on statements given

before Jackson received Miranda warnings. The district court found

that, although Jackson was in custody, he was not subjected to

“interrogation” for purposes of Miranda with respect to statements

at issue on this appeal, and rejected Jackson’s motion to suppress.

Because we conclude that Jackson was subjected to custodial

interrogation before being given his Miranda warnings, we vacate

the judgment of conviction and remand to the district court for

further proceedings.

I.

The following description of events is based on the

testimony of the police officers, which the district court found to

be credible, and does not rely on the testimony of Jackson, which

the district court found not to be credible to the extent that it

conflicted with the officers’ testimony.
- 3 -

On the morning of July 13, 2004, Lewiston, Maine, police

officer Michael Lacombe (“Lacombe”) responded to a call from Mark

Hoener, who had reported the theft of a RG twenty-two caliber

pistol from his residence. Hoener suspected his stepson, Tyler

Mancuso (“Mancuso”). Lacombe and Trevor Campbell (“Campbell”),

another Lewiston police officer who had arrived in response to

Lacombe’s request for assistance, confronted and arrested Mancuso,

who admitted to stealing the pistol from his stepfather and

reported that he traded the stolen gun for $100 worth of crack

cocaine to an individual known as “Scooby.” Mancuso gave Campbell

a physical description of the individual.

Campbell recognized Mancuso’s physical description and

the nickname Scooby as that of David Jackson, whom Campbell had

previously encountered. Campbell telephoned the police station and

learned that Jackson was on state probation from an earlier

conviction. Campbell contacted Pauline Gudas, Jackson’s parole

officer, who informed him that, as a condition of Jackson’s parole,

his residence could be subjected to random searches for weapons or

alcohol. Gudas also told Campbell that Jackson had a number of

previous convictions, and that Jackson was currently staying at the

apartment residence of Pamela Belanger (“Belanger”). 

Later that morning, Campbell and his partner, Chris

Clifford (“Clifford”), led a group of officers, including Lacombe

and Gudas, to Belanger’s apartment. In all, at least eight
- 4 -

officers went to the apartment. Once the officers arrived on the

scene, Campbell knocked on the door, which Belanger answered.

Campbell saw Jackson standing several feet behind Belanger. He

noticed that Jackson’s attire and appearance fit Mancuso’s

description of the individual who bought the gun. Campbell asked

Jackson to step out of the apartment so that he could pat him down

for weapons. He then described to Jackson the circumstances

concerning the stolen gun and the earlier encounter with Mancuso.

He explained to Jackson that he (Jackson) fit Mancuso’s description

of the buyer, and that he and the other officers were there to

locate the stolen firearm. He questioned Jackson as to his

“involvement” with the stolen gun. Transcript of Suppression

Hearing (“Suppression Hr’g Tr.”), April 17, 2007 at 1:21-22 p.m.,

United States v. Jackson, No. 06-94-P-S (D. Me. 2007). 

Attempting to elicit Jackson’s cooperation, Campbell

pressed Jackson on his involvement with the gun. He did not

threaten Jackson, but he hinted that Jackson’s cooperation might be

met with leniency. Lacombe recalled that the “nature of the

conversation” with Jackson was that “[w]e were there looking for a

firearm so the conversation was to find this - - these firearms

that we were looking for.” Suppression Hr’g Tr., April 17, 2007 at

3:56 p.m. At this point, Jackson apparently stated that he might

know where the gun was located, and that he could retrieve it if

the officers would just give him a few hours. Campbell, not
- 5 -

willing to allow Jackson an opportunity to escape or to retrieve a

deadly weapon, replied that Jackson was not permitted to leave.

Frustrated with Jackson’s refusal to cooperate, Campbell

decided to give Jackson time to think about revealing the location

of the gun. He left Jackson in the presence of the other officers,

including Clifford, and entered the apartment to speak with

Belanger, who at that point was speaking with Gudas in the kitchen.

Campbell explained to Belanger why he and the other officers were

there, and asked Belanger to consent to a search of her apartment.

Belanger agreed to allow Campbell and the other officers to search

her apartment, and signed a valid search consent form. According

to Belanger, this took no more than “five or ten minutes.”

Suppression Hr’g Tr., April 17, 2007 at 3:29 p.m. Lacombe

testified that Campbell “was in and out.” Suppression Hr’g Tr.,

April 17, 2007 at 3:43 p.m. 

With the consent form in hand, Campbell, instead of

initiating his search, returned to Jackson and the other officers

on the landing and declared out loud that he now had consent to

search the apartment. According to Campbell, he did so with the

intention of giving Jackson “a chance to possibly come clean.”

Suppression Hr’g Tr., April 17, 2007 at 1:28 p.m. It is not clear

from the record whether the officers further questioned Jackson at

this point. In any event, Jackson told Campbell that he had lied

earlier and informed him that the gun was hidden in a cereal box in

the kitchen refrigerator. Campbell searched the refrigerator,
Campbell testified that Jackson was brought directly 1

to the station from the apartment, and then directly to an

interrogation room. Based on the record, this later questioning

must have occurred soon after the questioning at the apartment.

- 6 -

found the stolen gun and another gun on the bottom shelf in a box

of Fruity Pebbles, and placed Jackson under arrest.

The officers escorted Jackson in a marked police cruiser

to the Lewiston police station and, later that morning, brought 1

him to an interrogation room. Campbell and Clifford–-the same two

officers who had questioned Jackson earlier at the apartment–-met

Jackson in the interrogation room. Campbell read Jackson his

Miranda rights, and Jackson signed a valid waiver of those rights

before he made additional incriminating statements. Campbell and

Clifford then began interrogating Jackson about his involvement

with the stolen gun. Here, Jackson admitted that he received the

gun from Mancuso but insisted that he obtained the gun for cash,

and not for drugs. He also denied knowing that the gun was stolen.

Jackson was charged with possession of a firearm as a

felon in violation of 18 U.S.C. §§ 922(g)(1) and 924(e). Jackson

moved to suppress the statements he made at the apartment and at

the police station, as well as the physical evidence (the two guns)

obtained at the apartment. With respect to the statements made at

the apartment, Jackson argued that those statements were obtained

in violation of Miranda. With respect to the guns, Jackson argued

that they were obtained as a fruit of the illegally obtained

statements. And with respect to the statements made at the police
Jackson testified, inter alia, that (while Campbell 2

was in the apartment) Clifford threatened to report any failure to

cooperate to the federal prosecutor, and that his statements at the

police station were made before the Miranda warnings. 

- 7 -

station, Jackson argued that those statements were tainted by the

earlier improperly secured confession at the apartment.

After a hearing on Jackson’s motion to suppress, the

magistrate judge entered a recommended decision, holding that the

statements made to Campbell at the apartment were admissible.

United States v. Jackson, No. 06-94-P-S, 2007 WL 1378378 (D. Me.

May 7, 2007) (“Recommended Decision”). In doing so, the magistrate

noted that, although Jackson was not formally under arrest, the

government conceded that the statements at the apartment were made

while Jackson was in custody. The magistrate judge rejected

Jackson’s testimony on the issue of interrogation, finding 2

Jackson’s account not credible to the extent that it conflicted

with the officers’ testimony. The magistrate judge found that

Jackson’s statements (that is, his false statement that the gun was

elsewhere and his true statement that the gun was hidden in a

cereal box in the refrigerator) were not made in response to

interrogation, because Jackson did not give up the location of the

gun in response to any “particular question.” Determining that at

the police station Miranda warnings had been provided, the

magistrate judge also concluded that the statements at the police

station were admissible. However, the magistrate judge suppressed

a statement Jackson had made in response to Gudas, who had asked
- 8 -

Jackson why he needed a firearm. (Since that statement is not at

issue in this appeal, we do not discuss it further.) The district

court adopted the magistrate’s recommended decision in full. 

Jackson pled guilty to the charges but, pursuant to Rule

11(a)(2), preserved his right to appeal the suppression ruling.

The district court entered final judgment on September 26, 2007,

sentencing Jackson to 180 months of confinement, followed by five

years of supervised release, and a special assessment of $100.

Jackson timely appealed. We have jurisdiction pursuant to 28

U.S.C. § 1291.

II.

The sole issue on appeal is whether Jackson’s statements

and guns should be suppressed because the police failed to comply

with the requirements of Miranda. Miranda requires law enforcement

officers to employ procedural safeguards to ensure that a suspect’s

Fifth Amendment privilege against self-incrimination is respected.

384 U.S. at 478-79; Dickerson v. United States, 530 U.S. 428, 444

(2000) (holding that Miranda announced a constitutional rule).

Under Miranda, a suspect is entitled to be apprised of his “right

to remain silent, that anything he says can be used against him in

a court of law, that he has the right to the presence of an

attorney, and that if he cannot afford an attorney one will be

appointed for him prior to any questioning if he so desires.” 384

U.S. at 479. To comply, the police must give a suspect proper

Miranda warnings before he is subjected to custodial interrogation.
- 9 -

Id. Any statements obtained as a result of custodial interrogation

in the absence of Miranda warnings must be suppressed. Id.; United

States v. Conley, 156 F.3d 78, 83 (1st Cir. 1998). We review the

district court’s findings of fact for clear error, and the court’s

ultimate legal and constitutional conclusions de novo. Conley, 156

F.3d at 82.

A.

We first address the statements that Jackson made at the

apartment. There is no dispute that Jackson was never given

Miranda warnings at any point prior to the questioning that took

place at the police station–-well after the encounter at the

apartment. We must therefore decide whether Jackson’s statements

at the apartment were the result of custodial interrogation.

Custodial interrogation requires that the defendant was both “in

custody” and subjected to “interrogation.” United States v. Genao,

281 F.3d 305, 310 (1st Cir. 2002); United States v. Ventura, 85

F.3d 708, 710 (1st Cir. 1996). Here, although Jackson was not

formally placed under arrest before he made the statements, the

government conceded that Jackson was in custody at the time that he

made the incriminating statements. That leaves us only with the

critical question whether Jackson was subjected to interrogation.

In Rhode Island v. Innis, the Supreme Court construed

interrogation to be “either express questioning or its functional

equivalent.” 446 U.S. 291, 300-01 (1980). Interrogation can be

“any words or actions on the part of the police (other than those
- 10 -

normally attendant to arrest and custody) that the police should

know are reasonably likely to elicit an incriminating response from

the suspect.” Id. at 301. “A practice that the police should know

is reasonably likely to evoke an incriminating response from a

suspect thus amounts to interrogation.” Id. A volunteered

statement is not the product of interrogation and is not subject to

suppression, even if warnings have not been provided. Miranda, 384

U.S. at 478 (“Volunteered statements of any kind are not barred by

the Fifth Amendment and their admissibility is not affected by our

holding today.”). 

We focus first on Jackson’s statement that the gun was in

a cereal box in the refrigerator. Here Jackson did not make that

statement directly in response to Campbell’s initial questioning.

Instead, that statement was made only after Campbell returned to

the landing and announced that he had Belanger’s consent to search

the apartment. The district court held that Jackson’s statement

that the gun was in the refrigerator was voluntary and not the

result of interrogation. In doing so, the district court relied on

the fact that Jackson did not make the statement in response to any

“particular question.” Recommended Decision, at *4 (“None of the

other officers called to testify by the defendant remembered

Campbell asking the defendant where the gun was or any other

particular question.”). In our view, the district court applied an

incorrect standard. A statement is not rendered admissible under

Miranda simply because it is not made in response to a “particular
We note that Campbell’s testimony indicates that he 3

may have reinitiated questioning after he had Belanger’s consent to

search:

Q Well, when you came back outside to talk to him with

the consent to search, you were given him another

chance to tell you where the guns were; correct?

A Actually I didn't question him much more. I just 

said I had consent to search and at that point he

stated he lied.

Suppression Hr’g Tr., April 17, 2007 at 2:15-16 p.m. Also, Lacombe

recalled that Campbell, upon returning to the landing, continued

talking to Jackson. Suppression Hr’g Tr., April 17, 2007 at 3:43-

50 p.m.

- 11 -

question.” The entire course of conduct of the officers must be

examined to determine whether the statement was in response to

unlawful questioning under Miranda. 

In Innis, the Court found that there had been “no express

questioning” and refused to treat as “interrogation” under its

functional equivalent test a conversation between police officers

in the presence of the defendant that arguably was both intended to

provoke, and did in fact provoke, an admission by the defendant.

446 U.S. at 302. We need not decide how Innis would apply in this

case if the consent-to-search statement by Campbell by itself had

been the cause of Jackson’s statement. Rather, we find that

Jackson’s statement was the product of the unwarned interrogation.

 Even if the officers did not reinitiate questioning

after Campbell returned from the apartment (as the District Court

found in resolving conflicting testimony), as we now discuss there 3

remain as incontestable facts the following: questioning by the
Campbell testified: 4

Q What, if anything, did you then tell the defendant

about your investigation and why you were there?

A I advised him that I was investigating a stolen

firearm complaint and asked of his involvement in

it.

Q Did you describe specifically to the defendant what

you knew to date up to that point in time, what you

knew about the stolen firearm?

A Um, I believe I did.

Q Specifically, did you describe to him what Mr.

Mancuso had told you about the exchange of the

firearm for crack cocaine?

- 12 -

officers before Campbell’s departure and return, the short period

between the initial questioning and the time that Jackson made the

statement, the suggestion of leniency, Jackson’s prior knowledge

that the search was permissible, and the officers’ obvious purpose

in the earlier questioning to secure an incriminating statement

from Jackson. In these circumstances, it is a fair inference that

it was the earlier questioning that prompted Jackson’s ultimate

admission.

First, it is clear from the testimony of the officers

that they questioned Jackson about the gun. Officer Campbell

admitted that he engaged in an “interviewing process” to “try to

get information.” Suppression Hr’g Tr., April 17, 2007 at 2:16

p.m. Officer Campbell testified that when he and the other

officers arrived at the apartment, he “asked [Jackson] of his

involvement” with the gun. Suppression Hr’g Tr., April 17, 2007 4
A Yes.

Suppression Hr’g Tr., April 17, 2007 at 1:22 p.m. (emphasis added).

Lacombe testified: 5

Q Do you remember why he was there? Why you were

there?

A I was there to assist Agent Campbell in questioning

Mr. Jackson, I believe.

Suppression Hr’g Tr., April 17, 2007 at 3:40 p.m. (emphasis added).

On redirect, Lacombe stated:

Q Well, you were there when the discussion was going

on with David Jackson, Campbell yourself and the

other officers; correct?

A Yes.

Q And the nature of that discussion was them asking

him questions; right?

A Yes.

. . . . 

Q She [the federal prosecutor on cross-examination]

said do you remember anybody discussing - -

coercing him and you really don't remember the

nature of the conversations; do you?

A Yes. I remember the nature of the conversation.

We were there looking for a firearm so the

conversation was to find this - - these firearms

that we were looking for. So, but I don't, you

know, I know the nature of the questions, but

exactly what questions were asked, how they were

- 13 -

at 1:22 p.m. Campbell also stated: “I questioned him on the guns

because I did want a response in regard to guns, to finding the

guns.” Suppression Hr’g Tr., April 26, 2007 at 3:34 p.m. Lacombe

also recalled that the “nature of that discussion was [the

officers] asking [Jackson] questions.” Suppression Hr’g Tr., 5
presented, no I wouldn't, I don't recall that.

Q But you had said they were questions?

A They were questions.

Suppression Hr’g Tr., April 17, 2007 at 3:55-56 p.m. (emphases

added).

- 14 -

April 17, 2007 at 3:55 p.m. The officers agreed that Jackson was

questioned in order to elicit an incriminating response. That is,

Campbell wanted Jackson to tell him where he had hidden the gun. 

Second, the time between the initial interrogation and

the incriminating statement was no more than a few minutes. 

Lacombe testified that Campbell was “in and out” and that the

entire incident from the time the police arrived to the time that

Jackson made the statement was about fifteen minutes. Belanger

estimated that, after the initial questioning, Campbell spent no

more than five or ten minutes with her in the apartment to get her

consent to search. 

Third, Campbell’s testimony indicates that in the course

of these discussions, the officers hinted that Jackson’s

cooperation would be rewarded with leniency. Campbell testified:

Q Is it fair to say based on your recollection of your

conversations with the defendant based on what you heard

him say, that you said something that intimated that you

wanted him to cooperate or just tell you where the guns

were and help himself out?

A I questioned him on the guns because I did want a

response in regard to guns, to finding the guns.

Q And might you have used the word "cooperation"?
The relevant testimony, cross examination of Jackson 6

by AUSA McElwee, confirmed Jackson’s view that the probation

officer “already had consent when my probation officer came inside

the apartment because she already said [sic] it.” Suppression

Hr’g Tr., April 17, 2007 at 4:41-42 p.m. Jackson also testified:

Q When they first arrived at the door, they didn’t

just knock on the door, have it be opened and start

searching. 

A No. Pauline Gudas told me that she was coming to

search the house. She was my probation officer at

the time. 

Id.

Campbell stated: 7

Q And then you wrote in your report I gave him some

- 15 -

A I may have.

Q Might you have used the word "leniency"?

A I may have.

Q And might you have indicated that in some way, that

cooperation would be reported back to a prosecutor down

the road?

A Absolutely.

Suppression Hr’g Tr., April 26, 2007 at 3:34 p.m. (emphases added).

Fourth, the authority of the police to search the

apartment was not new information for Jackson. Jackson himself

testified, without contradiction, that he already knew that a

search was permissible without any further consent because his

probation officer had the right as a condition of his probation.6

Finally, Campbell testified that when he left Jackson

outside on the landing with the other officers and went inside to

speak with Belanger, he did so in order to give Jackson a chance to

“think about” cooperating. And, once Campbell had obtained 7
time to think about this, and asked Belanger if I

could speak to her inside the apartment.

A Correct.

Q And when you said "think about it," basically he was

failing to do what you wanted him to do, tell you

where the gun was; correct?

A I wanted him to cooperate, yes.

Q And he wasn't being cooperative at this time?

A Not at that time, no.

Q And what you wanted him to do was to think about it

so that maybe later on he would be cooperative;

correct?

A Absolutely.

Q And this was part of what you had been trained to do

as the investigating officer; correct?

A It's part of it, yes. 

Suppression Hr’g Tr., April 17, 2007 at 2:07-08 p.m. (emphases

added). 

Campbell testified: 8

Q After Ms. Belanger gave you consent to search her

apartment, did you immediately begin searching or

did you go back outside to speak with Mr. Jackson?

A I went back outside and spoke with Mr. Jackson.

Q Why did you do that?

A I wanted to give him a chance to possibly come clean

on anything that may be inside the apartment,

advising that I had consent to search.

- 16 -

Belanger’s consent to search the apartment and returned to the

landing to announce that fact, he did so because he “wanted to give

[Jackson] a chance to possibly come clean.” Suppression Hr’g Tr., 8
Suppression Hr’g Tr., April 17, 2007 at 1:28 p.m. (emphasis added).

- 17 -

April 17, 2007 at 1:28 p.m.

In summary, it is true that not “all statements obtained

by the police after a person has been taken into custody are to be

considered the product of interrogation.” Innis, 446 U.S. at 299.

This is not a case, however, where the defendant’s statement was

clearly unresponsive to an officer’s inquiries. See, e.g., United

States v. Castro, 723 F.2d 1527, 1530 (11th Cir. 1984) (holding

that a statement that was “totally unresponsive” to the officer’s

question was not improperly compelled, but rather “spontaneously

volunteered”). Nor is it the case that Jackson simply blurted out

the incriminating statement without prompting. See, e.g., United

States v. Richardson, 427 F.3d 1128, 1133 (8th Cir. 2005)(holding

that the defendant’s statement in the back of the police car was

voluntary), vacated in part on other grounds, 439 F.3d 421 (8th

Cir. 2006).

Rather, we think it clear that the police subjected

Jackson to custodial interrogation at the apartment in violation of

Jackson’s Fifth Amendment right and that the statements were

obtained in violation of Miranda. We also conclude that Jackson’s

false statement that the gun was elsewhere is even more clearly

inadmissible. As to that statement, the officers’ testimony

indicates that that statement was made directly in response to

questioning–-specifically Campbell’s asking Jackson of his
The government also argues that the statements at 9

the apartment are admissible, even if they were the product of

custodial interrogation, under the public safety exception to

Miranda’s suppression requirement. See New York v. Quarles, 467

U.S. 649 (1984). The government’s contention is without merit.

The gun, stuffed inside a cereal box in the refrigerator, was

clearly outside of the reach of Jackson, who was not even in the

apartment and, in any event, was surrounded by a number of police

officers. The mere fact that a gun was involved is not sufficient.

- 18 -

involvement with the stolen firearm.9

B.

The statements made at the police station are a different

matter. The district court found that Jackson made those

statements after receiving proper Miranda warnings, and on appeal

Jackson does not challenge that finding. 

The Supreme Court in Oregon v. Elstad made clear that

there is no automatic rule requiring the exclusion of later

statements made after a proper Miranda warning, even though earlier

similar statements must be excluded because of a Miranda violation.

470 U.S. 298, 314 (1985). An earlier “simple failure to administer

the [Miranda] warnings, unaccompanied by any actual coercion or

other circumstances calculated to undermine the suspect’s ability

to exercise his free will [does not] so taint[] the [later]

investigatory process that a subsequent voluntary and informed

waiver is ineffective for some indeterminate period.” Id. at 309.

Thus, “the admissibility of any subsequent statement should turn in

these circumstances solely on whether it is knowingly and

voluntarily made.” Id.; see also United States v. Byram, 145 F.3d
- 19 -

405, 409 (1st Cir. 1998).

In these circumstances, the “finder of fact must examine

the surrounding circumstances and the entire course of police

conduct with respect to the suspect in evaluating the voluntariness

of his statements.” Elstad, 470 U.S. at 318.

It may well be, under Elstad, that Jackson’s statements

made at the police station are admissible despite the earlier

Miranda violation. But we think that the best course is to remand

to the district court to consider the admissibility of the

statements at the police station in light of our holding that the

apartment statements are inadmissible.

C.

Jackson also argued below that the two guns should be

suppressed because they were tainted by the constitutional

violation. We disagree. The Supreme Court has held that physical

evidence need not be excluded simply because it is discovered as a

result of unwarned questioning in violation of Miranda. See United

States v. Patane, 542 U.S. 630, 634, 637-44 (2004) (Thomas, J.,

plurality); id. at 644-45 (Kennedy, J., concurring in judgment).

III.

Jackson’s conviction and sentence are vacated and the

case is remanded for proceedings consistent with this opinion.

Vacated and Remanded.