The Honorable Pasco M. Bowman succeeded the Honorable Richard S. Arnold 1

as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close

of business on April 17, 1998.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-1082

___________

United States of America, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* District of Nebraska

Kevin L. Pierce, *

*

Appellee. *

___________

 Submitted: April 13, 1998

 Filed: August 11, 1998

___________

Before BOWMAN, Chief Judge, and McMILLIAN and MURPHY, Circuit Judges. 1

___________

McMILLIAN, Circuit Judge.

The United States of America (the government) appeals from an order entered

in the United States District Court for the District of Nebraska denying in part and

granting in part a motion to suppress filed by Kevin L. Pierce (defendant). United

States v. Johnson, No. 8:97CR91 (D. Neb. Dec. 23, 1997) (hereinafter "District Court
The district court's disposition of Johnson's motion to suppress is not at issue

2

in the present appeal.

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Order") (partially adopting the magistrate judge's report and recommendation, id.,

No. 8:97CR137 (Nov. 20, 1997) (hereinafter "Report and Recommendation")). For

reversal, the government argues that the district court erred in holding that defendant's

self-incriminating statements to an investigating police officer were made involuntarily

because another officer had promised defendant leniency in exchange for cooperation.

For the reasons stated below, we reverse that holding of the district court and remand

the case for further proceedings consistent with this opinion.

Jurisdiction

Jurisdiction in the district court was proper pursuant to 18 U.S.C. § 3231. The

government timely invoked the jurisdiction of this court pursuant to 18 U.S.C. § 3731

(allowing the government to file an appeal within thirty days from a decision or order

of the district court suppressing or excluding evidence in a criminal case).

Background

Defendant and Phelan Johnson were charged in a single indictment dated

August 19, 1997, on one count of possession with intent to distribute marijuana, in

violation of 21 U.S.C. § 841(a)(1). Following their indictment, defendant and Johnson

each filed a motion to suppress. They each moved to suppress physical evidence taken 2

from the vehicle in which they had been traveling at the time of their arrest, and

defendant additionally moved to suppress statements he made to a law enforcement

officer following his arrest. The motions to suppress initially came before a magistrate

judge. The magistrate judge held an evidentiary hearing on the motions. The following

summary of the underlying facts is based upon the magistrate judge's findings of fact,
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Report and Recommendation at 2-10, and the exhibits introduced at the suppression

hearing. 

On August 8, 1997, at approximately 2:30 a.m., Nebraska State Patrol (NSP)

Trooper Staskiewicz signaled to a van traveling on Interstate 80 near Omaha, Nebraska,

to pull over. Trooper Staskiewicz did so after noticing that the van's bright lights were

illuminated, observing it cross the white center line dividing the lanes of traffic, and

clocking its speed at 56 miles per hour in a construction zone with a posted speed limit

of 50 miles per hour. The van stopped on the right shoulder of the highway, and

Trooper Staskiewicz stopped his patrol car behind it. Trooper Staskiewicz walked up

to the driver's side of the van. The driver, Johnson, opened the window, and

Staskiewicz smelled an odor of air freshener coming from inside. Trooper Staskiewicz

obtained the vehicle registration and defendant's and Johnson's driver's license numbers.

He radioed the numbers to NSP headquarters and received a "use caution" warning with

respect to each individual, indicating possible arrests or convictions for assaulting a

police officer or homicide. He was also informed that defendant had a prior drug

trafficking conviction. Trooper Staskiewicz called for backup. While waiting for the

backup car to arrive, Trooper Staskiewicz talked with each of Johnson and defendant

separately about the origin, destination, and purpose of their trip. Defendant and

Johnson gave conflicting statements about the purpose of their trip. After a backup

officer arrived, Trooper Staskiewicz brought his drug dog, which had been in the back

of his patrol car, over to the van. The dog responded positively for the presence of

narcotics. Trooper Staskiewicz opened the door of the van and immediately smelled

marijuana. Inside the van, he discovered a duffle bag filled with brick-shaped objects

(which were later confirmed to be marijuana). Defendant and Johnson were

immediately placed under arrest and handcuffed. The arrest took place at approximately

2:57 a.m.

Trooper Staskiewicz transported defendant to NSP headquarters while Johnson

rode in the other officer’s car. While en route in the patrol car, Trooper Staskiewicz
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commented to defendant about the benefits of cooperating. Trooper Staskiewicz told

defendant that he could "get off pretty easy" if he cooperated with the police and

completed the marijuana delivery. Trooper Staskiewicz told defendant that the

prospects for cooperating would be discussed at the NSP station and that he should not

say anything until his rights were read to him at the station. Trooper Staskiewicz also

said "[i]t's a proven fact that cooperation helps in the long run . . . especially if they go

federal." The conversation between Trooper Staskiewicz and defendant was recorded

by an audio/video camera mounted in the patrol car. (A copy of the audio/video

taperecording was introduced into evidence at the suppression hearing as Government

Exhibit 1.)

Once Trooper Staskiewicz and defendant arrived at the NSP station, defendant

was left with another officer, Investigator Lutter, to be interviewed. Investigator Lutter

testified that he was unaware of the prior conversation between Trooper Staskiewicz

and defendant in the patrol car. Investigator Lutter read defendant his Miranda rights

from a pre-printed "Advice of Rights" form. Investigator Lutter instructed defendant to

answer "yes" or "no" each time he was read a right and asked if he understood it, and

then to initial each right on the form if he understood it. Defendant verbally indicated

that he understood each of his rights as read to him, and he wrote his initials, "K.P.,"

beside each right on the form. Defendant did not ask any questions about his rights, nor

did he request an attorney. Investigator Lutter then read aloud to defendant the "waiver

of rights" paragraph on the form, which states the following: "I have been advised of my

rights and I understand them. I am willing to answer questions at this time without an

attorney present. I have not received any threats or promises, and I will answer

questions freely and voluntarily." Investigator Lutter asked defendant whether he

understood that no promises were being made, nor was anything being offered, in

exchange for his statement. Defendant indicated that he understood and signed his

name directly below the waiver of rights paragraph. (A copy of the "Advice of Rights"

form, bearing defendant's initials and signature, was introduced into evidence at the

suppression hearing as Government Exhibit 2.)
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Investigator Lutter then proceeded to question defendant. The interrogation

lasted approximately half of an hour (from 4:26 a.m. to 4:55 a.m.). First, Investigator

Lutter obtained biographical information from defendant. Then he asked defendant

about the marijuana found in the van. Defendant admitted that he and Johnson were

transporting the marijuana to Detroit, to a contact named Jim Bob for whom defendant

had once previously made a delivery. According to defendant, he received $500 for the

prior delivery, and this time he was to receive $2,000. Investigator Lutter suggested to

defendant that he cooperate with law enforcement by attempting to complete the

marijuana delivery. Defendant agreed. Afterward, defendant talked with Johnson and

Johnson also agreed to cooperate in an attempted delivery.

Based upon these facts, the magistrate judge recommended that defendant's

motion to suppress be denied. Report and Recommendation at 17-18. Defendant filed

objections. Upon review, the district court agreed with the magistrate judge that the

initial stop and search of the van were constitutionally permissible. However, the

district court disagreed with the magistrate judge's conclusion that defendant's

statements to Investigator Lutter were made voluntarily. The district court reasoned:

[Trooper Staskiewicz’s] statements were plainly inducements that

rendered [defendant's] subsequent statements to Investigator Lutter

involuntary. . . . The trooper implied much more by his use of the words

“proven fact” than merely suggesting that matters would go more smoothly

for [defendant] if he cooperated. The trooper planted in [defendant’s]

mind a scenario that controlled everything else [defendant] did and said

during the remainder of his stay at NSP headquarters, including his

statements to Investigator Lutter. In fact, that promise of leniency was so

real to [defendant] that he was able to convince the reluctant Johnson to

join in the plan to deliver the marijuana to their Detroit contact. Lutter’s

subsequent reading and initialing of a Miranda form could not eradicate

the efficacy of the earlier promise made by the friendly, respectful trooper

in the cruiser.
We note that the district court's language suggests that Investigator Lutter, not 3

defendant, initialed the Advice of Rights form. However, it is undisputed that

defendant was the one who initialed the form. See Government Exhibit 2.

Defendant mistakenly assumes that, in order for us to reverse the district court's 4

decision, we must hold that the court clearly erred in concluding, for example, that

Trooper Staskiewicz's statements to defendant in the parol car "rendered [defendant's]

subsequent statements to Investigator Lutter involuntary," and other similar conclusions

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District Court Order at 5. The district court also reasoned "[t]o the extent that the

3

trooper's statements promising leniency were 'unfulfillable,' they were false." Id. at 6

(citing, among other cases, United States v. Ruggles, 70 F.3d 262, 265 (2d Cir. 1995)

(Ruggles) ("Material misrepresentations based on unfulfillable or other improper

promises might perhaps overbear a defendant's will."), cert. denied, 516 U.S. 1182

(1996)). Consequently, the district court suppressed defendant's statements to

Investigator Lutter. The government filed this timely interlocutory appeal pursuant to

18 U.S.C. § 3731.

Discussion

The sole issue on appeal is whether the district court erred in granting defendant's

motion to suppress his statements on the ground that they were made involuntarily.

While we review the district court's finding of the underlying facts for clear error, we

review de novo the district court's determination of whether defendant acted voluntarily

in making the self-incriminating statements, which essentially amounted to a confession.

United States v. Mendoza, 85 F.3d 1347, 1350 (8th Cir. 1996) (Mendoza); United

States v. Johnson, 47 F.3d 272, 275 (8th Cir. 1995); cf. Ornelas v. United States, 517

U.S. 690, 695-700 (1996) (explaining why, in Fourth Amendment context, review of

probable cause or reasonable suspicion determinations is independent of and without

deference to district court's determinations while appellate review of findings of

underlying historical facts is for clear error).4
essentially indicating that defendant's will was overborne and his statements were not

voluntary. Brief for Appellee at 5-6 (quoting the district court's order).

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In considering whether a confession was voluntary, the determinative question

is whether the confession was extracted by threats, violence, or promises (express or

implied), such that the defendant’s will was overborne and his or her capacity for selfdetermination was critically impaired. Sumpter v. Nix, 863 F.2d 563, 565 (8th Cir.

1988) (citing Culombe v. Connecticut, 367 U.S. 568, 602 (1961)). In making this

determination, courts look at the totality of the circumstances, including the conduct of

the law enforcement officials and the defendant's capacity to resist any pressure. United

States v. Meirovitz, 918 F.2d 1376, 1379 (8th Cir. 1990), cert. denied, 502 U.S. 829

(1991).

Citing Tippitt v. Lockhart, 859 F.2d 595 (8th Cir. 1988), cert. denied, 490 U.S.

1100 (1989), among other cases, defendant asserts that the assessment of whether a

confession was voluntary under the totality of the circumstances requires consideration

of (1) the specific interrogation tactics used, (2) the details of the interrogation, and

(3) the characteristics of the accused. With respect to the tactics used, defendant argues

that Trooper Staskiewicz used misleading phrases such as "get off easy" and "proven

fact." As to the details of the interrogation, defendant notes that little is known about

the interrogation other than that it lasted approximately 30 minutes, it was conducted

by someone other than the person who made the "promise," and it was not

taperecorded. Regarding the characteristics of the accused, defendant notes, among

other things, that he is African American, that he and Johnson had traveled a very long

distance, and that he was under great stress in part because the time from the initial stop

to the end of the interrogation lasted from approximately 2:30 a.m. to 5:00 a.m.

Defendant also maintains that Trooper Staskiewicz made promises that were in fact

false and unfulfillable and that Trooper Staskiewicz had neither the knowledge nor the

authority to make those promises.
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 The present case is similar to Mendoza, in which the government appealed from

an order of the district court suppressing a confession made by one of the defendants

in the case (Wheeler). The facts in Mendoza included the following. Wheeler had been

caught accepting payment for methamphetamine during an undercover operation. After

Wheeler was read her Miranda rights, while en route to the police station, a police

officer told Wheeler that she would be arrested immediately if she did not cooperate.

Upon arriving at the station, a second officer, Agent Mizell, again advised her of her

Miranda rights and told her that she was not under arrest and that she would not be

charged at that point. Agent Mizell further stated that he could not offer her a deal in

exchange for her cooperation but that he would inform the prosecutor if she were to

cooperate. After that, Wheeler agreed to cooperate. 85 F.3d at 1348-49. In ruling that

Wheeler’s confession was involuntary, the district court reasoned "[w]ere it not for the

fact that [the officer] told defendant Wheeler that she would be immediately arrested if

she did not cooperate with the officers, I would probably conclude that all of her

statements to the officers were voluntary. . . . That threat, which was made while

defendant Wheeler was in a custodial situation, is a coercive facet in the totality of the

circumstances." Id. at 1350 (quoting the district court’s order). However, upon de novo

review, this court reversed, holding that, based on the totality of the circumstances,

"Wheeler’s will was not overborne by the agents when she decided to cooperate." Id.

at 1351. This court found especially persuasive "the fact that Wheeler did not make any

incriminating statements or decide to cooperate until after Agent Mizell had given her

Miranda warnings and had told her that she would not be arrested or charged that day."

Id.

In the present case, as in Mendoza, defendant was advised of his Miranda rights

before his self-incriminating statements were made; he was not subjected to any

physical or emotional coercion; he was not subjected to a particularly lengthy

interrogation; and neither trickery nor deceit was used to extract his statements. See id.

at 1350. In addition, we note that defendant had prior dealings with the criminal justice

system; he made no incriminating statements to Trooper Staskiewicz in the
Indeed, we note that a successful controlled delivery of the marijuana may well 5

have proven beneficial to defendant by warranting a sentence reduction for substantial

assistance or acceptance of responsibility under the guidelines.

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patrol car; Investigator Lutter carefully reviewed with defendant his Miranda rights and

defendant initialed each one on the rights form; and defendant signed his name below

the waiver of rights paragraph. We consider especially compelling the facts that

Investigator Lutter specifically asked defendant if he understood that no promises were

being made nor was anything being offered in exchange for defendant’s statement, and

defendant signified his understanding both verbally and in writing. Therefore, we hold

that defendant's will was not overborne when he confessed. Moreover, although we

are of the opinion that Trooper Staskiewicz did not make any promises, much less

promises that were false or unfulfillable, we hold that Investigator Lutter’s warnings

5

and defendant’s understanding of those warnings would have, in any event, undermined

or negated any motivating effect Trooper Staskiewicz’s comments could have had.

Stated differently, even if Trooper Staskiewicz's statements in the patrol car could be

construed as an inducement, the effect was attenuated and cured by subsequent events.

In sum, upon carefully reviewing the totality of the factual circumstances of this

case, we hold that defendant's self-incriminating statements to Investigator Lutter were

made knowingly and voluntarily. Accord Ruggles, 70 F.3d at 265 (a confession is not

involuntary merely because suspect was promised leniency if he cooperated with law

enforcement and statements to the effect that it would be to suspect's benefit to

cooperate are not improperly coercive); United States v. Wrice, 954 F.2d 406, 411 (6th

Cir.) (conceding for sake of argument that a promise of lenient treatment may be so

attractive as to make a confession involuntary, but suggesting that it must rise to the

level of an irresistible inducement), cert. denied, 504 U.S. 945 (1992).
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Conclusion

For the reasons stated, the decision of the district court to suppress statements

made by defendant is reversed, and the case is remanded for further proceedings

consistent with this opinion.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.