The Honorable Pasco M. Bowman succeeded the Ho norable 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 an d granti ng in part a motion to suppress filed by Kevin L. Pierce (defendant). Unite d States v. Johnson , No. 8:97CR91 (D. Neb. Dec. 23, 1997) (hereinafter "District CourtThe district court's disposition of Johnson's motion to suppress is not at issu e 2 in the present appeal.
-2- Orde r") (partially adopting the magistrate judge's report and recommendation, id. , No. 8:97CR137 (Nov. 20, 1997) (hereinafter "Report and Recommendation")). Fo r 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 of

ficer had promised defendant leniency in exchange for cooperation. F o r 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 governm ent 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

Def endant and Phelan Johnson were charged in a single indictment date d August19, 1 997, on one count of possession with intent to distribute marijuana, i n 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 supp ress physical evidence taken 2 fromthe vehic le in which they had been traveling at the time of their arrest, an d defendant additionally moved to suppress statements he made to a law enforcemen t officer following his arrest. The motions to suppress initially came before a magistrate judge. The magistrate judge held an evidentiary hea ring on the motions. The following summary of the underlying facts is based upon the magistrate judge's findings of fact,-3-

Report an d Recommendation at 2-10, and the exhibits introduced at the suppressio n hearing.

On A ugust 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 illu minated, observing it cross the white center line dividing the lanes of traffic, an d 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, an d Trooper Staskiewicz stopped hi s patrol car behind it. Trooper Staskiewicz walked up to the driver's side of the van. The driver, Johnson, opened the window, an d Staskiewicz smelled an odor of air fres hener coming from inside. Trooper Staskiewicz obtained the vehicle registration and defendant's and Johns on's driver's license numbers. He radioed the numbers to NSP headquarters and received a "use c aution" warning with respect to each individual, indicating possible arrests or convictions for assaulting a police offic er or homicide. He was also informed that defendant had a prior dru g trafficking conviction. Trooper Staskiewicz called for backup. While waiting for the backup car to arrive, Trooper Staskiewicz talked with each of Johnson and defendant separatel yabout the origin, destination, and purpose of their trip. Defendant an d Johnson g ave conflicting statements about the purpose of their trip. After a backu p officer arrived, Troop er 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 o f

narc otics. Trooper Staskiewicz opened the door of the van and immediately smelle d marijuan a. Inside the van, he discovered a duffle bag filled with brick-shaped objects (which were later confirmed to be marijuana). Defendant and Johnson wer e immediately placed under arrest and handcuffed. The arrest took place at a pproximately 2:57 a.m.
Trooper Staskiewicz transpor ted defendant to NSP headquarters while Johnson rode in the other officer’s car. While en route in the patrol car, Trooper Staskiewicz-4-

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 an d compl eted the marijuana delivery. Trooper Staskiewicz told defendant that th e prospects for cooperating would be discus sed at the NSP station and that he should not say anythi ng 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 convers ation between Trooper Staskiewicz and defendant was recorded by an audio/video camera mounted in the patrol car. (A copy of the audio/vide o taperecording was introduced into evidence at the suppression hearing as Government Exhibit 1.)

On ce Trooper Staskiewicz and defendant arrived at the NSP station, defendant was left with another officer, Investigator Lutter, to be interviewed. Investigator Lutter tes tified that he was unaware of the prior conversation between Trooper Staskiewic z 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 tha t 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 ques tions 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 h ave been advised of my rights and I understand them. I am willing to answer questions at this time without an attor ney present. I have not received any threats or promises, and I will answe r question s freely and voluntarily." Investigator Lutter asked defendant whether h e unde rstoodthat no promises were being made, nor was anything being offered, i n exchange fo r his statement. Defendant indicated that he understood and signed hi s name directly below the waiver of rights paragraph. (A copy of the "Advice of Rights" for m, bearing defendant's initials and signature, was introduced into evidence at th e suppression hearing as Government Exhibit 2.)-5-

Inves tigator

Lutter then proceeded to question defendant. The interrogatio n la sted 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 defendan t about the m arijuana found in the van. Defendant admitted that he and Johnson wer e transporting the marijuana to Detroit, to a contact named Jim Bob for whom defendant had once previously made a delivery. According to defen dant, he received $500 for the prior delivery, and this time he was to receive $2,000. Investigator Lutter suggested to defe ndant that he cooperate with law enforcement by attempting to complete th e marijuana delivery. Defen dant 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. Repor t and Recommendation at 17-18. Defendant filed objections. Upon review, the district court agreed with the magistrate judge that th e init ial stop and search of the van were constitutionally permissible. However, th e di strict court disagreed with the magistrate judge's conclusion that defendant' s statements to Investigator Lutter were made voluntarily. The district court reasoned:

[T rooper Staskiewicz’s] statements were plainly inducements tha t rendered [defendant's] subsequent statements to Investigator Lutte r 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 ] minda sc enario that controlled everything else [defendant] did and sai d durin g the remainder of his stay at NSP headquarters, including hi s statements to Investigator Lut ter. 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 subseque nt

reading and initialing of a Miranda form could not eradicat e the efficacy of the earlier promise m ade by the friendly, respectful trooper in the cruiser.We note tha t 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 u s to reverse the district court's 4 decisi on, we must hold that the court clearly erred in concluding, for example, that Trooper Staskiewicz's statement s to defendant in the parol car "rendered [defendant's] subsequent statements to Investigator Lutter involuntary," and oth er similar conclusions
-6- Di strict Court Order at 5. The district court also reasoned "[t]o the extent that th e 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 imprope r promis es might perhaps overbear a defendant's will."), cert. denied , 516 U.S. 118 2 (1 996)). Consequently, the district court suppressed defendant's statements t o 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 determinati on of whether defendant acted voluntarily in making the self-incriminating statements, which essentially a mounted to a confession. United States v. Mendoza , 85 F.3d 1347, 1350 (8th Cir. 1996) ( Mendoza ); Unite d State s 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 o f pr obable cause or reasonable suspicion determinations is independent of and withou t deference to district court's determinations while appellate review of findings o f underlying historical facts is for clear error). 4essentially 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).
-7- In considering whether a confession was voluntary, the determinative questio n is whether the confession was extracted by threats, violence, or promises (express o r implied), such that t

he defendant’s will was overborne and his or her capacity for selfdeterminat ionwas 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 thi s 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 St ates v. Meirovitz , 918 F.2d 1376, 1379 (8th Cir. 1990), cert. denied , 502 U.S. 82 9 (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, an d (3) the characteristics of the accused. With respect to the tactic s 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 conducte d by som eone other than the person who made the "promise," and it was no t taperecor ded. Regarding the characteristics of the accused, defendant notes, amon g other things, that he is Af

rican 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

. Defendan t

also maintains that Trooper Staskiewicz made promises that were in fac t false and unfulfillabl e and that Trooper Staskiewicz had neither the knowledge nor the authority to make those promises.-8-

The present case is similar to Mendoza , in which the gover nment appealed from

anorder of the district court suppressing a confession made by one of the defendants in the case (Wheeler). The facts in Mendoza included the followin g. Wheeler had been caught accepting payment for methamphetamine duri ng an undercover operation. After Wheeler was read her Miranda

rights, while en route to the police station, a polic e officer told Wheeler that she would be arrested immediately if she did not cooperate. Upon ar riving at the station, a second officer, Agent Mizell, again advised her of he r Miran darights and told her that she was not under arrest and that she would not b e chargedat that point. Agent Mizell further stated that he could not offer her a deal in exchange f

or her cooperation but that he would inform the prosecutor if she were t o cooperate. After that, Wheeler agreed to cooperate. 85 F.3d at 1348-49. In ruling that Wheeler’s confession was involu ntary, the district court reasoned "[w]ere it not for the fact that [the officer] told de fendant Wheeler that she would be immediately arrested if she did not c ooperate with the officers, I would probably conclude that all of he r stat ements to the officers were voluntary. . . . That threat, which was made whil e 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 revi ew, this court reversed, holding that, based on the totality of the circumstances , "Wheeler’s will w as not overborne by the agents when she decided to cooperate." Id. at 1351. This court found especially persuasive "the fact that Whee ler did not make any incrim inating statements or decide to cooperate until after Agent Mizell had given her Miranda warnings and had told her that she woul d not be arrested or charged that day." Id.
In the present case, as in Mendoz a , defendant was advised of his Miranda rights bef ore his self-incriminating statements were made; he was not subjected to an y physic al or emotional coercion; he was not subjected to a particularly length y interrogation; and neither trickery nor deceit was use d to extract his statements. See id. at 1350. In addition, we note that defendant had pri or dealings with the criminal justice system; he made no incriminating statements to Trooper Staskiewicz in theIndeed, we note that a successful controlled delivery of the marijuana may well 5 have proven beneficial to defenda nt by warranting a sentence reduction for substantial assistance or acceptance of responsibility under the guidelines.
-9- patrol car; Investigator Lutter carefully rev iewed with defendant his Miranda rights and defendant initialed each one on the rights form; and defendant signed his name below the wa iver of rights paragraph. We consider especially compelling the facts tha t Investigator Lutter specifically asked defendant if he understood that no promises were being made nor was anything bein g offered in exchange for defendant’s statement, and defendant signified his under standing 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 les s promises that were false or unfulfillable, we hold that Investigator Lutter’s warning s 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

. Stateddifferently, even if Trooper Staskiewicz's statements in the patrol car could be construed as an inducement, the effe ct was attenuated and cured by subsequent events.
In sum, upon careful ly 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 enfor cement

and statements to the effect that it would be to suspect's benefit t o cooperate are not improperly coercive); United S tates v. Wrice , 954 F.2d 406, 411 (6th Cir. ) (conceding for sake of argument that a promise of lenient treatment may be s o attracti ve as to make a confession involuntary, but suggesting that it must rise to th e level of an irresistible inducement), cert. denied , 504 U.S. 945 (1992).-10- Conclusion

Forth e reasons stated, the decision of the district court to suppress statement s made by defendant is reversed, and the case is remanded for further proceeding s consistent with this opinion.

A true copy.

Attest:

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