Wednesday, June 26, 2019

Officer's pre-Miranda comment to defendant that his girlfriend would also be charged criminally was not the functional equivalent of interrogation which would warrant suppression of defendant's inculpatory response.

In United States v. Tyrone Greene, (No.18-2923)(June 25, 2019) the Court of Appeals through an opinion by Judge Hardiman affirmed the denial of the defendant's motion to suppression of evidence.

Greene and his girlfriend driving a van which was stopped for operating without headlights on.  When stopped the driver, Greene's girlfriend, could not produce a valid driver's license, proof of insurance, nor vehicle registration.  While speaking to her the officer smelled unburnt marijuana.  Then Greene acted "suspiciously" - he stood up and sat down in the passenger seat as if he was going to exit the vehicle.  He also reached for his waistband.  The officer removed him from the vehicle and patted him down.  When he did so the officer immediately recognized a package of marijuana based on plain feel alone, with no manipulation.  Greene was then placed under arrest, the van was searched, and found bullets were found.  Greene, was then searched again because he walking "unusually."  A firearm was recovered from him. At the station, the officer remarked that Greene's girlfriend would be charged as well for traffic and drug violations.  Greene then said he would "take the hit" for the gun and bullets so his girlfriend could be spared.

Greene was indicted on 922(g)(1).  Before trial, he moved to suppress both the seizure of the gun and bullets as well as his inculpatory statement.  The opinion focused its analysis on the Miranda issue only.  In that respect, Greene argued the officer's comment about his girlfriend's criminal exposure was the functional equivalent of an interrogated done pre-Miranda to elicit his statement.  In effect the officer's statement was coercive and warranted suppression.  The Court of Appeals disagreed, finding the officer's remark was not the functional equivalent of an interrogation, that Greene's response to the comment was unforeseeable, and it was gratuitous.  The Court also noted no  evidence that Greene was upset or overwrought or that the circumstances created coercive influence on him.  The Court affirmed the district court's denial.

As for the second suppression argument related to the seizure of the gun and bullets, the Court quickly dismissed based on the plain feel doctrine.

The panel was Hardiman, Porter, and Cowen.

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