USA v. Jermaine Wood

Filing

OPINION and JUDGMENT filed: AFFIRMED, decision for publication. Eric L. Clay (CONCURRING); Ronald Lee Gilman (AUTHORING), and David W. McKeague, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0092p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 11-2429
v.
>
,
JERMAINE BYRON WOODS,
Defendant-Appellant. N
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 1:10-cr-323-1—Paul Lewis Maloney, Chief District Judge.

Argued: January 23, 2013
Decided and Filed: April 3, 2013
Before: CLAY, GILMAN, and McKEAGUE, Circuit Judges.
_________________
COUNSEL
ARGUED: Anne Y. Lee, COVINGTON & BURLING LLP, Washington, D.C., for
Appellant. Mark A. Totten, UNITED STATES ATTORNEY’S OFFICE, Grand Rapids,
Michigan, for Appellee. ON BRIEF: Anne Y. Lee, Elliott Schulder, Mark D. Taticchi,
COVINGTON & BURLING LLP, Washington, D.C., for Appellant. Mark A. Totten,
UNITED STATES ATTORNEY’S OFFICE, Grand Rapids, Michigan, for Appellee.
GILMAN, J., delivered the opinion of the court, in which both CLAY, J., and
McKEAGUE, J., joined. CLAY, J. (pp. 12-13), also delivered a separate concurring
opinion setting forth an alternative basis for the decision.

1

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_________________
OPINION
_________________
RONALD LEE GILMAN, Circuit Judge. Jermaine Byron Woods entered a
conditional guilty plea to the charges of possessing crack cocaine with the intent to
distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(B)(iii), and of possessing a
firearm in furtherance of a drug-trafficking crime, in violation of 18 U.S.C.
§ 924(c)(1)(A). He was sentenced to 108 months in prison.
Woods contends on appeal that his initial incriminating statement, as well as the
discovery of a gun and drugs in his car, were the products of a custodial interrogation
conducted in violation of his Fifth Amendment rights as articulated in Miranda v.
Arizona, 384 U.S. 436 (1966). His conditional guilty plea preserved the right to appeal
the district court’s denial of his motion to suppress the statement and the physical
evidence. We conclude that the arresting officer was not required to give Woods the
Miranda warnings before asking “What is in your pocket?” upon encountering a hard
lump in Woods’s clothing during the course of a lawful patdown incident to the arrest.
We therefore AFFIRM the judgment of the district court.
I. BACKGROUND
Woods’s conviction arose from circumstances surrounding a traffic stop on
June 15, 2010. On that day, Officer Luke Mardigian saw a red Pontiac speeding along
West Edgewood Boulevard in Lansing, Michigan. The officer did not catch up to the
Pontiac in time to pull it over, but pursued the car to a nearby residential parking lot
where it had just been parked. As the occupant (later identified as Woods) began exiting
the car, Officer Mardigian turned on his cruiser’s overhead light and ordered Woods to
re-enter the Pontiac and place his hands on the steering wheel. Woods did not
immediately comply; he would neither put his feet back into the car nor place his hands
on the steering wheel, and he repeatedly reached down toward the passenger side of the

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car. Concerned that Woods might have a weapon inside, Officer Mardigian eventually
drew his gun, which caused Woods to finally comply with the officer’s demands.
Officer Mardigian then lowered his weapon, approached the car, advised Woods that he
had been caught speeding, and asked Woods for identification. Woods provided a false
name and said that he did not have any identification. Officer Mardigian decided at that
point to arrest Woods for the offense of driving without a license. But in light of
Woods’s noncompliant behavior, Officer Mardigian waited for backup before making
the arrest.
Officer Brian Rasdale soon arrived on the scene to provide backup, and the two
officers approached the driver’s side of the car to arrest Woods. Woods reacted by
taking his right hand off the steering wheel and again reached toward the passenger side
of the car. At that point the officers grabbed Woods by the wrists and pulled him out of
the vehicle. They ordered him to get on his knees and then on his abdomen, and when
he lay face down on the ground they handcuffed him behind his back. Officer Mardigian
began to pat Woods down once the officers returned him to a standing position. In the
course of the patdown, Officer Mardigian felt a hard lump in one of Woods’s pockets
and asked him “What is in your pocket?”. Woods responded that he was “bogue,”
which is a street term meaning “in possession of something illegal,” as in weapons or
narcotics. Officer Mardigian then sought to confirm that he had correctly heard the
response, and Woods repeated “I’m bogue.” At that point, Officer Mardigian, who was
concerned that Woods might be carrying a gun, asked him whether the contraband was
drugs or a gun. Woods responded that it was a gun. Officer Mardigian next asked
whether the gun was on Woods’s person or in his car, to which Woods responded that
it was in the car. (The object in Woods’s pocket turned out to be his keys.)
Woods was then subjected to a thorough in-custody search and placed in the back
of Officer Mardigian’s cruiser. After securing Woods in the cruiser, Officer Mardigian
approached the Pontiac. Looking in through the passenger’s side window, the officer
observed what looked like a handgun lying on the floorboard. Officer Mardigian then

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searched the car and recovered the gun, as well as a plastic bag containing crack cocaine.
At no point during the entire episode were the Miranda warnings administered.
Based on the evidence uncovered during the search, the government indicted
Woods in November 2010 on three counts of drugs and firearm charges. Woods moved
to suppress his incriminating “bogue” statement, the drugs, and the gun. At the
conclusion of a hearing held in January 2011, the district court denied the motion from
the bench. Woods pleaded guilty to the charges shortly thereafter, preserving his right
to appeal the denial of his motion to suppress. He has now exercised that right.
II. ANALYSIS
In adjudicating an appeal from the denial of a motion to suppress, we review the
district court’s factual findings under the clear-error standard and its legal conclusions
de novo. United States v. Rodriguez-Suazo, 346 F.3d 637, 643 (6th Cir. 2003). We
consider the evidence in the light most favorable to the government. Id.
Woods contends on appeal, as he did below, that his statement that he was
“bogue” was the product of an unwarned custodial interrogation and therefore
inadmissible under Miranda.

He argues that the gun and the cocaine are also

inadmissible because they were discovered pursuant to his inadmissible incriminating
statement and are therefore “the fruits of a poisonous tree.” Woods does not dispute the
legality of his arrest or of the search incident to the arrest.
The district court rested its denial of Woods’s motion to suppress on the twin
rationales that the statement was obtained lawfully under Terry v. Ohio, 392 U.S. 1
(1968), and that the physical evidence was admissible under the plain-view doctrine.
These rulings, however, conflate the applicable Fifth Amendment analysis with
inapposite Fourth Amendment doctrine, and the government accordingly makes no effort
to defend the district court’s rationales on appeal. Instead, the government bases its
contention that suppression was not warranted on four alternative grounds. They are,
in order of analytical priority, that: (1) the officer’s question “What is in your pocket?”

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did not amount to an “interrogation” at all, so the requirement of reciting the Miranda
warnings was not triggered; (2) even if there was a custodial interrogation and Miranda
was triggered, the failure to recite the Miranda warnings was justified due to a concern
for the officer’s safety; (3) even if Miranda was violated, the physical evidence should
not be suppressed because the Fifth Amendment does not require the suppression of the
physical, nontestimonial fruits of a Miranda violation; and (4) even if Miranda was
violated, the physical evidence should not be suppressed because it would have been
inevitably discovered even without the violation. Because we can resolve this case on
the basis of the first issue, there is no occasion to address the other three.
The threshold issue is whether Woods was subjected to a custodial interrogation.
In the absence of a custodial interrogation, the requirement to recite the Miranda
warnings is not triggered and the analysis is at an end. See, e.g., Miranda, 384 U.S. at
444; Berkemer v. McCarty, 468 U.S. 420, 442 (1984). The government concedes that
Woods was in custody at the time Officer Mardigian asked him “What is in your
pocket?”. So the only remaining issue is whether that question amounted to an
“interrogation” within the meaning of Miranda jurisprudence.
The Supreme Court has held that “the term ‘interrogation’ under Miranda refers
not only to express questioning, but also to any words or actions on the part of the police
(other than those normally attendant to arrest and custody) that the police should know
are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island
v. Innis, 446 U.S. 291, 301 (1980). We conclude that Officer Mardigian’s question in
the present case does not meet this definition because it was an inquiry “normally
attendant to arrest and custody.”
The question “What is in your pocket?” was not an investigatory question or
otherwise calculated to elicit an incriminating response, but rather a natural and
automatic response to the unfolding events during the normal course of an arrest.
Officer Mardigian was lawfully patting down Woods and, while doing so, came across
a hard object in Woods’s pocket that he could not identify. He then asked Woods what

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the object was. To ask “What’s that?” or “What is in your pocket?” in such a situation
is essentially an automatic, reflexive question directed at ascertaining the identity of an
object that is legitimately within the officer’s power to examine as part of a search
incident to an arrest, and as such is “normally attendant” to an arrest. It had nothing to
do with an interrogation as that term is commonly understood.
The answer to Officer Mardigian’s question could have been either innocuous
or incriminating. If the answer were innocuous (“It’s my keys.”), then the probable
effect of the question would have been to spare both Officer Mardigian and Woods the
trouble of a physical search to verify the object’s identity (“Oh, okay, that’s what it feels
like, so I’ll ask you to remove the keys from your pocket.”). And that is the likely
response in the run of cases, which means that prohibiting the question would create an
incentive for a more intrusive physical search. If, on the other hand, the response had
revealed that the object was contraband, it would have revealed nothing more than what
Officer Mardigian would have found anyway as a result of his undisputed right to search
Woods incident to the arrest. To say that Officer Mardigian had the right to physically
go through Woods’s pockets but could not simply ask him “What is in your pocket?”
would be illogical.
To be sure, there will be the unusual case, like this one, where the police ask
“What is in your pocket?” and the suspect responds by divulging incriminating
information that has nothing to do with the question asked. But such a response is not
“reasonably likely.” Woods was asked a simple, nontrick question about what turned
out to be keys in his pocket. That he would respond by volunteering that he had a
weapon in his car is no more reasonably likely than that he would reveal that he was a
drug dealer or a convicted felon. The unexpected and unresponsive reply cannot
retroactively turn a non-interrogation inquiry into an interrogation. See Innis, 446 U.S.
at 301-02 (“[T]he police surely cannot be held accountable for the unforeseeable results
of their words or actions . . . .”); Miranda, 384 U.S. at 478 (“Volunteered statements of
any kind are not barred by the Fifth Amendment and their admissibility is not affected

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by our holding today.”); see also Tolliver v. Sheets, 594 F.3d 900, 917-18 (6th Cir. 2010)
(holding that express questioning following up on volunteered information was not an
interrogation even though the response turned out to be incriminating); United States v.
Lawrence, 952 F.2d 1034, 1036 (8th Cir. 1992) (holding that where the police officer
“did not even mention a gun” and “merely asked a few routine identification questions
necessary for booking purposes,” but the arrestee “volunteered . . . that he had thrown
away a gun while fleeing,” the “statement about the gun did not come in response to
interrogation” and was therefore admissible).
The fact that Officer Mardigian’s question was not reasonably likely to elicit an
incriminating response beyond what he was already entitled to know (i.e., what was the
object in Woods’s pocket) is also important because it clarifies that the question was not
intended to obtain incriminating information. Under Innis, the officer’s intent is not
dispositive in determining whether certain conduct amounts to custodial interrogation.
See 446 U.S. at 301. But “[t]his is not to say that the intent of the police is irrelevant,
for it may well have a bearing on whether the police should have known that their words
or actions were reasonably likely to evoke an incriminating response.” Id. at 301 n.7.
Indeed, the Supreme Court has found that certain conduct did not amount to
interrogation partly on the basis that it was not designed or intended to elicit
incriminating information. See id. at 303 n.9 (noting that “[t]he record in no way
suggests that the officers’ remarks were designed to elicit a response” (emphasis in
original) and finding that “[i]t is significant that the trial judge, after hearing the officers’
testimony, concluded that [the officers’ remark] was ‘entirely understandable.’”);
Arizona v. Mauro, 481 U.S. 520, 528 (1987) (holding that the police department’s
allowing the suspect to speak to his wife in the presence of a police officer with a tape
recorder did not amount to an interrogation, in part because “[t]here is no evidence that
the officers sent Mrs. Mauro in to see her husband for the purpose of eliciting
incriminating statements”). In the present case, the fact that the question “What is in
your pocket?” was not intended to elicit incriminating information strengthens the

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inference that the question was normally attendant to Woods’s arrest and therefore did
not constitute custodial interrogation.
We believe that our analysis is also consistent with common sense. If we were
to hold that the question “What is in your pocket?” amounted to an interrogation such
as to require Miranda warnings, we would be saying, in effect, that the police were
acting lawfully when they drew a gun on Woods, dragged him out of his car by the
wrists, ordered him to the ground, cuffed his hands behind his back, and patted him
down; but the moment that they asked “What is in your pocket?”, they went beyond the
bounds of constitutionally permissible action. The Fifth Amendment does not require
such an impractical regime of stilted logic.
Woods, however, resists the conclusion that Officer Mardigian’s question did not
amount to an interrogation, insisting that the Supreme Court’s definition of interrogation
is any “questioning initiated by law enforcement officers.” Miranda, 384 U.S. at 444.
According to Woods’s Brief,
[t]he recognized exception [to the definition of interrogation] for
statements or conduct that are “normally attendant to arrest and custody”
[quoting Innis, 446 U.S. at 301] applies not to express questioning as
occurred here, but only to the expanded category of the ‘functional
equivalent of express questioning.’ . . . We have found no case, and the
government cites none, in which that language is used to exempt express
questions.
To the contrary, we have found several post-Innis Supreme Court decisions
holding that, under the circumstances, law enforcement’s express questioning of a person
in custody did not amount to an interrogation. One such case is South Dakota v. Neville,
459 U.S. 553 (1983), where the Supreme Court held:
In the context of an arrest for driving while intoxicated, a police inquiry
of whether the suspect will take a blood-alcohol test is not an
interrogation within the meaning of Miranda. As we stated in Rhode
Island v. Innis, 446 U.S. 291, 301 (1980), police words or actions

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“normally attendant to arrest and custody” do not constitute
interrogation.
Id. at 564 n.15.
Likewise, in Illinois v. Perkins, 496 U.S. 292 (1990), the Court held that an
undercover police officer’s questioning of a prison inmate did not constitute an
interrogation:
The state court here mistakenly assumed that because the suspect was in
custody, no undercover questioning could take place. When the suspect
has no reason to think that the listeners have official power over him, it
should not be assumed that his words are motivated by the reaction he
expects from his listeners. When the agent carries neither badge nor gun
and wears not police blue, but the same prison gray as the suspect, there
is no interplay between police interrogation and police custody.
Id. at 297 (emphasis in original) (brackets and internal quotation marks omitted).
Finally, in Pennsylvania v. Muniz, 496 U.S. 582 (1990), the Court held that the
defendant’s incriminating statements in response to the police officer’s question as to
whether the defendant understood the instructions for certain sobriety tests was not the
product of custodial interrogation:
The dialogue also contained limited and carefully worded inquiries as to
whether Muniz understood those instructions, but these focused inquiries
were necessarily “attendant to” [quoting Innis, 446 U.S. at 301] the
police procedure held by the court to be legitimate. Hence, Muniz’s
incriminating utterances during this phase of the videotaped proceedings
were “voluntary” in the sense that they were not elicited in response to
custodial interrogation.
Id. at 603-04. The Muniz Court also concluded that the defendant’s responses to the
officer’s question as to whether he understood the nature of a breathalyzer test and its
legal consequences, and whether he was willing to submit to the test, “were not
prompted by an interrogation within the meaning of Miranda.” Id. at 604-05.

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In each of the above cases, the Supreme Court held that the express questioning
of a suspect in custody did not amount to an interrogation. And in Neville and Muniz,
the Court specifically relied on Innis’s definitional exclusion of conduct “normally
attendant to arrest and custody.” Woods’s argument that any express questioning of a
suspect in custody amounts to an interrogation, and that the “normally attendant”
exclusion does not apply to express questions, is therefore conclusively refuted by the
Court’s caselaw.
Nor is there any reason to believe that the exclusion of certain express questions
from the definition of interrogation is limited to the particular factual circumstances of
Neville, Perkins, and Muniz. Suppose, for example, that an officer sees that the
handcuffed suspect is grimacing in pain and asks “Are you okay?”, to which the suspect
responds “I killed her.” Such a response—which, just like the response in the present
case, would be an unexpected and unresponsive answer to the question posed—would
not be the product of custodial interrogation and would therefore be admissible. Cf.
Harryman v. Estelle, 616 F.2d 870, 879 (5th Cir. 1980) (en banc) (Hill, J., concurring)
(“Thus, if an officer responds to a loud noise by saying ‘What’s that?’, I suggest that an
answer such as ‘I dropped my pistol’ would be admissible in a prosecution for unlawful
possession of a firearm.”); id. at 880 (Reavley, J., concurring) (suggesting that questions
such as “Can you hear me?”, “What is the matter?”, or “Where are your glasses?” do not
amount to custodial interrogation).
Indeed, Woods’s fixation on whether Officer Mardigian’s statement was an
express question is misdirected because it elevates form over substance in precisely the
way that the Supreme Court cautioned against in Innis. In holding that a custodial
interrogation may result from statements or conduct other than express questioning, the
Court reasoned that “[t]o limit the ambit of Miranda to express questioning would place
a premium on the ingenuity of the police to devise methods of indirect interrogation,
rather than to implement the plain mandate of Miranda.” Innis, 446 U.S. at 299 n.3. So
the test is not whether the alleged interrogation is phrased in the form of a question or

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a declarative sentence, but whether the conduct implicates the concerns with police
“compulsion” and “coercion” that animated the Miranda decision. Id. at 299-301. The
proper implementation of Innis, Mauro, Neville, Perkins, and Muniz thus requires us to
determine whether the words or actions on the part of the police are those normally
attendant to arrest and custody, and whether they give rise to the concerns about police
coercion that animated the Miranda decision. It does not require us to attach talismanic
importance to whether the words are punctuated by a question mark.
In short, we hold that, under the circumstances of the present case, the question
“What is in your pocket?” did not amount to a custodial interrogation. Officer
Mardigian was therefore not required to recite the Miranda warnings prior to posing that
question. And because we hold that Officer Mardigian’s initial question did not
constitute a custodial interrogation and that Woods’s response that he was “bogue” was
admissible, we need not decide whether the officer’s subsequent questions—as to
whether the contraband was drugs or a gun and whether it was on Woods’s person or in
his car—constituted a custodial interrogation. Those subsequent questions do not affect
the outcome of this case because, following Woods’s volunteered statement that he was
in possession of contraband, the car would have inevitably been searched and the
evidence would have come to light even in the absence of any further questioning. See,
e.g., United States v. Alexander, 540 F.3d 494, 504 (6th Cir. 2008) (holding that the
evidence in question was admissible despite the failure to provide Miranda warnings
because it would have been inevitably discovered even in the absence of the defendant’s
confession).
III. CONCLUSION
For all of the reasons set forth above, we AFFIRM the judgment of the district
court.

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_________________
CONCURRANCE
_________________
CLAY, Circuit Judge, concurring. The majority rejects Defendant’s Miranda
argument because it finds that the question asked by the police officer, “What is in your
pocket?” constituted a proper inquiry incident to an arrest, and did not constitute
custodial interrogation for Miranda purposes. Although I agree with the majority’s
reasoning, I believe that the court below could have upheld the lawfulness of the search
based upon either the majority’s rationale, or because the officer’s inquiry was
appropriate based upon the need to insure the officer’s safety.
“[W]hen officers ask questions ‘necessary to secure their own safety or the safety
of the public’ as opposed to ‘questions designed solely to elicit testimonial evidence
from a suspect,’ they do not need to provide the warnings required by Miranda.” United
States v. Williams, 483 F.3d 425, 428 (6th Cir. 2007) (quoting New York v. Quarles, 467
U.S. 649, 659 (1984)). This Court and seven of our sister circuits have already found
that similar questions, in anticipation of a pat down, are permissible under the publicsafety exception where the officer has a reasonable belief that there may be a weapon on
the defendant’s person. See United States v. Reyes, 353 F.3d 148, 152–53 (2d Cir.
2003) (collecting cases); see also, e.g., United States v. Mohammed, No. 10-4145, 2012
WL 4465626, at *12 (6th Cir. Sept. 28, 2012) (unpublished) (applying exception where
the handcuffed defendant was asked whether he had any weapons, drugs, or sharp
objects on him); United States v. Lackey, 334 F.3d 1224, 1227–28 (10th Cir. 2003)
(applying exception where the handcuffed defendant was asked, “Do you have any guns
or sharp objects on you?”). Similarly, the officer’s question in this case was proper
because the question is excepted from Miranda’s requirements due to public safety
concerns. See Quarles, 467 U.S. at 659.

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Both the non-coercive nature of the question asked, incident to the arrest, and the
need for officer safety, support the conclusion that suppression based on Miranda was
not warranted in this case.