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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-12258
Non-Argument Calendar
________________________
D.C. Docket No. 5:17-cr-00017-RH-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
ARKELIUS CANTRELL GRAY,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(June 7, 2019)
Before TJOFLAT, WILLIAM PRYOR, and GRANT, Circuit Judges.
PER CURIAM:
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Arkelius Cantrell Gray was convicted by a jury on two counts of drug and
firearm offenses. See 18 U.S.C. §§ 922(g)(1), 924(a)(2); 21 U.S.C. §§ 841(a)(1),
(b)(1)(B)(viii), (b)(1)(D).
Before trial, Gray filed a motion to suppress incriminating statements that he
made to Florida Highway Patrolman Jonathan Gentry (the “Primary Officer”).
The Primary Officer lawfully pulled over a car that Gray occupied along
with his girlfriend (the “Girlfriend”) and another occupant. After effecting the
stop, the Primary Officer smelled marijuana as he interacted with the car’s
occupants. He then lawfully handcuffed Gray and the other occupant and lawfully
searched the car’s trunk. Before conducting the search, however, the Primary
Officer called for backup and waited until that backup, Deputy Sheriff Wade Boan
(the “Secondary Officer”), reported to the scene.
During the search, the Primary Officer recovered from the car’s trunk three
items—marijuana, pills, and a firearm—and placed those items—one at a time—
on the car’s roof. Gray then made various incriminating statements in two separate
intervals, which we refer to as the first set of statements and the second set of
statements.
The District Court conducted a pre-trial suppression hearing. Gray
contended that both sets of statements were elicited through questioning and that
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he was never read his Miranda rights. 1 The Government conceded that the
Primary Officer eventually questioned Gray. It asserted, however, that (1) only the
second set of statements was the product of questioning and (2) those statements
were made only after the Primary Officer had read Gray his Miranda rights. At the
hearing, the Court received testimonial evidence from various persons, including
the Primary Officer and the Secondary Officer. It also received documentary
evidence in the form of the officers’ police reports and of dashboard-camera
footage from the Primary Officer’s patrol car. The Court denied Gray’s motion to
suppress.
After the trial, Gray renewed his motion to suppress, based largely on
inconsistencies between the Secondary Officer’s testimony at the suppression
hearing and his testimony at trial. The District Court denied that motion, too.
We affirm the District Court’s denial of Gray’s renewed motion to suppress
because the Court’s factual findings, which are the only issues in dispute, were not
clearly erroneous. Because we write for the parties, we set out facts only as they
are needed to support our analysis.
I.
A.
1
Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602 (1966).
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The Fifth Amendment guarantees that no person “shall be compelled in any
criminal case to be a witness against himself.” U.S. Const. amend. V. 2 In
Miranda v. Arizona,
384 U.S. 436,
86 S. Ct. 1602 (1966), the Supreme Court held
that “the prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the privilege against self-
incrimination.”
Id. at 444, 86 S. Ct. at 1612. These safeguards normally require
that “[p]rior to any questioning, the person must be warned that he has a right to
remain silent, that any statement he does make may be used as evidence against
him, and that he has a right to the presence of an attorney, either retained or
appointed.”
Id. These rights are known as “Miranda rights,” and a person to
whom the rights are read is said to be “Mirandized.” The Government bears the
burden of proving compliance with Miranda by a preponderance of the evidence.
Lego v. Twomey,
404 U.S. 477, 486,
92 S. Ct. 619, 625 (1972).
B.
A motion to suppress evidence obtained in violation of Miranda involves
questions of both law and fact, United States v. Shabazz,
887 F.3d 1204, 1213
(11th Cir. 2018), but the issues here—when Gray was questioned and whether he
2
The right against self-incrimination applies to the States through the Fourteenth
Amendment. Malloy v. Hogan,
378 U.S. 1, 3,
84 S. Ct. 1489, 1491 (1964).
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was Mirandized—are purely factual. We review a district court’s factual findings
for clear error.
Id. In so doing, we “construe all facts ‘in the light most favorable
to the party prevailing below,’ which, in this appeal, is the government.”
Id.
(quoting United States v. Johnson,
777 F.3d 1270, 1274 (11th Cir. 2015)). To
reverse, we must be left with the “definite and firm conviction that a mistake has
been committed.” United States v. Thomas,
818 F.3d 1230, 1239 (11th Cir. 2016)
(quoting United States v. Rothenberg,
610 F.3d 621, 624 (11th Cir. 2010)). “Our
review is not moored to the evidence presented at the suppression hearing; we are
free to look at the whole record.” United States v. Campbell,
912 F.3d 1340, 1349
(11th Cir. 2019).
II.
Miranda demands not the suppression of all incriminating statements, only
those that were made by a person in “custody” in response to “express questioning
or its functional equivalent.” See Rhode Island v. Innis,
446 U.S. 291, 300–01,
100
S. Ct. 1682, 1689 (1980). The Government concedes that Gray, who was
handcuffed on the side of the road when both sets of statements were made, was in
custody.
As explained, this appeal entails two sets of statements, those made before
Gray was allegedly Mirandized and those made after. We review each set of
statements in turn.
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A.
When the Primary Officer removed the marijuana, pills, and firearm from
the car’s trunk, he placed those items on the car’s roof. Gray asserted ownership of
each item after it was placed on the roof.
Under Miranda, “[v]olunteered statements of any kind are not barred by the
Fifth Amendment.”
Id. at 300, 100 S. Ct. at 1689 (quoting
Miranda, 384 U.S. at
478, 86 S. Ct. at 1630).
The only issue on appeal regarding the first set of statements is whether the
Primary Officer asked Gray any questions to elicit his assertions of ownership.3
We find no clear error with the District Court’s finding that the first set of
statements was not the product of questioning. The Primary Officer testified at the
suppression hearing and at trial that he did not ask Gray any questions when he
placed the items on the car’s roof. The Secondary Officer testified that neither the
Primary Officer nor he asked Gray any questions before Gray claimed the three
items as his. The record contains a single piece of contrary evidence that the
3
Gray offers a half-hearted argument that the Primary Officer elicited Gray’s statements
through non-verbal interrogation. See, e.g.,
Innis, 446 U.S. at 301, 100 S. Ct. at 1689–90 (“[T]he
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.” (footnotes omitted)). But the only fact that he marshals in support of that argument—
that the Primary Officer placed the items on the car’s roof—does not amount to interrogation.
See United States v. Glen-Archila,
677 F.2d 809, 815 (11th Cir. 1982) (holding that a defendant
was not subjected to Miranda interrogation when, among other things, law-enforcement officers
told him they knew that drugs were on board his ship).
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Primary Officer questioned Gray during this sequence of events. At trial, defense
counsel asked the Girlfriend about the marijuana. Immediately after the Girlfriend
testified that Gray claimed ownership of the marijuana, the following exchange
took place between her and defense counsel:
Q: When the defendant stated, “That’s mine,” was that in response to
a question the officer asked?
A: No, he didn’t ask a question—oh, yeah, he did. He asked who it
belonged to.
This mid-sentence about-face was the only evidence presented either at the
suppression hearing or at trial that the Primary Officer questioned Gray as he
placed the three items on the car’s roof.
The District Court did not commit clear error when it credited the Primary
Officer’s and the Secondary Officer’s unequivocal testimony over the Girlfriend’s
wavering testimony. Cf.
Shabazz, 887 F.3d at 1215 (“We accord great deference to
a district court’s credibility determinations.” (alteration omitted) (quoting United
States v. Gregg,
179 F.3d 1312, 1316 (11th Cir. 1999))).
We now address the second set of statements, which turns out to be a
thornier issue.
B.
After Gray asserted ownership over the three items, he made further
incriminating statements. He (again) asserted ownership of the marijuana, pills
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(which he stated were ecstasy), and firearm; he estimated the weight of the
marijuana and the pill count of the ecstasy; he stated that the firearm was for self-
defense; and he indicated that he had recently been released from prison.
The Government concedes that the Primary Officer questioned Gray to elicit
this second set of statements but insists that Gray was Mirandized before any
questions were asked. Gray disputes that he was ever Mirandized.
We summarize the evidence presented at the suppression hearing and at trial.
We then analyze whether, considering this evidence, the District Court’s factual
finding that Gray had been Mirandized was clearly erroneous.
1.
The Primary Officer testified at both the suppression hearing and at trial that
he Mirandized Gray before questioning him. The Primary Officer’s written arrest
reports memorialize the same. If that were it, affirming the District Court’s factual
findings would be a cakewalk. After all, we do not ordinarily disturb a court’s
resolution of a he said, she said. See
id. (“[W]here ‘the officers’ testimonies are in
direct conflict with the defendant’s testimony, . . . a “trial judge’s choice of whom
to believe is conclusive on the appellate court unless the judge credits exceedingly
improbable testimony.”’” (alterations omitted) (quoting United States v. Ramirez-
Chilel,
289 F.3d 744, 749 (11th Cir. 2002))). But as described below, the record
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contains other evidence, evidence that renders the Primary Officer’s testimony
suspicious.
First, evidence pulled from the Primary Officer’s dashboard camera and on-
body microphone cast doubt on his testimony. When an officer activates his patrol
car’s cruiser lights, two things immediately happen. First, the dashboard camera
begins recording video. And second, the officer’s microphone, attached to his
tactical vest, begins recording audio. Or so it should. Here, the dashboard camera
did not capture the moment when the Primary Officer supposedly Mirandized
Gray. We see the Primary Officer approach a man on the boundary of the screen
and reach near his right chest pocket as he does so. The Primary Officer then
directs the man completely off screen. The Primary Officer reemerges onto the
screen about thirty seconds later with an item in his hand. Finally, about fifteen
seconds later, he places a card into his right chest pocket. The viewer, curious as
to what transpired off screen, might turn to the captured audio to listen to what was
said. But the viewer would be sorely disappointed: The microphone
malfunctioned, with no indication in the record as to why.
Second, the Secondary Officer offered inconsistent testimony on whether
Gray had been Mirandized. At the suppression hearing, the Secondary Officer
testified that he heard the Primary Officer Mirandize Gray. This testimony was
unequivocal:
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Q: Now, I asked you this morning whether you observed any Miranda
rights or you heard any Miranda rights being read.
A: Yes, sir.
Q: Were you in the vicinity at that point?
A: I remember him reading the rights. If my memory serves me
correctly, I was searching the vehicle behind [the Primary Officer].
He had asked me—he had already found everything, everything was
done. He said, “Just go behind me and make sure I didn’t miss
anything.” I was in the backseat of the car looking through it. I
remember hearing it, but I can’t tell you specifically where I was
standing or anything of that nature. I remember it, but just don’t
remember where I was.
At trial, however, the Secondary Officer told a wholly different story:
Q: [I]n terms of the search, did you also search the vehicle?
A: I did. After everything was conducted with [the Primary Officer],
he asked me to research the vehicle. He said, “Just go back through it
and make sure I didn’t miss anything.” And briefly I went back
through the vehicle; yes, sir.
Q: And while you were in the vehicle, could you hear the
conversation that [the Primary Officer] was having with the defendant
at that time?
A: I did not; no sir. The traffic going by—that was spring break
traffic on 231—and from where I was, the driver’s side mainly was
where I did most of the search, I couldn’t hear.
These pieces of evidence cast doubt on the Primary Officer’s testimony. We
find it troubling that the Primary Officer ushered Gray off screen, where the
dashboard camera would not capture their interaction. We find it troubling that the
microphone—which presumably would have conclusively resolved the factual
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question before us and which was in the Primary Officer’s exclusive control—
failed to function. And we find it troubling that the Secondary Officer testified that
he heard Gray be Mirandized only to later testify that he could not in fact hear
anything because the traffic was so loud.
But as troubling as this evidence is, “troubling” is not the legal standard.
Rather, we review a district court’s factual findings for clear error.
Shabazz, 887
F.3d at 1213.
2.
The District Court, after considering the entire record, reached a thoughtful
conclusion that we cannot conclude was clearly erroneous.
The District Court chose to credit the Primary Officer’s testimony over
Gray’s testimony and reconciled the Primary Officer’s testimony with the video
footage. The Primary Officer testified during the suppression hearing that he keeps
a card imprinted with the Miranda rights (a “Miranda card”) in his right chest
pocket. Indeed, he pulled a Miranda card out of his pocket during the hearing.
The Court found that the Primary Officer Mirandized Gray during the thirty-
second interval when the two were off camera. The Court reasoned that thirty
seconds is about the amount of time required to read a defendant his Miranda
rights. “[T]he most likely explanation for the scenes on the video,” the Court
found, was that the Primary Officer
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took the Miranda card from his pocket . . ., read it to the defendant
within the next 30 seconds, reached up to put it away . . . but did not
get it into the pocket, carried the card as he walked over to look at or
do something at the car, then turned toward the camera and put the
card away . . . .
The Girlfriend’s testimony further supports this finding. She testified at trial that
she heard the Primary Officer say to Gray, “Because you don’t want to shut your
mouth, let me go ahead and read you your rights.” The testimony allowed the
Court to infer that because the Primary Officer said he would Mirandize Gray, he
in fact did so.
The Secondary Officer’s initial testimony is not necessary for us to affirm
the District Court’s finding that Gray was Mirandized. This is so because in a
credibility face-off between the Primary Officer and Gray, the Court was free to
select Gray as the winner without other corroborating evidence. See
id. at 1216
(“The absence of corroborating evidence, standing alone, does not permit us to
reverse the credibility determination by the finder of fact.”).4
4
Though the Secondary Officer’s inconsistent testimony does not factor into our review,
it is not for the reason the Government proffers. The District Court acknowledged the
inconsistency in the Secondary Officer’s testimony and chose to ignore all aspects of his
testimony in making its finding. The Government asserts that whenever a district court
discredits all inconsistent testimony, the testimony plays no role in our clear-error analysis. If
only it were so clear cut.
The significance of “internally inconsistent or implausible” testimony, see Anderson v.
Bessemer City,
470 U.S. 564, 575,
105 S. Ct. 1504, 1512 (1985), like the Secondary Officer’s,
turns on context. Sometimes, as is the case here, the inconsistency simply prevents any
meaningful inference from being drawn from the testimony at all. The testimony disappears
from the evidentiary picture entirely. Other times, however, the fact of inconsistency is itself
evidence.
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At the end of the day, the District Court determined that the Primary Officer
was more credible than Gray and found, using the video footage and the
Girlfriend’s testimony, that Gray was Mirandized before he was questioned.
Because the Court adopted a “permissible view[] of the evidence,” its finding was
not clearly erroneous. See Easley v. Cromartie,
532 U.S. 234, 259,
121 S. Ct.
1452, 1471 (2001) (quoting Anderson v. Bessemer City,
470 U.S. 564, 574, 105 S.
Ct. 1504, 1511 (1985)).
III.
For these reasons, the District Court’s denial of Gray’s renewed motion to
suppress his statements is AFFIRMED.
SO ORDERED.
Say, for example, that Gray had presented evidence at his suppression hearing or at trial
that the Primary Officer had directed the Secondary Officer to falsely testify that he heard the
Primary Officer Mirandize Gray. The fact that the Secondary Officer testified one way at the
suppression hearing and another way at trial would bolster the evidence that the Primary Officer
solicited the perjured testimony as a means of covering up the fact that he did not in fact
Mirandize Gray. In that evidentiary context, we could not ignore the Secondary Officer’s
inconsistent testimony simply because the District Court discredited all his testimony. Rather,
we would be forced to analyze whether the Court’s finding was clearly erroneous in light of the
inconsistency.
Here, Gray does not argue that we should draw any inference from the inconsistent
testimony. For this reason, the Secondary Officer’s testimony does not factor into our clear-error
analysis.
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