United States v. Kimbrough ( 2007 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellant,
v.  No. 06-4341
DAMON KIMBROUGH,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(1:05-cr-00363-AMD)
Argued: October 27, 2006
Decided: February 16, 2007
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Reversed and remanded by published opinion. Judge Duncan wrote
the opinion, in which Judge Wilkinson and Judge Gregory joined.
COUNSEL
ARGUED: Richard Charles Kay, Assistant United States Attorney,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellant. Joanna Beth Silver, Assistant Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Bal-
timore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein,
United States Attorney, Baltimore, Maryland, for Appellant. James
Wyda, Federal Public Defender, Baltimore, Maryland, for Appellee.
2 UNITED STATES v. KIMBROUGH
OPINION
DUNCAN, Circuit Judge:
This appeal examines the extent to which the government may rely
at trial on statements elicited by a third person—here, a suspect’s
mother—prior to police giving the suspect a valid warning under
Miranda v. Arizona, 384 U.S. 436 (1966).
The United States appeals the district court’s order suppressing
statements made by Damon Kimbrough ("Appellee") in response to
questions asked by his mother. Appellee had been arrested, but he had
not yet been adequately advised of his Miranda rights. Appellee’s
responses to his mother’s questions in the presence of police led to
the discovery of a firearm.1 Because Appellee’s mother spontaneously
asked the questions at issue without direction by, or even a tacit
understanding with, the police officers, and because the officers’
actions did not constitute interrogation under Miranda and its prog-
eny, we find the Fifth Amendment not offended. We therefore
reverse.
I.
On May 28, 2005, Baltimore City Police Officers Robert Himes
and Earl Thompson received an anonymous tip that two men were
selling drugs on the front steps of 1939 Hollins Street.2 The officers
1
The discovered firearm and other physical evidence was not sup-
pressed, both because the district court found no Fourth Amendment vio-
lation and because physical evidence discovered as a result of a Miranda
violation is admissible. See United States v. Patane, 542 U.S. 630, 636-
37 (2004); cf. Oregon v. Elstad, 470 U.S. 298, 308-09 (1985) (holding
uncoerced statements elicited after Miranda warnings admissible even
where confession is first given prior to such warnings); Michigan v.
Tucker, 417 U.S. 433, 446 (1974) (declining to suppress testimony of
third-party witness whose identity was discovered through a suspect’s
statement given without the benefit of Miranda warnings).
2
On that date, 1939 Hollins Street was the home of Appellee; his
mother, Yolanda Kimbrough; his uncle, Tony Kimbrough; his sister
Nikita Kimbrough; and Nikita Kimbrough’s young son.
UNITED STATES v. KIMBROUGH 3
parked nearby and saw two men who matched the description pro-
vided by the anonymous informant sitting on the front steps. The
policemen also saw the men conduct an apparent drug transaction
with the occupants of a vehicle.
The officers approached the two men and asked if they resided
there. The men replied that they were visiting a friend. Officer Himes
knocked on the door of the house, and Tony Kimbrough, Appellee’s
uncle, answered. He stated that the house belonged to Yolanda Kim-
brough ("Ms. Kimbrough").
Ms. Kimbrough insisted there were no drugs in her home. She
allowed the officers to enter and at some point signed a written con-
sent form memorializing her authorization.3 Upon entering the house,
Officer Thompson heard a disturbance in the basement and both offi-
cers proceeded downstairs. The officers found Appellee sitting on a
bed, apparently dividing cocaine on a plate with a razor blade; they
then arrested and handcuffed him. Appellee was cooperative through-
out.
While Officer Thompson took Appellee upstairs, Officer Himes
called Ms. Kimbrough down to the basement and showed her what he
had found. Ms. Kimbrough appeared genuinely "shocked and sur-
prised" and asked to speak to her son. J.A. 31. When Appellee was
brought back downstairs, his mother began asking him such questions
as "[W]hat is this[?]" and "[I]s there anything down here?" J.A. 32-
33. Officer Himes then attempted to recite Miranda warnings from
memory to Appellee, who agreed to speak without a lawyer present.
Appellee responded to questions posed by his mother while look-
ing at Officer Himes. When Ms. Kimbrough asked if there was any-
thing else down in the basement, Appellee replied that there was a
gun under the cushion of the couch. Officer Himes recovered the gun,
3
The district court specifically found that Ms. Kimbrough, Appellee’s
mother and the lessee of the home, consented to the officers’ entry into
the house and to their subsequent search. Appellee disputes this finding
but did not cross-appeal; therefore, the issue of her consent is not before
us.
4 UNITED STATES v. KIMBROUGH
and then asked some follow-up questions that led to the discovery of
more cocaine and cocaine-packaging material.
Appellee was arrested and charged with (1) possession of a stolen
firearm in violation of 18 U.S.C. § 922(g); (2) possession of a stolen
firearm in violation of 21 U.S.C. § 922(j); (3) possession of cocaine
with intent to distribute in violation of 21 U.S.C. § 841; and (4) pos-
session of a firearm in relation to a drug trafficking crime in violation
of 18 U.S.C. § 924(c).
Prior to trial, Appellee moved to suppress the statements made sub-
sequent to his arrest. At the hearing on the motion, the district court
found that the attempted Miranda warnings were ineffective, see J.A.
204-05, and the government does not now contest this finding. On
appeal, the government further concedes that the follow-up questions
posed by Officer Himes after Appellee revealed the location of the
gun constituted custodial interrogation. The government therefore
does not challenge the suppression of Appellee’s responses to such
questions.
The government nonetheless argued at the hearing before the dis-
trict court that Miranda warnings were not required because Ms.
Kimbrough, and not the police officers, asked the questions. The dis-
trict court, however, rejected this characterization:
The court finds and concludes that Miss Kimbrough’s
involvement in questioning her son was the equivalent of
official custodial interrogation. It was obvious to Detective
Himes that Miss Kimbrough being upset was really coming
after her son, was angry at him, and that he would simply,
as he put it, quite candidly in his testimony, she did his
questioning for him, that is, Miss Kimbrough did the ques-
tioning that [O]fficer Himes otherwise would have done. So
this was official interrogation.
J.A. 205. Because of its conclusion that Ms. Kimbrough’s involve-
ment in questioning4 "was the equivalent of official custodial interro-
4
Appellee argues in his brief that the district court never concluded that
Ms. Kimbrough, and not Officer Himes, asked the question that led to
UNITED STATES v. KIMBROUGH 5
gation," J.A. 205, the district court granted Appellee’s motion to
suppress the statements he made in response to Ms. Kimbrough.5 For
the reasons explained below, we reverse.
II.
In considering an appeal of a suppression order, "[w]e review the
district court’s factual findings for clear error and its legal determina-
tions de novo." United States v. Jarrett, 338 F.3d 339, 343-44 (4th
Cir. 2003). We view the facts in the light most favorable to the pre-
vailing party below. See United States v. Ellyson, 326 F.3d 522, 527
(4th Cir. 2003).
the discovery of the gun. Appellee’s Br. at 7-9. Indeed, the district court
indicates some confusion on this point: "I don’t recall from the testimony
specifically is [sic] whether it was Officer Himes’s question specifically
that led to the discovery of the gun, but I think it was Miss Kimbrough’s
question or Officer Himes’s question, that led to the additional drugs and
the vials and what have you . . . ." J.A. 205-06.
The government responds that because the district court credited the
government witnesses, J.A. 195, 201-02, and indicated it found the
defense witnesses "incredible on the material points," J.A. 206, the only
conclusion supported by the record is that Ms. Kimbrough asked the
question that led to the discovery of the gun, because that was the testi-
mony of all of the credible witnesses on that point. Reply Br. at 2-4; see
also J.A. 189 (discussion by the district court of the so-called "triangula-
tion" by which Ms. Kimbrough asked the question, Appellee pointed to
the sofa where the gun was concealed, and Officer Himes recovered the
gun).
Appellee’s counsel, however, did not press this issue at oral argument.
Even viewing the facts in the light most favorable to Appellee, we
assume, given the district court’s language—"I don’t recall from the tes-
timony . . ." rather than "It was unclear from the testimony . . ."—that
Ms. Kimbrough asked the question that led to the discovery of the gun,
and Officer Himes asked the questions subsequent to that.
5
Because the physical evidence is admissible in any event, the state-
ments’ admission may be of limited practical import. To be sure, the
statements link Appellee to the firearm, but even without them a fact-
finder could infer Appellee’s possession of the gun from its presence in
the basement in which he lived. Our task, however, is to pass not on the
evidentiary value of the statements but rather on their admissibility.
6 UNITED STATES v. KIMBROUGH
In Miranda, the Supreme Court held that because of the coercion
inherent in a custodial setting, before beginning interrogation police
must advise suspects of their Fifth Amendment right to remain silent.
384 U.S. at 444. The Supreme Court made clear in Miranda that "[b]y
custodial interrogation, [it] mean[t] questioning initiated by law
enforcement officers after a person has been taken into custody or oth-
erwise deprived of his freedom of action in any significant way." Id.(emphasis added). If the suspect is not subjected to "official" interro-
gation, however, the Fifth Amendment is not implicated. See Illinois
v. Perkins, 496 U.S. 292, 297 (1990) ("It is the premise of Miranda
that the danger of coercion results from the interaction of custody and
official interrogation.").
Moreover, beyond actual questioning by the police, the Supreme
Court has recognized that certain conduct also implicates Miranda.
Rhode Island v. Innis, 446 U.S. 291, 301 (1980) (emphasis added).
Thus, the Supreme Court has broadened the concept of interrogation
to include either "express questioning or its functional equivalent." Id.
at 300-01. In Innis, the defendant was charged with the robbery, kid-
napping, and murder of a taxicab driver. Id. at 295. The murder
weapon was believed to be a sawed-off shotgun. After being advised
of his Miranda rights and requesting to speak with an attorney, the
defendant was placed in a police vehicle with two officers to be
driven to the police station. En route, the police officers discussed
with each other, but within earshot of the defendant, the missing shot-
gun, which was believed to be located in an area near a school. One
officer lamented the possibility that a child might happen upon the
missing weapon and suffer harm as a result, and the other agreed. The
defendant then interjected, asking the officers to turn the car around
so that he could show them where the gun was located. Id. at 293-95.
In its analysis in Innis, the Court reviewed the coercive police prac-
tices that had triggered the Miranda Court’s concerns about the "in-
terrogation environment," such as "the use of line-ups in which a
coached witness would pick the defendant as the perpetrator" and "the
so-called ‘reverse line-up’ in which a defendant would be identified
by coached witnesses as the perpetrator of a fictitious crime." Id. at
299 (quoting Miranda, 384 U.S. at 453, 457). The Court held that
these "psychological ploys" were likely to "undermine the privilege
against compulsory self-incrimination" even in the absence of express
UNITED STATES v. KIMBROUGH 7
questioning. Id. On that reasoning, it extended Miranda’s safeguards
to behavior constituting the "functional equivalent" of express ques-
tioning, while retaining the prerequisite focus on police action as,
indeed, the Fifth Amendment requires. See id. at 300-01.
The Court in Innis defined the functional equivalent of questioning
as "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 sus-
pect." Id. at 301 (emphasis added). It noted that "[t]he latter portion
of this definition focuses primarily upon the perceptions of the sus-
pect, rather than the intent of the police." Id. Such focus is appropri-
ate, as the Miranda safeguards were intended to protect suspects from
being coerced into waiving their Fifth Amendment rights. See id.
The Supreme Court then applied the functional equivalence test to
the facts before it. Although conceding that the officers’ conversation
provided "subtle compulsion," the Court concluded that the officers’
brief remarks to one another did not rise to the level of interrogation.
Id. at 294-95, 303-04. First, there was no express questioning of the
defendant. Id. at 302 ("[The] conversation was, at least in form, noth-
ing more than a dialogue between the two officers to which no
response from the respondent was invited."). Furthermore, that the
officers’ conversation offered "subtle compulsion" to the defendant
was not the end of the Court’s inquiry. The Court went on to examine
whether police should have known that their brief conversation was
reasonably likely to elicit an incriminating response from the suspect.
Id. at 303-04. The Court found nothing in the record to warrant a con-
clusion that in making a "few off hand remarks" to one another, the
police knew or should have known the suspect would be particularly
susceptible to an emotional appeal to the safety of children or that the
suspect was "unusually disoriented or upset." Id. at 303. The Court
did suggest that if the officers’ conversation within earshot of the sus-
pect had been "a lengthy harangue" or if their comments had been
particularly lurid, its decision may have been more difficult. Id.
The Supreme Court next considered functional equivalence in Ari-
zona v. Mauro, a case with facts similar to those before us in that the
challenged statements came in response to questions from a third-
party inquisitor. See 481 U.S. 520 (1987). In Mauro, the defendant
8 UNITED STATES v. KIMBROUGH
was arrested after claiming to have killed his son and leading police
to the body. The defendant had been advised of his Miranda rights
and informed police he did not wish to make any more statements
without a lawyer present. At the station house, the defendant’s wife
asked to speak to her husband. The officers brought the couple
together, and an officer remained in the room and recorded their con-
versation with a tape recorder placed in plain sight. The state sought
to admit the tape-recorded conversation as evidence to rebut the
defendant’s insanity defense. The Supreme Court of Arizona relied on
Innis in "conclud[ing] that the officers’ testimony demonstrated that
there had been interrogation, because [the officers] knew that if the
conversation [between the Mauros] took place, incriminating state-
ments were likely to be made." Id. at 525 (internal quotation omitted).
The Supreme Court reversed. In so doing, the Court did not examine
the actions of Mrs. Mauro, which are beyond constitutional reach and
concern, but rather the actions of the police officers who allowed hus-
band and wife to meet and speak to one another and who remained
present for the conversation and tape recorded it. See id. at 527 ("The
sole issue, then, is whether the officers’ subsequent actions rose to the
level of interrogation . . . .") (emphasis added).6
The Court found none of the police conduct in Mauro improper. Id.
at 529 ("Mauro was not subjected to compelling influences, psycho-
logical ploys, or direct questioning."). Without prompting, Mrs.
Mauro requested to speak with her husband, and the police had legiti-
mate reasons to station an officer in the room while the couple spoke.
See id. at 523-24, 528 (ensuring Mrs. Mauro’s safety and preventing
collusion between the couple, not "securing incriminating state-
ments," were the reasons the officer listened to the conversation).
6
In the instant case, the district court improperly focused on Ms. Kim-
brough’s role as the questioner rather than on the police officers’ con-
duct. The district court’s conclusion that "Miss Kimbrough’s
involvement in questioning her son was the equivalent of official custo-
dial interrogation," see J.A. 205, is at best incomplete and, taken literally,
is simply erroneous. Because Ms. Kimbrough is a private citizen, her
spontaneous questioning of Appellee alone, independent of the actions of
the police officers, could never implicate the Fifth Amendment. The
Fifth Amendment is, as we have discussed, unconcerned with private, as
opposed to state, interrogation. See Perkins, 496 U.S. at 297; Elstad, 470
U.S. at 304.
UNITED STATES v. KIMBROUGH 9
Additionally, the Court made clear the limits of its decisions in
Miranda and Innis: "Officers do not interrogate a suspect simply by
hoping that he will incriminate himself." Id. at 529. Viewing the situ-
ation from the suspect’s perspective in Mauro, the Court "doubt[ed]
that a suspect, told by officers that his wife will be allowed to speak
to him, would feel that he was being coerced to incriminate himself
in any way." Id. at 528.
Rather, as Miranda and its progeny make plain, confessions given
freely and without compelling state influences are admissible and
indeed, desirable. See, e.g., Elstad, 470 U.S. at 305. "Volunteered
statements of any kind are not barred by the Fifth Amendment . . . ."
Mauro, 481 U.S. at 529 (quoting Miranda, 384 U.S. at 478); see also
Innis, 446 U.S. at 299-300. That a statement is "volunteered" in
response to questions or compelling influences emanating from pri-
vate or other nongovernmental sources does not change this analysis.
Again, the issue in Miranda and its descendants is whether particular
actions by the police, either express questioning or its functional
equivalent, constitute interrogation. This singular focus on police con-
duct is constitutionally mandated by the Fifth Amendment’s applica-
bility solely to state action. As the Supreme Court pointed out in
Oregon v. Elstad, the Fifth Amendment is not "concerned with moral
and psychological pressures to confess emanating from sources other
than official coercion." 470 U.S. 298, 304-05 (1985). Therefore, with
Innis and Mauro as guidance, we turn to a consideration of the police
conduct before us.
III.
In this case, Appellee argues that the police subjected him to tactics
that constituted the functional equivalent of express questioning. He
contends that the encounter with his mother "took place amidst com-
pelling influences in a coercive, police-dominated environment."
Appellee’s Br. at 7. In Appellee’s view, by bringing Ms. Kimbrough
to the basement to see the drugs, the police orchestrated a series of
events that culminated in Ms. Kimbrough asking to speak to her son,
questioning him, and eliciting his inculpatory responses in the pres-
ence of police. We cannot agree.
We note at the outset that Appellee faces a difficult challenge in
advancing this argument. He cites no cases, nor can we locate any, in
10 UNITED STATES v. KIMBROUGH
which statements or confessions elicited through private questioning
have been suppressed. See, e.g., Mauro, 481 U.S. at 525; United
States v. Alexander, 447 F.3d 1290, 1295-96 (10th Cir. 2006) (state-
ment to FBI admissible where prison officials placed suspect’s friend
in adjoining cell and friend encouraged confession, but officials "did
not develop the planned encounter, nor suggest any techniques to help
[the friend] convince [the suspect] to provide a statement to the FBI");
Whitehead v. Cowan, 263 F.3d 708, 719 (7th Cir. 2001) (statements
admissible when suspect’s roommate urged his confession because
police neither directed the roommate’s questioning nor engaged in a
ploy to elicit the confession); United States v. Gaddy, 894 F.2d 1307,
1309-11 (11th Cir. 1990) (defendant’s aunt, who was a police officer,
acted as a private citizen in encouraging him to speak to investigating
officers); Snethen v. Nix, 885 F.2d 456, 459-60 (8th Cir. 1989)
("coercion" by defendant’s mother led him to make inculpatory
remarks, which were not suppressed); see also United States v.
Romero, 897 F.2d 47, 52-53 (2d Cir. 1990) (questioning by emer-
gency room nurse); United States v. Borchardt, 809 F.2d 1115, 1119
(5th Cir. 1987) (same); United States v. Pullen, 721 F.2d 788, 790-91
(11th Cir. 1983) (questioning by bank employees).
Of course, we nonetheless recognize that the facts before us are
unique, and consider them in light of the purpose underlying
Miranda: "preventing government officials from using the coercive
nature of confinement to extract confessions that would not be given
in an unrestrained environment." Mauro, 481 U.S. at 529-30. First in
Innis and later in Mauro, the Supreme Court viewed the officers’ con-
duct as standing in sharp contrast to that challenged in Miranda, see
446 U.S. at 299; 481 U.S. at 526, and concluded that the line between
reasonable police work and interrogation had not been crossed. We
engage in the same analysis and reach a similar conclusion here. To
quote the Mauro Court, "[t]he government actions in this case do not
implicate [Miranda’s] purpose in any way." 481 U.S. at 530.
Despite the breadth of Appellee’s assertion that his interrogation
was "orchestrated, initiated, and controlled by police officers," Appel-
lee’s Br. at 14, the factual bases for his claims devolve to two specific
police actions: that the officers showed Ms. Kimbrough the drugs in
the basement, and that they allowed Ms. Kimbrough to communicate
with her son in their presence. Neither individually nor taken together
UNITED STATES v. KIMBROUGH 11
can these actions be considered to subject Appellee to the functional
equivalent of questioning.
We cannot say that the officers should have known that showing
Ms. Kimbrough the drugs in her house would coerce an incriminating
response from her son. Indeed, there is no evidence in the record that
the officers had any reason to believe that Ms. Kimbrough would con-
front Appellee at all. There is simply no evidence in the record that
they knew or suspected that Ms. Kimbrough would ask officers to
bring her son to the basement and then bombard him with questions.
Although perhaps a fortuitous consequence from the officers’ per-
spective, it was no more so than the situation in Innis, and the actions
of the officers here were arguably less calculated. See Innis, 446 U.S.
at 302. The officers’ mere awareness of the possibility that showing
Ms. Kimbrough the drugs might prompt her to speak to Appellee, and,
if so, that Appellee might incriminate himself, does not constitute
interrogation. See Mauro, 481 U.S. at 528-29.
Moreover, there is no evidence in the record of a tacit agreement,
discussion, or understanding between the police officers and Ms.
Kimbrough that she would ask questions or attempt to elicit incrimi-
nating information. That the officers were caught off guard by her
behavior is, in fact, underscored by Officer Himes’ ineffectual
attempt to interject Miranda warnings before Appellee could respond.7
Further, there is uncontroverted evidence, including her own testi-
mony, that Ms. Kimbrough had personal motivations for interrogating
Appellee. Beyond the natural anger of a mother who discovers that
her son is involved with drugs, Ms. Kimbrough had rented her
housing-authority-owned home for more than two decades, and she
was aware that drug activity within could cause her to lose her fami-
ly’s long-time residence. J.A. 74, 85, 199.
7
The government would have our decision turn on whether Ms. Kim-
brough was acting as an agent for Officer Himes in questioning Appel-
lee, arguing of course that Ms. Kimbrough was not such an agent. Given
the complete absence of any communication or understanding between
Ms. Kimbrough and the officers on these facts, however, we need not
reach the question of whether agency principles might ever be applicable
or appropriate in the Fifth Amendment context.
12 UNITED STATES v. KIMBROUGH
Like the police in Mauro, the officers here merely allowed the
Appellee’s mother, on her own initiative, to speak with her son and
remained present while the two talked. The Supreme Court in Mauro
made it clear that such practices, standing alone, do not constitute
interrogation: "Police departments need not adopt inflexible rules bar-
ring suspects from speaking with their spouses, nor must they ignore
legitimate security concerns by allowing spouses to meet in private."
Mauro, 481 U.S. at 530. Here, too, the officers had similar legitimate
reasons "not related to securing incriminating statements" for remain-
ing in the room while mother and son spoke, see id. at 528; these
include the presence of drug evidence and the reasonable belief that
their absence could permit the destruction or concealment of that and
other evidence. See id. at 523-24.
Viewing the encounter here from the perspective of the suspect, as
Innis instructs us to do, further weakens Appellee’s claim that official
interrogation occurred. See Innis, 446 U.S. at 301; Mauro, 481 U.S.
at 528. As the Supreme Court noted in Mauro, "[w]e doubt that a sus-
pect, told by officers that his wife will be allowed to speak to him,
would feel that he was being coerced to incriminate himself in any
way." 481 U.S. at 528. We find it no less implausible that a suspect
would feel coerced to incriminate himself by being faced with the
prospect of speaking to his mother in her home.
The location of the discussion between mother and son here adds
additional support for our conclusion that Appellee was not interro-
gated, standing as it does in sharp contrast to the police station and
patrol car that formed the backdrop of the conversations in Mauro and
Innis, respectively. Appellee answered questions posed by his mother
in her home, which he shared and which was also occupied at the time
by several other members of his family. The Supreme Court in
Miranda recognized the inherently noncoercive nature of precisely
such an environment, citing police manuals that advise officers to
conduct interrogations in their offices rather than suspects’ homes:
If at all practicable, the interrogation should take place in
the investigator’s office or at least in a room of his own
choice. . . . In his own home [the subject] may be confident,
indignant, or recalcitrant. He is more keenly aware of his
rights and more reluctant to tell of his indiscretions or crimi-
UNITED STATES v. KIMBROUGH 13
nal behavior within the walls of his home. Moreover, his
family and other friends are nearby, their presence lending
moral support.
Miranda, 384 U.S. at 449-50 (internal quotation omitted).8
In sum, Ms. Kimbrough, not the police, initiated the exchange with
Appellee. Although the police allowed Ms. Kimbrough to speak with
her son, they did so at her urging, in her home. There is no evidence
in the record that the officers encouraged Ms. Kimbrough in connec-
tion with her questioning of Appellee. Therefore, Appellee’s
responses were volunteered for Fifth Amendment purposes because
they were not the result of police interrogation—either by express
questioning or its functional equivalent. They are therefore admissi-
ble, and the order suppressing them is reversed. We remand for fur-
ther proceedings consistent with this opinion.
REVERSED AND REMANDED
8
Appellee urges us to rely on the fact that the police officers asked
follow-up questions after Ms. Kimbrough’s question, eliciting informa-
tion that led to the discovery of additional drugs. However, as we have
noted earlier, the government has conceded the inadmissibility of those
responses.