                     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,1 Chief Judge, and McMILLIAN and MURPHY, Circuit Judges.
                              ___________


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 and
granting in part a motion to suppress filed by Kevin L. Pierce (defendant). United
States v. Johnson, No. 8:97CR91 (D. Neb. Dec. 23, 1997) (hereinafter "District Court

      1
       The Honorable Pasco M. Bowman succeeded the Honorable Richard S. Arnold
as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close
of business on April 17, 1998.
Order") (partially adopting the magistrate judge's report and recommendation, id.,
No. 8:97CR137 (Nov. 20, 1997) (hereinafter "Report and Recommendation")). For
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 officer had promised defendant leniency in exchange for cooperation.
For 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
government 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

       Defendant and Phelan Johnson were charged in a single indictment dated
August 19, 1997, on one count of possession with intent to distribute marijuana, in
violation of 21 U.S.C. § 841(a)(1). Following their indictment, defendant and Johnson
each filed a motion to suppress.2 They each moved to suppress physical evidence taken
from the vehicle in which they had been traveling at the time of their arrest, and
defendant additionally moved to suppress statements he made to a law enforcement
officer following his arrest. The motions to suppress initially came before a magistrate
judge. The magistrate judge held an evidentiary hearing on the motions. The following
summary of the underlying facts is based upon the magistrate judge's findings of fact,



      2
        The district court's disposition of Johnson's motion to suppress is not at issue
in the present appeal.

                                          -2-
Report and Recommendation at 2-10, and the exhibits introduced at the suppression
hearing.

        On August 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
illuminated, observing it cross the white center line dividing the lanes of traffic, and
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, and
Trooper Staskiewicz stopped his patrol car behind it. Trooper Staskiewicz walked up
to the driver's side of the van. The driver, Johnson, opened the window, and
Staskiewicz smelled an odor of air freshener coming from inside. Trooper Staskiewicz
obtained the vehicle registration and defendant's and Johnson's driver's license numbers.
He radioed the numbers to NSP headquarters and received a "use caution" warning with
respect to each individual, indicating possible arrests or convictions for assaulting a
police officer or homicide. He was also informed that defendant had a prior drug
trafficking conviction. Trooper Staskiewicz called for backup. While waiting for the
backup car to arrive, Trooper Staskiewicz talked with each of Johnson and defendant
separately about the origin, destination, and purpose of their trip. Defendant and
Johnson gave conflicting statements about the purpose of their trip. After a backup
officer arrived, Trooper 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 of
narcotics. Trooper Staskiewicz opened the door of the van and immediately smelled
marijuana. Inside the van, he discovered a duffle bag filled with brick-shaped objects
(which were later confirmed to be marijuana). Defendant and Johnson were
immediately placed under arrest and handcuffed. The arrest took place at approximately
2:57 a.m.

       Trooper Staskiewicz transported defendant to NSP headquarters while Johnson
rode in the other officer’s car. While en route in the patrol car, Trooper Staskiewicz

                                          -3-
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 and
completed the marijuana delivery. Trooper Staskiewicz told defendant that the
prospects for cooperating would be discussed at the NSP station and that he should not
say anything 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 conversation between Trooper Staskiewicz and defendant was recorded
by an audio/video camera mounted in the patrol car. (A copy of the audio/video
taperecording was introduced into evidence at the suppression hearing as Government
Exhibit 1.)

        Once Trooper Staskiewicz and defendant arrived at the NSP station, defendant
was left with another officer, Investigator Lutter, to be interviewed. Investigator Lutter
testified that he was unaware of the prior conversation between Trooper Staskiewicz
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
that 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 questions 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 have been advised of my
rights and I understand them. I am willing to answer questions at this time without an
attorney present. I have not received any threats or promises, and I will answer
questions freely and voluntarily." Investigator Lutter asked defendant whether he
understood that no promises were being made, nor was anything being offered, in
exchange for his statement. Defendant indicated that he understood and signed his
name directly below the waiver of rights paragraph. (A copy of the "Advice of Rights"
form, bearing defendant's initials and signature, was introduced into evidence at the
suppression hearing as Government Exhibit 2.)

                                            -4-
       Investigator Lutter then proceeded to question defendant. The interrogation
lasted 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 defendant
about the marijuana found in the van. Defendant admitted that he and Johnson were
transporting the marijuana to Detroit, to a contact named Jim Bob for whom defendant
had once previously made a delivery. According to defendant, he received $500 for the
prior delivery, and this time he was to receive $2,000. Investigator Lutter suggested to
defendant that he cooperate with law enforcement by attempting to complete the
marijuana delivery. Defendant 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. Report and Recommendation at 17-18. Defendant filed
objections. Upon review, the district court agreed with the magistrate judge that the
initial stop and search of the van were constitutionally permissible. However, the
district court disagreed with the magistrate judge's conclusion that defendant's
statements to Investigator Lutter were made voluntarily. The district court reasoned:

      [Trooper Staskiewicz’s] statements were plainly inducements that
      rendered [defendant's] subsequent statements to Investigator Lutter
      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]
      mind a scenario that controlled everything else [defendant] did and said
      during the remainder of his stay at NSP headquarters, including his
      statements to Investigator Lutter. 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
      subsequent reading and initialing of a Miranda form could not eradicate
      the efficacy of the earlier promise made by the friendly, respectful trooper
      in the cruiser.



                                          -5-
District Court Order at 5.3 The district court also reasoned "[t]o the extent that the
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 improper
promises might perhaps overbear a defendant's will."), cert. denied, 516 U.S. 1182
(1996)). Consequently, the district court suppressed defendant's statements to
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 determination of whether defendant acted voluntarily
in making the self-incriminating statements, which essentially amounted to a confession.
United States v. Mendoza, 85 F.3d 1347, 1350 (8th Cir. 1996) (Mendoza); United
States 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 of
probable cause or reasonable suspicion determinations is independent of and without
deference to district court's determinations while appellate review of findings of
underlying historical facts is for clear error).4


      3
      We note that the district court's language suggests that Investigator Lutter, not
defendant, initialed the Advice of Rights form. However, it is undisputed that
defendant was the one who initialed the form. See Government Exhibit 2.
      4
       Defendant mistakenly assumes that, in order for us to reverse the district court's
decision, we must hold that the court clearly erred in concluding, for example, that
Trooper Staskiewicz's statements to defendant in the parol car "rendered [defendant's]
subsequent statements to Investigator Lutter involuntary," and other similar conclusions

                                           -6-
       In considering whether a confession was voluntary, the determinative question
is whether the confession was extracted by threats, violence, or promises (express or
implied), such that the defendant’s will was overborne and his or her capacity for self-
determination was 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 this
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
States v. Meirovitz, 918 F.2d 1376, 1379 (8th Cir. 1990), cert. denied, 502 U.S. 829
(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, and
(3) the characteristics of the accused. With respect to the tactics 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 conducted
by someone other than the person who made the "promise," and it was not
taperecorded. Regarding the characteristics of the accused, defendant notes, among
other things, that he is African 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.
Defendant also maintains that Trooper Staskiewicz made promises that were in fact
false and unfulfillable and that Trooper Staskiewicz had neither the knowledge nor the
authority to make those promises.



essentially 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-
         The present case is similar to Mendoza, in which the government appealed from
an order of the district court suppressing a confession made by one of the defendants
in the case (Wheeler). The facts in Mendoza included the following. Wheeler had been
caught accepting payment for methamphetamine during an undercover operation. After
Wheeler was read her Miranda rights, while en route to the police station, a police
officer told Wheeler that she would be arrested immediately if she did not cooperate.
Upon arriving at the station, a second officer, Agent Mizell, again advised her of her
Miranda rights and told her that she was not under arrest and that she would not be
charged at that point. Agent Mizell further stated that he could not offer her a deal in
exchange for her cooperation but that he would inform the prosecutor if she were to
cooperate. After that, Wheeler agreed to cooperate. 85 F.3d at 1348-49. In ruling that
Wheeler’s confession was involuntary, the district court reasoned "[w]ere it not for the
fact that [the officer] told defendant Wheeler that she would be immediately arrested if
she did not cooperate with the officers, I would probably conclude that all of her
statements to the officers were voluntary. . . . That threat, which was made while
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
review, this court reversed, holding that, based on the totality of the circumstances,
"Wheeler’s will was not overborne by the agents when she decided to cooperate." Id.
at 1351. This court found especially persuasive "the fact that Wheeler did not make any
incriminating statements or decide to cooperate until after Agent Mizell had given her
Miranda warnings and had told her that she would not be arrested or charged that day."
Id.

       In the present case, as in Mendoza, defendant was advised of his Miranda rights
before his self-incriminating statements were made; he was not subjected to any
physical or emotional coercion; he was not subjected to a particularly lengthy
interrogation; and neither trickery nor deceit was used to extract his statements. See id.
at 1350. In addition, we note that defendant had prior dealings with the criminal justice
system; he made no incriminating statements to Trooper Staskiewicz in the

                                           -8-
patrol car; Investigator Lutter carefully reviewed with defendant his Miranda rights and
defendant initialed each one on the rights form; and defendant signed his name below
the waiver of rights paragraph. We consider especially compelling the facts that
Investigator Lutter specifically asked defendant if he understood that no promises were
being made nor was anything being offered in exchange for defendant’s statement, and
defendant signified his understanding 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 less
promises that were false or unfulfillable,5 we hold that Investigator Lutter’s warnings
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.
Stated differently, even if Trooper Staskiewicz's statements in the patrol car could be
construed as an inducement, the effect was attenuated and cured by subsequent events.

       In sum, upon carefully 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
enforcement and statements to the effect that it would be to suspect's benefit to
cooperate are not improperly coercive); United States v. Wrice, 954 F.2d 406, 411 (6th
Cir.) (conceding for sake of argument that a promise of lenient treatment may be so
attractive as to make a confession involuntary, but suggesting that it must rise to the
level of an irresistible inducement), cert. denied, 504 U.S. 945 (1992).




      5
        Indeed, we note that a successful controlled delivery of the marijuana may well
have proven beneficial to defendant by warranting a sentence reduction for substantial
assistance or acceptance of responsibility under the guidelines.

                                          -9-
                                     Conclusion

      For the reasons stated, the decision of the district court to suppress statements
made by defendant is reversed, and the case is remanded for further proceedings
consistent with this opinion.

      A true copy.

             Attest:

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




                                         -10-
