                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          AUG 1 2003

                                 TENTH CIRCUIT                      PATRICK FISHER
                                                                             Clerk



 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                    No. 03-4013
                                                 (D.C. No. 02-CR-53-TC)
 DANA HOWARD MULLEN, also                                (Utah)
 known as Stacey Allen Mullen, also
 known as Alex R. Johnson,

          Defendant-Appellant.




                          ORDER AND JUDGMENT *


Before SEYMOUR, MURPHY, and O’BRIEN, Circuit Judges.


      Dana Howard Mullen was convicted by a jury of one count of possession of

a firearm by a felon and sentenced to 120 months in prison. He now appeals the

denial of his motion to suppress an incriminating statement concerning the

      *
       After examining appellant’s brief and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a)(2) and 10th Cir. R.
34.1(G). The case is therefore submitted without oral argument. This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, or collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
presence of a firearm in a fanny pack. For the reasons set forth below, we affirm.

      The issue in this case is whether Mr. Mullen’s incriminating statement

about the presence of the firearm in the fanny pack was the product of

interrogation under Miranda v. Arizona, 384 U.S. 436 (1966). In reviewing the

denial of a motion to suppress, we take the evidence in the light most favorable to

the government and accept the district court’s factual findings unless they are

clearly erroneous. United States v. Hudson, 210 F.3d 1184, 1190 (10th Cir.

2000); United States v. Muniz, 1 F.3d 1018, 1021-22 (10th Cir. 1993). The

ultimate determination of whether there was a Miranda violation is a legal issue

we review de novo. United States v. Johnson, 4 F.3d 904, 910 (10th Cir. 1993).

      The pertinent facts as found by the district court, see rec. vol. I, doc. 47 at

2-4, are as follows. Two police officers were observing a residence known to be

frequented by drug runners. They intended to conduct a “knock and talk” with the

owner of the residence to determine if either of two individuals, whose cars were

parked outside and for whom outstanding warrants existed, were present. Another

officer waited in the backyard of the residence in case anyone fled through the

back door. As the officers approached the house, Mr. Mullen came out and began

to walk around the side of the house. When he ignored the officers’ requests to

stop and speak with them and then broke into a run towards the other side of the

residence, they followed him and requested the officer in the back of the house to


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stop him. Mr. Mullen continued to run and along the way dropped two bags he

had been carrying. When Mr. Mullen tripped and fell, one of the officers

handcuffed him. Meanwhile another officer picked up the bags Mr. Mullen had

dropped. As that officer walked toward Mr. Mullen, Mr. Mullen announced “The

gym bag is mine; the fanny pack is not.” Id. at 4 (citing hearing transcript at 31).

An officer asked him “Whose fanny pack is it?” Mr. Mullen responded, “I know

whose it is, but I don’t want to tell you, but there’s a gun in it.” Id. (citing

hearing transcript at 36). After verifying the outstanding warrants, the officers

arrested Mr. Mullen. At the hearing on the motion to suppress, when asked about

the ownership of the fanny pack, Mr. Mullen initially said “I guess I owned it. I

had it in my possession,” but later stated that the pack was his but he did not

know what was in it, id. (citing hearing transcript at 40-41).

      Two conditions must be met before Miranda warnings are required. The

suspect must be in custody, and the questioning must meet the legal definition of

interrogation. United States v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993).

Under Miranda, the term “interrogation” “refers not only to express questioning,

but also to any words or actions on the part of the police . . . 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). The Fifth Amendment

does not bar the admission of volunteered statements which are freely given.


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Miranda, 384 U.S. at 478.

      Based upon its findings of fact as outlined above, the district court

determined that although Mr. Mullen was in custody at the time he made the

statement, he was not under interrogation as that term is defined in the context of

Miranda. Particularly in light of the fact that Mr. Mullen did not argue for

suppression of his first statement regarding ownership of the two bags, the district

court found that “Officer Millard’s question - ‘whose fanny pack is it?’ - was not

designed to elicit an incriminating response concerning the Defendant.” Rec. vol.

I, doc. 47 at 8. Mr. Mullen had already disavowed ownership of the fanny pack,

so the question attempting to establish another person’s ownership was not one

the police should have thought reasonably likely to elicit an incriminating

response. Furthermore, as the district court also noted, the statement was not in

fact a response to the officer’s question. The officer asked only about ownership

of the fanny pack. Mr. Mullen stated his refusal to provide that information and

volunteered instead the information concerning the contents of the fanny pack.

      The district court correctly cited our opinion in United States v. Gay, 774

F.2d 368, 379-80 (10th Cir. 1985), where we held it would be unreasonable to

hold officers accountable for unforeseen answers to straightforward questions.

See also Innis, 446 U.S. at 301-02 (“since the police surely cannot be held

accountable for the unforeseeable results of their words or actions, the definition


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of interrogation can extend to words or actions on the part of police officers that

they should have known were reasonably likely to elicit an incriminating

response”) (emphasis in original). We find no error in the district court’s

determination that the statement was not the product of interrogation, and we

agree with the court’s ultimate legal conclusion that there was no Miranda

violation.

      Accordingly, we AFFIRM.

                                       ENTERED FOR THE COURT


                                       Stephanie K. Seymour
                                       Circuit Judge




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