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                                                          [DO NOT PUBLISH]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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