                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 03-4322
UNITED STATES OF AMERICA,
                                              Plaintiff-Appellee,
                               v.

RONALD BERNARD JOHNSON,
                                          Defendant-Appellant.
                         ____________
           Appeal from the United States District Court
              for the Eastern District of Wisconsin.
           No. 02-CR-237—J.P. Stadtmueller, Judge.
                         ____________
      ARGUED APRIL 20, 2005—DECIDED JULY 19, 2005
                     ____________




  Before COFFEY, MANION, and WOOD, Circuit Judges.
  WOOD, Circuit Judge. In this appeal Ronald Johnson
challenges the admission into evidence of statements that
he never properly sought to suppress in the district court.
He contends that when police officers interrogated him in
September 2002 about the location of a firearm, they did so
without advising him of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966). In response to this custodial
interrogation, Johnson says, he revealed the location of the
gun. Johnson was later convicted of one count of possession
of a firearm by a felon. See 18 U.S.C. § 922(g). In addition,
2                                                No. 03-4322

Johnson now argues that his sentencing violated the
principles announced in United States v. Booker, 125 S. Ct.
738 (2005). We affirm his conviction but order a limited
remand under United States v. Paladino, 401 F.3d 471 (7th
Cir. 2005).
  In September 2002 Milwaukee police responded to a 911
report that Johnson had been threatening people at a party
with a gun and had just fled to his home or the nearby
woods. Officers found Johnson at his home and, after asking
him to step outside, arrested him. They neglected to inform
Johnson of his rights at that point, as they should have done
under Miranda. In the meantime, the police conducted a
protective sweep of the house, but they found no weapons or
other people. They then placed Johnson into the police car
with Officer Jenkins, who began asking preliminary
questions. According to Officer Jenkins’s testimony later at
a suppression hearing, Johnson was in custody at this
point. Officer Jenkins eventually asked Johnson for consent
to search the house, and Johnson agreed. Other officers
conducted a more thorough search and returned to the car
to report that they once again found no weapons. Johnson
then signed Officer Jenkins’s memo book, documenting that
he consented to the search, and agreed to show the officers
where the gun was located. He then led them straight to the
gun, pointed it out, and said “this is where it is.” It is not
entirely clear from the record whether Officer Jenkins
asked Johnson for help finding the weapon or whether
Johnson volunteered to help the officers.
  Johnson filed a pretrial motion to suppress the gun on the
single ground that the warrantless search violated his
rights under the Fourth Amendment. The district court de-
nied his motion, concluding that he consented to the search
of his house. For the first time on appeal Johnson now ar-
gues that Officer Jenkins failed to advise him of his
Miranda rights before subjecting him to questions and
actions that amounted to custodial interrogation. Specifi-
No. 03-4322                                                  3

cally, Johnson contends that his agreement to lead the
officers to the gun, his testimonial act of pointing to it, see
Pennsylvania v. Muniz, 496 U.S. 582, 595 n.9 (1990) (“non-
verbal conduct contains a testimonial element whenever the
conduct reflects the actor’s communication of his thoughts
to another”), and his statement “that’s where it is” should
have been suppressed, because all three communications
were gathered in violation of his Miranda rights. In his
opening brief Johnson also argued that the gun itself should
have been suppressed as the fruit of the Miranda violation,
but he has now withdrawn that argument in response to the
Supreme Court’s decision in United States v. Patane, 124 S.
Ct. 2620 (2004).
  Because Johnson failed to seek suppression of his state-
ments in the district court, our first concern is whether he
has preserved any argument for appeal. The government
argues that Johnson’s failure to raise any Miranda argu-
ments in his pretrial motion to suppress constitutes a
“waiver” according to FED. R. CRIM. P. 12(e) and precludes
any appellate review. Rule 12(b) requires defendants to
seek suppression of evidence before trial or by another
deadline set by the district court, and Rule 12(e) says that
a failure to do so “waives” the issue.
  We think, however, that in context the word “waiver” in
Rule 12(e) does not carry the strict implication of an “inten-
tional relinquishment of a known right” that precludes all
appellate review. Miranda v. Leibach, 394 F.3d 984, 992 n.3
(7th Cir. 2005); United States v. Jacques, 345 F.3d 960, 962
(7th Cir. 2003). In United States v. Clarke, 227 F.3d 874,
880-81 (7th Cir. 2000), we reiterated that a true waiver
occurs only through an intentional relinquishment of an
argument, while a forfeiture is the result of a neglectful
failure to pursue an argument. Id. If a defendant, out of
neglect, fails to move to suppress evidence in the district
court, that conduct is more akin to a forfeiture than a
waiver. Id.; see also United States v. Davenport, 986 F.2d
4                                                No. 03-4322

1047, 1049 (7th Cir. 1993) (describing the effect of
Rule 12(e) as a forfeiture); but cf. United States v.
Mancillas, 183 F.3d 682, 703-04 (7th Cir. 1999);
United States v. Krankel, 164 F.3d 1046, 1051-52 (7th Cir.
1998). It is also worth noting that Rule 12(e) itself says that
“[f]or good cause, the court may grant relief from the
waiver.” This too makes it sound more like what we would
normally call forfeiture. Here, there is no indication that
Johnson intentionally decided to abandon his Miranda
argument, and so we view his argument as forfeited and
subject to plain error review.
  Before we even reach the question of plain error, however,
we must consider the antecedent question implicit in the
language of Rule 12(e) that we just quoted—namely,
whether Johnson has shown good cause for his failure to
make a timely motion to suppress on the Miranda ground.
See Davenport, 986 F.2d at 1048-49; see also Clarke, 227
F.3d at 880. The good cause requirement is a prerequisite
for relief whether he is asking the district court or this
court to consider his suppression argument. If he can meet
the “more exacting” standard of demonstrating “cause” for
his failure to seek suppression earlier, we can then consider
whether the lack of suppression was an error that is plain
and that affected his substantial rights and seriously
undermined the integrity of the judicial proceeding, see
Paladino, 401 F.3d at 481.
  In this case, Johnson has not even suggested that he has
cause for his failure to seek suppression of his statements
in the district court. He filed a timely motion to suppress
the physical evidence that resulted from the same encoun-
ter with the police that yielded the statements he wants to
suppress now. Johnson never asked the district court in
that motion or at any other time to suppress his statements,
and he has offered no reason for waiting until appeal to do
so. We could therefore reject his Miranda argument on that
ground alone.
No. 03-4322                                                5

  Even if Johnson could demonstrate good cause, he could
not satisfy all of the requirements of plain error review.
Demonstrating error would, perhaps, be the easiest hurdle.
Assuming for a moment that in addition to asking Johnson
for consent to search his house Officer Jenkins also asked
Johnson to help the officers with the search, we agree with
Johnson that the officer’s request for assistance constitutes
interrogation and should have been preceded by Miranda
warnings. See New York v. Quarles, 467 U.S. 649, 652, 655
(1984) (officer interrogated defendant when he asked where
gun was located and defendant nodded in direction and
said, “over there”). Although the government suggests that
Officer Jenkins’s request for Johnson’s help in finding the
weapon was “part and parcel” of the officer’s request for
consent to search, we do not see why that should matter.
Interrogation is defined as “any words or actions on the part
of the police (other than those normally attendant to arrest
and questioning) that the police should know are reason-
ably likely to elicit an incriminating response from the
suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 (1980)
(footnote omitted); cf. United States v. Mobley, 40 F.3d 688,
690-91 (4th Cir. 1994) (before executing a search warrant,
officers engaged in interrogation by asking suspect if there
were any weapons or other items in the house). Whether
preceded by a request to search or not, an inquiry about the
location of evidence meets the definition of interrogation.
The government’s insistence that Johnson “voluntarily and
spontaneously launched into a discussion of the incident”
likewise does not rule out the possibility of a Miranda
violation during the encounter. Even if Johnson initiated
the conversation about the gun, the important questions are
what role Officer Jenkins played in the exchange and
whether the defendant waived his rights. As the Supreme
Court has noted, when a suspect initiates contact with
police, if the police respond with conduct that amounts to
interrogation, “the question would be whether a valid
waiver of the right to counsel and the right to silence had
6                                                  No. 03-4322

occurred.” Edwards v. Arizona, 451 U.S. 477, 486 n.9
(1981); Oregon v. Bradshaw, 462 U.S. 1039, 1044-45 (1983).
  Even if he could show that there was error, Johnson
would also have to demonstrate that the error was “plain,”
meaning “ ‘clear’ ” or “ ‘obvious.’ ” United States v. Olano, 507
U.S. 725, 734 (1993). Given Quarles’s clear holding that an
officer’s question about the location of a weapon is interro-
gation, we are willing to assume for present purposes that
the error in admitting this evidence was likely “plain,” even
though we have never before addressed the government’s
argument that Quarles does not apply to an officer’s
question that comes on the heels of gaining consent to
search. We can face that issue another day when it really
matters.
  Johnson’s plain error argument runs aground with the
third and fourth parts of the test: demonstrating that the
error affect[ed] his “substantial rights” and “seriously af-
fect[ed] the fairness, integrity, or public reputation of ju-
dicial proceedings.” Johnson v. United States, 520 U.S. 461,
466-67 (1997). Although the precise meaning of these
requirements may be debatable, a defendant challenging
his conviction must at least demonstrate that the error af-
fected the verdict. See Paladino, 401 F.3d at 481. Johnson
cannot do so. Even if we disregard all of the evidence that
Johnson challenges, the government still had a compelling
case. It introduced into evidence the gun itself, testimony
from the two other occupants of the house that they did not
know where the gun was located, and testimony from two
witnesses who saw Johnson with a gun (though maybe not
the same one) earlier in the evening. And if that were not
enough, Johnson himself, not the government, introduced
the fact that he proclaimed “this is where it is,” when he
took the officers to the gun’s hiding place. In light of all of
this, Johnson could not show that but for his statements
there is a reasonable possibility that the outcome of the
trial would have been different.
No. 03-4322                                                7

  On the issue of sentencing, both parties agree that this
case is appropriate for a limited remand under Paladino so
that we may determine whether plain error occurred when
the district court sentenced Johnson under a mandatory
application of the Guidelines. We therefore AFFIRM
Johnson’s conviction but order a LIMITED REMAND so that
the district court may advise us of its sentencing intentions
now that it is clear that the Guidelines are advisory only.

A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—7-19-05
