                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                              JUN 7 2004
                                   TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                  Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

 v.                                                        No. 03-1244
                                                            (D. Colo.)
 COREY L. BROWN, a/k/a Snoop,                        (D.Ct. No. 02-CR-506-B)
 a/k/a Snoop G,

          Defendant-Appellant.


                                ORDER AND JUDGMENT *


Before TACHA, Chief Circuit Judge, and PORFILIO and BRORBY, Senior
Circuit Judges.



      After examining the briefs and 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); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.




      *
          This order and judgment is not binding precedent except under the doctrines of
law of the case, res judicata and 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.
      Mr. Corey L. Brown entered a plea agreement with the government and

conditionally pled guilty to being a felon in possession of a firearm in violation of

18 U.S.C. § 922(g)(1), reserving certain suppression of evidence issues for

appeal. The United States District Court for the District of Colorado sentenced

him to thirty months in prison. On appeal, Mr. Brown asserts the district court

erred by denying his motion to suppress a number of his incriminating statements.

Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.



      During the investigation of an armed confrontation in Colorado Springs, the

police took four separate statements from Mr. Brown, who participated in the

confrontation. Mr. Brown contends the district court erred in refusing to suppress

three of these statements, alleging inadequacy of the Miranda warnings given.



      The first contested statement occurred September 20, 2002, when police

executed a search warrant at Mr. Brown’s apartment in an effort to locate

evidence of a firearm used in the confrontation. While three other officers

conducted the search, Colorado Springs Police Detective Jackson Andrews

interviewed Mr. Brown regarding the confrontation. Mr. Brown willingly agreed

to the questioning. After Mr. Brown informed Detective Andrews he was a

convicted felon, Detective Andrews decided to advise Mr. Brown of his Miranda


                                         -2-
rights, in case authorities later criminally charged him as a felon in possession of

a firearm. From memory, Detective Andrews advised Mr. Brown of his rights.

Mr. Brown then signed a form indicating he was advised of his rights and agreed

to make a statement. 1 Subsequently, Mr. Brown made incriminating statements he

possessed the firearm used during the confrontation.



      The next contested statement occurred when the police arrested Mr. Brown

on October 12, 2002. Detective Andrews again advised Mr. Brown of his rights

and Mr. Brown acknowledged verbally and in writing he understood his rights and

wished to talk to the police. 2 Mr. Brown then made incriminating statements,

      1
          Mr. Brown signed a consent to search form rather than an advice of rights form
by mistake. However, Mr. Brown voluntarily wrote on the form he had been advised of
his rights.

      2
       Detective Andrews read Mr. Brown his rights from the advice of rights form,
which Mr. Brown signed. The form advises:

      Miranda Warning
      1. You have the right to remain silent.
      2. Anything you say can and will be used against you in a court of law.
      3. You have the right to talk to a lawyer and have him present with you
      while you are being questioned.
      4. If you cannot afford to hire a lawyer, one will be appointed to represent
      you before any questioning, if you wish.

      Waiver
      1. Do you understand each of these rights I have explained to you?
            Having these rights in mind, do you wish to talk to me now?


                                           -3-
again admitting he possessed the firearm.



      Mr. Brown made the final contested statement while officers transported

him to federal court for his initial appearance. After officers read Mr. Brown his

Miranda rights and he informed them he understood his rights and agreed to

speak to the officers, Mr. Brown made more incriminating statements admitting

his possession of the firearm in question. 3



      Later, Mr. Brown moved to suppress these incriminating statements,

contending the Miranda warnings the police gave him were inadequate because

the officers failed to inform him any appointed attorney would represent him

“without charge” and he could terminate the interviews at any time.



      3
          Detective James Rodgers read Mr. Brown his rights as follows:

      The warnings:
      You have the right to remain silent.
      Anything you say can be used against you in court.
      You have the right to consult with an attorney and to have them present
      during questioning.
      If you cannot afford an attorney, one will be appointed to represent you
      prior to any questioning.

      The waiver:
      Do you understand your rights?
      Are you willing to waive these rights and talk to me?


                                           -4-
      Following a hearing, the district court denied the motion to suppress. With

regard to the September 20, 2002 statement made in Mr. Brown’s home, the

district court determined suppression of the statement was not warranted because

(1) Mr. Brown was not in custody when he made the statement, and (2) even if he

was in custody, he received adequate Miranda warnings and executed a valid

waiver of his rights. The district court also determined officers properly elicited

Mr. Brown’s other two statements, finding they were not required to inform Mr.

Brown he would be appointed an attorney “at no cost” or “without charge,” or he

could terminate questioning at any time. Mr. Brown appeals, challenging the

district court’s finding the September 20, 2002 statement was not given in

custody, and all three statements were provided after adequate Miranda

advisements.



      When reviewing a district court’s denial of a motion to suppress, we accept

the district court’s findings of fact unless clearly erroneous and consider the

evidence in the light most favorable to the government. United States v. Bennett,

329 F.3d 769, 773 (10th Cir. 2003). We also keep in mind “at a hearing on a

motion to suppress, the credibility of the witnesses and the weight given to the

evidence, as well as the inferences and conclusions drawn therefrom, are matters

for the trial judge.” United States v. Fernandez, 18 F.3d 874, 876 (10th Cir.


                                         -5-
1994). However, we review de novo as a question of law both the district court’s

ultimate determination whether a Miranda violation under the Fourth Amendment

occurred, Bennett, 329 F.3d at 773, and whether a defendant is “in custody” for

the purpose of giving a Miranda warning, see United States v. Erving L., 147 F.3d

1240, 1246 (10th Cir. 1998).



      As an initial matter, we reject Mr. Brown’s contention he was in custody

when he provided his first incriminating statement September 20, 2002. As the

district court properly found, the circumstances surrounding this interview did not

constitute a custodial interrogation. Law enforcement officers are required to

advise a defendant of his or her right against self-incrimination only before

initiating a custodial interrogation. Miranda v. Arizona, 384 U.S. 436, 444

(1966). A suspect is in custody and entitled to a Miranda warning where “a

reasonable person in the suspect’s position” would consider “his freedom of

action to be curtailed to a degree associated with formal arrest.” Erving L., 147

F.3d at 1246-47. Although the determination of custody is necessarily a fact-

intensive exercise, several factors have proved useful in making this

determination: (1) whether the suspect is made aware he or she is free to refrain

from answering questions and may end the interview; (2) the nature of the

questioning; and (3) whether the interview was conducted in a “police dominated”


                                         -6-
atmosphere. United States v. Griffin, 7 F.3d 1512, 1518-19 (10th Cir. 1993).



      In this case, the district court considered these factors and based its

determination Mr. Brown was not in custody at the time of his September 20,

2002 statement on his findings, in part, that (1) the officers conducted the

interview in Mr. Brown’s own home; (2) the officers advised him he was not

under arrested and did not threaten or restrain him in any way; (3) Detective

Andrews credibly described his conversation with Mr. Brown as “warm;” 4 and (4)

the officers did not display their weapons or come in physical contact with Mr.

Brown. Under these circumstances, the district court determined a reasonable

person would not believe he or she had no choice but to answer incriminating

questions. We agree and conclude the district court correctly denied Mr. Brown’s

motion to suppress as to his September 20, 2002 statement because he did not

make his incriminating statement while in custody, therefore making a Miranda

advisement unnecessary.



      In any event, even if Mr. Brown was deemed in custody at the time of the



      4
         Detective Andrews also testified he knew Mr. Brown for a long time, the
interview was conversational, and at one point during the interview they even played with
Mr. Brown’s children.


                                           -7-
September 20, 2002 statement, the district court correctly denied his motion to

suppress this statement because Detective Andrews took the precautionary step of

advising Mr. Brown of his Miranda rights and Mr. Brown subsequently waived

these rights.



      Mr. Brown’s assertion the Miranda warning was inadequate because

Detective Andrews did not explain an “appointed” lawyer was a “free lawyer,” is

meritless. At the hearing, Detective Andrews recited from memory the same

Miranda warnings he recited to Mr. Brown September 20, 2002. In relevant part,

Detective Andrews informed him:

      You have the right to remain silent. Anything you say can and will
      be used against you in a court of law. You have the right to an
      attorney and to have him present with you while you’re being
      questioned. If you cannot afford to hire an attorney, one will be
      appointed to represent you before any questioning, if you wish.

It is clear Detective Andrews adequately advised Mr. Brown of his rights to an

attorney. 5 A reasonable person, when told “if you cannot afford to hire an

attorney, one will be appointed to represent you,” would conclude the attorney

would be provided “at no cost.” More is not required. See United States v. Soria-



      5
        While Mr. Brown concedes under Tenth Circuit precedent, a suspect need not be
informed “appointed” means “at no cost,” he nevertheless asks us to reconsider such
precedent, which we decline to do.


                                         -8-
Garcia, 947 F.2d 900, 903 (10th Cir. 1991) (concluding Miranda warning was

adequate where the defendant was advised that “if he didn’t have ‘money to

employ an attorney,’ he would have on either ‘appointed,’ ... or ‘one would be

obtained for [him]’”). Therefore, the district court did not err by denying Mr.

Brown’s motion to suppress on this ground.



      Likewise, Mr. Brown’s claim the Miranda warning was inadequate for

failing to inform Mr. Brown he could discontinue the interview at any time and/or

ask for a lawyer at any time also must fail. Here, Detective Andrews explicitly

informed Mr. Brown of his right to remain silent and his right to the presence of

an attorney during any questioning. These advisements adequately advised Mr.

Brown of his right to refuse to answer questions and/or refuse to answer questions

until represented by an attorney in light of the fact Mr. Brown does not contend

he sought to terminate questioning at any point during the interview. There is no

requirement a suspect be informed he or she may terminate questioning at any

time, United States v. DiGiacomo, 579 F.2d 1211, 1214 (10th Cir. 1978), and

“warnings that convey the substance of the suspect’s rights are sufficient,” United

States v. Hernandez, 93 F.3d 1493, 1502 (10th Cir. 1996). Therefore, we

conclude the district court correctly determined the Miranda warning Detective

Andrews provided Mr. Brown September 20, 2002 was adequate and should not


                                         -9-
be suppressed for this reason.



      Because Mr. Brown makes the same inadequacy arguments to support

suppression of his October 12, 2002 and October 15, 2002 statements, and the

warnings given on those occasions were even more comprehensive than Detective

Andrews’ September 20, 2002 advisement, we need not discuss these claims in

detail, but similarly conclude they lack merit for the reasons already discussed.



      Therefore, we AFFIRM the district court’s order denying Mr. Brown’s

motion to suppress.



                                       Entered by the Court:

                                       WADE BRORBY
                                       United States Circuit Judge




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