                          In the

United States Court of Appeals
              For the Seventh Circuit

No. 08-1690

U NITED S TATES OF A MERICA,
                                             Plaintiff-Appellee,
                               v.

C ALVIN C. M ONTGOMERY,
                                         Defendant-Appellant.


           Appeal from the United States District Court
                for the Southern District of Illinois.
        No. 06-30071-DRH—David R. Herndon, Chief Judge.



  A RGUED D ECEMBER 12, 2008—D ECIDED F EBRUARY 13, 2009




 Before C UDAHY, F LAUM, and W OOD , Circuit Judges.
  F LAUM, Circuit Judge. A federal jury convicted Calvin
Montgomery of being a felon in possession of a firearm.
Montgomery now appeals the district court’s denial of
his motion to suppress his statement implicating himself
for that crime. He argues that his statement was involun-
tary because it was given in response to promises of
leniency, invoking a supposed per se rule prohibiting
the police from making promises to a suspect in order to
extract a confession. Alternatively, Montgomery argues
2                                               No. 08-1690

that his statement was involuntary under a totality of the
circumstances approach. He also argues that the police
failed to honor his right to silence and to cut off ques-
tioning.
  For the following reasons, we affirm the district court’s
denial of the motion to suppress.


                      I. Background
  In the early morning hours of April 13, 2004, Aubrey
Keller of the East St. Louis Police Department made a
traffic stop of the car that Montgomery was riding in.
Montgomery, without being told to do so, got out of the
car and dropped something (Keller claimed it sounded
like a beer bottle) on the ground. When Keller demanded
that Montgomery make his hands visible, Montgomery
began turning towards Keller and then dropped a
second object on the ground. From the sound that
second object made, Keller surmised that it was a gun.
Keller then saw Montgomery kick at the second object,
and Keller then heard the sound of the gun skittering
across the pavement, and saw it stop on the ground near
the driver’s side of the car. Keller arrested Montgomery
and took him to the East St. Louis police station, booking
him for unlawful use of a weapon by a felon. Keller
testified in later proceedings that during the course of his
contact with appellant, Montgomery did not appear to be
drunk or under the influence of drugs, and in fact that
Montgomery executed the turn-around-while-kicking-the-
gun maneuver without having any problems with his
balance.
No. 08-1690                                              3

A. First police interview
   Later that morning, Marion Riddle, a detective with
the East St. Louis police department, attempted to inter-
view Montgomery. Riddle gave Montgomery a form
containing the standard Miranda warnings and had Mont-
gomery sign the form to indicate that he understood
his rights. Montgomery then told Riddle he did not wish
to give a statement, and Riddle ended the interview.
The interview was not videotaped, and Riddle later
testified that police department policy at that time did
not require officers to videotape all interviews. This
first interview, which began a little after 8:00 on the
morning of October 13, ended by about 8:10.


B. Roll call room discussion
  Riddle informed Desmond Williams, another detective
with the East St. Louis Police Department, that Montgom-
ery did not wish to make a statement. Riddle also told
Williams that, based upon the information they had on
hand, Montgomery may have been a felon in possession
of a firearm, and thus subject to federal criminal charges.
Williams then called in Paul Heiser, a special agent with
the Bureau of Alcohol, Tobacco, Firearms and Explosives
(ATF) to assist with Montgomery’s case. Heiser went to
the police department building, where Williams briefed
him on the case and ran Montgomery’s criminal history
through a database. Heiser, along with Williams, con-
ducted interviews with Sean Bell and Nathaniel Holmes,
two other passengers in the car with Montgomery at the
time of the traffic stop. Sometime between 2:30 and 3:00,
4                                                 No. 08-1690

Heiser and Williams then went down to the department’s
jail, where Montgomery was present in a cell with some
of the other people arrested during that morning’s traffic
stop. Because they could not speak to him with his
cellmates present, Williams and Heiser walked Montgom-
ery up to the roll call room at the station.
  Williams introduced Heiser to Montgomery and ex-
plained why he was in the police station. Williams
said that they wanted to talk to Montgomery, but not
directly about the facts of his case. Heiser testified that the
discussion touched on Montgomery’s marital problems
and his drinking, and Montgomery also asked why
federal authorities were getting involved. The two investi-
gators claimed that because they did not intend to speak
with Montgomery about the specifics of his case, they
did not give him a set of Miranda warnings before this
discussion.
  When Heiser told Montgomery that he was present at
the station because the police had reviewed his criminal
history report and suspected he was a felon in possession
of a firearm, Montgomery told the two investigators, “Well,
that’s not my firearm.” Heiser responded that the other
two passengers in the car had given statements, and that
the police would examine the gun for fingerprints and
would trace the gun back to Montgomery if they found
his fingerprints on it. Montgomery again said that the
weapon was not his, and Heiser said that if Montgomery
wanted to “explain [his] side of the story,” Heiser could
take him upstairs, advise him of his rights, and let him
give a statement.
No. 08-1690                                              5

   During this conversation in the roll call room, Montgom-
ery asked Heiser what sort of jail time he could expect
if the case went federal. Heiser replied that the statutory
maximum was ten years. (Heiser claims that he was
unaware at this time that Montgomery would be sen-
tenced under an Armed Career Criminal provision of the
sentencing guidelines, resulting in a longer prison sen-
tence than ten years.) Montgomery told Heiser, “I don’t
want ten years.” After some additional back-and-forth on
the consequences of state versus federal charges, Mont-
gomery agreed to accompany the officers upstairs for a
videotaped interview.


C. Formal statement
  Around 4:00 pm, Heiser, Williams, and Montgomery
went upstairs from the roll call room to a police interview
room in order to give a videotaped statement. Heiser
testified at the suppression hearing that Montgomery did
not have any trouble navigating his way upstairs, nor did
he look drunk, sleepy, or in any other way impaired
during this time.
  As the interview began, Heiser placed an ATF Advice
of Rights form in front of Montgomery. Montgomery
immediately noticed that the ATF form was different
from the form he had signed earlier that day in his inter-
view with Riddle. To show the basic similarity of the
forms, Williams left the room to retrieve an East St. Louis
Police Department advice of rights form. The videotape
in the interview room continued to roll when Williams
left. Heiser asked Montgomery to give him his address
6                                               No. 08-1690

and a few other personal details. Montgomery asked
Heiser if Bell and Holmes, the other two passengers in the
car, also had to give statements. Heiser, evidently
thinking that Montgomery had asked whether the two
had given statements, not if they had to give statements,
replied that they did.
  Montgomery continued to express his puzzlement
about why his case had to go federal, asking Heiser, “Can’t
you just help me?” Heiser told Montgomery in response,
“I’m helping you more than you know.” Heiser testified
at the suppression hearing that he meant to say that he
was helping Montgomery by bringing charges against
him. If Montgomery took advantage of the substance
abuse treatment and vocational training available to him
in prison, he would be able to turn his life around;
Heiser did not offer this more fulsome explanation to
Montgomery, however. Montgomery again asked Heiser
why the case couldn’t just be a state case, and Heiser
told him, “It is what it is and it can’t be unraveled.”
  Taking a different tack, the interview video then showed
Heiser telling Montgomery, “Think positive. You’re
looking at every negative thing about this.” Heiser
clarified this statement during his testimony at the sup-
pression hearing as well, stating that he meant that Mont-
gomery should be glad that neither he nor anyone else
was hurt, despite the fact that he had a gun in his posses-
sion during a traffic stop by a police officer. Montgomery
again told Heiser, “I don’t want a federal case,” and Heiser
this time told him, “The state could be worse.” Heiser
testified at the suppression hearing that in his experience
No. 08-1690                                               7

as an investigator, state penalties for unlawful possession
of a firearm could be worse than federal penalties. Then,
in reference to the prison sentence that Montgomery
faced in the federal system, Heiser added, “[w]ell, if you
get time, you’re not going to get 10 years.” Heiser made
this statement based on his knowledge of Montgomery’s
criminal history, but as with the statement in the roll call
room, he apparently did not know that Montgomery
would qualify as an Armed Career Criminal and that
Montgomery instead faced a mandatory minimum sen-
tence of fifteen years.
  Immediately following this comment, Williams
returned with the East St. Louis advice of rights form.
Williams told Montgomery to initial each line of the
form if he understood the accompanying right. Williams
advised Montgomery that he had the right to remain
silent. Montgomery then asked the officers if he had to
talk to them if he initialed the form. Williams told him
that he had to initial the form to indicate that he under-
stood his rights whether he wanted to talk to them or
not, and that initialing the form did not mean that he
had to talk to the investigators.
  After signing the form, Montgomery asked if he was
doing something to incriminate himself. Heiser then
produced the advice of rights form again and directed
Montgomery to the portion of the form telling him that
anything he said to the police could be used against him
in court. Montgomery then asked the investigators
whether he could speak to a lawyer if he chose not to say
anything. They responded that he could. Montgomery
8                                                       No. 08-1690

then asked whether things would be worse if he chose to
talk to a lawyer. The investigators responded that they
could not say what it would do, and that giving a state-
ment would just give him an opportunity to tell his side
of the story.1 Montgomery then agreed to go ahead, and
gave a statement of approximately thirty minutes. He told
the investigators that he and the other occupants of the
car had been drinking and smoking marijuana prior to
the traffic stop, and that his fingerprints were on
the weapon dropped at the scene because the other passen-
gers had given him the gun to get rid of, and that he
threw it out the window.
  Heiser and Williams both testified at the suppression
hearing that Montgomery did not appear to be drunk or
under the influence of drugs at the time of their inter-
view, nor did he appear to be tired, sleepy, or otherwise
impaired. The district court’s ruling on Montgomery’s
suppression motion found that he was coherent during



1
  Montgomery argues in his appellate briefs that Heiser and
Williams purposely minimized the importance of counsel by
telling Montgomery that invoking his right to counsel would
just give him a chance to tell his side of the story (in essence, that
counsel would only act as a sounding board for Montgomery’s
version of events). The district court found at the suppression
hearing, however, that when the investigators referred to
Montgomery’s ability to tell his side of the story they were
referring to the opportunity to give a statement, not his op-
portunity to speak to counsel. The statement is slightly am-
biguous but because the finding is not clearly erroneous, we
will not disturb this finding on appeal.
No. 08-1690                                               9

the course of the interview and was not intoxicated or
under the influence of drugs when he was advised of
his Miranda rights.
  The district court denied Montgomery’s motion to
suppress his statement on October 31, 2007, holding that
Montgomery’s statement to law enforcement officers
was voluntary and made after a knowing and voluntary
waiver of his Miranda rights. Montgomery then pled
guilty to the charge of unlawful possession of a firearm
by a previously convicted felon, reserving the right to
appeal the suppression of his statement. The district
court sentenced Montgomery to 188 months’ imprison-
ment, five years’ supervised release, and ordered him
to pay a fine and special assessment. This appeal followed.


                      II. Discussion
  When reviewing a motion to suppress, we review
questions of law de novo and questions of fact for clear
error. United States v. Scheets, 188 F.3d 829, 836 (7th Cir.
1999). The voluntariness of a confession is a matter of
law that we review de novo. United States v. Gillaum,
372 F.3d 848, 855 (7th Cir. 2004).
  Montgomery raises three challenges to his statement.
First, he claims that Heiser and Williams induced his
statement with false promises of leniency; second, he
claims that the statement was not voluntary under the
totality of the circumstances; and third, he claims that the
police did not scrupulously honor his invocation of his
right to remain silent in his first interview with Riddle.
We take each point in turn.
10                                              No. 08-1690

A. False promises of leniency
  Montgomery first argues that his statement was
induced by false promises of leniency from Heiser. Mont-
gomery is specifically referring to Heiser’s assurances
that he would not receive a ten year sentence in the
federal system. The district court found that the
promises were not objectionable because there was no
misrepresentation and because, even assuming that there
was a misrepresentation, Heiser’s speculation about
sentencing was not enough to make the statement in-
voluntary.
  A confession is involuntary if it is the result of coercive
police conduct. See Gillaum, 372 F.3d at 856. The use
of deceit to obtain a confession does not make the con-
fession involuntary as long as the police interrogation
was not coercive. See Sotelo v. Indiana State Prison,
850 F.2d 1244, 1251 (7th Cir. 1988). As a fundamental
matter, a confession must be voluntary under the
totality of the circumstances, and a court evaluating the
voluntariness of a confession must consider any prom-
ises or representations made by interrogating officers.
United States v. Springs, 17 F.3d 192, 194 (7th Cir. 1994);
Holland v. McGinnis, 963 F.2d 1044, 1050-52 (7th Cir. 1992).
  Given the right circumstances, a false promise of
leniency may be sufficient to overcome a person’s ability
to make a rational decision about the courses open to
him. See United States v. Montgomery, 14 F.3d 1189, 1194
(7th Cir. 1994) (A confession is considered voluntary i f
the state demonstrates that it “ ‘was not secured through
psychological or physical intimidation but rather was
No. 08-1690                                                 11

the product of a rational intellect and free will.’ ”)
(quoting United States v. Haddon, 927 F.2d 942, 945 (7th
Cir. 1991)). “[A]n empty prosecutorial promise could
prevent a suspect from making a rational choice by ‘distort-
ing the alternatives among which the person under inter-
rogation is being asked to choose.’ ” Sprosty v. Buchler,
79 F.3d 635, 646 (7th Cir. 1996) (quoting Weidner v. Thieret,
866 F.2d 958, 963 (7th Cir. 1989)); see also United States v.
Baldwin, 60 F.3d 363, 365 (7th Cir. 1995) (generally, false
promise of leniency made in order induce a confession
is a forbidden tactic).
  The parties agree that Heiser told Montgomery that if
he was sentenced to prison time on the federal charges he
would not get ten years. However, as the testimony at the
suppression hearing bore out, those proclamations were
not tied to any confession or statement on Montgomery’s
part. Heiser did not promise Montgomery that he would
not receive a ten year sentence if he confessed; he said that
Montgomery would not receive ten years from the
federal system.2 Montgomery frequently raised concerns
about being tried on federal charges rather than state
charges, and Heiser told him (incorrectly, it turned out)
that the most he could expect for federal felon-in-posses-


2
  Heiser was asked on re-direct examination if his statement
that “you’re not going to get ten years” was linked to Montgom-
ery’s cooperation, and Heiser testified that it was not. Other
testimony indicates that the statement was based on Heiser’s
confusion about the maximum statutory penalty, not about
any deal that he planned to arrange with the U.S. Attorney’s
Office if Montgomery gave a statement.
12                                              No. 08-1690

sion charges was ten years. The information that Heiser
gave him was inaccurate, but Montgomery was not
promised a ten year sentence if he confessed or made a
statement. This court has previously acknowledged that
an illusive promise of leniency in exchange for a con-
fession presents “a difficult case.” United States v.
Kontny, 238 F.3d 815, 818 (7th Cir. 2001). The mere fact
that Heiser misstated the potential sentences in the
federal system does not make the interrogation coercive,
however, especially when the purported sentence was
not linked to Montgomery’s willingness to talk to the
investigators. See, e.g., Frazier v. Cupp, 394 U.S. 731, 739
(1969) (police misrepresentation of another suspect’s
statement was relevant to voluntariness of confession,
but insufficient to make the confession involuntary); Sotelo,
850 F.2d at 1251 (“deception by an interrogator does not
automatically invalidate a confession”).
  Montgomery contends that this case should be decided
under a per se rule of suppression derived from Bram v.
United States, 168 U.S. 532 (1897). The Supreme Court held
in Bram, citing various common law authorities, that a
confession procured “either by flattery or hope . . . how-
ever slightly the emotions may be implanted, is not
admissible evidence; for the law will not suffer a prisoner
to be made the deluded instrument of his own conviction.”
Id. at 547. This particular statement, which was not a
statement by the Court but rather a quotation from a
treatise cited in the opinion’s review of common law
sources, is one that criminal defendants frequently use
to support a broad reading of the case creating a require-
ment of per se reversal if investigators made any sort of
No. 08-1690                                               13

promise at all to a suspect prior to a confession. See
United States v. Long, 852 F.2d 975, 980 (7th Cir. 1988)
(Easterbrook. J., concurring) (“Bram has not excluded a
confession in decades; it is a derelict, offering false hope
to suspects and vexing judges who must distinguish it
on the way to decisions reached on other grounds. It is a
source of pointless litigation . . .”). Indeed, Bram’s state-
ment that “[t]he law cannot measure the force of the
influence used, or decide upon its effect upon the mind
of the prisoner, and therefore excludes the declaration
if any degree of influence has been exerted,” Bram, 168
U.S. at 565, is inconsistent with the current totality of the
circumstances approach. See Frazier, 394 U.S. at 739.
  This circuit has not read Bram as creating a per se rule
requiring suppression whenever a promise or induce-
ment is made to a suspect. Long, 852 F.2d at 977; see also
United States v. Baldwin, 60 F.3d 363, 365 (7th Cir. 1995).
Montgomery’s reading of Bram was decisively rejected
by the Supreme Court in Arizona v. Fulminante, 499 U.S.
285 (1991), when the Court stated that Bram “under current
precedent does not state the standard for determining
the voluntariness of a confession . . .” Id. at 285. Montgom-
ery objects that the Supreme Court cited no authority
for its abandonment of Bram, but the Court’s statement
about Bram came in the context of a discussion of the
state supreme court’s decision on Fulminante’s case,
including that court’s citations to the modern case law
establishing the totality of the circumstances as the rele-
vant test. Id. at 285-86. And, in any event, the Supreme
Court does not need to cite authority when revising or
limiting its own case law.
14                                              No. 08-1690

  Montgomery then claims that Bram was revived by the
Supreme Court’s recent decision in District of Columbia v.
Heller, 128 S. Ct. 2783 (2008). Heller struck down Wash-
ington D.C.’s handgun ban because it was inconsistent
with the original understanding of the Second Amend-
ment. The opinion in Heller also took issue with a dissent-
ing opinion’s use of United States v. Miller, 307 U.S. 174
(1939), since that opinion did not purport to be a thorough
discussion of the history of the Second Amendment.
Heller, 128 S. Ct. at 2815. Montgomery now claims that the
originalist opinion in Heller revived opinions such as
Bram, which he claims was a thorough history of the Fifth
Amendment in contrast to Fulminante, and thus overrules
Fulminante or limits its application to Fourteenth Amend-
ment Due Process Clause cases. (The latter, we note, is
an odd suggestion that would seriously undermine the
jurisprudence incorporating the Fifth Amendment
through the Due Process Clause.) To the extent that
Montgomery believes that Heller adopts a new canon
of constitutional interpretation for amendments wholly
separate from that discussed in the case, and that it
overrules or limits unrelated lines of case law sub silentio,
we decline to read that much into the opinion and do not
find it controlling on the issues presented.
  In short, while Heiser was mistaken about the prison
sentence that Montgomery faced in the federal court
system, his statements that Montgomery would not serve
ten years pursuant to federal charges was not made in
order to induce a confession. We agree with the district
court that Montgomery did not make an involuntary
statement in response to them.
No. 08-1690                                                 15

B. Voluntariness under the totality of the circumstances
  Montgomery makes a number of points in an effort to
show that his statement was involuntary under the
totality of the circumstances. He states that Heiser incor-
rectly informed him that other passengers in the car had
to give statements, when in reality neither had, and falsely
claimed his prints were found on the gun. He also
cites the investigators’ claim that it was a possibility
that federal charges may not have been brought if Mont-
gomery had given a statement to Riddle earlier that day,
and argues that the investigators wanted to give Mont-
gomery the impression that he was hurting himself by
refusing to speak to them. He acknowledges that the
investigators told him he could speak with a lawyer, but
says they should have told him the interview would
terminate if he requested to speak with a lawyer. He
also states that the procedure of having him read and
initial an advice of rights form undermined the
significance of the procedure. Finally, he cites his border-
line intelligence and claims that this places him in the
low borderline range of intellectual abilities, and thus
made him more susceptible to police coercion.
  This court has held that “[a] confession is voluntary if,
in the totality of circumstances, it is the ‘product of a
rational intellect and free will and not the result of physical
abuse, psychological intimidation, or deceptive interroga-
tion tactics that have overcome the defendant’s free will.’ ”
United States v. Huerta, 239 F.3d 865, 871 (7th Cir. 2001)
(quoting United States v. Dillon, 150 F.3d 754, 757 (7th Cir.
1998)). Finding that the police engaged in coercive
16                                              No. 08-1690

activity is a necessary predicate to finding that a
suspect’s confession was involuntary. See Colorado v.
Connelly, 479 U.S. 157, 167 (1986). We determine whether
police conduct was coercive by examining factors such as
“the defendant’s age, education, intelligence level, and
mental state; the length of the defendant’s detention, the
nature of the interrogations; the inclusion of advice
about constitutional rights; and the use of physical punish-
ment, including deprivation of food or sleep.” Huerta,
239 F.3d at 871.
  As we explained above, we do not find that the investiga-
tors promised a lighter sentence or more favorable treat-
ment in exchange for a confession or statement from
Montgomery. Montgomery does not claim that he
suffered any kind of physical punishment or coercion, or
that the investigators deprived him of food or sleep prior
to the interviews. With respect to Heiser’s incorrect
answer to Montgomery’s question about whether the
other passengers in the car “had” to give a statement,
that would not overbear Montgomery’s free will. Mont-
gomery had already been advised of his right not to give
a statement earlier that day in his meeting with Riddle,
and was once more advised of his right not to speak to the
investigators prior to giving his videotaped statement.
Montgomery’s decision not to speak to Riddle earlier
that day, and his back-and-forth with Heiser and
Williams on his right to remain silent prior to giving
the videotaped statement, demonstrate that he under-
stood this right.
  The mere fact that Heiser was wrong when he stated
that the two other suspects had given statements would
No. 08-1690                                                   17

not render Montgomery’s statement involuntary, either.
Heiser did not say that those statements implicated
Montgomery, and the district court did not find any effort
“rising to the level of trickery.” Even if Heiser had told
Montgomery that the other passengers implicated him,
there is no rule finding such conduct necessarily coercive.
In fact, precedent holds that a police officer may “actively
mislead” a suspect prior to obtaining a statement or
confession so long as a rational decision remains possible.
United States v. Rutledge, 900 F.2d 1127, 1131 (7th Cir. 1990);
see also United States ex rel. Hall v. Director, Dep’t of Correc-
tions, 578 F.2d 194 (7th Cir. 1978) (no ipso facto coercion
when police told a suspect, wrongly, that co-defendants
had implicated him as the ringleader). In this case Mont-
gomery was fully advised of his rights prior to making
a statement, and any belief that his two fellow passengers
had also spoken to the police would not prevent him
from making a rational decision about his options.
  Heiser and Williams’ statements that an earlier state-
ment may have kept the case at the state level, and that
they could not say what a lawyer’s presence would effectu-
ate were not false promises of leniency in exchange for
cooperation nor even really deceptive. Both statements
were non-committal. While they may not have fully
apprised Montgomery of the legal landscape, such omis-
sions are not inherently coercive behavior on the part of
the police.
  The government acknowledges that Montgomery has
borderline intelligence, but this factor alone does not
result in a finding of coercion. At the time of his arrest,
18                                            No. 08-1690

Montgomery was approximately forty years old and had
prior experience with the criminal justice system. He
appeared well aware of what was going on throughout
the questioning: He understood the difference between
the federal and state criminal justice system, he under-
stood that he did not need to give a statement in his
interview with Riddle, and in fact did not; and he
noticed the differences between the two advice of rights
forms he was asked to sign. Perhaps most significant of
all, he asked relevant questions about his rights prior to
giving his statement to the officers. While we take
account of Montgomery’s intelligence when determining
whether his statement was voluntary, we do not find
that it fatally affected the statement in this case.
  Finally, we note that the district court found no
evidence that Montgomery was intoxicated, exhausted or
otherwise incapacitated. The witnesses at the sup-
pression hearing, from Keller to Riddle to Williams and
Heiser, all testified that Montgomery was coherent and
did not appear to be intoxicated or sleep deprived. While
he and the other occupants of the car were, according to
statements, drinking and smoking marijuana prior to
Keller’s traffic stop, this behavior apparently did not
affect his choice to give a statement.
  In light of the totality of the circumstances, we concur
with the district court that Montgomery made a rational
choice to give a statement to Williams and Heiser and
that his statement was not involuntary or the result of
police coercion.
No. 08-1690                                               19

C. Scrupulously honoring Montgomery’s right to cut
   off questioning
    Montgomery’s last argument is that the investigators
did not scrupulously honor his invocation of his right to
remain silent. In Michigan v. Mosley, 423 U.S. 96 (1975), the
Supreme Court held that the admissibility of statements
obtained after a defendant invokes his right to remain
silent is dependent on whether the defendant’s right to
cut off questioning was “scrupulously honored.” 423
U.S. at 103. The Court set forth several nonexclusive
factors to determine whether interrogation was properly
resumed. Id. These factors include “an inquiry into the
amount of time that lapsed between interrogations; the
scope of the second interrogation; whether new Miranda
warnings were given; and the degree to which police
officers pursued further interrogation once the suspect
had invoked his right to silence.” United States v.
Schwensow, 151 F.3d 650, 658 (7th Cir. 1998) (citing Mosley,
423 U.S. at 104-05); accord United States v. Gillaum, 372
F.3d 848, 856 (7th Cir. 2004). In Schwensow, after the
defendant invoked his right to remain silent, officers
later questioned him about the same crime. Schwensow, 151
F.3d at 659. We held that “the constitutionality of a sub-
sequent police interview depends not on its subject
matter but rather on whether the police, in conducting
the interview, sought to undermine the defendant’s
resolve to remain silent.” We concluded that such an
approach “naturally follows from Mosley” because Mosley
did not elevate “any one factor as predominant or
dispositive nor suggest[] that the enumerated factors
are exhaustive.” Id.
20                                             No. 08-1690

  Montgomery invoked his right to remain silent in his
interview with Riddle, and questioning then ceased.
However, later in the roll call room Heiser and Williams
spoke to Montgomery without re-appraising him of his
Miranda rights. Ostensibly, the investigators did not
intend to question Montgomery about the specifics of his
case. Heiser did, however, state that he was at the
police station because it appeared that Montgomery was
a felon in possession or a firearm. He also told Montgom-
ery that the gun would be tested for fingerprints and
that Montgomery’s prints might be on it (in which case
the charges would come back to him). Eventually, Mont-
gomery agreed to give a statement, was given a second set
of Miranda warnings, and then gave a videotaped state-
ment in which he discussed his possession of the gun.
  The defendant admits that the facts of this case are very
similar to United States v. Wyatt, 179 F.3d 532 (7th Cir.
1999). In that case, defendant invoked his right to remain
silent and the police ceased questioning him. However,
after several hours passed the officers confronted the
defendant again and outlined the evidence against him.
The defendant then agreed to make a statement, and gave
one after a second round of Miranda warnings. We noted
that the officers’ discussion of the evidence against the
defendant, before the second round of warnings, was a
“misstep,” but was not by itself a violation of Mosley. Id.
at 538. We also rejected defendant’s contention that
Mosley requires officers to restrict renewed interrogation
to crimes unrelated to those a suspect had earlier
refused to discuss. Rather, as we stated in Schwensow, the
test was not the subject matter but whether the police
No. 08-1690                                             21

sought to undermine the suspect’s resolve to remain
silent. This test accords with the broader purpose of the
Supreme Court’s opinion in Mosley. That opinion sought
a middle ground between, on the one hand, a blanket
immunity from further custodial questioning by any
officer on any subject once a suspect has invoked the
right to silence, and, on the other hand, repeated rounds
of interrogation with only momentary respites when
a suspect breaks off questioning. See Mosley, 423 U.S.
at 102-03.
  Like Wyatt, in this case two factors weigh in favor of
suppression: The officers outlined the evidence against
Montgomery before giving him renewed Miranda warn-
ings, and the discussion involved the same crime as Mont-
gomery’s first interview with Riddle. We conclude that
these factors are insufficient to require suppression. When
Heiser questioned Montgomery in the roll call room,
he tried to limit the subject matter by stating that he did
not want to discuss the facts of Montgomery’s case.
Outlining the evidence against Montgomery (or dis-
cussing such evidence hypothetically, in the case of the
fingerprint evidence) was a misstep, similar to the misstep
in Wyatt. The possibility of Montgomery giving a state-
ment, however, arose only because Montgomery volun-
teered the information that the gun did not belong to him.
  Montgomery argues that the police conduct in this
case was worse than the conduct in Wyatt because here,
unlike in Wyatt, the police waited until Montgomery was
upstairs in an interview room before giving him a second
set of Miranda warnings. We do not see anything suspi-
22                                              No. 08-1690

cious in the timing of the warnings. Montgomery did
receive a second set of Miranda warnings before giving
his videotaped statement and the lapse in time between
the end of the discussion in the roll call room and the
second set of warnings in the interview room may well
have been to Montgomery’s benefit, as it would give
him time to collect himself and consider whether he
wanted to give a statement before committing to doing
so. While the police work in this case was not exemplary,
the circumstances do not suggest that the investigators
attempted to undermine Montgomery’s resolve to
remain silent. Montgomery’s right to cut off questioning
was respected, and he was apprised of his rights before
giving a statement. We find no violation of Mosley, and
no basis for suppressing the statement.


                     III. Conclusion
  For the foregoing reasons, we A FFIRM the district court’s
ruling on the motion to suppress.




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