                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 12-4546


UNITED STATES OF AMERICA,

                Plaintiff - Appellee,

          v.

DELMOND CUNNINGHAM,

                Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.   Frank D. Whitney,
District Judge. (3:10-cr-00040-FDW-1)


Submitted:   September 19, 2013           Decided:   November 13, 2013


Before TRAXLER, Chief Judge, MOTZ, Circuit Judge, and Gina M.
GROH, United States District Judge for the Northern District of
West Virginia, sitting by designation.


Affirmed in part, reversed in part, and remanded by unpublished
per curiam opinion.


Henderson Hill, Executive Director, Joshua B. Carpenter, FEDERAL
DEFENDERS OF WESTERN NORTH CAROLINA, INC., Asheville, North
Carolina, for Appellant.      Anne M. Tompkins, United States
Attorney,   Charlotte,  North   Carolina,   Amy  Elizabeth  Ray,
Assistant United States Attorney, OFFICE OF THE UNITED STATES
ATTORNEY, Asheville, North Carolina, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     Appellant         Delmond    Cunningham        appeals         his       conviction

following     a    conditional     guilty      plea     to       being    a   felon   in

possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

He now challenges the district court’s denial of his motion to

suppress the firearm, as well as the district court’s partial

denial of his motion to suppress statements he made to a police

officer while in custody.              We affirm in part, reverse in part,

and remand.

                                          I.

     On September 21, 2009, Corporal David Johnston with the

Mecklenburg County Sheriff’s Department was attempting to serve

several   outstanding         arrest    warrants    and      a    domestic     violence

protection    order      on    Cunningham.         He   happened         to   encounter

Cunningham at a gas station in Charlotte, North Carolina, and

observed Cunningham begin to pump gas into a pickup truck that

was parked in front of Corporal Johnston’s patrol car.                         Based on

Corporal Johnston’s earlier conversations with acquaintances of

Cunningham,       he   expected    Cunningham      to     be      armed.       Corporal

Johnston was also aware of Cunningham’s criminal history, which

included gun charges and gun-related offenses.

     When Corporal Johnston approached Cunningham and attempted

to talk to him, Cunningham fled on foot.                  Corporal Johnston gave

chase and caught up with him about 25 yards away from the gas

                                          2
station.     A physical struggle ensued.                Corporal Johnston used a

taser to subdue Cunningham during the struggle and, with the

assistance       of     additional        responding      officers,       handcuffed

Cunningham    and      took   him    into    custody.          Both   Cunningham     and

Corporal Johnston sustained minor injuries and were treated at

the scene.

       Corporal       Johnston     then   returned      with    Mecklenburg      County

Sheriff’s Deputy John Forrest to the pickup truck, which was

still parked at the gas pump.                Corporal Johnston approached the

driver’s side of the truck.                 He testified that he looked into

the driver’s side window and observed a black .45 caliber pistol

sitting in plain view on the bench seat of the truck.                          Corporal

Johnston then entered the truck and seized the firearm.                          Deputy

Forrest approached the passenger’s side of the truck but did not

see the firearm until Corporal Johnston retrieved it.                          However,

it was his understanding that the firearm was found on the bench

seat   between    the     passenger’s       side   and    driver’s      side    of   the

truck.     He also recalled that there was a middle console that

had been folded down onto the bench seat.

       Meanwhile,      back   at    the   scene    of    the    arrest,   Cunningham

began to complain of chest pains, and Deputy Forrest was asked

to transport him to the emergency room at a nearby hospital.                          It

is undisputed that Cunningham was not read his Miranda rights

prior to being taken to the hospital.                      While waiting in the

                                            3
treatment room, Deputy Forrest commented to Cunningham “that he

was smart for not trying to go back to the truck because a

handgun was found in the front seat and it could have made the

situation a lot worse than it was.”                  J.A. 134.       According to

Deputy Forrest, Cunningham responded that “that was one of the

reasons why he ran from Corporal Johnston because he didn’t want

nothing bad to happen.”           J.A. 135.         Deputy Forrest added that

“shortly after” he made the statement to Cunningham, Cunningham

asked “two [or] three times if he was going to be charged with

possession of the handgun, because he stated he was a convicted

felon.”     J.A. 136.      Deputy Forrest told Cunningham that he did

not know.

     Prior to entering his conditional guilty plea, Cunningham

moved to suppress the firearm seized by Corporal Johnston at the

scene   and   the   statements     he   made    to    Deputy    Forrest     at    the

hospital.     The district court denied the motion to suppress the

firearm   based     upon   the   plain-view      exception      to    the   warrant

requirement     and,    in   the    alternative,        on     the    basis      that

Cunningham abandoned the truck when he ran and the firearm would

have been inevitably discovered when the truck was moved and

inventoried.      The truck was not registered to Cunningham.

     The district court granted in part and denied in part the

motion to suppress the statements.             Although finding that Deputy

Forrest   did   not    actually    intend      to    elicit    an    incriminating

                                        4
response when he initiated the conversation with Cunningham, the

court held that Deputy Forrest’s comment constituted custodial

interrogation because it was reasonably likely to elicit such an

incriminating        response.            Thus,      the   district        court    suppressed

Cunningham’s initial response explaining why he did not return

to the truck.           However, with regard to Cunningham’s follow-up

questions -- as to whether he would be charged with possessing

the gun -- the district court held that they “were not [made] in

response to any form of statement or question or comment,” and

the court declined to suppress them.                            J.A. 190. 1        This appeal

followed.

                                                II.

       In       considering    the    denial          of   a    motion     to   suppress,   we

review the district court’s legal determinations de novo and its

factual findings for clear error, viewing the evidence in the

light most favorable to the government.                              See United States v.

Kelly,      592     F.3d    586,     589    (4th       Cir.      2010).         “[W]e   accord

particular          deference        to     a        district        court’s       credibility

determinations.            This deference is based on the district court’s

role       of     observing     the       witnesses            and    of    weighing     their


       1
        The district court also denied Cunningham’s motion to
suppress a statement he made to his mother in the presence of
Deputy Forrest. Cunningham has not appealed this portion of the
ruling.



                                                 5
credibility.”           United States v. Hilton, 701 F.3d 959, 964 (4th

Cir. 2012) (citation omitted).

                                               A.

       “The Fourth Amendment protects ‘[t]he right of the people

to    be    secure     in    their      persons,    houses,    papers,      and     effects,

against unreasonable searches and seizures.’”                         United States v.

Rumley, 588 F.3d 202, 205 (4th Cir. 2009) (quoting U.S. Const.

amend.          IV).        The    “plain-view”      exception        to     the    warrant

requirement, however, allows the warrantless seizure of evidence

when an officer is lawfully in the area in which he sees the

object, has lawful access to the object, and the incriminating

nature of the object is apparent.                   See id.

       In       this   case,      Cunningham    argues      only   that     the     district

court clearly erred in crediting Corporal Johnston’s testimony

that he observed the .45 caliber firearm in plain view through

the    driver’s        side       window    before    entering      the     vehicle       and,

therefore,         that     the     court    erred    in    denying       his   motion      to

suppress the firearm.               We disagree.

       In the post-arrest affidavit, Corporal Johnston stated that

the firearm was located “on [the] front passenger seat in plain

view.”          J.A. 194.         According to a report prepared by an ATF

agent several months after the seizure, Corporal Johnston “went

back       to    the   truck      Mr.   Cunningham    was     at   and     looked    in    the



                                               6
window” and “[b]etween the driver’s seat and the center console,

in plain view, was a loaded .45 caliber pistol.”                        J.A. 195.

      At   the     evidentiary         hearing,    Corporal      Johnston     testified,

consistent        with    the    earlier     reports,      that      he    observed      the

firearm in plain view through the truck window before entering

the vehicle.         His testimony varied slightly as to the exact

location     of    the     firearm     on   the   bench    seat;     for    example,      he

described     the    area       variously    as    “between       the     passenger      and

driver’s seat in plain view,” J.A. 67, “right past the driver’s

seat in between – where you buckle your seat at” or “[t]o the

right of the driver’s seat . . . [n]ext to the buckle.”                                 J.A.

71.   On cross-examination, Corporal Johnston testified that the

seat was “one long seat” or a “running seat” and that “[i]f it’s

past the buckle, [he] consider[ed] that the passenger seat.”

J.A. 103.     Corporal Johnston did not recall a center console and

did not recall telling the ATF agent that there was a center

console.

      Deputy Forrest testified that he did not see the firearm on

the   seat   from        the   passenger’s       side    but   did   recall      that    the

center     console       had    been    folded    down    onto    the     seat   when     he

entered the vehicle.             It was his understanding that the firearm

was located between the passenger’s side and the driver’s side

of the truck seat.



                                             7
     Cunningham argues that the district court clearly erred in

crediting Corporal Johnston’s testimony and denying the motion

to suppress on “plain view” grounds because Corporal Johnston’s

testimony       was    inconsistent   with      his    earlier     statements    and

Deputy Forrest’s testimony regarding precisely where the firearm

was observed on the seat of the truck and whether a center

console was up or down on the bench seat when the firearm was

observed.       The district court, however, specifically considered

and rejected Cunningham’s credibility argument, as follows:

          The officer today was absolutely consistent about
     the weapon being on the other side of the buckle, and
     . . . you argued that that’s inconsistent.     It’s not
     necessarily inconsistent.     People don’t have exact
     perfect recollection of every minute fact. And you’re
     saying it’s the passenger side, can’t . . . be the
     driver’s side.     But the officer said it was one
     continuous seat.    And then the deputy came back and
     said   it  was   one continuous    seat.     There  was
     disagreement . . . about the console. But the salient
     facts are the officer consistently testified that the
     weapon was in plain view and he saw it on the other
     side of the buckle. . . .    [T]oday he was subject to
     intense cross-examination and he still came back with
     what the Court viewed as a consistent answer.

J.A. 183-84.          The district court went on to find that Corporal

Johnston    was       “highly   credible”      and    that,   while    there    were

“modest    inconsistencies,”       J.A.       186,    Corporal    Johnston   “stood

firm”      on     “cross-examination           on     those      allegedly      prior

inconsistent statements . . . as to the weapon being on the

other side of the buckle.”            J.A. 187.         Further explaining his

credibility determination, the district court noted:

                                          8
     None of us are vehicle designers. We don’t know what
     different parts of a long seat are called. . . . [H]e
     used the term “passenger seat” . . . in one of his
     earlier statements.   He explained today exactly what
     he saw and when he was asked specifically about
     passenger seat, I thought his explanation [w]as highly
     credible. I thought his testimony is highly credible,
     and so I do credit it and find that it survived a very
     excellent cross examination.     And thus he saw the
     weapon in plain view from outside the vehicle.

J.A. 187.

     We hold that the district court did not clearly err in

crediting    Corporal      Johnston’s      testimony   that    he   observed    the

firearm on the seat of the truck in plain view before opening

the driver’s side door, providing probable cause to conduct the

warrantless search and seize the loaded firearm.                    The district

court clearly considered all of the evidence when rendering its

credibility determination, including Corporal Johnston’s prior

statements       and     Deputy     Forrest’s    testimony.         Furthermore,

Corporal    Johnston’s      prior     statements   are   consistent      with   his

testimony that he observed the firearm in plain view through the

driver’s     side      window     before   entering    the    vehicle,   and    the

alleged inconsistencies pertain only to what one might call the

area of the seat where the firearm was observed and whether

there was a center console folded down at the time.                   Such minor

discrepancies do not so undermine his testimony that we would

upset      the      district        court’s     comprehensive        credibility

determination.          Cunningham’s argument that Corporal Johnston’s


                                           9
testimony was internally inconsistent or implausible on its face

is devoid of evidentiary support and clearly without merit. 2

Accordingly,        we     affirm    the    district         court’s     order     denying

Cunningham’s motion to suppress the firearm. 3

                                            B.

      It is well established that persons subjected to custodial

interrogation        are    entitled       to    the    safeguards       prescribed      by

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

Supreme      Court       afforded    protection         to    the   Fifth        Amendment

privilege         against     compelled         self-incrimination          “from        the

coercive pressures that can be brought to bear upon a suspect in

the context of custodial interrogation.”                       Berkemer v. McCarty,

468   U.S.    420,    428    (1984).        A    suspect     interrogated        while    in

police custody “‘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



      2
       Cunningham’s attempt to rely upon factual representations
contained   in  the   government’s  pre-hearing  memorandum   in
opposition to the motion to suppress also does not avail him.
The memorandum is not evidence and Corporal Johnston was never
questioned about any pre-hearing contacts or interviews he may
have had with the prosecution.
      3
       In light of our ruling, we need not consider the district
court’s alternative finding that Cunningham abandoned the truck
when he ran from Corporal Johnston and that the firearm would
have been inevitably discovered when the truck was moved from
the gas station and inventoried.



                                            10
attorney, either retained or appointed.’” Id. at 429 (quoting

Miranda, 384 U.S. at 444).           Statements made by a suspect during

custodial interrogation are inadmissible as evidence of guilt

unless   prior     Miranda   warnings    were    given.      See   id.    at   429.

However, “Miranda does not protect an accused from a spontaneous

admission     made     under       circumstances       not   induced      by    the

investigating officers or during a conversation not initiated by

the officers.”        United States v. Rhodes, 779 F.2d 1019, 1032

(4th Cir. 1985) (internal quotation marks omitted).

      It is undisputed that Cunningham was in custody and that

Miranda warnings had not been given prior to his conversation

with Deputy Forrest at the hospital.             It is also undisputed that

Deputy Forrest initiated the conversation about the firearm and,

in   doing   so,   informed    Cunningham       that   the   firearm     had   been

recovered from the truck.           The district court found that Deputy

Forrest’s statement to Cunningham about the firearm, while not

intended     to     elicit     a     response,     nonetheless      constituted

“custodial interrogation” for purposes of Miranda.                     See Rhode

Island v. Innis, 446 U.S. 291, 300-01 (1980) (holding “that the

Miranda safeguards come into play whenever a person in custody

is subjected to either express questioning or its functional

equivalent,” including “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”) (footnote

                                        11
omitted).        And    the       government   has       not   challenged      this

determination on appeal.

       Thus,   the   only   issue    before    us   is    whether    Cunningham’s

follow-up questions, as to whether he would be charged with the

firearm because he was a convicted felon, were also required to

be suppressed because they too were made in response to Deputy

Forrest’s initial statement, or whether the follow-up questions

amounted to a spontaneous admission that falls outside of the

protection of Miranda.            In light of Deputy Forrest’s testimony

that     Cunningham’s     questions     were   posed      “shortly    after     the

statement [Deputy Forrest] made,” J.A. 136, we are constrained

to hold that the district court erred in denying Cunningham’s

motion    to   suppress     the    follow-up    questions.          Although   the

questions did pertain more to Cunningham’s concerns about how

the discovery of the firearm might affect his future, they were

nonetheless directly related to the subject of Deputy Forrest’s

initial statement about the firearm, which the district court

found was reasonably likely to elicit just such an incriminating

admission.     Accordingly, we reverse the district court’s order

denying Cunningham’s motion to suppress the follow-up questions

posed by Cunningham to Deputy Forrest.

                                       III.

       For the foregoing reasons, we affirm the district court’s

order denying Cunningham’s motion to suppress the firearm.                      We

                                        12
reverse the district court’s order denying Cunningham’s motion

to suppress the follow-up questions he asked of Deputy Forrest

at   the   hospital,   and   remand    for   further   proceedings.     We

dispense    with   oral   argument     because   the   facts   and    legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.


                                                        AFFIRMED IN PART,
                                                        REVERSED IN PART,
                                                             AND REMANDED




                                      13
