In the
United States Court of Appeals
For the Seventh Circuit

No. 01-2892

United States of America,

Plaintiff-Appellee,

v.

Stacy L. Briggs,

Defendant-Appellant.

Appeal from the United States District Court
for the Northern District of Indiana, Fort Wayne Division.
No. 1:00-CR-46--William C. Lee, Chief Judge.

Submitted November 13, 2001/*--Decided November 30, 2001



  Before Flaum, Chief Judge, and Bauer and
Evans, Circuit Judges.

  Flaum, Chief Judge. After Stacy Briggs
was charged with possession of a
controlled substance with intent to
distribute, 21 U.S.C. sec. 841(a)(1), he
moved to suppress incriminating
statements he made to police. He argued
that the statements resulted from
improper "interrogation" by police after
he had invoked his right to counsel. The
district court declined to suppress the
statements. After entering a conditional
guilty plea, Briggs filed this appeal. We
affirm.

I.   Background

  Around 1:00 a.m. on August 31, 2000,
Indiana State Police trooper Andrew
Sparks stopped a 1985 Chevrolet pick-up
truck driven by Briggs because the
vehicle’s license plate light was burned
out. Officer Sparks ran a license check
on Briggs and his passenger, Clemmie
Trigg, and learned that neither had a
valid Indiana driver’s license. Sparks
also discovered that the truck was
registered to Jeff Lattimore, whom Briggs
claimed was his cousin. Sparks issued a
citation to Briggs for driving on a
suspended license and, after determining
that the truck could not be left on the
side of the road without posing a safety
hazard, called for a tow truck.
Additional police officers arrived
shortly thereafter. In accordance with
police policy, the police searched
andinventoried the truck before towing.
They found a baggie of crack cocaine
under the driver’s seat. Briggs and Trigg
were arrested and taken to the Wells
County Jail.

  At the jail, Detective Lieutenant Barry
Story advised Briggs of his rights under
Miranda v. Arizona, 384 U.S. 436 (1966).
Lt. Story asked Briggs if he would be
willing to sign a waiver and speak with
him. What happened next is in dispute. At
the suppression hearing, Briggs testified
that he told Lt. Story he would not sign
the waiver because he wanted to speak
with an attorney. According to Briggs,
Story did not stop the interrogation but
instead warned Briggs that both he and
Trigg were facing 20 to 50 years in
prison. Briggs recalled that he
protested, "[T]hat’s not fair," because
Trigg "had nothing to do with it." He
testified that he told Story the drugs
were his and that he had intended to sell
them in Marion, Indiana.

  Lt. Story testified to a different
version of events. He claimed at the
suppression hearing that immediately
after he read Briggs his rights, Briggs
announced without any prompting that the
drugs did not belong to Trigg. Story
recalled asking Briggs again if he was
going to sign the waiver, and Briggs
replied that "he’d probably better talk
to an attorney first." Story said that he
would take him back to the holding cell.
Briggs then reportedly asked Lt. Story
what would happen to Trigg, and Story
replied that he thought both men would be
charged with possession of cocaine.
According to Story, Briggs said "that’s
not fair" because the drugs belonged to
him and not Trigg. Briggs then described
how he had planned to sell the drugs in
Marion. As Briggs continued to describe
his activities, Story recalled warning
him to stop talking because he said he
wanted an attorney present. But Briggs
replied, "[I]t doesn’t matter anyway. I’m
going to die." Story, concerned that
Briggs might be suicidal, asked Briggs
what he meant by that statement. Briggs
said he thought he would either be killed
by the people who gave him the drugs or
would spend the rest of his life in
prison.

  After he was charged with possession of
drugs with intent to distribute in
violation of 21 U.S.C. sec. 841(a)(1),
Briggs moved to suppress his
incriminating statements, arguing that
they resulted from improper
"interrogation" by Lt. Story after he had
invoked his right to counsel. The
district court, after hearing testimony
from both Story and Briggs, credited the
officer’s account. The court determined
that Briggs had initiated further
communications with the police, thus
making his statements voluntary. Briggs
later entered a conditional guilty plea,
reserving his right to appeal the issues
decided in the suppression hearing. The
court sentenced Briggs to 70 months’
imprisonment and five years’ supervised
release. Briggs filed a timely notice of
appeal.

II.   Discussion

  A person who is interrogated while in
police custody has the right to request
the assistance of a lawyer. Miranda, 384
U.S. at 469-70; United States v. Jackson,
189 F.3d 502, 510 (7th Cir. 1999). Once a
suspect invokes the right to counsel, the
police must cease all interrogation until
counsel is present, unless the accused
himself initiates further communication.
Edwards v. Arizona, 451 U.S. 477, 484-85
(1981); Jackson, 189 F.3d at 511. If
police improperly interrogate the accused
after he has invoked his right to
counsel, any incriminating statements he
makes are inadmissible. Edwards, 451 U.S.
at 487.
  "Interrogation," so as to trigger the
right to counsel, means direct
questioning by the police, as well as
"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." Rhode Island v. Innis, 446
U.S. 291, 301 (1980); United States v.
Westbrook, 125 F.3d 996, 1005 (7th Cir.
1997). If the accused makes a statement
in response to some words or actions by
the police that do not constitute
interrogation, or if the accused himself
initiates further communications, the
police are not prohibited from "merely
listening" to his voluntary statement.
Edwards, 451 U.S. at 485. "Volunteered
statements of any kind are not barred by
the Fifth Amendment." Miranda, 384 U.S.
at 478; Westbrook, 125 F.3d at 1002.

  We review de novo a district court’s
determination whether conversations
between the accused and a law enforcement
officer constituted "interrogation."
Jackson, 189 F.3d at 509. A district
court’s findings of fact and credibility
assessments are reviewed for clear error.
Id. The decision to credit the testimony
of one witness over another, each of whom
has told a "facially plausible story,"
can almost never be clear error. United
States v. Jensen, 169 F.3d 1044, 1046
(7th Cir. 1999).

  In denying Briggs’s motion to suppress,
the district court heard the conflicting
testimony of Lt. Story and Briggs and
determined that the officer’s account was
more credible. We defer to the court’s
credibility determination. Lt. Story’s
account is not inherently implausible,
and facets of his testimony are bolstered
by Briggs’s own account of their
conversation. For example, at the
suppression hearing, Briggs stated that
he was concerned about Trigg’s well-
being; this acknowledgment supports Lt.
Story’s assertion that Briggs spoke up
spontaneously in an attempt to clear
Trigg of any wrongdoing. In short, Briggs
has not pointed us to anything in the
record to suggest that the district court
committed clear error in crediting Lt.
Story’s testimony.

  Accepting the truthfulness of Lt.
Story’s account, as did the district
court, we conclude that Briggs himself
initiated further communication with
police by asking Lt. Story what would
happen to Trigg. In response to that
question, Lt. Story said that he thought
both men would be charged with possession
of drugs. A police officer’s response to
a direct inquiry by the defendant does
not constitute "interrogation." See
United States v. Conley, 156 F.3d 78, 83
(1st Cir. 1998) (no interrogation where
police responded after suspect repeatedly
asked, "What’s this all about?"); United
States v. Taylor, 985 F.2d 3, 6-7 (1st
Cir. 1993) (no interrogation where police
officer responded to suspect’s question,
"Why is this happening to me?"); United
States v. Benton, 996 F.2d 642, 643-44
(3d Cir. 1993) (no interrogation where
police responded to suspect’s demand to
know "what was going on"); United States
v. Jackson, 863 F.2d 1168, 1172-73 (4th
Cir. 1989) (no interrogation where police
officer responded to defendant’s inquiry
regarding reasons for his arrest); see
also United States v. Payne, 954 F.2d
199, 203 (4th Cir. 1992) (no
interrogation where police officer’s
statement "was not one that sought or
required a response"). Thus, Lt. Story’s
statement that he thought Trigg would be
charged with the same offense as Briggs
did not constitute "interrogation."

  Moreover, the only direct question that
Lt. Story asked Briggs during this
exchange was what Briggs meant when he
said he was "going to die." Although
direct questioning by a police officer is
the most obvious form of improper
interrogation, not all direct questions
constitute "interrogation." United States
v. Foster, 227 F.3d 1096, 1102-03 (9th
Cir. 2000). Only questions that are
"reasonably likely to elicit an
incriminating response from the suspect"
are improper. Innis, 446 U.S. at 301-02.
A police officer does not interrogate a
suspect "simply by hoping that he will
incriminate himself." Arizona v. Mauro,
481 U.S. 520, 529 (1987); see also United
States v. Barnes, 195 F.3d 1027, 1029
(8th Cir. 1999) (no interrogation where
police officer asked accused what he
meant when he responded he "didn’t think
so," when informed he was going to be
booked for possession of a firearm). Lt.
Story’s follow-up question about Briggs’s
well-being did not relate to Briggs’s
crime, nor did it seem intended to elicit
an incriminating response. See Innis, 446
U.S. at 301; Westbrook, 125 F.3d at 1002.
Indeed, if Lt. Story believed Briggs was
suicidal, he acted reasonably in
inquiring further, since failing to take
proper precautions to prevent a
prisoner’s suicide might subject the
state to liability. See Sanville v.
McCaughtry, 266 F.3d 724, 733 (7th Cir.
2001).

  For these reasons, we agree with the
district court that Briggs’s statements
were voluntary.

AFFIRMED.

FOOTNOTE
/* We granted a motion to waive oral argument in
this case, and therefore the appeal is submitted
on the briefs and the record.
