                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 13-4739


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

ANTHONY WALKER,

                  Defendant - Appellant.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.      James K. Bredar, District Judge.
(1:12-cr-00579-JKB-1)


Argued:   December 11, 2014                 Decided:   April 29, 2015


Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.


Affirmed by unpublished opinion.       Judge Gregory wrote        the
opinion, in which Judge Wilkinson and Judge Duncan joined.


ARGUED: Julie L.B. Johnson, OFFICE OF THE FEDERAL PUBLIC
DEFENDER, Greenbelt, Maryland, for Appellant.  Michael Clayton
Hanlon, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.  ON BRIEF:  James Wyda, Federal Public
Defender, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Baltimore,
Maryland, for Appellant.    Rod J. Rosenstein, United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge:

      The     defendant-appellant,               Anthony     Walker,         challenges      the

district court’s denial of his pre-trial motions to suppress

statements        made    and     a    firearm       obtained    after      his    arrest    for

drunk driving and the subsequent search of his vehicle.                               Because

we   find    no    clear        error    in   the     district      court’s       rulings,    we

affirm.



                                                I.

      Walker was charged on November 1, 2012, in a one count

indictment with possession of a firearm and ammunition under 18

U.S.C.     § 922(g)(1).            He    pleaded      not   guilty,      and      later   filed

motions to suppress statements that he made during the course of

his arrest, as well as tangible and derivative evidence.

      On    May    13,     2013,        the   district      court     held    a    hearing    on

Walker’s      motions        to       suppress.          During       the     hearing,       the

government presented testimony from the two arresting officers,

Officers     Ryan        Hill    and     Erin    Masters,       and    their      supervisor,

Sergeant Kevin Toliver.

      Officer Hill testified that he and Officer Masters were on

patrol in a marked police car in the early hours of June 3,

2012.       They were headed northbound on Division Street in West

Baltimore, when they observed a white Mazda make a wide right

turn into the southbound lane of Division Street.                              Both officers

                                                 2
identified    Walker      in    court   as       the   driver       of    the   vehicle.

According to Officer Hill, Walker “actually kind of came over

into the right lane, my lane of traffic, and then came back over

and   sped   --    went    at    a   high       rate   of    speed       southbound   on

Division.”    J.A. 50; 1 see also J.A. 51 (“[T]he car was at least

halfway over into my side of the street . . . .”); J.A. 121

(Officer Masters’ testimony that “the right turn was very wide,

and the vehicle got very close to our patrol car”).                               Officer

Hill made a U-turn and began following Walker.                            As they were

following Walker, Officer Hill observed Walker’s vehicle slow

down but fail to stop at two stop signs.                          J.A. 52-53 (“Q. So

there was no complete stop?             A. No.         Not -- not close.”); see

also J.A. 121 (Officer Masters’ testimony that the white Mazda

“[f]ailed to stop at two stop signs”).                   Officer Hill thereafter

activated    the   police       cruiser’s       lights      and    siren    and   pulled

Walker over.       Walker parked his vehicle at an angle from the

curb.     The front of the vehicle was about four feet from the

curb, and the rear of the vehicle was about twelve feet from the

curb.

      Officer Masters approached the passenger side of the car

and Officer Hill approached the driver’s side door.                               Officer


      1
       Citations to the J.A. refer to the parties’ Joint Appendix
filed in this case.



                                            3
Hill    asked    Walker   for   his    license   and   registration.          Walker

responded by presenting a “passenger-for-hire ID, not an actual

driver’s license.”          J.A. 63.      Officer Hill testified that he

twice    handed    the    passenger-for-hire      ID   back    to    Walker,     but

Walker again presented the same ID.              J.A. 66; J.A. 123 (Officer

Masters’ testimony that “[t]he Defendant was trying to hand him

-- I didn’t know at the time what it was, but later found out it

was a sedan license, and Officer Hill said, ‘No, I need your

driver’s license’”).

       Officer Hill stated that Walker’s eyes were bloodshot and

glassy and that he was not fully complying with instructions.

Additionally, Officer Hill smelled an alcoholic odor on Walker

and emanating from Walker’s vehicle.              Officer Masters testified

that she also smelled alcohol on Walker’s breath, but not until

Walker was outside of the vehicle.                Officer Hill additionally

testified       that   Walker    repeatedly      leaned     toward    the     center

console of the vehicle, was pulling on the emergency brake and

“he was just doing odd . . . hand motions towards the center of

the car.”       J.A. 67-68.

       Upon observing Walker’s movements, and given also the odor

of   alcohol,     Officer     Hill    asked   Walker   to   exit     his    vehicle.

Walker did not do so.           Hill thus reached inside, turned off the

ignition, and again requested that Walker step outside.                      Officer

Hill stated that Walker instead leaned further toward the center

                                         4
of the car and put his hands down.                   Officer Hill then “grabbed

[Walker’s] arm and pulled him out of the car.”                          J.A. 69; see

also       J.A.   125    (Officer    Masters’      testimony    that,    “initially,

[Officer Hill] asked the Defendant to exit the vehicle.                        When he

did    that,      I   observed   the    Defendant      lean    towards   the    center

console.          He did not comply.             Officer Hill then removed the

Defendant from the vehicle”).

       As the officers accompanied Walker to the rear of his car,

he stumbled at least one time.                   Officer Hill inquired whether

Walker had consumed any alcohol.                   Walker first denied drinking

anything, but when asked again, he admitted to having a beer and

a   vodka.        Officers    Hill     and   Masters    handcuffed      and   arrested

Walker once he reached the back of his car.                      Officer Hill did

not recall whether he formally advised Walker that he was under

arrest at that time, but Officer Masters recalled that Officer

Hill did so.            Officer Hill did not conduct any field sobriety

tests because he is “not certified through the State of Maryland

to give a field sobriety test.” 2                  J.A. 73.     He also testified



       2
       Officer Hill testified that he was “in the U.S. Coast
Guard as a boarding officer” and that, while he “was field
sobriety test trained” through the Coast Guard, “that doesn’t
make [him] certified to do it in Maryland.”    J.A. 74.   In his
capacity as a United States Coast Guard boarding officer, his
“dut[ies] include[d] observing people and making judgments about
whether or not a person is intoxicated or under the influence
while operating a seacraft.”     J.A. 74.   He was trained “to
(Continued)
                                             5
that because it was a weekend night, it was unlikely that other

law enforcement officials could come to the scene to conduct the

tests.     He noted, however, that he “received training in the

Police Academy for observations for impaired drivers.”             J.A. 74.

    Officer Masters remained at the rear of the vehicle with

Walker, while Officer Hill returned to the driver’s side door of

Walker’s car.        Officer Hill testified that he was compelled to

check    the   car   because   Walker’s   actions   immediately    prior   to

being removed from the car suggested that he was attempting to

conceal evidence.       He stated that he thought he would find “some

kind of alcohol or -- my biggest thing, I figured it was some

kind of a controlled dangerous substance.”           J.A. 76.     Instead of

alcohol or a controlled substance, Officer Hill discovered a

firearm when he opened the center console.            He stated that the

firearm was next to a bag of rubber gloves with the pistol grip

facing upward and the barrel facing down into the console.                 He

also saw a cell phone and a dollar bill under the driver’s seat.

At some point, Officer Hill also located both Walker’s Maryland

driver’s license, as well as his vehicle registration.

    Officer Hill testified that the car had to be towed.               Thus,

even if he had not expected to find any evidence in the car, he



observe . . . gait, the ability to stand up, speech, being
talkative, having mussed-up clothing,” and the like. J.A. 74.



                                      6
would    still    have     entered    the     vehicle       to     retrieve      the

registration.      Moreover, he stated that the Baltimore Police

Department’s procedures require officers to “fill out a towed

vehicle report that gives all the information of the vehicle,

why it’s being towed, and then you do an inventory of the car

before   towing   the    vehicle.”     J.A.    77;    see    also       J.A.    35-43

(Baltimore    Police     Department       General    Order       I-2:          Towing

Procedures). 3    The search would have encompassed the passenger

compartment, including the center console.

     Upon    discovering    the   firearm,     Officer      Hill    signaled      to

Office Masters that he had found a gun.              After removing the gun


     3
        The policy statement in the Towing Procedures provides:
“It is the policy of the Baltimore Police Department to request
medallion towing services for civilian vehicles that have been
involved in traffic incidents and are creating a traffic hazard,
are found to be stolen or are being held for evidence.”      J.A.
35.    Prior to towing a car that must be moved due to an
accident, disability, and/or emergency, officers must “[r]emove
and inventory all property of value left in the trunk and the
interior of the car.”   J.A. 36; see also J.A. 37 (“Itemize all
property, removed from the vehicle, on the Vehicle Report and
process    according to   departmental  procedure.”);   J.A.   40
(providing that when a vehicle must be towed due to the arrest
of the owner/operator, officers should “have the vehicle towed
to the City Yard in keeping with procedures for ‘Vehicles
Disabled As A Result Of an Accident, Disability, and/or
Emergency’ section of this Order”).       The Towing Procedures
further state that “[a]n inventory is not conducted for the
purpose of searching for contraband, but to secure the contents
of the vehicle and to protect the officer against civil suits
arising from claims of loss or damage.    Remove any property of
value from the interior of the car.    When looking for evidence
of a crime, get a warrant.” J.A. 36.



                                      7
from Walker’s car and unloading it, Officer Hill advised Walker

of his Miranda rights.             He did so from memory, and recited his

standard warning during the suppression hearing as follows:

     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.     If you
     cannot afford an attorney, one will be appointed to
     you.   At any point during questioning, you can feel
     free to stop answering questions. At any point during
     questioning, you can feel free to request a lawyer.

J.A. 81.       He stated that he normally then asks if the arrestee

understands the rights.            In this case, Walker indicated that he

understood his rights.             Officer Hill then asked Walker if he

nonetheless would like to answer some questions, and Walker said

that he would.        Officer Hill acknowledged that he did not recall

the exact words Walker used in stating that he understood his

rights and was still willing to answer questions, but he was

certain      that   Walker   had    verbally    affirmed   his   understanding.

Walker did not request a lawyer.

     Walker initially denied any knowledge of the gun.                 Officer

Hill thus asked his supervisor, Sergeant Toliver, to come to the

scene   to    speak   with   Walker,    and    Walker   eventually   stated   to

Sergeant Toliver that he found the gun in an alley.                   Sergeant

Toliver testified that he asked Walker, “If you found it, why

didn’t you call the police instead of picking it up and driving

around with it?”         J.A. 137.           Walker allegedly replied, “Why

would I call the police?”            J.A. 137.    Sergeant Toliver testified

                                         8
that, “[a]t that time, [Walker] didn’t appear to be in a stable

frame of mind,” and he thus advised Officers Hill and Masters

that he would take Walker to the station.            J.A. 137.      He stated

that, “on the ride to the station, [Walker] was just talking and

babbling.”     J.A. 137; see also J.A. 141-42 (describing Walker’s

speech   as    “hyper”   and   “fast”   and   “all    over    the    place”).

Sergeant Toliver testified that he did not ask Walker any more

questions, but that, throughout the ride to the station, Walker

“kept making up or saying different stories of how he got in

possession of the handgun.”      J.A. 139; J.A. 141.         Walker did not

request an attorney or invoke his right to remain silent while

he was with Sergeant Toliver.

     Later, at the station, Officer Hill filled out paperwork,

including citations for failure to stop at two stop signs and

driving while under the influence, as well as an “advice of

rights” form that Baltimore police officers must provide prior

to administering a breathalyzer.        J.A. 84-86.     The citations did

not include any information about Walker reaching toward the

center console of the vehicle, or about why Officer Hill ordered

Walker to exit his vehicle.       Officer Hill stated that he failed

to include the “furtive gestures” in his report because “[t]hat

wasn’t part of [his] probable cause for arresting [Walker].”

J.A. 94.      Additionally, Officer Hill’s reports failed to state

that he was not qualified in the State of Maryland to conduct

                                    9
field sobriety tests; rather, they stated only that Walker was

unable to perform the tests.                 Finally, the towed vehicle report,

which Officer Masters completed, failed to record the dollar

bill and the cell phone that Officer Hill discovered when he

searched Walker’s car.               Officer Hill stated that he forgot to

tell    Officer       Masters    about       the    two     items    in     the    excitement

surrounding      the    discovery       of    the     gun.        According       to    Officer

Hill, Walker refused to take a breathalyzer or to sign any of

the paperwork.

       On cross examination, Officer Hill testified that he had

conducted       four   or     five     DUI    traffic       stops    prior      to     stopping

Walker, and Officer Masters testified that she had conducted two

or three DUI stops.              Officer Hill stated that on each prior

occasion,       the    drivers       were    arrested,       and     the     vehicles       were

subsequently searched because the officers “have to go into the

car    either    way    . . .    before       we    tow     it,     . . .    we      always    go

through the car once . . . .”                 J.A. 113.        He further stated that

he “always tow[s] the car on DUIs . . . .”                        J.A. 113.

       Before     the       district         court,       Walker      argued         that     the

statements       he    made     both    before        and    after     his      arrest      were

obtained in violation of his Fifth and Sixth Amendment rights,

were involuntary, and were the fruit of his illegal arrest.                                    He

additionally      argued      that     even    if     his    arrest       was     lawful,     the



                                              10
search of his car was a violation of his Fourth Amendment rights

under Arizona v. Gant, 556 U.S. 332 (2009).

       The district court judge denied both of Walker’s motions to

suppress from the bench.               First, the district judge found that

there was probable cause to arrest Walker based on:                      his erratic

driving;   failure       to     stop   at   two     stop   signs;    strong    odor     of

alcohol; failure to comply with requests made by Officer Hill

for his license; furtive gestures toward the center of the car

“consistent, in the officer’s experience, with someone who is

trying to conceal or hide something or dispose of something”;

failure    to    exit     the    vehicle      when    asked;    and    stumbling       or

staggering when walking to the rear of his vehicle.                           J.A. 155-

56.    The court further concluded that Officer Hill had probable

cause to reenter Walker’s vehicle based on the “ample evidence

. . . that the Defendant was operating that vehicle while he was

impaired by some substance.”                 J.A. 157 (highlighting the “odd

movements” Walker was making with his hands and the “suspicion

on the officer’s part that the Defendant was trying to conceal

something”).        The       district      judge    found    alternatively          that,

“given how that car was parked on that road with that defendant

now lawfully having been arrested, that car had to be moved out

of Division Street.”             J.A. 158.        Accordingly, the court found

that it was appropriate for the officers to have the car towed.

J.A.   157-58.          Specifically,       even     if    Officer    Hill     had    not

                                            11
conducted the search at issue, he or another officer would have

conducted an inventory search prior to towing, and discovery of

the firearm was thus inevitable.

       As   to   Walker’s   motions   to   suppress    his   statements,   the

court found that the preliminary statements made by Walker were

responses to appropriate preliminary questions that may be asked

without a Miranda advisement.          Moreover, Officer Hill’s verbal

Miranda advisement complied with the requirements of Miranda.

Finally, the district court found that, based on the testimony

offered,     “the   Defendant   was    not   falling    down,   incoherently

drunk, but, at the same time, was sufficiently impaired that it

was . . . unlawful for him to operate a motor vehicle.”                    J.A.

161.    The court continued:

       I don’t find that from the evidence presented at this
       hearing that the Defendant was so inebriated that he
       really had no meaningful understanding of what he was
       being told or what he was being asked, and . . . he
       had   enough    residual   competency,    despite his
       impairment, to understand the advisement that he
       received and to knowingly and intelligently waive his
       Miranda warnings and participate in the conversations
       that he participated in with the police officers.

J.A. 161.

       Walker was tried by a jury from May 28-30, 2013 on one

count of violating 18 U.S.C. § 922(g)(1).              On May 30, 2013, the

jury found him guilty, and he was later sentenced to 72 months’

imprisonment, to be followed by 3 years of supervised release.

This appeal followed.

                                      12
                                           II.

       We review the district court’s factual findings underlying

a motion to suppress for clear error, and the court’s legal

determinations de novo.              See United States v. Wilson, 484 F.3d

267, 280 (4th Cir. 2007) (citing Ornealas v. United States, 517

U.S.       690,    699    (1996)).      When    a   suppression        motion   has   been

denied, we review the evidence in the light most favorable to

the government.            See United States v. Seidman, 156 F.3d 542, 547

(4th Cir. 1998).

       Walker advances four arguments.                    He argues first that there

was no probable cause for his arrest; second, that the firearm

should have been suppressed as the fruit of the unlawful arrest;

third, that he was so intoxicated that any waiver of his Miranda

rights       was     involuntary,       unknowing,         and    unintelligent;      and

finally, that his statements should have been suppressed as a

result of the unlawful arrest and search. 4                            We address each

argument in turn.

                                               A.

       Walker        contends    that    Officer      Hill’s     stated    reasons    for

probable          cause   were   “ambiguous”        and    did   not   create   probable

cause for the arrest.                Probable cause for arrest exists when


       4
       Walker does not challenge the statements that he made
prior to his arrest.



                                               13
“facts and circumstances within the officer’s knowledge . . .

are sufficient to warrant a prudent person, or one of reasonable

caution,    in    believing,             in    the    circumstances             shown,          that    the

suspect has committed, is committing, or is about to commit an

offense.”        Michigan           v.   DeFillippo,             443    U.S.        31,    37    (1979).

“While probable cause requires more than ‘bare suspicion,’ it

requires less than that evidence necessary to convict.”                                            United

States    v.     Gray,       137    F.3d       765,    769       (4th        Cir.    1998)       (citing

Brinegar v. United States, 338 U.S. 160, 175 (1949)).                                        “It is an

objective standard of probability that reasonable and prudent

persons    apply        in     everyday        life.”             Id.         Moreover,          because

probable    cause       is     an    “objective”           test,        we    thus    “examine          the

facts within the knowledge of arresting officers to determine

whether    they     provide          a    probability            on     which       reasonable          and

prudent    persons       would       act;      we     do    not       examine       the     subjective

beliefs    of    the     arresting            officers       to       determine       whether          they

thought that the facts constituted probable cause.”                                             Id.; see

also     Whren     v.        United       States,          517     U.S.        806,        813     (1996)

(reiterating       that        “subjective            intent           alone        does     not       make

otherwise lawful conduct illegal or unconstitutional” (internal

alteration and ellipsis omitted)).

       Walker argues that Officer Hill’s testimony that he smelled

a “strong odor” of alcohol emanating from Walker and his vehicle

is   contradicted        by     Officer        Masters’          testimony           that       she    only

                                                 14
smelled alcohol on Walker’s breath once he was outside of the

car.     He also takes issue with the fact that Officer Masters did

not    testify,         as    Officer     Hill    did,       that    Walker’s         eyes    were

bloodshot         or    glassy,      despite      spending          more       time   in     close

proximity with him than Officer Hill.                        These differences are not

enough       to    call      the    district      court’s       factual         findings      into

question,         especially        given   the        consistency         between     the     two

officers’ stories, as well as the defendant’s own admissions.

First,       both       officers      smelled         alcohol       on     Walker’s        breath.

Second, both testified that Walker stumbled at least once on his

walk to the rear of the vehicle.                        Third, it is undisputed that

Walker was driving erratically:                       he made a very wide right turn

such that his vehicle crossed into the opposing lane of traffic,

and then proceeded at a high rate of speed through two stop

signs without coming to a complete stop.                         Finally, the defendant

admitted to consuming two alcoholic beverages.                              Thus, regardless

of     the    alleged        inconsistency        in     their       testimony,        the    two

officers      indeed         had   probable      cause       “sufficient        to    warrant    a

prudent person, or one of reasonable caution, in believing, in

the    circumstances            shown,    that    the    suspect         has    committed,      is

committing, or is about to commit an offense.”                                 DeFillippo, 443

U.S. at 37.

       Walker          argues      next   that        upon    observing         his    apparent

impairment, the appropriate course of conduct would have been

                                                 15
for the officers to conduct field sobriety tests.                               However, he

cites      no    legal      authority     for        this   argument.         Indeed,      other

circuits (albeit in unpublished opinions) have found that there

existed probable cause to arrest in cases where police had not

conducted field sobriety tests prior to arrest.                               See Ankele v.

Hambrick,        136     F.    App’x     551,    552-53      (3d     Cir.    2005)    (finding

probable cause to arrest for driving under the influence where

officer     observed          defendant       walked       with   “staggered     gait,”         had

bloodshot eyes, had alcohol on his breath, and admitted that he

had been drinking alcohol); Otero v. Town of Southampton, 194 F.

Supp. 2d 167, 172, 178 (E.D.N.Y. 2002), aff’d, 59 F. App’x 409

(2d Cir. 2003) (finding probable cause to arrest for driving

while intoxicated where police officer observed bus driver cross

double     yellow       line,     make    a     wide    turn      into    oncoming       lane    of

traffic,         and    fall     to     the     ground       when     exiting       his    bus).

Performance on field sobriety tests, while undoubtedly helpful,

is   but    one    factor       among     many       that    might    serve    as    a    proper

foundation for probable cause for an officer to arrest a driver

on   suspicion         of     driving    under       the    influence.        See,       e.g.,    1

Donald      H.     Nichols       &     Flem     K.     Whited      III,     Drinking/Driving

Litigation § 5:5 (2d ed. 2006) (“Following a stop the officer

will be looking for additional information to establish probable

cause for arrest.               Information an officer may use to establish

probable cause includes an erratic driving pattern or a driving

                                                 16
offense accompanied by various symptoms of intoxication.                       Poor

performance on the field sobriety test, an odor of alcohol on

the breath, unsteadiness, a flushed face, and bloodshot eyes are

factors that following a stop constitute adequate grounds for

arrest.”      (footnotes     omitted)).     Even     if,   as   Walker    argues,

“Officer Hill was simply not interested in establishing how Mr.

Walker    would    perform   on   those    tests,”    Appellant’s        Br.    13,

Officer Hill’s subjective intent is immaterial in light of the

ample    indicia   of   intoxication.      The     district     court    did    not

clearly err in finding that a reasonably prudent person could

assume from Walker’s actions that he was driving while under the

influence of alcohol, and that there was thus probable cause for

his arrest.

                                      B.

    Walker next contends that the district court erred when it

denied his motion to suppress the firearm as the fruit of an

unlawful    arrest. 5      However,   as   discussed       above,   there       was


    5
        Although Walker’s motion before the district court also
challenged the search of his car under Arizona v. Gant, 556 U.S.
322 (2009), J.A. 15, he has not advanced that argument on
appeal.    We thus deem the issue waived and do not reach the
district court’s rulings concerning Gant.        Schlossberg v.
Barney, 308 F.3d 174, 182 n.6 (4th Cir. 2004).    Even if Walker
had not waived his Gant argument, there would be no need to
decide whether a Fourth Amendment violation had occurred.
Rather, we are persuaded by the district court’s analysis
concluding that, because Walker’s vehicle was blocking traffic
and had to be towed, it was inevitable that police would have
(Continued)
                                      17
probable cause for Walker’s arrest.            Accordingly, we reject his

argument that the search was the fruit of an unlawful arrest.

                                       C.

     Walker also argues that, even if there was probable cause

for his arrest, his statements must be suppressed because he was

too intoxicated to waive his Miranda rights.                  In making his

arguments, Walker concedes that “[a]t the suppression hearing,

the government presented uncontested evidence that Officer Hill

recited from memory a Miranda warning to Mr. Walker after he was

placed    under   arrest.”       Appellant’s     Br.    23.    He   does    not

challenge the sufficiency of the Miranda warning, but focuses

instead on the effectiveness of his waiver.

     “Miranda held that once given the now familiar warnings of

his rights under the fifth and sixth amendments, a suspect could

‘waive effectuation of these rights, provided the waiver is made

voluntarily, knowingly and intelligently.’”               United States v.

Smith, 608 F.2d 1011, 1012 (4th Cir. 1979) (citing Miranda v.

Arizona,   384    U.S.   436,   444   (1966)).    The    Supreme    Court   has

reiterated that while requiring Miranda warnings “does not, of

course,    dispense      with   the    voluntariness      inquiry[,]       . . .

‘[c]ases in which a defendant can make a colorable argument that



discovered the firearm while conducting an inventory                   search
pursuant to Baltimore Police Department procedure.



                                       18
a self-incriminating statement was ‘compelled’ despite the fact

that the law enforcement authorities adhered to the dictates of

Miranda are rare.’”           Dickerson v. United States, 530 U.S. 428,

444 (2000) (quoting Berkemer v. McCarty, 468 U.S. 420, 433 n.20)

(internal citation omitted).

      As we have previously observed, our “inquiry into whether

an individual waived effectuation of the rights conveyed in the

Miranda warnings has two distinct dimensions.”                    United States v.

Cristobal, 293 F.3d 134, 139 (4th Cir. 2002) (citing Edwards v.

Arizona, 451 U.S. 477, 482 (1981)).                   “First, the relinquishment

of the right ‘must have been voluntary in the sense that it was

the     product      of     free    and       deliberate    choice     rather    than

intimidation, coercion, or deception.’”                     Id. at 139 (quoting

Moran    v.   Burbine,       475    U.S.      412,   421   (1986)).      Second,    in

addition to being voluntary, “the waiver must have been made

with a full awareness of both the nature of the right being

abandoned and the consequences of the decision to abandon it.”

Id. at 140.         We determine whether a Miranda waiver is voluntary,

knowing,      and    intelligent        by    examining    the   totality   of     the

circumstances.            “Only    if   the    ‘totality    of   the   circumstances

surrounding the interrogation’ reveal both an uncoerced choice

and the requisite level of comprehension may a court properly

conclude that the Miranda rights have been waived.”                      Moran, 475

U.S. at 421.

                                              19
                                             i.

       The voluntariness of a waiver depends on “the absence of

police overreaching, not on ‘free choice’ in any broader sense

of the word.”      Colorado v. Connelly, 479 U.S. 157, 170 (1986).

A   defendant’s   “incriminating             statement         is    deemed     involuntary

only if induced by such duress or coercion that the suspect’s

‘will has been overborne and his capacity for self-determination

critically    impaired.’”         United          States    v.       Locklear,      829     F.2d

1314, 1317 (4th Cir. 1987).             “To determine whether a defendant’s

will has been overborne or his capacity for self determination

critically impaired, courts must consider the ‘totality of the

circumstances,’ including the characteristics of the defendant,

the    setting    of   the       interview,          and       the        details     of    the

interrogation.”        Cristobal,       293        F.3d    at       140    (quoting    United

States v. Pelton, 835 F.2d 1067, 1072 (4th Cir. 1987)).                                       As

relevant to this case, we have held that consumption of pain

killers and narcotics are alone insufficient to render a waiver

involuntary.        Id.     at    141.             Rather,          the     focus     of     the

voluntariness determination remains “whether one’s will has been

overborne.”      Id. (“[A] deficient mental condition (whether the

result of a pre-existing mental illness or, for example, pain

killing   narcotics     administered           after       emergency         treatment)      is

not,   without    more,    enough       to    render       a     waiver       involuntary.”

(citing   Connelly,       479    U.S.    at       164-65)).               Similarly,       other

                                             20
circuits     have    held       that      intoxication         does    “not    automatically

render a confession involuntary; rather, the test is whether

[this] mental impairment[] caused the defendant’s will to be

overborne.”         United States v. Casal, 915 F.2d 1225, 1229 (8th

Cir. 1900); see also United States v. Montgomery, 621 F.3d 568,

574 (6th Cir. 2010) (citing Casal); United States v. Muniz, 1

F.3d   1018,      1022    (10th      Cir.       1993).        “The    Government       has   the

burden of proving, by a preponderance of the evidence, that the

defendant’s        waiver       of     his      Miranda       rights     was    knowing      and

voluntary.”        United States v. Robinson, 404 F.3d 850, 859 (4th

Cir. 2005).

       Here, Walker has presented no evidence that Officers Hill

or     Masters      engaged          in        any     “intimidation,          coercion,       or

deception.”        Burbine, 475 U.S. at 421.                    Rather, the uncontested

evidence     before       the    district            court   showed    that    Officer       Hill

advised Walker of his Miranda rights, and that Walker thereafter

consented to answer questions.                        The interview took place on the

side    of   the     road,      and       comprised          questions    about      what    the

officers found in Walker’s car, as well as whether he had been

drinking.      Although Walker was placed in handcuffs, there are no

allegations        that     any      officers          deceived       Walker    or     elicited

statements from him in a coercive manner.                           Moreover, there is no

evidence     in    the    record       that          the   officers    sought     to   exploit

Walker’s       intoxication               in         order     to      unlawfully       obtain

                                                 21
incriminating statements from him.              See Cristobal, 293 F.3d at

141 (finding waiver voluntary where evidence did “not show that

law    enforcement      officials        exploited       Cristobal’s        weakened

condition with coercive tactics,” where he did not request not

to be interviewed, and where “[n]o officer harmed or threatened

to harm Cristobal if he did not waive his rights and answer

. . . questions”).           On reviewing the record in this case, we

find that Walker’s waiver was voluntary.

                                      ii.

       We next determine whether the waiver was “made with a full

awareness of both the nature of the right being abandoned and

the consequences of the decision to abandon it.”                      Cristobal, 293

F.3d at 140.       Put differently, we must consider whether the

waiver was made knowingly and intelligently.                    Id.     “Unlike the

issue of voluntariness, police overreaching (coercion) is not a

prerequisite     for   finding    that    a    waiver    was     not    knowing    and

intelligently made.”          Id. at 142.       We must consider, however,

whether   Walker’s     intoxication      was    such     that    it    impaired    his

ability to give a knowing and intelligent waiver of his Miranda

rights.      Id. (“Because we find no coercive police activity (and

thus   the    waiver   was    voluntary),      it   is   in     our    inquiry    into

whether Cristobal’s waiver was knowing and intelligent that his

mental condition due to the pain killers and narcotics is the



                                         22
most    relevant.”).          As    with    voluntariness,             we    consider    the

totality of the circumstances.              Id.

       “The test of whether a person is too affected by alcohol or

other drugs voluntarily and intelligently to waive his rights is

one of coherence, of an understanding of what is happening.”

United States v. Smith, 608 F.2d 1011, 1012 (4th Cir. 1979); see

also id. at 1012-13 (finding district court did not clearly err

in   concluding       that   Miranda       waiver       was    valid    where      defendant

testified that he had “drunk enormous quantities of alcohol in

the twenty-four hour period before the interview” with police,

because district court found that “while Smith appeared to be

drinking . . . he was sober enough to know where he was and to

recognize who the people around him were” (internal quotation

marks    omitted)).          In    Cristobal,       we        explicitly      declined    to

“stat[e] that whenever a defendant can show that he was given

medication, his Miranda waiver was per se ineffective.”                                  293

F.3d    at   142.      While      medication       is    certainly          different   from

alcohol in some respects, we see no reason to announce a per se

rule that intoxication, without more, is sufficient to render a

Miranda      waiver    ineffective.              “Other       circuits,       in    likewise

upholding      Miranda       waivers,        have        done      so       despite      drug

impairment.”        Montgomery, 621 F.3d at 572-73 (citing Cristobal,

and cases from the Seventh, Eighth and Tenth Circuits); United

States v. Burson, 531 F.3d 1254, 1258 (10th Cir. 2008) (holding

                                            23
that “[t]he mere fact of drug or alcohol use will not suffice”

to show that a defendant’s Miranda waiver is ineffective, but

rather the defendant “must produce evidence showing that his

condition was such that it rose to the level of substantial

impairment”).

      The totality of the circumstances here does not suggest that

the district court’s factual findings were clearly erroneous.

The court credited Officer Hill’s indication in his report that

Walker’s intoxication was “obvious, but not extreme.”                    J.A. 161.

The court found that Walker’s driving was erratic, and that he

had   at   least    some    trouble      walking.        The    district        court

additionally acknowledged Sergeant Toliver’s observations “that

some of [Walker’s] answers to the questions were a little –

suggested that the guy was a little bit out of it.”                  J.A. 161.

However, the court did not “find from the evidence presented

. . . that the Defendant was so inebriated that he really had no

meaningful understanding of what he was being told or what he

was being asked.”     Id.

      To be sure, and as just described, there is evidence in the

record of the effects of alcohol consumption on Walker.                           But

viewing    the   evidence     in   the        light   most   favorable     to     the

government, Seidman, 156 F.3d at 547, the district court did not

clearly err in finding that those effects were not substantial

enough     to    render     Walker’s      Miranda      waiver    unknowing         or

                                         24
unintelligent.       Walker’s own words and actions suggested that he

was aware of the import of the traffic stop, arrest, and the

Miranda       warning.      He    pulled       his    car     over     immediately          when

Officer Hill turned on the police cruiser’s lights.                                  He first

denied    consuming      alcohol,        and    then        admitted      to    having      two

drinks.       He initially denied knowledge of the firearm, and then

later    made    several    inconsistent         statements          about     how    he     had

obtained the gun.           Though Walker answered some questions, he

affirmatively       refused      to     sign    any     paperwork         or    to    take    a

breathalyzer at the police station.                     Although Sergeant Toliver

characterized Walker’s speech as “hyper” and “fast,” J.A. 141,

Walker’s       responses    and    actions       were        more    in    line      with    an

individual       attempting      to     avoid    detection          than     one     who    was

unaware of what he was doing or saying.                         Cf. United States v.

Boon    San    Chong,    829     F.2d    1572,       1574    (11th     Cir.     1987)       (“An

accused’s decision to answer some questions, but not others,

further supports a finding of an implied waiver -- the accused’s

selective responses suggest an understanding of the right not to

respond.”).        Importantly, in addition to what can be gleaned

from Walker’s actions and words, Officer Hill’s testimony, which

the     district    court      credited,        was    that     Walker         was    not     so

intoxicated that he was not aware of his rights or did not

understand them.



                                           25
     We thus conclude that the district court did not clearly err

in   finding        that   Walker’s        Miranda       waiver     was     knowing     and

intelligent.          Because Walker does not otherwise challenge the

Miranda warning         that    he    received,      we     find    that    the   district

court    did    not    err     in    denying       his     motion    to    suppress     his

statements.

                                            D.

     Finally,        Walker     argues      that     his     post-arrest      statements

should have been suppressed as fruit of an unlawful arrest and

search,   even       assuming       that   the     Miranda    warning       was   properly

given, understood, and waived.                In so arguing, Walker predicates

his argument that the search of his vehicle was unlawful on the

assumption that his arrest was unlawful.                       But as we concluded

above,    there      was   probable        cause    for     Walker’s       arrest.      The

district court thus did not err in denying Walker’s motion to

suppress the statements at issue.

     Moreover, even if the district court did err in refusing to

suppress Walker’s statements, we would review the admission of

the statements at trial for harmless error beyond a reasonable

doubt.     United States v. Mobley, 40 F.3d 688, 693 (4th Cir.

1994).         At   trial,     Walker       did    not     dispute     Officer       Hill’s

testimony that the barrel of the gun was facing down into the

center console, and the pistol grip was facing upward.                            Nor did

he dispute that the firearm was loaded.                       And, importantly, the

                                            26
car that Walker was driving was registered in his name.                          Given

the positioning and easily reachable location of the gun, the

fact that Walker was the only individual in the vehicle at the

time of the arrest, and the fact that Walker was driving his own

vehicle   at    the     time    of    the    arrest,      the    admission     of    the

statements at issue was harmless error.                   The government provided

sufficient     evidence    aside      from       the    statements   “to      establish

constructive possession under § 922(g)(1)” because a reasonable

jury could find beyond a reasonable doubt that he “intentionally

exercised    dominion     and   control          over   the   firearm,   or    had   the

power and the intention to exercise dominion and control over

the firearm.”       United States v. Scott, 424 F.3d 431, 435-36 (4th

Cir. 2005) (affirming conviction on the basis of constructive

possession     of   a   firearm      in   violation      of   § 922(g)(1)      where   a

passenger in the defendant’s car was carrying a gun and the

defendant advised the passengers that he refused to continue

driving if the gun was not removed); see also United States v.

Branch, 537 F.3d 328, 343 (4th Cir. 2008) (“As we have held,

‘[a] person has constructive possession over contraband when he

has ownership, dominion, or control over the contraband itself

or over the premises or vehicle in which it [is] concealed.’”

(quoting United States v. Singleton, 441 F.3d 290, 296 (4th Cir.

2006)).      Accordingly, even if it was error to allow Walker’s

post-arrest statements concerning the firearm, such error was

                                            27
harmless.    See Mobley, 40 F.3d at 694 (finding that it was

harmless error to admit defendant’s statement about presence of

weapon in   his    apartment   at    trial   where   evidence   showed   that

defendant   “was    the   sole      occupant   of    the   apartment,”   the

apartment was leased in his name, and the gun was located among

the defendant’s clothing).



                                     III.

     For the foregoing reasons, the judgment of the district

court is

                                                                  AFFIRMED.




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