                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-27-2005

USA v. Latz
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3952




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                                     NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                       No. 04-3952


                    UNITED STATES


                            v.

               CHRISTOPHER W. LATZ,
                               Appellant


      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
                  (D.C. No. 03-cr-00302)
      District Judge: Honorable William W. Caldwell




               Argued November 15, 2005
  Before: ROTH, FUENTES, and BECKER, Circuit Judges.

                    December 27, 2005

ROBERT N. TARMAN (ARGUED)
106 Walnut Street
Harrisburg, PA 17101
Attorney for Appellant

THOMAS A. MARINO
United States Attorney
ERIC PFISTERER
Assistant United States Attorney
THEODORE B. SMITH III (ARGUED)
Assistant United States Attorney
United States Attorney’s Office
Middle District of Pennsylvania
228 Walnut Street, Suite 220
P.O. Box 11754
Harrisburg, Pennsylvania 17108
Attorneys for Appellee


                     OPINION OF THE COURT


BECKER, Circuit Judge.

       This is an appeal by Defendant Christopher W. Latz from

a judgment in a criminal case pursuant to a conditional nolo

contendere plea reserving his right to challenge the denial of his

motion to suppress statements and physical evidence that

suggested that he owned a rifle and an explosive device. The

statements, which Latz made both before and after he was given

Miranda warnings, contained admissions that he owned a rifle and

an explosive device, which police later seized during a search of

Latz’s home conducted pursuant to a warrant.         This search

occurred after an initial warrantless search, which, Latz asserts,

was illegal. Latz further contends that the warranted search was

tainted both by the initial search and by an unmirandized

interrogation.

       We conclude that the District Court erred in refusing to


                                2
suppress Latz’s unmirandized statements. However, because the

“fruit of the poisonous tree” doctrine does not extend to physical

evidence discovered as a result of voluntary but unmirandized

statements, and because the initial search of Latz’s home was a

valid limited search incident to arrest, we conclude that the District

Court properly refused to suppress the physical evidence. We also

find that the District Court correctly declined to suppress

mirandized statements that Latz made after his unmirandized

statements, because the mirandized statements were tainted neither

by the prior unmirandized statements nor by an illegal search. We

thus conclude that the District Court erred only in refusing to

suppress Latz’s unmirandized statements. However, because we

also conclude that the admission of these statements was not

material, we will affirm the judgment of the District Court.

                              I. Facts

       Latz was indicted for being a felon in possession of a

firearm in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2) and

for possession of an explosive device, in violation of 26 U.S.C. §

5861(d). He moved to suppress all evidence discovered during a

warrantless search of his home, all evidence seized during a


                                  3
subsequent search conducted pursuant to a warrant, and all

statements that he made to law enforcement officers in his home,

in a police car, and at a booking center.

       The District Court held a suppression hearing, which

revealed the following sequence of events. On June 17, 2003,

Officer Brian Staley of the New Cumberland, Pennsylvania Police

Department responded to a complaint that Latz had attempted to

remove an air conditioning unit from the window of a home. The

complainant mentioned that Latz had guns in his home. At 12:30

a.m. on the following day, Staley visited Latz’s home. Latz told

Staley that he had been at home at the time in question and that

Patricia Roth, who lived with him, could confirm this alibi.

       After leaving Latz’s home, Staley ran a National Crime

Information Center (NCIC) check on Latz, which disclosed (1) the

existence of warrants for Latz’s arrest, (2) that Latz was in

possession of two guns (a .22 millimeter and a .9 millimeter), and

(3) that Latz was considered “armed and dangerous.” In order to

arrest Latz under the warrants disclosed by the NCIC check, Staley

returned to the area where Latz’s home was located. He was

joined by four other officers, including New Cumberland Police


                                 4
Chief Oren Kauffman, who was holding a twelve-gauge shotgun.

Staley, Kauffman, and one other officer went to the front door; two

other officers went to the back door.

       Staley knocked on Latz’s front door, and Latz opened it.

Staley told Latz that he needed to talk with him, and Latz’s eyes

shifted toward Kauffman, presumably because Kauffman was

holding the shotgun. According to Staley, Latz moved forward,

and his arms started to move away from his sides. After Latz

moved, Staley seized his left arm, and the officers told him to get

down. The officers brought Latz down on his front porch, and

Staley handcuffed him.

       Kauffman testified that he “stepped in the doorway just to

make sure there were no other issues.” Roth, who lived with Latz,

came down the stairs. Kauffman stated that he “looked to [his]

left-hand side to make sure there wasn’t somebody around the

corner and to make sure that that area was safe,” and he saw a

homemade knife laying on a television stand just inside the front

door. Upon entering, Kauffman also saw a “broken-down” rifle.

Kauffman then handcuffed Roth.

       Kauffman opened the back door to admit the officers


                                5
positioned outside. Latz, still handcuffed, was placed on his

couch, which Kauffman thought to be a safer location than the

porch. Kauffman ordered Staley to conduct a full sweep of the

house, and Staley did so.

      Kauffman told Latz that he was not obligated to speak, but

then questioned him without giving Miranda warnings. Kauffman

may have been holding his shotgun during the questioning, which

he described as follows:

      I basically advised him that he was under arrest, we
      had warrants from Cambria County, and he was
      considered armed and dangerous due to those
      warrants.
             I advised him briefly he didn’t have to talk
      with me, but we had some situations we had to get
      squared away before we move him out of the
      residence and take him to the West Shore Booking
      or Cumberland Jail, whichever.
             Q.      And did he say anything in response
                     to what you just said?
             A.      I continued on from that point and
      advised him that obviously there was some concern
      since he was considered armed and dangerous.
             My secondary concern was not only the
      safety of the officers, but also since Mr. Latz was
      going to be leaving the residence and if Ms. Roth
      proved that everything was okay and she was not
      going to be arrested for anything, that if there was
      anything left behind in the residence that may
      implicate her in anything, we need to know about it
      now so she wasn’t left holding the bag, in quotes,
      for something that he may have in the residence.


                               6
       In response to this questioning, Latz mentioned the rifle and

the homemade knife, both of which Kauffman had already seen.

Latz also mentioned that there were knives in a backpack in the

dining room closet. Kauffman located the backpack and removed

its contents, including an explosive device. The officers then

evacuated the house, and called both a bomb team and the Bureau

of Alcohol, Tobacco, Firearms and Explosives.

       Latz was placed in Staley’s patrol car. In the patrol car,

Latz stated that the explosive device belonged to him, and Staley

then gave him Miranda warnings.              Next, in response to

questioning, Latz admitted to Staley that the rifle, the homemade

knife, the explosive device, and a marijuana pipe spotted in his

home belonged to him. Kauffman was not present during this

round of questioning. Less than fifteen minutes separated Latz’s

unmirandized statements to Kauffman from the mirandized

statements he made in Staley’s patrol car.

       Latz was taken to a booking center, again given Miranda

warnings, and questioned about the explosive device by Kauffman

and other individuals, including an officer of the Pennsylvania

state bomb squad. It is not clear how much time separated this


                                 7
second round of mirandized questioning from the initial

unmirandized questioning, but it must have been at least three

hours and twenty minutes.1

       Notably, no evidence was seized during the June 18 entry

into Latz’s home. The rifle and the explosive device were seized

in a subsequent search, for which police had a warrant. However,

the warrant application reflected discoveries made or information

obtained during the warrantless search, listing both firearms and

explosive devices as objects to be seized. The Affidavit of

Probable Cause also stated that Latz had told Kauffman about the

rifle and that Kauffman had discovered the explosive device in the

backpack.

       The District Court denied Latz’s motion to suppress the

unmirandized statements, both sets of mirandized statements, and

the physical evidence.       It only explained its rationale for

suppressing the physical evidence, stating that the “fruit of the

poisonous tree” doctrine does not extend to derivative physical



       1
        This can be inferred because the second mirandized
interrogation occurred at approximately 11 a.m., and the first
mirandized interrogation (which transpired after the unmirandized
interrogation) occurred at approximately 7:40 a.m.

                                 8
evidence. Latz then entered a conditional plea of nolo contendere

to felon in possession of a firearm and was sentenced to 48 months

in prison. He filed a timely notice of appeal.

                    II. Standard of Review

       The government bears the burden of showing that a search

is reasonable under the Fourth Amendment. United States v.

Ritter, 416 F.3d 256, 261 (3d Cir. 2005) (citing United States v.

Johnson, 63 F.3d 242, 245 (3d Cir.1995)). We review the District

Court factual findings for clear error; our review of legal

conclusions is plenary. See Id. at 261 (citations omitted).

                          III. Analysis

              A. The Unmirandized Statements

       Latz moved to suppress the unmirandized statements that he

made to Kauffman while handcuffed and seated on his couch.

Under Miranda v. Arizona, 384 U.S. 436 (1966), a defendant’s

statements made in the course of a custodial interrogation are not

admissible as evidence unless the defendant receives appropriate

warnings, or an exception applies. See, e.g., United States v.

Leese, 176 F.3d 740, 743 (3d Cir. 1999).

       The government contends that Kauffman’s questioning of


                                9
Latz did not constitute a custodial interrogation under United

States v. Benton, 996 F.2d 642 (3d Cir. 1993), a case in which a

law enforcement officer mentioned to the defendant that he had

seen the defendant bend over near the location where a gun had

been discovered. In response, the defendant made a statement

suggesting that he owned the gun. Id. at 643. We rejected the

argument that the officer’s statement to the defendant constituted

an interrogation. Id. at 664. Instead, the defendant’s “remarks

were unforeseeable.” Id. at 664. In this case, in contrast, it was

forseeable that Latz would respond to Kauffman’s questioning.

Kauffman told Latz that he was not required to talk (suggesting

that Kauffman thought he might). But Kauffman was attempting

to gain information about firearms in Latz’s house. Because we

believe that Kauffman’s statements constituted an interrogation,

and because Latz was clearly in custody, we conclude that the

District Court erred in declining to suppress Latz’s unmirandized

statements.

                   B. The Explosive Device

       Chief Kauffman learned about the explosive device as a

result of his unmirandized interrogation of Latz, who was


                               10
handcuffed and sitting on his couch. The District Court declined

to suppress the explosive device on the ground that physical

evidence discovered through a custodial interrogation need not be

suppressed    even    if   the   defendant    did   not    receive

Miranda warnings.

       This Court has held that the Fourth Amendment does not

require suppression of physical evidence discovered as a result of

unmirandized but voluntary statements. See United States v.

DeSumma, 272 F.3d 176, 180-81 (3d Cir. 2001). The Supreme

Court recently reached the same holding in United States v.

Patane, 542 U.S. 630 (2004).          This holding results from

combining the plurality opinion of Justice Thomas with the slightly

more narrow concurrence in the judgment of Justice Kennedy,

joined by Justice O’Connor. See Patane at 641 (plurality opinion)

(“[P]olice do not violate a suspect’s constitutional rights (or the

Miranda rule) by negligent or even deliberate failures to provide

full Miranda warnings. Potential violations occur, if at all, only

upon the admission of unwarned statements into evidence.”)

(emphasis added); id. at 645 (Kennedy, J., concurring in the

judgment) (“In light of the important probative value of reliable


                                 11
physical evidence, it is doubtful that exclusion can be justified by

a deterrence rationale sensitive to both law enforcement interests

and a suspect’s rights during an in-custody interrogation.”).

Patane thus validates DeSumma.

       To distinguish Patane and DeSumma, Latz argues that his

statements were involuntary, as opposed to merely unmirandized.

See DeSumma, 272 F.3d at 180-81 (“We hold that the fruit of the

poisonous tree doctrine does not apply to derivative evidence

secured as a result of a voluntary statement obtained before

Miranda warnings are issued.”) (emphasis added). As we have

explained, “a statement is involuntary when the suspect’s ‘will was

overborne in such a way as to render his confession the product of

coercion.’” Lam v. Kelchner, 304 F.3d 256, 264 (3d Cir. 2002)

(quoting Arizona v. Fulminante, 499 U.S. 279, 288 (1991)). To

determine whether Latz’s unmirandized statements were

involuntary, we consider the totality of the circumstances in which

they were made. Id. at 264.

       The challenged interrogation was far from exemplary, and

Latz should have been mirandized. Before he made the

unmirandized statements, Latz had been placed on his porch by


                                12
three police officers, handcuffed, and then moved to his couch.

Kauffman, who did the questioning, may have been holding a

shotgun. However, nothing suggests, and Latz does not contend,

that Kauffman pointed the shotgun at Latz during the questioning.

Furthermore, there is no evidence that Latz was threatened, and

Kauffman told Latz that he did not have to talk. Under these

circumstances, we cannot find that Latz’s will was overborne.

Accordingly, we conclude that the District Court did not err in

denying Latz’s motion to suppress the explosive device.

              C. The Rifle and Homemade Knife

       Kauffman learned about Latz’s rifle and homemade knife

when he entered the house immediately after he and other officers

brought Latz down on his front porch. The government argues

that this initial entry into the house was a valid search incident to

arrest. The Supreme Court has stated that during an arrest in a

suspect’s home, officers may conduct a limited search incident to

arrest: “[A]s a precautionary matter and without probable cause or

reasonable suspicion, [police officers may] look in closets and

other spaces immediately adjoining the place of arrest from which

an attack could be immediately launched.” Maryland v. Buie, 494


                                 13
U.S. 325, 334 (1990) (emphasis added). Thus, a limited search of

the immediate adjoining area, unlike a broader protective sweep,

does not require reasonable suspicion.

       Kauffman’s initial search was limited: It extended only to

the area immediately inside the door, and it occurred while Latz

was on the porch, which adjoins the door. This constitutes a

limited search incident to arrest, and reasonable suspicion therefore

is not required.

       Latz relies on this Court’s decision in United States v.

Myers, 308 F.3d 251, 253 (3d Cir. 2002), in which a police officer

searched the bag of a defendant who had been arrested in his

residence and who was lying on the floor handcuffed during the

search. We first held that the police officer did not have probable

cause to arrest the defendant. Id. at 254. We then issued what

appears to be an advisory opinion on whether opening the bag

would have been a valid search incident to arrest if, hypothetically,

there were probable cause for the arrest. Id. at 266; see also id. at

284 (Alarcon, J., dissenting) (“In a discussion which lacks any

precedential value because it is unnecessary to its decision . . . the

Majority has opined that the search of the backpack was not


                                 14
incident to Myers’s arrest.”) (emphasis added).

       Even if Myers’ discussion of searches incident to arrest

were not dicta, Myers would not control this case. First, Myers

involved opening a bag, not a visual sweep. Second, in contrast to

this case, Myers involved a search that was not contemporaneous

with the arrest. Id. at 274. Most critically, we stated in Myers,

“[n]othing on this record suggests that [the officer] was concerned

that any confederate was lurking about.” Id. at 274. In this case,

by contrast, the police had reason to fear an attack by a third party.

They knew that Latz lived with Roth, they knew from the initial

complaint regarding the air conditioning unit that Latz had guns in

his house, and they knew from the NCIC background check that

Latz owned two guns and was considered armed and dangerous.

Kauffman testified that he “stepped in the doorway just to make

sure there were no other issues,” and that he “looked to [his] left-

hand side to make sure there wasn’t somebody around the corner

and to make sure that that area was safe.” Under Buie, this is a

search of “spaces immediately adjoining the place of arrest from

which an attack could be immediately launched.” Buie, 494 U.S.

at 334. Reasonable suspicion therefore is not required.


                                 15
       Latz argues that Kauffman’s entry into the home was illegal

because Latz was on the porch. But an attack could easily have

been launched through the open door. For the foregoing reasons,

we conclude that Kauffman’s search was not illegal. Accordingly,

the subsequent warranted search was not tainted by an illegal prior

search, and the District Court did not err in refusing to exclude the

rifle and homemade knife.2

                   D. Mirandized Statements

       Latz submits that the District Court erred in refusing to

suppress his mirandized statements in the police car and at the

booking center because these statements resulted from the initial

umirandized interrogation by Kauffman. The Supreme Court

recently considered a two-step interrogation process in Missouri v.

Seibert, 542 U.S. 600 (2004). In step one, officers questioned a

suspect without giving Miranda warnings and obtained a

confession; in step two, they obtained a second confession in a

mirandized interrogation.     Id. at 604.    The Court held that


       2
         We do not address whether Staley’s full sweep of Latz’s
house conducted after Kauffman’s initial entry violated the Fourth
Amendment. Police officers did not discover any evidence during
the full sweep, and thus the full sweep did not provide a basis for
the subsequent search warrant.

                                 16
statements obtained during the second interrogation are

inadmissible if “the two step interrogation was used in a calculated

way to undermine the Miranda warning.” Id. at 622 (Kennedy, J.,

concurring in the judgment).

       Because only four Justices joined the opinion of the

Supreme Court in Seibert, and because Justice Kennedy’s

concurrence in the judgment is more narrow than the plurality

opinion, Justice Kennedy’s opinion is the holding of the Court.

United States v. Naranjo, 426 F.3d 221, 231-32 (3d Cir. 2005).

Therefore, we inquire whether Kauffman’s failure to provide

Miranda warnings was “a simple failure to administer the

warnings rather than an intentional withholding that was part of a

larger, nefarious plot.” Reinert v. Larkins, 379 F.3d 76, 91 (3d

Cir. 2004). Kauffman testified that he asked Latz about weapons

in the house due to officer safety concerns, and no evidence

contradicts this testimony. Thus, Seibert does not apply because

Kauffman did not deliberately attempt to circumvent Miranda.

       This does not end our inquiry.         Although we see no

evidence of a deliberate withholding of Miranda warnings under

Seibert, we must still apply the traditional rule of Oregon v. Elstad,


                                 17
470 U.S. 298 (1985). See Naranjo, 426 F.3d at 232 (“[U]nless the

agents deliberately withheld warnings, Elstad controls [the

defendant’s] Miranda claim.”). Under Elstad, “[a] subsequent

administration of Miranda warnings to a suspect who has given a

voluntary but unwarned statement ordinarily should suffice to

remove the conditions that precluded admission of the earlier

statement.”   470 U.S. at 314.        To determine whether the

subsequent Miranda warnings are sufficient, we must consider

“who initiated the [initial] interrogation, the time that elapsed

between the two interrogations, the extent to which the same

police were involved in both interrogations, the manner in which

the [initial] interrogation was conducted,” and any other relevant

factors. United States v. Tyler, 164 F.3d 150, 158 (3d Cir. 1998)

(footnote omitted).

       Considering all of these factors, we do not think that Elstad

requires the suppression of either set of mirandized statements. As

discussed above, Kauffman’s statements to Latz were sufficiently

probing to constitute an interrogation. However, we glean from

Kauffman’s testimony that he did not question Latz directly, but

instead stated his concern about possible weapons in Latz’s home.


                                18
Furthermore, the unmirandized interrogation appears to have been

brief.     Less than fifteen minutes separated Kauffman’s

unmirandized interrogation from the first mirandized interrogation

(in Staley’s police car), but Kauffman was not in Staley’s car.

Kauffman did participate in the second round of mirandized

questioning (at the booking center), but this occurred at least three

hours and twenty minutes after the unmirandized interrogation.

Thus, we find that both sets of mirandized statements are

admissible.

         Relying on Taylor v. Alabama, 457 U.S. 687 (1982), Latz

also argues that District Court erred in refusing to suppress his

mirandized statements because “they were inextricably intertwined

with the illegal search.” Leaving aside the fact that Taylor

addresses the taint of illegal arrests, as opposed to illegal searches,

we see no connection between Latz’s mirandized statements and

any illegal search. As discussed above, Kauffman’s initial entry

into Latz’s home was not an illegal search. The full protective

sweep may (or may not) have been illegal, but none of the items

about which Latz were questioned were discovered during the

sweep. Thus, the questioning and the sweep were not intertwined,


                                  19
and the District Court did not err in refusing to suppress Latz’s

mirandized statements.

   E. Application of Federal Rule of Criminal Procedure
                         11(a)(2)

       Finally, given our determination that the District Court

erred in refusing to suppress Latz’s unmirandized statements but

ruled correctly on the balance of the suppression motion, we must

determine what becomes of Latz’s conditional plea. The plea is

governed by Federal Rule of Criminal Procedure 11(a)(2), which

provides:

       Conditional Plea. With the consent of the court and
       the government, a defendant may enter a conditional
       plea of guilty or nolo contendere, reserving in
       writing the right to have an appellate court review an
       adverse determination of a specified pretrial motion.
       A defendant who prevails on appeal may then
       withdraw the plea.

       The Rule makes it clear that when the Court of Appeals

reverses the denial of a suppression motion in full, the defendant

has the right to withdraw his plea. In such circumstances, the

defendant has “prevail[ed] on appeal.” However, the Rule does

not state whether a defendant can withdraw his plea if he

persuades the Court of Appeals that the District Court erred in

denying part of his motion to suppress. See United States v.

                                20
Leake, 95 F.3d 409, 420 (6th Cir. 1996) (“The question not

addressed is the effect of a partially successful appeal.”).

          The Ninth Circuit has suggested that a defendant has the

right to withdraw his plea when the Court of Appeals reverses any

part of the denial of a suppression motion. “If any ruling that

forms a basis for the conditional plea is found to be erroneous, we

are required to permit the defendant to withdraw his plea.” United

States v. Mejia, 69 F.3d 309, 316 n.8 (9th Cir. 1995). Meija,

however, involved two suppression motions, both of which were

critical to the defendant’s case. See id. at 311.

          In Leake, the Sixth Circuit held that the defendant had the

right to withdraw his plea because the District Court had

erroneously admitted “what appears to be the most damning

evidence against him.” Leake, 95 F.3d at 420. The Court then

stated:

          We do not mean to imply that every time a
          defendant manages to exclude any evidence on
          appeal following a conditional plea of guilty, he is
          entitled to withdraw his plea. The inquiry requires
          an examination of the degree of success and the
          probability that the excluded evidence would have
          had a material effect on the defendant’s decision to
          plead guilty.

Id. at 420 n.21.

                                  21
       We agree with the Sixth Circuit that a defendant “prevails

on appeal” only when he persuades the Court of Appeals to

exclude a piece of evidence that is material to his case. Here, we

have stated that the District Court erred in admitting Latz’s

unmirandized statements regarding the rifle, the homemade knife,

and the knives in the backpack. However, the District Court

properly admitted the rifle, the explosive device, and Latz’s

mirandized admissions that he owned the rifle and the explosive

device. These were the very items that he was charged with

possessing. Thus, Latz’s unmirandized statements were entirely

cumulative, and not material. We therefore conclude that Latz has

not “prevail[ed] on appeal” under Rule 11(a)(2), and he does not

have the right to withdraw his plea.

       The judgment of the District Court will therefore be

affirmed.




                               22
23
