                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                JUL 24 2000
                                    TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                     Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 99-3205
 AARON EUGENE CREECH,                                  (D.C. No. 98-CR-40086)
                                                              (D. Kan.)
           Defendant-Appellant.


                                 ORDER AND JUDGMENT*


Before BALDOCK, McWILLIAMS, and MURPHY, Circuit Judges.**


       A grand jury indicted Defendant Aaron Eugene Creech for possession of an

unregistered sawed-off shotgun in violation of 26 U.S.C. § 5861(d). Defendant filed

a motion to suppress evidence seized during a search of his apartment and a motion

to suppress statements made during the search. In a thorough written order, the district

court denied both motions. Thereafter, Defendant conditionally pled guilty to the


       *
          This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
       **
         After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(A)(2). The case is therefore
ordered submitted without oral argument.
indictment, reserving the right to appeal the court’s denial of his motions to suppress. See

Fed. R. Crim. P. 11(a)(2). The district court sentenced Defendant to eighteen months

imprisonment and Defendant appealed. Our jurisdiction arises under 28 U.S.C. § 1291.

       In reviewing the denial of a motion to suppress, we view the evidence produced

at the suppression hearing in a light most favorable to the Government. United States v.

Yazzie, 188 F.3d 1178, 1193 (10th Cir. 1999) (post-arrest statements); United States v.

Patten, 183 F.3d 1190, 1193 (10th Cir. 1999) (physical evidence). We accept the district

court’s factual findings unless they are clearly erroneous, but review the court’s legal

conclusions de novo. Yazzie, 188 F.3d at 1193; Patten, 183 F.3d at 1193. Applying these

standards, we affirm.

                                             I.

       The record amply supports the relevant historical facts as found by the district

court in its order. United States v. Creech, No. 98-40086-01-SAC, unpub. order at 7-10

(D. Kan. Dec. 31, 1998) (hereinafter “order”). On the afternoon of August 3, 1998,

three Topeka, Kansas law enforcement officers, accompanied by a United States deputy

marshal with the fugitive task force, arrested Defendant outside his apartment on North

Logan Street in Topeka, Kansas. Defendant was wanted on suspicion of aggravated

burglary and sexual assault unrelated to the present charge. Upon his arrest, Defendant

agreed to return to his apartment with the officers. Before entering the apartment and

before advising Defendant of his Miranda rights, see Miranda v. Arizona, 384 U.S. 436,


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469-73 (1966), Detective Robinson of the Topeka Police Department asked Defendant if

the officers could search his apartment. Defendant asked whether the officers would

obtain a search warrant if he did not consent to a search. The officers responded that they

would attempt to get a search warrant if Defendant refused to consent. Defendant

agreed to the search.

          Inside the apartment, Defendant sat on the living room couch without handcuffs

or other physical restraint and smoked a cigarette. Detective Robinson informed

Defendant that he did not have to speak with the officers, but again did not advise

Defendant of his Miranda rights. Detective Robinson then asked Defendant if he had any

weapons in his apartment. Defendant responded that he had a shotgun in the closet.

When the officers looked in the living room closet, Defendant responded that the gun was

in his bedroom closet. Officer Obregon, also of the Topeka Police Department, watched

Defendant while the other officers proceeded into the bedroom. During this time,

Defendant stated without provocation that he “had gotten a deal” on the shotgun and that

it “could cut a man in half.” The officers located the shotgun in Defendant’s bedroom

closet.

          Once the officers had seized and secured the shotgun, Detective Robinson

advised Defendant of his Miranda rights. At that point, Defendant indicated he “would

possibly” like to speak to his father or an attorney. Detective Robinson immediately

stopped speaking with Defendant and stepped away. The officers informed Defendant


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that he could make a phone call at police headquarters. Again without provocation,

Defendant indicated he wished to cooperate and would speak further with the officers.

After reminding Defendant of his Miranda rights, Deputy Marshal Weber asked

Defendant if he owned the shotgun. Defendant responded “yeah.” The indictment

followed.

                                             II.

       Defendant first argues that because the officers coerced his consent to search his

apartment, the search was unreasonable. See U.S. Const. amend. IV. According to

Defendant, “the representation by the officers that they would attempt to obtain a search

warrant if Mr. Creech refused to consent to the search was misleading and deceitful.” The

district court concluded that Defendant’s consent to search was voluntary. The

court noted the mere fact that the officers had informed Defendant they would attempt

to obtain a search warrant if he did not consent did not render his consent involuntary.

Moreover, the court reasoned that nothing in the record suggested the officers had

deceived or lied to Defendant about their intentions to seek a search warrant.

We agree with the district court.

       A search conducted pursuant to a consent is an exception to the Fourth

Amendment’s warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219

(1973). In relying on this exception to sustain a search, the Government must prove by

a preponderance of the evidence that consent was freely and voluntarily given. United


                                             4
States v. Soto, 988 F.2d 1548, 1557 (10th Cir. 1993). To determine whether a consent

to search was freely and voluntarily given, we assess the totality of the circumstances.

Schneckloth, 412 U.S. at 226-27. The Constitution requires only “that a consent not be

coerced, by explicit or implicit means, by implied threat or covert force.” Id. at 228. As

we recently explained in United States v. Dozal, 173 F.3d 787, 796 (10th Cir. 1999): “The

proper inquiry centers on whether the defendant suffered, inter alia, ‘physical

mistreatment, use of violence or threats of violence, promises or inducements, deception

or trickery.’” (quoting United States v. Glover, 104 F.3d 1570, 1584 (10th Cir. 1997)).

       Notably for our purposes, an officer’s failure to warn a suspect of the right to

refuse does not alone establish that a consent to search was involuntary. Schneckloth,

412 U.S. at 249 (“[W]hile the subject’s knowledge of a right to refuse is a factor to be

taken into account, the prosecution is not required to demonstrate such knowledge as a

prerequisite to establishing a voluntary consent.”). Similarly, where some basis exists to

support an application for a search warrant, an officer’s expressed intention to seek a

search warrant in the absence of consent does not render a consent involuntary. See, e.g.,

United States v. Tompkins, 130 F.3d 117, 122 (5th Cir. 1997) (officer’s statement that

“he would obtain” a search warrant if defendant refused to consent was but one factor to

be considered among the totality of the circumstances); United States v. White, 979 F.2d

539, 542 (7th Cir. 1992) (where officer’s expressed intention to obtain a search warrant

was genuine and not merely a pretext to induce submission, such intention did not vitiate


                                             5
consent); see generally United States v. Salvo, 133 F.3d 943, 954 (6th Cir. 1998) (listing

cases). Finally, a consent to search may be voluntary even though the suspect is detained

at the time of the consent and law enforcement officers have failed to advise him of his

Miranda rights. Dozal, 173 F.3d at 796. This is so because “[c]onsenting to a search is

not evidence of a testimonial or communicative nature which would require officers to

first present a Miranda warning.” United States v. Rodriguez-Garcia, 983 F.2d 1563,

1568 (10th Cir. 1993).

       The record viewed in a light most favorable to the Government belies Defendant’s

claim that the officers engaged in trickery or deceit to obtain his consent to search his

apartment. Rather, the record amply supports the district court’s conclusion that

Defendant’s consent “was unequivocal, specific, and freely given, and his consent

was given without duress or coercion, express or implied.” Order at 13. Defendant

plainly understood he had a right not to consent: He asked the officers whether they

would obtain a warrant if he refused. The officers’ response that they would seek a

search warrant for Defendant’s apartment if he refused to consent was certainly justifiable

in light of the evidence they had already gathered against him. Defendant was wanted

on both county and municipal warrants at the time of his arrest. During the burglary

and assault for which Defendant was wanted, certain items were stolen from the victim’s

home. The officers had a list of the stolen items and the victim had positively identified

Defendant as one of the assailants. The record fails to support Defendant’s claim that the


                                              6
officers’ expressed intentions to obtain a warrant were baseless or simply a pretext to

obtain Defendant’s consent. We find no error in the district court’s conclusion that

Defendant’s consent to search was voluntary.

                                            III.

       Defendant also argues the officers violated his right against self-incrimination

and to counsel, see U.S. Const. amend. V & VI, when they (1) failed to advise Defendant

of his Miranda rights before asking him about the presence of weapons in the apartment,

and (2) questioned him about his ownership of the shotgun after he indicated he might

like to speak with an attorney. The district court concluded that the pre-Miranda question

to Defendant regarding the presence of weapons in the apartment was permissible under

the “public safety exception” to Miranda. See New York v. Quarles, 467 U.S. 649

(1984). The court concluded that the post-Miranda question to Defendant regarding his

ownership of the shotgun was permissible because his request for counsel was

ambiguous. See Davis v. United States, 512 U.S. 452 (1994). We again agree with the

district court.

                                            A.

       In Quarles, 467 U.S. at 656, the Supreme Court held that police officers do

not need to recite Miranda warnings prior to asking a suspect questions “reasonably

prompted” by a concern for the public’s or their personal safety. In so holding, the

Court emphasized the distinction between (1) questions necessary to secure the safety


                                             7
of police officers and the public, and (2) questions designed to elicit testimonial evidence

from a suspect. Id. at 658-59; see also United States v. Padilla, 819 F.2d 952, 960-61

(10th Cir. 1987).

       Detective Robinson’s question regarding the presence of weapons in Defendant’s

apartment falls within the former category. As the district court noted, Defendant was not

handcuffed at the time Detective Robinson asked him if any weapons were in the

apartment. Detective Robinson made inquiry only a few minutes after Defendant and the

officers returned to his apartment. Neither the couch on which Defendant was sitting

unrestrained, nor any other location in his apartment, had been searched for weapons at

that time. Detective Robinson asked only the question necessary to locate any weapons

before advising Defendant of his Miranda rights. See Quarles, 467 U.S. at 659. The

shotgun was not among the items listed as stolen during the burglary and assault, and the

officers were not specifically searching for the shotgun to make a case against Defendant.

Detective Robinson continued to speak with Defendant only after the shotgun had been

secured and he had properly advised Defendant of his rights. Under these circumstances,

the district court properly concluded that Detective Robinson’s inquiry was “reasonably

prompted” by a concern for the officers’ safety.1


       1
         The district court also properly noted that certain statements which Defendant
made during the search were “spontaneous, unsolicited, and were not the product of any
interrogation.” Order at 23. First, when the officers began to look in the living room
closet for the shotgun, Defendant told them the shotgun was in the bedroom closet.
                                                                               (continued...)

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                                             B.

       Similarly, the district court properly concluded that Deputy Marshal Weber did

not violate Defendant’s right against self-incrimination or to counsel when he asked if

Defendant owned the shotgun. If a suspect requests an attorney at any time during a

custodial interrogation, law enforcement officer must immediately cease questioning the

suspect until a lawyer has been made available or the suspect reinitiates conversation.

Edwards v. Arizona, 451 U.S. 477, 484-85 (1981). But if a suspect makes a reference to

an attorney that is ambiguous or equivocal in that a reasonable officer in light of the

circumstances would have understood only that the suspect might be invoking the right to

counsel, questioning need not cease. Davis, 512 U.S. at 459.

       In this case, Defendant’s request to speak with an attorney was not only

equivocal, he also reinitiated his conversation with the officers after they ceased

questioning him. After Detective Robinson read Defendant’s Miranda rights,

Defendant indicated he “would like to talk possibly with an attorney.” Rec. vol. II

at 36. When Detective Robinson backed off, Defendant stated: “No, it’s fine I’m going to


       1
        (...continued)
Opening the door to the closet nearest the couch was not an action which the officers
should have known was likely to elicit an incriminating response from Defendant.
Second, without any prompting, Defendant indicated to Officer Obregon that he had
“gotten a deal” on the shotgun and it could “cut a man in half.” Because Detective
Robinson’s initial question to Defendant regarding the presence of weapons in the
apartment was proper, these subsequent unsolicited statements were undoubtedly
admissible against Defendant.


                                              9
talk to you, I don’t have any problem with it.” Id. at 24-25. Deputy Marshall Weber then

reminded Defendant of his Miranda rights before asking Defendant if he owned the

shotgun. Under these circumstances, Defendant has not demonstrated any constitutional

violation.

       AFFIRMED.

                                        Entered for the Court,



                                        Bobby R. Baldock
                                        Circuit Judge




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