                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                         NOV 13 2002
                                   TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 UNITED STATES OF AMERICA,

          Plaintiff - Appellee,
                                                       No. 01-1504
 v.                                                D.C. No. 01-CR-53-B
                                                      (D. Colorado)
 RONALD JAMES FISHER, JR.,

          Defendant - Appellant.


                             ORDER AND JUDGMENT *


Before KELLY, McKAY, and MURPHY, Circuit Judges. **


      Defendant-Appellant Ronald James Fisher entered a plea of guilty to using

and carrying a firearm during and in relation to a drug trafficking crime pursuant

to 18 U.S.C. § 924(c)(1)(A)(i) for which he was sentenced to 60 months

imprisonment, followed by a three-year term of supervised release. On appeal, he

challenges the district court’s denial of his motion to suppress evidence obtained

      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This 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 the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.
in a warrantless search of his vehicle and statements made by him prior to

receiving Miranda warnings. We have jurisdiction under 28 U.S.C. § 1291 and

affirm.



                                     Background

      On January 21, 2001, two Aurora, Colorado, police officers noticed Mr.

Fisher park and walk away from his vehicle while leaving the motor running and

lights on. The officers told Mr. Fisher that leaving a running vehicle unattended

is a violation of the Aurora Municipal Code. The officers approached the vehicle

and asked Mr. Fisher for his driver’s license. As Mr. Fisher reached into the open

vehicle, one of the officers illuminated the interior with a flashlight and noticed a

gun in plain view on the floorboard behind the front passenger seat. Mr. Fisher

was immediately arrested for carrying a concealed weapon.

      After other officers arrived at the scene for backup, Mr. Fisher was

handcuffed and placed in the back of a patrol car. Two officers searched the

interior of the vehicle, retrieving a Glock .45 semi-automatic handgun and two

packages of Newport cigarettes. Upon opening one of the cigarette packages, an

officer discovered what appeared to be crack cocaine in a clear plastic bag and a

razor blade with white power residue on it.

      During the drive to the station with Mr. Fisher, two officers in the front of


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the patrol car conversed with each other regarding possible federal charges

against Mr. Fisher ostensibly because they had found cocaine and a weapon. Mr.

Fisher spoke up during the officers’ conversation, stating that he was never in the

vehicle and that the police could not “hang” the drugs and gun on him and that

the officers should “get their story straight.”



                                      Discussion

      We review the district court’s factual findings for clear error, but Fourth

Amendment reasonableness and Fifth Amendment voluntariness are questions of

law reviewed de novo. See, e.g., United States v. Hernandez, 93 F.3d 1493, 1501

(10th Cir. 1996); United States v. Lewis, 71 F.3d 358, 360 (10th Cir. 1995).

First, we consider the propriety of the police officers’ warrantless search of Mr.

Fisher’s vehicle. The validity of Mr. Fisher’s arrest for carrying a concealed

weapon is not disputed here, and Mr. Fisher’s vehicle was searched within four to

five minutes of his arrest. Under these circumstances, the search was valid as a

search incident to arrest, and we need not address the alternate argument as to

whether the search was a valid inventory search. See New York v. Belton, 453

U.S. 454, 460 (1981) (holding that “when a policeman has made a lawful

custodial arrest of the occupant of an automobile, he may, as a contemporaneous

incident of that arrest, search the passenger compartment of that automobile” and


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“examine the contents of any containers found within the passenger

compartment”); United States v. Lugo, 170 F.3d 996, 1003 (10th Cir. 1999);

United States v. Cotton, 751 F.2d 1146, 1149 (10th Cir.1985) (“[W]here an

officer has made a lawful arrest of a suspect in an automobile, he may seize

articles found within the interior of the automobile as part of a search incident to

a lawful arrest, even where the arrestee is outside of the vehicle and

handcuffed.”).

      Mr. Fisher also argues that the district court erred in not suppressing the

statements he made in the patrol car during transport to the station because he was

not advised of his rights as required by Miranda v. Arizona, 384 U.S. 436 (1966).

It is certainly true that Miranda warnings are required when a suspect is subjected

to custodial interrogation. However, we agree with the district court’s conclusion

that no such warnings were required because, even though the defendant may

have been in custody, statements by the officers in the front seat of the patrol car

made to each other do not constitute interrogation of the defendant.     See Rhode

Island v. Innis, 446 U.S. 291, 300 (1980) (holding that defendant’s incriminating

statements that interrupted officers’ conversation in patrol car were not result of

interrogation). We agree that defendant’s statements (which were nonetheless

exculpatory) were voluntary and spontaneous; the statements were not made in

response to words or actions by the officers that were “reasonably likely to elicit


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an incriminating response.” Id. at 301.

      AFFIRMED.



                                          Entered for the Court

                                          Paul J. Kelly, Jr.
                                          Circuit Judge




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