Appeal from the United States District Court for the Southern District of Illinois. No. 06-30071-DRH-David R. Herndon, Chief Judge.
The opinion of the court was delivered by: Flaum, Circuit Judge.
Before CUDAHY, FLAUM, and WOOD, Circuit Judges.
A federal jury convicted Calvin Montgomery of being a felon in possession of a firearm. Montgomery now appeals the district court's denial of his motion to suppress his statement implicating himself for that crime. He argues that his statement was involuntary because it was given in response to promises of leniency, invoking a supposed per se rule prohibiting the police from making promises to a suspect in order to extract a confession. Alternatively, Montgomery argues that his statement was involuntary under a totality of the circumstances approach. He also argues that the police failed to honor his right to silence and to cut off questioning.
For the following reasons, we affirm the district court's denial of the motion to suppress.
In the early morning hours of April 13, 2004, Aubrey Keller of the East St. Louis Police Department made a traffic stop of the car that Montgomery was riding in. Montgomery, without being told to do so, got out of the car and dropped something (Keller claimed it sounded like a beer bottle) on the ground. When Keller demanded that Montgomery make his hands visible, Montgomery began turning towards Keller and then dropped a second object on the ground. From the sound that second object made, Keller surmised that it was a gun. Keller then saw Montgomery kick at the second object, and Keller then heard the sound of the gun skittering across the pavement, and saw it stop on the ground near the driver's side of the car. Keller arrested Montgomery and took him to the East St. Louis police station, booking him for unlawful use of a weapon by a felon. Keller testified in later proceedings that during the course of his contact with appellant, Montgomery did not appear to be drunk or under the influence of drugs, and in fact that Montgomery executed the turn-around-while-kicking-thegun maneuver without having any problems with his balance.
A. First Police Interview
Later that morning, Marion Riddle, a detective with the East St. Louis police department, attempted to interview Montgomery. Riddle gave Montgomery a form containing the standard Miranda warnings and had Montgomery sign the form to indicate that he understood his rights. Montgomery then told Riddle he did not wish to give a statement, and Riddle ended the interview. The interview was not videotaped, and Riddle later testified that police department policy at that time did not require officers to videotape all interviews. This first interview, which began a little after 8:00 on the morning of October 13, ended by about 8:10.
B. Roll Call Room Discussion
Riddle informed Desmond Williams, another detective with the East St. Louis Police Department, that Montgomery did not wish to make a statement. Riddle also told Williams that, based upon the information they had on hand, Montgomery may have been a felon in possession of a firearm, and thus subject to federal criminal charges. Williams then called in Paul Heiser, a special agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to assist with Montgomery's case. Heiser went to the police department building, where Williams briefed him on the case and ran Montgomery's criminal history through a database. Heiser, along with Williams, conducted interviews with Sean Bell and Nathaniel Holmes, two other passengers in the car with Montgomery at the time of the traffic stop. Sometime between 2:30 and 3:00, Heiser and Williams then went down to the department's jail, where Montgomery was present in a cell with some of the other people arrested during that morning's traffic stop. Because they could not speak to him with his cellmates present, Williams and Heiser walked Montgomery up to the roll call room at the station.
Williams introduced Heiser to Montgomery and explained why he was in the police station. Williams said that they wanted to talk to Montgomery, but not directly about the facts of his case. Heiser testified that the discussion touched on Montgomery's marital problems and his drinking, and Montgomery also asked why federal authorities were getting involved. The two investigators claimed that because they did not intend to speak with Montgomery about the specifics of his case, they did not give him a set of Miranda warnings before this discussion.
When Heiser told Montgomery that he was present at the station because the police had reviewed his criminal history report and suspected he was a felon in possession of a firearm, Montgomery told the two investigators, "Well, that's not my firearm." Heiser responded that the other two passengers in the car had given statements, and that the police would examine the gun for fingerprints and would trace the gun back to Montgomery if they found his fingerprints on it. Montgomery again said that the weapon was not his, and Heiser said that if Montgomery wanted to "explain [his] side of the story," Heiser could take him upstairs, advise him of his rights, and let him give a statement.
During this conversation in the roll call room, Montgomery asked Heiser what sort of jail time he could expect if the case went federal. Heiser replied that the statutory maximum was ten years. (Heiser claims that he was unaware at this time that Montgomery would be sentenced under an Armed Career Criminal provision of the sentencing guidelines, resulting in a longer prison sentence than ten years.) Montgomery told Heiser, "I don't want ten years." After some additional back-and-forth on the ...