United States v. Swanson

In the

United States Court of Appeals

For the Seventh Circuit

No. 10-2178

U NITED S TATES OF A MERICA,

Plaintiff-Appellee,

v.

T HOMAS L. S WANSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of Illinois, Western Division.

No. 3:09-CR-50026—Frederick J. Kapala, Judge.

A RGUED JANUARY 7, 2011—D ECIDED M ARCH 24, 2011

Before M ANION and W ILLIAMS, Circuit Judges, and

C LEVERT, District Judge.Œ

W ILLIAMS, Circuit Judge. In 2009, an arrest warrant was

issued for Thomas Swanson. It was based on his 2008

possession of a firearm without a valid Firearm Owner’s

Œ

The Honorable Charles N. Clevert, Jr., Chief Judge of the

United States District Court for the Eastern District of Wis-

consin, sitting by designation.

2 No. 10-2178

Identification card, which is a violation of Illinois state

law. At the time of his arrest, the police presented

Swanson with a state court order to turn over all guns

in his possession to them as a condition of bond. A

police officer also asked him three times to comply with

the turn-over order. The arresting officers did not give

Swanson notice of his federal constitutional right not to

incriminate himself. Approximately forty-five minutes

after Swanson’s arrest, while he was being held in

custody in an interrogation room of a police station, he

said that he wanted to comply with the court turn-over

order, and admitted that he had a gun hidden under

the back seat of his car. As an officer retrieved the gun,

another officer gave Swanson his Miranda warnings.

Swanson then submitted to a written question-and-

answer interview where he again admitted possession of

a gun.

Swanson was eventually charged with the federal crime

of possession of an unregistered firearm. He moved to

have the gun and any statements he made about the

gun suppressed, arguing that the police obtained the

evidence in violation of his Fifth Amendment right

against self-incrimination. The district court denied

Swanson’s motion to suppress, finding that his state-

ments about the gun were spontaneous and voluntary.

We disagree. Swanson’s initial statement was the result

of an unwarned custodial interrogation, which excuses

his failure to invoke his constitutional protection against

self-incrimination. And his second Mirandized written

statement was tainted by the unconstitutional manner

in which the first statement was obtained. The district

No. 10-2178 3

court’s denial of Swanson’s motion to suppress is

reversed, and the case is remanded for further pro-

ceedings consistent with this opinion.

I. BACKGROUND

In June 2009, Thomas Swanson was charged in a one-

count indictment with knowingly possessing a sawed-

off shotgun that was not registered to him in the Na-

tional Firearms Registration and Transfer Record in

violation of 26 U.S.C. § 5861(d). Swanson filed a motion

to suppress the shotgun and any statements he made

about the weapon. The district court granted Swanson a

hearing and ultimately denied the motion, finding,

among other things, that the statements surrounding

the gun were “spontaneously volunteered” and admis-

sible into evidence. On February 5, 2010, Swanson entered

into a conditional guilty plea agreement that allowed

him to appeal the district court’s denial of his motion

to suppress.

The events giving rise to the 2010 guilty plea began

approximately two years earlier, in April 2008. Sergeant

David Ford of the Hinckley, Illinois Police Depart-

ment received information from a confidential informant

that Swanson was planning to rob a bank. Sergeant

Ford and an agent from the Federal Bureau of Investiga-

tion went to Swanson’s home in Sandwich, Illinois to

interview him. During the interview Swanson said that

his family was having financial difficulties and that he

had obtained a pistol and had written a bank robbery

note. He said he never actually intended to rob a bank,

4 No. 10-2178

though, because every time he would think of going

through with it he would think of his kids and cry. He

also said that he was “off [of his] medications.” He told

Sergeant Ford that the pistol he obtained for the

robbery was in his car, and he gave him permission

to search for it. Sergeant Ford searched the car and

found the pistol and bank robbery note.

At some point during the interview Sergeant Ford asked

Swanson to produce his state issued Firearm Owner’s

Identification (FOID) card, which is required for an

Illinois resident to legally possess or purchase a firearm.

Swanson showed Sergeant Ford his FOID card, and

Sergeant Ford noticed that the card had expired. He

confiscated Swanson’s pistol and contacted the DeKalb

County State’s Attorney’s Office to seek criminal pros-

ecution against Swanson for possession of a firearm

without a valid FOID card. The office declined to prose-

cute.

Approximately one year later, in April or May of

2009, Sergeant Ford learned from the same confidential

informant that Swanson had resumed his plans to rob a

bank. Sergeant Ford contacted the State’s Attorney’s

Office again, and this time charges against Swanson

were authorized. Sergeant Ford prepared a criminal

complaint for the April 2008 violation of 430 ILCS

65/2(a)(1), which prohibits possession of a firearm

without a valid FOID card. Sergeant Ford also prepared

an arrest warrant for Swanson for unlawful possession of

a firearm. Although the arrest warrant was based on the

April 2008 violation, the warrant itself did not state a

date of offense.

No. 10-2178 5

On May 27, 2009, Sergeant Ford went to a DeKalb

County judge to present the complaint and arrest warrant.

He was accompanied by an assistant state’s attorney.

Sergeant Ford did not have any reason to believe that

Swanson had firearms in his possession at the time he

went to obtain the arrest warrant. The judge, Sergeant

Ford, and the assistant state’s attorney were the only

three persons present when the complaint and arrest

warrant were presented. The ex parte hearing occurred in

the judge’s chambers, and no recording or transcript

was prepared. During the hearing, which lasted approxi-

mately five to seven minutes, Sergeant Ford detailed

the investigation into Swanson’s planning of bank rob-

beries. He explained that the criminal complaint was

based on an offense that occurred in April 2008, but

that he had recently received information that Swanson

was in the process of planning to rob a bank again. He

also explained that he had checked with the state police

and they had not yet issued a new FOID card for

Swanson. The judge asked why the government was not

pursuing a charge of attempted bank robbery, and the

state’s attorney responded that there had been no

specific attempt on any bank. The judge signed the

arrest warrant charging Swanson with unlawful posses-

sion of a firearm.1

1

Because there is no transcript of the hearing in the state

judge’s chambers, these facts come from Sergeant Ford’s

testimony at the district court’s hearing on Swanson’s motion

to suppress.

6 No. 10-2178

After the judge signed the arrest warrant, the assistant

state’s attorney recommended that Swanson be required

to turn over all firearms as a condition of bond. He

drafted a handwritten order that said, “As further condi-

tion of bond, Defendant, Thomas Swanson is directed

to turn over any firearms in his possession + control to

the Hinckley or Sandwich police department.” The

judge signed the order.

Armed with the arrest warrant and the turn-over

order that had been signed by the judge, Sergeant Ford

went to Swanson’s home on May 28, 2009. He was

joined by a police officer from Sandwich. When they

arrived at the house at 10:01 a.m., they found Swanson

outside on the front lawn with his four-year-old son.

They asked to speak with Swanson and after Swanson’s

son went inside, they presented him with the arrest

warrant and told him that he was under arrest for

unlawful possession of a firearm. Sergeant Ford also

presented the turn-over order and explained that the

judge had issued a court order as a condition of bond

that required Swanson to turn over all firearms. He then

asked Swanson if he had any firearms in his possession

“that he wanted to turn over in compliance with the

court order.” Swanson said that he had two shotgun

cases in the house under his bed and gave Sergeant Ford

permission to enter the house and retrieve them. One

case contained a shotgun and the other contained only

a barrel.

After retrieving the shotgun cases Sergeant Ford went

back outside, and again encouraged Swanson to comply

No. 10-2178 7

with the court’s turn-over order. As Sergeant Ford later

testified, he said “Again, I said—I explained that I didn’t

want him to be in violation of the court order, that

I wanted to make sure that he was in compliance, asked

him if there were any other guns or even look-alike

guns that he wanted us to secure.” Swanson replied that

there was a look-alike BB gun in his car, retrieved it

from the center console, and gave it to Sergeant Ford.

When Swanson asked Sergeant Ford to explain his

arrest, Sergeant Ford said he would explain later when

they sat down and talked. Sergeant Ford then urged

Swanson to comply with the turn-over order a third

time by “ask[ing] him one more time, just to be sure, to

give him a moment to think.” Swanson replied that he

did not have any other weapons. Swanson remained

calm and cooperative throughout the time at his house.

An officer placed Swanson in the back seat of a police

car and drove him to the Sandwich Police Department.

Swanson was not given Miranda warnings when he

was presented with the arrest warrant and turn-over

order, while he was at his house, before he was placed

in the police car, while he was being driven to the

police station, or when he arrived at the police station.

Sergeant Ford stayed at Swanson’s house while

Swanson was taken to the police station. He inter-

viewed Swanson’s wife, searched his car, and did not

find any weapons. When he finished his search he went

to the Sandwich Police Department where Swanson

had been taken.

At approximately 10:45 a.m. Sergeant Ford went to the

interrogation room where Swanson was being held. As

8 No. 10-2178

soon as Sergeant Ford walked in the room, “Mr. Swanson

immediately informed me that he wanted to be honest

with me, that he wanted to comply with the court

order, and that there was one more shotgun under-

neath the rear seat” of his car. Sergeant Ford asked

Swanson for consent to search the car again, and he

consented. Sergeant Ford sent another officer back to

Swanson’s home to retrieve the weapon. After the other

officer left the police station, Sergeant Ford gave

Swanson notice of his constitutional rights for the first

time by reading off of a Miranda rights card. Sergeant

Ford always carried the card with him, and ordinarily

used it when advising arrestees of their rights. He read

each right individually and after each one asked

Swanson if he understood what he was reading to him.

Swanson acknowledged each right after it was read, and

said that he understood what he was told. He then

agreed to speak with Sergeant Ford.

During the interview Swanson said that he had been

staking out a bank and had parked across the street from

it on three separate occasions. He also said that he had

once staked out another bank. Swanson stayed calm and

cooperative throughout the interview. At some point

during or after the interview, Sergeant Ford stepped out

into the hallway and spoke with the officer who had

been sent back to Swanson’s house. The officer showed

Sergeant Ford a sawed-off shotgun that he found under-

neath the back seat of Swanson’s car. Sergeant Ford

went back into the interrogation room and asked

Swanson if he would be willing to provide a written

statement, and Swanson said that he would.

No. 10-2178 9

Sergeant Ford drove Swanson from the Sandwich

Police Department to the Hinckley Police Department

where they arrived at approximately 12:40 p.m. Sergeant

Ford brought Swanson lunch and then conducted a

written interview. Sergeant Ford wrote a question, and

Swanson wrote the answer. During this written inter-

view Swanson gave more details regarding his bank

surveillance, such as where he parked when he watched

the banks. He also wrote that he had the sawed-off

shotgun in his car “for home defense & to protect me

in my car because there was a white van going down

my street at different times and also maybe following

me in my car.” And he wrote that he was supposed to

take medication for depression, anxiety, and bi-polar

disorder but that he had been off of his medication for

approximately two months. After Swanson completed

and signed the written interview, he was booked and

transported to the DeKalb County Jail.

Swanson was eventually charged with the federal crime

of possession of an unregistered firearm, which is a

felony offense. The charge was based only on the sawed-

off shotgun that the officers found under the back seat

of Swanson’s car after he told them its location.

Swanson moved to have the gun and any statements

he made about it suppressed from evidence, arguing,

among other things, that the statements were obtained

in violation of his Fifth Amendment right against self-

incrimination. The district court denied Swanson’s

motion to suppress because it found that the statements

about the gun were spontaneous and voluntary. Swanson

entered a conditional guilty plea to the possession

10 No. 10-2178

charge which allowed him to appeal the court’s denial.

Through the presentence investigation report the court

learned that Swanson was 41 years old, was a truck

driver by trade and a volunteer fireman, and had no

criminal history. He was supposed to take medication

for anxiety, depression, and bi-polar disorder, but

stopped taking it approximately two months before his

arrest because he could not afford the medication. The

report calculated an advisory Sentencing Guidelines

range of 18-24 months’ imprisonment and the court

sentenced Swanson to nine months’ imprisonment

and three years of supervised release.

Swanson timely appealed the district court’s denial of

his motion to suppress. At issue before us is whether the

gun and any statements Swanson made about the gun

were obtained in violation of his Fifth Amendment con-

stitutional rights, and whether his motion to suppress

the evidence should have been granted as a result.

II. ANALYSIS

Before his plea agreement Swanson moved to have

the shotgun found in his car and any statements he

made about the gun excluded from evidence but his

motion was denied. In reviewing the district court’s

denial of Swanson’s motion we review the court’s

factual findings for clear error and questions of law

de novo. United States v. Thompson, 496 F.3d 807, 809

(7th Cir. 2007). We conclude that the district court should

have granted Swanson’s motion to suppress because

Swanson’s statements regarding the gun were made as

No. 10-2178 11

a result of an unwarned custodial interrogation in viola-

tion of his Fifth Amendment right against self-incrim-

ination.

The Fifth Amendment provides that no person “shall

be compelled in any criminal case to be a witness

against himself.” U.S. Const. amend. V. “It has long

been held that this prohibition not only permits a person

to refuse to testify against himself at a criminal trial in

which he is a defendant, but also ‘privileges him not

to answer official questions put to him in any other pro-

ceeding, civil or criminal, formal or informal, where the

answers might incriminate him in future criminal pro-

ceedings.’ ” Minnesota v. Murphy, 465 U.S. 420, 426

(1984) (quoting Lefkowitz v. Turley, 414 U.S. 70, 77 (1973)).

See also Sornberger v. City of Knoxville, Ill., 434 F.3d

1006, 1027 n.15 (7th Cir. 2006). The protection that the

Fifth Amendment provides “reflects a judgment that

the prosecution should not be free to build up a criminal

case, in whole or in part, with the assistance of enforced

disclosures by the accused.” Doe v. United States, 487 U.S.

201, 212 (1988) (citation and internal punctuation omitted).

The constitutional right against self-incrimination is

not a self-executing right. McKune v. Lile, 536 U.S. 24, 65

n.10 (2002); United States v. Arrington, 73 F.3d 144, 149 (7th

Cir. 1996). An individual seeking to invoke the protec-

tions of the Fifth Amendment “must assert the privilege

rather than answer if he desires not to incriminate him-

self”; otherwise, a decision to answer is considered volun-

tary. Murphy, 465 U.S. at 429. However, there are excep-

tions to the general rule that the protections of the

12 No. 10-2178

Fifth Amendment must be invoked in order to provide

protection. Where “some identifiable factor was held to

deny the individual a free choice to admit, to deny, or to

refuse to answer”, a failure to invoke the Fifth Amend-

ment can be excused. Id. (citations omitted). Two of

these recognized exceptions are statements made during

unwarned custodial interrogation and situations where

exercising the right would result in a penalty. Id. at 429,

434. Swanson concedes that he did not invoke the Fifth

Amendment, but argues that both of these recognized

exceptions excuse his failure to invoke the protection.

Swanson first argues that his failure to exercise his

Fifth Amendment privilege should be excused because

his statements regarding his sawed-off shotgun were

the product of unwarned custodial interrogation. He con-

tends that he did not receive notice of his constitutional

rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966)

before he made incriminating statements and that he

was subjected to custodial interrogation. The district

court rejected this argument by finding that Swanson’s

statements were not the product of police interrogation,

but rather were “spontaneously volunteered.” We disagree.

We note first that voluntary incriminating statements

are not subject to Miranda warnings and are admissible as

evidence. United States v. Hendrix, 509 F.3d 362, 374 (7th

Cir. 2007); Andersen v. Thieret, 903 F.2d 526, 531 (7th

Cir. 1990). This principle also applies to physical evidence

that is recovered based on a defendant’s voluntary state-

ments. United States v. Patane, 542 U.S. 630, 643-44 (2004).

We also note that “not all statements obtained by the

No. 10-2178 13

police after a person has been taken into custody are

considered the product of interrogation.” Hendrix, 509

F.3d at 374. In Rhode Island v. Innis the Supreme Court

explained that “interrogation” refers to “express question-

ing” as well as “any words or actions on the part of the

police (other than those normally attendant to arrest

and custody) that the police should know are reasonably

likely to elicit an incriminating response.” 446 U.S. 291, 301

(1980). The test we employ in our application of Innis is

“whether a reasonable objective observer” would have

believed that the law enforcement officer’s statements

to the defendant were “reasonably likely to elicit an

incriminating response.” United States v. Abdulla, 294

F.3d 830, 834 (7th Cir. 2002) (citation omitted).

We now turn to this case. When the officers arrested

Swanson they presented an arrest warrant stating that

he was charged with unlawful possession of a firearm.

They simultaneously gave him a court order that

directed him to turn over any firearms to the police.

Sergeant Ford asked him if he had any firearms “that

he wanted to turn over in compliance with the court

order.” Later, Sergeant Ford directed him a second time

to reveal whether he had any guns in his possession:

“Again, I said—I explained that I didn’t want him to be

in violation of the court order, that I wanted to make

sure that he was in compliance, asked him if there were

any other guns or even look-alike guns that he wanted

us to secure.” The third time Sergeant Ford urged

Swanson to comply with the order he “asked him one

more time, just to be sure, to give him a moment to

think.” Under these circumstances, we find that “a reason-

14 No. 10-2178

able objective observer” would believe that Sergeant Ford’s

statements to Swanson were, at least, “reasonably likely”

to elicit the incriminating response from Swanson that

he possessed firearms. See Abdulla, 294 F.3d at 834.

Swanson was therefore under interrogation. Even

though Swanson did not disclose the sawed-off shotgun

while he was at his house, Sergeant Ford testified

that upon his walking into the interrogation room

“Mr. Swanson immediately informed me that he wanted

to . . . comply with the court order.” This disclosure to

Sergeant Ford came at most forty-five minutes after

Swanson was initially presented with the court order

and shortly after Sergeant Ford asked him three times

to comply with the court order. The compulsory nature

of the court order combined with Sergeant Ford’s inter-

rogation created a cloud of coercion that was raised at

Swanson’s home and carried to the police station, ulti-

mately leading Swanson to “immediately . . . comply

with the court order” and incriminate himself as soon as

he was again brought together with his interrogator.

Further, this interrogation came while Swanson was

in custody and without any notice of his constitutional

right against self-incrimination. It is not contested that

the officers did not give Swanson his Miranda warnings

until after they had already presented him with the

arrest warrant, placed him in a police car, transported

him to a police station, and delivered him to an inter-

rogation room. And the failure to warn came in spite

of Sergeant Ford having a Miranda rights card on him

when he presented Swanson with the arrest warrant and

turn-over order, and was contrary to Sergeant Ford’s

No. 10-2178 15

customary practice of using the card to advise arrestees

of their constitutional rights. Also, when Swanson asked

Sergeant Ford to explain his arrest, Sergeant Ford

did not provide Swanson with notice of his constitu-

tional rights at that time. Instead, he simply said that he

would explain later when they sat down and talked.

“Later” came after Swanson granted Sergeant Ford

permission to search his car, but we cannot say that

this consent was voluntary. In determining the volun-

tariness of a consent to search, we consider the “totality

of the circumstances, including such factors as (1) the

person’s age, intelligence, and education, (2) whether

she was advised of her constitutional rights, (3) how

long she was detained before she gave her consent,

(4) whether her consent was immediate, or was

prompted by repeated requests by the authorities,

(5) whether any physical coercion was used, (6) whether

the individual was in police custody when she gave her

consent.” United States v. Alexander, 573 F.3d 465, 477 (7th

Cir. 2009) (internal punctuation omitted). On the day

Swanson was taken into custody in May 2009, he was pre-

sented with a court-issued arrest warrant that said he

was charged with unlawful possession of a firearm.

The arrest warrant was based on Swanson’s April 2008

possession, but there was no date of offense listed on the

warrant. Officers presented the warrant in conjunction

with a court-issued order that directed Swanson to give

16 No. 10-2178

any guns in his possession to the police.2 Swanson is not

a lawyer and had never been arrested before. When he

requested explanation of his arrest Sergeant Ford

refused to provide it. Swanson had been treated for

mental illness in the recent past but had been off of his

medication for approximately two months. He may

have been showing signs of active mental instability at

the time of the written interrogation at the Hinckley

Police Department because when he was asked why he

had a shotgun in his car, he replied it was because of

“a white van going down my street at different times

and also maybe following me in my car.”

In short, Swanson had no formal legal training or crimi-

nal arrest experience, had not been advised of his con-

stitutional rights, was refused information when he

asked for explanation of his arrest, was presented with

2

At the district court Swanson argued that the turn-over

order was illegal under Illinois state law. He also argued that

the order was tantamount to a search warrant issued without

probable cause in violation of his Fourth Amendment right

against unreasonable search and seizure. The government

countered that the order was legal under state law and that

the order did not constitute a search warrant. The district court

declined to rule on the legality of the turn-over order and

found that there was no Fourth Amendment violation because

the shotgun was lawfully seized pursuant to a voluntary

consent to search. It did not address whether the turn-over

order was effectively a search warrant issued without prob-

able cause. Swanson does not raise either of these two issues

on appeal and we decline to decide them here.

No. 10-2178 17

an arrest warrant stating he unlawfully possessed

firearms, was simultaneously shown a court order to

turn over all firearms, was repeatedly directed to

comply with the court order by a police officer, and

had been treated for mental illness but was at that

time unmedicated. Under these circumstances we cannot

say that Swanson’s statements at the Sandwich Police

Department were voluntary. Cf. Arizona v. Mauro, 481 U.S.

520, 529 (1987) (statements were volunteered where they

were not the result of “compelling influences, psycho-

logical ploys, or direct questioning.”) At oral argument

the government noted that Sergeant Ford was cordial

to Swanson throughout their interaction. This is true;

Sergeant Ford waited until Swanson’s son went inside

the house before he presented the arrest warrant and

he offered Swanson lunch at the Hinckley Police Depart-

ment. But these facts do not compel a finding that

Swanson’s statements were voluntary. Violent force

and abusive behavior are not prerequisites to infringing

upon an individual’s rights. Constitutional violations

can occur even when they are cloaked in kindness. See

United States v. Reed, 349 F.3d 457, 465 (7th Cir. 2003)

(“misconduct is not limited to situations where the

police act in an outright threatening or coercive manner.”).

The government contends that even if Swanson’s

initial statements admitting possession of the shotgun

were the result of unwarned custodial interrogation,

the gun is still admissible because of the written state-

ment that Swanson provided after he was Mirandized.

Although this argument has some merit, we ultimately

18 No. 10-2178

conclude that the post-Miranda statement does not

render the evidence admissible. In raising its argument

the government notes the Supreme Court’s decision in

Oregon v. Elstad, which held that a “subsequent admin-

istration 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. 298, 314

(1985) (emphasis added). However, we have found that

Swanson’s initial statements were not voluntary. So in

deciding whether Swanson’s Mirandized second written

statement is insulated from the taint of the first state-

ments we consider whether there has been a sufficient

“break in the stream of events” such as “the time that

passes between confessions, the change in place of inter-

rogations, and the change in identity of the interrogators.”

Id. at 310, 314. See also United States v. Stewart, 388

F.3d 1079, 1089 (7th Cir. 2004) (quoting Missouri v. Seibert,

542 U.S. 600, 618 (2004) (Breyer, J., concurring) (“truly

‘effective’ Miranda warnings . . . will occur only when

certain circumstances—a lapse in time, a change in loca-

tion or interrogating officer, or a shift in the focus

of the questioning—intervene between the unwarned

questioning and any postwarning statement.”)); Watson

v. DeTella, 122 F.3d 450, 454-55 (7th Cir. 1997) (collecting

cases).

Here, there was a time lapse of approximately two

hours between Swanson’s initial incriminating oral state-

ments and his post-Miranda written statement. Although

there was a change in place of interrogations because

No. 10-2178 19

Swanson was taken from the Sandwich Police Depart-

ment to the Hinckley Police Department, his inter-

rogator, Sergeant Ford, remained the same. Examining

these factors in the aggregate as we must do, Watson,

122 F.3d at 454, we conclude that the elapsed time

was insufficient to remove the taint from the first im-

properly obtained confession where the scene of inter-

rogation was moved from one police station interroga-

tion room to another and the interrogator, Sergeant

Ford, remained constant throughout. Our decision takes

into account the fact that Sergeant Ford’s interaction

with Swanson began a year before his arrest and that

Swanson evinced a particular responsiveness to Sergeant

Ford because he “immediately” disclosed the location of

his shotgun to him upon their being reunited at the

Sandwich Police Department.

Because we conclude that Swanson’s statements were

the result of unwarned custodial interrogation, we will

not decide whether his failure to invoke his Fifth Amend-

ment right should be excused because invoking the

right would have subjected him to a penalty.

III. CONCLUSION

The district court’s denial of Swanson’s motion to

suppress is R EVERSED, and the case is R EMANDED for

further proceedings consistent with this opinion.

20 No. 10-2178

M ANION, Circuit Judge, concurring. It started as a simple

arrest warrant. But at the last moment, the prosecutor

suggested the judge add some language. So, on the

bottom of the warrant, the judge scribbled

[a]s further condition of bond, Defendant, Thomas

Swanson is directed to turn over any firearms in his

possession + control to the Hinckley or Sandwich

police department.

This turned the arrest warrant into something more—

it is unclear what. It maintained the essential character

of an arrest warrant, but with that additional language

it had the added effect of being a mutated subpoena

duces tecum, conditioning Swanson’s right to bond on

the production of incriminating evidence. While it is

unclear if this complies with Illinois law, it is clear that

this order created a penalty situation where, by exer-

cising his Fifth Amendment rights, Swanson would be

punished by being denied bail. For that reason, I would

suppress the gun and Swanson’s confession.

The Fifth Amendment provides, in relevant part, that

no person “shall be compelled in any criminal case to be

a witness against himself.” This protects a person from

being called to testify against himself at his own trial

and permits him to refuse to “answer official questions

put to him in any other proceeding, civil or criminal,

formal or informal, where the answers might incrim-

inate him in future criminal proceedings.” Lefkowitz v.

Turley, 414 U.S. 70, 77 (1973). If a person wants to

exercise this right, he must assert it. Swanson did not,

and normally this would keep him from claiming the

No. 10-2178 21

protection. But that failure is excused when a person

would have been punished if he exercised his rights.

This is commonly called the “penalty exception.” Minnesota

v. Murphy, 465 U.S. 420, 439 (1984). When this occurs,

the defendant’s failure to assert the privilege is ex-

cused, his answers are deemed compelled, and they are

inadmissible in a criminal prosecution. Id. at 435. In

most penalty-exception cases, a person is forced to testify

with the threat of some sort of economic sanction.3

The seminal case on this issue is Murphy, despite the

fact that in that case the Supreme Court found that

the penalty exception did not apply. In Murphy, the

defendant had to participate in sex offender treatment

and be truthful with his probation officer “in all mat-

ters.” During one treatment he admitted to a rape and

murder he had committed years earlier. This was

reported to the probation officer, who met with Murphy

and reminded him about the conditions of his proba-

3

See Lefkowitz v. Cunningham, 431 U.S. 801, 804-05 (1977); see

also Uniformed Sanitation Men Ass’n v. Comm’r of Sanitation, 392

U.S. 280, 283-84 (1968) (finding Fifth Amendment violation

when city employees were discharged for invoking Fifth

Amendment privilege against self-incrimination); Gardner v.

Broderick, 392 U.S. 273, 279 (1968) (finding Fifth Amendment

violation when police officer was threatened with and subse-

quently discharged from employment if he did not waive his

Fifth Amendment immunity in conjunction with a grand jury

investigation); Garrity v. New Jersey, 385 U.S. 493, 497 (1967)

(finding Fifth Amendment violation when police officers

gave coerced confessions under threat of discharge).

22 No. 10-2178

tion. Murphy then confessed and he was later charged

with murder. The Supreme Court held that the require-

ment to be “truthful in all matters” with the proba-

tion officer was no different than a subpoena before a

grand jury that the defendant always tell the truth. In

the grand jury context, it is well established that while

a defendant must always be truthful, he can always

invoke his Fifth Amendment rights. Thus, the Supreme

Court held that it was unreasonable for Murphy to fear

that he would be penalized for taking the Fifth when

talking with his probation officer. See also United States

v. Cranley, 350 F.3d 617, 622 (7th Cir. 2003) (finding

no penalty exception under near identical facts as

Murphy). In this context, “a fear is unreasonable when it

flies in the face of settled law.” United States v. Ollie, 442

F.3d 1135, 1139 (8th Cir. 2006). Thus, we look to the

bond order to determine if it would cause Swanson to

fear that he would be punished for exercising his rights,

and we look at our precedent to determine whether

that fear is reasonable.

Here, the bond order was unusual—to say the very

least. A hasty suggestion by the prosecutor, it was

scrawled at the bottom of the arrest warrant and condi-

tioned Swanson’s bond on him turning over his firearms.

Swanson probably assumed that Sgt. Ford knew about

the other firearms. After all, Sgt. Ford knew that

Swanson was planning a bank robbery, and although

some banks are robbed without a gun, normally one is

used. And the gun that Swanson was charged with

having was confiscated by Sgt. Ford a year earlier, so

Sgt. Ford was obviously not looking for that one. For

No. 10-2178 23

his part, Sgt. Ford used the order as an effective tool:

as the court emphasizes, at three different points

during the arrest, he reminded Swanson of his need to

comply with the bond order. The order’s coercive

power was also not lost on Swanson: before “spontane-

ously uttering” where the shotgun was, Swanson

prefaced his statement with the fact that “he wanted to

fully comply with the court’s order.” Clearly Swanson

wanted to comply with the order because he wanted to

be released on bond, and he felt that if he didn’t comply

he wouldn’t be released on bond. It bears noting that

the crime Swanson was arrested for was a misdemeanor,

and under Illinois law he had a right to receive bond.

430 ILCS 65/14(a) (first FOID violation constitutes a

misdemeanor); ILCS Const. Art. 1, § 9; 725 ILCS 5/110-4

(right to bond). Had Swanson produced any other fire-

arms, they would have been evidence of a felony. 430

ILCS 65/14(b) (second FOID violation constitutes a felony).

In most penalty cases, the threat is explicit. The person

is told: If you invoke the Fifth, you will be punished. The

Supreme Court has counseled, however, that a threat

does not have to be explicit, it can be veiled: If “the state,

either expressly or by implication, asserts that invocation

of the privilege would lead to revocation of probation,

it would have created the classic penalty situation.”

Murphy, 465 U.S. at 435 (emphasis added); United States

v. Saechao, 418 F.3d 1073 (9th Cir. 2005) (finding the

order created a penalty situation “although the invocation

of the Fifth Amendment is not explicitly prohibited.” (em-

phasis added)). Here, the order did not state that if

Swanson invoked the Fifth, he would not get bond. Such

24 No. 10-2178

an explicit statement probably would not have been

found scribbled at the bottom of such an order, nor is

one necessary. Rather, the order here took the form of, “if

you want bond, you must produce incriminating evi-

dence.”

An honest reading of the order suggests that failure

to comply would have resulted in no bond, regardless of

whether Swanson invoked his Fifth Amendment rights.

He had to turn over all his firearms—that’s all the

order concerned and that’s all that Sgt. Ford cared about.

Thus, it was objectively understandable for Swanson

to anticipate that by taking the Fifth, Sgt. Ford would

assume Swanson was not complying with the order

and bond would have been denied.4 On this point, it is

very telling that Ford repeated the command three

times, including after Swanson turned over the initial

firearms. In addition, after being alone in the holding

cell for forty-five minutes Swanson prefaced his con-

fession that he had another gun in the car with the fact

that “he wanted to fully comply with the court’s order.”

4

It is unclear from the bond order or the briefs who would

make the determination of whether Swanson had complied.

Naturally, it makes sense that a magistrate or judge would

make that determination but such a finding would rely

heavily on Sgt. Ford’s investigation and statement on the

issue. Indeed, the government concedes in its brief that had

Swanson said nothing more, Sgt. Ford would have assumed

he fully complied and Swanson could have posted bond. So,

Sgt. Ford’s impression was critical to Swanson receiving bond.

No. 10-2178 25

Thus, the order can fairly be read as a threat to Swanson

that if he invoked his Fifth Amendment rights he would

not receive bond.

The issue then turns on whether Swanson’s fear was

reasonable under our precedent. Cranley, 350 F.3d at 622.

Again, this is an unusual order. It is primarily an arrest

warrant but with the bond’s condition scribbled at the

bottom, it has aspects of a subpoena duces tecum and

a search warrant. The stated purpose of the order is that

there is probable cause to arrest Swanson and it spells

out the conditions for him to post bond. The effect of

the flawed order, however, is that Swanson must

produce this incriminating evidence, evidence that is

normally not turned over by a suspect but gathered by

the police when they have probable cause and are armed

with a search warrant. Sgt. Ford knew that Swanson

did not have a valid firearm registration. So any addi-

tional firearms he turned over would be evidence of

other crimes, this time a felony offense. In this way, the

act of producing the firearms constituted testimonial self-

incrimination. See United States v. Doe, 465 U.S. 605, 612-

13 (1984). By complying with the turn-over order,

Swanson would concede the existence, and his control,

of the firearms. See United States v. Hubbell, 530 U.S. 27, 36-

37 (2000). And such a testimonial act would, of course,

be protected under the Fifth Amendment, if Swanson

had asserted his right. Id.

The very unusual order has features of a subpoena

duces tecum, but certainly doesn’t qualify for that

process. See Fed. R. Crim. P. 17. Yet the testimonial act of

26 No. 10-2178

producing the firearms is somewhat analogous to the

requirement of a subpoena. While Swanson could invoke

his Fifth Amendment rights against a subpoena duces

tecum, the contours of that right are confusing and not

always clear. See Fisher v. United States, 425 U.S. 391, 409-10

(1976); Hubbell, 530 U.S. at 36-38 (surveying the intricacies

that attach to claiming the Fifth Amendment privilege

when responding to subpoenas); Baltimore City Dep’t of

Social Services v. Bouknight, 493 U.S. 549, 554-56 (1990)

(same). The intricacies of who may assert the privilege,

when it may be asserted, and what constitutes a testimo-

nial act is probably completely lost on the public. It is

certainly not as clear as the right Swanson enjoys to

invoke the Fifth and refuse to answer questions exam-

ined in Murphy and Cranley. The right to remain silent

and to plead the Fifth at trial or before the grand jury

is well known throughout our case law and culture. See

Dickerson v. United States, 530 U.S. 428, 443 (2000) (“Miranda

has become embedded in routine police practice to

the point where the warnings have become part of our

national culture.”). The situation Swanson faced was

distinct from the issues examined in Murphy and Cranley.

Indeed, no document similar to this combined arrest

warrant and conditional bond order has any legal prece-

dent that I can find, and the government has cited to

none. It is unfortunately unique and should not be re-

peated. In short, nothing in our precedent would make

it unreasonable for Swanson to fear that he would be

denied bond if he exercised his Fifth Amendment

rights instead of admitting the location of the other fire-

arms.

No. 10-2178 27

Swanson was placed in a troubling position. Although

he was not exposed to what the Supreme Court calls “the

cruel trilemma of self-accusation, perjury or contempt,”

Michigan v. Tucker, 417 U.S. 433, 444-45 (1974), he was

forced to choose between self-incrimination, a potential

obstruction of justice charge since he was not under oath

at the time, or being denied bond for a misdemeanor

offense. In other words, he was forced to either sacrifice

his Fifth Amendment rights or forego bond and wait in

jail for the matter to be sorted out, which could take

some time. The fact that he faced such a threat and ceded

to it means his statements were compelled and should

have been suppressed. For that reason I believe this

falls within the penalty exception.

Thus, I respectfully concur with the court’s decision

that the firearm and Swanson’s statements should have

been suppressed.

3-24-11