Unpublished United States Court of Appeals For The Fourth Circuit
Unpublished United States Court of Appeals For The Fourth Circuit
No. 97-4266
and Flug discussed the investigation with Leonard for about two
hours. Leonard agreed to answer questions, never asked the inspectors
to leave, never asked for an attorney, and was not physically detained.
The inspectors asked Leonard to submit voluntarily to a polygraph
test. Leonard agreed, and followed the inspectors in his own car to a
local Econo Lodge. The inspectors escorted Leonard to a room where
still another postal inspector, polygraph examiner John Griffith,
waited with a polygraph machine. Lauziere explained to Griffith that
Leonard had some concerns about taking a polygraph, and Griffith
once again explained to Leonard that he could decline to take the
polygraph and that he could cease participation at any time.
Griffith presented Leonard with a "Warning and Waiver of Rights"
form. He advised Leonard of his Miranda rights "point by point" and
explained the waiver portion of the form, which stated:
I am willing to discuss subjects presented and answer questions. I do not want a lawyer at this time. I understand and
know what I am doing. No promises or threats have been
made to me and no pressure or coercion of any kind has
been used against me.
At approximately 4:00 p.m., Leonard signed both the warning and
waiver portions of the form and agreed to answer questions. Leonard
did not ask to make any telephone calls. He did not ask to leave. He
did not ask to speak with an attorney. He retained his car keys, and
was not physically detained in any manner.
Lauziere left the room and Griffith administered the polygraph.
Griffith began the post-polygraph interview by asking Leonard how
he thought he did. Leonard responded, "Piss poor probably," to which
Griffith replied, "Yeah, you did." Griffith then explained to Leonard
that Leonard performed poorly on the questions relating to the explosive device. When Leonard asked why, Griffith replied, "Because
you, you had something to do with it. . . . You made it. You sent it.
You put it together." Griffith continued, stating:
the thing is this, Inspector Lauziere has got enough circumstantial evidence to work up a good case, and he's going to
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B.
Even if he was not in custody and so not entitled to Miranda warnings, Leonard maintains that his confession was involuntary and so
should have been suppressed. We make a de novo review of the ultimate question of voluntariness, while bound to accept the district
court's factual findings unless clearly erroneous. See United States v.
Braxton, 112 F.3d 777, 781 (4th Cir.) (en banc), cert. denied, 118 S.
Ct. 192 (1997); Glover, 104 F.3d at 1579-80.
As we recently stated in Braxton, the proper test to determine if a
statement was voluntary is whether the defendant's will was overborne or his capacity for self-determination critically impaired.
Braxton, 112 F.3d at 781; see United States v. Pelton, 835 F.2d 1067,
1071 (4th Cir. 1987); United States v. Wertz, 625 F.2d 1128, 1133
(4th Cir. 1980). This determination involves consideration of the
totality of the circumstances surrounding the confession. Factors to
consider in the voluntariness determination include the defendant's
age, education, level of intelligence, the setting of the interview, the
details of the interrogation, the duration of questioning, the use of
physical coercion or deprivation, the defendant's experience with the
criminal justice system, and whether the defendant has been advised
of his Miranda rights. See Arizona v. Fulminante, 499 U.S. 279, 28586 & n.2 (1991); Schneckloth v. Bustamonte, 412 U.S. 218, 226
(1973); Watson v. Detella, 122 F.3d 450, 453 (7th Cir. 1997);
Braxton, 112 F.3d at 781; Glover, 104 F.3d at 1579; Pelton, 835 F.2d
at 1071-72; Wertz, 625 F.2d at 1134.
Leonard contends that the nature of Griffith's questioning, combined with the setting and duration of the interrogation and Leonard's
low education level and borderline intelligence, rendered the confession involuntary. In particular, he points to Griffith's repeated use of
the word "guarantee," his repeated suggestion that the court would
likely "hammer" Leonard if Leonard did not cooperate, and his suggestion that Leonard might receive probation. Although several of
Griffith's statements cause us great concern -- especially statements
regarding the possibility of probation when probation clearly would
not follow and remarks such as "[t]ry saying you did it" -- we are not
convinced, under the totality of the circumstances as recently inter7
III.
For the foregoing reasons, the district court's denial of Leonard's
motion to suppress is hereby
AFFIRMED.
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