United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 08-2377
                                  ___________

United States of America,              *
                                       *
            Appellant,                 *
                                       * Appeal from the United States
      v.                               * District Court for the
                                       * District of Nebraska.
Romando Morse,                         *
                                       *
            Appellee.                  *
                                  ___________

                             Submitted: December 11, 2008
                                Filed: June 26, 2009
                                 ___________

Before COLLOTON and SHEPHERD, Circuit Judges, and GOLDBERG, Judge.1
                          ___________

COLLOTON, Circuit Judge.

      The government appeals an order of the district court granting Romando
Morse’s motion to suppress evidence seized from his person and statements made to
police during a traffic stop in Omaha. We reverse the district court’s order, and
remand for further proceedings.




      1
       The Honorable Richard W. Goldberg, Judge of the United States Court of
International Trade, sitting by designation.
       According to the district court’s findings of fact, during daylight hours on
August 31, 2007, Sergeant Gerald Baggett and Officer Frank Platt of the Omaha
Police Department stopped a vehicle in which Morse was a passenger. The driver was
arrested for driving with a suspended license, and Baggett asked Morse to leave the
vehicle so the officers could conduct a search incident to the arrest. According to
Baggett’s testimony, when Morse exited the vehicle, Baggett said that he was going
to conduct a pat-down search, and asked Morse if he had anything on his person that
Baggett should know about. Morse said that he had crack cocaine in his pocket.
Baggett then placed Morse under arrest and eventually recovered drugs from Morse’s
pocket.

        Morse testified to a different sequence of events. Morse said that when he
exited the vehicle, Baggett told him to put his hands on the car, and Baggett then
began a pat-down search before Morse said anything about drugs. According to
Morse, Baggett put his hand on one of Morse’s pockets and asked whether Morse had
“a little weed” in his pocket. Morse replied, “no, sir, crack cocaine.” Baggett then
arrested Morse and recovered the drugs.

       The district court analyzed the motion to suppress based on Baggett’s version
of the facts, and granted the motion. The court reasoned that Morse’s statement about
the crack cocaine must be suppressed, because it was the product of unwarned
custodial interrogation that violated the rule of Miranda v. Arizona, 

(1966). The court also excluded the crack cocaine seized from Morse’s pocket, on the
ground that the only basis for the arrest and subsequent search of Morse was the
unwarned statement taken in violation of Miranda. In reaching this conclusion, the
court determined that Morse was seized for purposes of the Fourth Amendment,
because a reasonable person would not have believed himself free to terminate the
encounter, see Brendlin v. California, 

, 257 (2007), and that Morse was
therefore “in custody” for purposes of the Miranda rule when Baggett asked about the
contents of his pockets. The district court declined to apply the holding of Berkemer

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v. McCarty, 

(1984), that Miranda warnings are not required for roadside
questioning of a motorist detained pursuant to a routine traffic stop, because “the
questioning of [Morse] was not in connection to the reason for the stop and far
exceeded a routine roadside questioning.”

        On appeal, the government argues that the district court erred in suppressing
Morse’s statements and the crack cocaine based on Miranda, and we agree. In
Berkemer, the Supreme Court held that even though a motorist is seized during a
traffic 

, Miranda warnings are not required where the motorist
is not subjected to the functional equivalent of a formal arrest. 

Therefore, that Morse reasonably believed that he was not free to terminate the
encounter with Baggett does not resolve whether Miranda warnings were required in
order to elicit admissible statements from Morse. See United States v. Pelayo-Ruelas,

, 592 (8th Cir. 2003) (rejecting the “broad contention that a person is in
custody for Miranda purposes whenever a reasonable person would not feel free to
leave”). The district court thought Berkemer was distinguishable based on the nature
of Baggett’s question to Morse, but we held in United States v. Martin, 

(8th Cir. 2005), that Miranda warnings were not required when a police officer asked
a motorist during a traffic stop virtually the same question asked of Morse: whether
there was “anything in the vehicle that [the officer] should know about.” 

Like the motorist in Martin, Morse was never “‘informed that his detention would not
be temporary,’ and he was asked only a ‘modest number of questions.’” 

(quoting 

). In short, Morse was not subjected to the
functional equivalent of a formal arrest before Baggett made his inquiry, and Miranda
warnings were therefore not required. 

the parties agree that the court’s rationale for suppression of the
drugs is incorrect in light of United States v. Patane, 

(2004). In Patane,
the Supreme Court held that a violation of the Miranda rule does not justify the
suppression of non-testimonial physical evidence that is the fruit of custodial

                                         -3-
interrogation conducted without Miranda warnings. 

(plurality opinion);

(Kennedy, J., concurring in judgment). Thus, even if Baggett had been
required to administer Miranda warnings before questioning Morse in order to elicit
admissible statements, the physical evidence recovered from Morse’s pocket based on
his unwarned statements should not be suppressed under the Miranda rule.

       Morse urges us to affirm the district court’s order on the alternative ground that
the physical evidence seized from his pocket was the fruit of an involuntary statement
that was taken in violation of the Fifth Amendment. See 

(plurality opinion). In particular, citing Bumper v. North Carolina, 

(1968), he contends that even under Baggett’s version of the facts, the police officer
asserted authority to conduct a pat-down search, and Morse’s disclosure about what
was in his pockets amounted to involuntary acquiescence to a claim of lawful
authority.

       The district court did not reach this question, and we decline to do so at this
juncture. Although our cases say that voluntariness of a confession ultimately is a
legal question that we review de novo, see, e.g., United States v. LeBrun, 

, 724 (8th Cir. 2004) (en banc), the analysis of voluntariness depends on the
totality of the surrounding circumstances, including the conduct of the law
enforcement officials and the characteristics of the accused. 

district
court truncated its analysis by focusing on the Miranda rule, it did not undertake a
thorough examination of the circumstances that may bear on voluntariness, see, e.g.,
Withrow v. Williams, 

, 693-94 (1993), or address Morse’s assertion
regarding acquiescence to a claim of lawful authority. We think it is more appropriate
for the district court to make any factual findings that it deems relevant, and to reach
a legal conclusion about voluntariness in the first instance.

      Morse also urges that we affirm in part on the alternative ground that Baggett’s
seizure of the crack cocaine was the fruit of a violation of the Fourth Amendment.

                                          -4-
Morse argues that under his version of the facts, Baggett conducted an unlawful pat-
down search before Morse said anything about the crack cocaine, and that Morse’s
version of the facts is one “reasonable view of the evidence” that we should accept in
order to affirm the district court’s order. See United States v. Bloomfield, 

,
913-14 (8th Cir. 1994) (en banc). The record does not support an affirmance on this
basis, because there is reason to doubt that the district court implicitly credited
Morse’s version of the facts over Baggett’s. See United States v. Williams, 

, 1291 (D.C. Cir. 1991). As we read the opinion, the district court expressly
declined to say that it believed Morse rather than Baggett, saying at one point that “[i]f
the court were to determine that Morse’s statement was made after the pat-down
began, the outcome would be the same.” In other words, the district court believed
that the evidence should be suppressed based on Miranda under the government’s
view of the facts, and it simply added that the result would be the same if Morse’s
testimony were accepted. If the district court’s findings of fact on this point need
clarification, then that matter too can be addressed on remand.

      For these reasons, the order of the district court suppressing evidence is
reversed, and the case is remanded for further proceedings.
                        ______________________________




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