FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                                                                    April 5, 2010
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 UNITED STATES OF AMERICA,

              Plaintiff-Appellee,
                                                         No. 09-5063
 v.                                           (D.C. No. 4:08-CR-00158-GKF-1)
                                                         (N.D. Okla.)
 MICHAEL LYNN CRISP,

              Defendant-Appellant.


                           ORDER AND JUDGMENT *


Before BRISCOE, HOLLOWAY, and HOLMES, Circuit Judges.


      Defendant-Appellant Michael Lynn Crisp appeals the district court’s denial

of his motion to suppress self-incriminating statements regarding his possession

and intent to distribute cocaine base. Mr. Crisp made these statements to law

enforcement officers after receiving the warnings prescribed by Miranda v.

Arizona, 

(1966). He contends that the district court should have

suppressed these statements because the officers elicited them through an

impermissible two-step interrogation technique, known as “Miranda-in-the-



      *
          This Order and Judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and Tenth Circuit Rule 32.1.
middle” or “question first,” in an effort to circumvent the strictures of Miranda.

We exercise jurisdiction under 28 U.S.C. § 1291 and affirm the district court’s

order.

                                  BACKGROUND 1

         On August 10, 2008, Tulsa police officers stopped a car for speeding in the

3700 block of North Harvard Avenue in Tulsa, Oklahoma. Mr. Crisp, who was a

passenger, exited the car during the traffic stop and fled the scene on foot. After

a brief pursuit and scuffle, the officers apprehended Mr. Crisp and took him into

custody. The officers also recovered a small bag of marijuana along the route

that Mr. Crisp had taken while fleeing.

         With Mr. Crisp in custody, officers visited the home of his mother. His

mother granted the officers permission to enter her home and told them that Mr.

Crisp had stayed with her for the past three or four days due to a death in the

family. She subsequently gave the officers oral and written consent to search her

home. During the ensuing search, officers seized approximately 680 grams of

cocaine base and digital scales, which were hidden in the broken sheet rock of the

garage ceiling. The officers also seized a shotgun from Mr. Crisp’s bedroom.

         While the officers searched his mother’s home, Mr. Crisp was transported

to the Tulsa Police station. Once the officers had completed the search, Corporal

         1
             When reviewing the denial of a motion to suppress, we consider the
evidence in the light most favorable to the government. United States v.
Gambino-Zavala, 

, 1225 (10th Cir. 2008).

                                          -2-
Helton and Corporal Francetic interviewed Mr. Crisp in the early morning hours

of August 11. As the three men walked into the interview room, they bantered

about the pursuit and how Mr. Crisp had pulled his hamstring as he fled from the

officers. After they had settled into their respective chairs, Mr. Crisp asked if the

female driver of the car was in trouble. Corporal Helton replied that she had gone

home. Corporal Francetic then asked if she had smoked marijuana around him.

As Corporal Francetic asked that question, he leaned slightly toward Mr. Crisp

and sniffed, implying that he smelled burnt marijuana on him. Mr. Crisp

admitted, “I was smoking weed before she picked me up.” Def.-Aplt.’s

Addendum of Exs., Ex. 3; see 

at 2. He proceeded to describe his social

agenda for the evening, admit that he had been drinking liquor in the car, and

opine that his female companion had been speeding.

      At that point, Corporal Francetic interrupted Mr. Crisp to administer

Miranda warnings. Following the warnings, Corporal Francetic asked Mr. Crisp

if he understood his rights. Mr. Crisp responded, “[y]es, I do.” 

see 

at 4. The officers also delved into Mr. Crisp’s ability to understand the

warnings, asking him questions relating to his education and present sobriety.

Mr. Crisp indicated that he understood the procedure and stated that “this ain’t

my first rodeo.” 

see 

at 3.

      Once the officers had clarified that Mr. Crisp understood his rights, they

questioned him about his criminal history. Mr. Crisp admitted that he had been

                                           -3-
arrested for possession of marijuana and for trafficking powder cocaine. When

Corporal Francetic remarked that he could smell marijuana on him, Mr. Crisp

replied “[y]eah.” 

see 

at 3. The officers continued to explore

Mr. Crisp’s marijuana use and asked if he owned the marijuana found near the

traffic stop. The discussion eventually turned to the cocaine base found at his

mother’s home. Mr. Crisp admitted to ownership of the cocaine base and stated

that he intended to distribute it. Approximately twenty minutes into the

interrogation, the officers gave Mr. Crisp a written Miranda waiver, reviewed it

with him, and had him sign it. Mr Crisp and the officers spent much of the

remainder of the interrogation discussing his potential cooperation with police

and his prospects of leniency.

      Mr. Crisp was indicted in the U.S. District Court for the Northern District

of Oklahoma on one count of possession with intent to distribute approximately

fifty grams or more of cocaine base, in violation of 21 U.S.C. § 841(a)(1) and

841(b)(1)(A)(iii). He filed a motion to suppress all of the evidence seized during

the search of his mother’s home, including the cocaine base and the digital scales.

He also filed a separate motion to suppress his self-incriminating statements to

law enforcement officers during his custodial interrogation. After an evidentiary

hearing, the court denied both motions.

      Mr. Crisp subsequently entered a conditional guilty plea. In the plea

agreement, Mr. Crisp reserved the right to appeal the denial of his pretrial

                                          -4-
motions pursuant to Federal Rule of Criminal Procedure 11(a)(2). He received a

sentence of 276 months of imprisonment, ten years of supervised release, a fine of

$1750, and a special assessment of $100. Mr. Crisp timely appealed from the

denial of the motion to suppress his statements.

                                   DISCUSSION

      The Fifth Amendment to the U.S. Constitution guarantees that “[n]o person

. . . shall be compelled in any criminal case to be a witness against himself.” 2

U.S. Const. amend. V. Under Miranda, a suspect’s statements are generally

inadmissible if law enforcement officers elicited them during a custodial

interrogation without giving the prescribed warnings and obtaining a 

, 478–79. To determine whether a post-Miranda statement is

admissible when the suspect previously gave an unwarned statement, we apply

Missouri v. Seibert, 

(2004), and Oregon v. Elstad, 

(1985).

      On appeal, Mr. Crisp argues that the district court erred in denying the

motion to suppress his post-Miranda statements regarding his possession and

intent to distribute cocaine base. He contends that the law enforcement officers

subjected him to the “Miranda-in-the-middle” or “question-first” technique to

elicit these statements in violation of Miranda. Mr. Crisp asserts that he initially

      2
             The Fourteenth Amendment incorporates provisions of the Fifth
Amendment and makes them applicable to the states. Malloy v. Hogan, 

, 6 (1964).

                                         -5-
admitted to having smoked marijuana in response to questions about his female

companion. 3 He claims that the officers interrupted this interrogation to

administer his Miranda rights before resuming their questions about his marijuana

use and expanding their questions to elicit self-incriminating statements about the

cocaine base.

      We hold that Mr. Crisp waived the “Miranda-in-the-middle” or “question-

first” argument because he failed to raise it before the district court and has not

shown good cause for this failure. Even if Mr. Crisp had not waived this

argument, we conclude that he fails to show plain error.

I.    Waiver

      “‘When a motion to suppress evidence is raised for the first time on appeal,

we must decline review.’” United States v. Hamilton, 

, 1213 (10th

Cir. 2009) (quoting United States v. Brooks, 

, 1240 (10th Cir.

2006)). Under Federal Rule of Criminal Procedure 12(e), “[a] party waives any

Rule 12(b)(3) defense, objection, or request [for the suppression of evidence] not

raised by the [pre-trial] deadline” established by the court. Fed. R. Crim. P.

      3
              Mr. Crisp argues that this first round of questioning amounted to
custodial interrogation. At oral argument, the government asserted for the first
time that the officers did not engage in “interrogation” because their questions
were not “reasonably likely to elicit an incriminating response” under Rhode
Island v. Innis, 

, 301 (1980). We decline to address issues raised for
the first time in oral argument. Corder v. Lewis Palmer Sch. Dist. No. 38, 

, 1235 n.8 (10th Cir.) (“An argument made for the first time at oral
argument . . . will not be considered.”), cert. denied, 

(2009). Thus,
we hold that the government waived this argument.

                                         -6-
12(e); see 

. “‘[T]his waiver provision applies not only

to the failure to make a pre-trial motion, but also to the failure to include a

particular argument in the motion.’” 

(quoting United

States v. Dewitt, 

, 1502 (10th Cir. 1991)). “For good cause, the

court may grant relief from the waiver.” Fed. R. Crim. P. 12(e).

      Mr. Crisp waived the “Miranda-in-the-middle” or “question-first” argument

because he failed to raise it before the district court. In the motion to suppress

his statements, Mr. Crisp argued that the officers had violated his privilege

against self-incrimination under the Fifth and Fourteenth Amendments. Although

Mr. Crisp couched this argument in terms of a Miranda violation, he asserted only

that he did not knowingly and intelligently waive this privilege because he was

under the influence of drugs or alcohol at the time of the custodial interrogation.

At the suppression hearing, Mr. Crisp proffered no evidence on the “Miranda-in-

the-middle” or “question-first” issue and limited his cross-examination to

questions regarding whether he had disclosed his marijuana and alcohol use and

had affirmatively waived his Miranda rights. Mr. Crisp also presented no

argument on this issue at the suppression hearing, stating instead that the

interrogation tape “speak[s] for itself.” R., Vol. 2, Doc. 51, at 70. Finally, at oral

argument before this court, Mr. Crisp acknowledged that he had not raised the

“Miranda-in-the-middle” or “question-first” argument before the district court.




                                          -7-
      Mr. Crisp also fails to qualify for the narrow exception to this waiver rule.

Although Federal Rule of Criminal Procedure 12(e) permits a court to grant relief

“[f]or good cause,” Fed. R. Crim. P. 12(e), “[r]elief under this narrow exception

is rarely granted,” 

(internal quotation marks omitted).

Mr. Crisp may not avail himself of this exception because he never attempts to

demonstrate good cause for his failure to raise the “Miranda-in-the-middle” or

“question-first” argument before the district court. See United States v. Banks,

, 727–28 (10th Cir. 2006) (“[A] party’s failure to raise a specific

argument in a suppression hearing results in waiver on appeal unless the party is

able to show cause why it failed to raise the argument below.”).

II.   Plain-Error Review

      “[T]here is no appeal from violation of a waived right.” United States v.

Aptt, 

, 1281 (10th Cir. 2004). Although Federal Rule of Criminal

Procedure 12(e) provides that “[a] party waives any Rule 12(b)(3) objection . . .

not raised by the deadline the court sets under Rule 12(c)” without a showing of

good cause, we have “acknowledge[d] that plain error review is a possible option

under our precedent.” 

n.9; see 

n.4 (noting that “we have engaged in plain-error review even after a

defendant has failed to make a motion to suppress evidence prior to trial.”).

Thus, we will review Mr. Crisp’s “Miranda-in-the-middle” or “question-first”

argument for plain error.

                                         -8-
      Under the plain-error doctrine, we will reverse the district court’s judgment

only if the party shows (1) an error; (2) that is plain, which means clear or

obvious; (3) that affects substantial rights; and (4) that “seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Morris, 

, 1133 (10th Cir. 2009) (internal quotation marks omitted);

accord United States v. A.B., 

, 1280 (10th Cir.), cert. denied, 129 S.

Ct. 440 (2008). “The plain error standard presents a heavy burden for an

appellant, one which is not often satisfied.” United States v. Romero, 

, 1178 (10th Cir. 2007).

      In this action, Mr. Crisp challenges the district court’s denial of the motion

to suppress his self-incriminating statements regarding his possession and intent

to distribute cocaine base. He contends that the district court should have

suppressed these statements pursuant to (1) the five-factor test adopted by the

plurality opinion in Seibert; (2) the intent-based test adopted by Justice

Kennedy’s concurring opinion in Seibert; or (3) the voluntariness test adopted by

Elstad. We need not determine which of these three tests controls here, because

we conclude that under any of the tests the district court did not commit clear or

obvious error in finding that Mr. Crisp’s self-incriminating statements were

admissible. United States v. Carrizales-Toledo, 

, 1151–53 (10th

Cir. 2006) (applying all three tests instead of determining whether to apply the




                                          -9-
Seibert plurality, Seibert concurrence, or Elstad). Thus, Mr. Crisp cannot prevail

under plain-error review.

      A.     Seibert Plurality

      Mr. Crisp argues that the self-incriminating statements should be

suppressed under the five-factor test adopted by the plurality opinion in Seibert.

In Seibert, the plurality held that “[t]he threshold inquiry when interrogators

question first and warn later is . . . whether it would be reasonable to find that . . .

the warnings could function ‘effectively’ as Miranda 

–12 (plurality opinion). The plurality established five “relevant facts that bear

on whether Miranda warnings delivered midstream could be effective”:

             [1] the completeness and detail of the questions and answers in
             the first round of interrogation, [2] the overlapping content of
             the two statements, [3] the timing and setting of the first and
             the second [rounds], [4] the continuity of police personnel, and
             [5] the degree to which the interrogator’s questions treated the
             second round as continuous with the first.

“These factors, all of which concern the relationship between the first

and second interrogations, are intended to aid courts in determining whether an

initial, unwarned interrogation operated to ‘thwart Miranda’s purpose of reducing

the risk that a coerced confession would be admitted.’” 

(quoting 

).

      We conclude that, under the plurality’s five-factor test, the district court

did not commit clear or obvious error in denying Mr. Crisp’s motion to suppress


                                          -10-
his self-incriminating statements. The first factor favors the admissibility of the

self-incriminating statements because the initial round of questioning lacked

“completeness and detail.” In response to a question from Mr. Crisp, Corporal

Francetic asked whether his female companion had smoked marijuana around

him. Mr. Crisp answered, “I was smoking weed before she picked me up.” Def.-

Aplt.’s Addendum of Exs., Ex. 3; see 

at 2. This brief question and

response are not the kind of “systematic” or “exhaustive” interrogation that would

thwart the purpose of a subsequent Miranda warning. 

(noting that “the questioning was systematic, exhaustive, and managed with

psychological skill” and lasted for thirty to forty minutes); see 

–52 (concluding under the first factor that “[t]he brevity and

spontaneity of [the] initial questioning reduced the likelihood that it undermined

the subsequent Miranda warnings”); see also United States v. Materas, 

, 29, 33 (1st Cir. 2007) (concluding that Seibert factor one supported

admissibility where the police asked only “where the drugs were located . . .

before explaining to Materas his rights in another location, fifteen minutes later”);

cf. United States v. Aguilar, 

, 525 (8th Cir. 2004) (concluding that,

under Seibert, “the Miranda warnings between the two questioning sessions did

not serve the purpose of the dictates in Miranda,” where, inter alia, “the first

questioning session consisted of more than routine booking questions, included




                                         -11-
some good cop/bad cop questioning tactics, and lasted approximately ninety

minutes”).

      The second factor also tends to favor the admissibility of the self-

incriminating statements because the pre- and post-Miranda statements contain no

overlapping content regarding Mr. Crisp’s possession and intent to distribute

cocaine base. Although the law enforcement officers asked Mr. Crisp about his

marijuana use in the first and second interrogations, they did not question him

about the cocaine base before administering the Miranda warnings. Unlike

Seibert, where “there was little, if anything, of incriminating potential left

unsaid” after the first 

, Mr. Crisp provided the

officers with “significant new information” regarding the cocaine base in the

second, warned interrogation. 

; see also

United States v. Gonzalez-Lauzan, 

, 1138 (11th Cir. 2006)

(detecting little overlap under the second Seibert factor where the defendant made

“[a]ll the detailed incriminating statements . . . after he had waived his Miranda

rights”); United States v. Fellers, 

, 1098 (8th Cir. 2005)

(concluding that the effectiveness of Miranda warnings was not vitiated where the

second, warned interrogation “went well beyond the scope of [the defendant’s]

initial statements by inquiring about different coconspirators and different

allegations”). The officers also did not ground their post-Miranda questions

regarding cocaine base on information gleaned from Mr. Crisp’s prior marijuana

                                         -12-
use. Cf. United States v. Pacheco-Lopez, 

, 428 (6th Cir. 2008)

(concluding that the second Seibert factor “support[ed] our finding that the

warning was ineffective,” where “the question regarding the transportation of

cocaine was not anomalous . . . but was the next logical question based on the

earlier statements”).

      The third and fourth factors appear to weigh against the admissibility of the

self-incriminating statements. In particular, the first and second interrogations

occurred in the same interview room. See 

(holding that

Seibert factor three cut in favor of finding a Miranda violation where the

defendant’s two interrogations occurred in the same room); United States v.

Heron, 

, 886 (7th Cir. 2009) (concluding that two interrogations

occurring at the same police station leaned towards exclusion under Seibert factor

three); 

(concluding that Seibert factor three

counseled toward holding that a Miranda-in-the-middle warning was ineffective

where both interrogations took place at the same kitchen table). Likewise,

although the officers interrupted the interrogation to administer the Miranda

warnings, the break lasted only as long as necessary to read the warnings and ask

a few follow-up questions to ensure Mr. Crisp’s understanding of those warnings.

See 

(“The interrogation was continuous—the

break only lasted for the amount of time it took the investigators to read [the




                                         -13-
defendant] the Miranda warning.”). Furthermore, the same officers were present

at each interrogation. See id.; 

.

      Finally, the fifth factor tends to favor the admissibility of the self-

incriminating statements because the law enforcement officers did not treat the

interrogations as continuous with respect to the cocaine base. The officers used

none of the pre-Miranda statements from the first interrogation to elicit the post-

Miranda statements about the cocaine base in the second interrogation. See

, 616–17; 

; 

. Although Corporal Francetic referred back to Mr. Crisp’s pre-

Miranda admission regarding marijuana use while questioning him during the

second interrogation about the marijuana found near the traffic stop, Mr. Crisp

was not charged with a marijuana offense.

      Thus, under the five-factor test of the Seibert plurality opinion, the record

provides strong support for the view that the Miranda warnings functioned

effectively in this case. Unlike in Seibert, the efficacy of the Miranda warnings

would appear not to have been materially called into question because Mr. Crisp

had not confessed to the possession and intent to distribute cocaine base prior to

receiving the Miranda warnings. Cf. 

(“[T]he sensible

underlying assumption is that with one confession in hand before the warnings,

the interrogator can count on getting its duplicate . . . .” (emphasis added)).

Based on this record, we may conclude with confidence that the district court’s

                                         -14-
ruling denying Mr. Crisp’s motion to suppress did not amount to clear or obvious

error.

         B.    Seibert Concurrence

         Mr. Crisp also argues that the statements should be suppressed under

Justice Kennedy’s concurring opinion in Seibert. Under the narrower concurring

opinion, Justice Kennedy proposed an intent-based test that would apply only

when “the two-step interrogation technique was used in a calculated way to

undermine the Miranda warning.” 

(Kennedy, J., concurring). “When

an interrogator uses this deliberate, two-step strategy, . . . postwarning statements

that are related to the substance of prewarning statements must be excluded

absent specific, curative steps.” 

If the interrogator has not

deliberately violated Miranda, “[t]he admissibility of postwarning statements

should continue to be governed by the principles of Elstad.” 

.

         We conclude that, under Justice Kennedy’s intent-based test, the district

court did not commit clear or obvious error by refusing to grant the motion to

suppress. The record does not appear to reflect any indicia of deliberate action by

the officers in violating Mr. Crisp’s Miranda rights. More specifically, the record

contains insufficient evidence to suggest that the law enforcement officers

deliberately engaged in the two-step interrogation technique. The record does not

indicate that the officers “intentionally withheld the Miranda warnings during the

initial [brief] interrogation.” 

. No coercion

                                          -15-
appears in either the circumstances of the encounter or the nature of the

questioning. See United States v. Nunez-Sanchez, 

, 668 (5th Cir.

2007). To the contrary, the pre-Miranda statement occurred after the parties had

bantered about the pursuit and in response to a question about the marijuana use

of Mr. Crisp’s female companion. See 

(“All evidence suggests that

[the defendant] was calm and cooperative, and the agents did not act with

aggressiveness or hostility.”). The pre-Miranda statements also were unrelated to

the post-Miranda statements regarding cocaine base. See 

. Therefore, under Justice Kennedy’s intent-based test, we cannot

conclude that the district court committed clear or obvious error in denying Mr.

Crisp’s motion to suppress.

      C.     Elstad

      If neither Seibert test applies to this action, Mr. Crisp argues that the

statements should be suppressed as involuntary under Elstad. Under Elstad, the

admissibility of a post-Miranda statement turns on whether it was made

knowingly and 

, 318. “[A]bsent deliberately coercive

or improper tactics in obtaining the initial statement, the mere fact that a suspect

has made an unwarned admission does not warrant a presumption of compulsion”

as to any post-Miranda statement. 

The Court instead held that “[a]

subsequent administration of Miranda warnings to a suspect who has given a




                                         -16-
voluntary but unwarned statement ordinarily should suffice to remove the

conditions that precluded admission of the earlier statement.” 

voluntariness test of Elstad, the district court did not commit

clear or obvious error in denying the motion to suppress. As an initial matter, we

must determine whether Mr. Crisp’s pre-Miranda statement was voluntary.

“Courts typically consider five factors in a voluntariness inquiry: (1) the age,

intelligence, and education of the defendant; (2) the length of [any] detention; (3)

the length and nature of the questioning; (4) whether the defendant was advised of

[his or] her constitutional rights; and (5) whether the defendant was subjected to

physical punishment.” 

(alteration in

original) (internal quotation marks omitted). Mr. Crisp was thirty-nine years old

at the time of his arrest and was a high-school graduate. He made the initial self-

incriminating statement regarding his recent marijuana use within a few hours

after his initial detention and within a few minutes of the start of the

interrogation. He also made this self-incriminating statement in response to a

question about his female companion’s marijuana use and in a relatively cordial

interrogation environment. Although Mr. Crisp was not read his Miranda rights,

he later acknowledged a familiarity with the criminal-justice system by stating

that “this ain’t my first rodeo.” Def.-Aplt.’s Addendum of Exs., Ex. 3; see 

at 3. Mr. Crisp also was not subjected to any physical punishment or

threats of punishment. Based on the totality of the circumstances, the pre-

                                          -17-
Miranda statements clearly appear to be voluntary. Thus, if Mr. Crisp’s pre-

Miranda statements were voluntary, the subsequent administration of the Miranda

warnings would make his post-Miranda statements admissible as long as he

voluntarily waived his Miranda rights.

      Mr. Crisp knowingly and voluntarily waived his Miranda rights. Corporal

Francetic advised Mr. Crisp of his rights and asked him whether he understood

them. Mr. Crisp responded affirmatively. The officers also asked Mr. Crisp

several follow-up questions to ensure that he possessed the intelligence and

sobriety to understand those rights. As noted above, Mr. Crisp even

acknowledged a familiarity with the criminal-justice system, claiming that “this

ain’t my first rodeo.” 

see 

at 3. Finally, after Mr. Crisp

discussed his connection to the cocaine base, the officers had him read and sign a

written Miranda waiver. Accordingly, under Elstad’s test for admissibility, the

district court did not commit clear or obvious error in denying the motion to

suppress.

                                   CONCLUSION

      For the foregoing reasons, we AFFIRM the district court’s order.



                                        Entered for the Court

                                        JEROME A. HOLMES
                                        Circuit Judge


                                          -18-