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Nico Jones appealed a district court’s denial of his motion to suppress evidence. He argued the district court clearly erred by finding special agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives had probable cause to arrest him and, therefore, the fruits of the subsequent search were admissible in court. He also argued the district court clearly erred by finding he waived his Miranda rights and, therefore, his confession was also admissible. Exercising jurisdiction, the 10th Circuit Court of Appeals affirmed.
In August 2020, special agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives began investigating Jones on suspicion he was involved with multiple reported shootings in Colorado Springs, Colorado. The agents were aware Jones had previously been convicted of a felony, and they had information that led them to believe he possessed a firearm. After observing him outside an apartment complex and seeing him handle what the agents believed to be a gun, they arrested him for being a felon in possession of a firearm.
After arresting Jones, the agents obtained a search warrant and searched his vehicles. They found, among other things, a gun and approximately 34 grams of cocaine. They also interrogated Jones who, after waiving his Miranda rights, admitted to possessing the gun and drugs. Jones was then charged with possession of a firearm as a felon in violation of 18 U.S. Code 922(g); possession of cocaine with intent to distribute in violation of 21 U.S.C. 841(a) and (b)(1)(C); and possession of a firearm in furtherance of a drug trafficking offense in violation of 18 U.S.C. 924(c)(1)(A)(i).
He filed a motion to suppress the evidence found in the vehicles, arguing the agents had no probable cause to arrest him and, therefore, all the evidence found as a result of the arrest was obtained in violation of his Fourth Amendment rights. He also moved to suppress his confession on Fifth Amendment grounds. He argued his Miranda waiver was not valid because he was incapacitated at the time due to tiredness and having consumed drugs earlier that day. The district court held a hearing on the motion to suppress during which it watched a video of the interrogation and heard testimony from two special agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives.
Special Agent Ryan Molinari testified first. He told the court that sometime around Aug. 4, 2020, another agent, Special Agent Robert Dunning, told him he suspected Jones of being involved in some reported shootings in Colorado Springs. Dunning said despite the fact Jones was a felon, and therefore prohibited from possessing a firearm, he had seen recent Facebook videos showing Jones holding a gun. Molinari was then assigned to surveil Jones.
Molinari drove to an apartment complex associated with Jones to begin surveillance. He sat in his car in the parking lot for several hours before Jones pulled in driving a BMW. Jones got out of the BMW and began to work on another car approximately 30 away from Molinari. At some point, Molinari saw Jones reach into the BMW, take out an object and tuck it in his waistband. Molinari didn’t see the object before Jones tucked it into his waistband, but later he clearly saw part of it sticking out of Jones’ pants because Jones wasn’t wearing a shirt. Molinari testified he believed the object was a gun based on his six years of experience with the Bureau of Alcohol, Tobacco, Firearms and Explosives; his 10 years of experience in the military; Jones’ manner and demeanor; the fact they were investigating Jones for possessing a gun; and the fact that the object looked like a gun. During the surveillance, Molinari took pictures of Jones on his iPhone. He testified that he didn’t get a clear picture of the gun, but one picture showed something dark in Jones’ waistband.
Molinari then called for backup because he knew Jones was a felon, he believed Jones had a gun and he felt it would be safer to have another agent nearby. Special Agent Robert Gillespie arrived. While he parked within sight of Jones, he was a little farther away than Molinari. Gillespie testified during the hearing he also saw Jones and the gun. At some point, Dunning drove past the parking lot. According to the opinion, he didn’t testify at the hearing, but both Molinari and Gillespie testified he told them he saw a gun. It was unclear how far away Dunning was when he drove past.
Gillespie also testified about Jones’ interrogation. The interrogation began around 11:30 p.m. When asked to spell his name, Jones initially misspelled his middle name but quickly corrected himself. Jones told the agents the day before he had been awake until 3:00 a.m., went home, slept until 11:00 a.m. or noon, then woke up and smoked some marijuana and later took two Percocet pills. The interrogation video showed Jones asking and answering questions, following the conversation and telling coherent stories. He volunteered information about other crimes and went into some detail about them. Gillespie testified he had conducted thousands of interrogations, including some where the suspect was too intoxicated to proceed. In his opinion, “there was no indication that [stopping the interrogation due to intoxication] was necessary with Mr. Jones that day.”
After hearing from the two witnesses, the district court “f[ound] and conclud[ed] that the agents saw a firearm in the possession of Mr. Jones.” It credited the amount of time Molinari had watched Jones, his Bureau of Alcohol, Tobacco, Firearms and Explosives, and military experience and the fact he had called for backup after seeing the gun to support the finding. The district court found Gillespie was farther away from Jones than Molinari, but it believed his testimony that he also saw the gun. The judge presiding over the district court then said, “I have had the opportunity to assess their credibility[,] and I believe them. There’s nothing to the contrary that suggests that there was no firearm . . . the weight of the evidence goes in one direction and one direction only.”
Then, the district court considered the interrogation video and Gillespie’s testimony about the interrogation and found “there was no incapacitation.” It also found “the Miranda advisement was given[,] it was knowingly, voluntarily, and intelligently . . . waived[,] . . . and  he was absolutely capable of waiving.” The court based this conclusion on seeing Jones didn’t slur his speech, he didn’t pause, he didn’t seem unable to comprehend what the agents were saying, he wasn’t confused about what words meant, he responded to questions quickly and he negotiated with the agents.
After finding there was probable cause to arrest Jones and Jones had voluntarily, knowingly and intelligently waived his Miranda rights, the district court denied the motion to suppress. Jones pled guilty to one count of violating 21 U.S.C. 841(a)(1) and (b)(1)(C), possession with intent to distribute cocaine and one count of 18 U.S.C. 924(c)(1)(A)(i), possession of a firearm in furtherance of a drug trafficking crime. He reserved his right to appeal the denial of the motion to suppress.
When reviewing the denial of a motion to suppress, the 10th Circuit reviewed “the district court’s factual findings for clear error and consider[ed] the evidence in the light most favorable to the Government,” the opinion noted, citing the decisions United States v. Edwards and United States v. Haymond. The 10th Circuit “accept[ed] the factual findings of the district court and its determination of witness credibility unless they are clearly erroneous,” the opinion added, citing the decision United States v. Chavez. “A finding of fact is clearly erroneous if it is without factual support in the record or if, after reviewing all of the evidence, we are left with the definite and firm conviction that a mistake has been made,” the opinion noted, citing the decision Hamric v. Wilderness Expeditions, Inc. The 10th Circuit reviewed the district court’s ultimate legal determination based on those facts de novo, citing the decisions United States v. Burson and United States v. Zamudio-Carrillo.
After evaluation, the 10th Circuit affirmed the district court’s denial of Jones’ motion to suppress.