Felon Offers to 'Take the Charge', Loses Motion to Suppress - U.S. Sixth Circuit
U.S. Sixth Circuit - The FindLaw 6th Circuit Court of Appeals Opinion Summaries Blog

Felon Offers to 'Take the Charge', Loses Motion to Suppress

When we review the daily decisions from the federal appellate courts, we tend to click on cases that include famous names. Our quasi-celebrity fixation is how we found the Joe the Plumber decision the day it came out in April. It has also resulted in posts on luminaries like David Bowie and Jon Ham, (just not that David Bowie or Mad Men's Jon Hamm.)

The point is, we became similarly distracted when we saw a Sixth Circuit Court of Appeals decision about Michael Collins. We knew this wasn't an appeal involving the Irish revolutionary leader -- he's been dead for 90 years -- but we just had to read it. It turns out that this Michael Collins is appealing a 15-year prison sentence for being a felon in possession of a gun, and an armed career criminal.

Michael Collins and Orlando Whisnant were riding around Jackson, Tenn. in a borrowed car when they were stopped for speeding. During the almost-50 minute stop, Whisnant passed a field sobriety test, and the cops concluded that his license was valid. Because Whisnant had a history of drug possession, and Collins had gestured toward the floorboard during the stop, the police asked to search the car.

Whisnant expressed doubts about being able to grant consent, but agreed to the search when an officer told him that he could consent. The cops found a loaded .22 caliber handgun under the front passenger seat in the area where Collins had gestured. Both initially denied knowing anything about the gun, but Collins offered to "take the charge" when they were threatened with arrest.

Collins was arrested, and his "take the charge" statement was used as a springboard for a full confession.

After losing his motion to suppress the gun, the "take the charge" statement, and his written confession, Collins pleaded guilty. Then he took his suppression arguments to the Sixth Circuit Court of Appeals.

The Sixth Circuit ruled that Whisnant's consent to the car search was voluntary, and that police didn't have to inform Whisnant or Collins of their right to refuse the search. The court rejected Collins' argument that police used "subtle coercion" tactics against Whisnant, (e.g. overpowering police presence, mentioning Whisnant's drug prior, and not mentioning a right to refuse the search) to secure consent.

The court also refused to suppress Collins' pre-Miranda "take the charge" comment because he wasn't subject to an interrogation at the time. Since the comment and the search were obtained validly, the court rejected the written confession suppression argument.

The judicial deck is stacked against a defendant in a motion to suppress. Which is the better tactic for a felon facing armed career criminal status? "Take the charge" and hope for a sentence reduction based on acceptance of responsibility, or stay quiet and fight the charge in court?

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