United States vs. Phillips, No. 06-7026 (10th Cir. 2006)
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F IL E D United States Court of Appeals Tenth Circuit PUBLISH November 15, 2006 U N IT E D ST A T E S C O U R T O F A PP E A L S Elisabeth A. Shumaker Clerk of Court T E N T H C IR C U IT U N ITED STA TES O F A M ER ICA , Plaintiff - Appellee , v. No. 06-7026 GW YENNE PH ILLIPS , a/k/a Jowayne Phillips, a/k/a Tee Phillips, Defendant - Appellant . A PPE A L FR O M T H E U N IT ED ST A T ES D IST R IC T C O U R T FO R T H E E A ST ER N D IST R IC T O F O K L A H O M A (D .C . N O . 05-C R -81-W ) Jim M cClure, M uskogee, Oklahoma, for D efendant - Appellant . Rob W allace, Assistant United States Attorney (Sheldon J. Sperling, United States Attorney, with him on the brief), M uskogee, Oklahoma, for Plaintiff - Appellee . Before T A C H A , Chief Circuit Judge, H A R T Z and T Y M K O V IC H , Circuit Judges. H A R T Z, Circuit Judge. Gwyenne Phillips appeals his conviction in the United States D istrict Court for the District of Oklahoma on a charge of possession of a firearm by a convicted felon. See 18 U.S.C. § 922(g)(1). He contends that the district court erred in admitting at trial DNA evidence that the M uskogee Police Department obtained through a search warrant. Arguing that the affidavit in support of the warrant included a statement he made without having been advised of his rights under M iranda v. Arizona, 384 U.S. 436 (1966), M r. Phillips insists that the DNA evidence was therefore inadmissible. W e have jurisdiction under 28 U.S.C. § 1291. W e affirm because physical evidence obtained as fruit of a voluntary statement by a defendant to a law-enforcement officer is admissible at trial regardless of whether the officer gave the defendant M iranda warnings. M r. Phillips had been arrested for the armed robbery of a pawn shop in M uskogee, Oklahoma. W hile M r. Phillips was in custody, Detective David Lyons of the M uskogee Police Department went to the M uskogee County Detention Center to question him about the robbery. As Lyons approached M r. Phillips, he noticed that M r. Phillips was limping. Lyons inquired about the limp, and M r. Phillips responded that he had been shot. Detective Lyons reported this conversation in an affidavit supporting a search warrant to obtain M r. Phillips s DNA by buccal swab. The purpose of obtaining the DNA was to compare it to that of blood found on a jacket the police recovered near the scene of the robbery, along with a gun and other materials. -2- The DNA obtained through M r. Phillips s buccal swab matched that of the blood on the jacket. The gun found near the jacket was the basis of the charge against M r. Phillips under § 922(g)(1). At trial the DNA evidence was admitted, and an expert explained its significance. M r. Phillips contends that the warrant for the buccal swab was defective because the supporting affidavit relied on the statement he offered to Detective Lyons without a M iranda warning. Accordingly, he asserts, the DNA evidence recovered through the warrant should have been suppressed. W e assume the truth of M r. Phillips s assertion that he did not receive a M iranda warning before the conversation. On the other hand, M r. Phillips does not argue that his statement was involuntary. Under recent Supreme Court authority, the evidence is therefore admissible. In United States v. Patane, 542 U.S. 630 (2004), police officers seized a gun after the defendant, in response to custodial questioning without a M iranda warning, disclosed the gun s location and gave the officers permission to retrieve it. See id. at 635 (plurality opinion). The Court held that physical evidence that is the fruit of a voluntary statement should not be suppressed even if the statement was elicited without a M iranda warning. See id. at 634 ( [T]he Self-Incrimination Clause . . . is not implicated by the introduction at trial of -3- physical evidence resulting from voluntary statements . . . . ); id. at 645 (Kennedy, J., concurring) ( Admission of nontestimonial physical fruits . . . does not run the risk of admitting into trial an accused s coerced incriminating statements against himself. ); United States v. Pettigrew, No. 05-2187, 2006 W L 2946893, at *5 (10th Cir. Oct. 12, 2006) ( [T]he prosecution may still introduce physical evidence seized as a result of a M iranda violation. ). A lthough in this case, unlike in Patane, the suspect s statement was used to obtain a search warrant, this difference is immaterial. The essential point is that the evidence admitted at trial was physical evidence (and scientific testimony interpreting that evidence) not M r. Phillips s statement itself. W e A FFIR M the judgment below. -4-
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