USA v. Kelley, No. 07-40515 (5th Cir. 2008)

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED No. 07-40514 c/w 07-40515 Summary Calendar March 4, 2008 Charles R. Fulbruge III Clerk UNITED STATES OF AMERICA Plaintiff-Appellee v. VERMON KELLEY Defendant-Appellant Appeals from the United States District Court for the Southern District of Texas USDC Nos. 2:92-CR-140-1 USDC Nos. 2:06:cr-00782-1 Before JOLLY, DAVIS, and DeMOSS, Circuit Judges. PER CURIAM:* Vermon Kelley appeals his conviction and sentence for possession of a firearm by a felon and possession of six grams of cocaine base. Kelley also appeals the district court s revocation of his supervised release that had been imposed in connection with a prior conviction. Kelley argues that the district court erred in denying his motion to suppress a post-arrest statement that he * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 07-40514 c/w 07-40515 made to law enforcement officials regarding his possession of firearms because he was not Mirandized before he made the statement. See Miranda v. Arizona, 384 U.S. 436 (1966). After Kelley was handcuffed and arrested and before he was Mirandized, Kelley told a police officer where firearms could be located in his residence in response to the officer s question. Because the officer s question was based on his concern about the safety of the officers on the scene and before the officers had completed a protective sweep of the residence, the district court did not err in denying Kelley s motion to suppress. See New York v. Quarles, 467 U.S. 649, 653 (1984); Fleming v. Collins, 954 F.2d 1109, 112-14 (5th Cir. 1992) (en banc). Accordingly, the judgment of the district court is AFFIRMED. 2

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