U.S. v. Cunningham

• Decision Date: 13 January 1998
• Docket Number: No. 97-1720MN,97-1720MN
• Citation: 133 F.3d 1070
• Parties: UNITED STATES of America, Appellee, v. Jerry Lee CUNNINGHAM, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1070

133 F.3d 1070

UNITED STATES of America, Appellee, v. Jerry Lee CUNNINGHAM, Appellant.

No. 97-1720MN.

United States Court of Appeals Eighth Circuit.

Submitted Oct. 21, 1997.

Decided Jan. 13, 1998.

Richard Virnig, Minneapolis, MN, argued, for Appellant.

Richard Newberry, Minneapolis, MN, argued (David L. Lillehaug, on the brief), for Appellee,

Before RICHARD S. ARNOLD, Chief Judge, LOKEN and HANSEN, Circuit Judges.

RICHARD S. ARNOLD, Chief Judge.

Jerry Lee Cunningham was convicted of drug and weapons charges after a jury trial. He appeals his conviction on four principal grounds: illegal search and seizure, violation of his right to counsel, failure of the District Court to conduct a hearing to examine whether improper jury contact occurred, and improper admission of his prior record in light of the Supreme Court's decision in Old Chief v. United States, --- U.S. ----, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997). We affirm the convictions. There was an Old Chief error, but we think it was harmless.

I.

On August 6, 1996, police in Brooklyn Center, Minnesota, received a 911 call from an apartment in Brooklyn Center. The caller identified herself as Lachonda Williams and said she was being held against her will. When the police arrived at the apartment, they were met at the door by Jerry Lee Cunningham, the defendant, who attempted to prevent the police from entering the apartment. At trial, one of the officers testified that he could hear a woman crying inside the apartment. The police explained that it was necessary for them to enter the apartment to investigate the call. The defendant refused to permit the officers to enter the apartment, and he was arrested for obstructing legal process.

Once inside, the police observed a woman, later identified as Sheila Hatchett, sitting in a chair on top of another woman, later identified as Ms. Williams, who was holding a young child. Ms. Williams got out from underneath Ms. Hatchett, and the police took Ms. Williams into a rear bedroom to interview her. Ms. Williams told the police that Mr. Cunningham, who is her father, had assaulted her because he believed she had stolen $5,000 in cash from him. Ms. Williams also told the police that she had seen a large amount of crack cocaine in the apartment that day. She told the police that the defendant supplied drugs to Ms. Hatchett, that he had sold drugs at a bar in North Minneapolis, and that he carried weapons when he did so. While interviewing Ms. Williams in the bedroom, the police observed rolling papers and currency. Ms. Williams told the police that she had heard Ms. Hatchett tell the defendant that the police had been called, and that Ms. Hatchett had moved the crack cocaine and guns from the apartment to her car. Ms. Williams identified the car for the police, and it was impounded and towed to the police department. The police later obtained a warrant and searched the car, finding 142 grams of crack cocaine, 22.8 grams of powder cocaine, and three handguns.

Later, at the police station, Mr. Cunningham was informed of his Miranda rights before being interviewed by a detective. Shortly after the interview began, the defendant told the detective that he wanted to contact an attorney. The detective placed several calls for the defendant in an effort to locate his attorney. According to the detective, the defendant made a series of arguably incriminating statements to the persons on the telephone and to the detective himself, who had remained in the room. ¹ The detective testified that the defendant said, among other things, that he could "do five to seven years standing on his head"; that if there was any "heat" to be taken he would take it; that he and another person were the last ones to use the car; and that, because the streets weren't safe, he always carried a gun. In addition, the detective testified that when he responded to the defendant's statement that he could do five to seven years standing on his head by saying that he must not be familiar with federal sentencing practices related to drug and weapons charges, the defendant said, "Oh yeah, the guns in the car."

The police later searched the apartment pursuant to a warrant. This search led to the seizure of ammunition, several items of drug paraphernalia with crack and powder cocaine residue, and documents linking the defendant to the car and the apartment.

A jury convicted the defendant of possession of cocaine base with intent to distribute (Count I) in violation of 21 U.S.C. § 841(b)(1)(A), conspiracy to possess with intent to distribute cocaine base (Count II) in violation of 21 U.S.C. § 846, being a felon in possession of a firearm (Count IV) in violation of 18 U.S.C. § 922(g)(1), and possession of a firearm with an obliterated serial number (Count VII) in violation of 18 U.S.C. § 922(k). The jury could not reach a verdict on another felon-in-possession-of- a-firearm count and two other counts alleging possession of a firearm with an obliterated serial number, and the District Court declared a mistrial as to those counts. The Court sentenced Mr. Cunningham to 360 months on Counts I and II (the bottom of the Guidelines range), 120 months on Count IV, and 60 months on Count VII, all terms to run concurrently. The Court also ordered five years' supervised release and a special assessment of $400. This appeal follows.

II.

The Fourth Amendment protects citizens from unreasonable searches and seizures. Mr. Cunningham argues that this right was violated when the police entered all of the rooms of the apartment and observed the rolling papers and currency in the rear bedroom. This evidence led, at least in part, to the impoundment and search of the car, which in turn supported the warrant police obtained to search the apartment. Defendant argues that the evidence seized should be suppressed because its discovery was the result of a Fourth Amendment violation.

Although we review the facts supporting a District Court's denial of a motion to suppress for clear error, we review de novo the legal conclusions that are based upon those facts. See Ornelas v. United States, 517 U.S. 690, ----, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996); United States v. Williams, 981 F.2d 1003, 1005 (8th Cir.1992). When applying this standard, we give deference to the fact finder, who had an opportunity to observe the demeanor and credibility of the witnesses. United States v. Wallraff, 705 F.2d 980, 987 (8th Cir.1983).

A warrantless search may be justified by exigent circumstances, which exist where the safety of law enforcement officers or others is threatened. Warden v. Hayden, 387 U.S. 294, 298-99, 87 S.Ct. 1642, 1645-46, 18 L.Ed.2d 782 (1967). The defendant acknowledges that the police had a right to enter the apartment to investigate the 911 call but argues that there was no basis for entering every room of the apartment, since he had already been arrested, and no other danger was present. The Supreme Court has said, however, that the Fourth Amendment permits a properly limited protective sweep in connection with an in-home arrest if an officer reasonably believes that the area to be swept harbors an individual posing a danger to those at the arrest scene. Maryland v. Buie, 494 U.S. 325, 337, 110 S.Ct. 1093, 1100, 108 L.Ed.2d 276 (1990). The officer's belief must be based on specific and articulable facts. Id. Following Mr. Cunningham's arrest, the police identified Ms. Williams as the 911 caller and walked through the apartment to identify any threat to themselves or Ms. Williams. The Magistrate Judge, ² finding that the officers had grounds to conduct a cursory inspection of the apartment for any additional suspects who might have been restraining Ms. Williams against her will, held that the search of the apartment did not violate defendant's Fourth Amendment rights because the officers had a legitimate reason to be where they were. We believe this conclusion, adopted by the District Court, ³ was correct. The officers' protective sweep of the apartment was not unreasonable and did not violate the Fourth Amendment.

Mr. Cunningham also argues that the search of the car and the apartment violated his Fourth Amendment rights. Both searches were conducted pursuant to warrants, and there was ample evidence to support the warrants. In addition to the testimony of the officers who sought the warrants, there was Ms. Williams's statement that she had seen a large amount of cocaine inside the apartment, and that it had been moved, along with the currency and guns, to the car. The defendant argues the police had little more than a suspicion that the car contained evidence related to a crime and should not have relied on Ms. Williams's statement without corroborating it because she was motivated to retaliate against her father for assaulting her. This argument is without merit. Although police officers must remain alert to the possibility that a witness is not telling the truth, we believe it was reasonable for the officers to rely on her statements.

III.

Mr. Cunningham next argues that testimony heard by the jury about statements he made to the detective while they were attempting to contact defendant's attorney violated his right to counsel. For the reasons that follow, this argument is also without merit.

The crux of the argument is that Robert Dirks, the detective who interviewed the defendant, prodded the defendant into incriminating himself after he had invoked his Miranda right to counsel. Mr. Dirks did this, according to the defendant, by dialing the telephone for the defendant, by remaining in the booking room with him while he spoke to several people in an effort to locate his attorney's telephone number, and by saying several things to the defendant between the calls. The defendant relies on Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), which held that, in addition to express questioning, interrogation means "any words or...