U.S. v. Bennett, No. 01-8101.

Decision Date22 May 2003
Docket NumberNo. 01-8101.
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Clifford Ray BENNETT, Defendant-Appellant.
CourtU.S. Court of Appeals — Tenth Circuit

Lisa E. Leschuck (Matthew H. Mead, United States Attorney, with her on the brief), Assistant United States Attorney, Cheyenne, Wyoming, for Plaintiff-Appellee.

Ronald G. Pretty, Cheyenne, Wyoming, for Defendant-Appellant.

Before EBEL, Circuit Judge, BRORBY, Senior Circuit Judge, and O'BRIEN, Circuit Judge.

BRORBY, Senior Circuit Judge.

Mr. Clifford Ray Bennett entered a plea agreement with the government and conditionally pled guilty to possessing a firearm silencer in violation of federal law. The United States District Court for the District of Wyoming sentenced him to thirty-seven months in prison. Mr. Bennett asserts two claims of error on appeal. He argues the district court should have suppressed statements he made about the firearm silencer because the police illegally arrested him and violated his right to silence under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He also argues the district court incorrectly determined he was a "prohibited person" under the United States Sentencing Guidelines, thereby increasing his sentence for possessing a firearm silencer. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a)(2), we affirm.

Background

The police first encountered Mr. Bennett in his backyard while conducting a search of his residence pursuant to a search warrant. They were searching "for controlled substances, drug paraphernalia, weapons, money and other items associated with trafficking of narcotics." Although the police told Mr. Bennett "to stop, freeze, halt, police," Mr. Bennett ignored the orders and entered his garage. The police then ordered Mr. Bennett to exit the garage. He eventually complied, and the police instructed him to lie on the ground. At least two police officers pointed their guns at Mr. Bennett during this time. Once Mr. Bennett was lying on the ground, the police handcuffed him and searched him for weapons. After failing to find any weapons in his possession, the police uncuffed Mr. Bennett and informed him they had a warrant to search his residence.

Following their search for weapons, the police advised Mr. Bennett of his rights under Miranda and expressed their desire to interview him. Mr. Bennett indicated he understood these rights. He also indicated he did not want to be interviewed at his residence, but he agreed to be interviewed at a local office of the Wyoming Division of Criminal Investigation. The police informed Mr. Bennett he was not under arrest, he did not have to answer questions, and he did not have to travel to the office to be interviewed. Nevertheless, Mr. Bennett agreed to accompany the officers.

The police interviewed Mr. Bennett about his drug dealing activities. Mr. Bennett admitted he used, purchased, and sold methamphetamine. The police terminated the interview and returned Mr. Bennett to his residence after he "refused to answer further questions about sources, stating that he was not going to be a `rat' and that he would just take the consequences and go to the pen."

Once the police returned Mr. Bennett to his residence, an officer who was participating in the search approached him and asked him about a firearm silencer the officer discovered in Mr. Bennett's garage. Mr. Bennett told the officer a friend's father made the item for Mr. Bennett's .308 Remington rifle. Mr. Bennett refused to identify the name of his friend's father. He told the officer: "I don't want to talk about it anymore unless I get a deal." The officer ceased questioning Mr. Bennett. A short time later, the police arrested Mr. Bennett for delivery of a controlled substance. Mr. Bennett eventually pled guilty in a separate matter to two misdemeanor charges of possession of a controlled substance.

A grand jury later indicted Mr. Bennett for possessing a firearm silencer in violation of 26 U.S.C. §§ 5841, 5845, 5861(d), and 5871. Before trial, Mr. Bennett filed a motion to suppress statements he made about the firearm silencer. The district court denied the motion. Mr. Bennett then entered a plea agreement with the government and conditionally pled guilty to the charge in the indictment. He reserved the right to contest the admissibility of his statements about the firearm silencer on appeal. The district court sentenced him to thirty-seven months in prison. Mr. Bennett now appeals the district court's denial of his motion to suppress as well as his sentence.

The Fourth Amendment and Miranda

Mr. Bennett argues the district court incorrectly denied his motion to suppress the statements he made about the firearm silencer. He claims the statements should be suppressed because the police illegally arrested him when they "ordered him to [lie] on the ground." He also claims the statements should be suppressed because the police violated his right to silence under Miranda. We conclude the district court did not err in denying the motion.

The Fourth Amendment of the Constitution protects people from "unreasonable searches and seizures." U.S. Const. amend. IV. Absent certain exceptions not relevant here, "evidence obtained in violation of the Fourth Amendment cannot be used in a criminal proceeding against the victim of the illegal search and seizure." United States v. Calandra, 414 U.S. 338, 347, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974); see also United States v. Eylicio-Montoya, 70 F.3d 1158, 1165 (10th Cir.1995) (detailing exceptions to the remedy of suppression for Fourth Amendment violations). "When reviewing a district court's denial of a motion to suppress [such evidence], we accept the court's findings of fact unless clearly erroneous and consider the evidence in the light most favorable to the government." United States v. Pena, 143 F.3d 1363, 1365 (10th Cir.), cert. denied, 525 U.S. 903, 119 S.Ct. 236, 142 L.Ed.2d 194 (1998). "We are mindful that at a hearing on a motion to suppress, the credibility of the witnesses and the weight given to the evidence, as well as the inferences and conclusions drawn therefrom, are matters for the trial judge." United States v. Fernandez, 18 F.3d 874, 876 (10th Cir.1994). Nevertheless, we review de novo the ultimate determination of reasonableness under the Fourth Amendment because it is a question of law. United States v. Gordon, 168 F.3d 1222, 1225 (10th Cir.), cert. denied, 527 U.S. 1030, 119 S.Ct. 2384, 144 L.Ed.2d 786 (1999).

Mr. Bennett apparently believes the police transformed his detention into an illegal arrest when they "ordered him to [lie] on the ground" and "pointed a gun at him." The district court held these actions did not amount to an arrest and the police acted reasonably in using firearms and handcuffs to detain Mr. Bennett. Mr. Bennett believes the police violated his Fourth Amendment rights and, consequently, the district court should have suppressed his subsequent statements. We agree with the district court.

As an initial matter, we reject Mr. Bennett's characterization of his initial detention as an "arrest." We also conclude the police officers acted reasonably in securing Mr. Bennett before searching the premises. The officers had a warrant to search Mr. Bennett's premises for drugs and drug-related paraphernalia.1 "[A] warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981) (footnotes omitted). However, police officers must still act reasonably because such a detention is a seizure under the Fourth Amendment. Id. & n. 4, 101 S.Ct. 2587.

In this case, the police officers' conduct was not unreasonable simply because they pointed a gun at Mr. Bennett and handcuffed him. Police may use firearms and handcuffs as part of a permissible detention when they reasonably believe it is necessary for their safety and protection. See United States v. Merkley, 988 F.2d 1062, 1064 (10th Cir.1993). Here, the government received a tip from a confidential informant that Mr. Bennett was dealing drugs and carrying a firearm. A state court judge determined probable cause existed to search Mr. Bennett's home for illegal drugs and drug-related paraphernalia. Mr. Bennett initially disobeyed police orders to "stop" and entered his garage. The police were unaware of Mr. Bennett's activity in the garage. Once Mr. Bennett emerged from the garage, the police acted reasonably in minimizing the risk of harm to themselves and others by securing Mr. Bennett to determine if he had any weapons. Their use of firearms and handcuffs did not transform Mr. Bennett's detention into an arrest.

We also conclude Mr. Bennett's detention did not become an arrest while the police questioned him about his drug-related activities and the firearm silencer. The police did not restrain Mr. Bennett once they determined he did not possess any weapons. They told him he was not under arrest and he did not have to answer questions. Mr. Bennett agreed to talk with the police. Although the police told him he did not need to accompany them to a nearby Wyoming Division of Criminal Investigation office for questioning, he agreed to accompany them. Mr. Bennett rode to the office in the front seat of a police car. When Mr. Bennett indicated he did not want to answer further questions at the office, the police returned him to his home. The police did not question him about the firearm silencer until after they dropped him off at his residence. Mr. Bennett willingly talked to the police about the firearm silencer because he did not think his conduct was illegal. After reviewing this evidence, we believe the police acted reasonably and Mr. Bennett's detention did not become an arrest.

Mr. Bennett next argues ...

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