U.S. v. Burns

• Decision Date: 08 February 1995
• Docket Number: No. 93-3445,93-3445
• Citation: 37 F.3d 276
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Deborah B. BURNS, a/k/a Mary Jennings, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 276

37 F.3d 276

UNITED STATES of America, Plaintiff-Appellee, v. Deborah B. BURNS, a/k/a Mary Jennings, Defendant-Appellant.

No. 93-3445.

United States Court of Appeals, Seventh Circuit.

Argued May 13, 1994.

Decided Sept. 27, 1994.

As Amended on Denial of Rehearing and Suggestion

for Rehearing En Banc Feb. 8, 1995.

Cudahy, Circuit Judge, with whom Ilana Diamond Rovner, Circuit Judge, joined, filed concurring opinion.

Steven M. Biskupic, Asst. U.S. Atty., Milwaukee, WI (argued), for plaintiff-appellee.

David R. Saggio, Gerardo J. Hernandez (argued), Gonzalez & Saggio, Milwaukee, WI, for defendant-appellant.

Before CUDAHY, KANNE, and ROVNER, Circuit Judges.

KANNE, Circuit Judge.

Deborah B. Burns was arrested after law enforcement officers discovered a kilogram of cocaine in her hotel room. Burns was charged in a two count indictment with possession of cocaine with intent to distribute and with crossing state lines for unlawful purposes. The original two-count indictment was superseded by a three-count indictment, which added a charge of conspiracy to distribute cocaine. Burns was convicted on all three counts.

While Burns' appeal was pending, she filed a motion with the district court pursuant to Rule 33 of the Federal Rules of Criminal Procedure, requesting a new trial based on newly discovered evidence. Specifically, Burns indicated that she had recently learned that one of the prosecution's material witnesses had perjured himself at her trial. The district court granted Burns' motion for a new trial. A second jury trial was held, and Burns was again convicted of all three counts charged in the indictment. She was sentenced to 121 months imprisonment on the possession count, to 121 months imprisonment on the conspiracy count, and to 60 months imprisonment on the crossing state lines count. All of the sentences run concurrently. Burns now appeals.

I. Background

Deborah Burns was part of a drug distribution ring run by Marcos Cojab, a Miami cocaine supplier. Cojab regularly sent kilogram and half-kilogram quantities of cocaine to Wisconsin using several couriers, including Burns. Two undercover DEA agents agreed to purchase five kilograms of cocaine from Rayborn Hendrix, the head of the ring's Wisconsin drug operations. Hendrix and the DEA agents agreed to exchange one kilogram of cocaine, as a test, prior to consummating the larger deal. That kilogram was brought to Milwaukee by Burns.

The evidence admitted during the "suppression hearing" ¹ showed that Burns, using the name Mary Jennings, paid cash for a $338 one-way airline ticket from Miami to Milwaukee. She arrived in Milwaukee and, again using the name Mary Jennings, checked into room 227 of a Holiday Inn hotel located near the airport. The DEA subsequently put Burns' hotel room under surveillance. The following day, Burns opened her hotel room door with a room service tray in her hand. DEA agent Jerome Snyder, who had been observing room 227 from nearby, approached Burns, identified himself, and asked her what her name was. She told him that her name was Katherine. Snyder asked Burns what her last name was and she responded that she did not know. Snyder then informed her that he had a search warrant for the room.

Snyder, Burns, and Kenny Kujawa of the Milwaukee County Sheriff's Department

went into the room. Snyder told Burns to sit on the bed. During execution of the search warrant, Snyder began to empty the contents of Burns' suitcase. At the same time, he asked her what she was doing in Milwaukee. She responded that she was visiting friends. Snyder then asked Burns who her friends were; she responded that she had no friends in Milwaukee. Approximately three minutes into the search, the law enforcement officers found a kilogram of cocaine in a dresser drawer, wrapped in a hotel towel. Burns responded to the discovery by stating, "that [sic] not mine, I don't know what it is." A total of three or four minutes elapsed between the time Snyder approached Burns in the hallway outside her room and the time she stated that the cocaine was not hers.

During execution of the search warrant, Burns asked to leave the hotel room a number of times. Snyder told her that she had to stay on the bed until the search was completed. Burns was not read Miranda warnings prior to her formal arrest.

At the beginning of the second day of her first trial, Burns sought to suppress the statements she made during execution of the search warrant. She argued that the statements should be suppressed because she had not been read Miranda warnings before Snyder began questioning her. The district court denied the motion. First, the court found that the motion was untimely. Second, the court concluded that Miranda warnings were not required because Burns was not under arrest at the time the questioning took place. Prior to her second trial, Burns renewed the motion to suppress her incriminating statements. The government responded by filing a motion requesting the district court to expand on its earlier announced legal basis for denying the motion to suppress.

The district court subsequently issued a written opinion denying the renewed motion to suppress. United States v. Burns, 811 F.Supp. 408 (E.D.Wis.1993). The court initially found that Burns' detention, pursuant to the search warrant, was a reasonable "seizure" under the Fourth Amendment. Id. at 412. Addressing the Fifth Amendment issue, the court noted that " 'Miranda' warnings are to be given only to suspects who are subjected to 'custodial interrogation.' " Id. at 413 (citation omitted). According to the court, Burns "was not subjected to a degree of restraint associated with that of a formal arrest." Id. Thus, she was not in "custody" and no Miranda warnings were required. In the alternative, the court concluded that even if Burns was in custody, "Snyder's inquires would not have constituted interrogation." Id. The court stated that "Snyder's questions plainly concerned only defendant's identity and residence, and thus are analogous to routine inquiries asked during booking." Id.

At her second trial, the government introduced the following incriminating statements: (1) Burns' statement to Snyder that her first name was Katherine and that she did not know what her last name was, (2) her statement that she was in Milwaukee visiting friends and her subsequent statement that she had no friends in Milwaukee, and (3) her statement, made when the cocaine was discovered, that she did not know what the cocaine was and that it was not hers.

II. Analysis

We review the district court's denial of a motion to suppress for clear error. United States v. McCarthur, 6 F.3d 1270, 1275 (7th Cir.1993). Because questions arising under the Fourth and Fifth Amendments are primarily factual, "we give particular deference to the district court that had the opportunity to hear the testimony and observe the demeanor of the witnesses." Id. (citations omitted). ²

A. Fourth Amendment

The Fourth Amendment protects citizens against "unreasonable searches and seizures." As a general matter, both searches and seizures must be conducted pursuant to a warrant or based on probable cause. See Skinner v. Railway Lab. Executives' Ass'n, 489 U.S. 602, 619, 109 S.Ct. 1402, 1414, 103 L.Ed.2d 639 (1989). However, as we will discuss later, the Supreme Court has developed several exceptions to the warrant and probable cause requirements. Under the Exclusionary Rule, physical evidence obtained during an unlawful search and incriminating statements resulting from an unlawful seizure may not be introduced against a defendant in the prosecution's case-in-chief. See Wong Sun v. United States, 371 U.S. 471, 485, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963).

In this case, there can be no question that the search of Burns' hotel room was proper. It was conducted pursuant to a valid search warrant issued by a federal magistrate. It is also beyond doubt that Burns was "seized" during execution of the search warrant. A reasonable person in Burns' situation would not have felt free to leave. See McCarthur, 6 F.3d at 1275 (" '[A] person has been "seized" within the meaning of the Fourth Amendment ... only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' ") (quoting Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988)). Moreover, Burns was not detained pursuant to an arrest warrant. Nor does the government contend that the law enforcement officers had probable cause to detain her prior to discovering the cocaine. Thus, we are left to determine whether Burns' detention fits into one of the several exceptions to the probable cause requirement.

In Michigan v. Summers, 452 U.S. 692, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981), the Supreme Court held that "for Fourth Amendment purposes, ... 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." Id. at 705, 101 S.Ct. at 2595 (footnotes omitted). In that case, police officers were about to execute a search warrant when they encountered the owner of the house coming down the front steps. Once the police had gained admittance to the house, they brought the owner into the house and detained him during execution of the search warrant. During the search, the police found narcotics in the basement and subsequently placed the owner under formal arrest.

At issue was whether the pre-arrest "seizure" was reasonable under the Fourth Amendment. Relying on Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (permitting a police officer to conduct a pat-down search for weapons and briefly question a citizen based on less than probable cause), Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972) (allowing an officer to forcibly stop a suspect to investigate an...