U.S. v. Newsome

• Decision Date: 16 January 2007
• Docket Number: No. 06-11181.,06-11181.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kenneth NEWSOME, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

475 F.3d 1221

UNITED STATES of America, Plaintiff-Appellee, v. Kenneth NEWSOME, Defendant-Appellant.

No. 06-11181.

United States Court of Appeals, Eleventh Circuit.

January 16, 2007.

Edwin D. Robb, Jr. (Court-Appointed), David Brian Dennison, Bouhan, Williams & Levy, Savannah, GA, for Newsome.

Amy Lee Copeland, Savannah, GA, for U.S.

Appeal from the United States District Court for the Southern District of Georgia.

Before BIRCH and PRYOR, Circuit Judges, and COVINGTON,^* District Judge.

PER CURIAM:

Kenneth Newsome appeals his conviction for possession of a firearm by a convicted felon in violation of 18 U.S.C. § 922(g). He first contends that the admission at trial of the statements made during his arrest violated his Fifth Amendment right against self-incrimination. Second, he argues that the pistol found during the warrantless search of his motel room should have been suppressed under both the Fourth and Fifth Amendments. Finally, he alleges that the district court erred in denying his motion for mistrial based on the prosecution's opening statement and that he was entitled to a new trial based on prosecutorial misconduct. We AFFIRM.

I. BACKGROUND

On 19 August 2004, Kenneth Newsome was arrested as a suspect in the non-fatal shooting of his wife and child that had occurred on 16 August 2004. Prior to Newsome's arrest, a confidential informant ("CI") informed the police that Newsome was staying with a friend, Hope Mitchell, in a motel room rented under her name. Six police officers went to the motel to arrest Newsome. The front desk's records indicated that the room was rented under Mitchell's name and had a copy of her driver's license. The police had the front desk call Newsome's room under the pretext of a cable malfunction to ascertain whether he was in the room alone. The front desk clerk told the police that a woman answered the phone and that from the telephone conversation, she did not hear a man in the room. The officers knew that Newsome was a violent offender with a previous record and possibly in possession of a gun, so they vacated the surrounding rooms before knocking on Newsome's door several times and identifying themselves as police. After some "silence, the door just swung open." R5-23 at 19. The officers entered with their guns drawn and ordered Newsome to get down on the ground. They secured him with handcuffs, and one officer asked him if there was "anything or anyone in the room that [he] should know about." Id. at 10, 25. Newsome told the officer that he had a gun "over there," motioning with his head in the direction of the nightstand by the bed. Id. at 25. When the officer did not immediately see the gun he asked where it was and Newsome directed the officer to a black bag where the pistol in question was located. This interrogation occurred prior to officers reading Newsome his Miranda rights. The officers secured the bag but waited for a forensics officer to arrive to allow him to remove the gun from the bag. Newsome was escorted from the motel room and read his rights en route to police headquarters.

A grand jury indicted Newsome as a convicted felon in possession of a firearm. He pled not guilty and moved to suppress his statements made during the arrest and the recovered gun. He claimed that his statements were solicited in violation of the Fifth Amendment and that the admission of the gun violated both the Fifth Amendment as "fruit of the poisonous tree" and the Fourth Amendment as evidence garnered from an unlawful search and seizure.

The magistrate judge found that the public safety exception to Miranda applied and recommended the admission of both Newsome's statements and the gun. The district court summarily adopted the magistrate judge's recommendation and denied Newsome's motion to suppress.

The case proceeded to trial. Prior to trial, the district court decided to exclude any testimony regarding Newsome shooting his wife and child as irrelevant and prejudicial. The court instructed the prosecution that Newsome's wife could only testify that she saw Newsome with a gun and that shots were fired. Nonetheless, during its opening statement, the government informed the jurors that Newsome's wife told the police that her husband had shot her. Newsome moved for a mistrial, but the district court denied the motion, finding that the prosecutor's error was not so prejudicial as to merit a mistrial. The court instructed the jury that the lawyers' statements were not evidence and determined that its curative instruction was sufficient to avoid any prejudice. The trial proceeded, and the jury eventually found Newsome guilty. This appeal followed.

II. DISCUSSION

Newsome contends that the district court erred in denying his motion to suppress the statements made during his arrest and the pistol found in his motel room. With regard to the motion to suppress, we review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Nunez, 455 F.3d 1223, 1225 (11th Cir.2006) (per curiam) (citation omitted). "[A]ll facts are construed in the light most favorable to the prevailing party below." United States v. Bervaldi, 226 F.3d 1256, 1262 (11th Cir. 2000) (citation omitted). "The individual challenging the search bears the burdens of proof and persuasion." United States v. Cooper, 133 F.3d 1394, 1398 (11th Cir. 1998) (citation omitted).

While we have repeatedly stated that "[w]e review the district court's findings of fact on a motion to suppress only for clear error, with the record being viewed in the light most favorable to the party prevailing below," see, e.g., United States v. Gonzalez, 70 F.3d 1236, 1238 (11th Cir.1995) (per curiam) (citation omitted), we have never explicitly clarified whether the review is restricted to the record made at the suppression hearing. In Moll v. United States, we considered the entire record in a review of a denial of a motion to suppress. 413 F.2d 1233, 1235 (5th Cir.1969) (setting forth the facts as established by "[t]he testimony at pre-trial hearings on motion to suppress, plus that at the trial"). Additionally, other circuits have held that they may consider the entire record when reviewing a denial of a motion to suppress. See United States v. Corona-Chavez, 328 F.3d 974, 979 n. 5 (8th Cir.2003) ("This court considers the entire record, including trial testimony, in reviewing denial of a motion to suppress."); United States v. Herrera, 810 F.2d 989, 989-90 (10th Cir.1987) (per curiam) (citation omitted) ("[W]e consider the entire record including the hearing on the motion to suppress and the trial record and transcript."); Gov't of the Virgin Islands v. Williams, 739 F.2d 936, 939 (3d Cir.1984) ("In making . . . a determination [regarding the legality of a search,] this court may look at the entire record ... [and] is not restricted to the evidence presented at the suppression hearing where the motion was denied."). We adopt our sister circuit's holdings that in reviewing a denial of a motion to suppress, we review the entire record, including trial testimony.

A. The Fifth Amendment Challenge and the Threat to Public Safety Exception

Newsome contends that the court's admission of his statements concerning the gun violated his Fifth Amendment right against self-incrimination because those statements were made before he received his Miranda warnings. He asserts that the district court erred in applying the public safety exception to Miranda, because any danger had been neutralized prior to the questioning.

Miranda v. Arizona, 384 U.S. 436, 445, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694 (1966), established that custodial interrogation cannot occur before a suspect is warned of his or her rights against self-incrimination. Here, Newsome was in the process of being secured and taken into custody when he was interrogated, and he was not warned of his rights before the questioning at issue took place. In New York v. Quarles, 467 U.S. 649, 657-58, 104 S.Ct. 2626, 2632, 81 L.Ed.2d 550 (1984), however, the Supreme Court established a narrow exception to Miranda for situations where there is a threat to public safety.

The public safety exception allows officers to question a suspect without first Mirandizing him when necessary to protect either themselves or the general public. Id. at 655-58, 104 S.Ct. at 2631-32. For example, in Quarles, an armed suspect ran into a crowded supermarket where he was apprehended by the police. Id. at 651-52, 104 S.Ct. at 2629. The officers searched the suspect and found an empty shoulder harness. Id. Without first giving the Miranda warnings, they asked him where he had put the gun. Id. The suspect told the officers that the gun was under some empty cartons in the store and the gun was recovered. Id. The Court determined that even though the suspect was handcuffed and posed no threat to the officers when questioned, the interrogation was permissible because the gun created a clear danger to the public. The Court held that "the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment's privilege against self-incrimination." Id. at 657, 104 S.Ct. at 2632. The exception to Miranda also applies where there is a threat to the officers rather than the public. Id. at 659, 104 S.Ct. at 2633.

We conclude that there was no violation of the Fifth Amendment in admitting Newsome's statements because the public safety exception applies. The officers entered the motel room under the impression that there were at least two people in the room — Newsome, who they encountered at the door and the "female" that the desk clerk indicated had answered the telephone moments earlier. Furthermore, the officers knew that they were dealing with a possibly armed, violent felon. Although Newsome contends that the officers continued questioning after the room was secure, the officers' testimony at...