U.S. v. Burke

Citation633 F.3d 984
Decision Date02 February 2011
Docket NumberNo. 10–3030.,10–3030.
PartiesUNITED STATES of America, Plaintiff–Appellee,v.Eric R. BURKE, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)

OPINION TEXT STARTS HERE

William D. Lunn, Jr., William D. Lunn Attorney at Law (G. Gordon Atcheson, The Atcheson Law Firm, Westwood, KS, on Opening Brief), Tulsa, OK, for Appellant.

James A. Brown, Assistant United States Attorney (Lanny D. Welch, United States Attorney, with him on the brief), Office of the United States Attorney, Topeka, KS, for Appellee.Before TYMKOVICH, TACHA, and BALDOCK, and Circuit Judges.TYMKOVICH, Circuit Judge.

After police officers discovered firearms and over 1,500 images of pornography—many involving children—at the home of Eric Burke, he pleaded guilty to several child pornography and firearms charges. The district court sentenced him to a 168–month sentence. He now appeals, contending the district court erred in (1) denying his motion to suppress evidence seized at his home because the search warrant and supporting affidavit lacked particularity, and (2) in giving him an excessive sentence in relation to the federal firearm charge. He also claims the government breached the plea agreement, thus making his sentence invalid.

Having jurisdiction pursuant to 28 U.S.C. § 1291, we AFFIRM Burke's sentence.

I. Facts

In 2006, Eric Burke's wife, Michelle, contacted the Leavenworth County Sheriff's Office and spoke to one of the detectives. She advised the detective that several days earlier, she had observed a number of compact discs lying on top of clothing in an overnight bag that belonged to her husband. She explained Burke had been out of town the week before and had left the bag open on the floor in a room on the lower level of her house.

Curious about the CDs, Mrs. Burke inserted them into the computer and discovered they contained images of minor girls engaged in various sexual acts. She also informed the detective her husband was a convicted sex offender and had guns in the home. She indicated she had waited several days before advising authorities about finding the CDs because she was afraid of how her husband would react if he found out. She also advised the police Burke might have kept a lap top computer in his truck.

With this information detectives prepared an affidavit and application for a search warrant. The affidavit said, in relevant part to this appeal, that Michelle Burke ... told [the detective] that she found child pornography on CD–Roms by the family computer located in her residence.” Supp. R., Vol. 1 at 23. The affidavit did not elaborate on the definition of “child pornography.” The affidavit did explain Mr. Burke copied the CDs off the computer, is a convicted sexual offender, had guns in the house, and had told his wife he would kill anyone who breaks up his family again.” Id.

Based on the affidavit, a magistrate judge issued a search warrant. Relying on the warrant, officers searched Burke's home and truck for computer and other media relating to child pornography, as well as firearms. They discovered and seized a loaded .30–30 caliber Winchester rifle, a box of .30–30 ammunition, a .22 caliber Remington rifle, an Essex Arms pistol frame, as well as a great deal of electronic media, including Burke's computers. A forensics examiner later found on the CD–Roms some 1,155 images of pornography, many of which constituted child pornography. Further, a review of the home computer established it had been used to access possible child pornography websites. Several of the recovered images were identified as known victims at the National Center for Missing and Exploited Children.

After his arrest, and consistent with a written plea agreement with the United States, Burke pleaded guilty to violating 18 U.S.C. § 2252(a)(4)(B) (Possession of Child Pornography) and 18 U.S.C. §§ 922(g)(1) and 924(a)(2) (Felon in Possession of Firearms). As part of that agreement, Burke waived the right to appeal most issues related to his conviction and sentence, except his claim regarding suppression of evidence and the district court's denial of his motion to dismiss the firearms charge.

The district court sentenced Burke to 168 months in prison and a 5–year term of supervised release. Burke challenged the sentence, claiming (1) the search warrant was too general and thus violated the Fourth Amendment's prohibition against general searches, and (2) the government breached the plea agreement because the agreement's factual recitation noted Burke had 155 images of pornography but the government provided the court evidence of 1,155 images at sentencing (contending the 155 number in the plea agreement was merely a typographical error), increasing the length of Burke's sentence.

Having lost on both arguments below, Burke now appeals, raising several issues.

II. Discussion

Burke raises four issues on appeal, two relating to the suppression of evidence and two relating to the propriety of his sentence.

A. Suppression of Evidence

Burke argues the district court erred in two ways in denying his motion to suppress. First, he contends the detective's affidavit was inadequate to provide the magistrate with probable cause to issue the search warrant. This argument was not raised in the district court. Second, in an argument he pursued unsuccessfully below, he claims the search warrant was too general and did not sufficiently limit the search of his home to those items showing his use of child pornography. As we explain below, neither has merit.

1. Adequacy of Affidavits

Burke contends the affidavits provided to the magistrate judge lack sufficient detail to support probable cause. For example, he posits that because the affidavit merely says his wife found “child pornography,” instead of providing specific descriptions of the images she saw, it is too general to support probable cause. But none of these arguments was presented to the district court at the suppression hearing, and they are therefore waived on appeal.

Federal Rule of Criminal Procedure 12(e) provides, “A party waives any Rule 12(b)(3) defense, objection, or request [which includes motions to suppress evidence] not raised by the deadline the court sets under Rule 12(c) or by any extension the court provides.” We have held under this provision, “When a motion to suppress evidence is raised for the first time on appeal, we must decline review.” United States v. Brooks, 438 F.3d 1231, 1240 (10th Cir.2006); see also United States v. Buchanan, 985 F.2d 1372, 1380 (8th Cir.1993) (holding defendants must raise a motion to suppress before trial or the objection is deemed to be waived).

We have also held “this waiver provision applies not only to the failure to make a pretrial motion, but also to the failure to include a particular argument in the motion.” United States v. Dewitt, 946 F.2d 1497, 1502 (10th Cir.1991); see United States v. Banks, 451 F.3d 721, 727 (10th Cir.2006) (explaining the general rule that if a party fails to raise a specific argument in a suppression hearing they waive that argument on appeal); see also United States v. Rose, 538 F.3d 175, 185 (3d Cir.2008) ( “Under Federal Rule of Criminal Procedure 12, a federal criminal defendant is barred, absent good cause, from raising a reason to suppress evidence for the first time on appeal. This conclusion finds support in the Criminal Rules' text, their history, our Court's case law, and the policy underlying Rule 12.”); United States v. Pope, 467 F.3d 912, 918–19 (5th Cir.2006) (We have also held that failure to raise specific issues or arguments in pre-trial suppression proceedings operates as a waiver of those issues or arguments for appeal.”).

Burke filed a timely pretrial motion to suppress evidence, and the district court held an evidentiary hearing before denying the motion. The briefs and the oral arguments at the hearing focused exclusively on whether the warrant lacked sufficient particularity to guide the police in their search of Burke's property. At no time did Burke argue the affidavit was insufficient to provide the magistrate with probable cause. That contention appears for the first time on appeal, and we thus consider it waived.

We recognize Rule 12(e) provides “a ‘single narrow exception to the waiver rule.’ United States v. Hamilton, 587 F.3d 1199, 1215–16 (10th Cir.2009) (quoting United States v. Santos Batista, 239 F.3d 16, 19 (1st Cir.2001)). The rule provides, “For good cause, the court may grant relief from the waiver.” Fed.R.Crim.P. 12(e). In applying Rule 12 at the appellate level, we have noted that “a party's failure to raise a specific argument in a suppression hearing results in waiver on appeal unless the party is able to show cause why it failed to raise the argument below.” Hamilton, 587 F.3d at 1216 (quotations omitted) (emphasis added). We rarely, however, grant relief under the good-cause exception. Id.; see also United States v. Wilson, 115 F.3d 1185, 1191 (4th Cir.1997) (finding lack of good cause where [t]he record shows that sufficient information was available to defense counsel before trial that would have enabled him to frame his suppression motion to include the execution of the search warrant”).

Burke has made no effort to “demonstrate [good] cause for his failure to raise the issue.” Dewitt, 946 F.2d at 1502. He made no showing of cause in his opening brief, and he failed to do so again in his reply brief despite the government's raising the waiver issue in its response. Furthermore, our own review of the record revealed “no impediment to [Burke's] ability to raise the issue.” Id. Accordingly, we conclude Burke has waived appellate review of his suppression arguments vis-a-vis the sufficiency of the affidavits.

We recognize that, based on Federal Rule of Criminal Procedure 52(b)' s general provision for plain error review, we have [i]n several cases ... engaged in plain-error review even after a defendant has failed to make a motion to suppress evidence prior...

To continue reading

Request your trial
104 cases
  • In re Search of Info. That is Stored at the Premises Controlled by Google LLC
    • United States
    • U.S. District Court — District of Columbia
    • December 30, 2021
    ...v. Ray , 541 F.Supp.3d 355, 377 (S.D.N.Y. 2021) (citing Groh , 540 U.S. at 557–59, 124 S.Ct. 1284 ); see also United States v. Burke , 633 F.3d 984, 992 (10th Cir. 2011) (finding a warrant sufficiently particularized where it authorized law enforcement to search and seize "contraband, evide......
  • Rodriguez v. State
    • United States
    • United States State Supreme Court of Wyoming
    • March 5, 2019
    ...bar to appellate review of the claim unless good cause is shown for the failure to make the required filing.4 See United States v. Burke , 633 F.3d 984, 988-89 (10th Cir. 2011) ( Rule 12 ’s waiver is absolute and precludes Rule 52 plain error review); United States v. Rose , 538 F.3d 175, 1......
  • State v. Dotson
    • United States
    • Supreme Court of Tennessee
    • September 30, 2014
    ...even plain error review on appeal when a defendant fails to make a pretrial motion to suppress. See, e.g., United States v. Burke, 633 F.3d 984, 987–88 (10th Cir.2011) ; United States v. Yousef, 327 F.3d 56, 125 (2d Cir.2003) ; United States v. Chavez–Valencia, 116 F.3d 127, 129–134 (5th Ci......
  • United States v. Smith
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • June 30, 2014
    ...practices. (See Majority Op. 1181–82.) But “specific statutory provisions prevail over more general provisions.” United States v. Burke, 633 F.3d 984, 989 (10th Cir.2011) (quotation omitted). And Congress may impinge upon judicial discretion by setting mandatory minimums. See United States ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT