U.S. v. Murray

• Decision Date: 16 July 1996
• Docket Number: No. 95-3308,95-3308
• Parties: 45 Fed. R. Evid. Serv. 188 UNITED STATES of America, Plaintiff-Appellee, v. Joseph J. MURRAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 459

89 F.3d 459

45 Fed. R. Evid. Serv. 188

UNITED STATES of America, Plaintiff-Appellee, v. Joseph J. MURRAY, Defendant-Appellant.

No. 95-3308.

United States Court of Appeals, Seventh Circuit.

Argued May 14, 1996.

Decided July 16, 1996.

Stephen A. Ingraham (argued), Office of U.S. Atty., Milwaukee, WI, for Plaintiff-Appellee.

William R. Kerner (argued), Milwaukee, WI, for Defendant-Appellant.

Before POSNER, Chief Judge, and ESCHBACH and EVANS, Circuit Judges.

TERENCE T. EVANS, Circuit Judge.

A jury convicted Joseph J. Murray of being a felon in possession of a firearm. He was sentenced to a term of 63 months. On this appeal, Murray challenges two decisions made before the start of his trial, one made during the trial and one that occurred during his sentencing.

Murray challenges the district court's pretrial decisions denying his motions to suppress evidence and statements. During the trial, he claims the district court improperly admitted evidence relating to his possession of cocaine. Lastly, he calls on the carpet the district court's denial of his request for a downward departure under the federal sentencing guidelines. We affirm.

Murray attended a Super Bowl party during the early evening hours of Sunday, January 30, 1995. Several hours after the game, around midnight, two Kenosha, Wisconsin, police officers heard three blasts from a car horn and observed Murray's grey Chevrolet Cavalier stopped off the street on a lawn facing and within a few feet of a home. The home was in an area where the police said significant drug trafficking was occurring. The officers observed a male emerge from the house wearing only undershorts, a T-shirt, and socks. The person stayed in the car a few moments and then returned to the house as the Chevy pulled away. The officers, suspecting a drug transaction, followed the car and soon noted that it did not have a rear license plate as required by Wisconsin law. Armed with a reason to stop the car, the officers signaled for the driver to stop. The car did not immediately stop, and the officers observed the driver repeatedly move downward toward the front passenger area of the auto, his head disappearing from view as the Chevy was slowing down. Once the vehicle stopped, the officers, believing the driver's actions showed him to be hiding something, quickly approached the car. One of the officers saw the driver, who turned out to be Murray, reach with his right hand toward a malt liquor can on the car's console and unsuccessfully try to cover something up with a $5 bill. Several other jerking motions with the hand moving toward the area under the front seat and toward the glove compartment were also observed. This version of events, of course, was offered by the police, and the district court, as the fact finder on the pretrial motions, was entitled to believe that this is what happened.

After not responding to three requests to display a drivers license, Murray was told to get out of the car. One of the officers then retrieved the can of malt liquor and discovered four small baggies of what appeared to be (and was later found to be) user-quantity crack cocaine in the area concealed under the $5 bill. Murray had no drivers license or other identification and became, according to the officers, verbally combative, leading one of the gendarmes to place him in the squad car. The other officer then immediately retrieved a firearm (a 9 millimeter Lorcin handgun) with one bullet in the chamber from under the front passenger seat of Murray's car. With the gun in hand, one of the officers opened the door to the squad car, showed Murray the gun, and asked him if he knew who owned it. Murray said he didn't know. Murray did, however, say that he owned the Chevy and that no one else had driven it that day. The officers then discussed the situation and Murray was arrested. It was subsequently determined that he had a prior felony conviction which led to the charge for which he was convicted in the district court.

Murray argues that the stop based on the failure to display license plates was a pretext because the police really thought a drug deal occurred and they wanted to stop him for that reason. This is a tired argument in this circuit, United States v. Trigg, 878 F.2d 1037 (7th Cir.1989), cert. denied, 502 U.S. 962, 112 S.Ct. 428, 116 L.Ed.2d 448 (1991), and, at least since a few weeks ago, in the country as well. Whren v. United States, --- U.S. ----, 116 S.Ct. 1769, 135 L.Ed.2d 89 (1996). Ulterior motives do not invalidate a police stop for a traffic violation, no matter how minor, if a motor vehicle law infraction is detected. That is the law, and the time for debating whether it is correct--historically or conceptually--has passed.

Having observed the furtive actions we described, considering that the stop itself is immune from attack, we must conclude, as did the district court, that the seizing of the cocaine was constitutionally permissible. The gun, quickly found by the police under the front seat on the passenger side of Murray's vehicle, was also constitutionally located and seized. See Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970), and United States v. Ortiz, 84 F.3d 977 (7th Cir.1996).

Murray also argued, before trial, that the jury should not hear his brief statements to the police at the scene of the stop because they were obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda, of course, requires that the familiar warnings of rights be given by police prior to custodial interrogations. For Miranda to apply to a traffic stop, however, a defendant must be subject to a "restraint on his freedom of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 3520, 77 L.Ed.2d 1275 (1983). See United States v. Kelly, 991 F.2d 1308 (7th Cir.1993).

In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) the Supreme Court grappled with the question of when, during the course of a traffic stop, Miranda warnings must be given to detainees. The Court declined to adopt a bright line rule that would apply Miranda to all traffic stops or, on the other hand, exempt traffic stops from the rule. Instead, the Court focused on the "custodial interrogation" requirement of Miranda as the touchstone for triggering the obligation to advise a detainee of his rights. The question in our case, then, is whether Murray was "in custody" for purposes of Miranda warnings when the officer, retrieved gun in hand, asked him if he owned it or gave his car to anyone that day. The district court, relying on the recommendation of Magistrate Judge Patricia Gorence, said "no" and "no" is, we think, the right answer.

There is no evidence in the record to support Murray's contention that his freedom of movement was restrained, prior to the question, in a manner equivalent to that associated with a formal arrest. See Kelly, 991 F.2d at 1312. In Kelly, we held that an officer's roadside questioning of a driver stopped for speeding, after finding test tubes with crystalline residue and a clamp containing marijuana residue in the car, did not become "custodial interrogation" requiring the giving of Miranda warnings.

Following Berkemer, we held in Kelly that the defendant was not "in constructive custody" for the purpose of requiring Miranda warnings. To support our conclusion, we noted that the officer in Kelly questioned the defendant at the roadside and that only a short period of time, twenty or thirty minutes, passed between the initial stop and the defendant's arrest. We also noted that there were no indications that the police conduct overcame the defendant's will. We also relied on Berkemer in rejecting the contention that an officer's unarticulated decision to arrest an individual affects the determination of whether a suspect is in custody. Id. at 1313 (citing Berkemer, 468 U.S. at 442, 104 S.Ct. at 3151).

Under the precedents of Berkemer and Kelly, we conclude that Murray was not "in custody" when he was questioned, and therefore his three or four answers were not subject to suppression. Only a brief period of time had elapsed between the initial stop and the time Murray was asked the questions. The encounter took place on a lighted street in an urban area in public view. There is no evidence that the police officers engaged in conduct which might have overborne Murray's will. Any subjective intent on the part of either officer to arrest Murray is irrelevant since neither officer informed him that he was under arrest until after he made the statements about the gun and his ownership and access to the vehicle.

Lastly, the fact that Murray was questioned while seated in the back of the squad car did not put him "in custody" for purposes of...