U.S. v. Church

• Decision Date: 12 August 1992
• Docket Number: No. 91-2679,91-2679
• Citation: 970 F.2d 401
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Lee CHURCH, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 401

970 F.2d 401

UNITED STATES of America, Plaintiff-Appellee, v. Jimmy Lee CHURCH, Defendant-Appellant.

No. 91-2679.

United States Court of Appeals Seventh Circuit.

Argued Feb. 19, 1992.

Decided Aug. 12, 1992.

David H. Miller, Asst. U.S. Atty. (argued), Office of the U.S. Atty., Fort Wayne, Ind., for plaintiff-appellee.

Frank J. Gray (argued), Beckman, Lawson, Sandler, Snyder & Federoff, Fort Wayne, Ind., James P. Casey, Bowers, Harrison, Kent & Miller, Evansville, Ind., James S. Stephenson, Kenneth Collier-Magar, Stephenson & Kurnik, Indianapolis, Ind., and Francis H. Lueken, Ferdinand, Ind., for defendants-appellants.

Before BAUER, Chief Judge, CUMMINGS, Circuit Judge, and VAN SICKLE, Senior District Judge. ^*

BRUCE M. VAN SICKLE, Senior District Judge.

Jimmy Lee Church and two co-defendants, Joe Surry and Andre Spence, were indicted on various drug and firearm charges. Following a joint trial, Church was convicted of the following: (1) Count Three--conspiracy to distribute more than five grams of cocaine base, crack, in violation of 21 U.S.C. §§ 846 and 841(a)(1); (2) Count Four--possession with intent to distribute more than five grams of cocaine base, crack, in violation of 21 U.S.C. § 841(a)(1); (3) Count Five--opening or maintaining a place at 3618 S. Barr Street, Fort Wayne, Indiana, for the purpose of distributing cocaine base, crack, in violation of 21 U.S.C. § 856(a)(1); (4) Count Six--opening or maintaining a place at 530 E. Leith Street, Fort Wayne, Indiana, for the purpose of distributing cocaine base, crack, in violation of 21 U.S.C. § 856(a)(1); and (5) Count Seven--conspiracy to open or maintain a place at 244 E. Suttenfield Street, Fort Wayne, Indiana, for the purpose of distributing cocaine base, crack, in violation of 21 U.S.C. §§ 846 and 856(a)(1). Thereafter, Church was sentenced to a total of 108 months imprisonment. On appeal, Church contends that the district court erred in: (1) denying his motion to suppress, (2) denying his motion for judgment of acquittal, (3) failing to merge two counts, (4) refusing to give an instruction, and (5) failing to make certain evidentiary rulings. We affirm.

I. BACKGROUND

During the fall of 1990, the police in Allen County, Indiana conducted an undercover narcotics investigation. Special Agent Cronin of the Bureau of Alcohol, Tobacco and Firearms was assigned to the Allen County Drug Task Force to investigate illegal narcotics distribution cases where firearms were used. As part of the investigation, a confidential informant made a number of drug buys. The confidential informant observed Church and Surry selling crack from 3618 S. Barr Street. The confidential informant also purchased crack from Church at the Barr Street address. Subsequently, Church moved to 530 E. Leith Street. The confidential informant then purchased crack from Church at the Leith Street address. Finally, the confidential informant purchased crack from Spence at 244 E. Suttenfield Street.

As a result of the investigation, Agent Cronin prepared affidavits for the issuance of three arrest warrants and two search warrants. On December 5, 1990, a magistrate authorized the issuance of the warrants and police S.W.A.T. teams executed the search warrants at 530 E. Leith Street and 244 E. Suttenfield Street. At the Leith Street address, the police, after announcing their presence, came through the front door with a battering ram. Church and Spence were at this address. The police ordered Church to drop to the floor and placed plastic handcuffs (flex cuffs) on him. The police then read Church his Miranda rights twice. Church complained that the flex cuffs were too tight and so they were cut off. Agent Cronin then questioned Church for approximately twenty minutes during which time Church made incriminating statements.

The search warrant for the Leith Street address authorized a search for "United States currency, controlled substances, books and records, weapons, and a safe in the attic." Upon questioning, Church admitted that he owned a safe and provided the combination. Police recovered from the safe $355 in United States currency and a plastic pill bottle containing what was later identified as crack. Approximately eighty rocks of crack were found in the pill bottle. The police also recovered $583 in United States currency from Church's shirt pocket, a small television set and some shotgun shells.

II. ANALYSIS

A. Motion to Suppress

Church brought a motion to suppress his statements and physical evidence obtained pursuant to the search warrant. Following an evidentiary hearing, the district court denied the motion. See United States v. Church, No. FCR 90-25 (N.D.Ind. Mar. 26, 1991) (order denying motion to suppress). The district court's factual determinations made in denying Church's motion to suppress will be accepted unless clearly erroneous. United States v. Carter, 910 F.2d 1524, 1529 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991). Whether Church's confession was voluntary "is a question of law, and as such is subject to de novo review." Id.

The government must prove by a preponderance of the evidence that the confession was voluntary. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972). This entails a showing that Church's confession was "the product of a rational intellect and a free will." Blackburn v. Alabama, 361 U.S. 199, 208, 80 S.Ct. 274, 280, 4 L.Ed.2d 242 (1960). The factors to be considered include the age of Church, his education, the nature of the questioning, the use of physical punishment, and the determination of whether he was read his rights. See Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973).

Church contends that his statements were involuntary because the arrest scene was coercive. Church states that he was subjected to physical pain and psychological pressure. As a result, he was in a "dazed" and "confused" state of mind. Apparently, the physical pain complained of was the flex cuffs. However, after Church complained that the flex cuffs were too tight, they were cut off. Only after the flex cuffs were removed was Church questioned. Further, the district court disbelieved Church's testimony concerning his alleged physical injury and found that Church's wrists were not cut by the handcuffs.

The psychological pressure complained of was the atmosphere of the arrest scene. An armed S.W.A.T. team had stormed into the house and ordered everyone to the floor. The numerous law enforcement personnel created noise and confusion. Also, Church claims that while lying on the kitchen floor, he witnessed the police kicking co-defendant Spence. However, as the district court found, Church was not threatened in any manner during his detention and interrogation, nor was he questioned by anyone other than Agent Cronin.

Church was twenty-one years old at the time of his arrest. He had a high school education and could read and write. Further, Church was read his constitutional rights twice. Finally, the interrogation lasted only twenty minutes. After examining these circumstances, the district court concluded that "[c]learly, there is no evidence before the court that would suggest that Church's statements should be suppressed." Church, slip op. at 7. We agree.

1. Search Warrant

Church also claims that the search warrant issued for the Leith Street address was defective. In Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court articulated the role of the magistrate and the reviewing court as follows:

The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the "veracity" and "basis of knowledge" of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a "substantial basis for ... conclud[ing]" that probable cause existed.

462 U.S. at 238, 103 S.Ct. at 2332 (quoting Jones v. United States, 362 U.S. 257, 271, 80 S.Ct. 725, 736, 4 L.Ed.2d 697 (1960)). See also, United States v. McKinney, 919 F.2d 405, 408 (7th Cir.1990); United States v. Malin, 908 F.2d 163, 165 (7th Cir.), cert. denied, --- U.S. ----, 111 S.Ct. 534, 112 L.Ed.2d 544 (1990).

Specifically, Church objects to the seizure of the safe in the attic. Church asserts that the only information the police had concerning the safe and its location was that given to the confidential informant by an unknown associate and that this information is insufficient to establish probable cause. However, Agent Cronin's affidavit detailed the reliability of the confidential informant. For example, the magistrate knew that the confidential informant had on five occasions purchased crack cocaine from Church, including a purchase at the Leith Street address. The affidavit also states that the confidential informant observed a 16 gauge sawed-off shotgun and approximately 100 rocks of crack at the Leith Street address. Finally, the affiant, Agent Cronin, stated that based upon three and one-half years of narcotic investigations, he believed that a search of the Leith Street address would yield controlled substances, weapons, currency, and records evidencing armed narcotic trafficking.

The district court, reviewing this information contained in Agent Cronin's affidavit, determined that there was sufficient probable cause for the magistrate to issue the search warrant.

Since Agent Cronin received his tip from a trusted informant who had proved himself reliable in the past, there was no reason for Agent Cronin or Magistrate Cosbey to disbelieve the informant's source of information. Thus, the court finds that there was sufficient probable cause for Magistrate Cosbey to issue a warrant for the search and...