U.S. v. White

• Decision Date: 09 November 1992
• Docket Number: No. 91-3935,91-3935
• Citation: 979 F.2d 539
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joseph WHITE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 539

979 F.2d 539

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

No. 91-3935.

United States Court of Appeals, Seventh Circuit.

Argued June 9, 1992.

Decided Nov. 9, 1992.

R. Jeffrey Wagner, Asst. U.S. Atty., Stephen A. Ingraham, Asst. U.S. Atty. (argued), Milwaukee, Wis., for plaintiff-appellee.

Michael J. Backes (argued), Milwaukee, Wis., for defendant-appellant.

Before FLAUM and RIPPLE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

FLAUM, Circuit Judge.

Joseph White met Doris Ann McLeod on a bus trip in December 1990. McLeod was then 16 years old and living at a group home in Decatur, Illinois. Over the next month, White called McLeod several times to persuade her to run away with him. On the night of January 13, McLeod climbed out of a window in the home and met White at a convenience store. The two then traveled to Springfield, where White arranged for McLeod to work as a prostitute. She was arrested shortly thereafter and returned to the group home in Decatur.

In February 1991, McLeod again ran away with White. This time the pair proceeded to Milwaukee, where White again set up McLeod as a prostitute. The last time White saw her alive, McLeod and another man were entering a car. On February 23, McLeod's dead body was found in a public hunting ground in Dane County, Wisconsin.

White was arrested on June 18, and his apartment was searched by police with the consent of his wife, Elaina. A state court commissioner held a probable cause determination on the day after White's arrest, although his federal indictment did not issue until six days later. At the conclusion of a jury trial, White was found guilty of interstate transportation of a minor for the purpose of prostitution, in violation of 18 U.S.C. § 2423. At sentencing, the district court determined that White's base offense level was 16. The court enhanced the offense level to 18 to reflect McLeod's status as a vulnerable victim under § 3A1.1 of the Sentencing Guidelines. Finally, the court departed upward because of McLeod's death and sentenced White to the maximum statutory term of 10 years. White now challenges his conviction and his sentence. We affirm.

I.

White first maintains that evidence obtained during the June 18 search of his apartment should have been suppressed because consent to the search was not given voluntarily. On that morning, Milwaukee police arrived at White's residence to place him under arrest. After taking him into custody, one of the detectives asked Elaina White, James' wife, for consent to search the apartment. She granted consent by writing a short statement in an officer's memo book. The search turned up a bus baggage receipt filled out in one of White's assumed names, and a legal pad containing gang rules and an apparent transcript of a meeting at which White proposed that McLeod work as a prostitute for her gang initiation. White contends on appeal that Elaina was not advised of her right to refuse to grant consent to the search, and that the police threatened to obtain a search warrant if she would not allow them in.

A warrantless search is permissible if police receive consent that is voluntarily given. Illinois v. Rodriguez, 497 U.S. 177, 181, 110 S.Ct. 2793, 2797, 111 L.Ed.2d 148 (1990); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). Whether consent is given voluntarily depends on "the totality of all the circumstances." Id. at 227, 93 S.Ct. at 2048. The government bears the burden of showing voluntariness by a preponderance of the evidence, id. at 222, 93 S.Ct. at 2045, and we will not reverse a district court's finding on this issue unless it is clearly erroneous. United States v. Duran, 957 F.2d 499, 502 (7th Cir.1992); United States v. Talkington, 843 F.2d 1041, 1047 (7th Cir.1988).

White's first ground for contesting voluntariness fails. Even if Elaina White was not informed of her right to refuse to grant consent for the search, the Supreme Court in Schneckloth held that any such requirement of a warning "would be thoroughly impractical to impose on the normal consent search." Schneckloth, 412 U.S. at 231, 93 S.Ct. at 2050. The lack of a warning does not prove that consent was involuntary; it is simply another factor to be considered in the "totality of circumstances." Id.

White's second ground fails as well. Baseless threats to obtain a search warrant may render consent involuntary. See Talkington, 843 F.2d at 1049. When the expressed intention to obtain a warrant is genuine, however, and not merely a pretext to induce submission, it does not vitiate consent. See Duran, 957 F.2d at 502; United States v. Colonia, 870 F.2d 1319 (7th Cir.1989). In this case, no evidence was shown that the police intended to coerce Elaina by empty threat. ¹ Moreover, as the Magistrate noted, Elaina later stated that she did not remember having any conversation with officers about search warrants. Although one officer testified that the conversation did occur, Elaina's failure to recall it indicates its lack of coercive influence.

Viewing the situation as a whole, we find that the district court did not clearly err in concluding that Elaina White freely consented to the search of her residence. Although no warning of her right to refuse consent was given, the promise that the police would obtain a search warrant if she refused implicitly communicated the option to her. Furthermore, Elaina White was unrestrained in the living room of their apartment and not in custody at the time of the encounter; there is no evidence that her will was overborne. The fruits of the search, in any case, were duplicative of other testimony and evidence that White transported McLeod across state lines for the purpose of prostitution. Any error in their admission was thus harmless.

II.

White next contends that a statement he made on June 20 to police while in custody should have been suppressed because he was not promptly arraigned. White was arrested and interviewed on June 18. A probable cause determination, at which White was not present, took place before a Wisconsin court commissioner on June 19. The following day, bail was set and police officers conducted a second interview. On June 24, White spoke to a public defender, who filed a petition for a writ of habeas corpus on June 25. That same day, White was indicted by a federal grand jury, was transferred to federal custody, and made his first appearance in federal court.

The traditional rule of McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943), and Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957), required that defendants be taken before a judicial officer "without unnecessary delay" after arrest for a determination of probable cause. Failure to do so would cause statements made in custody to be suppressed. Congress subsequently enacted 18 U.S.C. § 3501 to provide that voluntary confessions made within six hours of arrest are not inadmissible solely on account of any delay in the appearance before a magistrate. 18 U.S.C. § 3501(c) (1988).

White relies on United States v. Carter, 910 F.2d 1524 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1628, 113 L.Ed.2d 724 (1991), for the proposition that time spent in state custody counts toward the six-hour limitation if a "working arrangement" between state and federal officials to delay the defendant's appearance before a federal magistrate can be " 'clearly shown'." Id. at 1528. The defendant has the burden of demonstrating such collusion. United States v. Gaines, 555 F.2d 618, 625 (7th Cir.1977). White argues that the timing of the issuance of the federal indictment--the same day that his attorney filed a writ of habeas corpus--makes it "obvious that federal and state authorities conferred" sometime prior to June 25. Even if this is true, there is no evidence that there was any working arrangement as of June 20, when the statement White sought to have suppressed was made. White falls far short of meeting his burden to show that state custody was "designingly utilized" to circumvent the prompt hearing requirement. Gaines, 555 F.2d at 625 (quoting United States v. Chadwick, 415 F.2d 167 (10th Cir.1969)).

White contends that his June 20 statement was nevertheless involuntary. Pointing to the same chronology of events, and complaining that he did not enjoy the benefit of counsel at questioning, White claims that admission of the statement violated his Fifth Amendment rights. The test for the voluntariness of a confession is whether the totality of circumstances indicate that the statement was freely made. United States v. Cahill, 920 F.2d 421, 427 (7th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2058, 114 L.Ed.2d 463 (1991); Schneckloth v. Bustamonte, 412 U.S. at 226, 93 S.Ct. at 2047. The ultimate issue of voluntariness is a legal question subject to de novo review. Cahill, 920 F.2d at 427.

The Magistrate found that White was fully advised of his Miranda rights prior to his interrogations on June 18 and June 20, despite White's testimony to the contrary. Indeed, the Magistrate concluded that White chose to cooperate with police precisely in order to remove himself from suspicion for McLeod's murder. On appeal, White offers no evidence, other than the sheer duration of his custody, to suggest that his confession was involuntary. At the time of the June 20 statement, however, White had been in custody only 58 hours and had received a probable cause determination and a bail hearing. Under these circumstances, we believe the court properly found the June 20 confession to be voluntary and admissible.

We note in passing that any error in the admission of the statement was surely harmless. Arizona v. Fulminante, --- U.S. ----, ----, 111 S.Ct. 1246, 1265, 113 L.Ed.2d 302 (1991). In his statement to police on June 18, the admission of which defendant does not challenge, White had already admitted...