U.S. v. Kelly

• Decision Date: 22 April 1993
• Docket Number: No. 92-3268,92-3268
• Citation: 991 F.2d 1308
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey KELLY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1308

991 F.2d 1308

UNITED STATES of America, Plaintiff-Appellee, v. Jeffrey KELLY, Defendant-Appellant.

No. 92-3268.

United States Court of Appeals, Seventh Circuit.

Argued March 31, 1993.

Decided April 22, 1993.

Richard N. Cox, Asst. U.S. Atty., Danville, IL (argued) for U.S.

Stephen Ryan, Ryan, Cini, Bennett & Radloff, Mattoon, IL (argued), for Jeffrey Kelly.

Before BAUER, Chief Judge, EASTERBROOK, Circuit Judge, and REAVLEY, Senior Circuit Judge. ¹

BAUER, Chief Judge.

A jury convicted Jeffrey Kelly of being a convicted felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). On appeal, he challenges both his conviction and his sentence. We affirm.

I. Facts

The evidence presented at trial, taken in the light most favorable to the government, supports the following facts. Jeffrey Kelly was stopped for speeding on November 16, 1991. Illinois State Trooper Gregory Dixon, the officer who stopped him, noticed that neither Kelly nor either of his two passengers was wearing a seat belt. Dixon asked each man to identify himself. Dixon asked Kelly to come with him to the squad car. Kelly sat in the front passenger seat of Dixon's squad car as Dixon prepared warning tickets for speeding and failure to wear a seat belt. The name given by one of the passengers was not in police records, so after he wrote Kelly's tickets, Dixon returned to the car to question the mystery passenger. Dixon asked the passenger to join him in the squad car so he could prepare a warning ticket for the seat belt violation. As the passenger left the car, Dixon saw an open bottle of brandy on the floor in the back seat between the feet of the second passenger. Dixon asked for the alcohol, and after it was handed over, he decided to search the car to determine whether there was any more alcohol. Before searching the car, Dixon called for back-up. After two more officers arrived, Dixon asked Kelly and the first passenger to get out of the car so he could search it further. They agreed. The mystery passenger was seated in Dixon's squad car. As the other officers kept an eye on Kelly and his passengers, Dixon searched the car. He found two glass tubes containing a crystalline residue, and a hemostat ² containing marijuana residue.

Dixon recognized the tubes as pipes for smoking crack cocaine, and asked Kelly if there were drugs in the car. Kelly said the tubes were from his fish aquarium and denied that any drugs were in the car. Dixon asked Kelly if he had drugs on his person, and Kelly said no. Dixon asked Kelly if he could search him, and Kelly again denied having drugs, but gave Dixon permission to search him for drugs. According to Dixon, before he began to search Kelly, Kelly reached into his pants pocket and pulled out a fistful of change which contained several .22 caliber cartridges.

When he saw the cartridges, Dixon became concerned that Kelly might have a gun. Dixon asked Kelly if he had a gun. Kelly did not answer; Dixon asked if the gun was in the trunk. Kelly then said it was "on me," and gestured with his right leg. In response to Dixon's question, Kelly said the gun was loaded. The gun was stuffed into the top of Kelly's right tennis shoe against the inside part of his leg. Kelly's pants leg covered the gun. Dixon took the gun and arrested Kelly. After the arrest, Dixon advised Kelly of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Kelly then admitted that the gun was his, and said he had purchased it for protection.

After his arrest, Kelly moved to suppress the gun and the statements he made to Dixon after his arrest. Kelly contended that his arrest was warrantless and not supported by probable cause, and that Dixon improperly interrogated him before advising him of his Miranda rights. Because the interrogation was unlawful, he contended, all of his responses should be suppressed. He also argued that the search was illegal, so the gun should have been suppressed as well. After a hearing, the district court denied the motion to suppress. The court found Dixon's search of the car was supported by probable cause and that Kelly was not in custody when Dixon questioned him. Order of 6/26/92 at 4-5, Record Document ("R. Doc.") 21.

At trial, one of the passengers testified that he saw Dixon take a revolver from the car, not from Kelly, during the search. Kelly admitted that he has five prior felony convictions. He denied that he carried the cartridges or gun on his person. Kelly agreed with his passenger that Dixon took the gun from the car, but disavowed any knowledge of its presence. Kelly also denied making any statements about the gun after his arrest to Dixon. The jury, however, apparently failed to credit this testimony and convicted Kelly after thirty minutes of deliberation. See Trial Transcript at 202-03.

On appeal, Kelly contends that (1) the district court erred in refusing to grant his motion to suppress; (2) the prosecutor made improper statements during his rebuttal argument; (3) the evidence is insufficient to support the jury's verdict; and (4) his sentence was improperly calculated. We consider each argument in turn.

II. Analysis

A. Motion to Suppress

We review a district court's factual and legal determinations on a motion to suppress for clear error. United States v. Spears, 965 F.2d 262, 271, 277 (7th Cir.), cert. denied, --- U.S. ----, 113 S.Ct. 502, 121 L.Ed.2d 438 (1992). Kelly contends that Dixon's pre-arrest questions amounted to a custodial interrogation subject to the requirements imposed by Miranda because his freedom was substantially restricted by the circumstances of the traffic stop. In Miranda, the Supreme Court explained that a custodial interrogation is "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U.S. at 444, 86 S.Ct. at 1612. But the Court in subsequent cases has also cautioned against according "talismanic power" to this phrase. Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138, 3148-49, 82 L.Ed.2d 317 (1984). "Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered that decision are implicated." Id. In Berkemer, the Court held that persons arrested for minor traffic offenses are entitled to Miranda warnings, but that an officer who merely questions a stopped motorist need not first give the warnings. Id. at 442, 104 S.Ct. at 3151.

In order for the requirements of Miranda to apply, the defendant must have been subjected to a "restraint on his freedom of movement 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); United States v. Hocking, 860 F.2d 769, 772 (7th Cir.1988). Whether a suspect was in constructive custody depends upon the totality of the circumstances. Beheler, 463 U.S. at 1125, 103 S.Ct. at 3520. The test is "not whether the defendant was under the subjective belief that his or her movements were restricted, but whether a reasonable person in the defendant's position would believe that he or she was free to leave." United States v. Lennick, 917 F.2d 974, 977 (7th Cir.1990). Further, the Supreme Court has expressly rejected the contention that a noncustodial situation may be converted to a custodial one simply because the questioning occurred in a "coercive environment." Oregon v. Mathiason, 429 U.S. 492, 495, 97 S.Ct. 711, 714, 50 L.Ed.2d 714 (1977). "Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime." Id. We have expressly rejected the assertion that any statement made by a defendant while he is under some type of supervision "ipso facto" constitutes custodial interrogation. Schiro v. Clark, 963 F.2d 962, 974 (7th Cir.1992), petition for cert. filed (Feb. 5, 1993).

We can find no evidence in the record to support Kelly's contention that his freedom of movement was restrained in a manner equivalent to that associated with a formal arrest. The Supreme Court has explained that Miranda is designed to preserve the constitutional privilege against self-incrimination "during incommunicado interrogation of individuals in a police-dominated atmosphere." Illinois v. Perkins, 496 U.S. 292, 296, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990). The elements the Court has focused on are coercion or compulsion, particularly in private, by government officials who appear to control the suspect's fate. Id. at 296-97, 110 S.Ct. at 2397.

The Court's ruling in Berkemer is instructive. McCarty was pulled over by a police officer because his car was weaving. 468 U.S. at 423, 104 S.Ct. at 3141. The officer asked McCarty to step out of his car, and concluded that he would charge him with a traffic offense. The officer did not inform McCarty, however, and proceeded to administer a field sobriety test. Id. at 423, 104 S.Ct. at 3141. McCarty failed the test and the officer asked him if he had used intoxicants. McCarty admitted that he had consumed two beers and smoked some marijuana. His speech was slurred. The officer arrested McCarty and took him to jail. A blood alcohol test revealed no evidence of alcohol in McCarty's blood, and the officer questioned him again. Id. He asked McCarty whether the marijuana he smoked had been treated with anything. McCarty answered negatively. He was charged with operating a motor vehicle while under the influence of alcohol and/or drugs. The officer never gave McCarty Miranda warnings.

McCarty moved to suppress all of his statements to the arresting officer because of the officer's failure to give the Miranda warnings. 468 U.S. at 424, 104 S.Ct. at 3142. Although the Court ruled that...