U.S. v. Baker

• Decision Date: 22 March 1996
• Docket Number: No. 95-2788,95-2788
• Citation: 78 F.3d 1241
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Nikolaos B. BAKER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1241

78 F.3d 1241

UNITED STATES of America, Plaintiff-Appellee, v. Nikolaos B. BAKER, Defendant-Appellant.

No. 95-2788.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 23, 1996.

Decided March 22, 1996.

Appeal from the United States District Court for the Northern District of Indiana, Fort Wayne Division, No. 94 CR 38; William C. Lee, Judge.

David H. Miller (argued), Office of the United States Attorney, Fort Wayne, IN, for Plaintiff-Appellee.

Donald C. Swanson, Jr. (argued), Swanson & Campbell, Fort Wayne, IN, for Defendant-Appellant.

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

TERENCE T. EVANS, Circuit Judge.

Nikolaos Baker's conviction, on charges of possessing crack cocaine with intent to distribute and using or carrying a firearm in relation to a drug trafficking crime under 18 U.S.C. § 924(c)(1), and this appeal straddle the decision last December by the United States Supreme Court in Bailey v. United States, --- U.S. ----, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995).

Because firearm charges under § 924(c) are a staple of federal court jurisprudence, and Bailey significantly curtailed the scope of the law, many cases, and Baker's is a good example, present interesting issues.

Baker was sentenced to 7 years on the crack cocaine charge and an additional 5 years, consecutive, on the § 924(c) count. Before we arrive at Baker's significant issue regarding Bailey, we need to address an easier issue--his claim that the evidence against him should have been suppressed.

Baker was arrested after Indiana State Trooper Robert Brophy found 27 grams of crack and a handgun in Baker's car following a routine traffic stop. Baker raises four related Fourth Amendment claims regarding the discovery and seizure of the drugs and gun. First, he contends they were seized after he was arrested without probable cause. Next, he says he never consented to Brophy's search of his car. Third, he claims he was coerced into giving whatever consent he gave, and last, he says the search exceeded the scope of his consent even if it was given. For these reasons, he argues that the district court erroneously denied his motion to suppress evidence. We review the district court's denial of a motion to suppress evidence for clear error and defer to its factual determinations. United States v. Willis, 61 F.3d 526, 529 (7th Cir.1995), petition for cert. filed Oct. 23, 1995.

Baker's Fourth Amendment claims rest on his version of the facts. The district court, however, determined after a suppression hearing that Baker's version was not credible. Instead, the court chose to credit Brophy's view of what happened. That determination--to credit Brophy's version rather than Baker's--cannot be clearly erroneous. United States v. D'Antoni, 856 F.2d 975, 978-79 (7th Cir.1988), cert. denied, --- U.S. ----, 116 S.Ct. 429, 133 L.Ed.2d 345 (1995) (quoting Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 1511- 12, 84 L.Ed.2d 518 (1985)). Accordingly, in our analysis of Baker's claims, we consider only Brophy's account of the facts.

According to Brophy, his radar clocked Baker's Chevy going 77 miles per hour in a 65 mile per hour zone on Interstate Highway 69 north of Fort Wayne, Indiana. After the car was pulled over for speeding, Brophy approached it with his hand on his gun. Brophy saw Baker reach below the driver's seat. Brophy asked Baker to get out of his car and sit in the squad car. Baker did as requested.

Because Brophy had both probable cause for the stop and the authority to act, the stop was valid. Willis, 61 F.3d at 530. Once Brophy stopped Baker, the trooper could legitimately ask him to step out of his car, even without any particularized suspicion that Baker possessed a weapon. Pennsylvania v. Mimms, 434 U.S. 106, 108-09, 98 S.Ct. 330, 331-32, 54 L.Ed.2d 331 (1977). Finally, the fact that Brophy asked Baker to sit in his patrol car "does not by itself distinguish [Baker's] circumstances from that of any other motorist who has been pulled over for a minor traffic violation." United States v. Quinones-Sandoval, 943 F.2d 771, 775 (7th Cir.1991). Baker at this point was not under arrest.

Once in his patrol car, Brophy asked Baker a few questions, to which Baker gave inconsistent or suspicious answers: Baker claimed to be going to visit a friend whose name he did not know at a lake of whose location he was uncertain. Brophy then asked if he could search Baker's car. Baker replied, "I don't care--you can if you want to." Brophy asked if there were any drugs or weapons in the car; Baker denied that there were. Brophy again asked for and received permission to search Baker's car. Before leaving his patrol car to conduct the search, Brophy handcuffed Baker. Brophy explained that he did this for his own protection.

Baker's claim that he did not consent or that his consent was ambiguous is meritless. His response to the trooper's request to search his car was clear and unequivocal. Moreover, even after Brophy questioned him about the presence of drugs or weapons in his car, Baker again consented to the search. Thus, the district court was not clearly erroneous in concluding that Baker consented to the search.

Baker nonetheless maintains that his consent was involuntary. His argument on this score, however, is doomed because it rests on facts discredited by the court at the suppression hearing. As we said earlier, we defer to a district court's factual determinations, particularly on credibility, and so we need not consider testimony discredited by the trial court.

Baker emphasizes his age and inexperience in arguing that his consent was involuntary. Baker was 21 years old at the time of the search. According to his PSR, he had several minor run-ins with the law prior to the present offense: at age 16, he was placed on probation for possession of a controlled substance; he was twice arrested at age 17 for disorderly conduct; he had five tickets for minor traffic violations. We don't believe Baker was either so young or inexperienced in confrontations with police that he did not have the ability to voluntarily consent to the search. The district court's finding on this point was not clearly erroneous.

Baker next argues that because Brophy had his hand on his gun, the consent was coerced. Although Brophy initially approached Baker's car with his hand on his gun-not an unreasonable thing to do at night--he never drew it out of his holster. The district court discredited Baker's passenger's testimony that Brophy threatened them, and even by that account, the alleged threat occurred after Baker consented to the search. Thus, there is no basis for Baker's claim of physical coercion. See, e.g., United States v. Lechuga, 925 F.2d 1035, 1042 (7th. Cir.1991) (holding that the mere fact that an officer is armed does not lead to the conclusion that consent to search was coerced).

The only facts arguably relevant to the voluntariness of Baker's consent were that Baker was sitting in Brophy's patrol car and that Brophy did not give Miranda warnings or tell Baker of his right to refuse to consent to the search. Because Baker was not under arrest at this point, there was no need to give him Miranda warnings. Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984). Moreover, failure to inform a suspect of his right to refuse to consent to a search does not invalidate a consent that is voluntary. United States v. Price, 54 F.3d 342, 347 (7th. Cir.1995) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 234, 93 S.Ct. 2041, 2051, 36 L.Ed.2d 854 (1973)). Based on facts almost identical to these, we affirmed the voluntariness of a consent in Quinones-Sandoval, 943 F.2d at 774-75. The district court's determination that Baker voluntarily consented to the search is not clearly erroneous.

Finally, Baker contends that Brophy's search exceeded the scope of his consent. Brophy found the gun and crack under the driver's seat of Baker's car; the crack was in a black, nylon bag. Baker's consent, however, did not contain any explicit limitations. Even after Brophy identified the intended objects of his search, Baker gave an unqualified consent to search. Consent of this sort includes a consent to search containers within the car that might contain drugs. Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 1803-04, 114 L.Ed.2d 297 (1991). Moreover, Baker never explains what the limits of his consent were or how Brophy exceeded them. Thus, there is no merit to this claim.

In sum, Baker's Fourth Amendment claims are baseless. The district court was not clearly erroneous in denying the motion to suppress the evidence found in his car. That said, we arrive at the Bailey issue.

The weapon found in Baker's car was a loaded 10 millimeter semi-automatic handgun. Its hammer was cocked, so that a slight touch on the trigger would set it off. It was resting on top of a nylon bag containing 27 grams of crack cocaine. Both were under the seat Baker was occupying when he drove the car.

Baker argues that there was insufficient evidence to convict him of the firearm charge under 28 U.S.C. § 924(c)(1). Baker claims that the weapon's placement on top of a bag containing 27 grams of crack underneath the driver's seat of his car was "a mere accident or coincidence," and was unrelated to his drug trafficking conviction. Baker further contends that because there were two passengers in the car along with him, there was insufficient evidence upon which the jury could have found that the gun belonged to him.

In a challenge to a conviction based on a claim of sufficiency of the evidence, we review evidence presented at trial in the light most favorable to the government, and will uphold the conviction if any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. United States v. Taylor, 31 F.3d 459, 464 (7th Cir.1994). At trial, Brophy testified that...