U.S. v. Bernitt

• Decision Date: 15 December 2004
• Docket Number: No. 03-3065.,03-3065.
• Citation: 392 F.3d 873
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alan L. BERNITT, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

392 F.3d 873

UNITED STATES of America, Plaintiff-Appellee, v. Alan L. BERNITT, Defendant-Appellant.

No. 03-3065.

United States Court of Appeals, Seventh Circuit.

Argued April 2, 2004.

Decided December 15, 2004.

COPYRIGHT MATERIAL OMITTED

Gregory J. Haanstad (argued), Office of the United States Attorney, Milwaukee, WI, for Plaintiff-Appellee.

Dennis P. Coffey (argued), Domnitz, Mawicke & Goisman, Milwaukee, WI, for Defendant-Appellant.

Before EASTERBROOK, MANION, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

Alan L. Bernitt, a resident of Ozaukee County, Wisconsin, was found guilty by jury on two counts of manufacturing marijuana and one count of possessing marijuana with intent to distribute. After the trial, the district court entered a preliminary order of forfeiture for Bernitt's real property on which the marijuana was growing. Bernitt now appeals. Bernitt alleges that the police did not have valid consent to search his home and unattached garage; that the evidence was not sufficient to support the jury verdict; and finally, that the order for forfeiture of his farm violated the Eighth Amendment's prohibition against excessive fines. We affirm.

I. Background

Before his incarceration, Bernitt lived on his farm in Ozaukee County, Wisconsin. On July 24, 2002, acting on an informant's tip that marijuana plants were growing alongside Bernitt's home, Ozaukee County police officers John Hoell, Jason Vetter, and Kristopher Martin went to Bernitt's farm to do a "knock and talk" investigation. The purpose of this "knock and talk" was to gather more information. When the police officers arrived, Officer Hoell immediately saw what amounted to 110 marijuana plants growing two to eight feet tall. The plants were adjacent to Bernitt's home and readily visible from the residence's driveway.

When the police officers asked Bernitt about the plants, Bernitt replied that the marijuana grew wild. The police officers arrested Bernitt. The police officers did not Mirandize Bernitt. They did, however, handcuff Bernitt and place him in the rear of a marked police car. Officer Hoell testified that he asked Bernitt for his consent to search his house and garage. Bernitt replied by asking if he could come along during the search. After the police officers denied his request, Bernitt stated, "Go ahead and search, you're not going to find anything in the residence anyways." Bernitt testified that he never gave permission for the police to search his unattached garage.

The officers searched Bernitt's residence and found two potted plants in his kitchen. These plants were later determined to be marijuana. When the police officers asked Bernitt about the potted plants, Bernitt replied that they were given to him by a friend. Bernitt stated that these plants were "palm trees." The officers also searched the basement of Bernitt's home. The officers then searched Bernitt's unattached garage. In the garage, the officers found a refrigerator containing two gallon-size ziplock bags of wet plant material. This material was later determined to be marijuana. On a table next to the refrigerator, the officers found and seized a weighing scale. The scale had marijuana residue on it. In addition, the officers seized 248 marijuana plants from the garden behind Bernitt's home. The garden appeared to be well-tended. The marijuana plants were planted in rows and thriving.

On August 2, 2002, the police received an anonymous letter. The letter informed them that they had missed some marijuana at Bernitt's home during their July search. In response to the anonymous letter, Officer Hoell conducted a reconnaissance flight over Bernitt's property, where he spotted additional suspected marijuana plants.

On September 5, 2002, Officer Hoell went to Bernitt's home to conduct a follow-up investigation. Officer Hoell found ten more marijuana plants growing in the same garden from which the 248 plants were previously seized. He also found a mowed path from the back garden to a wooded section of Bernitt's property. In the wooded section, Officer Hoell found an additional 281 marijuana plants, some eight feet tall.

A grand jury in the Eastern District of Wisconsin returned a three-count indictment against Bernitt: two counts of manufacturing marijuana, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(B), and one count of possessing marijuana with intent to distribute, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(C). The indictment stated that Bernitt's offenses involved 100 or more marijuana plants. The indictment also included a forfeiture provision to seize Bernitt's real property under 21 U.S.C. § 853. Bernitt filed a motion to suppress this physical evidence, which the district court, adopting the magistrate's recommendation, denied. Following a two-day jury trial, Bernitt was found guilty on all counts. In addition, the jury issued a special verdict finding beyond a reasonable doubt that the offenses involved 100 or more marijuana plants, as alleged in the indictment.

Bernitt waived jury consideration of the forfeiture issue. As such, the district court agreed to decide the forfeiture matter based upon the trial record and the parties' written submissions. Bernitt then filed a Motion for Judgment of Acquittal, under Federal Rule of Criminal Procedure 29, which the district court denied. The district court granted the government's motion for a preliminary order of forfeiture. The district court also issued an order forfeiting Bernitt's interest in the real property on which the marijuana plants were found. The district court then sentenced Bernitt to three terms of sixty months, to be served concurrently. Finally, the district court ordered Bernitt to pay a $10,000 fine, and special assessments of $300. Bernitt submitted a timely appeal.

II. Analysis

A. Search of Bernitt's Home and Garage

The evidence Bernitt seeks to suppress are as follows: (1) two potted marijuana plants taken from his kitchen; (2) two ziplock bags of marijuana; and (3) a scale. The two ziplock bags of marijuana and the scale were both seized from his unattached garage. On appeal from a denial of a motion to suppress, we review the district court's factual findings for clear error and questions of law de novo. United States v. Lemmons, 282 F.3d 920, 923-24 (7th Cir.2002).

It is well-settled under the Fourth and Fourteenth Amendments that warrantless searches are per se unreasonable, "subject only to a few specifically established and well-delineated exceptions." Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One such exception is search pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). However, the consent to a police search must be voluntary. Id. at 222, 93 S.Ct. 2041. Voluntary means the "consent was not the product of duress or coercion, express or implied," which must be determined by looking at the "totality of all the circumstances." Id. at 227, 93 S.Ct. 2041. The government must prove this by a preponderance of the evidence. United States v. Saadeh, 61 F.3d 510, 517 (7th Cir.1995). To determine whether the consent was voluntary or not, this court may consider factors including: "age, education, and intelligence of the defendant; advisement of his rights; how long he was detained prior to the consent; repeated requests for consent; physical coercion; and whether he was in custody." United States v. LaGrone, 43 F.3d 332, 334 (7th Cir.1994); see also United States v. Strache, 202 F.3d 980, 985 (7th Cir.2000) (noting that presence or absence of any one of the factors listed in LaGrone is not controlling).

While this case presents some facts which question the voluntariness of Bernitt's consent, reviewing all the facts together, we conclude the consent was valid. It is troubling that Bernitt had been arrested, handcuffed in the back of a police squad car, and not advised of his rights before he gave his consent. However, several facts mitigate our concern. The district court found that Bernitt was an intelligent, articulate adult man, and we have no basis to conclude that these factual findings were clearly erroneous. Furthermore, "the police did not badger [the defendant] for information or consent, nor physically abuse or pressure him." Strache, 202 F.3d at 986. In addition, the district court found that Bernitt was in custody for only three to four minutes before the police solicited his consent. See id. (finding defendant's consent voluntary even when defendant was in custody for approximately twenty minutes and not advised of his rights). In any case, "the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search." United States v. Watson, 423 U.S. 411, 424, 96 S.Ct. 820, 46 L.Ed.2d 598 (1976). In sum, we agree with the district court's conclusion that Bernitt voluntarily consented to the search of his home. The potted plants found in his kitchen, therefore, were properly submitted into evidence.

The question remains of whether the scope of Bernitt's consent included his unattached garage. Bernitt contends that even if we conclude his consent was voluntary, we should find that his consent only permitted search of his "residence." Bernitt contends that he limited the scope of the search only to his home when he said, "Go ahead and search, you're not going to find anything in the residence anyways." On the other hand, at the suppression hearing, Officers Hoell and Vetter testified that Officer Hoell asked Bernitt for permission to search both his residence and garage.

"A suspect may of course delimit as he chooses the scope of the search to which he consents." Florida v. Jimeno, 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). Moreover, while the officers testified at the suppression hearing that consenting to the search of Bernitt's "residence" included, in their minds, search of Bernitt's garage, the...