U.S. v. Boden

• Decision Date: 10 August 1988
• Docket Number: No. 86-2701,86-2701
• Citation: 854 F.2d 983
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. William W. BODEN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 983

854 F.2d 983

UNITED STATES of America, Plaintiff-Appellee, v. William W. BODEN, Defendant-Appellant.

No. 86-2701.

United States Court of Appeals Seventh Circuit.

Argued Feb. 26, 1987.

Decided Aug. 10, 1988.

George P. Lynch, George P. Lynch, Ltd., Chicago, Ill., for defendant-appellant.

Patrick J. Foley, Asst. U.S. Atty., Anton Valukas, U.S. Atty., Chicago, Ill., for plaintiff-appellee.

Before CUDAHY, RIPPLE and MANION, Circuit Judges.

MANION, Circuit Judge.

Defendant William Boden was tried on stipulated facts without a jury and convicted of violating 18 U.S.C. Sec. 842(a)(1), which makes it unlawful for any person "to engage in the business of ... dealing in explosive materials without a license." He appeals from the district court's order denying in part his earlier motion to suppress evidence the government seized and oral statements he made during an encounter with agents of the Bureau of Alcohol, Tobacco and Firearms (the Bureau). We affirm.

I. NATURE OF THE CASE

A. Prelude

The testimony at the suppression hearing and stipulations of fact subsequently filed by the parties tell the following. ¹ Defendant Boden, a resident of Aurora, Illinois, was a federally-licensed gun dealer doing business as The Gun Lodge in Aurora. Boden did not have an explosives license or permit. See Title XI of the Organized Crime Control Act of 1970, 18 U.S.C. Sec. 843. On August 1, 1975, Boden pleaded guilty in state court to illegally selling and possessing explosives.

In April, 1985, the Bureau, responding to a tip from one Robert Manella, began to investigate whether Boden was again selling explosives. Manella had known Boden for several years and had purchased guns from him. On June 18, 1985, at approximately 10:00 a.m., Manella, while wearing an electronic transmitter, spoke to Boden at The Gun Lodge. An agent of the Bureau, Douglas Moore, listened in. During that conversation, Boden agreed to sell to Manella two cases of M-80 explosives for $250 per case. M-80s are frequently used as firecrackers on the Fourth of July. Boden and Manella were to meet at a prearranged location at 8:00 that evening.

After Boden's conversation with Manella that morning, the government began both ground and aerial surveillance of The Gun Lodge. As Agent Gene Oitker testified at the suppression hearing, the purpose of the surveillance was "[t]o ascertain if Mr. Boden was going to make sales or deliveries of explosives." At 6:05 p.m., the agents watching Boden observed him drive in a 1978 red Mercury station wagon to The Cedar Chest, a commercial self-storage facility in Winfield, Illinois.

Boden had rented a storage unit at The Cedar Chest, a facility which features seven buildings containing rows of walk-in storage units. The Cedar Chest rents to the public. The complex is surrounded by a six-foot fence, with barbed wire across the top. There is one entrance, through an electric sliding gate, and tenants and those they invite admit themselves by using a computerized key card; they then sign in at an office by the gate. On June 18, however, the entry system was broken, so the gate remained open. A sign prominently posted warned that if the management spotted any unauthorized person on the premises, they would call the police.

Boden entered and signed the facility's daily access report. Glen DeVries, who owns The Cedar Chest, was in the office at the time.

At approximately 6:30 p.m. on June 18, an agent in an airplane observed Boden several times carry unmarked boxes from his unit to the rear of his station wagon parked nearby. The agent in the airplane relayed what he had observed to the agents on the ground. What happened next was subject to conflicting testimony.

B. The Government's Version

According to the government's version, at approximately 6:30 p.m., Agent Oitker heard on his radio that Boden had traveled to The Cedar Chest, had parked his car next to a storage unit, and was going to and from his car and the unit. Oitker knew Boden from previous encounters at The Gun Lodge and knew that Boden was a gun dealer. Oitker also knew that Boden had previously dealt in illegal explosives. In addition, Oitker knew that Boden had agreed to sell explosive devices to Manella that evening. Oitker was concerned that such devices might detonate by accident. As Oitker wrote in his report of the incident immediately afterwards:

Being concerned that no other personnel could obtain a sufficient vantage point to see exactly what Boden was doing, and being concerned for the safety and welfare of citizens in the nearby area in the event of an accidental detonation, I decided that I should approach Boden at this time.

Oitker drove through the open gate and into the complex. He drove his car past Boden's to see what he was doing. He saw two rows of uniform cardboard boxes in the storage unit adjacent to Boden's car. Upon seeing Oitker, Boden rolled down the door to the storage unit. Agent Oitker got out of his car approximately 15 to 17 feet from Boden and his storage unit. Oitker then flashed his badge, in his own words, "to Mr. Boden's face," and approached him. Oitker testified at the suppression hearing that while he was armed with a .357 Magnum caliber revolver, he did not draw his weapon. As he walked towards Boden, Oitker looked in Boden's station wagon and saw more boxes similar to those he had seen in the storage unit. When Oitker reached Boden, he said "Hello, Bill," and gave his full name and that of the government agency he represented. Agent Oitker then asked Boden what the cardboard boxes in the rear of his car contained, and Boden responded, "Fireworks."

After Boden said he had fireworks in his car, Agent Oitker asked Boden whether he was armed. When Boden responded that he had a handgun in his right rear trouser pocket, Agent Oitker asked him to place his arms on top of his station wagon, which Boden did. Agent Oitker frisked Boden and removed a loaded .38 semi-automatic pistol from Boden's right rear trouser pocket. Agent Oitker then escorted Boden away from his station wagon to his own car and placed Boden's pistol in his car's trunk.

Agent Oitker then asked Boden whether he had any more weapons with him. Boden replied that he did not know but that there might be a weapon in his car because he sometimes carried one there. According to Oitker, Boden stated that he did not want the agents to think that he was armed with more than the one gun, and, as Oitker testified, "that I should go ahead and look for the other firearm to prove it was there or not there." Thus invited, Oitker entered Boden's car.

While searching Boden's car for another weapon, which he did not find, Agent Oitker found on the floor beneath the front seat a form receipt book with numerous entries describing sales of M-80s. Agent Oitker took the sales book.

Agent Oitker then walked to the back of Boden's car and again looked through the rear window. He counted 11 sealed boxes and a grocery bag. He opened the rear door and looked inside the grocery bag. He saw that the bag contained a number of smaller bags. Based upon his experience in investigating illegal sales of explosives, he believed that the smaller bags were packages of explosives. He opened one of the smaller bags and saw that it contained M-80 explosives. He asked Boden whether each box contained this type of device, and Boden confirmed that they did. Oitker decided to seize the boxes and grocery bag but informed Boden that as soon as the explosives were removed from his car, Boden could take the car and leave. But Boden responded that he wanted to stay and observe what the agents would do.

Oitker then asked Boden what was located in his storage locker. Boden responded with the answer "more fireworks." When Agent Oitker asked how many fireworks there were, Boden replied, "I don't know for sure, but we can count them."

It was now 6:58 p.m. After telling Boden he was not under arrest, Oitker pulled out a standard waiver of rights form, which listed among other rights the right to remain silent and the right to counsel. After Oitker read Boden his rights, Boden stated that he understood his rights and signed the form.

Boden then refused to waive any of his rights. In particular, Oitker asked Boden to make a written statement as to what had transpired up to then. Boden refused to do so, stating that he wanted to talk to a lawyer before giving a written statement.

Oitker then asked Boden for permission to search the storage unit, telling Boden that if there were explosives in there, then they would have to be removed. Oitker further informed Boden that he could require the agents to obtain a search warrant, or instead could give the agents permission. If Boden did not consent, then the agents could and would obtain a search warrant. Given those choices, Boden replied: "Let's open it up."

The agents went into Boden's storage unit and searched it. By the time the agents had finished more than two hours later, they had seized a substantial additional amount of explosives. During the search of his unit, Boden made several additional incriminating statements.

The entire search lasted two and one-half hours. An explosives expert would have testified that the M-80 explosives seized from Boden were extremely sensitive to spark or flame initiation and would explode violently once initiated.

According to the agents, they never restrained Boden. He was not handcuffed. Contemporaneous photographs taken by one of the agents submitted into evidence at the suppression hearing showed Boden walking around unimpeded. Oitker further testified that neither he nor any other agent threatened Boden. Oitker testified that while he was not sure, he thinks Boden stood nearby while he searched Boden's car. Oitker believes that a fellow agent may have been at Boden's side during that search, even though he had not directed any agent to keep Boden "in custody" during the search.

Oitker insisted at the...