U.S.A v. Burtton

• Citation: 599 F.3d 823
• Decision Date: 02 April 2010
• Docket Number: No. 09-1380.,09-1380.
• Parties: UNITED STATES of America, Appellee, v. Taft BURTTON, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

599 F.3d 823

UNITED STATES of America, Appellee, v. Taft BURTTON, Appellant.

No. 09-1380.

United States Court of Appeals

Eighth Circuit.

Submitted: Nov. 18, 2009.

Filed: April 2, 2010.

Rehearing Denied May 14, 2010.

Michael J. Tassel, Oakland, NE, for appellant.

Robert C. Sigler, AUSA, Omaha, NE for appellee.

Before MURPHY, SMITH, and BENTON, Circuit Judges.

SMITH, Circuit Judge.

Taft Burtton was charged in a two-count indictment with possession with intent to distribute 50 grams or more of a mixture or substance containing cocaine base, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1), and criminal forfeiture of $4886 seized from his person and $111 seized from his vehicle. Burtton sought suppression of evidence seized as a result of a traffic stop of his vehicle, including the search of his person. The district court¹denied Burtton's motion to suppress.² We affirm.

I. Background³

At approximately 5:30 p.m. on the evening of December 2, 2007, Omaha Police Department Officers James Maloney and Taylon Fancher were in uniform, in a marked police car, on routine patrol in Omaha. After observing a Lincoln Navigator run a stop sign and fail to signal its intent to turn westbound, they stopped the vehicle.

Officer Maloney approached the driver side of the vehicle, while Officer Fancher approached the passenger side. The Lincoln Navigator contained three occupants a driver and two backseat passengers. The occupants had removed the middle seat, and the rear passengers were in the far backseat, creating a "kind of limousine setup." Burtton sat in the rear seat of the car behind the driver, Terrence Partee. Ralph Cotton also sat in the rear seat with Burtton. Cotton initially provided the officers with a false name and date of birth.

When Officer Maloney approached the vehicle, he observed the two backseat passengers holding 12-ounce plastic cups and saw a liquor bottle on the floor. Additionally, he noticed a very strong odor of marijuana coming from the vehicle. Officer Maloney spoke to Partee, the driver, who admitted that he had a suspended driver's license.

For safety reasons, the officers directed the occupants to exit the vehicle because of difficulty observing the occupants due to the number of people in the vehicle, window tints, and darkness approaching. The officers secured them with handcuffs. Officer Maloney asked Burtton and Cotton what they were drinking, and they pointed to the liquor bottle on the floor in the backseat. Officer Maloney smelled the cups and concluded that they contained alcohol. After also discovering that Partee and Cotton had outstanding misdemeanor warrants for their arrest, the officers arrested all of the occupants of the Lincoln Navigator.

Officer Maloney then searched Burtton's person before searching the vehicle. Officer Maloney found a baggie containing about 15 grams of marijuana tucked in Burtton's sock and approximately $4500 in cash. Based on his experience, Officer Maloney considered $4500 to be an usually large amount of cash to be carrying.

After Officer Maloney searched Burtton the officers placed Burtton in Officer Maloney's police cruiser and searched the Lincoln Navigator. There, the officers discovered less than an ounce of marijuana or marijuana residue. The officers also found a recently smoked marijuana blunt in the ash tray of the Lincoln Navigator. During the search, Burtton, sitting in the police cruiser, called to Officer Maloney and stated that the $4500 was for a real estate deal in south Omaha. Burtton said "I know what you're thinking. You think because I got a lot of money, there's marijuana in the car, that I might be a drug dealer or something." When Officer Maloney asked Burtton why he did not use a bank or a cashier's check—something with a receipt—for the real estate deal, Burtton replied that using cash was "easier." Officer Maloney found this explanation suspicious, but he did not ask additional questions. Officer Maloney had no evidence to support or contradict Burtton's explanation for carrying the cash.

During the traffic stop, Officer Maloney called Officer Joseph Baudler of the Omaha Police Department. Officer Maloney summarized the traffic stop and asked Of-ficer Baudler to speak to the occupants of the house at 3050 Newport Avenue. Baudler was to visit the house to determine who the occupants were and seek consent to search the house. Officer Maloney told Officer Baudler that he had venue items of Terri Burtton or Taft Burtton that linked them to 3050 Newport Avenue, although Taft Burtton had given Officer Maloney a different address—304 North 38th Street. Officer Baudler agreed to contact the occupants.

Officer Maloney discovered that the Lincoln Navigator was registered to Burtton but that no address was associated with the license plates. At the scene, Burtton told Officer Maloney that he lived at 304 North 38th Street but sometimes stayed with his estranged wife, Terri Burtton.⁴ Officer Maloney learned from the police dispatcher that 304 North 38th Street Omaha, Nebraska, was not a valid address. Officer Maloney drafted his affidavit in support of a search warrant of 3050 Newport Avenue based upon his belief that the address was invalid. But Officer Maloney later learned that the address was valid. Officer Maloney learned from Burtton that Terri Burtton lived at 3050 Newport Avenue.

Based on his experience and observations at the traffic stop, Officer Maloney suspected that the marijuana found in the Lincoln Navigator came from the baggie found on Burtton and that Burtton could have sold the marijuana to others. Based on this belief, Officer Maloney arrested Burtton for possession with suspicion to deliver marijuana. Officer Maloney transported Burtton to the police station at approximately 6:30 to 6:45 p.m. At 7:05 p.m., Officer Maloney advised Burtton of his Miranda rights at the police department. Burtton responded "yes sir" to each question, and Officer Maloney recorded Burtton's answers via a rights-advisory form. After Officer Maloney advised Burtton of his rights, Burtton told Officer Maloney that "the only thing you're going to find at [3050 Newport Avenue] is marijuana residue" and then invoked his right to silence.⁵ Partee and Cotton, in separate interviews, mentioned to the officers that they had been at 3050 Newport Avenue earlier that day smoking marijuana and playing video games with Burtton.

Meanwhile, at 6:15 p.m., Officer Baudler and another officer arrived at 3050 Newport Avenue. They knocked on the door and met a woman who identified herself as Terri Burtton. The officers asked her if they could speak to her, and she allowed the officers to enter the home and proceed to the kitchen area. Officer Baudler told Terri Burtton that her husband had been arrested for possession of narcotics. He then asked her to consent to a search of the home for narcotics. She wanted to talk to her husband before she consented to a search of the residence.

On two separate occasions, Terri Burtton contacted her husband at the police station where they discussed the consent to search. Both Taft Burtton and Terri Burtton signed a permission-to-search form. But almost immediately after signing the form, Taft Burtton revoked his consent. Officer Maloney contacted Officer Baudler and told him that Taft Burtton had revoked his consent. After learning that her husband had revoked his consent Terri Burtton revoked her consent. She testified that she asked the officers to leave the residence but that they refused.

At 7:30 p.m., Officer Maloney drafted an affidavit and application seeking a search warrant for the residence. Officer Maloney asked Officer Baudler to secure the house while waiting for the issuance of the warrant. Based on his experience, Officer Baudler was concerned that evidence of narcotics, if in the residence, could easily be destroyed absent a police presence. Officer Baudler went through the house to make sure that no adults were present and that no one was hiding, then he continued to wait for the search warrant in the kitchen area with Terri Burtton. Officer Baudler informed Terri Burtton that the officers would be waiting at her house until the warrant arrived.

Later, Terri Burtton received a telephone call and, during the call, asked Officer Baudler if she was under arrest. Officer Baudler replied "no." She then stated that she wanted to leave the residence, and the officers did not object. She left the residence for approximately 20 minutes. When Officer Baudler informed Officer Maloney that Terri Burtton had left, Officer Maloney stated that he was on his way to get the warrant signed.

Officer Maloney's search warrant affidavit stated his belief that the officers would discover

[m]arijuana and it's [sic] derivatives, whether homemade or manufactured; scales and packaging materials commonly used in the distribution of illicit drugs; Monies and proceeds associated with the sales of illicit drugs; Records used to conduct illegal narcotics operation and venue items identifying the occupants of 3050 Newport Avenue, Omaha, Douglas County, Nebraska.

In support of the search, the affidavit

states, in relevant part:

On SUN 02DEC07 1733 hours Affiant Officers MALONEY # 1701 and Officer FANCHER # 1839 conducted a traffic stop near 41st and Lake Street for stop sign violation on a silver 1999 Lincoln Navigator (PVC359/NE). Upon approach Affiant Officers MALONEY and Officer FANCHER detected the strong odor of marijuana coming from the vehicle, observed an open container of alcoholic beverage in plain view and the driver, Terrence PARTEE (6-30-73), had a suspended license and outstanding misdemeanor warrant. Passenger, Ralph COTTON, had an outstanding misdemeanor warrant. A search of the vehicle incident to the arrest resulted in four different bags of marijuana less than 1 ounce and one marijuana "blunt" being recovered in addition to the open container of alcoholic beverage.

The owner and additional passenger of the vehicle, Taft...