U.S. v. Rice, 92-2813

• Decision Date: 07 June 1993
• Docket Number: No. 92-2813,92-2813
• Citation: 995 F.2d 719
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Alonzo RICE, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 719

995 F.2d 719

UNITED STATES of America, Plaintiff-Appellee, v. Alonzo RICE, Jr., Defendant-Appellant.

No. 92-2813.

United States Court of Appeals Seventh Circuit.

Argued May 7, 1993.

Decided June 7, 1993.

Stephen A. Ingraham, Asst. U.S. Atty., Office of the U.S. Atty., Milwaukee, WI, for plaintiff-appellee.

William R. Kerner, Bresky, Kerner, Mares & Lein, Wauwatosa, WI, for defendant-appellant.

Before BAUER, Chief Judge, CUMMINGS, and EASTERBROOK, Circuit Judges.

BAUER, Chief Judge.

Alonzo Rice, Jr. was convicted of two counts of possession of a firearm as a convicted felon in violation of 18 U.S.C. § 922(g)(1), and possession of an unregistered firearm in violation of 26 U.S.C. § 5861(d). Rice received a 96-month prison sentence, with a five-year term of supervised release. Rice appeals his conviction. For the reasons set forth below, we affirm.

I. Facts

Because Rice's encounter with the Milwaukee Sheriff's Department on January 6, 1992 is the focus of one of his arguments on appeal, we will review that encounter in some detail. Michael Pautz and Donald Hurley, two detectives from the Milwaukee County Sheriff's Department, went to the Knight's Inn motel in Oak Creek, Wisconsin (which is just south of Milwaukee) on January 6, 1992 to investigate a report of illegal drug activity. The report indicated the activity was occurring in room 401. The detectives arrived at the motel around noon. Transcript of Evidentiary Hearing ("Tr. E.H.") of 4/13/92 at 3. A man and woman occupied room 401, and the detectives found drugs and drug paraphernalia in the room. While Detective Pautz was investigating in room 401, he looked through the window and saw a yellow car pull up outside. A man got out of the car, and Pautz left room 401 to speak to him. Hurley remained in room 401. Although Pautz did not learn his identity until later, the driver was Alonzo Rice. Pautz believed that Rice might be involved in the activities in 401 because he drove up close to the room, the motel rooms opened directly on to the parking lot, and the rest of the lot was empty.

Pautz told Rice who he was, and asked Rice where he was staying. Rice said he was staying in room 402, and asked what Pautz was doing. Pautz said they were investigating drug activity in room 401 and asked if Rice knew the occupants. Rice said he did not know them, but had seen them come and go. The men talked in front of the door to room 402. During the conversation, Rice knocked on the door to room 402, and Doris Solomon opened it. Without asking for or receiving permission, Pautz followed Rice into his room as they talked. Rice made no objection, and Pautz characterized his manner as "very cordial." Id. at 8. Neither Rice nor Solomon objected to his entry or asked Pautz to leave.

Pautz asked Solomon and Rice if they had anything illegal in their room. Both said they had nothing illegal. Pautz asked if he could look around, and said that if there was no problem, he would leave. Tr. E.H. at 9-10. Both people said to go ahead, and Pautz looked around. Pautz saw some roaches (marijuana cigarette butts) in an ashtray and a small bag which he believed contained marijuana. He asked the couple what was in the bag, and opened it at the same time. It contained marijuana. He asked the couple if they had been smoking. The woman told him she had smoked some marijuana the night before.

Pautz asked Rice if he had any identification, and Rice showed him his birth certificate. Pautz also asked the woman for identification. Pautz asked Rice if he had any other identification, and asked him to empty his pockets. Among other things, Rice produced a set of keys and two envelopes containing crack cocaine from his pockets. At some time during the interview, Pautz admitted Sheriff's Deputy Kenneth Kujawa to the room. Kujawa asked Rice if it was okay to look around the room; Rice told him to go ahead. Kujawa found some crack pipes and other drug paraphernalia in a shaving kit.

Pautz asked Rice if the keys fitted the car outside. Rice said they did; Pautz asked whether anything illegal was in the car. Rice said no, and Pautz asked whether it was okay to search the car. According to Pautz, Rice said to go ahead because he had nothing to hide. Id. at 13. Before he left the room to search the car, Pautz told Rice and Solomon that they were under arrest for possession of the drugs in the room.

Pautz discovered a loaded, short-barreled shotgun in the trunk of the car. Pautz took Rice to the Milwaukee County Sheriff's Detective Bureau, and then gave Rice Miranda warnings. Pautz read the warnings from a card which he routinely uses to advise arrestees of their rights. After he gave Rice the warnings, Pautz questioned Rice about the shotgun. Rice said that he received the gun from an acquaintance in exchange for $65.00 and that he knew the gun was loaded, but had not used it.

Rice and Solomon were arrested again on January 24, 1992. (The record does not indicate the circumstances of their release after the first arrest.) They were in the same car involved in the January 6 arrest; Rice was driving, and Solomon was in the front passenger seat. The police were responding to a citizen's complaint about the car's presence outside her home. The police removed them from the car after one officer saw what she believed was a gun on the front seat. The police found a loaded .44 magnum revolver protruding from under the front passenger seat of the car. (The object on the seat was not a gun.) Rice and Solomon were arrested. Solomon said she knew nothing about the gun; Rice said the gun might belong to his friends Rick and Dave.

Rice was indicted by a grand jury on March 3, 1992. He was charged with possession of an unregistered shotgun with a barrel less than 18 inches long, and with two counts of knowing possession of a firearm as a convicted felon.

Rice moved to suppress the shotgun and his statements about it. The trial court referred his motion to a Magistrate. At the hearing before the Magistrate, Rice's version of the events surrounding the January 6 arrest differed from Pautz's version. Rice testified that three or more officers entered room 402. He said he did not agree to Pautz's search of his room or pockets. Rice denied that he consented to the search of the car. According to Rice, Pautz did not ask to search the car, he just picked up the keys and went out to search. He also testified that he and Solomon were in handcuffs at that time. Finally, Rice denied that he was ever given Miranda warnings, or that he was questioned or made a statement about the shotgun. E.H. Tr. of 4/14/92 at 23-25.

The Magistrate recommended that the district court grant Rice's motion to suppress the shotgun and related statements. The Magistrate found that Rice voluntarily admitted Pautz to room 402, but he found Rice's consent to the search of his pockets and car were tainted by coercion. Only the search of the car is at issue here. The Magistrate found that Pautz's presence and statements about searching the room created "subtle coercion" because Pautz did not expressly inform Rice of his right to refuse the search. Magistrate Recommendation of April 29, 1992, R. Doc. 14 at 9. The magistrate ruled that his finding of subtle coercion was supported by the presence of the roaches in the ash tray. Rice and Solomon could not have believed that Pautz might search and find nothing, he reasoned, so they would not have consented voluntarily. Id. Kujawa's presence in the room, together with the discovery of the cocaine, according to the Magistrate, added to the coercive atmosphere. Based on the circumstances, the Magistrate ruled that reasonable people would not believe they were free to refuse Pautz's requests, and for that reason their consents were not voluntary. ¹ But his analysis was not unequivocal:

It is difficult to point to any single factor which, standing alone, would make a person in Rice's position feel that he had no choice but consent. However, the combination of subtle, and perhaps not so subtle, coercions, in the absence of any warnings or disclaimers such as those suggested in [United States v.] High, 921 F.2d 112, 115 (7th Cir.1990), leads this court to conclude that Rice's consent was not voluntary.

Id. at 10.

The Magistrate also recommended that Rice's statements about the shotgun be suppressed because the Government presented insufficient evidence that Pautz gave Rice the appropriate Miranda warnings before questioning him. Pautz could not repeat the warnings at the evidentiary hearing and had not produced his "standard card" as evidence. Id. at 13. Because of these failures, the Magistrate recommended that the court grant Rice's motion to suppress his statements about the shotgun.

The government objected to the Magistrate's recommendations. After hearing testimony from Pautz and reviewing the transcripts of the hearing before the Magistrate, the district court ruled that Rice's consent was voluntary, and denied Rice's motion to suppress the shotgun. It ruled that the facts presented did not support the Magistrate's conclusion that Rice's consent was tainted by coercion from the detectives. The court also found that the Government had proven adequately that Pautz gave Rice the appropriate Miranda warnings after his arrest and denied Rice's motion to suppress his statements about the shotgun.

After a two-day jury trial, Rice was convicted of all three counts charged in the indictment. He appeals his conviction on two grounds. First, he argues the district court erred in denying his motion to suppress the shotgun. Second, he argues the district court improperly refused to give a proffered jury instruction regarding his possession of the revolver during his second arrest.

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. Kelly, 991 F.2d 1308 (7th Cir.1993) (citing United States v....