United States v. Thurman, 050218 FED7, 17-1598

Docket Nº:17-1598
Opinion Judge:RIPPLE, CIRCUIT JUDGE
Party Name:United States of America, Plaintiff-Appellee, v. Brian Thurman, Defendant-Appellant.
Judge Panel:Before Wood, Chief Judge, Ripple and Kanne, Circuit Judges.
Case Date:May 02, 2018
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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United States of America, Plaintiff-Appellee,

v.

Brian Thurman, Defendant-Appellant.

No. 17-1598

United States Court of Appeals, Seventh Circuit

May 2, 2018

Argued November 29, 2017

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 1:14-cr-00366-1 - Virginia M. Kendall, Judge.

Before Wood, Chief Judge, Ripple and Kanne, Circuit Judges.

RIPPLE, CIRCUIT JUDGE

Law enforcement executed a search warrant at Brian Thurman's residence after a cooperating informant purchased heroin inside. They discovered drug paraphernalia, two handguns, and a large amount of money. Mr. Thurman was arrested and later charged in a three-count superseding indictment with (1) maintaining a drug-involved premises, in violation of 21 U.S.C. § 856(a)(1); (2) distributing 100 grams or more of heroin, in violation of 21 U.S.C. § 841(a)(1); and (3) possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).

Before trial, Mr. Thurman filed two motions to suppress: one to exclude self-incriminating statements that he made following his arrest and another to exclude evidence obtained from a search of his cell phone. The district court denied both motions. A jury later convicted Mr. Thurman on the distribution charge, but acquitted him on the drug-premise and firearms charges. The court sentenced him to seventy-two months' imprisonment and four years' supervised release.

Mr. Thurman now challenges the court's denial of his motions to suppress and its findings supporting his sentence. He maintains that he did not waive voluntarily his Miranda rights or consent voluntarily to the search of his cell phone. He also challenges the court's findings at sentencing that he was responsible for at least 700 grams of heroin and that he possessed a dangerous weapon. He notes that the jury convicted him of distributing a significantly smaller quantity of drugs and acquitted him of the firearms charge.

We cannot accept these contentions. Mr. Thurman's suppression arguments require us to re-evaluate the district court's credibility determinations. The court did not clearly err in crediting the officers' testimony that Mr. Thurman consented to their questioning and to the search of his phone. Furthermore, the court made proper findings of fact when applying the Sentencing Guidelines. Sentencing courts can consider conduct underlying an acquitted charge so long as that conduct is proven by a preponderance of the evidence. Accordingly, we affirm the judgment of the district court.

I. BACKGROUND

A.

In August 2013, Minnesota police officers tracked the movement of Courtney Williams from the west side of Chicago to Minnesota, where they arrested him with 489 grams of heroin hidden inside a spare tire. Williams told the authorities that Mr. Thurman had supplied him with the heroin in exchange for a $17, 000 down payment and $20, 000 of debt. Later that month, in cooperation with the police, Williams wore a wire to Mr. Thurman's house in Chicago, where he gave Mr. Thurman $10, 000 in partial payment of his debt. Williams continued to cooperate with authorities and arranged a controlled drug purchase the next month. Williams sent Mr. Thurman a text message with the number "150, " to which Mr. Thurman wrote "Yeap" and later responded with "Touchdown."1 The next day, Williams went to Mr. Thurman's house and exchanged $23, 500 for 148.5 grams of heroin and the satisfaction of his remaining debt. Law enforcement waited outside while Williams completed the transaction.

After confirming that Williams had purchased heroin inside, the officers forced entry into Mr. Thurman's house and executed a search warrant that was contingent on the completion of the controlled buy. They arrested Mr. Thurman and handcuffed him in the back of a police car. His girlfriend and son remained inside. While searching the basement, the officers found plastic bags, packaging tape, electronic scales, a safe with approximately $27, 000 in cash, and some of the money Williams had just exchanged. They did not discover any heroin. Mr. Thurman informed the police that there were two firearms in the house: a Glock .40 caliber handgun in a trash bag in the basement and a Bryco .380 caliber handgun in a bedroom closet upstairs. The officers discovered loaded magazines next to both guns; however, they could not recall consistently whether the guns themselves were loaded. When asked, Mr. Thurman told the officers that they could search the common areas of a nearby residential property which he owned. He refused, however, to sign a consent form and specifically instructed the officers not to search inside the apartments where his tenants lived. An officer wrote "refused to sign but consented" on the consent form.2

Law enforcement took Mr. Thurman to a Chicago office of the Bureau of Alcohol, Tobacco, Firearms and Explosives ("ATF") for questioning. Once inside the interview room, the agents removed Mr. Thurman's handcuffs and provided him with a Gatorade. According to the authorities, they advised Mr. Thurman of his Miranda rights, but he refused to sign an advice-of-rights form. Nevertheless, he indicated a desire to cooperate with them and proceeded to admit that he had sold drugs out of his house and owned two guns to protect his drug trade. During the interview, the agents conducted a search of Mr. Thurman's cell phone. The parties dispute whether Mr. Thurman verbally consented to this search, but they agree that he refused to sign a consent-to-search form. Two of the agents remembered Mr. Thurman showing them specific names and numbers in the phone corresponding to Williams, who was listed as "Skinny, " and his primary supplier, who was listed as "Meko."3 They also recalled Mr. Thurman admitting to having deleted text messages with Williams about their transaction earlier that day.

The agents eventually released Mr. Thurman on the understanding that he would return the next day to continue cooperating. They retained his cell phone and expected him to initiate recorded calls with his supplier when he returned. Mr. Thurman asked whether he should bring an attorney with him, and the agents said that it was his choice. Mr. Thurman did not return as expected. Instead, his attorney called to say that Mr. Thurman would not be cooperating any further. Law enforcement subsequently conducted a forensic examination of his cell phone and reconstructed the recently deleted text messages between Mr. Thurman and Williams.

B.

In September 2015, Mr. Thurman was charged in a three count superseding indictment with (1) knowingly using and maintaining a residence for the purpose of distributing a controlled substance, in violation of 21 U.S.C. § 856(a)(1); (2) knowingly and intentionally distributing 100 grams or more of a mixture and substance containing a detectable amount of heroin, in violation of 21 U.S.C. § 841(a)(1); and (3) knowingly possessing a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A).

Before trial, he filed a motion to suppress any evidence obtained from the search of his cell phone and a motion to suppress any incriminating statements he made during the post-arrest interrogation.4 He attached copies of the consent-to-search form for his cell phone and the advice-of-rights form, both of which reflected his refusal to sign. He also submitted an affidavit averring that he "refused to give consent to the requested warrantless searches" and "refused to provide any information to law enforcement agents without the presence of an attorney."5

The district court held a hearing on the motions. At the hearing, the Government presented substantially consistent testimony from three of the agents involved in Mr. Thurman's arrest and questioning. They all testified that Mr. Thurman refused to sign any forms but verbally agreed to the limited search of his second property, to the search of his cell phone, and to their questioning without an attorney present. The agents did not record their interactions with Mr. Thurman.6The defense called two law enforcement witnesses. They provided substantially similar testimony to that of the prosecution's witnesses. Mr. Thurman did not testify at the hearing, instead relying on his affidavit.

The court denied both motions. With respect to the motion to suppress the incriminating statements, the court concluded that Mr. Thurman did not unambiguously invoke his Miranda rights but rather impliedly waived them. The court credited the testimony of the agents, whom it deemed "credible based on their demeanor and the consistency of their testimony."7Accordingly, the court found that Mr. Thurman had spoken freely during the interview with a full understanding of his rights and in an apparent...

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