Abraham v. State of Kansas ( 2003 )


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  •                                                                            F I L E D
    United States Court of Appeals
    Tenth Circuit
    UNITED STATES COURT OF APPEALS
    JUN 10 2003
    TENTH CIRCUIT
    PATRICK FISHER
    Clerk
    BRIAN M. ABRAHAM,
    Petitioner-Appellant,
    v.                                                   No. 02-3305
    (D.C. No. 00-CV-3352-DES)
    STATE OF KANSAS,                                       (D. Kan.)
    Respondent-Appellee.
    ORDER AND JUDGMENT            *
    Before EBEL , HENRY , and MURPHY , Circuit Judges.
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist the determination of
    this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
    therefore ordered submitted without oral argument.
    Petitioner-appellant Brian M. Abraham, who was convicted in Kansas state
    court of drug-related offenses, appeals the district court’s denial of his petition
    *
    This order and judgment is not binding precedent, except under the
    doctrines of law of the case, res judicata, and collateral estoppel. The court
    generally disfavors the citation of orders and judgments; nevertheless, an order
    and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
    for a writ of habeas corpus filed pursuant to 
    28 U.S.C. § 2254
    . This court granted
    a certificate of appealability (COA) on the following issues: (1) whether
    law-enforcement officers obtained an incriminating statement from Mr. Abraham
    in violation of his rights under   Miranda v. Arizona , 
    384 U.S. 436
     (1966);
    (2) whether, assuming that the record demonstrates a    Miranda violation, the
    admission of the statement at trial was harmless error; and (3) whether the State
    presented sufficient evidence at trial to support a conviction of possession of
    heroin with the intent to sell. Exercising our jurisdiction over these three issues,
    see Miller-El v. Cockrell , 
    123 S. Ct. 1029
    , 1039 (2003), we affirm the judgment
    of the district court.
    BACKGROUND
    Mr. Abraham, an individual with an extensive drug history, began serving
    as a confidential informant for Kansas law-enforcement officers shortly after
    being arrested with a large quantity of marijuana in his vehicle. He developed
    a particularly close working relationship with Kansas Highway Patrol Trooper
    Dan Meyer. In October 1995, Trooper Meyer, Mr. Abraham, and other officers
    arranged for a controlled sale of methamphetamine to suspects in Wichita,
    Kansas, identified by Mr. Abraham. Mr. Abraham’s role was to assuage the
    suspects’ doubts about the officer posing as a methamphetamine dealer, Special
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    Agent Brandau of the Kansas Bureau of Investigations. He was not to have direct
    involvement in the sale, so that he could serve as a credible witness in the case.
    On the day of the sale, Mr. Abraham and Agent Brandau met in
    Mr. Abraham’s motel room, then drove in Mr. Abraham’s Jeep to the suspects’
    residence. While Agent Brandau traveled with two of the suspects to a second
    location to conduct the transaction, Mr. Abraham stayed at the residence with the
    remaining suspect. The controlled buy took place as planned. Agent Brandau
    arrested the suspects at the purchase location and, back at the residence, the third
    suspect was arrested. At Mr. Abraham’s request, the officers attempted to
    conceal his cooperation by arresting him with no intention of charging him with
    a crime. Mr. Abraham and the other suspects were taken to the sheriff’s
    department. Mr. Abraham’s Jeep remained parked in the street in front of the
    residence.
    Meanwhile, Agent Brandau and other officers searched the suspects’
    residence pursuant to a search warrant. Additionally, an officer looked into the
    Jeep and observed ZigZag rolling papers within the vehicle. The officer then
    conducted a full search of the vehicle and discovered a small amount of marijuana
    and a set of electronic scales. The discovery of these items raised a need to prove
    that Mr. Abraham was “clean,” R., Tr. of Suppression Hr’g at 26-27, 29: that is,
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    not involved in narcotics activities unconnected with his confidential informant
    efforts, id. at 37-38.   1
    At the sheriff’s department, Mr. Abraham and the other suspects were
    placed in separate interview rooms. Mr. Abraham understood that he was being
    held only to give the impression that he and the other suspects were given similar
    treatment. Mr. Abraham was not given         Miranda warnings. After the discovery
    of the items in the Jeep, however, the officers determined that Mr. Abraham had
    to remain at the station until they could determine whether he was “clean.”
    An officer was dispatched to question Mr. Abraham about the items and seek his
    consent to a search of his motel room. When asked about the scales,
    Mr. Abraham became nervous and asked to talk to Trooper Meyer.          Id. at 64.
    Trooper Meyer joined the other officer in the interview room and asked
    Mr. Abraham for his consent to a search. Mr. Abraham was told that he couldn’t
    leave until the officers made sure he was “clean.”       Id. at 37. Mr. Abraham
    refused to give his consent, but asked for an opportunity to speak to Meyer alone.
    The other officer left, closing the door. Mr. Abraham told Meyer that “he had
    some stuff in his room that he didn’t want [the officers] to find.”    Id. at 30.
    Meyer asked, “what do you mean by stuff[?]”          Id. Mr. Abraham responded
    1
    The transcripts of the suppression hearing and preliminary hearing were
    admitted as substantive evidence at Mr. Abraham’s bench trial. R., Tr. of Bench
    Trial, at 2.
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    that he was addicted to heroin and “stated there was a quantity of heroin and
    a . . . large quantity of cash in excess of $10,000 in his motel room.”   Id.
    The officers obtained a search warrant of Mr. Abraham’s motel room,
    basing probable cause on a listing of the items found in the Jeep and
    Mr. Abraham’s admission that he kept heroin in his room. As a result of the
    search, officers found 4.19 grams of heroin, 1.35 grams of cocaine, approximately
    $10,000 in cash, and drug-related paraphernalia. Mr. Abraham was then charged
    with one count of possession of heroin, one count of possession of heroin with
    intent to sell, one count of possession of cocaine, and two counts of no drug
    tax stamp.
    The state trial court denied Mr. Abraham’s pre-trial motion to suppress his
    statement, along with the evidence obtained from the search of his Jeep and motel
    room. After a bench trial, Mr. Abraham was convicted of all charged crimes
    except simple possession of heroin. The Kansas Court of Appeals affirmed the
    conviction; the Kansas Supreme Court denied review. He then unsuccessfully
    sought federal habeas relief and this appeal followed.
    DISCUSSION
    A § 2254 petitioner may not receive relief unless the state court’s decision
    was: “(1) . . . contrary to, or involved an unreasonable application of, clearly
    established Federal law . . . ; or (2) based on an unreasonable determination of the
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    facts in light of the evidence presented in the State court proceeding.” 
    28 U.S.C. §§ 2254
    (d)(1), (2). “Factual findings of a state court are presumed correct and
    can be overturned by this Court only by a showing of clear and convincing
    evidence.” Fields v. Gibson, 
    277 F.3d 1203
    , 1212 (10th Cir.),            cert. denied ,
    
    123 S. Ct. 533
     (2002). As for the district court’s ruling, we review its legal basis
    de novo and its factual findings, if any, under the clearly erroneous standard.
    See Hooker v. Mullin, 
    293 F.3d 1232
    , 1237 (10th Cir. 2002),             cert denied ,
    
    123 S. Ct. 975
     (2003).
    A.      Miranda violation
    “‘Miranda requires that procedural safeguards be administered to a criminal
    suspect prior to ‘custodial interrogation.’”          United States v. Perdue,   
    8 F.3d 1455
    ,
    1463 (1993) (quoting      Miranda, 
    384 U.S. at 444
    ). A statement taken during
    a custodial interrogation in violation of the         Miranda rule cannot be admitted at
    trial to establish the defendant’s guilt.       Berkemer v. McCarty , 
    468 U.S. 420
    , 429
    (1984). Further, this court has recently held that the physical fruits of a             Miranda
    violation must also be suppressed.          United States v. Patane , 
    304 F.3d 1013
    , 1029
    (10th Cir. 2002), cert. granted, 
    71 U.S.L.W. 3350
    , 3569, 3570 (U.S. Apr. 21,
    2003) (No. 02-1183).
    Before Miranda is applicable, however, two requirements must be met:
    “the suspect must be in ‘custody,’ and the questioning must meet the legal
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    definition of ‘interrogation.’”    Perdue, 
    8 F.3d at 1463
    . “[A] person has been
    taken into police custody whenever he ‘has been deprived of his freedom of
    action in any significant way.’”    
    Id.
     (quoting Miranda , 
    384 U.S. at 444
    ). The
    “relevant inquiry” with regard to custody is “‘how a reasonable man in the
    suspect’s position would have understood his situation.’”       
    Id.
     (quoting Berkemer ,
    
    468 U.S. at 442
    ). Concerning the second requirement, “interrogation includes
    ‘any words or actions on the part of the police . . . that the police should know are
    reasonably likely to elicit an incriminating response from the suspect.’”     
    Id.
    (quoting Rhode Island v. Innis , 
    446 U.S. 291
    , 301 (1980) (footnotes omitted)).
    Here, the Kansas Court of Appeals correctly identified the controlling legal
    standard. Its rejection of Mr. Abraham’s claim that his statement was obtained in
    violation of his Miranda rights was based on agreement with the trial court’s
    subsidiary factual determinations that, under the circumstances of Mr. Abraham’s
    sham arrest he was not in custody and not interrogated, and therefore not entitled
    to a Miranda warning. R., Petitioner’s Ex. I at 5. Like the district court, we
    conclude that the state resolution of this issue was based on an unreasonable
    determination of the facts in light of the evidence presented.
    As to the custodial prong of the   Miranda analysis, we agree with the
    district court’s determination that, from the time the officers discovered the items
    in Mr. Abraham’s Jeep, he was not free to leave the sheriff’s department.
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    Although Mr. Abraham was not in custody when he was first taken to the sheriff’s
    department, his situation changed. After the search of the Jeep, Mr. Abraham was
    no longer free to leave. Indeed, an officer directly told him that “we can’t let you
    go because we have to make sure you’re clean.” R., Tr. of Suppression Hr’g
    at 36-37. As a factual matter, Mr. Abraham’s status at the sheriff’s department
    changed from consensual to custodial when he was informed that he couldn’t
    leave until officers obtained more information.
    Moreover, we agree with the district court that the Kansas Court of
    Appeals’ determination on the   Miranda interrogation prong was factually
    erroneous. During the initial stage of his custodial status, Mr. Abraham was not
    interrogated. The act of asking a suspect for consent to search does not constitute
    an interrogation because such a request “cannot be said to lead to an incriminating
    response.” United States v. Gay , 
    774 F.2d 368
    , 379 (10th Cir. 1985). Further,
    Mr. Abraham’s statement to Trooper Meyer about the “stuff” in his room was
    unprovoked and voluntary. It was thus not the result of interrogation requiring
    Miranda warnings. See Miranda , 
    384 U.S. at 478
    .
    Trooper Meyer’s question regarding the meaning of “stuff,” however, was
    certainly designed to elicit information on contraband in Mr. Abraham’s motel
    room. As a consequence, Mr. Abraham’s inculpatory response was the product of
    interrogation. Accordingly, the two   Miranda requirements are met and the state
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    court’s finding to the contrary is clearly erroneous. The statement was obtained
    in violation of Miranda and its admission at trial amounted to an error of
    constitutional magnitude.   See Dickerson v. United States , 
    530 U.S. 428
    , 438,
    444 (2000).
    B.     Harmless error
    Although we have determined that the state court erred in admitting
    Mr. Abraham’s statement at trial, this conclusion, standing alone, does not merit
    federal habeas relief. We may grant federal habeas only if the error “had
    substantial and injurious effect or influence” on the outcome of a petitioner’s
    case. Brecht v. Abrahamson , 
    507 U.S. 619
    , 637 (1993) (quotation omitted);
    Herrera v. Lemaster , 
    301 F.3d 1192
    , 1198, 1200 (10th Cir. 2002),    cert. denied ,
    
    123 S. Ct. 1266
     (2003). A petitioner must establish that the error “resulted in
    actual prejudice.”   Brecht , 
    507 U.S. at 637
     (quotation omitted). While we reject
    the district court’s reasoning on this issue, we agree with its conclusion that
    admission of the un- Mirandized statement amounted to harmless error.
    According to the district court, evidence derived from a non-coercive
    interview which technically violated   Miranda need not be suppressed. Therefore,
    the state trial court properly admitted into evidence the narcotics and cash seized
    from Mr. Abraham’s motel room, significantly diminishing the import of
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    Mr. Abraham’s statement. This conclusion, however, was reached without the
    benefit of our recent decision in      United States v. Patane , 
    304 F.3d 1013
    . In that
    case, we explicitly held that the physical fruits of a      Miranda violation must be
    excluded from evidence, because “suppression of the statement alone” does not
    “provide[] deterrence sufficient to protect citizens’ constitutional privilege
    against self-incrimination.”        
    Id. at 1028-29
    . The Patane holding is controlling in
    this case. In determining that the admission of the un-        Mirandized statement was
    harmless because the fruits of that statement were properly admitted, the federal
    district court clearly erred.   2
    Nevertheless, we conclude that the admission of the statement amounted to
    harmless error. The Supreme Court has adopted “the ultimate or inevitable
    discovery exception to the exclusionary rule.”           Nix v. Williams , 
    467 U.S. 431
    , 444
    (1984). Under this doctrine, “if evidence seized unlawfully would have been
    inevitably discovered pursuant to a legal search, the evidence is admissible.”
    United States v. Haro-Salcedo        , 
    107 F.3d 769
    , 773 (10th Cir. 1997).
    Here, the drugs and money would have been inevitably discovered
    even without Trooper Meyer’s question and Mr. Abraham’s response. Law
    2
    As noted previously, the United States Supreme Court has granted certiorari
    to review our Patane ruling. However, that need not hold up this order and
    judgment because, even if the Supreme Court reverses our holding in Patane , our
    disposition in this case would not be affected.
    -10-
    enforcement officials knew that Mr. Abraham had an extensive drug history, that
    ZigZag papers were found in his car, that electronic scales were found in his car,
    and that he had volunteered that he had “stuff” in his motel room which he did
    not want the officers to find. Under these circumstances, it was virtually
    inevitable that the police would have obtained a search warrant to search Mr.
    Abraham’s motel room and thereby discovered the drugs and money. Thus, the
    additional introduction of Mr. Abraham’s statement would not change the
    outcome of his trial. Accordingly, we hold that the error in admitting Mr.
    Abraham’s inculpatory statement was harmless.
    C.     Sufficiency of the evidence
    Mr. Abraham also challenges the sufficiency of the evidence supporting his
    conviction of possession of heroin with the intent to sell. The appropriate inquiry
    is “whether, after viewing the evidence in the light most favorable to the
    prosecution, any rational trier of fact could have found the essential elements of
    the crime beyond a reasonable doubt.”   Jackson v. Virginia , 
    443 U.S. 307
    , 319
    (1979). Our review of the evidence produced at trial reflects that the district
    court was correct in concluding that a rational factfinder could have found that
    Mr. Abraham intended to sell the heroin seized from his motel room. Agent
    Brandau, a trained narcotics investigator, testified that, based on his experience
    and training, the amount of drugs and money–all found in the motel room of a
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    person with a lengthy drug history and no known means of employment–showed
    that the heroin was for resale, rather than personal use. Specifically, Agent
    Brandau stated that the amount of heroin, 4.19 grams, was “a significant amount
    of heroin for individual dose usage, especially when they sell it commonly in dose
    units, a small one injection amount.” R., Tr. of Prelim. Hr’g at 53. Mr. Abraham
    testified that the heroin was for his personal use only.
    This court must presume that the trial court resolved conflicting testimony
    in favor of the prosecution.   Wright v. West , 
    505 U.S. 277
    , 296-97 (1992).
    A rational trier of fact, when considering the evidence in favor of the prosecution,
    certainly could have found the crime of possession of heroin with intent to sell
    was proven beyond a reasonable doubt.
    -12-
    CONCLUSION
    The judgment of the United States District Court for the District of Kansas
    is AFFIRMED.
    Entered for the Court
    David M. Ebel
    Circuit Judge
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