United States v. Willie Mitchell ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-4138
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
WILLIE MITCHELL,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Charleston. David C. Norton, District Judge.
(2:10-cr-00562-DCN-1)
Submitted: November 1, 2012 Decided: March 15, 2013
Before GREGORY, SHEDD, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Francis J. Cornely, CORNELY LAW FIRM, Charleston, South
Carolina, for Appellant. Robert Nicholas Bianchi, OFFICE OF THE
UNITED STATES ATTORNEY, Charleston, South Carolina, for
Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie Mitchell was charged in a three-count
indictment with: (1) being a felon in possession of a firearm,
18 U.S.C. § 922(g)(1) (2006) (Count 1); (2) possession with
intent to distribute crack cocaine, 21 U.S.C. § 841(a) (2006)
(Count 2); and (3) possession of a firearm in furtherance of a
drug trafficking offense, 18 U.S.C. § 924(c)(1)(A) (2006) (Count
3). Mitchell filed motions to suppress both his statements and
evidence seized at the time of his arrest. Following separate
hearings, the district court denied both motions. Mitchell
subsequently entered into a plea agreement with the Government
in which he agreed to plead guilty to Counts 1 and 2. Mitchell
also agreed that the plea agreement constituted an Information
for purposes of 21 U.S.C. § 851 (2006), thereby subjecting him
to increased punishment based on three prior felony drug
offenses identified in the agreement. The district court
sentenced Mitchell to a total of 188 months imprisonment.
Mitchell noted a timely appeal.
Mitchell’s attorney has filed a brief in accordance
with Anders v. California, 386 U.S. 738 (1967), in which he
asserts that there are no meritorious issues for appeal, but
questions the district court’s rulings on Mitchell’s suppression
motions. Mitchell has filed a supplemental pro se brief in
which he also challenges the denial of his suppression motions.
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Although the plea agreement makes no mention of the suppression
motions, we find that Mitchell arguably preserved those issues
for appeal.
The facts underlying Mitchell’s arrest and indictment
are as follows. In December 2009, North Charleston Police
narcotics detectives received a tip that illegal drug activity
was taking place at 2321 Kent Avenue; based on the tip, the
detectives conducted a search of the trash can at the curb
outside the residence and found several items that tested
positive for cocaine and marijuana. A search warrant was
obtained based on that evidence.
When the warrant was executed, detectives found
Mitchell, Kenyatta Thompson, and five juveniles inside the
residence. Detectives also recovered a stolen handgun, a
quantity of both cocaine and crack, a digital scale, pyrex
dishes containing cocaine residue, a microwave oven containing
cocaine residue, a large sum of cash, and documents bearing
Mitchell’s name. After being advised of his Miranda rights,
Mitchell signed a statement admitting ownership of the drugs and
guns.
In his motion to suppress the evidence seized during
the search, Mitchell claimed that the search warrant was not
based on sufficient probable cause because the trash can was
accessible to passersby, and that the officers entered his home
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without a warrant in hand (the warrant arrived approximately one
hour after the detectives began the search).
At the hearing on Mitchell’s motion, Detective Jamel
Foster testified that the trash can was collected from outside
the fence surrounding the yard at 2321 Kent Avenue. Foster
stated that there was a garage in the back yard and that there
was a separate trash can alongside that building, inside the
fence. That trash can was not searched. Prior to obtaining the
warrant, Foster checked the property tax records for 2321 Kent
Avenue to confirm that the garage did not have a different
address. Along with the items that tested positive for
marijuana and cocaine, Kenyatta Thompson’s mail was found in the
trash can that was searched.
Mitchell argued that the trash can pulled by the
detectives was located in a public place and was accessible to
people at a nearby bus stop, among others. According to
Mitchell, that information should have been disclosed in the
application for a search warrant. However, we find that such
information was unnecessary. Mitchell’s reliance on United
States v. Tate, 524 F.3d 449 (4th Cir. 2008), is misplaced. In
Tate, the evidence suggested that the officer applying for the
search warrant intentionally omitted facts about the location of
the trash because the trash was not actually abandoned (i.e.,
placed at the curb, as in the instant case) but was located
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within the fenced-in backyard, near the home. This court found
that Tate made a “substantial preliminary showing that [the
officer] knowingly and intentionally, or with reckless disregard
for the truth, omitted a material statement in the affidavit he
offered in support of the warrant to search Tate’s residence.”
Id. at 457. This court vacated Tate’s conviction and remanded
for a Franks * hearing. By contrast, Mitchell failed to show
that the officers intentionally or recklessly withheld a
material fact — the proximity of a bus stop — when applying for
the warrant.
The district court also properly found that Mitchell’s
challenge to the execution of the warrant was without merit.
The Fourth Amendment does not require that a warrant be served
on the owner of the property prior to the search. See Groh v.
Ramirez, 540 U.S. 551, 562 n.5 (2004) (“[N]either the Fourth
Amendment nor [Fed. R. Crim. P. 41] requires the executing
officer to serve the warrant on the owner before commencing the
search”).
*
Franks v. Delaware, 438 U.S. 154, 155-56 (1978) (holding
that, where “a defendant makes a substantial preliminary showing
that a false statement knowingly and intentionally, or with
reckless disregard for the truth, was included by the affiant in
the warrant affidavit, and if the allegedly false statement is
necessary to the finding of probable cause, the Fourth Amendment
requires that a hearing be held at the defendant’s request”).
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Mitchell also filed a motion to suppress his
statements made at the time of his arrest on the ground that the
statements were not made freely and voluntarily. Specifically,
Mitchell claimed that, at the time of the search, the officers
told him and Thompson (his girlfriend) that if he did not claim
responsibility for the drugs and gun, the Department of Social
Services would take Thompson’s children from her, possibly
permanently.
A statement will be deemed involuntary if the
accused’s “will has been overborne or his capacity for self-
determination critically impaired.” United States v. Pelton,
835 F.2d 1067, 1071 (4th Cir. 1987) (internal quotation marks
and citation omitted). “[C]oercive police activity is a
necessary predicate to the finding that a confession is not
‘voluntary’ within the meaning of the Due Process Clause of the
Fourteenth Amendment.” Colorado v. Connelly, 479 U.S. 157, 167
(1986). Whether a confession is voluntary must be determined by
examining “the totality of all the surrounding circumstances —
both the characteristics of the accused and the details of the
interrogation.” Schneckloth v. Bustamonte, 412 U.S. 218, 226
(1973). Relevant considerations include the age, education, and
intelligence of the accused, the length and conditions of
detention, and the duration and frequency of questioning. Id.6
Mitchell was thirty-five years old, a high school
graduate, and had a lengthy criminal history (his criminal
history category, as determined in the presentence report, was
VI). Although the officers present denied making any threats
to Mitchell or Thompson, even if they had, “[t]he mere existence
of threats . . . implied promises, improper influence, or other
coercive police activity . . . does not automatically render a
confession involuntary. . . . Truthful statements about [the
Defendant’s] predicament are not the type of coercion that
threatens to render a statement involuntary.” United States v.
Braxton, 112 F.3d 777, 780, 782 (4th Cir. 1997). Indeed, given
the presence of drugs, firearms, and evidence of drug
manufacturing in the home, Thompson could have lost custody of
her children had the activity been attributed to her.
In light of the above, we conclude that the district
court did not err in denying Mitchell’s suppression motions. In
accordance with Anders, we have reviewed the entire record in
this case and have found no meritorious issues for appeal. We
therefore affirm the district court’s judgment. This court
requires that counsel inform Mitchell, in writing, of his right
to petition the Supreme Court of the United States for further
review. If Mitchell requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move in this court at that time for leave to
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withdraw from representation. Counsel’s motion must state that
a copy thereof was served on Mitchell. Finally, we dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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