United States v. Barefield , 260 F. App'x 575 ( 2008 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4739
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CORTEZ L. BAREFIELD,
Defendant - Appellant.
Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin, Chief
District Judge. (2:06-cr-00055-2)
Submitted: December 14, 2007 Decided: January 7, 2008
Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John R. McGhee, Jr., KAY CASTO & CHANEY, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States Attorney,
John J. Frail, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cortez L. Barefield appeals his conviction, entered
pursuant to his guilty plea to conspiracy to distribute fifty grams
or more of cocaine base. On appeal, he challenges the denial of
his motions to suppress videotape evidence and his statements to
the police. We affirm.
First, Barefield asserts that the district court erred in
denying his motion to suppress under State v. Mullens, 650 S.E.2d
169, 190 (W. Va. 2007), which held that the West Virginia State
Constitution prohibits the police from sending an informant into
the home of another person to surreptitiously use an electronic
surveillance device without a warrant. However, whether or not a
seizure violates state law is irrelevant to the determination of
a motion to suppress in federal court. United States v. Van Metre,
150 F.3d 339, 347 (4th Cir. 1998). As Mullens concedes, both
federal statutes and federal constitutional law permit officials to
place an electronic surveillance device on a consenting informant
for the purpose of recording communications with a third-party
suspect, even in the absence of a warrant. Mullens, 650 S.E.2d at
174-78; see also United States v. White, 401 U.S. 745, 749 (1971)
(holding that no warrant is required when “secret agent” working
for the Government purchases narcotics from the accused and records
the exchange). Accordingly, Barefield’s contentions are without
merit.
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Second, Barefield asserts that the district court erred
in denying his motion to suppress statements given to the police
while he was in police custody and prior to any Miranda warnings.
However, Barefield’s conclusion that he was in custody at the time
of his statements is belied by the record. Two police officers
testified that Barefield had never been arrested, had been
repeatedly told that he was free to leave, and was never handcuffed
or restrained in any way. While Barefield testified differently,
the district court found him to not be a credible witness, and we
will not second-guess the district court’s credibility
determination. See United States v. Saunders, 886 F.2d 56, 60 (4th
Cir. 1989). Because Barefield was not in police custody at the
time of his statements, no Miranda warnings were required, and the
district court therefore correctly denied his motion to suppress.
See United States v. Leshuk, 65 F.3d 1105, 1108 (4th Cir. 1995)
(holding that a suspect is in custody if he has been formally
arrested or questioned under circumstances in which his freedom of
action is significantly curtailed).
Based on the foregoing, we affirm Barefield’s conviction.
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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