United States v. Dean, Victor A. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3627
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
V ICTOR A. D EAN,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 06 CR 50044-5—Philip G. Reinhard, Judge.
A RGUED S EPTEMBER 10, 2008—D ECIDED D ECEMBER 17, 2008
Before C OFFEY, R IPPLE, and M ANION, Circuit Judges.
C OFFEY, Circuit Judge. On June 7, 2006, Detective Jason
Cebuhar, a 12-year veteran of the Rockford, Illinois, police
department, received information that Victor Dean had
purchased guns that subsequently proved to have been
stolen during a burglary Officer Cebuhar was investigat-
ing. The detective also determined from the police
records that Dean had three outstanding arrest warrants.
Cebuhar and several other officers went looking for Dean
2 No. 07-3627
at his residence, and shortly after arrival at his home,
Cebuhar heard a “crashing sound” from the opposite
side of the house and immediately thereafter spotted
Dean hiding in the bushes. Dean was arrested and there-
after a search of Dean’s house uncovered the weapons
as well as heroin. Dean was charged with one count of
possession of a firearm by a felon. See 18 U.S.C. § 922(g)(1).
At a pretrial suppression hearing, Cebuhar and another
officer, Brad Stien, testified that Dean had orally con-
sented to the search that uncovered the firearms; on the
other hand Dean testified that he never consented. The
trial court judge found the testimony of the officers to be
more credible than Dean’s and denied Dean’s motion to
suppress. After the court agreed to Dean’s request for a
replacement for his attorney, Donald Sullivan, Dean moved
to reconsider the motion to suppress because, he claimed,
Sullivan’s performance had been deficient. After the
district court denied the motion to reconsider, Dean
entered a conditional guilty plea in order that he might
preserve for appeal the district court’s ruling on the
motion to suppress and the motion to reconsider.
On appeal Dean argues that the district court’s credibil-
ity findings were an abuse of discretion for the following
reasons: (1) according to Dean, Cebuhar and Stien each
had a motive to testify falsely about consent because they
were employed in the same police department and wanted
to ensure that the court would uphold the search, (2) the
officers’ failure to obtain written consent for the search
undermined their credibility, (3) Dean was unlikely to
have consented knowing that heroin would be found,
No. 07-3627 3
and (4) two purportedly unbiased witnesses supported
Dean’s contention that he did not break a window during
the search contrary to the officers’ contention that he did.
Dean also argues that the district court’s denial of his
motion to reconsider was an abuse of discretion for the
following reasons: (1) Attorney Sullivan’s pro forma
written submissions were cursory and ill-prepared,
(2) Sullivan failed to vigorously cross-examine Cebuhar’s
explanation for his not seeking written consent, (3) in
arguing the motion, for reasons unexplained, Sullivan
did not refer to the officers’ failure to obtain written
consent nor their motive to lie, and (4) the district court
agreed to Dean’s request to replace Sullivan. After re-
viewing the record we disagree with Dean’s arguments.
The district court did not abuse its discretion when affirm-
ing its prior ruling.
At the suppression hearing, Cebuhar testified to the
following version of events. After Dean had been appre-
hended, Cebuhar and Stien walked suspect Dean to a
squad car, and Stien asked Dean if anyone else was in the
house. Cebuhar then told Dean that he and the other
officers “were here for the guns,” and Dean replied that
the officers could retrieve the guns from the front
closet. The keys Cebuhar obtained from Dean did not
unlock the house, so another officer entered the residence
through the broken window and recovered the weapons.
While in custody, Dean cooperated with the officers,
and Cebuhar observed a small laceration on one of
Dean’s legs. On cross-examination, Cebuhar stated that he
observed broken glass outside the broken window. Attor-
ney Sullivan also asked Cebuhar why he had not ob-
4 No. 07-3627
tained written consent to search for the guns, and Cebuhar
replied that Dean had tried to escape, and he had provided
specific information about the guns, and furthermore
he had given his oral consent to search for them. Cebuhar
added that the officers believed that the oral consent given
was sufficient and Sullivan did not further probe
Cebuhar’s explanation for not getting written consent.
Patrol Officer Stien, a six-year veteran of the Rockford,
Illinois, police department, testified to the following
version of events. As he approached the residence,
he heard a disturbance on the west side of the house
that he said sounded like either “glass breaking” or a “door
opening.” As Stien and Cebuhar walked Dean to the
squad car after Dean had been apprehended, Stien asked
Dean if anyone else was in the house, and Dean replied
no. Cebuhar asked Dean about the stolen rifles, and
Dean granted the officers permission to retrieve the
guns from the front closet. Stien also mentioned that the
house had a broken window and that Dean cooperated
with him, and also stated that suspect Dean had a cut
on one of his legs. Attorney Sullivan cross-examined
Stien about the nature of the sound he heard as he ap-
proached the residence and also attempted unsuccess-
fully to get Officer Stien to say that Dean refused to
consent to the search.
Detective John Wassner testified that he heard the
breaking of glass on the west side of the residence
shortly before Dean’s apprehension. Wassner further
mentioned that, after Cebuhar had informed him that
Dean consented to the search, Wassner avoided shards of
No. 07-3627 5
glass in an attempt to enter the house through the broken
window on the west side of the residence.
Dean called Joseph Taylor, a window repairman who
said he had never met Dean. Taylor testified that on the
Saturday before the hearing he had inspected Dean’s
residence and concluded that none of the windows on
the west side had recently been broken. A friend of
Dean’s, Melvin Bradley, testified that he secured Dean’s
house after his arrest and did not observe any broken
window. Finally, Dean testified that he climbed through
a window on the west side without breaking it; after he
was caught, Dean said, one of the officers said he had
come for the guns, but Dean made no response to the
officer’s statement. On cross-examination Dean main-
tained that he injured his leg when he fell while running
from his residence and not from climbing through a
window of broken glass. He agreed that he had cooperated
with the police throughout the day of his arrest, acknowl-
edged his multiple felony convictions, and also admitted
that at the time of his arrest he knew about the three
guns in his closet and the heroin elsewhere in his resi-
dence. On redirect examination, Dean mentioned that he
had experience with the police and had learned that
officers needed permission to search his premises if they
did not have a warrant.
In arguing Dean’s motion, Sullivan insisted that the
officers’ testimony was not credible because two wit-
nesses testified that no window in Dean’s residence
had recently been damaged. Sullivan also contended that
Dean, who was familiar with the law of search and seizure,
6 No. 07-3627
would have known that the police could not enter his
house once he was outside.
The trial judge was unsure whether Dean had broken a
window as he left his house, but the court did make a
finding that the officers had heard either aluminum
crashing or a window breaking and ultimately con-
cluded that the condition of the window did not affect
the officers’ credibility. As to whether Dean had con-
sented to the search, the court credited the testimony of
Officers Cebuhar and Stien; the court reasoned that the
two witnesses were experienced officers, their different
positions in the police department rendered unlikely a
collaborative effort to fabricate a story, and their testi-
mony had appeared to be truthful. In contrast, the court
reasoned that Dean’s prior felony convictions, his strong
incentive to concoct a story, and the injury he sustained
on the day of his arrest seemed to undermine his credibil-
ity. The court held that the government had satisfied
its burden of proof and established that Dean consented
to the search.
Following the suppression hearing the district court
granted Dean’s request for a substitute appointed lawyer
because Dean stated that he had lost confidence in
Sullivan and irreconcilable communication difficulties
persisted between them. Dean then moved for recon-
sideration of the ruling on his motion to suppress be-
cause, Dean argued, he was prejudiced by Sullivan’s
handling of the matter. The court denied the motion,
stating that Sullivan had presented witnesses supporting
Dean’s version of events. Dean then entered a conditional
No. 07-3627 7
guilty plea and was found guilty of possessing the weap-
ons and was sentenced to a term of 120 months’ imprison-
ment.
On appeal Dean argues that the district court’s reasoning
in support of its finding that he consented to the search is
flawed for the following reasons: (1) Cebuhar and Stien
had motive to lie about consent because they were em-
ployed in the same police department and wanted to
ensure that the court would uphold the search, (2) the
officers’ failure to obtain written consent to search for
the guns undermined their credibility, (3) Dean was
unlikely to have consented knowing that heroin would
also have been found, and (4) two purportedly unbiased
witnesses supported Dean’s contention that he did not
break a window. As to the fourth reason, however, Dean
acknowledges that the window’s condition does not
have a direct connection to the credibility of the officers’
contention that he consented to the search.
It is well settled that the government may conduct a
warrantless search if verbal consent is given. Schneckloth v.
Bustamonte, 412 U.S. 218, 222 (1973); United States v. Renken,
474 F.3d 984, 986-87 (7th Cir. 2007); United States v. Villegas,
388 F.3d 317, 324 (7th Cir. 2004). The issue here is one of
credibility; the two officers testified that Dean had given
oral consent; Dean said he did not. We defer to a district
court’s credibility findings made during a suppression
hearing unless they are clearly erroneous. United States v.
Groves, 530 F.3d 506, 510 (7th Cir. 2008); United States v.
Bernitt, 392 F.3d 873, 878 (7th Cir. 2004). Indeed, we will
uphold the district court’s choice of whom to believe
8 No. 07-3627
unless the court credited exceedingly improbable testi-
mony because the trial court is in the best position to
make that judgment. United States v. Montes, 381 F.3d 631,
637 (7th Cir. 2004); United States v. Thornton, 197 F.3d 241,
247 (7th Cir. 1999). As we have said, “[w]e do not second-
guess the sentencing judge’s credibility determinations
because he or she has had the best opportunity to observe
the verbal and non-verbal behavior of the witnesses
focusing on the subject’s reactions and responses to the
interrogatories, their facial expressions, attitudes, tone
of voice, eye contact, posture and body movements, as well
as confused or nervous speech patterns in contrast
with merely looking at the cold pages of an appellate
record.” United States v. Woods, 233 F.3d 482, 484 (7th Cir.
2000) (internal quotation marks omitted).
In this case the district court credited the two officers
for many reasons: (1) they were experienced officers
from different divisions and would thus be less likely to
collaborate and fabricate a story, and (2) they had appeared
to testify truthfully. And, indeed, the record provides no
evidence that they had testified untruthfully at any time
before the hearing. In contrast, the court reasoned that
Dean’s prior felony convictions, his strong incentive to
concoct a story, and his leg injury undermined his cred-
ibility. Altogether, it was perfectly rational for the
district court to have believed that Dean’s desire to avoid
another conviction provided a greater motive for him
to fabricate a story than any motive that could be attrib-
uted to the officers. See United States v. Bass, 325 F.3d 847,
849-50 (7th Cir. 2003) (upholding district court’s finding
that officer’s testimony was more credible than a felon’s).
The rest of Dean’s arguments fail because none of them
No. 07-3627 9
rises to the level of making the officers’ story exceedingly
improbable. Cebuhar’s explanation that Dean’s oral
consent in front of two officers rendered written consent
unnecessary, and that the expedient nature of the situa-
tion rendered it inconvenient, supports the conclusion
that the absence of written consent did not substantially
undermine the officers’ credibility. Written consent, of
course, is not constitutionally required. See Villegas, 388
F.3d at 324; United States v. Price, 54 F.3d 342, 346-47 (7th
Cir. 1995). Dean’s cooperative disposition at the time of
his arrest suggests that he believed it was better to allow
the police to retrieve the guns, even though he was well
aware that guns and drugs were within the house. Finally,
although Dean did present two witnesses who testified
that there was no broken window at his house, even he
concedes that the exact condition of the windows was
at most peripheral to the question of consent.
Dean also argues that the district court abused its
discretion when it ruled that Dean had failed to present
facts, case law, and reasoning substantial enough to
warrant the granting of the motion to reconsider. Dean
argues that Sullivan’s performance was deficient for the
following reasons: (1) Sullivan’s pro forma written sub-
missions were cursory and ill-prepared, (2) Sullivan
failed to vigorously cross-examine Cebuhar’s explanation
for not seeking written consent, (3) in arguing the motion,
Sullivan did not refer to the officers’ failure to obtain
written consent or their motive to lie, and (4) the district
court agreed to Dean’s request to replace Sullivan. Dean
also contends that Sullivan’s allegedly deficient perfor-
mance prejudiced him because he pleaded guilty only as
a result of counsel’s failure to win the motion to suppress.
10 No. 07-3627
Dean’s argument fails because he points to no short-
coming in Sullivan’s presentation that could have
changed the outcome. The suppression hearing turned
on the question of a credibility judgment. Motions to
suppress need not be elaborate or even written, and Dean
has failed to demonstrate that a longer written sub-
mission might have altered the district court’s credibility
finding because that issue was resolved at the hearing
after extensive testimony. See United States v. Banks, 405
F.3d 559, 568 (7th Cir. 2005); Johnson v. Norris, No. 07-3058,
2008 WL 3166152, at *6 (8th Cir. Aug. 8, 2008). Nor does
Dean explain how a more-vigorous challenge to Cebuhar’s
explanation for not obtaining written consent to search
would have altered the district court’s finding. Sullivan
asked Cebuhar about his failure to obtain written consent,
and the district court heard Cebuhar’s explanation. The
court received all of the information it needed to deter-
mine the plausibility of his testimony. Similarly it is
unlikely that the district court needed an explicit
reminder during arguments that written consent would
have bolstered Cebuhar’s credibility or that the officers
had a motive to lie and in fact did prevaricate. Finally,
Dean’s difficulty getting along with Sullivan and his
preference for substitute counsel does not reflect on
Sullivan’s performance. See United States v. Huston, 280
F.3d 1164, 1168 (7th Cir. 2002).
We uphold the denial of Dean’s motion to suppress
and A FFIRM his conviction.
12-17-08