United States v. Keith Hawkins ( 1996 )

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No. 96-1786
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United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* Eastern District of Arkansas.
Keith Hawkins, *
*
Defendant-Appellant. *
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Submitted: October 23, 1996
Filed: December 24, 1996
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Before BOWMAN, BRIGHT, and LOKEN, Circuit Judges.
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LOKEN, Circuit Judge.
Keith Hawkins appeals his conviction and 210-month sentence
for possession with intent to distribute cocaine base. He raises
suppression, trial, and sentencing issues on appeal. We affirm.
I.
An informant told Little Rock police that Hawkins was dealing
crack cocaine out of his home. Police employed the informant to
make a controlled drug buy and then obtained a warrant to search
Hawkins's home later that day. To execute the warrant, members of
the Little Rock Police Department's "SWAT" team entered the house
without knocking or announcing, handcuffed Hawkins, and placed him
on the floor. Narcotics Division officers, including Detective
Kyle King, then entered to conduct the warrant search.
King had prior contact with Hawkins and upon entering helped
the handcuffed Hawkins into a kitchen chair. Hawkins said, "King,
there ain't nothing in my house." King replied that police knew
there were drugs in the house and Hawkins "could make it easier on
himself" if he disclosed where they were hidden. Hawkins repeated
that there were no drugs in the house. A few minutes later,
another detective found 3.8 grams of crack cocaine in a potted
plant. With illegal drugs now discovered, Hawkins asked to speak
in private with Detective King. When they were alone, Hawkins
asked King, "What can I do to help myself? I got to help myself."
Hawkins then volunteered that he was only selling small quantities
of cocaine. He also named two of his suppliers and offered to
cooperate with the police in securing their arrest. Hawkins was
not advised of his rights under Miranda v. Arizona, 384 U.S. 436(1966), until later that evening when he was taken to the police
department annex for further questioning and again made
incriminating statements.
Prior to trial, the district court1 denied Hawkins's motions
to suppress his incriminating statements and the physical evidence
seized at his home. This evidence was admitted at trial. The jury
convicted Hawkins of possession with intent to distribute cocaine
base in violation of 21 U.S.C. § 841(a)(1). Although he argues on
appeal that he was convicted on insufficient evidence because many
people had access to his home, the evidence viewed in the light
most favorable to the government is clearly sufficient to convict
Hawkins of this offense. See, e.g., United States v. Nunn, 940
F.2d 1128, 1132-33 (8th Cir. 1991).
1
The HONORABLE HENRY WOODS, United States District Judge for
the Eastern District of Arkansas.
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II.
Hawkins argues that the district court erred in refusing to
suppress his incriminating statements because Detective King's
initial suggestion that Hawkins should tell the search team where
illegal drugs were hidden in the house was a Miranda violation that
tainted all subsequent incriminating statements. We review the
district court's decision on a motion to suppress for clear error.
See United States v. Cordova, 990 F.2d 1035, 1037 (8th Cir.), cert.
denied, 510 U.S. 870 (1993); United States v. Eisenberg, 807 F.2d
1446, 1449-50 (8th Cir. 1986).
The government concedes that Hawkins was in custody by the
time Detective King entered the house. But the issue is whether
King engaged in custodial interrogation. Hawkins initiated the
conversation by telling King there were no drugs to be found. King
responded that police knew there were drugs at the scene and that
Hawkins would make things easier by disclosing their location.
Predictably, Hawkins repeated his denial, and King said no more.
King and the other officers were there to search Hawkins's home,
not to interrogate him, and that is what they proceeded to do.
King's brief exchange with Hawkins, prompted by the latter's
exculpatory assertion, was not interrogation because this was not
a situation in which King "should have known [that his words] were
reasonably likely to elicit an incriminating response." Rhode
Island v. Innis, 446 U.S. 291, 303 (1980).
Moreover, Hawkins made no incriminating statements until
cocaine was found and he asked to speak with Detective King in
private. "Miranda does not protect an accused from a spontaneous
admission made under circumstances not induced by the investigating
officers or during a conversation not initiated by the officers."
Butzin v. Wood, 886 F.2d 1016, 1018 (8th Cir. 1989) (quotation
omitted), cert. denied, 496 U.S. 909 (1990). Hawkins argues that
he was prompted to incriminate himself by King's earlier
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"inherently coercive interrogation." But that is a fanciful
characterization of Hawkins's initial exchange with Detective King.
When the cocaine was found, Hawkins said to Detective King, "I got
to help myself." That statement confirms the obvious -- it was the
discovery of illegal drugs in his home, not police coercion, that
induced the incriminating statements.
Finally, Hawkins argues that because his initial incriminating
statements were made to Detective King without Miranda warnings,
statements he made at the stationhouse following Miranda warnings
must be suppressed under Oregon v. Elstad, 470 U.S. 298, 318
(1985). Because there was no Miranda violation at Hawkins's home,
we need not undertake an Elstad analysis of the stationhouse
questioning. However, we see no evidence that the stationhouse
statements were involuntary.
For the foregoing reasons, the district court properly denied
Hawkins's motion to suppress his incriminating statements.
III.
Hawkins next argues that the district court erred in denying
his motion to suppress evidence seized during the warrant search of
his house because the police did not "knock and announce" before
entering. Hawkins's reliance on 18 U.S.C. § 3109 is misplaced.
The trial evidence confirms that the search was conducted entirely
by local police officers executing a state court warrant.
"Section 3109 does not apply in cases involving state officers
executing state warrants." United States v. Murphy, 69 F.3d 237,
242 (8th Cir. 1995), cert. denied, 116 S. Ct. 1032 (1996).
Hawkins also based this motion to suppress on "constitutional"
grounds and correctly argues that common law knock-and-announce
principles are part of the Fourth Amendment reasonableness inquiry.
See Wilson v. Arkansas, 115 S. Ct. 1914 (1995). However, even
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assuming that an unreasonable no-knock entry would require
suppression of evidence seized in the subsequent search -- a
question the Supreme Court expressly left open in Wilson, 115 S.
Ct. at 1919 n.4 -- the common law recognized that a no-knock entry
may be reasonable "in situations involving threats of physical
violence, prisoner escapes, and likely destruction of evidence."
Murphy, 69 F.3d at 243. Here, a member of the SWAT team testified
that Hawkins's house was considered a "high risk entry" because it
was barricaded by barred security doors and windows. Defense
counsel did not cross examine the witness or present contrary
evidence on this issue. On this record, Hawkins's constitutional
claim was properly rejected.
IV.
Hawkins next challenges his sentence as a career offender.
The primary issue is whether a prior conviction was for conspiracy
to deliver cocaine, a career offender predicate offense, or for
possession of a controlled substance. See U.S.S.G. § 4B1.2(2).
The government placed in evidence numerous documents confirming
that the conviction was for conspiracy to deliver cocaine,
including the plea transcript, a signed plea statement, the trial
judge's docket sheet, the judgment and commitment order, and the
Arkansas Department of Corrections admission summary. Hawkins
countered with the prosecutor's file jacket, which contains a
notation that Hawkins pleaded guilty to possession of cocaine. On
this record, the district court's finding that the conviction was
for a career offender predicate offense is not clearly erroneous.
See United States v. Oehlenschlager, 76 F.3d 227, 229 (8th Cir.
1996) (standard of review).2
2
Hawkins also argues that conspiracy is not a "controlled
substance offense" for purposes of U.S.S.G. § 4B1.2(2). However,
we are bound by this court's contrary decision in United States v.
Mendoza-Figueroa, 65 F.3d 691 (8th Cir. 1995) (en banc), cert.
denied, 116 S. Ct. 939 (1996).
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V.
We have carefully considered Hawkins's remaining contentions
and conclude that each is without merit. The contention that he
deserves a criminal history downward departure under U.S.S.G.
§ 4A1.3 is not reviewable on appeal because the district court was
aware that it had authority to depart but declined to do so. In
denying a departure, the court stated, "on the basis of what I've
heard I'm not going to depart." See United States v. Bieri, 21
F.3d 811, 817-18 (8th Cir.), cert. denied, 115 S. Ct. 208 (1994).
Finally, Hawkins challenges the district court's decision to
give an "Allen" charge after the jury had deliberated for five
hours and delivered a note advising they were deadlocked on two of
the four counts. After the court gave the Allen charge, the jury
deliberated two to three more hours before returning its verdict.
Based upon the unobjectionable text of this charge and the length
of time the jury deliberated, we conclude the supplemental charge
was not unduly coercive. See United States v. Thomas, 946 F.2d 73,
76 (8th Cir. 1991); United States v. Young, 702 F.2d 133, 135-36
(8th Cir. 1983); United States v. Singletary, 562 F.2d 1058, 1060-
61 (8th Cir. 1977).
The judgment of the district court is affirmed.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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