United States v. Charles John McCarty

943 By of the Id. objected signing finger at trial to the admission identification. card, fingerprint print simply following card because it contained Snow was signature signature. procedure He claimed the fin Snow’s standard associated with a testimonial act of Mr. Snow gerprinting. signature merely constituted His was interrogation inad- during and was therefore part of process was identification and as an because missible either admission or not testimonial nature or elic information had not been his Miranda Mr. Snow reread part interrogation. ited as of custodial See immediately rights prior signing the card. McLaughlin, United v. States 777 F.2d objection Cir.1985) The district court overruled his (8th 391 (holding request “a holding “stretching was testimo- counsel necessary routine information basic iden signature. nial I don’t think is valué purposes tification not interrogation under merely I all. believe it identi- testimonial ”); Sims, Miranda United States v. F.2d 719 fingerprints.” fies the (11th Cir.1983) (same), 378 1034, 104 465 U.S. review the district court’s admis We (1984); United States ex rel. Hines v. LaVal for abuse of We sion of evidence discretion. lee, (2d 1109, 1112 Cir.1975) (same), 521 F.2d a district decision will not disturb court’s “ 423 U.S. 96 S.Ct. have ‘a definite and firm convic unless we above, In light we the lower court error tion that made a clear do not find the district court abused its dis per judgment or exceeded the bounds ” admitting fingerprint cretion in card with missible choice circumstances.’ signature. Mr. Snow’s Acosta-Ballardo, v. United F.3d States (10th Cir.1993) (quoting United Ortiz, (10th Y 1161, 1164 2 v. 804 F.2d n. States Cir.1986)). For the reasons stated above the district rulings are only AFFIRMED.

The information contained fingerprint sig on the card was Mr. Snow’s

nature, fingerprints, signa Mr. Snow’s fingerprints official

ture of the who took the they Miranda

and the date were taken. having

warnings protect suspects from their rights by establishing

constitutional violated safeguard any to ensure that information by police elicited as the result of a custodial America, UNITED STATES of interrogation against cannot be introduced Plaintiff-Appellee, suspect defendant unless the been ad has certain, vised of and waived constitu basic v. Arizona, rights. tional Miranda v. McCARTY, Charles John Defendant- 436, 444, 1602, 1612, L.Ed.2d Appellant. (1966); States, Parson v. United Cir.1968). (10th 944, 946 Miranda does not No. 95-8030. bar, however, case at to the because Appeals, United Court of States no “there is constitutional be Tenth Circuit. Oklahoma,

fingerprinted.” v. Snow F.2d Cir.1973); Schmerber Cali 1996. 1826, 1832, fornia, (1966). Furthermore, 16 L.Ed.2d we fingerprinting

have held is nontestimoni

al in nature and taken as therefore be

part proof of identification. States Cir.1982) Peters,

(en banc). fact, finger the refusal to have

prints can taken be treated as a waiver

945 prosecution two witnesses

examination of bias; applying and the district court erred ordering Sentencing Guidelines his sentence con- to serve federal crim- secutively previously state inal sentence.

Background 1991, McCarty was arrest October assaulting his former charged with ed and . guilty pled He girlfriend and her brother endangering, a misdemeanor reckless year prison, and he served which battery, for which assault aggravated placed probation him on for five court state McCarty from ei years prohibited girlfriend pos or contacting his former ther 1993, In March the former sessing firearms. that she girlfriend informed state officials by Mr. apparently mail sent had received Wyoming McCarty. State Crime After McCarty’s fingerprint on Lab discovered Mr. mail, portion Suspect a search war alleg police rant was issued to the Worland ing McCarty had violated a condition probation by contacting victim his During the search of Mr. letter. residence, equipped a rifle police discovered Crofts, 13, Assistant United Christopher 11 R. 71-72. On A. with a silencer. Wyoming, Attorney, District of Cas- 1993, States court revoked Mr. the state (David Freudenthal, Unit- per, Wyoming, D. him to a five to probation and sentenced Attorney, Wyoming, District year imprisonment. ed States term of seven brief) him on the Casper, Wyoming, with 1994, on the basis of the search March Plaintiff-Appellee. residence, charged McCarty was Newcomb, Grant, & Maynard D. Grant in connection making a false statement with Defendant-Appel- firearm, Cheyenne, Wyoming, for purchase of a 18 U.S.C. with the 922(a)(6), 924(a)(1), receiving a firearm §§ lant. id. felony, for a whole under indictment JONES†, KELLY, BARRETT and Before 922(n), 924(a)(1),possession §§ of a sawed-off Judges. Circuit 5841, 5845, 5861(d), 5871, rifle, §§ 26 U.S.C. silencer, id. §§ possession Jr., KELLY, Judge. PAUL Circuit 5861(d), 5871, possession of a silencer number, id. §§ with a serial his conviction on five identified appeals 5861(i), 5871. In December alleging violations counts of federal firearms McCarty was convicted of all five federal his convictions Mr. which search to 71 violations and sentenced Fourth Amend- firearms predicated are violated the months, consecutively Constitution; to his to be served ment of the United States convic received for his assault Amendment state sentence court violated his Sixth district tion. prohibiting cross to confrontation Jones, by designation. † Senior United The Honorable Nathaniel R. Circuit, sitting Judge States for the Sixth Circuit Discussion probationer tioner’s home or even arrest a without a warrant and with proba- less than A. Fourth Amendment Griffin, ble cause. U.S. reviewing the district court’s de 3170-71; Lewis, S.Ct. at 71 F.3d at 362. It suppress, nial of a motion to we equally probation well established that a clearly of review to erroneous standard “stalking officer cannot act as a horse” on findings of fact and district view police police behalf of evading assist light evidence in the most favorable to the requirement. Fourth Amendment’s warrant Baker, government. United States v. Watts, United States v. 793-94 — Cir.), F.3d (9th Cir.1995); Martin, United States v. -, (6th Cir.1994). According F.3d (1994). The reasonableness of a search and Wyoming officer arrest seizure under the Fourth Amendment is a probationer agent without a warrant “if the question of law we review de novo. has person cause to believe the has Martinez-Cigarroa, pa- violated the terms of his — Cir.), U.S.-, role,” Wyo.Stat. 13—411(a)(iii), or conduct 7— 1386, 131 L.Ed.2d To probationer’s a warrantless search of a home validity assess of a search warrant under suspicion probation reasonable of viola- Amendment, the Fourth we review whether tion, Wyoming, Pena v. 1352, 792 P.2d 1357 totality in the of the circumstances the affida “ (Wyo.1990). judicial provided vit the officer ‘a substan finding probability tial basis for a fair that cases, many police may the arrest or contraband other evidence of a crime probationer probationer’s a or search a ” premises. would be found’ at the searched premises without a at warrant the of behest Baker, United (quoting 30 F.3d at 1280 See, Lewis, e.g., parole the officer. 71 F.3d (10th Hager, 883, States v. Cir.), 969 F.2d (search by parole at officers and U.S. police, acting request who were at the (1992)). L.Ed.2d 357 warrant, parole officers but without a did not question This case involves the of whether Amendment); offend the Fourth suspected proba- a violation of a condition of Shephard, 936 n. 6 tion constitutes cause for which a Cir.1994) (under Montana violation of issue, may particularly search warrant where probation constitutes an offense for which probation question the violation in would not police may probationer arrest without a war beyond constitute a crime the confines of the request parole rant but at the written probation agreement. pres- defendant’s This Cardona, officer); United States v. question impression ents a of first in this (1st Cir.1990) (“police officers and circuit. To assist our assessment of the rea- parole fungible officers are when the former in sonableness of the search this we implimentors serve as mere of decisions al analysis turn probationer’s first to an of a latter”), ready by made the rights under the Fourth Amendment. (1991). Wyoming, is the case in where Such protects The Fourth Amendment a empowers police state law the to “arrest home, probationer’s any like that of other alleged probation citizen, [a] without warrant an or from unreasonable searches. Griffin Wisconsin, parole receiving violator after a 868, 873, written probation parole agent statement from a However, setting probationer parolee forth that the or special presented by the needs and benefits a has, judgment probation in the probation system compels proba state’s a parole agent, occupy violated the conditions of his tioner the unusual status of a conditional, probation parole.” Wyo.Stat. § or only citizen with 7-13- rather than ab 411(b). liberty. Furthermore, Wyoming, Id. at solute in 107 S.Ct. at deter Lewis, 3168-69; see also United States v. probationer 71 mine if a has violated a condition Cir.1995). police may F.3d 361-62 probation, It is clear of his the conduct a probation may proba- probationer’s that a officer search warrantless search of home on court, presence of the immediate written probable cause and without less than knowledge, in accompa- personal if no probation officer of which has consent of the judg any lawful cluding by probation [disobedience officer. Sanderson nied ment, order, Wyo. (Wyo.1982). process of the court.” Wyoming, P.2d 678-79 or 42(a)(2)(C). initiate criminal police Conviction of This is true even where R.Crim.P. only up probation imprisonment officer and contempt contact with the result by consent to probation officer had received if the defendant is convicted to six months By informing probation offi- jury. Id. judge, longer search. if convicted 42(e). and con- alleged probation violation mailing cer of an Wyo.R.Crim.P. The act presence ducting the search letter, proba court-ordered unaffiliated with officer, pro- police “become the generally is not a tionary requirements, they agents gave assis- officer’s when crime; however, bation McCarty’s letter defied request.” probation officer at her tance to the prohibit Judgment and Sentence the court’s Id. 679. contacting from his former ing Mr. indirect girlfriend, and therefore constituted case, however, does not involve a This Aplt.App. A at 1-2. contempt. See criminal of a officer’s warrantless search rather a search con probationer’s home but ease, police had In this the Worland police pursuant to a warrant. ducted believing that Mr. a substantial basis Accordingly, question that concerns us is pro a condition of his had violated whether, light status as of Mr. doing criminal and in so committed bation prob probationer, the warrant satisfies girlfriend contempt. Mr. former requirement the Fourth able cause Attorney County informed the Washakie Amendment. had received mail which she be she McCarty that the affi Mr. concedes by McCarty. suspect A was sent Mr. lieved the warrant was based davit which McCarty’s fin contained Mr. piece of mail grounds sufficient under to contained totality gerprint. The of these circum Griffin Wyoming probation officer to conduct allow a affidavit, stances, Aplt.Br. in contained the McCarty’s Mr. home. search of warrantless C, probable cause of the app. constituted However, McCarty Mr. ar Aplt.Br. at 18. namely contempt, criminal crime of indirect per gues mailing that a letter is not because McCarty’s probation. of his Mr. violation McCarty’s alleged parole viola illegal, Mr. se point Mr. police at that informed Had the a non-criminal act that is tion constituted McCarty’s probation of the result of officer as a matter of law to constitute insufficient analysis, probation officer could the the a search warrant probable cause which pro conducted a warrantless search have disagree. proba issue. We Violation concerning for evidence bationer’s residence contempt of court tion constitutes indirect Griffin, 483 possible parole violations. See Wyoming and constitutes a crime under law However, 107 S.Ct. at 3171. U.S. punishable imprisonment. Criminal con McCarty’s police did not contact Mr. the tempt emanates from the common law axiom prepared the probation officer but rather inherently possesses power that a court presented it to a appropriate affidavit punish transgressions of its orders. See magistrate, who deter detached and neutral Union, generally International UMWA sup that cause existed mined — U.S.-, Bagwell, S.Ct. McCarty’s residence port a of Mr. search (1994) (discussing case law de- L.Ed.2d 642 police obligated not and vehicle. The were Although velopment contempt). criminal McCarty’s probation officer to contact Mr. statutes, Wyoming crimi- in the not codified pursuant act to the warrant. but could support Wyoming contempt nal finds solid Connors, Finally, of the rifle and the seizure e.g., case see Connors McCarty’s house fits Wyoming, silencer from Mr.. (Wyo.1989); P.2d Skinner v. plain doctrine. The squarely within the view (Wyo.1992), specified and is 838 P.2d 715 Procedure, lawfully premises police were on Wyoming Rules Criminal object plain view. Because seized was where as an act “not committed is defined by showing tion object’s incriminating prohibit character was immedi Clause that he was ately permissible. engaging the seizure was ed from apparent, appropriate otherwise Indus., designed v. Janus cross-examination proto See United States to show a — Cir.), typical part 1554-65 form of bias on the of the wit -, Arsdall, 133 L.Ed.2d ness.” Delaware v. Van 475 U.S. (1995). 673, 680, 106 1431, 1436, 89 S.Ct. (1986). assuming

Even that the warrant was defective, affirm we would the district case, In this the district court prevented suppress denial of Mr. motion to McCarty Mr. pursuing particular from lines Supreme holding in based on the Court’s questioning during cross-examination of Leon, witnesses, prosecution Cindy two Ms. John- Leon, son, officer, Mr. former Supreme Court held that the exclusion Andricei, McCarty’s and Ms. Karma for- ary rule where an officer would girlfriend mer and the victim of the state objectively acts “in reasonable reliance on a McCarty crime for initially which Mr. was subsequently invalidated search warr placed probation. argument, on At oral ant....” Id. at at 3420. In McCarty conceded the district court cor- case, good police this acted in faith within rectly curtailed his cross-examination of Ms. they objectively scope of a warrant which Andricei. We therefore do not address his engine believed to be valid. The that drives arguments concerning this witness. protection prevention Fourth Amendment is deterrence. In cases “when an officer McCarty alleges that the district acting objective good with faith has obtained court violated his to confrontation judge magistrate a search warrant from a prohibiting effectively him from cross-exam scope.... and acted within its there is no Johnson, ining Ms. his former offi police illegality nothing and thus to deter.” cer, attempt in an to demonstrate bias.

Id. at 104 S.Ct. at 3419. Cardo Cf. government this called Ms. Johnson (“the na, 903 F.2d at 66 source of the deci compare credibility of Mr. act, agent imple sion to not the robotic who George Vigil, with that of Mr. a witness who it, ultimately responsible ments for the against testified and for whom consequences”). decision’s No evidence indi Ms. Johnson also served as officer. lacking cates that the warrant was “so objected Defense counsel and advised the indicia of cause as to render official court that he intended to cross-examine Ms. unreasonable,” entirely belief in its existence Johnson based on information he had re in which case reliance warrant client, namely ceived from his that Ms. John good could not have been in faith. Brown v. son, serving McCarty’s proba while as Mr. Illinois, 590, 611, 2254, 422 U.S. 95 S.Ct. officer, McCarty tion advised Mr. that he (1975) 2265, (Powell, J., 45 L.Ed.2d 416 con experience would more favorable curring). engaged treatment if he sexual intercourse McCarty allegedly tape with her. Mr. re B. Sixth Amendment corded this conversation with Ms. Johnson generally produce recording We review the district but was unable to to evidentiary rulings allegations. Aplt.Br. for an abuse of substantiate the at 23 Scott, discretion. United States v. 37 F.3d n. 5. The court summoned Ms. Johnson — (10th Cir.1994), denied, pursue inquiry. counsel into chambers to -, questioning 115 S.Ct. 130 L.Ed.2d 669 13 R. 76. After Ms. Johnson (1995). alleged McCarty’s An regarding allegations, violation of the Sixth Mr. right confrontation, however, McCarty’s allega Amendment to court concluded that Mr. presents question of law that we review de tions were unsubstantiated and refused to Oklahoma, 1447, permit novo. Hatch v. 58 F.3d such cross-examination of Ms. John (10th Cir.1995). 78-79, 81, Generally, ques “a criminal son. 13 R. 86-87. When resumed, tioning defendant states violation the Confronta- Ms. Johnson testified that Sentencing C. Guidelines. Vigil to be more credible believed Mr. she McCarty. R. 88. than Mr. In the state court of McCarty’s probation,

Wyoming revoked Mr. judge power has the The trial ag entry 1991 conviction for ordered of his in an it is offered exclude evidence when battery gravated assault and unduly prejudi impermissible manner or is years in the state sentence of five seven judges serving 403. “Trial retain his state sen penitentiary. cial under Rule While tence, McCarty was sentenced in the insofar as the Confrontation wide latitude to be present matter to a term of 71 months impose is concerned to reasonable Clause consecutively to his state sentence. 3 served con on based on limits cross-examination R. 104. Mr. contends docs. harassment, prejudice, con cerns about misapplied the the district court Sen issues, safety, or of the the witness’ fusion tencing by imposing his federal Guidelines1 only mar interrogation repetitive that is consecutively to his state sentence. sentence Arsdall, ginally 475 U.S. at relevant.” Van novo the district court’s inter We review de 679, 106 at 1435. The Confrontation Sentencing application of the pretation and McCarty “only an guarantees Clause clearly erroneous Guidelines cross-examination, opportunity for effective court’s factual deter standard to review the not cross-examination that is effective sentencing. minations at United States extent, way, and to whatever whatever Johnson, Cir.1994), Fensterer, might Delaware v. defense wish.” — U.S.-, 115 S.Ct. 292, 294, 474 U.S. (1995). added). (1985) (emphasis general, In court has district Having the record and Mr. reviewed choosing broad discretion in to sentence a contentions, say McCarty’s we can that the consecutive or concurrent sen defendant to a district court neither abused its discretion (b). 3584(a), § Howev tence. See U.S.C. McCarty’s Amend- nor violated Mr. Sixth er, confined con the court’s discretion is ment to confrontation circumscrib- the factors 18 U.S.C. sideration ing Mr. intended cross-examina- 3553(a) § § and USSG 5G1.3.2 United district court tion of Ms. Johnson. The Shewmaker, States invasive, injurious prohibited particularly Cir.1991), cert. concerning questioning line of serious and 884, 116 L.Ed.2d 788 allegations impro- of sexual unsubstantiated applied the district court USSG this incredibility priety. light 5G1.3(c), referring Application Note allegation, McCarty’s prior con- guidance, to order Mr. federal victions, R. and his admitted instanc- consecutively to sentence served his state court, misleading 12 R. es R. con sentence. 16 58-59. judge justified preventing 5G1.3(b) in the trial was § than that USSG rather tends 5G1.3(c) McCarty cross-examining from Ms. § applies because the undis USSG allegations McCarty’s of sexual charged Johnson on serious of Mr. state sen term fully only by Mr. that were misconduct substantiated tence resulted irom offenses into account in the determination of McCarty himself. taken undischarged Sentencing concurrently of im- are to the term 1. All references to the Guidelines prisonment. to the version in effect at the time Mr. case, McCarty Statement) was sentenced. any (c)(Policy other the the instant offense shall be im- sentence for provides part: § 2. USSG 5G1.3 in relevant consecutively prior posed to the undis- to run (a) .... charged imprisonment to the extent term (b) (a) apply, does not and the If subsection necessary to achieve a reasonable incremental imprisonment undischarged resulted term of punishment the instant for offense. offense(s) fully from that have been taken into § USSG 5G1.3. of the offense account in the determination 5G1.3(a) parties agree § does that USSG The offense, the for level for the instant sentence apply. Aplt.Br. at 34. See be to run instant offense shall level for the instant offense. See used a firearm in the offense connection with 5G1.3(b). 34-36; § offense, Aplt.Br. felony at USSG an additional namely aggra- battery. vated assault 16 R. 57. In- (b) ap- disagree. does not We Subsection creasing a by noting defendant’s offense level ply Wyoming offense because that a defendant a used firearm to commit a “fully into in has not been taken account previous felony does not take into account determination of the offense level for the aspects underlying substantive 5G1.3(b). § instant offense.” USSG The felony any noting more than felony that the assigned district court a Base (“BOL”) afternoon, in sunny day occurred on a 16 R. or Offense Level 2K2.1(a)(4)(B), applying § in an urban area. USSG which man- “if dates BOL of 20 the defendant is a Based our conclusion that the district (of prohibited person, and the offense convic- 5G1.3(c), properly applied § court Mr, tion) involved a firearm listed in 26 U.S.C. McCarty alternatively reasoning invokes the 5845(a).” 2K2.1(a)(4)(B). § § A See USSG (“PSR”) in presentence report set forth “prohibited person” “anyone is defined- as argue to imposition of a consecutive (i) for, who: is under indictment or has been 5G1.3(c) § federal sentence under USSG con- of, punishable by impris- convicted a ‘crime stituted an abuse of discretion the district year.’” than onment more one USSG Aplt.Br. PSR, court. at comment, 36 n. 12. 2K2.1, Assigning § n. 6. probation officer noted the applicability of McCarty a BOL of 20 because he was a 5G1.3(c) § USSG to this but advised prohibited person possession in of a firearm Application the court to consult Note 3 for nature, type, does not take into account the 5G1.3(e). guidance applying § 4 R. 11 aggravating mitigating or circumstances ¶ (PSR 45). rejected The district court any aspect other substantive of Mr. McCar- Application the PSR’s invocation of Note 3 ty’s previous Had crime. the district court 2K2.1(a)(4)(A), Application § and instead chose to look to applied man- Note USSG which guidance. 4 for dates a BOL of 20 “if the 16 R. 58-59. defendant had one felony prior conviction of ... a crime of ” added), (emphasis violence or USSG Suggestions contained in the PSR 2K2.1(a)(3), § assigns which of 22 “if BOL advisory only. are The district court retains prior the defendant had one conviction choosing impose discretion whether to ...of a crime violence ... and the instant sentence, consecutive or concurrent added), (emphasis offense involved firearm” § subject U.S.C. to the constraints of stronger argument could be made that Mr. § pursuant USSG 5G1.3 consideration McCarty’s Wyoming fully conviction was tak- 3553(a). § factors listed 18 U.S.C. en into account due to the consideration its plain language Application The Note 4 violent nature. squarely fits the facts of this case. Further more, the record reflects that the district

Similarly, the district court’s utilization of expressly 2K2.1(b)(5) statutory court considered the fac § USSG to increase Mr. McCar- 3553(a), § tors embodied 18 U.S.C. as ty’s such fully offense level from 20 to 24 did not the need “to reflect the seriousness of the take into account Mr. state law offense, 2K2.1(b)(5) promote respect § for the conviction. USSG instructs just offense,” provide punishment the district court to increase a defendant’s 3553(a)(2)(A), by 4 18 U.S.C. “to afford points offense level ade “[i]f defendant conduct,” possessed any quate used or firearm ... deterrence to criminal id. connec- 3553(a)(2)(B), protect § tion with public another offense.” USSG and “to 2K2.1(b)(5). defendant,” § properly The district court from further crimes of the id. (b)(5) 3553(a)(2)(C). applied by noting § subsection that Mr. See 16 R. 78-80. can We Application provides: consecutively imposed 3. 4Note to be served to the term probation for the violation of ... order to proba- If the defendant was on federal or state offense, provide penalty tion ... an incremental for the at the time of the instant viola revoked, probation.... has had such tion of the sen- comment, 5G1.3, tence for the instant offense should be USSG n. 4. say that the court abused its discretion

disregarding suggestions Application applying

officer in the PSR and impose

Note 4 to a consecutive federal sen- upon McCarty.

tence

AFFIRMED. JONES, Judge, Circuit

NATHANIEL R.

concurring. fully B

I concur Parts and C A, in Part

opinion, and likewise concur ex- sepa- I

cepting paragraph. the last write

rately briefly explain my concern. [p. 949]

The court’s discussion on Leon, (1984) unnecessary is after search,

determining that the warrant and crime,

relating to evidence of a were valid. assume

To reach this issue the court must defective, the warrant was and under

the facts of this the warrant could be only if it did not relate to the

defective

commission of a crime. As we have not

decided the broader issue of whether a war- only

rant must relate to the commission of Amendment, satisfy

crime to the Fourth Further,

unwise to assume such in dictum. me, given

it is not at all clear to the court’s not,

assumption, valid or that the doctrines of

Leon and related cases would here. PARKER, Plaintiff-Appellant,

Carol

INDEPENDENT SCHOOL DISTRICT NO. COUNTY,

I-003 OF OKMULGEE

OKLAHOMA, also known as Morris School, Defendant-Appellee.

Public 95-7081.

No. Appeals,

United States Court of

Tenth Circuit. 1996.

Case Details

Case Name: United States v. Charles John McCarty

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Apr 24, 1996

Citation: 82 F.3d 943

Docket Number: 95-8030

Court Abbreviation: 10th Cir.