United States v. Ronald Finch

reasons, pounds. For these we believe there support

was substantial evidence to the Sec-

retary’s finding plaintiff could return to past relevant work. Plaintiff testified past

that his relevant work driving included

school performing bus and custodial duties at years. school for two The vocational ex-

pert required testified that this light work

exertion was semi-skilled. The vocation- expert

al jobs also testified that there were

existing significant numbers the nation- economy

al which an individual plain- with

tiffs perform. limitations could Because

plaintiff ability retained perform

past prior relevant work January 18,1989,

he prior was not disabled pursu- to that date 404.1520(e), 416.920(e). §§

ant to 29 C.F.R.

Accordingly, the decision of Secretary

hereby AFFIRMED. America,

UNITED STATES of

Plaintiff-Appellee, FINCH, Defendant-Appellant.

Ronald

No. 92-5942. Appeals,

Sixth Circuit.

Argued March July

Decided Timothy R. Atty., Clancy, U.S. A.

Daniel Christopher E. Atty., DiSqenza, Asst. briefed), Cotten, Atty. (argued Asst. U.S. TN, plaintiff-appellee. Memphis, for (briefed), Wayne Emmons Green S. Gerald TN, de- briefed), Memphis, (argued fendant-appellant. BATCHELDER, KEITH Before: CHURCHILL, Senior Judges, and

Circuit Judge.* District * designation. sitting Churchill, Michigan, Senior United P. Honorable James Judge District the Eastern District

CHURCHILL, Judge. Senior District did not pur- announce their pose when demanding entry. 19, 1992, January On officers of the Mem- (5)Whether statements and evidence must phis, Department Tennessee Police raided suppressed they because were ob- the residence of Ronald Finch under the by tained from Finch unlawful threats authority of a search warrant to search for and intimidation. by cocaine. The judge warrant was issued a appeal record on Finch, suggests of the General Sessions Court. also the police forced girlfriend private mother into a were on the resi- premises dence without giving at entry. the time of the entering After reason- able opportunity open it, house door. searching but before interroga- response ted Finch. interrogation, I. police Finch showed the two locations on the (cid:127) premises where cocaine could be found. The The search warrant was by issued cocaine was seized and Finch was arrested Hackett, William Judge of Division Gener forthwith. Sessions, al Shelby County, Tennessee. Rule 41(a) of the Rules of Criminal Tennessee Memphis sought pros- authorities a federal provides Procedure “magistrates” may ecution of Finch because federal sentences issue search warrants. 40-5-102, Section were potentially greater. A two-count indict- Annotated, Tennessee Code provides that ment was in returned the Western District of judges of the general courts of sessions are Tennessee charging possession Finch with magistrates. 41(a) Rule of the Federal Rules with intent to distribute 37 grams and 56 of Criminal requires Procedure that search cocaine, respectively. Following a testimoni- warrants request issued of a federal hearing, al Finch’s motion suppress law enforcement officer or an attorney for during seized the raid was denied. government be issued state Finch entered a plea guilty conditional courts of appellant record. The asserts that count, to each reserving right appeal Judge Hackett is not a judge a court of the denial of suppress his motion to pursuant argues, record. He then the Federal 11(a)(2), Rule Fed.R.Crim.P. June On Rules Criminal Procedure should be used 1992, he was sentenced to a term of 63 to test Judge Hackett months appeal and this ensued. issue the search warrant in case this because it was in prosecution.. used a federal This appeal

Finch’s raises the following issues: issue in raised the trial court below. (1) Whether the search warrant was inval- We need not determine whether there was id because it was issued a General plain error because there was no error. The judge Sessions Court who was not a search was conducted state judge of a “court of record.” This pursuant to a state search warrant. In order issue is raised for the first time on validly to have been pass it must issued appeal. constitutional muster.- The constitutional (2) Whether the affidavit for the search test for issuance of a search warrant is that it warrant was insufficient to support a be issued a neutral and magis- detached finding probable cause. States, trate. Johnson United (3) Whether the search warrant was inval- (1948). S.Ct. L.Ed. 436 There id of purposefully because omitted nothing in suggest the record to facts which would have cast doubt on Judge Hackett did not this meet standard. probable existence of cause. It is immaterial whether his division of the (4) Whether the evidence during seized Court of General Sessions is a court of rec- the raid suppressed should be because ord.1

1. If a search by magistrate warrant issued relying faith of the in on the warrant. standard, who did not Leon, meet S.Ct. is doubtful if would this invalidate the search. likely issue would good more turn on the to the affida standard this Applying II. case, required probability fair in vit this contends appellant' established. has been the warrant validate conclusory nature affidavit

warrant had informant that the states The affidavit issuance cause not state did drug arrests resulting given information warrant. ex magistrate past. A and seizures case, this affidavit the search required information amining this as follows: affiant averred readily conclude could fashion commonsense infor- a reliable with ap talked with the familiar [A]ffiant informant that the Tennes- Shelby County, Memphis, as mant such substances of controlled pearance infor- affiant other given the who has identify see observa them could and found to been has past which mation tion. result- correct, has true and be and.which argues that appellant nonetheless The drug and arrests narcotic in several ed However, conclusory in nature. was affidavit stated informant reliable This seizures. conclusory affidavit a has defined this Court (5) days of Janu- past five within “only affiant’s belief states one which as. 1991, informant 19, this reliable ary United States cause existed.” probable residence above described inside (6th 927, 932 F.2d 720 v. person described Ciammitti the above has seen and 970, denied, 104 S.Ct. 466 U.S. rt. resi- this inside selling Cocaine ce storing and The affidavit 2342, L.Ed.2d 816 dence. of the affiants’ statement provides a this case affida- that this first argues appellant The the existence as to them belief for reasons to search cause probable to state vit failed probable cause. nothing indicate was there infor- that the substance issuing judge totality circumstances of the Because residence in the defendant’s seen had mant a neutral indicate to would in this case cocaine. was being that cocaine magistrate detached residence, affi- appellant’s stored of a the issuance for cause Probable to search. probable cause davit stated in terms wheth is defined search circum facts and sets out affidavit er the probability fair “a indicate

stances III. on the will be located a crime United search.” proposed premises that on testified Janu appellant The (6th 926, 930 Bowling, 900 F.2d v. States war day the search before ary 111 S.Ct. Cir.), issued, searched he was rant was (1990), quoting, United L.Ed.2d drugs. He testified looking for who were (6th 721 F.2d Algie, v. States in the search involved the officers one of a Cir.1983). such reviewing whether Ballard, one of who like Officer looked existed, examine should courts probability the affidavit signed persons who Illinois circumstances. totality of the con warrant, the information and that search 2317, 76 Gates, have been should fruitless search cerning the (1983) magistrate’s A L.Ed.2d . Officer Ballard magistrate. disclosed in “real made should determination cause in a participant not a that he testified fashion,” re commonsense istic January and had Finch on F.2d Algie, 721 manner. in the same viewed search occurred. knowledge that such Moreover, that deter any review at Finch failed found District Court using a “def undertaken mination should knowledge of Ballard had Officer prove that supra, 900 Bowling, standard.” erential occurred, incident, if it January 18 if only be reversed It should F.2d at invalidating the war no basis there was arbi magistrate’s discretion issuing rant. Swihart, trarily exercised. conclusion. in this error Cir.1977). find no We 264, 267-68 IV. pose; justified officers have a belief that someone within is in peril imminent Entry Under the Search Warrant bodily harm; or the officers have a reported Most federal search warrant justified belief that those within are aware cases involve judi warrants issued federal presence their and are engaged in es- Frequently, cial officers. the focus of these cape or the destruction of evidence. compliance is on § cases with 18 U.S.C. 3109 Francis, (footnote 646 F.2d at 257-58 omit- which reads as follows: ted). open any officer break outer or rights of occupants of house, inner door or window of a any or private depend do residences on whether part house, therein, of a anything executing federal, a warrant are warrant, if, execute a search after notice of state or local officers or whether the warrant purpose, he is refused was issued judicial federal or state offi- necessary or when admittance to liberate cers. person himself aiding or a him in the exe- cution The District of the warrant. Court made following findings of fact concerning this issue. 3109 has Section been described as a codi This search warrant signed on Janu- See, fication of the common e.g., law. Sab 19, ary 1991. That same day, Officers States, 585, bath 589, v. United 391 U.S. 591 Buck, Ballard and accompanied by other 8, 1755, 1757, n. 8, 88 S.Ct. 1759 n. 20 officers, proceed to 1009 Semmes Mem- (1968) Jones, L.Ed.2d Rodriguez 828 and v. phis, Tennessee, to execute the warrant. 599, Cir.), denied, 473 F.2d 607 cert. Officer Huff knocked on the front door and 953, 3023, U.S. S.Ct. yelled, “police.” waiting After (1973). an estimat- Actually, it is more than a codifica seconds, ed five to ten one of the officers tion of the law. If common one reads into it entry. forced developing exceptions, certain it is a defini Upon tion entering house, private manner of search of the the officers residence discovered mother, is the reasonable under defendant’s the Mrs. Maple Finch, Fourth enough Amendment. United close States v. Fran the door to cis, (6th Cir.), hear 646 F.2d 251 the yell. officers knock cert. and The de- discovered, fendant was along 102 S.Ct. L.Ed.2d with a fe- Francis, companion, male in a bedroom noted: at the rear of the house. Although the Supreme Court has not addressed the many issue federal courts The District finding Court’s is based have, including this Circuit. In some cases testimony of Officer Officer Ballard. others, is discussion dictum. expressed Ballard opinion five- opinion relies on Justice Brennan’s dissent span ten-second gave time somebody in- Ker, California, 23[, [Ker v. 374 U.S. 83 side a time reasonable to come to the door. S.Ct. 10 L.Ed.2d 726] ] which When askéd for his best estimate as to the Supreme Court itself has never time from yelling knocking to until the adopted. Though each case itself is forcing time of entry he say testified: “I’d compelling, less than their conclusion has five, you ten If give seconds. them much been unanimous: the fourth amendment that, longer it, than if they got going it’s unannounced, forbids the entry forcible of be flushed.” a dwelling in the cumstances. Even Justice Brennan’s ^[*] He ^[*] absence H* dissent exigent ^[*] in Ker ^[*] cir- ing, sions submit At the conclusion of the testimonial hear- of law. proposed District findings of fact proposed invited counsel to findings submit- conclu- recognized exceptions to the constitutional government ted states, on this issue rule in case of dwelling into a “One of the officers knocked on the front where: persons already yelled within door Upon ‘police.’ receiving know of authority answer, the officers’ pur- entry.” officers forced In United States nobody is home. brief, but did filed another counsel Defense 7, 9 Property, 873 Real Parcel pro- One request court’s with the comply not nom, (1st Latraverse Cir.), denied sub findings. posed States, satisfy entry failed manner If the (1989), the court observed L.Ed.2d 187 standards, was because ‘magic on what properly not “is the focus they had announce failed to rather police, but spoken are words’ give they did not or because actions of other words and how these on time to period of a reasonable occupant” and by the perceived will be entry. avoid forced the door and open door, yell pound “when thus ” sufficient, as it shows this ing ‘Police!’ their announce A. Failure or ar in, to search presumably “they want purpose authority and rest, census-taking.” not an requires officers Section view, of them- identification In our as does purpose, their nounce occupants a giving police and as selves rule, how 41(e), Tenn.R.Crim.P. Rule more respond are far time reasonable new. is not expressed, ever stating then- constitutionally significant than of notice requirement ab- entry, and in the demanding purpose in in Se decision as the as back far traced circumstances, an such as special sence 91, Eng.Rep. 194 Coke [5 Case mayne’s within, failure to state inquiry from 1603) court as (K.B. where the ] evi- suppression of require not purpose does King is a when the “In all cases serted: is seized. dence which (if open) the doors party, the sheriff house, to either party’s may announcing break Length time B. after of King’s him, of execution or to do arrest search, of panel upholding While But enter. he cannot if process, otherwise that cases which recently stated this court signify the it, ought he to he breaks before entry after seconds a forced make officers request coming, to make and of his cause be purpose will their announcing doors.” open the to to deter in the future carefully scrutinized Seizure, LaFave, Search and Wayne R. compliance with there mine whether 1987). (2d 4.8(a) § ed. § United States requirements (6th Cir.), Nabors, F.2d worlds, compliance with best they informing occupants rule includes suggests record The L.Ed.2d 154 entry they demand police and are the a suffi may not waited have warrant. they have a search because ad refused which period of time from cient in this case record Nothing in the sug it also be inferred mittance could to a search referred suggests no may basis have gests that there door. breaking in the outside before exigen upon an exception based claiming an appel not raised cy. This issue was in his mo- the issue appellant raised brief, although the lant, reply in his it even preserved cocaine suppress the tion to appellee’s to in the alluded omission was apparently Court The District appeal. on yell merely to brief. it sufficient that was concluded “Police.” Fed.R.Crim.P., 52(b), provides Rule affecting substantial or defects plain error has cited, and the have Counsel they although may noticed were rights has been in which found, no case of the court. attention brought identify police, after because suppressed 52(b) is invoked Ordinarily Rule then- themselves, failed announce have ing who, appeal, dis- preparing an counsel entry. In United demanding purpose to be error they consider what cover Cir. Leichtnam, F.2d 370 objection below. took unnecessary that it is 1991), court ruled however, limited, is not so rule it is clear entry if purpose to announce appellate may court take notice of an error cocaine involuntarily provided. In its though on its own motion put is never brief on appeal, the government ignored forward counsel. the voluntariness issue. Wright, 3 Charles A. Federal Practice and The district court made the following find- Procedure, § Criminal 2d ings which are relevant to the voluntariness application As to the plain error rule of Finch’s statements actions. eases, see, LaFave, Fourth Amendment Upon house, entering the the officers 11.7(d). § supra, discovered the mother, defendant’s Mrs. Justification for Finch, forced into a resi- Maple enough close door dence ordinarily a fact-oriented issue. The yell. knock and hear de- may outcome only by determined not discovered, fendant was along with a fe- scene, evidence of events at but also companion, male in a bedroom at the rear evidence concerning police knowledge the house. propensities persons may who occupy the The defendant was told that the officers Nabors, premises. at 1354. F.2d Al- had a warrant to All cocaine. though appear the facts to have been well three' of denied there developed, possible it is that the failure of any cocaine the house.2 Whereup- defense raise the issue have on, defendant was told that if any cocaine influenced the manner in which the evidence discovered, were persons all three developed. Moreover, conflicting theo- house could be arrested person unless one ries of law have necessity evolved admitted ownership.3 sole The defendant delaying entry when the search is for con- then directed the officers to the garage, See, LaFave, trolled substances. supra, where he quantity showed them a of crack 4.8(d) § and Hall v. Shipley, top cocaine hidden on of a beam. When (6th Cir.1991), concerning major two asked if any there was more cocaine in the thought. schools of house, the was, defendant said there reasons, For these one will not of the officers consider the then found a quantity of merits,

issue on its notwithstanding powder cocaine in the Na- form. At that point the admonition. placed defendant was bors under arrest and rights. of his

advised occupants other of the house V. were not arrested. The appellant’s suppress motion to con- Unrefuted evidence establishes other facts following tains the allegation: relevant to the voluntariness .issue. At least five officers were in

[T]he statements and involved the In raid. obtained to breaking door, the addition officers from down the the Defendant front the were they broke sole and direct down locked result of the bedroom unlawful door threats intimidation, occupants confronted the all which with drawn of were de- guns. signed occupants . None of the and calculated and did were free to to violate the leave. Finch Fourth, Defendant’s he disclosed Fifth and testified the Fourteenth location of the rights. police Amendment cocaine to the so that his mother would not arrested. It appellant’s has been the consis position tent that the provid information he expressed The court no conclusion con- police ed the concerning the location of the cerning the voluntariness of Finch’s state- It is unrefuted that the Although defendant’s was mother the "possibil- officer use the did word living held in the room the ity” other two during testimony, his in response to the occupants of the house were confronted in a question, you telling "So were him that his moth- not, therefore, appear bedroom. It does all you er would be arrested if found unless together three of were interrogation. them for it”, was, up response he nobody owned "If Officer "they Ballard testified that stated there it, yes, up admitted would lock all them was no cocaine inside the residence.” It not is the house." clear from record which he referring was to. 356 threats psychological may involve Coercion deny motion except to action

ment Specifically, physical threats. well as as suppress. suspect’s of a members threats arrest Sangineto-Miranda, to be involun- a confession family may cause Court, cit- 1501 859 Richmond, U.S. See, 365 Rogers v. tary. 298, 105 S.Ct. Elstad, U.S. 470 Oregon v. ing (1961). The 735, 534, 5 L.Ed.2d S.Ct. (1985), clarified 1285, L.Ed.2d calcu- was not deception or artifice fact that fruit of suppression between distinction does statement procure an untrue lated to Mi- of in violation obtained a statement of from involuntary confession an protect not involuntary state- an fruit of and the randa suppression. inherently coer- product is the which ment under falls This case tactics. police cive made, the was threat time the- At the latter. (1) that concluding for no basis police had police where of the existence knowledge Finch show Having had either woman equiv- (2) functional house; was wom- that either stashed cocaine was cocaine con- to obtain interrogating Finch was involved knowledge that Finch alent had an functional (3) conspir- was response cocaine; His fession. the distribution Island Rhode confession. of a equivalent existed; woman that either acy 1682, Innis, 100 S.Ct. for 446 U.S. of the cocaine possession constructive know not did searching; L.Ed.2d police were Its seizure hidden. the cocaine Fur- where or abettor. an aider either woman confession. directly from the resulted threat is thermore, context have been be found it such were Finch’s statements Whether finding co- except any fact conditioned from determined involuntary must probable cause short, was no there caine. v. Ala Fikes totality of the circumstances. therefore, legal the women to arrest bama, threatening to do so. for existed basis Elstad, 470 (1957); Oregon v. L.Ed.2d For at 1297. S.Ct. at from viewed the case record in On the herein, may have reasons-developed government, favorable light most to break police officers five for appropriate involuntary and statement Finch’s ordinarily It Finch residence. into self-incrimina- right against violation guns to draw reasonable tion. under a residence breaking into when to search a search warrant CONCLUSION violate does not It substances. controlled de rights to be occupant’s sup- deny motion the It error Mich of a search. conduct during the tained Upon the cocaine.4 confession the press 692, 101 S.Ct. Summers, 452 v. igan allowed remand, be appellant shall the fact, how The 69 L.Ed.2d plea. withdraw Finch’s prior to ever, police conduct that constitutionally may have interrogation part and BATCHELDER, concurring in the the fact not alter permissible does part. dissenting in oppressive. Sub inherently atmosphere in be viewed must police conduct sequent majority as to all issues the with I concur they created. atmosphere which light of the confession. of the coerced question except the majority’s issue, in the I concur to that As they Finch that told police the Whether totality that, the light holding might arrest or women the arrest would in re- circumstances, actions the defendant’s real a It was little moment. them is all of to arrest threat the officers’ sponse to threat. concerning evidence to offer government failed discov- an inevitable is recognize that there We exe- finding cocaine the probability our exclusionary the rule. exception the ery warrant. because the search inapplicable here exception cution view suppress, hearing on motion at the occupants of the house were the function- to a valid search warrant. police lawful- equivalent of a confession that ly al was invol- have could searched the rafters And, untarily part made. I concur in garage warrant, under that and there is a majority’s reversal of the district court’s de- probability” “reasonable the cocaine suppress nial of the motion to the defendant’s would have been found police them. The However, confession. I because believe that they knew that were searching cocaine, confession as it ownership relates to process were in the searching distinguished cocaine must pursuant from the to the valid warrant at the time cocaine was obtained from that confes- that defendant confessed. This ease is unlike sion, I would remand the district court for the situation in police which the enter a home determination of discovery whether the probable of without cause and without a valid despite the cocaine was inevitable search warrant and then obtain evidence un- coerced confession. lawfully through a coerced confession or oth- Buchanan, erwise. 904 F.2d at 356 (drugs Evidence obtained from a coerced confes- would not have been found without warrant- may still against sion be admissible a defen- cause). less of home without discovery if the dant of the evidence was Lamas, See United States v. 930 F.2d Williams, inevitable. Supreme Nix v. (5th Cir.1991) (inevitable discovery rule adopted Court discovery the inevitable ex- applied warrant). police way where get ception rule, exclusionary to the holding that unlawfully evidence obtained sup- will not be If the discovery inevitable apply rule does government if pressed prove can here, then the cocaine evidence would be inevitably would have been obtained against However, admissible Finch. the un- through 431, 444, lawful means. 467 U.S. lawfully obtained confession still must be 2501, 2509, suppressed, accordingly the defendant’s (discovery of body murder victim’s volun- act showing cocaine, illegally teers inevitable despite con- obtained equivalent have held is the of a confession fession). explained The Court that “if the that he owned the could not be used prosecution can preponderance establish at trial. of the evidence information ultimate- government prov bears the burden of ly inevitably would have been discovered ing that the discovery applies. inevitable rule by lawful ... means then the deterrence Hurtado, United States 905 F.2d rationale has so little basis that the evidence (5th Cir.1990) (en banc) cases). (citing A panel should received.” Id. of this government did not address the issue on Buchanan, appeal because defendant’s brief did not noted the re- squarely raise the issue of a coerced confes quirements application of the inevitable sion; rather the defendant’s brief was direct discovery rule: ed give toward officers’ him failure (1) a probability reasonable evi- warnings. Although Miranda the issue of an question dence in would have been discov- involuntary generally confession raised ered lawful means but for the suppress, defendant’s motion to neither misconduct; police possessed that the government nor the court district raised making discovery leads inevitable Therefore, the issue at the trial level. I misconduct; at the time of the that would the case to remand the district court actively pursuing were al- [an] findings to make as to whether the cocaine is investigation ternative line of prior to the against Finch admissible because the officers misconduct. inevitably would have found under the (quoting Webb, Id. United States v. valid search warrant were in the (5th process executing at the time of the con (1987)). Richardson, fession. See United States Cir.1991) discovery (remand

This very inevitable rule may 949 F.2d 851 to exam apply well here discovery since officers entered the exception ine inevitable since no court). pursuant house with both cause and record made at district If the district inevitable, discov- court determines cocaine, I would to the apply ery rule does court nevertheless the district

hold his to withdraw the defendant permit

should confession, goes plea because guilty admissible ownership of the suppressed.

must be the district reverse

Accordingly, I would involuntarily the confession in that

court re- suppressed, but must and thus

given cocaine is issue

mand whether discovery the inevitable under admissible

rule. Representa ZETTLE,

Margaret Personal Zettle, R. David Estate of

tive of Plaintiff-Appellant,

Deceased, COMPANY,

HANDY MANUFACTURING corporation, Western foreign d/b/a Corporation,

Manufacturing Defendant-

Appellee.

No. 92-1346. Appeals,

Sixth Circuit. 11, 1993.

Argued March July

Decided

Case Details

Case Name: United States v. Ronald Finch

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Jul 6, 1993

Citation: 998 F.2d 349

Docket Number: 92-5942

Court Abbreviation: 6th Cir.