United States v. Bruce Murray , 659 F. App'x 1023 ( 2016 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14594
Non-Argument Calendar
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D.C. Docket No. 1:14-cr-00338-TCB-GGB-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
BRUCE MURRAY,
a.k.a. John Lamons,
a.k.a. Carlos Jones,
a.k.a. Bernard Jones,
a.k.a. Tony Murray,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(August 30, 2016)
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Before HULL, MARCUS, and EDMONDSON, Circuit Judges.
PER CURIAM:
Bruce Murray appeals his convictions for possession of a firearm by a
convicted felon, and for possession with intent to distribute marijuana, in violation
of 18 U.S.C. §§ 841(a)(1), (b)(1)(D), 922(g)(1), and 924(e). Murray also
challenges his 240-month total sentence. No reversible error has been shown; we
affirm.
I.
We first consider Murray’s challenges to the denial of his motions to
suppress evidence. In considering the denial of a motion to suppress, we review
fact determinations for clear error and application of law to the facts de novo.
United States v. Boyce, 351 F.3d 1102, 1105 (11th Cir. 2003). We construe all
facts in the light most favorable to the prevailing party in district court. Id.
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A. 19 March 2013 Traffic Stop
Murray first contends that the district court erred in denying his motion to
suppress evidence obtained as a result of Murray’s seizure during a traffic stop on
19 March 2013. As an initial matter, Murray does not dispute that the car in which
he was a passenger had an expired tag and, thus, that the traffic stop itself was
lawful. As a result, Officer Moncrief was -- “as a matter of course” -- authorized
to order Murray out of the car. See Md. v. Wilson, 117 S. Ct. 882, 884, 886
(1997).
Officer Moncrief was also entitled to conduct a pat-down search for
weapons based on Murray’s failure to comply immediately with Officer
Moncrief’s orders to exit the car, on Murray’s furtive movement toward the
console of the car, and on Murray’s statement to officers that he in fact had a gun.
See Terry v. Ohio, 88 S. Ct. 1868, 1883 (1968).
In the light of Officer Moncrief’s prior knowledge of Murray’s criminal
history1 and the discovery of a gun during a pat-down search, probable cause
existed to arrest Murray for being a felon in possession of a gun. Probable cause
also existed to arrest Murray for possession of marijuana. Officer Moncrief
1
In denying Murray’s motion to suppress, the district court credited Officer Moncrief’s
testimony that, at the time of the traffic stop, he knew Murray was a convicted felon. Because
this credibility determination is not “contrary to the laws of nature” or “so inconsistent or
improbable on its face,” we accept the district court’s factual finding. See United States v.
Pineiro, 389 F.3d 1359, 1366 (11th Cir. 2004).
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smelled marijuana2 and believed that the baggie sticking out of Murray’s front
pocket -- which was in plain view -- was the kind of bag used commonly to
package marijuana; probable cause existed to believe that the baggie contained
contraband. Seizure of the baggie was lawful under the plain view doctrine. See
United States v. Smith, 459 F.3d 1276, 1290 (11th Cir. 2006).
No Fourth Amendment violation has been shown; the district court denied
properly Murray’s motion to suppress evidence seized as a result of the 19 March
traffic stop.
B. 27 March 2013 Search Warrant
We also reject Murray’s challenge to the validity of the search warrant for
his house. When issuing a search warrant, the magistrate judge must “make a
practical, common-sense decision about whether, given all the circumstances set
forth in the affidavit before him, . . . there is a fair probability that contraband or
evidence of a crime will be found in a particular place.” Illinois v. Gates, 103 S.
Ct. 2317, 2332 (1983). In reviewing the issuance of a warrant, we consider
whether “the magistrate had a substantial basis for concluding that probable cause
existed.” Id. (quotations and alterations omitted).
2
We accept the district court’s decision to credit Officer Moncrief’s testimony that he smelled
marijuana. See Pineiro, 389 F.3d at 1366.
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Here, the affidavit supporting the search warrant contained sufficient
information from which the magistrate judge could conclude reasonably that
probable cause existed to search Murray’s home. The affidavit contained details
about a March 2013 investigation of the house, including (1) that several visitors
entered and exited the house after only a few minutes, which the attesting officer
believed was indicative of drug sales; and (2) that a traffic stop of a car leaving the
house resulted in the seizure of three baggies of marijuana, a gun, and over $500 in
small bills. This information was sufficient to establish a fair probability that
contraband would be found at the house. See United States v. Sweeting, 933 F.2d
962, 964-65 (11th Cir. 1991) (affidavit established probable cause to search house
where informants’ tip about drug activities was confirmed by officer’s observation
of a pattern of short and frequent visits, and by the seizure of drugs from a car
leaving the house). That the affidavit also contained details from a 2012
investigation of drug activity at the house did not render the affidavit
constitutionally invalid. The district court committed no error in denying the
motion to suppress evidence seized on 27 March.
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Cow. 27 March 2013 Detention
Murray next contends that he was detained unlawfully during the execution
of the search warrant on 27 March, because he was not physically on property
covered by the search warrant.
When executing a search warrant, officers have a categorical power to detain
occupants who are within the “immediate vicinity of the premises to be searched.”
Bailey v. United States, 133 S. Ct. 1031, 1038, 1042 (2013). In determining
whether an occupant’s detention was lawful, we consider “the lawful limits of the
premises, whether the occupant was within the line of sight of his dwelling, the
ease of reentry from the occupant’s location, and other relevant factors.” Id.
When the search warrant was executed, Murray was standing on the
driveway of a property adjacent to his house. While Murray was beyond “the
lawful limits of the premises” to be searched, the district court committed no error
in determining that Murray was both within sight of his house and could have
easily re-entered the house from his location. Because Murray was, thus, within
the immediate vicinity of the premises to be searched, his detention was lawful.
See id.
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Dall. 27 March 2013 Statements
A criminal suspect has a Fifth and Fourteenth Amendment right to have a
lawyer present during custodial interrogation. Edwards v. Arizona, 101 S. Ct.
1880, 1883 (1981). Once a suspect invokes his right to counsel, custodial
interrogation must cease until a lawyer is present or until the suspect reinitiates
contact with the police. Id. at 1884-85.
The parties do not dispute that Murray invoked his right to counsel when he
first spoke with Officer McLeod during a custodial interrogation and that Murray
also later requested to speak with Officer McLeod. At the suppression hearing, the
parties presented conflicting testimony about what happened between Murray’s
first and second conversation with Officer McLeod. Crediting the officers’
testimony, the magistrate judge found that no officer promised Murray that, in
exchange for a confession, his girlfriend and 17-year-old son would be released.
Because this credibility determination is neither inconsistent with the facts nor
improbable on its face, we accept the magistrate judge’s finding that no such
promise was made. See Pineiro, 389 F.3d at 1366.
Furthermore, to the extent Murray was motivated to waive his Miranda
rights by a desire to protect his girlfriend and son, such motivation did not render
his waiver involuntary. The Fifth Amendment is not implicated by “moral and
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psychological pressures to confess emanating from sources other than official
coercion.” Or. v. Elstad, 105 S. Ct. 1285, 1290 (1985). And an officer’s statement
that a suspect’s friend or family member will be arrested unless he confesses is not
coercive so long as -- when the officer spoke -- the officer had probable cause to
effect the threatened arrest. Thompson v. Haley, 255 F.3d 1292, 1297 (11th Cir.
2001). Here, probable cause existed to arrest Murray’s girlfriend and son based on
their presence in the house where drugs and a gun had already been found. See
United States v. Harris, 20 F.3d 445, 454 (11th Cir. 1994) (concluding that a
defendant’s unrestricted access to a home in which drugs were found permitted the
jury to infer that defendant maintained constructive possession of the drugs).
On this record, nothing evidences that Murray’s statements to Officer
McLeod were coerced or that Murray waived unknowingly or involuntarily his
right to counsel. The district court committed no error in denying Murray’s motion
to suppress.
II.
Murray next challenges the district court’s denial of his motion to dismiss --
on grounds of vindictive prosecution -- Count Five. Murray contends that, after
Murray moved successfully to dismiss the case for violations of the Speedy Trial
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Act, the prosecutor re-indicted Murray (adding Count Five) in violation of
Murray’s due process rights.
We review de novo whether the prosecutorial vindictiveness doctrine
applies. United States v. Barner, 441 F.3d 1310, 1315 (11th Cir. 2006).
Because Count Five was added pretrial, no presumption of vindictiveness
arose. See id. at 1316 (“While a prosecutor’s decision to seek heightened charges
after a successful post-trial appeal is enough to invoke a presumption of
vindictiveness, ‘proof of a prosecutorial decision to increase charges after a
defendant has exercised a legal right does not alone give rise to a presumption in
the pretrial context.’”). And nothing evidences that the prosecutor acted with
actual vindictiveness in charging Murray with an additional count. To the
contrary, the government agreed with Murray that his rights to a speedy trial had
been violated and, thus, that dismissal without prejudice of his initial case was
appropriate. The government then proffered a legitimate reason for its decision to
add Count Five: to eliminate, for purposes of sentencing, the need to show that the
drugs were inextricably intertwined with another count. The record supports the
district court’s conclusion that the new charge was not added vindictively.
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III.
We reject Murray’s argument that the district court denied him his right to
testify. Because Murray raised no objection in the district court, we review this
issue only for plain error. See United States v. Rodriguez, 398 F.3d 1291, 1298
(11th Cir. 2005).
“[I]t is primarily the responsibility of defense counsel to advise the
defendant of his right to testify and thereby to ensure that the right is protected.”
United States v. Van De Walker, 141 F.3d 1451, 1452 (11th Cir. 1998). “[A] trial
court has no sua sponte duty to explain to a criminal defendant that he has a right
to testify or to conduct an on-the-record inquiry into whether a defendant that is
not testifying has waived the right knowingly, voluntarily, and intelligently.” Id.
In pertinent part, after Murray told the district court that he intended to
testify, Murray asked the trial judge whether his prior felony convictions would
come into evidence. The district court explained that, if Murray testified, he would
be subject to cross-examination about the details of his prior convictions. The
district court did not, however, explain that the government’s ability to ask about
Murray’s prior convictions would be limited by Fed. R. Evid. 609. The court then
reiterated that Murray had an absolute right to testify and that the decision whether
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to testify was entirely up to Murray. Murray said he understood and that he had
decided not to testify.
Although the district court may have failed to explain fully the
circumstances under which Murray’s prior convictions could be introduced, the
district court committed no plain error. First, the details of at least some of
Murray’s prior convictions would have been admissible under Rule 609. Murray
also had ample opportunity to discuss with his lawyer his decision to testify.
Nothing evidences that the district court’s comments unduly influenced Murray’s
decision not to testify or impaired Murray’s ability to waive knowingly his right to
testify. 3 We see no reversible error.
IV.
We reject Murray’s challenges to his below-guidelines sentence. 4 First, the
district court applied properly an enhanced sentence under the Armed Career
Criminal Act, 18 U.S.C. § 924(e) (“ACCA”), because Murray had three qualifying
3
Murray’s reliance on our decision in United States v. Hung Thien Ly, 646 F.3d 1307 (11th Cir.
2011), is misplaced. Unlike the defendant in Hung Thien Ly, Murray was not acting pro se and
displayed no obvious misunderstanding about his right to testify.
4
Murray’s appellate brief contains no plain and prominent argument about the substantive
reasonableness of his sentence; that issue is abandoned. See United States v. Jernigan, 341 F.3d
1273, 1283 n.8 (11th Cir. 2003).
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predicate offenses, including two serious drug crimes and a conviction for
terroristic threats.
The district court also applied properly a four-level enhancement under
U.S.S.G. § 2K2.1(b)(6)(B) and a one-level enhancement under section 4B1.4 based
on Murray’s possession of a gun in connection with a felony offense. Murray was
convicted of possession with intent to distribute marijuana; when he was arrested,
he had both marijuana and a gun on his person. An enhancement under section
2K2.1(b)(6)(B) is proper “in the case of a drug trafficking offense in which a
firearm is found in close proximity to drugs.” U.S.S.G. § 2K2.1, comment.
(n.14(B)(ii)); see also United States v. Carillo-Ayala, 713 F.3d 82, 92 (11th Cir.
2013) (explaining that a gun found in close proximity to drugs “simply ‘has’ --
without any requirement for additional evidence -- the potential to facility the drug
offense.” (emphasis in original)). Moreover, contrary to Murray’s argument, “[a]
jury’s verdict of acquittal does not prevent the sentencing court from considering
conduct underlying the acquitted charge, so long as that conduct has been proved
by a preponderance of the evidence.” United States v. Watts, 117 S. Ct. 633, 638
(1997).
AFFIRMED.
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