United States v. Moore ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 95-5232
WALTER PATRICK MOORE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
M. J. Garbis, District Judge.
(CR-94-257)
Submitted: February 27, 1996
Decided: March 20, 1996
Before HAMILTON and MOTZ, Circuit Judges, and CHAPMAN,
Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Paula M. Junghans, MARTIN, JUNGHANS, SNYDER & BERN-
STEIN, P.A., Baltimore, Maryland, for Appellant. Lynne A. Bat-
taglia, United States Attorney, Jamie M. Bennett, Assistant United
States Attorney, Baltimore, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Walter Moore was convicted, after a jury trial, of possession of a
firearm by a convicted felon, 18 U.S.C. § 922(g)(1) (1988), and pos-
session of crack cocaine with intent to distribute, 21 U.S.C.
§ 841(a)(1) (1988). On appeal he contends that evidence obtained
during a search of his home should have been suppressed on the
ground of coercion, and that the evidence was insufficient to support
his convictions. Finding no error, we affirm.
I
Officers of the Howard County (Maryland) Police Department exe-
cuted a valid search warrant at Moore's home on the evening of
March 28, 1994. The officers broke down the front door of Moore's
home and entered the living room, where Moore, his wife, and his
eighteen-month old daughter were watching television. They hand-
cuffed Moore and his wife, allowing his wife to hold the child on her
lap.
According to the testimony of the police officers, Sergeant Coon
secured the house and began a systematic search. Officers Ensko and
Bender took Moore into the bathroom for questioning and advised
him of his Miranda rights. Ensko informed him that his wife might
also be arrested, depending on what they found during the search.
Ensko further stated that if Moore told him where the drugs and
weapons were, his wife would not be arrested that night, though she
might be arrested later. Ensko said that if his wife was arrested,
Moore's daughter might be placed in foster care, or the officers could
call a family member to get her. In any event, though, Social Services
would be notified that Moore's daughter was in a house where drugs
were found, and Social Services would ultimately determine the fate
of the child. Moore asked if the officers could call an uncle to come
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and get his daughter, but the officers declined his request at that time.
Ultimately, his wife was not arrested, and the daughter stayed with
her.
During the questioning in the bathroom, Moore admitted to having
one weapon, a 9 mm. Smith & Wesson handgun, in a hall closet. The
officers brought Moore back into the living room, and one of them
told Coon about the gun. Coon continued his search, and when he got
to the closet he found the Smith & Wesson handgun and ammunition
on the top shelf. When Moore saw that Coon had discovered the gun,
Moore said that the gun did not belong to his wife. He said he got the
gun from a friend, and admitted that he was on parole for a felony.
Ensko then searched Moore's van, where he found an aerosol can
with a false bottom; the can contained forty-one grams of crack
cocaine. Although Moore voluntarily turned over the keys, he did not
tell the officers about the drugs in the van.*
As the search continued, Officer Bender found a .32 caliber JLG
revolver hidden under a nightstand in the bedroom.
Moore was taken to the police station for booking and additional
questioning. The officers gave Moore another Miranda warning, and
he executed a written waiver. He then made a written statement
admitting ownership of the guns found in his house, and an oral
admission (but not a written statement) that the drugs found in his van
were his. Bender said that he told Moore his wife had not been
arrested.
The Moores' testimony varied somewhat from that of the officers.
Moore testified that shortly after the officers broke down the living
room door, they stated that they were searching for drugs, and if they
found any they would arrest Mrs. Moore and put the child in foster
care. The officers took him into the bathroom, and he asked if he
could call someone to get his daughter; the officers refused. They
began explaining what they were looking for without giving him any
sort of Miranda warning. One of the officers in the living room called
_________________________________________________________________
*Moore concedes that the search of the van was not improper.
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up to the bathroom, saying that he had found bullets. Moore then told
the officers where both of his guns were hidden.
The officers searched the van and found the drugs. They took
Moore to the police station without telling him whether his wife was
going to be arrested. After he was booked, he asked to call home to
check on his wife and daughter, but the officers denied his request.
He further testified that he wanted to call home to get his lawyer's
telephone number, but the officers told him not to worry about calling
a lawyer at that time.
The officers told Moore that if he did not want his wife to be
arrested and his daughter taken away, he would have to make a state-
ment about the guns. They read Moore a Miranda warning, and he
signed a waiver form. Moore asked the officers what he needed to say
in the statement, and said that he would write down whatever they
wanted. He admitted, however, that the words on the statement were
his own.
Mrs. Moore testified that after the officers restrained her husband,
she asked several times if she or the officers could call a neighbor to
get her daughter. The officers refused. They said that if they found
contraband, both of the Moores would be arrested and their daughter
would be placed in emergency care. She said Ensko told Moore that
the search could be easy, or they could tear the place apart, and that
Moore responded by admitting to the gun in the closet. The officers
completed the search of the house and the van and took Moore to the
police station. As they left, they told Mrs. Moore that she would not
be arrested that night, and they left the child with her.
Moore moved to suppress the firearms, claiming that the officers
coerced him into telling them where one of the guns was concealed,
and coerced him into admitting the guns were his. The district judge
denied the motion based on the testimony at the suppression hearing.
After a jury trial, at which the Moores and the officers testified,
Moore was convicted of possession of cocaine base with intent to dis-
tribute and possession of a firearm by a convicted felon. He timely
appealed.
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II
Moore contends that the district court erred in denying his suppres-
sion motion for two reasons. First, he claims that the officers coerced
him into admitting the location of the concealed firearms by threaten-
ing to arrest his wife and have his daughter placed in foster care if he
did not reveal the location of the weapons. He claims that without this
coercion the officers might not have found the firearms. Second, he
contends that the officers coerced him into admitting the guns were
his--if not for this coercion, Moore claims, the jury might have
believed the guns did not belong to him, and might not have con-
victed him.
The district court's findings of fact on a suppression hearing are
reviewed for clear error. United States v. Rusher, 966 F.2d 868, 873
(4th Cir.), cert. denied, ___ U.S. ___, 61 U.S.L.W. 3285 (U.S. Oct.
13, 1992) (No. 92-5732). The decision to suppress is reviewed de
novo. Rusher, 966 F.2d at 873. The threshold question is whether the
disputed evidence was obtained as the result of illegal government
conduct. New York v. Harris, 495 U.S. 14 (1990).
Moore does not deny that the officers had a valid warrant to search
his home and van. In light of this concession, Moore's claim that the
officers would not have found the guns but for his cooperation is spe-
cious. There is no reason to believe that the officers, executing a
search warrant for weapons and drug paraphernalia, would not have
conducted the search in a thorough, exhaustive manner. The guns
were found in a closet and behind a nightstand, neither one a hiding
place so clever as to have likely avoided detection. Even if Moore had
not told the officers about the location of the guns, the officers would
not have acted improperly in executing the search warrant by looking
in the closet and behind the nightstand because the objects they
sought could easily have been concealed in those places. See Pachaly
v. City of Lynchburg, 897 F.2d 723, 726 (4th Cir. 1990). Further,
although the officers' badgering of Moore was far from admirable, it
cannot be said that the officers would not have found the firearms but
for their coercion. See Young v. Maryland, 455 F.2d 679 (4th Cir.),
407 U.S. 915 (1972).
Second, Moore's contention that the officers coerced him into
admitting ownership of the firearms is also without merit. A confes-
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sion is involuntary if given in circumstances suggesting that the
defendant's will has been overborne and that his"capacity for self-
determination [was] critically impaired." Schneckloth v. Bustamonte,
412 U.S. 218, 225 (1973). If the totality of the circumstances demon-
strate that a confession was coerced by threats or promises, the con-
fession is involuntary. Arizona v. Fulminante , 499 U.S. 279 (1991).
The voluntariness of a confession must be established by a preponder-
ance of the evidence. Lego v. Twomey, 404 U.S. 477 (1972).
Moore relies heavily on United States v. Tingle , 658 F.2d 1332 (9th
Cir. 1981), to support his claim that the officers coerced him to admit
ownership of the guns. In Tingle, the Ninth Circuit found involuntary
a confession that was induced by statements to the defendant that she
faced a long sentence and would not see her daughter for "a while"
if she did not cooperate. 658 F.2d at 1334. The interrogation lasted
an hour; the defendant began visibly shaking and sobbing, and even-
tually confessed to participating in a robbery. The officers' statements
were, according to the Ninth Circuit, "patently coercive." 658 F.2d at
1336.
Moore also relies on Ferguson v. Boyd, 566 F.2d 873 (4th Cir.
1977), in which this court found a confession involuntary because the
defendant's girlfriend was held on "shaky ground," apart from her
small children, for an extended period of time in an effort to obtain
the defendant's cooperation. The court noted, however, that "a con-
fession is not per se invalid merely because the confessor implicates
himself in an effort to secure the best possible disposition of a charge
pending against a relative or friend." 566 F.2d at 878 n.7.
The case at bar, although similar to Tingle and Ferguson, is distin-
guishable in several important respects. First, unlike the situation in
Ferguson, Moore's wife was never arrested or detained, other than the
brief period during which she was handcuffed in the home. Second,
unlike the facts in Tingle, the officers here did not threaten Moore
with a long term of imprisonment during which he would not be able
to see his daughter; rather, the officers suggested that they might have
to place the daughter in foster care until the situation was resolved.
As the district court correctly found, the officers were simply inform-
ing Moore of the natural consequences of his illegal acts. Their meth-
ods were certainly harsh; however, we find that their actions were not
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so extreme as to overcome Moore's will. Therefore, we affirm the
district court's denial of Moore's motion to suppress.
III
Moore also claims that the evidence was insufficient to support his
convictions. In reviewing the sufficiency of the evidence, this court
looks to whether, viewing the facts in the light most favorable to the
government, any rational jury could have found the defendant guilty.
United States v. Tresvant, 677 F.2d 1018 (4th Cir. 1982). This court
reviews both direct and circumstantial evidence, and permits the gov-
ernment the benefit of all inferences that may reasonably be drawn
from the facts proved to those sought to be established. Id. Further,
the credibility of the witnesses is within the sole province of the jury,
and the jury's determination in this regard is not reviewable. United
States v. Saunders, 886 F.2d 56 (4th Cir. 1989).
The evidence in this case was more than sufficient to support the
jury's verdict on the firearm count. The elements of the offense are
(1) possession, (2) by a convicted felon, (3) of a firearm, (4) in or
affecting interstate commerce. 18 U.S.C. § 922(g)(1). Moore does not
deny that he was a convicted felon, or that the firearms travelled in
interstate commerce. His only claim is that the guns found in the
house belonged to his wife, so he did not possess them. However,
Moore admitted to Bender at the police station that the firearms were
his. The jury had before it Moore's contradictory testimony and his
sworn statement admitting ownership of the firearms. The jury's
determination regarding which evidence to believe should not be dis-
turbed on appeal. Saunders, 886 F.2d at 60. When viewed in the light
most favorable to the Government, the evidence was sufficient to sup-
port the jury's verdict. Tresvant, 677 F.2d at 1021.
Further, the evidence supports the conviction for possession of
cocaine base with intent to distribute, 21 U.S.C.§ 841(a)(1). Moore's
constructive possession of the drugs is established by their presence
in his van. See United States v. Pearce, 65 F.3d 22, 25-26 (4th Cir.
1995); United States v. Hernandez-Palacios, 838 F.2d 1346, 1349
(5th Cir. 1988). Further, the quantity of drugs--forty-one grams of
cocaine base--supports a finding of intent to distribute. See United
States v. Nelson, 6 F.3d 1049, 1053 (4th Cir. 1993) (intent to distrib-
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ute may be inferred from possession of amount of drugs inconsistent
with personal use), cert. denied, ___ U.S. ___, 62 U.S.L.W. 3792(U.S. May 31. 1994) (No. 93-8210); United States v. Fisher, 912 F.2d
728, 730 (4th Cir. 1990) (same), cert. denied , 500 U.S. 919 (1991).
The jury was entitled to discredit Moore's testimony that he did not
know the drugs were in the van; that credibility determination is not
reviewable. Saunders, 886 F.2d at 60. The remaining evidence, when
viewed in the light most favorable to the Government, supports the
jury's verdict on the charge of drug possession with intent to distrib-
ute. Because the evidence was sufficient to support the jury's verdict,
we affirm Moore's conviction.
We dispense with oral argument because the facts and legal conten-
tions are adequately presented in the materials before the court and
argument would not aid the decisional process.
AFFIRMED
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