United States v. Kim M. Buckley and Mark R. Herman

4 F.3d 552, 1993 U.S. App. LEXIS 23568, 1993 WL 347139
CourtCourt of Appeals for the Seventh Circuit
DecidedSeptember 14, 1993
Docket92-3849, 92-3869
StatusPublished
Cited by58 cases

This text of 4 F.3d 552 (United States v. Kim M. Buckley and Mark R. Herman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Kim M. Buckley and Mark R. Herman, 4 F.3d 552, 1993 U.S. App. LEXIS 23568, 1993 WL 347139 (7th Cir. 1993).

Opinion

MANION, Circuit Judge.

Kim Buckley and Mark Herman lived in a mobile home where they grew marijuana and distributed cocaine. Pursuant to a search warrant, the police gathered overwhelming evidence of guilt. The defendants pleaded guilty and reserved several issues for appeal — arguing the search warrant was not supported by probable cause, the search exceeded the scope of the warrant, the police failed to knock and announce, and that certain incriminating statements made after their arrest were involuntary and taken after invoking the right to counsel. The district court denied the motions to suppress, and we affirm.

I. Background

On April 2, 1992, Don Bates, a Fitchburg, Wisconsin police officer, applied for a search warrant. A Dane County circuit court judge signed the warrant based on information provided by a confidential informant, now known as Karen Wickline. The application for the warrant stated as follows. Wickline regularly purchased cocaine from the defendants and had seen firearms inside the trailer. She admitted obtaining cocaine from the defendants at least twenty-five times in the previous six months. She saw cocaine lying around the trailer as well as a triple beam scale and packaging materials. Apparently, Herman was also a hunter who kept firearms within view. Wickline had gone recently to the defendants’ residence where they had shown her a number of marijuana plants growing in the spare bedroom. They were about a foot high, with fluorescent lights and fans in the room. Officer Bates knew from his experience that such lighting and ventilation aided the marijuana production process. He stated that Wickline had provided him with a total of fifteen pieces of information that he had corroborated by independent means. The judge signed the search warrant for the defendants’ mobile home.

The following day Wickline again purchased cocaine and associated paraphernalia from the defendants, this time at Officer Bates’ direction. The police officers planned to search the mobile home later that evening. At approximately 8:00 p.m., Officer Bates approached the home carrying a “catch pole.” He was assigned to catch the defendants’ pet, a pit bull named “Boomer.” Six other officers lined up behind the front door; only one was in uniform. A total of fourteen officers were involved in executing the warrant. According to Officer Bates, he knocked two or three times on the door, Buckley opened it, and Officer Bates said in a moderate voice (hoping not to arouse the pit bull), “Police, search warrant,” and then he hit the door open with his left hand. Officer Bates captured the dog and arrested the defendants without incident. After an initial walk-through of the premises, Officer Bates discovered the marijuana growing in the spare bedroom as expected, and a small bag of powder on the bed, later determined to be about an ounce of cocaine.

Officers Bates and Richard Pharo used the trailer’s bathroom to talk to the defendants while the other officers executed the search. It was about six feet square, with a washer and dryer, toilet, sink and tub, and included traversable floor space of about two feet by four feet. The officers told the defendants that if they cooperated, the prosecutor would be so informed. They also discussed the possibility of the defendants not going to jail that night, depending on their cooperation. Herman stated “I don’t know if I need an attorney,” to which the officers responded by asking Herman if he wanted an attorney, or if he had an attorney in mind, to which Herman responded “No.” Herman testified that he only answered questions based on the *555 officers’ proposed “deal” of not taking him to jail.

After this colloquy, Officer Bates read Herman his Miranda rights, and Herman responded that he understood them. Officer Bates then asked Herman if he wished to waive these rights and speak to the officers without an attorney present, to which Herman responded, ‘Yes, I’ll talk to you.” The officers brought defendant Buckley, who had been waiting nearby, into the bathroom and followed the same routine. Buckley stated that she understood her Miranda rights and was willing to talk to the officers without an attorney present. Shortly thereafter, the defendants asked to speak with each other alone. The officers agreed and stepped out into the hallway, leaving the bathroom door slightly ajar. Officers Bates claims that he heard Herman say that he was not sticking around for federal charges. After a few minutes the officers re-entered the bathroom and continued their questioning, including the topic of cooperation and not going to jail that night.

After Officer Bates had found the small bag in his initial walk-through, Herman told the officers that this was the only cocaine in the residence. Unbeknownst to the defendants, the officers had reason to believe that the defendants had up to a kilogram of cocaine on the premises (although this was not mentioned in the search warrant application). Whatever deal Officers Bates and Pharo and the defendants might have arranged was cut short when other officers discovered nearly a kilogram of cocaine behind the door of the master bedroom. When asked why he lied about the amount of cocaine, Herman responded “I don’t know.” The interview had lasted approximately thirty minutes; within the hour the defendants were in jail.

Wisconsin turned the defendants over to federal authorities for prosecution. They were charged with various drug and firearm offenses. After a total of twelve briefs on the issues, a magistrate judge recommended denial of the defendants’ motions to suppress, which the district court adopted. 1 On the condition that the motion to suppress issues would be preserved on appeal, Herman pleaded guilty to possession of cocaine with intent to distribute and using a firearm during and in relation to a drug trafficking crime. He was ultimately sentenced to 92 months on the drug charge and a consecutive 60 months on the firearms offense. Buckley also conditionally pleaded guilty to possessing cocaine with intent to distribute and received a 78 month sentence. On appeal, they renew arguments for suppressing the evidence procured under the search warrant, including no probable cause, exploratory rummaging, the officers’ failure to properly knock and announce their entry, and that certain incriminating statements made after arrest were involuntary and taken after having invoked their right to counsel.

II. Discussion

A Whether Probable Cause Supported the Warrant

The Fourth Amendment protects people from unreasonable searches in part by requiring that search warrants be supported by probable cause. In this case a Dane County circuit court judge found that sufficient probable cause existed to search the defendants mobile home. He found the confidential informant credible and believed that the defendants were growing marijuana at that location. We review such findings for clear error. United States v. Adebayo, 985 F.2d 1333, 1337 (7th Cir.), cert. denied, — U.S. -, 113 S.Ct. 2947, 124 L.Ed.2d 695 (1993); United States v. Soria, 965 F.2d 436, 439 (7th Cir.1992); United States v. Spears, 965 F.2d 262, 270 (7th Cir.), cert. denied, — U.S. -, 113 S.Ct. 502, 121 L.Ed.2d 438 (1992).

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Cite This Page — Counsel Stack

Bluebook (online)
4 F.3d 552, 1993 U.S. App. LEXIS 23568, 1993 WL 347139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-kim-m-buckley-and-mark-r-herman-ca7-1993.