UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-4877
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
DONALD HANTON,
Defendant - Appellant.
Appeal from the United States District Court for the District of
South Carolina, at Orangeburg. Margaret B. Seymour, District
Judge. (CR-03-402)
Submitted: June 13, 2006 Decided: July 12, 2006
Before KING, GREGORY, and SHEDD, Circuit Judges.
Affirmed by unpublished per curiam opinion.
John A. O’Leary, Columbia, South Carolina, for Appellant. Jonathan
S. Gasser, United States Attorney, Jane B. Taylor, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Columbia,
South Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Donald Hanton appeals from his convictions in the District of
South Carolina for a controlled substance conspiracy and a separate
money laundering conspiracy. On appeal, he contends that the
district court erred in denying his motion to suppress on, inter
alia, the following grounds: (1) the search warrant authorizing
the search of his residence was not supported by probable cause;
(2) the firearms seized during the search were outside the scope of
the warrant; and (3) his statements to federal agents were obtained
in violation of his Fifth Amendment rights. As explained below, we
reject these contentions and affirm.
I.
During an investigation into a potential cocaine trafficking
conspiracy, federal agents uncovered evidence implicating Hanton in
drug trafficking and money laundering activity. Relying on that
evidence, the agents sought and obtained a search warrant for 114
Elijah Lane, Dorchester, South Carolina. The affidavit supporting
the search warrant indicated that Hanton resided at 114 Elijah Lane
with his girlfriend, Teresa Wilson.1 The affidavit specified that
Hanton had received sentences of two, four, and ten years for prior
1
According to the search warrant affidavit, Hanton listed 114
Elijah Lane as his residence on various loan applications, W-2
forms, and records of vehicle purchases.
2
convictions, and it contained information regarding Hanton’s
potential drug trafficking and money laundering activities.
The drug trafficking information came from the statements of
three incarcerated inmates who asserted that Hanton sold them
cocaine and crack cocaine between 1996 and 1999. The information
concerning money laundering included various financial
transactions, employment records, and tax returns. According to
the affidavit, Hanton and Wilson leased or purchased five vehicles
between 1998 and 2001 for a total price of $81,211, including cash
down payments totaling $22,875. Although Hanton paid for several
of these vehicles, at least four of them were registered in
Wilson’s name. Hanton, meanwhile, filed no tax returns between
1996 and 2000, and reported only $13,021 in income for 2001.
During this time, Wilson claimed an annual salary of $18,000.
On January 23, 2003, the magistrate judge issued a search
warrant for 114 Elijah Lane. Although agents requested that the
warrant authorize a search for evidence of both money laundering
and drug trafficking, the magistrate judge found probable cause
only that the residence would contain evidence of money laundering.
Accordingly, the search warrant authorized the search and seizure
of evidence of money laundering, but did not authorize the search
and seizure of evidence of drug trafficking.
The facts relating to the execution of the search warrant and
the motion to suppress are undisputed. Agents executed the search
3
warrant on January 27, 2003. When Hanton arrived home from work
that day, agents Phil Ardis and Charles K. Cox approached him,
explaining that they had a warrant to search the premises and that
they wished to seek his assistance with their investigation.2 They
assured Hanton that he was not under arrest, and Hanton unlocked
the door and let them in so that they could execute the warrant.
Several agents searched the residence and seized, among other
things, two handguns and ammunition. While the search was ongoing,
agents Cox and Sean McMicking spoke with Hanton about cooperating
and told him about the possibility of signing a proffer agreement.
Under such an agreement, Hanton would be fully truthful about the
criminal acts of himself and others, and he would submit to a
polygraph examination. The Government, for its part, would not use
his statements against him. The tone of the discussion was
conversational, and no threats were made to prosecute Hanton for
possessing the two handguns. Moreover, the agents never handcuffed
Hanton or drew their firearms in his presence. Indeed, once the
residence was secured, they told Hanton that he was free to leave.
At the conclusion of the search, Hanton agreed to enter into
a proffer agreement. Accompanied by agent Cox, Hanton drove
himself to the Drug Enforcement Agency (“DEA”) office. Upon
2
In approaching Hanton with the search warrant, the two agents
were dressed in plainclothes and followed Hanton to the back of the
residence to avoid the attention of other suspects in the
investigation who lived nearby.
4
arrival, Cox presented Hanton with a proposed agreement and allowed
Hanton to read it. Because Hanton had not finished high school,
Cox then read the proposed agreement to him and described it in
layman’s terms. Hanton promptly signed the proffer agreement and
proceeded to make statements implicating himself and others.
Hanton later refused to submit to a polygraph examination,
thereby breaching the proffer agreement. As a result, on June 9,
2004, the grand jury indicted him for three offenses: conspiracy
to possess with intent to distribute and to distribute 5 kilograms
or more of cocaine and 50 grams or more of “crack” cocaine, in
violation of 21 U.S.C. § 846 (2000) (Count 1); being a felon in
possession of firearms and ammunition, in violation of 18 U.S.C. §
922(g)(1) (Count 2); and money laundering conspiracy, in violation
of 18 U.S.C. §§ 1956(a)(1), 1957 (Count 3).
On September 2, 2004, Hanton moved to suppress the evidence
seized pursuant to the search warrant and the statements he had
made pursuant to the proffer agreement. By his motion, Hanton
contended that the warrant was not supported by probable cause and
that the firearms seized were beyond its scope. He further
asserted that his statements were made involuntarily and without
the benefit of Miranda warnings. On November 29, 2004, the
district court conducted a hearing on the motion to suppress, after
which the court orally denied the motion.
5
On December 3, 2004, Hanton entered conditional pleas of
guilty on Counts 1 and 3, pursuant to Fed. R. Crim. P. 11(a)(2),
preserving his right to appeal the denial of his suppression
motion. On August 26, 2005, the district court sentenced him to
concurrent sentences of 240 months imprisonment on Count 1 and 240
months imprisonment on Count 3. Hanton has timely noted this
appeal, and we possess jurisdiction pursuant to 28 U.S.C. § 1291.
II.
In reviewing the denial of a suppression motion, we review a
district court’s factual findings for clear error and its legal
conclusions de novo. See United States v. Johnson, 114 F.3d 435,
439 (4th Cir. 1997). And, in so doing, we give “great deference”
to a magistrate judge’s determination of probable cause for the
issuance of a search warrant. See United States v. Wilhelm, 80
F.3d 116, 119 (4th Cir. 1996) (citing Illinois v. Gates, 462 U.S.
213, 236 (1983)).
III.
Hanton makes three principal contentions on appeal, all of
which relate to his motion to suppress: (1) the search warrant was
not supported by probable cause; (2) the seized firearms were
outside the scope of the search warrant; and (3) his statements
under the proffer agreement were obtained in violation of his Fifth
6
Amendment rights.3 We assess each of these contentions in turn.
A.
Hanton first asserts that the search warrant was not supported
by probable cause because the information on which it was based was
stale, in that it related to events at least three years before the
search warrant was sought and issued. In assessing probable cause,
a magistrate judge is obliged to determine “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, 462 U.S. 213, 238
(1983). On appeal, “[o]ur inquiry is directed to whether the
magistrate judge had a substantial basis for his conclusion that
probable cause existed.” United States v. Williams, 974 F.2d 480,
481 (4th Cir. 1992).
The facts spelled out in the challenged affidavit provided a
substantial basis for the magistrate judge to determine that
3
Hanton also contends that, because agents failed to leave a
correct copy of the search warrant at the residence, as mandated by
Fed. R. Crim. P. 41(f), the evidence seized pursuant thereto must
be suppressed. Because he raises this issue for the first time on
appeal, our review is for plain error only. See United States v.
Baldovinos, 434 F.3d 233, 239 (4th Cir. 2006). As we observed in
Simons, the failure to leave a correct copy of the warrant does not
contravene the Fourth Amendment. United States v. Simons, 206 F.3d
392, 403 (4th Cir. 2000). Thus, in order to prevail on this issue,
Hanton must show either (1) that the failure to leave a correct
copy of the warrant at the premises was deliberate, or (2) that he
was prejudiced by such failure. See id. Hanton, however, has not
attempted to demonstrate either of these requirements, and the
district court thus did not plainly err in denying relief on this
contention.
7
probable cause existed. As discussed above, the affidavit
indicated that Hanton had sold drugs at 114 Elijah Lane between
1996 to 1999. It further indicated that Hanton and Wilson leased
or purchased five vehicles between 1998 and 2001, on which they
spent sums of money that were grossly disproportionate to the their
reported incomes for those years. Furthermore, although Hanton
provided the cash down payments for some of the vehicles, four of
them were placed in Wilson’s name.
To be sure, the events identified in the affidavit occurred
three years before the search warrant was issued. Nevertheless,
“[t]he vitality of probable cause cannot be quantified by simply
counting the number of days between the occurrence of the facts
supplied and the issuance of the affidavit.” United States v.
Farmer, 370 F.3d 435, 439 (4th Cir. 2004) (concluding that probable
cause existed to search for evidence of money laundering even
though events supporting search warrant had occurred nine months
earlier). First, documentary evidence of money laundering “[is]
not ordinarily destroyed or moved about from one place to another.”
Id. at 440. Second, money laundering offenses are not “mere
isolated violation[s],” but are crimes of “a protracted and
continuous nature.” Id. at 439. Given the specific information
contained in the affidavit and the nature of the money laundering
activities spelled out therein, the magistrate judge had a
substantial basis for determining that there was a fair probability
8
that evidence of money laundering would be found at 114 Elijah
Lane.
B.
Hanton next contends that the seized firearms should have been
suppressed by the district court because they were outside the
scope of the search warrant. A search warrant must “particularly
describe” items to be seized. United States v. Legg, 18 F.3d 240,
242 (4th Cir. 1994). The search warrant for 114 Elijah Lane
authorized seizure of documentary evidence of money laundering; it
did not specify firearms. Thus, the firearms must be suppressed
unless their seizure falls within some recognized exception to the
warrant requirement. Id.
The district court concluded that the seizure of the firearms
fell within the plain view exception to the warrant requirement.
Under the plain view doctrine, a warrantless search is authorized
when “(1) the officer is lawfully in a place from which the object
may be plainly viewed; (2) the officer has a lawful right of access
to the object itself; and (3) the object’s incriminating character
is immediately apparent.” United States v. Jackson, 131 F.3d 1105,
1109 (4th Cir. 1997). On this point, Hanton contends only that the
incriminating character of the firearms was not “immediately
apparent” to the searching officers because the residence searched
and the firearms seized were owned by Wilson, not Hanton, and
9
because the agents and officers were not individually aware that
Hanton was a convicted felon.
In order to justify a plain view seizure, however, it need not
be immediately apparent to each involved officer that the items
seized are incriminating; “it is sufficient that the agents
collectively [have] probable cause to believe the weapon [is]
evidence of a crime at the time of the seizure.” United States v.
Wells, 98 F.3d 808, 810 (4th Cir. 1996) (emphasis added).
Importantly, the affidavit supporting the search warrant specified
that Hanton resided at 114 Elijah Lane. The officers were thus
justified in believing that he possessed any firearms found
therein, regardless of who actually owned the residence or the
firearms. And the affidavit specified that he was a three-time
convicted felon, which was more than sufficient to provide probable
cause that the firearms were evidence that he was a felon in
possession of firearms, in contravention of 18 U.S.C. § 922(g)(1).
See Wells, 98 F.3d at 810. The incriminating nature of the
firearms was thus immediately apparent, and their seizure was
appropriate under the plain view doctrine.
C.
Hanton next contends that his statements made pursuant to the
proffer agreement should have been suppressed because (1) the
statements were made while he was in custody and without the
10
benefit of Miranda warnings, and (2) the statements were not made,
and the proffer agreement was not signed, voluntarily.4
1.
Hanton first asserts that the statements were made while he
was subject to a “custodial interrogation” and entitled to Miranda
warnings. See Miranda v. Arizona, 384 U.S. 436, 444 (1966).
Where, as here, there is no formal arrest, “[a]n individual is in
custody for Miranda purposes when, under the totality of the
circumstances, a suspect’s freedom of action is curtailed to a
degree associated with formal arrest.” United States v. Parker,
262 F.3d 415, 419 (4th Cir. 2001) (internal quotation marks
omitted).
The evidence shows that Hanton was not in custody. Hanton let
the agents into the residence with his own keys, the agents did not
handcuff him or draw their weapons in his presence, and they told
him that he was free to leave.5 See id. at 419 (concluding that
4
Hanton further contends that the statements he seeks to
suppress were obtained in contravention of his Sixth Amendment
right to counsel. These statements, however, were made before any
“initiation of adversary judicial proceedings” against him. United
States v. Alvarado, 440 F.3d 191, 199-200 (4th Cir. 2006)
(observing that “the Sixth Amendment applies to ‘criminal
prosecutions’ as opposed to criminal investigations”). Indeed, he
had not even been arrested. Accordingly, Hanton’s right to counsel
had not attached when he made the challenged statements, and the
statements were thus not obtained in contravention of the Sixth
Amendment.
5
Hanton takes out of context a statement made by Cox during a
detention hearing where Cox answered “Yes” to the question, “Did
y’all let him know that he wasn’t free to leave?” Agent Cox later
11
defendant was not in custody where she was told she was not under
arrest; she was never handcuffed, restrained, or told that she
could not leave; she was in her own home and was not forced to
enter the room where the statements were made; and agents did not
draw weapons in her presence). The conversations between Hanton
and the agents were not threatening in tone, and Hanton voluntarily
drove himself to the DEA office, where the challenged statements
were made. See United States v. Uzenski, 434 F.3d 690, 704-05 (4th
Cir. 2006) (concluding that defendant was not in custody where tone
of discussion was not threatening, he came to the office to be
interviewed voluntarily, and he was not forcibly restrained or told
that he was under arrest). Put simply, Hanton was not in custody.
2.
Next, Hanton asserts that the statements should be suppressed
because he did not enter into the proffer agreement or make his
statements voluntarily. See United States v. Braxton, 112 F.3d
777, 780 (4th Cir. 1997) (observing that the Due Process Clause
requires the suppression of statements made where “the defendant’s
will has been overborne or his capacity for self-determination
clarified, in the same detention hearing, “I mispoke the first
time. We originally executed the search warrant, he was not free
to leave when we first got there, because for officer safety we
have to secure the scene prior to letting anyone go. Once the
scene was secured and he had no weapons on him, he was free to
leave.” Viewed in context, the statement of Cox on which Hanton
relies does not demonstrate that he was in custody when he made the
challenged statements.
12
critically impaired” (internal quotation marks omitted)). Hanton
contends that the absence of defense counsel, the existence of
armed agents, and the implied threat to prosecute for the illegal
possession of firearms were sufficiently coercive that he signed
the agreement and made his statements involuntarily. As we
explained in Braxton, however, “[t]he mere existence of threats,
violence, implied promises, improper influence, or other coercive
police activity . . . does not automatically render a confession
involuntary.” Id. Even assuming the agents had advised Hanton
that he could be prosecuted for possession of firearms, “[t]ruthful
statements about [his] predicament are not the type of ‘coercion’
that threatens to render a statement involuntary.” Id. at 782.
The undisputed evidence reflects an absence of any factors that
would have critically impaired Hanton’s capacity for self-
determination. The agents advised Hanton that he was free to
leave, they discussed the details of the proffer agreement with
him, and he then agreed to sign it and make his challenged
statements. The evidence thus fails to support Hanton’s contention
that he signed the agreement and made the statements involuntarily,
and the district court did not err in denying his motion to
suppress the statements.
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IV.
Pursuant to the foregoing, we reject Hanton’s contentions of
error and affirm his convictions. We dispense with oral argument
because the facts and legal contentions are adequately presented in
the materials before us and argument would not aid in the
decisional process.
AFFIRMED
14