U.S. vs. Burnside

While on parole for a cocaine
distribution conviction and following months of police
investigation, defendant Brian Burnside was arrested
for possession of a controlled substance. In a search
incident to his arrest, police found large amounts of
crack cocaine on Burnside’s person. Police then searched
Burnside’s residence where they recovered more crack
cocaine, cocaine, a handgun, and more than $30,000 in
cash. A federal grand jury charged Burnside in a onecount
indictment with possession of more than fifty
grams of crack cocaine with the intent to distribute. See
21 U.S.C. §§ 841(a)(1), (b)(1)(A). Burnside filed a motion
to suppress evidence, arguing that the officers lacked
probable cause for his arrest. He also argued that his
unlawful arrest tainted both the evidence found incident
to that arrest and the search warrant later obtained. The
district court denied the motion. Burnside eventually
pled guilty to the charge and was later sentenced.
Burnside argues on appeal that the district court erroneously
denied the motion to suppress. He also seeks to
withdraw his guilty plea, arguing that the district
court judge inappropriately participated in the plea
colloquy. We find no merit to Burnside’s claims, and
we affirm.

I. BACKGROUND
Brian Burnside was a crack cocaine dealer. In
July 2007, Peoria Police Officer Chad Batterham
received information from two confidential informants
pertaining to Burnside’s drug activities. Both informants
identified Burnside as a high-volume crack cocaine
dealer. The first informant said that Burnside was a
cocaine dealer in the Peoria area and that he was
selling several kilograms of cocaine per month. The
informant also provided a detailed description of
Burnside’s residence. The second informant knew
Burnside by his street-name, Shorty Bank Roll. Because
of Officer Batterham’s personal knowledge and his
police experience in Peoria, as well as a detailed
physical description provided by the informant, he was
confident Shorty Bank Roll was in fact Burnside. To
further refine his identification, Officer Batterham asked
the informant to select a photograph from a photo array
of six men with similar characteristics. The informant
chose the photograph of Burnside and identified him
as Shorty Bank Roll.

Officer Batterham located the residence described by
the two informants. He performed a check on the white
Cadillac parked in the driveway. The car was registered
to Terry Burnside, Brian Burnside’s brother. In a records
check on the residence, Officer Batterham discovered a
police report of a prior burglary in which Terry
Burnside stated that the house belonged to his brother,
Brian. Finally, Officer Batterham ran a criminal history
check on Burnside, which revealed that Burnside was
currently on parole from a Minnesota conviction for
distributing cocaine, and that he had five prior felony
drug convictions.

In September, 2007, the Peoria Police Department’s
Vice and Narcotics Unit initiated surveillance of
Burnside. Officers observed and followed Burnside as
he left his home. Sergeant Bainter and Officer Miller
conducted their observation from two separate
unmarked police vehicles. Both officers saw a woman,
DeEva Hallam, approach Burnside’s vehicle, lean in for
approximately thirty to forty seconds, and leave
carrying a brown plastic grocery bag.

After Hallam left Burnside’s vehicle, Officer Miller and
Officer Manion1 saw Hallam throw the bag in a nearby
dumpster. Officer Miller then stopped Hallam and recovered
the bag. Hallam explained that she received the
bag from a friend who asked her to throw it away. Officer
Miller smelled a cocaine hydrochloride odor on the
bag, which also contained a kilogram wrapper, purple
rubber gloves, wet paper towels, and soda cans.2 Additionally,
he discovered a rock of cocaine clutched in Hallam’s
hand.

Officer Miller informed Officer Batterham of these
developments, who, in turn, alerted the team of officers
following Burnside. When Officers Allenbaugh and
Armentrout observed Burnside fail to signal a turn, they
activated the lights on their police vehicle and attempted
to pull Burnside over; however, Burnside began driving
erratically, slowing down and then speeding up. It also
appeared to the officers that Burnside was trying to
call somebody on his cell phone. Eventually, the officers
boxed in Burnside, who appeared to attempt to get out
of the vehicle while it was still moving.

Believing Burnside was going to flee, officers pulled
Burnside out of the car, forced him to the ground,
and placed him in handcuffs. Burnside was arrested for
possession of a controlled substance and for driving
without a valid Illinois driver’s license. While searching
Burnside, Officer Allenbaugh observed an unusual
“bulge” in Burnside’s pants, which Burnside claimed
was a hernia. Allenbaugh removed the object and found
a large plastic bag containing several individual bags
of crack cocaine.

Fearing Burnside had by cell phone instructed somebody
at his residence to destroy any further evidence, officers
returned to the house. After conducting a protective
sweep during which no one was found, the officers
sought and received a search warrant from a magistrate
judge. The officers relied on all of the evidence received
up to and through the arrest of Burnside as probable
cause justification for the warrant.

Subsequently, the officers searched the house, seizing
one half of a kilogram of crack cocaine, one full kilogram
of cocaine, a handgun, and more than $30,000 in cash.

Burnside now argues that neither of the officers had a
vantage point from which they could determine if
Hallam had been carrying the bag prior to approaching
Burnside’s vehicle. Burnside further asserts that both he
and Hallam told police that she had been carrying
two cartons of cigarettes prior to approaching the
vehicle, and that the two cartons were later found in
Burnside’s vehicle.

Burnside also argues that the police did not have probable
cause to conduct a Terry stop and frisk, or, in the
alternative, that they exceeded the permissible limits of
the Terry stop by manipulating and removing the bulge
in his pants.

Finally, Burnside argues that because officers lacked
probable cause to conduct the Terry stop and frisk, any
evidence found in the search of the residence thereafter
was “fruit of the poisonous tree.” He also argues that the
officers’ failure to include the protective search in the
warrant application prohibits them from relying on the
“good faith” exception to the exclusionary rule.

II. ANALYSIS
Burnside raises two issues on appeal. First, he argues that
the district court erred when it denied his motion to
suppress. Second, he argues that the district court’s
participation in the plea colloquy constitutes plain error.
We discuss each argument in turn.

A. The Motion to Suppress
When reviewing the district court’s denial of a motion
to suppress, we review factual findings for clear error
and legal questions de novo. United States v. Mosby, 541
F.3d 764, 767 (7th Cir. 2008) (citing United States v.
Groves, 530 F.3d 506, 509 (7th Cir. 2008); United States v.
McIntire, 516 F.3d 576, 578-79 (7th Cir. 2008)). Mixed
questions of law and fact are reviewed de novo. United
States v. Fiasche, 520 F.3d 694, 697 (7th Cir. 2008). We
accord special deference to the district court’s credibility
determinations because the resolution of a motion to
suppress is almost always a fact-specific inquiry, and it
is the district court which heard the testimony and observed
the witnesses at the suppression hearing. United
States v. Hendrix, 509 F.3d 362, 373 (7th Cir. 2007). A factual
finding is clearly erroneous only if, after considering all
the evidence, we cannot avoid or ignore a “definite and
firm conviction that a mistake has been made.” United
States v. Marshall, 157 F.3d 477, 480-81 (7th Cir. 1998)
(internal quotation marks omitted). We find no credible
reason here to disturb the district court’s denial of the
motion to suppress. We arrive at that determination
after considering two substantive issues: (1) whether
officers had probable cause to arrest Burnside, and properly
searched Burnside incident to that arrest; and
(2) whether officers had sufficient probable cause for the
search warrant.

1. The Arrest and Search
The district court found that the officers had probable
cause to arrest Burnside for possession of a controlled
substance. Accordingly, it follows, and the court held,
that the subsequent seizure of crack cocaine from
Burnside’s pants was lawful.

Burnside argues (weakly, we think, given the facts of
this case) that the officers lacked probable cause to arrest
him. Burnside concedes, as he must, that the police had
reasonable suspicion to conduct a Terry stop due to his
failure to signal when turning and because they
believed he was driving with an invalid driver’s license.
See Terry v. Ohio, 392 U.S. 1 (1968). But Burnside claims
that any evidence collected by the police prior to the
stop was insufficient to arrest him for possession of a
controlled substance. He also argues that because he was
unlawfully arrested, the evidence gathered from him
during the pat-down subsequent to his arrest must be
suppressed.

“The Fourth Amendment prohibits unreasonable
searches or seizures, and courts exclude evidence
obtained through an unreasonable search or seizure.”
Mosby, 541 F.3d at 767. But see Guzman v. City of Chicago,
565 F.3d 393, 398 (7th Cir. 2009) (noting that “[e]xclusion
is not a necessary consequence of a Fourth Amendment
violation, and the benefits of exclusion must outweigh
the costs.” (citing Herring v. United States, 129 S.Ct. 695,
700 (2009))). However, police may arrest an individual if
they have probable cause to believe that the individual
engaged in criminal conduct, Mosby, 541 F.3d at 767, as an
arrest supported by probable cause is reasonable by its
very nature, see Atwater v. City of Lago Vista, 532 U.S. 318,
354 (2001) (“If an officer has probable cause to believe
that an individual has committed even a very minor
criminal offense in his presence, he may, without
violating the Fourth Amendment, arrest the offender.”).
When police conduct a warrantless search, the court
of appeals makes an independent determination as to
whether the search was supported by probable cause or
reasonable suspicion. McIntire, 516 F.3d at 577 (citing
Ornelas v. United States, 517 U.S. 690, 697 (1996)). The
officers’ subjective motivations are irrelevant as long as
they have probable cause to justify the search and seizure.
See Whren v. United States, 517 U.S. 806, 812-13 (1996).

“[D]etermining whether probable cause exists involves
a ‘practical, common-sense decision whether, given all
the circumstances set forth . . . there is a fair probability
that contraband or evidence of a crime will be found in a
particular place.’ ” United States v. Ellis, 499 F.3d 686,
689 (7th Cir. 2007) (quoting United States v. Hines, 449
F.3d 808, 814 (7th Cir. 2006) (alterations in original)).
“ ‘Probable cause is a fluid concept based on common-sense
interpretations of reasonable police officers as to the
totality of the circumstances’ known at the time the
event occurred.” Id. at 689 (quoting United States v. Breit,
429 F.3d 725, 728 (7th Cir. 2005)). The events leading up
to an arrest are viewed from the standpoint of an objectively
reasonable police officer. Ornelas, 517 U.S. at 696.

We think the police officers in this case were armed
with more than a sufficient amount of information at the
time of Burnside’s arrest to constitute probable cause.
First, the officers were aware of Burnside’s five prior
felony convictions for the manufacture or delivery of a
controlled substance. Second, the officers knew that
Burnside was currently on parole from Minnesota for a
drug-related offense. Third, Officer Batterham received
reliable information from two different informants who
claimed that Burnside was a large-scale drug dealer;
furthermore, the information supplied by one of the
informants buttressed and was consistent with Officer
Batterham’s knowledge of Burnside’s alias, Shorty Bank
Roll. Fourth, officers observed Burnside participating in
conduct consistent with drug trafficking. Fifth, after
Burnside failed to use a turn signal and officers initiated
the traffic stop, Burnside drove erratically, made a
hurried call on his cell phone, and appeared to make
a flight attempt.

Burnside argues that the officers did not have a clear
vantage point from which to witness the alleged drug
transaction between Burnside and Hallam; therefore, he
argues that the officers could not conclusively determine
whether Hallam approached Burnside’s vehicle with the
brown grocery bag in her hands. Burnside asserts that he
did not give Hallam the bag, nor the rock of crack cocaine
later found in her fist, when she leaned into his vehicle.

Burnside’s arguments miss the mark. As the district
court noted, the officers did not need to prove an actual
drug transaction took place. For an arrest, officers only
need to believe objectively that the conduct observed
was consistent with drug trafficking. See United States v.
Brown, 366 F.3d 456, 458 (7th Cir. 2004). The officers,
employing even a modicum of common sense, had probable
cause to conclude that something illegal occurred.
Moreover, Officers Bainter and Miller were specially
trained in narcotics enforcement techniques. In forming
a reasonable belief that a drug transaction occurred,
they were permitted to view the events through the
prism of their training and experience. United States v.
Funches, 327 F.3d 582, 586 (7th Cir. 2003). Even without
the suspicious Hallam transaction, the police had
sufficient probable cause to arrest Burnside.

Burnside further argues that, even if officers had reasonable
suspicion to perform a Terry stop, they
impermissibly exceeded those limits when subsequently
searching him. We need not address this argument,
however, because the officers had probable cause to
arrest Burnside. It follows, a fortiori, that the officers’
seizure of crack cocaine from Burnside incident to his
arrest was lawful. See United States v. Tejada, 524 F.3d 809,
811 (7th Cir. 2008) (citing Chimel v. California, 395 U.S. 752,
763 (1969)).

Based on the totality of the circumstances the police
had an objectively reasonable basis to believe a crime
had been or was being committed. There was sufficient
probable case to arrest Burnside and to perform the
search incident to that arrest.

2. The Search Warrant
Burnside makes two arguments regarding the validity
of the search warrant. First, he argues that because the
officers used information recovered from his arrest in
the warrant application, the warrant was tainted by such
information. Therefore, he asserts, any evidence later
discovered in his home was fruit of the poisonous tree.
Second, assuming he is correct, Burnside argues that the
police cannot rely on the good faith exception to the
exclusionary rule because the police failed to notify the
judge of the protective sweep performed prior to
applying for the warrant.

When we review a district judge’s decision as to
whether a previously issued warrant was supported by
probable cause, our review is de novo. See McIntire, 516
F.3d at 578. However, we give “great deference” to the
issuing judge’s determination of the existence of probable
cause. Id.; cf. id. at 577 (“A magistrate’s ‘determination
of probable cause should be paid great deference by
reviewing courts.’ ”) (quoting Illinois v. Gates, 462 U.S. 213,
236 (1983)).

We will affirm a court’s finding of probable cause
unless the supporting affidavit, in light of the totality
of the circumstances, “fails to allege specific facts and
circumstances that reasonably lead to the belief that the
items sought in the search warrant are likely to be
located in the place to be searched.” United States v. Hobbs,
509 F.3d 353, 361 (7th Cir. 2007) (citing Illinois v. Gates, 462
U.S. 213, 238 (1983); United States v. Wiley, 475 F.3d 908,
914-15 (7th Cir. 2007)). In determining whether probable
cause exists, officers may draw reasonable inferences
about the likely storage location of evidence; these inferences
are based upon the type of offense and the nature
of the likely evidence. Id. (citing Ellis, 499 F.3d at 690).
With regard to drug dealers, evidence is likely to be
found at the dealers’ residence. Id. (citing Ellis, 499 F.3d
at 691).

Burnside cannot advance his subsequent search
warrant arguments, however, because the failure of his
unlawful arrest premise precludes any further examination.
Because we find that the police had probable
cause to arrest Burnside, the officers were permitted to
include in the warrant application the evidence
they discovered during the search incident to his arrest.
Considering the range of evidence, the police provided
sufficient probable cause, both from their investigation
and from the search incident to Burnside’s
arrest, for the magistrate judge to issue a valid warrant
to search Burnside’s home. Such finding renders the
protective sweep and attendant good faith argument
moot because it was never used by police as justification
for the warrant.

We hold that the issuing state court judge had a substantial
and legally sufficient basis for concluding that
probable cause existed to issue the warrant, and that the
district court’s denial of the motion to suppress
evidence recovered from the search was proper.

B. The Plea Colloquy
Finally, Burnside argues that the district court participated
in plea negotiations during the change-of-plea
hearing in violation of Federal Rule of Criminal Procedure
11(c)(1). Thus, he asserts his guilty plea is tainted, and
moves to withdraw it. We disagree.

Because Burnside did not seek to withdraw his guilty
plea prior to reaching this court, we review Burnside’s
claim of a Rule 11 violation for plain error. United States v.
Vonn, 535 U.S. 55, 59 (2002). To vacate such a plea under
the plain error standard, we must find that (1) an error
has occurred; (2) it was “plain”; (3) it affected a substantial
right of the defendant; and (4) it seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings. Johnson v. United States, 520 U.S.
461, 466-67 (1997).

“Rule 11(c)(1) categorically prohibits the court from
participating in plea negotiations between the government
and the defendant’s attorney.”3 United States v.
Linder, 530 F.3d 556, 562 (7th Cir. 2008); see also
United States v. Kraus, 137 F.3d 447, 452 (7th Cir. 1998).
“Excluding the judge from the plea discussions serves
three purposes: it minimizes the risk that the defendant
will be judicially coerced into pleading guilty, it preserves
the impartiality of the court, and it avoids any appearance
of impropriety.” Kraus, 137 F.3d at 452; see In re
United States, 572 F.3d 301, 312 (7th Cir. 2009) (citing
United States v. O’Neill, 437 F.3d 654, 660 (7th Cir. 2006)
(Posner, J., concurring) (commenting that judges in our
adversarial system do not double as prosecutors)). The
judge who advocates for a particular plea bargain may
resent the government or the defendant for disagreeing.
See In re United States, 572 F.3d at 311.

But not all judicial observations expressed with respect
to plea agreements violate the rule. In fact, the district
judge should often take an active role. Linder, 530 F.3d at
562. For example, “once the parties have themselves
negotiated a plea agreement and presented that agreement
to the court for approval, it is not only permitted
but expected that the court will take an active role in
evaluating the agreement.” Kraus, 137 F.3d at 452; see
Fed. R. Crim. P. 11(e)(1) advisory committee note
(1974 amend.) (“It is contemplated that the judge may
participate in such discussions as may occur when the
plea agreement is disclosed in open court.”). This holds
true even if the agreement is informal and not binding.
See United States v. Carver, 160 F.3d 1266, 1269 (10th Cir.
1998).

The district court did not violate Rule 11(c)(1) because
there was no plea negotiation or agreement between
Burnside and the government. It is impossible for the
district court to have participated in plea negotiations
that never happened. The district court judge said, “I
think the record is clear that there is no cooperation
agreement between the defendant and the government
and according to the government [there] never has
been one and so that’s as the situation stands.” (Tr. at 27.)4

The record further reveals that the government denied
Burnside any hope for leniency by declining to file a
substantial assistance motion,5 noting that Burnside
repeatedly refused to cooperate. Similarly, the judge
made it abundantly clear that the court could not force
the government to negotiate with Burnside over the
question of whether the government might file a
motion for substantial assistance on his behalf. The
government stated in open court that it was prepared and
willing to go to trial and would not make such a motion.

Although Burnside expressed his desire for the government
to file a substantial assistance motion, he also
acknowledged that the government did not at any time
induce him to plead guilty in order to receive it. Burnside,
with five prior felony drug convictions, is no stranger
to criminal proceedings; nevertheless, he may have believed
that, by offering up his guilty plea, the government
might feel obligated to reciprocate with a substantial
assistance motion. Such an unsubstantiated
belief does not constitute the existence of a plea negotiation
or agreement. Moreover, given the incontrovertible
fact that a plea agreement with the government did not
exist, the district court provided Burnside with a recess
during which he could reconsider his plea with his
family and his lawyer. We do not see any evidence in
the record that the district court inappropriately participated
in a plea negotiation in violation of Rule 11.

But Burnside also argues that Rule 11(c)(1) can be
violated when there is in fact no plea agreement,7 and he
urges us to find that a Rule 11 violation occurs whenever
a judge participates in a plea discussion. Specifically,
he argues that the district court violated Rule 11(c)(1)—
regardless of the court’s motives and intentions—because
the district court judge addressed Burnside and his
counsel regarding the consequences of his plea prior to
Burnside entering a plea of guilty.

But Rule 11(c)(1) cannot be read in a vacuum. A principal
purpose of Rule 11(c) is to prescribe the responsibility
of the court to ensure that a defendant who pleads
guilty has made an informed plea. Fed. R. Crim. P. 11
advisory committee note (1974 amend.). Indeed, the
district court judge has a duty to make such inquiries
under Rule 11(c)(1) and other provisions of Rule 11. United
States v. Frank, 36 F.3d 898, 901-02 (9th Cir. 1994); see also
Fed. R. Crim. P. 11(b), (c). For example, the judge must
“address the defendant personally” before accepting a
guilty plea to ascertain the defendant’s understanding
of the charges and penalties and to ensure that the plea
is voluntary. Fed. R. Crim. P. 11(b), (c); see McCarthy v.
United States, 394 U.S. 459, 465-66 (1969). And, before the
court enters judgment on a guilty plea, the judge must
inquire and be fully satisfied that there is a factual basis
for the plea. Fed. R. Crim. P. 11(b). Substantially all of
the required colloquy occurs prior to the defendant
actually stating that he pleads guilty. Frank, 36 F.3d at 902.
Finally, Rule 11 is not intended to “ ‘establish a series of
traps for imperfectly articulated oral remarks.’ ” United
States v. Cano-Varela, 497 F.3d 1122, 1133 (10th Cir. 2007)
(quoting Frank, 36 F.3d at 903).

Burnside ignores the fact that a principal purpose of the
categorical bar against judicial participation in the plea
bargaining process is to protect the parties against
implicit or explicit pressure to settle criminal cases on
terms favored by the judge. Id. Here, the district court
was neither promoting a guilty plea nor a trial. The
record clearly reflects the fact that the judge informed
Burnside that without a substantial assistance motion
from the government, he would be sentenced to the
mandatory minimum of life imprisonment. Burnside
acknowledged that he heard and understood the judge’s
statements. The court further communicated the clear
expectation that the government would not make a substantial
assistance motion, and Burnside acknowledged
that fact as well. The court never took a position with
respect to Burnside’s likelihood of success at trial, with
or without the evidence Burnside sought to suppress.
Finally, the court went on to inform Burnside that, if
he pled guilty, he would be giving up his right to go to
trial. It is patently obvious to us that the district court
did not attempt to persuade or coerce Burnside into a
plea of guilty.

Burnside advances the after-the-fact argument that,
because there was no benefit to him from a change of
plea, the judge’s statements must have induced
Burnside to plead guilty.8 As previously stated, there is
no evidence of any such coercion. Rather, the record
reveals only the district court’s carefully articulated,
informational dialogue with Burnside concerning the
various options available to him, along with possible
consequences of each.

Finally, Burnside seemingly asserts that, because he
changed his mind several times during the colloquy,
concluding with his plea of guilty, there is something of a
de facto Rule 11(c)(1) violation. This argument is without
merit. “There is nothing inherently coercive about requiring
a defendant to make a decision—either plead
guilty or go to trial—so refusing to give a defendant
more time to mull his option simply does not fall within
the purview of the rule.” Cano-Varela, 497 F.3d at 1133
(internal quotation marks omitted). Here, the district
court provided a recess for Burnside to consider the
consequences of pleading guilty. Later, when Burnside
again claimed he was confused, the court offered a
second recess and began to reschedule the hearing for the
next day. Burnside then changed his mind again. Later,
when Burnside changed his mind yet another time, the
court advised, “Now, make sure this is what you want to
do now because I have been very patient for the past
30 minutes.” (Tr. 31.)

We find that the district court judge did not inappropriately
influence Burnside’s decision and that no violation
of Rule 11(c)(1) occurred. Rather, the judge’s comments
were simply an attempt to resolve the inconsistent
positions being taken by Burnside. Throughout
the colloquy, the district court patiently limited its comments
to relevant information of which Burnside should
have been made aware and considered when making
his choice.

III. CONCLUSION
Burnside presented no evidence that police officers
lacked probable cause for his arrest and the subsequent
search of his home. We therefore find that the district
court correctly denied the motion to suppress evidence.
Likewise, the district court did not violate Rule 11(c)(1)
during the plea colloquy. Accordingly, we AFFIRM.
12-4-09

Chicago Criminal Lawyer - Robert J Callahan