USA v. Burford

Filing 69

Order

UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA

UNITED STATES OF AMERICA
Plaintiff,
vs.
HAL FREDERICK BURFORD,
Defendant.

)
)
)
)
)
)
)
)
)
)

3:06-cr-102 JWS
ORDER FROM CHAMBERS
[Re:

Motions at dockets 21 & 23 ]

I. MOTIONS PRESENTED
At docket 21, defendant Hal Frederick Burford moved to suppress statements he
made at the time of his arrest and subsequent booking. At docket 23, he filed a motion
to suppress the evidence obtained from the execution of a search warrant. Both
motions were fully briefed. Magistrate Judge Roberts filed a report in which he
recommended that the motion at docket 21 be granted in part and denied in part, and
he recommended that the motion at docket 23 be denied.1 Burford filed timely
objections. The United States neither objected nor responded to Burford’s objections.

II. STANDARD OF REVIEW
District courts may “accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate.”2 When a district judge reviews a magistrate

1

The initial report is at doc. 50. A final report declining to make any change in the initial
recommendation is at doc. 61.
2

28 U.S.C. § 636(b)(1).

judge’s recommendations, the district court conducts de novo review of all conclusions
of law,3 and any findings of fact to which objections have been made.4 Uncontested
findings of fact are reviewed by the district court for clear error.5

III. DISCUSSION
Before preparing his report, the magistrate judge conducted an evidentiary
hearing.6 A transcript of the hearing was prepared, and this court has reviewed it.7
Burford objects to some of the legal conclusions recommended by the magistrate judge,
but has articulated no objection to any specific factual finding. Upon review, this court
finds no error in any of the factual findings and adopts them.
Burford’s first objection is that statements he made at the scene of his arrest
outside the premises at 2224 “D” Street concerning several rifles in a closet or in the
bedroom of the premises he had just exited should be suppressed under applicable law.
His statements were made to the arresting officer while he was in custody and prior to
any Miranda warning. The statements were given in response to a question by the
officer asking if there was anyone or anything in the apartment which would pose a
danger to the officers. It should be noted that when the question was asked there were
other officers poised to enter the premises. The magistrate judge relied on New York v.
Quarles8 which recognizes a public safety exception to the Miranda rule that he
concluded applied in the circumstances of Burford’s arrest. Defendant takes the

3

Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989), overruled on other grounds by
Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996).
4

28 U.S.C. § 636(b)(1).

5

Taberer v. Armstrong World Industries, Inc., 954 F.2d 888, 906 (3d Cir. 1992).

6

Doc. 37.

7

Doc. 45.

8

467 U.S. 649 (1984).

-2-

position that it is error to rely on Quarles. Instead, he insists, the court must look to
Orozco v. Texas9 for guidance and suppress the statements.
Orozco was arrested in his bedroom at a boarding house and questioned there
without a Miranda warning. One of the statements he made which the Court ruled
should have been suppressed gave the location of a nearby firearm, a firearm which
also happened to be the gun used to murder a man earlier in the evening. On its face,
Orozco appears to support Burford’s position, but this court finds the case inapposite.
Writing in 1969, only three years after the decision in Miranda,10 the Orozco majority
and the dissenting justices alike focused on a single issue which was treated as the only
distinction between the interrogation of Miranda and the interrogation of Orozco which
might be of legal relevance. That issue was whether or not Miranda should apply to
questioning which occurred in the familiar surroundings of a defendant’s bedroom rather
than in the strange and threatening environment of a police station house. The public
safety exception was not discussed. Indeed, it was not recognized by the Court until
years later when Quarles was decided in 1984. It was not error to rely on Quarles
rather than Orozco.
Burford also asserts that the questions posed at the time of his arrest were
investigatory, not directed at concerns for the safety of the officers and others who
might be present. The argument is without merit. Inquiring about danger that might lurk
in the premises about to be entered by the other officers was related to public safety.
Indeed, an accomplice armed with one of the rifles would have posed a risk to the
officers even while outside the premises.
The magistrate judge has recommended exclusion of Burford’s response to
questioning during the booking process about whether he lived alone on the basis that
considered objectively Agent Rambo should have known that Burford’s response to the
question was reasonably likely to elicit an incriminating response.11 In doing so, the

9

394 U.S. 324 (1969).

10

Miranda v. Arizona, 384 U.S. 436 (1966).

11

Doc. 50 at p. 16.

-3-

magistrate judge followed the teaching of the Ninth Circuit in United States v. Booth.12
There, the appellate court said: “We hold, therefore, that custodial questioning
constitutes interrogation whenever, under all of the circumstances involved in a given
case, the questions are ‘reasonably likely to elicit an incriminating response from the
suspect.’”13 The United States has not objected to the exclusion of the responses about
living alone. For his part, Burford contends that under Booth the magistrate judge
should also have excluded his response to the question asking for his address. This
court finds no principled basis upon which to distinguish between Burford’s statement
that he lived alone and his statement giving his address as the premises where the
evidence was obtained. Both statements are inculpatory, for they both tie him to the
evidence.14 Following Booth, this court will also exclude Burford’s answer to the
question asking for his place of residence.
The last issue is whether there was probable cause for the search warrant.
Burford’s argument is that the facts disclosed to the judge who issued the warrant
authorizing a search of the Fed-Ex package which contained the methamphetamine
were insufficient to establish probable cause. There were many suspicious facts
relating to the package, none of which alone amounted to probable cause, but which
taken as a whole establish probable cause supporting issuance of the warrant. The
facts and how they support the decision to issue the warrant were ably summarized by
Mr. Bradley in his argument before the magistrate judge15 and discussed at length in the
report. The magistrate judge correctly applied the law to the facts; there was probable
cause for the issuance of the warrant.

12

669 F.2d 1231 (9th Cir. 1981).

13

669 F.2d at 1237 quoting Rhode Island v. Innis , 446 U.S. 291, 301 (1980).

14

At the time of the booking interrogation, it does not appear that it was known that
Burford was a convicted felon. In fact, it was believed that his criminal record included only
misdemeanors. Thus, it is only the connection to the drugs and not to the firearms which is
pertinent to the a determination of whether it would have been objectively reasonable to assume
an answer to the question would elicit an incriminating statement.
15

Doc. 45 at pp. 92-96.

-4-

IV. CONCLUSION
For the reasons above:
1) The motion at docket 21 is GRANTED in part such that responses to
questioning about whether Burford lived alone and what his residence address was may
not be introduced by the United States during its case in chief (but might be admissible
in rebuttal if Burford testifies), and DENIED in all other respects; and
2) The motion at docket 23 is DENIED.
DATED at Anchorage, Alaska, this 23rd day of February 2007.

/s/ JOHN W. SEDWICK
UNITED STATES DISTRICT JUDGE

-5-