November 29, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 1:14-cr-00366-1 -
Virginia M. Kendall, Judge.
Wood, Chief Judge, Ripple and Kanne, Circuit Judges.
RIPPLE, CIRCUIT JUDGE
enforcement executed a search warrant at Brian Thurman's
residence after a cooperating informant purchased heroin
inside. They discovered drug paraphernalia, two handguns, and
a large amount of money. Mr. Thurman was arrested and later
charged in a three-count superseding indictment with (1)
maintaining a drug-involved premises, in violation of 21
U.S.C. § 856(a)(1); (2) distributing 100 grams or more
of heroin, in violation of 21 U.S.C. § 841(a)(1); and
(3) possessing a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A).
trial, Mr. Thurman filed two motions to suppress: one to
exclude self-incriminating statements that he made following
his arrest and another to exclude evidence obtained from a
search of his cell phone. The district court denied both
motions. A jury later convicted Mr. Thurman on the
distribution charge, but acquitted him on the drug-premise
and firearms charges. The court sentenced him to seventy-two
months' imprisonment and four years' supervised
Thurman now challenges the court's denial of his motions
to suppress and its findings supporting his sentence. He
maintains that he did not waive voluntarily his
Miranda rights or consent voluntarily to the search
of his cell phone. He also challenges the court's
findings at sentencing that he was responsible for at least
700 grams of heroin and that he possessed a dangerous weapon.
He notes that the jury convicted him of distributing a
significantly smaller quantity of drugs and acquitted him of
the firearms charge.
cannot accept these contentions. Mr. Thurman's
suppression arguments require us to re-evaluate the district
court's credibility determinations. The court did not
clearly err in crediting the officers' testimony that Mr.
Thurman consented to their questioning and to the search of
his phone. Furthermore, the court made proper findings of
fact when applying the Sentencing Guidelines. Sentencing
courts can consider conduct underlying an acquitted charge so
long as that conduct is proven by a preponderance of the
evidence. Accordingly, we affirm the judgment of the district
August 2013, Minnesota police officers tracked the movement
of Courtney Williams from the west side of Chicago to
Minnesota, where they arrested him with 489 grams of heroin
hidden inside a spare tire. Williams told the authorities
that Mr. Thurman had supplied him with the heroin in exchange
for a $17, 000 down payment and $20, 000 of debt. Later that
month, in cooperation with the police, Williams wore a wire
to Mr. Thurman's house in Chicago, where he gave Mr.
Thurman $10, 000 in partial payment of his debt. Williams
continued to cooperate with authorities and arranged a
controlled drug purchase the next month. Williams sent Mr.
Thurman a text message with the number "150, " to
which Mr. Thurman wrote "Yeap" and later responded
with "Touchdown." The next day, Williams went to
Mr. Thurman's house and exchanged $23, 500 for 148.5
grams of heroin and the satisfaction of his remaining debt.
Law enforcement waited outside while Williams completed the
confirming that Williams had purchased heroin inside, the
officers forced entry into Mr. Thurman's house and
executed a search warrant that was contingent on the
completion of the controlled buy. They arrested Mr. Thurman
and handcuffed him in the back of a police car. His
girlfriend and son remained inside. While searching the
basement, the officers found plastic bags, packaging tape,
electronic scales, a safe with approximately $27, 000 in
cash, and some of the money Williams had just exchanged. They
did not discover any heroin. Mr. Thurman informed the police
that there were two firearms in the house: a Glock .40
caliber handgun in a trash bag in the basement and a Bryco
.380 caliber handgun in a bedroom closet upstairs. The
officers discovered loaded magazines next to both guns;
however, they could not recall consistently whether the guns
themselves were loaded. When asked, Mr. Thurman told the
officers that they could search the common areas of a nearby
residential property which he owned. He refused, however, to
sign a consent form and specifically instructed the officers
not to search inside the apartments where his tenants lived.
An officer wrote "refused to sign but consented" on
the consent form.
enforcement took Mr. Thurman to a Chicago office of the
Bureau of Alcohol, Tobacco, Firearms and Explosives
("ATF") for questioning. Once inside the interview
room, the agents removed Mr. Thurman's handcuffs and
provided him with a Gatorade. According to the authorities,
they advised Mr. Thurman of his Miranda rights, but
he refused to sign an advice-of-rights form. Nevertheless, he
indicated a desire to cooperate with them and proceeded to
admit that he had sold drugs out of his house and owned two
guns to protect his drug trade. During the interview, the
agents conducted a search of Mr. Thurman's cell phone.
The parties dispute whether Mr. Thurman verbally consented to
this search, but they agree that he refused to sign a
consent-to-search form. Two of the agents remembered Mr.
Thurman showing them specific names and numbers in the phone
corresponding to Williams, who was listed as "Skinny,
" and his primary supplier, who was listed as
"Meko." They also recalled Mr. Thurman admitting
to having deleted text messages with Williams about their
transaction earlier that day.
agents eventually released Mr. Thurman on the understanding
that he would return the next day to continue cooperating.
They retained his cell phone and expected him to initiate
recorded calls with his supplier when he returned. Mr.
Thurman asked whether he should bring an attorney with him,
and the agents said that it was his choice. Mr. Thurman did
not return as expected. Instead, his attorney called to say
that Mr. Thurman would not be cooperating any further. Law
enforcement subsequently conducted a forensic examination of
his cell phone and reconstructed the recently deleted text
messages between Mr. Thurman and Williams.
September 2015, Mr. Thurman was charged in a three count
superseding indictment with (1) knowingly using and
maintaining a residence for the purpose of distributing a
controlled substance, in violation of 21 U.S.C. §
856(a)(1); (2) knowingly and intentionally distributing 100
grams or more of a mixture and substance containing a
detectable amount of heroin, in violation of 21 U.S.C. §
841(a)(1); and (3) knowingly possessing a firearm in
furtherance of a drug trafficking crime, in violation of 18
U.S.C. § 924(c)(1)(A).
trial, he filed a motion to suppress any evidence obtained
from the search of his cell phone and a motion to suppress
any incriminating statements he made during the post-arrest
interrogation. He attached copies of the
consent-to-search form for his cell phone and the
advice-of-rights form, both of which reflected his refusal to
sign. He also submitted an affidavit averring that he
"refused to give consent to the requested warrantless
searches" and "refused to provide any information
to law enforcement agents without the presence of an
district court held a hearing on the motions. At the hearing,
the Government presented substantially consistent testimony
from three of the agents involved in Mr. Thurman's arrest
and questioning. They all testified that Mr. Thurman refused
to sign any forms but verbally agreed to the limited search
of his second property, to the search of his cell phone, and
to their questioning without an attorney present. The agents
did not record their interactions with Mr.
Thurman.The defense called two law enforcement
witnesses. They provided substantially similar testimony to
that of the prosecution's witnesses. Mr. Thurman did not
testify at the hearing, instead relying on his affidavit.
court denied both motions. With respect to the motion to
suppress the incriminating statements, the court concluded
that Mr. Thurman did not unambiguously invoke his
Miranda rights but rather impliedly waived them. The
court credited the testimony of the agents, whom it deemed
"credible based on their demeanor and the consistency of
their testimony."Accordingly, the court found that Mr.
Thurman had spoken freely during the interview with a full
understanding of his rights and in an apparent attempt to
obtain beneficial treatment. It also held that Mr.
Thurman's refusal to sign the advice-of-rights form did
not undermine the voluntariness of his waiver; if anything,
it demonstrated his comfort in denying the agents'
requests. With respect to the motion to suppress the evidence
from the cell phone search, the court found that Mr. Thurman
voluntarily consented to the search, as demonstrated by his
clear understanding of his rights and comfort interacting
with the authorities. With all of this evidence deemed
admissible, the case proceeded to trial.
trial, the Government presented similar testimony from the
agents as well as testimony from Williams. It also introduced
recordings of Williams's meetings with Mr. Thurman, the
drug paraphernalia and handguns seized from Mr. Thurman's
residence, Mr. Thurman's incriminating statements
following his arrest, telephone records and summaries, and
reconstructed text messages and contacts that had been
deleted from his cell phone. Mr. Thurman did not testify. The
jury convicted him on the distribution charge (Count 2), but
acquitted him on the drug-premises charge (Count 1) and the
firearms charge (Count 3).
sentencing, the court found that Mr. Thurman was responsible
for distributing between 700 grams and one kilogram of
heroin, resulting in a base offense level of 28. See
U.S.S.G. § 2D1.1(c)(6). It also found that he possessed
a dangerous weapon in connection with the drug offense, which
triggered a two-level enhancement. See U.S.S.G.
§ 2D1.1(b)(1). Combining his offense level of 30 with
his criminal history category of I, the court calculated an
advisory guidelines range of 97 to 121 months. The court then
considered the sentencing factors under 18 U.S.C. §
3553(a). It weighed the seriousness of the offense and the
need for general deterrence against Mr. Thurman's
positive history and characteristics; specifically, he had
contributed to his community as a teacher and demonstrated
both a sense of remorse and an ability to reform his
behavior. Ultimately, the court sentenced him to seventy-two
months in prison and four years of supervised release. It
further ordered him to repay the money he retained from the
controlled buy and to pay a special assessment of $100.
Motions to Suppress
Thurman challenges the district court's denials of his
motions to suppress. We review the court's legal
conclusions de novo and its underlying factual findings for
clear error, giving special deference to its credibility
determinations. See United States v. Burnside, 588
F.3d 511, 516-17 (7th Cir. 2009). "A factual finding is
clearly erroneous only if, after considering all the
evidence, we cannot avoid or ignore ...