4A 4C 2006: Miranda Might Protect You At Trial, But Probably Not At Sentencing

UNITED STATES v. NICHOLS, 438 F.3d 437 (4th Cir. 2006), No. 04-5020, 04-5021, 2006 U.S.App. LEXIS 5038, on appeal from USDC-NCWD, before Chief USCJ Wilkins, USCJs Michael, Traxler, opinion by Wilkins, filed 28 Feb 2006.

LONG STORY SHORT: The trial court could use Defendant's confession that he had carried a firearm during a bank robbery to increase his sentence, even though the trial court had already suppressed the confession on Miranda grounds. Binding in MD, NC, SC, VA, WV.

FACTS: Defendant walked into a bank in Charlotte, NC and presented the teller with a note reading "This is A Robbery Give up the money or I shoot." The teller complied. Defendant's father soon phoned the Charlotte-Mecklenburg PD to say that his son probably had committed the robbery, was ready to surrender, and wanted a lawyer. The detective who talked with him assured Defendant that he would get one. Defendant and his father met the detective at a prearranged location, where Defendant returned all the money that was left. Defendant again said he wanted a lawyer, and the detective agreed. After the detective took Defendant in to the police station, Defendant signed a Miranda form, initialing the box that he wanted to talk without an attorney present. He and the detective talked for about four hours, without any threats or coercion, and eventually confessed to carrying a concealed pistol during the bank robbery.

PROCEDURE: The United States indicted Defendant in U.S. District Court for the Western District of North Carolina for bank robbery, armed bank robbery, and carrying a firearm during a crime of violence. Defendant moved to suppress his confession to carrying a firearm during the robbery as in violation of his Fifth Amendment rights per Miranda. The detective denied ever hearing Defendant request counsel, but the trial court found Defendant's and his father's testimony more credible. MOTION TO SUPPRESS GRANTED. The United States dismissed the armed bank robbery and carrying a firearm charges, and Defendant pleaded to bank robbery. Defendant's presentence report omitted a recommendation for firearm enhancement under the advisory guidelines. The United States objected, arguing that suppressed evidence can still enter sentencing considerations. The probation officer who had prepared the PSR denied the request, on grounds that it would compound the constitutional violation, and the trial court agreed and sentenced Defendant to 46 months. The United States appealed the omission of firearm enhancement to the U.S. Court of Appeals for the Fourth Circuit.

DECISION: Trial courts have broad discretion to consider information relevant to sentencing, even if such facts depend on evidence inadmissible at trial. Only if misinformation of constitutional magnitude infects the sentencing decision will appellate courts intervene. In the Fourth Circuit, illegally obtained evidence is generally admissible for sentencing purposes, because the great interest in accuracy of sentencing outweighs the small deterrent value of suppression. The severe deterrent effect of not being able to use evidence during the government's case-in-chief at trial is enough to give effect to the Fourth and Fifth Amendments.

Suppression might still be appropriate when the government illegally seizes evidence for the purpose of enhancing a defendant's sentence, but this was not the case here. No one beat or tortured Defendant, or promised him anything in return; he just volunteered a probably reliable confession as part of a normal conversation with the detective. SENTENCE VACATED and cause REMANDED for resentencing consistent with the opinion.

EDITORIAL: This is not really a Fourth Amendment decision, but the same reasoning would apply to evidence gotten from an unreasonable search and seizure, so here it is. I'm still a tad uncomfortable with the guy's confession being the sole basis for concluding that he had a gun. Nobody else saw him armed, and no search turned up any gun. Also, I don't like the government being allowed to appeal anything but a blatantly illegal sentence. This is not one of those times.