                                                                           F I L E D
                                                                    United States Court of Appeals
                                                                            Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                            JUN 10 2003
                                  TENTH CIRCUIT
                                                                       PATRICK FISHER
                                                                                 Clerk

    BRIAN M. ABRAHAM,

                Petitioner-Appellant,

    v.                                                   No. 02-3305
                                                  (D.C. No. 00-CV-3352-DES)
    STATE OF KANSAS,                                       (D. Kan.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before EBEL , HENRY , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

         Petitioner-appellant Brian M. Abraham, who was convicted in Kansas state

court of drug-related offenses, appeals the district court’s denial of his petition



*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. This court granted

a certificate of appealability (COA) on the following issues: (1) whether

law-enforcement officers obtained an incriminating statement from Mr. Abraham

in violation of his rights under   Miranda v. Arizona , 384 U.S. 436 (1966);

(2) whether, assuming that the record demonstrates a    Miranda violation, the

admission of the statement at trial was harmless error; and (3) whether the State

presented sufficient evidence at trial to support a conviction of possession of

heroin with the intent to sell. Exercising our jurisdiction over these three issues,

see Miller-El v. Cockrell , 123 S. Ct. 1029, 1039 (2003), we affirm the judgment

of the district court.


                                    BACKGROUND

       Mr. Abraham, an individual with an extensive drug history, began serving

as a confidential informant for Kansas law-enforcement officers shortly after

being arrested with a large quantity of marijuana in his vehicle. He developed

a particularly close working relationship with Kansas Highway Patrol Trooper

Dan Meyer. In October 1995, Trooper Meyer, Mr. Abraham, and other officers

arranged for a controlled sale of methamphetamine to suspects in Wichita,

Kansas, identified by Mr. Abraham. Mr. Abraham’s role was to assuage the

suspects’ doubts about the officer posing as a methamphetamine dealer, Special



                                            -2-
Agent Brandau of the Kansas Bureau of Investigations. He was not to have direct

involvement in the sale, so that he could serve as a credible witness in the case.

      On the day of the sale, Mr. Abraham and Agent Brandau met in

Mr. Abraham’s motel room, then drove in Mr. Abraham’s Jeep to the suspects’

residence. While Agent Brandau traveled with two of the suspects to a second

location to conduct the transaction, Mr. Abraham stayed at the residence with the

remaining suspect. The controlled buy took place as planned. Agent Brandau

arrested the suspects at the purchase location and, back at the residence, the third

suspect was arrested. At Mr. Abraham’s request, the officers attempted to

conceal his cooperation by arresting him with no intention of charging him with

a crime. Mr. Abraham and the other suspects were taken to the sheriff’s

department. Mr. Abraham’s Jeep remained parked in the street in front of the

residence.

      Meanwhile, Agent Brandau and other officers searched the suspects’

residence pursuant to a search warrant. Additionally, an officer looked into the

Jeep and observed ZigZag rolling papers within the vehicle. The officer then

conducted a full search of the vehicle and discovered a small amount of marijuana

and a set of electronic scales. The discovery of these items raised a need to prove

that Mr. Abraham was “clean,” R., Tr. of Suppression Hr’g at 26-27, 29: that is,




                                         -3-
not involved in narcotics activities unconnected with his confidential informant

efforts, id. at 37-38.   1



       At the sheriff’s department, Mr. Abraham and the other suspects were

placed in separate interview rooms. Mr. Abraham understood that he was being

held only to give the impression that he and the other suspects were given similar

treatment. Mr. Abraham was not given         Miranda warnings. After the discovery

of the items in the Jeep, however, the officers determined that Mr. Abraham had

to remain at the station until they could determine whether he was “clean.”

An officer was dispatched to question Mr. Abraham about the items and seek his

consent to a search of his motel room. When asked about the scales,

Mr. Abraham became nervous and asked to talk to Trooper Meyer.          Id. at 64.

       Trooper Meyer joined the other officer in the interview room and asked

Mr. Abraham for his consent to a search. Mr. Abraham was told that he couldn’t

leave until the officers made sure he was “clean.”       Id. at 37. Mr. Abraham

refused to give his consent, but asked for an opportunity to speak to Meyer alone.

The other officer left, closing the door. Mr. Abraham told Meyer that “he had

some stuff in his room that he didn’t want [the officers] to find.”    Id. at 30.

Meyer asked, “what do you mean by stuff[?]”          Id. Mr. Abraham responded


1
       The transcripts of the suppression hearing and preliminary hearing were
admitted as substantive evidence at Mr. Abraham’s bench trial. R., Tr. of Bench
Trial, at 2.

                                             -4-
that he was addicted to heroin and “stated there was a quantity of heroin and

a . . . large quantity of cash in excess of $10,000 in his motel room.”   Id.

       The officers obtained a search warrant of Mr. Abraham’s motel room,

basing probable cause on a listing of the items found in the Jeep and

Mr. Abraham’s admission that he kept heroin in his room. As a result of the

search, officers found 4.19 grams of heroin, 1.35 grams of cocaine, approximately

$10,000 in cash, and drug-related paraphernalia. Mr. Abraham was then charged

with one count of possession of heroin, one count of possession of heroin with

intent to sell, one count of possession of cocaine, and two counts of no drug

tax stamp.

       The state trial court denied Mr. Abraham’s pre-trial motion to suppress his

statement, along with the evidence obtained from the search of his Jeep and motel

room. After a bench trial, Mr. Abraham was convicted of all charged crimes

except simple possession of heroin. The Kansas Court of Appeals affirmed the

conviction; the Kansas Supreme Court denied review. He then unsuccessfully

sought federal habeas relief and this appeal followed.


                                      DISCUSSION

       A § 2254 petitioner may not receive relief unless the state court’s decision

was: “(1) . . . contrary to, or involved an unreasonable application of, clearly

established Federal law . . . ; or (2) based on an unreasonable determination of the

                                             -5-
facts in light of the evidence presented in the State court proceeding.” 28 U.S.C.

§§ 2254(d)(1), (2). “Factual findings of a state court are presumed correct and

can be overturned by this Court only by a showing of clear and convincing

evidence.” Fields v. Gibson, 277 F.3d 1203, 1212 (10th Cir.),            cert. denied ,

123 S. Ct. 533 (2002). As for the district court’s ruling, we review its legal basis

de novo and its factual findings, if any, under the clearly erroneous standard.

See Hooker v. Mullin, 293 F.3d 1232, 1237 (10th Cir. 2002),             cert denied ,

123 S. Ct. 975 (2003).

       A.      Miranda violation

       “‘Miranda requires that procedural safeguards be administered to a criminal

suspect prior to ‘custodial interrogation.’”          United States v. Perdue,   8 F.3d 1455,

1463 (1993) (quoting      Miranda, 384 U.S. at 444). A statement taken during

a custodial interrogation in violation of the         Miranda rule cannot be admitted at

trial to establish the defendant’s guilt.       Berkemer v. McCarty , 468 U.S. 420, 429

(1984). Further, this court has recently held that the physical fruits of a             Miranda

violation must also be suppressed.          United States v. Patane , 304 F.3d 1013, 1029

(10th Cir. 2002), cert. granted, 71 U.S.L.W. 3350, 3569, 3570 (U.S. Apr. 21,

2003) (No. 02-1183).

       Before Miranda is applicable, however, two requirements must be met:

“the suspect must be in ‘custody,’ and the questioning must meet the legal


                                                -6-
definition of ‘interrogation.’”    Perdue, 8 F.3d at 1463. “[A] person has been

taken into police custody whenever he ‘has been deprived of his freedom of

action in any significant way.’”    Id. (quoting Miranda , 384 U.S. at 444). The

“relevant inquiry” with regard to custody is “‘how a reasonable man in the

suspect’s position would have understood his situation.’”       Id. (quoting Berkemer ,

468 U.S. at 442). Concerning the second requirement, “interrogation includes

‘any words or actions on the part of the police . . . that the police should know are

reasonably likely to elicit an incriminating response from the suspect.’”     Id.

(quoting Rhode Island v. Innis , 446 U.S. 291, 301 (1980) (footnotes omitted)).

       Here, the Kansas Court of Appeals correctly identified the controlling legal

standard. Its rejection of Mr. Abraham’s claim that his statement was obtained in

violation of his Miranda rights was based on agreement with the trial court’s

subsidiary factual determinations that, under the circumstances of Mr. Abraham’s

sham arrest he was not in custody and not interrogated, and therefore not entitled

to a Miranda warning. R., Petitioner’s Ex. I at 5. Like the district court, we

conclude that the state resolution of this issue was based on an unreasonable

determination of the facts in light of the evidence presented.

       As to the custodial prong of the   Miranda analysis, we agree with the

district court’s determination that, from the time the officers discovered the items

in Mr. Abraham’s Jeep, he was not free to leave the sheriff’s department.


                                            -7-
Although Mr. Abraham was not in custody when he was first taken to the sheriff’s

department, his situation changed. After the search of the Jeep, Mr. Abraham was

no longer free to leave. Indeed, an officer directly told him that “we can’t let you

go because we have to make sure you’re clean.” R., Tr. of Suppression Hr’g

at 36-37. As a factual matter, Mr. Abraham’s status at the sheriff’s department

changed from consensual to custodial when he was informed that he couldn’t

leave until officers obtained more information.

      Moreover, we agree with the district court that the Kansas Court of

Appeals’ determination on the   Miranda interrogation prong was factually

erroneous. During the initial stage of his custodial status, Mr. Abraham was not

interrogated. The act of asking a suspect for consent to search does not constitute

an interrogation because such a request “cannot be said to lead to an incriminating

response.” United States v. Gay , 774 F.2d 368, 379 (10th Cir. 1985). Further,

Mr. Abraham’s statement to Trooper Meyer about the “stuff” in his room was

unprovoked and voluntary. It was thus not the result of interrogation requiring

Miranda warnings. See Miranda , 384 U.S. at 478.

      Trooper Meyer’s question regarding the meaning of “stuff,” however, was

certainly designed to elicit information on contraband in Mr. Abraham’s motel

room. As a consequence, Mr. Abraham’s inculpatory response was the product of

interrogation. Accordingly, the two   Miranda requirements are met and the state


                                         -8-
court’s finding to the contrary is clearly erroneous. The statement was obtained

in violation of Miranda and its admission at trial amounted to an error of

constitutional magnitude.   See Dickerson v. United States , 530 U.S. 428, 438,

444 (2000).

       B.     Harmless error

       Although we have determined that the state court erred in admitting

Mr. Abraham’s statement at trial, this conclusion, standing alone, does not merit

federal habeas relief. We may grant federal habeas only if the error “had

substantial and injurious effect or influence” on the outcome of a petitioner’s

case. Brecht v. Abrahamson , 507 U.S. 619, 637 (1993) (quotation omitted);

Herrera v. Lemaster , 301 F.3d 1192, 1198, 1200 (10th Cir. 2002),    cert. denied ,

123 S. Ct. 1266 (2003). A petitioner must establish that the error “resulted in

actual prejudice.”   Brecht , 507 U.S. at 637 (quotation omitted). While we reject

the district court’s reasoning on this issue, we agree with its conclusion that

admission of the un- Mirandized statement amounted to harmless error.



       According to the district court, evidence derived from a non-coercive

interview which technically violated   Miranda need not be suppressed. Therefore,

the state trial court properly admitted into evidence the narcotics and cash seized

from Mr. Abraham’s motel room, significantly diminishing the import of


                                         -9-
Mr. Abraham’s statement. This conclusion, however, was reached without the

benefit of our recent decision in      United States v. Patane , 304 F.3d 1013. In that

case, we explicitly held that the physical fruits of a      Miranda violation must be

excluded from evidence, because “suppression of the statement alone” does not

“provide[] deterrence sufficient to protect citizens’ constitutional privilege

against self-incrimination.”        Id. at 1028-29. The Patane holding is controlling in

this case. In determining that the admission of the un-        Mirandized statement was

harmless because the fruits of that statement were properly admitted, the federal

district court clearly erred.   2



       Nevertheless, we conclude that the admission of the statement amounted to

harmless error. The Supreme Court has adopted “the ultimate or inevitable

discovery exception to the exclusionary rule.”           Nix v. Williams , 467 U.S. 431, 444

(1984). Under this doctrine, “if evidence seized unlawfully would have been

inevitably discovered pursuant to a legal search, the evidence is admissible.”

United States v. Haro-Salcedo        , 107 F.3d 769, 773 (10th Cir. 1997).

       Here, the drugs and money would have been inevitably discovered

even without Trooper Meyer’s question and Mr. Abraham’s response. Law



2
       As noted previously, the United States Supreme Court has granted certiorari
to review our Patane ruling. However, that need not hold up this order and
judgment because, even if the Supreme Court reverses our holding in Patane , our
disposition in this case would not be affected.

                                              -10-
enforcement officials knew that Mr. Abraham had an extensive drug history, that

ZigZag papers were found in his car, that electronic scales were found in his car,

and that he had volunteered that he had “stuff” in his motel room which he did

not want the officers to find. Under these circumstances, it was virtually

inevitable that the police would have obtained a search warrant to search Mr.

Abraham’s motel room and thereby discovered the drugs and money. Thus, the

additional introduction of Mr. Abraham’s statement would not change the

outcome of his trial. Accordingly, we hold that the error in admitting Mr.

Abraham’s inculpatory statement was harmless.

      C.     Sufficiency of the evidence

      Mr. Abraham also challenges the sufficiency of the evidence supporting his

conviction of possession of heroin with the intent to sell. The appropriate inquiry

is “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt.”   Jackson v. Virginia , 443 U.S. 307, 319

(1979). Our review of the evidence produced at trial reflects that the district

court was correct in concluding that a rational factfinder could have found that

Mr. Abraham intended to sell the heroin seized from his motel room. Agent

Brandau, a trained narcotics investigator, testified that, based on his experience

and training, the amount of drugs and money–all found in the motel room of a


                                        -11-
person with a lengthy drug history and no known means of employment–showed

that the heroin was for resale, rather than personal use. Specifically, Agent

Brandau stated that the amount of heroin, 4.19 grams, was “a significant amount

of heroin for individual dose usage, especially when they sell it commonly in dose

units, a small one injection amount.” R., Tr. of Prelim. Hr’g at 53. Mr. Abraham

testified that the heroin was for his personal use only.

       This court must presume that the trial court resolved conflicting testimony

in favor of the prosecution.   Wright v. West , 505 U.S. 277, 296-97 (1992).

A rational trier of fact, when considering the evidence in favor of the prosecution,

certainly could have found the crime of possession of heroin with intent to sell

was proven beyond a reasonable doubt.




                                          -12-
                               CONCLUSION

     The judgment of the United States District Court for the District of Kansas

is AFFIRMED.

                                                 Entered for the Court



                                                 David M. Ebel
                                                 Circuit Judge




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