                            UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                            No. 07-4739



UNITED STATES OF AMERICA,

                                              Plaintiff - Appellee,

          versus


CORTEZ L. BAREFIELD,

                                              Defendant - Appellant.



Appeal from the United States District Court for the Southern
District of West Virginia, at Charleston. Joseph R. Goodwin, Chief
District Judge. (2:06-cr-00055-2)


Submitted:   December 14, 2007            Decided:   January 7, 2008


Before NIEMEYER, MICHAEL, and SHEDD, Circuit Judges.


Affirmed by unpublished per curiam opinion.


John R. McGhee, Jr., KAY CASTO & CHANEY, PLLC, Charleston, West
Virginia, for Appellant. Charles T. Miller, United States Attorney,
John J. Frail, Assistant United States Attorney, Charleston, West
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

          Cortez    L.   Barefield   appeals   his   conviction,   entered

pursuant to his guilty plea to conspiracy to distribute fifty grams

or more of cocaine base.      On appeal, he challenges the denial of

his motions to suppress videotape evidence and his statements to

the police.   We affirm.

          First, Barefield asserts that the district court erred in

denying his motion to suppress under State v. Mullens, 650 S.E.2d

169, 190 (W. Va. 2007), which held that the West Virginia State

Constitution prohibits the police from sending an informant into

the home of another person to surreptitiously use an electronic

surveillance device without a warrant.         However, whether or not a

seizure violates state law is irrelevant to the determination of

a motion to suppress in federal court.     United States v. Van Metre,

150 F.3d 339, 347 (4th Cir. 1998).         As Mullens concedes, both

federal statutes and federal constitutional law permit officials to

place an electronic surveillance device on a consenting informant

for the purpose of recording communications with a third-party

suspect, even in the absence of a warrant.        Mullens, 650 S.E.2d at

174-78; see also United States v. White, 401 U.S. 745, 749 (1971)

(holding that no warrant is required when “secret agent” working

for the Government purchases narcotics from the accused and records

the exchange).     Accordingly, Barefield’s contentions are without

merit.


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              Second, Barefield asserts that the district court erred

in denying his motion to suppress statements given to the police

while he was in police custody and prior to any Miranda warnings.

However, Barefield’s conclusion that he was in custody at the time

of his statements is belied by the record.              Two police officers

testified     that   Barefield   had   never    been    arrested,      had   been

repeatedly told that he was free to leave, and was never handcuffed

or restrained in any way.        While Barefield testified differently,

the district court found him to not be a credible witness, and we

will    not     second-guess     the      district     court’s       credibility

determination. See United States v. Saunders, 886 F.2d 56, 60 (4th

Cir. 1989).      Because Barefield was not in police custody at the

time of his statements, no Miranda warnings were required, and the

district court therefore correctly denied his motion to suppress.

See United States v. Leshuk, 65 F.3d 1105, 1108 (4th Cir. 1995)

(holding that a suspect is in custody if he has been formally

arrested or questioned under circumstances in which his freedom of

action is significantly curtailed).

              Based on the foregoing, we affirm Barefield’s conviction.

We   dispense    with   oral   argument    because     the   facts    and    legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.



                                                                        AFFIRMED


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