In the

United States Court of Appeals

For the Seventh Circuit

No. 08-4135

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

BRIAN L. BURNSIDE,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of Illinois.

No. 1:07-cr-10110—Joe Billy McDade, Judge.

ARGUED SEPTEMBER 25, 2009—DECIDED DECEMBER 4, 2009

Before EASTERBROOK, Chief Judge, and KANNE and

SYKES, Circuit Judges.

KANNE, Circuit Judge. While on parole for a cocaine

distribution conviction and following months of police

investigation, defendant Brian Burnside was arrested

for possession of a controlled substance. In a search

incident to his arrest, police found large amounts of

crack cocaine on Burnside’s person. Police then searched

Burnside’s residence where they recovered more crack
2 No. 08-4135

cocaine, cocaine, a handgun, and more than $30,000 in

cash. A federal grand jury charged Burnside in a onecount indictment with possession of more than fifty

grams of crack cocaine with the intent to distribute. See

21 U.S.C. §§ 841(a)(1), (b)(1)(A). Burnside filed a motion

to suppress evidence, arguing that the officers lacked

probable cause for his arrest. He also argued that his

unlawful arrest tainted both the evidence found incident

to that arrest and the search warrant later obtained. The

district court denied the motion. Burnside eventually

pled guilty to the charge and was later sentenced.

Burnside argues on appeal that the district court erroneously denied the motion to suppress. He also seeks to

withdraw his guilty plea, arguing that the district

court judge inappropriately participated in the plea

colloquy. We find no merit to Burnside’s claims, and

we affirm.

I. BACKGROUND

Brian Burnside was a crack cocaine dealer. In

July 2007, Peoria Police Officer Chad Batterham

received information from two confidential informants

pertaining to Burnside’s drug activities. Both informants

identified Burnside as a high-volume crack cocaine

dealer. The first informant said that Burnside was a

cocaine dealer in the Peoria area and that he was

selling several kilograms of cocaine per month. The

informant also provided a detailed description of

Burnside’s residence. The second informant knew

Burnside by his street-name, Shorty Bank Roll. Because
No. 08-4135 3

of Officer Batterham’s personal knowledge and his

police experience in Peoria, as well as a detailed

physical description provided by the informant, he was

confident Shorty Bank Roll was in fact Burnside. To

further refine his identification, Officer Batterham asked

the informant to select a photograph from a photo array

of six men with similar characteristics. The informant

chose the photograph of Burnside and identified him

as Shorty Bank Roll.

Officer Batterham located the residence described by

the two informants. He performed a check on the white

Cadillac parked in the driveway. The car was registered

to Terry Burnside, Brian Burnside’s brother. In a records

check on the residence, Officer Batterham discovered a

police report of a prior burglary in which Terry

Burnside stated that the house belonged to his brother,

Brian. Finally, Officer Batterham ran a criminal history

check on Burnside, which revealed that Burnside was

currently on parole from a Minnesota conviction for

distributing cocaine, and that he had five prior felony

drug convictions.

In September, 2007, the Peoria Police Department’s

Vice and Narcotics Unit initiated surveillance of

Burnside. Officers observed and followed Burnside as

he left his home. Sergeant Bainter and Officer Miller

conducted their observation from two separate

unmarked police vehicles. Both officers saw a woman,

DeEva Hallam, approach Burnside’s vehicle, lean in for

approximately thirty to forty seconds, and leave

carrying a brown plastic grocery bag.
4 No. 08-4135

Officer Manion arrived shortly after the transaction between 1

Burnside and Hallam took place.

The government’s brief also states that inside the brown 2

grocery bag was a plastic bag containing numerous plastic tearoffs.

After Hallam left Burnside’s vehicle, Officer Miller and

Officer Manion saw Hallam throw the bag in a nearby 1

dumpster. Officer Miller then stopped Hallam and recovered the bag. Hallam explained that she received the

bag from a friend who asked her to throw it away. Officer

Miller smelled a cocaine hydrochloride odor on the

bag, which also contained a kilogram wrapper, purple

rubber gloves, wet paper towels, and soda cans. Addi- 2

tionally, he discovered a rock of cocaine clutched in Hallam’s hand.

Officer Miller informed Officer Batterham of these

developments, who, in turn, alerted the team of officers

following Burnside. When Officers Allenbaugh and

Armentrout observed Burnside fail to signal a turn, they

activated the lights on their police vehicle and attempted

to pull Burnside over; however, Burnside began driving

erratically, slowing down and then speeding up. It also

appeared to the officers that Burnside was trying to

call somebody on his cell phone. Eventually, the officers

boxed in Burnside, who appeared to attempt to get out

of the vehicle while it was still moving.

Believing Burnside was going to flee, officers pulled

Burnside out of the car, forced him to the ground,

and placed him in handcuffs. Burnside was arrested for

possession of a controlled substance and for driving
No. 08-4135 5

without a valid Illinois driver’s license. While searching

Burnside, Officer Allenbaugh observed an unusual

“bulge” in Burnside’s pants, which Burnside claimed

was a hernia. Allenbaugh removed the object and found

a large plastic bag containing several individual bags

of crack cocaine.

Fearing Burnside had by cell phone instructed somebody

at his residence to destroy any further evidence, officers

returned to the house. After conducting a protective

sweep during which no one was found, the officers

sought and received a search warrant from a magistrate

judge. The officers relied on all of the evidence received

up to and through the arrest of Burnside as probable

cause justification for the warrant.

Subsequently, the officers searched the house, seizing

one half of a kilogram of crack cocaine, one full kilogram

of cocaine, a handgun, and more than $30,000 in cash.

Burnside now argues that neither of the officers had a

vantage point from which they could determine if

Hallam had been carrying the bag prior to approaching

Burnside’s vehicle. Burnside further asserts that both he

and Hallam told police that she had been carrying

two cartons of cigarettes prior to approaching the

vehicle, and that the two cartons were later found in

Burnside’s vehicle.

Burnside also argues that the police did not have probable cause to conduct a Terry stop and frisk, or, in the

alternative, that they exceeded the permissible limits of

the Terry stop by manipulating and removing the bulge

in his pants.
6 No. 08-4135

Finally, Burnside argues that because officers lacked

probable cause to conduct the Terry stop and frisk, any

evidence found in the search of the residence thereafter

was “fruit of the poisonous tree.” He also argues that the

officers’ failure to include the protective search in the

warrant application prohibits them from relying on the

“good faith” exception to the exclusionary rule.

II. ANALYSIS

Burnside raises two issues on appeal. First, he argues that

the district court erred when it denied his motion to

suppress. Second, he argues that the district court’s

participation in the plea colloquy constitutes plain error. We discuss each argument in turn.

A. The Motion to Suppress

When reviewing the district court’s denial of a motion

to suppress, we review factual findings for clear error

and legal questions de novo. United States v. Mosby, 541

F.3d 764, 767 (7th Cir. 2008) (citing United States v.

Groves, 530 F.3d 506, 509 (7th Cir. 2008); United States v.

McIntire, 516 F.3d 576, 578-79 (7th Cir. 2008)). Mixed

questions of law and fact are reviewed de novo. United

States v. Fiasche, 520 F.3d 694, 697 (7th Cir. 2008). We

accord special deference to the district court’s credibility

determinations because the resolution of a motion to

suppress is almost always a fact-specific inquiry, and it

is the district court which heard the testimony and observed the witnesses at the suppression hearing. United
No. 08-4135 7

States v. Hendrix, 509 F.3d 362, 373 (7th Cir. 2007). A factual

finding is clearly erroneous only if, after considering all

the evidence, we cannot avoid or ignore a “definite and

firm conviction that a mistake has been made.” United

States v. Marshall, 157 F.3d 477, 480-81 (7th Cir. 1998)

(internal quotation marks omitted). We find no credible

reason here to disturb the district court’s denial of the

motion to suppress. We arrive at that determination

after considering two substantive issues: (1) whether

officers had probable cause to arrest Burnside, and properly searched Burnside incident to that arrest; and

(2) whether officers had sufficient probable cause for the

search warrant.

1. The Arrest and Search

The district court found that the officers had probable

cause to arrest Burnside for possession of a controlled

substance. Accordingly, it follows, and the court held,

that the subsequent seizure of crack cocaine from

Burnside’s pants was lawful.

Burnside argues (weakly, we think, given the facts of

this case) that the officers lacked probable cause to arrest

him. Burnside concedes, as he must, that the police had

reasonable suspicion to conduct a Terry stop due to his

failure to signal when turning and because they

believed he was driving with an invalid driver’s license.

See Terry v. Ohio, 392 U.S. 1 (1968). But Burnside claims

that any evidence collected by the police prior to the

stop was insufficient to arrest him for possession of a

controlled substance. He also argues that because he was
8 No. 08-4135

unlawfully arrested, the evidence gathered from him

during the pat-down subsequent to his arrest must be

suppressed.

“The Fourth Amendment prohibits unreasonable

searches or seizures, and courts exclude evidence

obtained through an unreasonable search or seizure.”

Mosby, 541 F.3d at 767. But see Guzman v. City of Chicago,

565 F.3d 393, 398 (7th Cir. 2009) (noting that “[e]xclusion

is not a necessary consequence of a Fourth Amendment

violation, and the benefits of exclusion must outweigh

the costs.” (citing Herring v. United States, 129 S.Ct. 695,

700 (2009))). However, police may arrest an individual if

they have probable cause to believe that the individual

engaged in criminal conduct, Mosby, 541 F.3d at 767, as an

arrest supported by probable cause is reasonable by its

very nature, see Atwater v. City of Lago Vista, 532 U.S. 318,

354 (2001) (“If an officer has probable cause to believe

that an individual has committed even a very minor

criminal offense in his presence, he may, without

violating the Fourth Amendment, arrest the offender.”).

When police conduct a warrantless search, the court

of appeals makes an independent determination as to

whether the search was supported by probable cause or

reasonable suspicion. McIntire, 516 F.3d at 577 (citing

Ornelas v. United States, 517 U.S. 690, 697 (1996)). The

officers’ subjective motivations are irrelevant as long as

they have probable cause to justify the search and seizure.

See Whren v. United States, 517 U.S. 806, 812-13 (1996).

“[D]etermining whether probable cause exists involves

a ‘practical, common-sense decision whether, given all
No. 08-4135 9

the circumstances set forth . . . there is a fair probability

that contraband or evidence of a crime will be found in a

particular place.’ ” United States v. Ellis, 499 F.3d 686,

689 (7th Cir. 2007) (quoting United States v. Hines, 449

F.3d 808, 814 (7th Cir. 2006) (alterations in original)).

“ ‘Probable cause is a fluid concept based on common-sense

interpretations of reasonable police officers as to the

totality of the circumstances’ known at the time the

event occurred.” Id. at 689 (quoting United States v. Breit,

429 F.3d 725, 728 (7th Cir. 2005)). The events leading up

to an arrest are viewed from the standpoint of an objectively reasonable police officer. Ornelas, 517 U.S. at 696.

We think the police officers in this case were armed

with more than a sufficient amount of information at the

time of Burnside’s arrest to constitute probable cause.

First, the officers were aware of Burnside’s five prior

felony convictions for the manufacture or delivery of a

controlled substance. Second, the officers knew that

Burnside was currently on parole from Minnesota for a

drug-related offense. Third, Officer Batterham received

reliable information from two different informants who

claimed that Burnside was a large-scale drug dealer;

furthermore, the information supplied by one of the

informants buttressed and was consistent with Officer

Batterham’s knowledge of Burnside’s alias, Shorty Bank

Roll. Fourth, officers observed Burnside participating in

conduct consistent with drug trafficking. Fifth, after

Burnside failed to use a turn signal and officers initiated

the traffic stop, Burnside drove erratically, made a

hurried call on his cell phone, and appeared to make

a flight attempt.
10 No. 08-4135

Burnside argues that the officers did not have a clear

vantage point from which to witness the alleged drug

transaction between Burnside and Hallam; therefore, he

argues that the officers could not conclusively determine

whether Hallam approached Burnside’s vehicle with the

brown grocery bag in her hands. Burnside asserts that he

did not give Hallam the bag, nor the rock of crack cocaine

later found in her fist, when she leaned into his vehicle.

Burnside’s arguments miss the mark. As the district

court noted, the officers did not need to prove an actual

drug transaction took place. For an arrest, officers only

need to believe objectively that the conduct observed

was consistent with drug trafficking. See United States v.

Brown, 366 F.3d 456, 458 (7th Cir. 2004). The officers,

employing even a modicum of common sense, had probable cause to conclude that something illegal occurred.

Moreover, Officers Bainter and Miller were specially

trained in narcotics enforcement techniques. In forming

a reasonable belief that a drug transaction occurred,

they were permitted to view the events through the

prism of their training and experience. United States v.

Funches, 327 F.3d 582, 586 (7th Cir. 2003). Even without

the suspicious Hallam transaction, the police had

sufficient probable cause to arrest Burnside.

Burnside further argues that, even if officers had reasonable suspicion to perform a Terry stop, they

impermissibly exceeded those limits when subsequently

searching him. We need not address this argument,

however, because the officers had probable cause to

arrest Burnside. It follows, a fortiori, that the officers’

seizure of crack cocaine from Burnside incident to his
No. 08-4135 11

arrest was lawful. See United States v. Tejada, 524 F.3d 809,

811 (7th Cir. 2008) (citing Chimel v. California, 395 U.S. 752,

763 (1969)).

Based on the totality of the circumstances the police

had an objectively reasonable basis to believe a crime

had been or was being committed. There was sufficient

probable case to arrest Burnside and to perform the

search incident to that arrest.

2. The Search Warrant

Burnside makes two arguments regarding the validity

of the search warrant. First, he argues that because the

officers used information recovered from his arrest in

the warrant application, the warrant was tainted by such

information. Therefore, he asserts, any evidence later

discovered in his home was fruit of the poisonous tree.

Second, assuming he is correct, Burnside argues that the

police cannot rely on the good faith exception to the

exclusionary rule because the police failed to notify the

judge of the protective sweep performed prior to

applying for the warrant.

When we review a district judge’s decision as to

whether a previously issued warrant was supported by

probable cause, our review is de novo. See McIntire, 516

F.3d at 578. However, we give “great deference” to the

issuing judge’s determination of the existence of probable

cause. Id.; cf. id. at 577 (“A magistrate’s ‘determination

of probable cause should be paid great deference by

reviewing courts.’ ”) (quoting Illinois v. Gates, 462 U.S. 213,

236 (1983)).
12 No. 08-4135

We will affirm a court’s finding of probable cause

unless the supporting affidavit, in light of the totality

of the circumstances, “fails to allege specific facts and

circumstances that reasonably lead to the belief that the

items sought in the search warrant are likely to be

located in the place to be searched.” United States v. Hobbs,

509 F.3d 353, 361 (7th Cir. 2007) (citing Illinois v. Gates, 462

U.S. 213, 238 (1983); United States v. Wiley, 475 F.3d 908,

914-15 (7th Cir. 2007)). In determining whether probable

cause exists, officers may draw reasonable inferences

about the likely storage location of evidence; these inferences are based upon the type of offense and the nature

of the likely evidence. Id. (citing Ellis, 499 F.3d at 690).

With regard to drug dealers, evidence is likely to be

found at the dealers’ residence. Id. (citing Ellis, 499 F.3d

at 691).

Burnside cannot advance his subsequent search

warrant arguments, however, because the failure of his

unlawful arrest premise precludes any further examination. Because we find that the police had probable

cause to arrest Burnside, the officers were permitted to

include in the warrant application the evidence

they discovered during the search incident to his arrest.

Considering the range of evidence, the police provided sufficient probable cause, both from their investigation and from the search incident to Burnside’s

arrest, for the magistrate judge to issue a valid warrant

to search Burnside’s home. Such finding renders the

protective sweep and attendant good faith argument

moot because it was never used by police as justification

for the warrant.
No. 08-4135 13

Federal Rule of Criminal Procedure 11(c)(1) states: “In 3

General. An attorney for the government and the defendant’s

attorney, or the defendant when proceeding pro se, may discuss

(continued...)

We hold that the issuing state court judge had a substantial and legally sufficient basis for concluding that

probable cause existed to issue the warrant, and that the

district court’s denial of the motion to suppress

evidence recovered from the search was proper.

B. The Plea Colloquy

Finally, Burnside argues that the district court participated in plea negotiations during the change-of-plea

hearing in violation of Federal Rule of Criminal Procedure

11(c)(1). Thus, he asserts his guilty plea is tainted, and

moves to withdraw it. We disagree.

Because Burnside did not seek to withdraw his guilty

plea prior to reaching this court, we review Burnside’s

claim of a Rule 11 violation for plain error. United States v.

Vonn, 535 U.S. 55, 59 (2002). To vacate such a plea under

the plain error standard, we must find that (1) an error

has occurred; (2) it was “plain”; (3) it affected a substantial right of the defendant; and (4) it seriously

affected the fairness, integrity, or public reputation of the

judicial proceedings. Johnson v. United States, 520 U.S.

461, 466-67 (1997).

“Rule 11(c)(1) categorically prohibits the court from

participating in plea negotiations between the government and the defendant’s attorney.” United States v. 3
14 No. 08-4135

(...continued) 3

and reach a plea agreement. The court must not participate in

these discussions.”

Linder, 530 F.3d 556, 562 (7th Cir. 2008); see also

United States v. Kraus, 137 F.3d 447, 452 (7th Cir. 1998).

“Excluding the judge from the plea discussions serves

three purposes: it minimizes the risk that the defendant

will be judicially coerced into pleading guilty, it preserves

the impartiality of the court, and it avoids any appearance of impropriety.” Kraus, 137 F.3d at 452; see In re

United States, 572 F.3d 301, 312 (7th Cir. 2009) (citing

United States v. O’Neill, 437 F.3d 654, 660 (7th Cir. 2006)

(Posner, J., concurring) (commenting that judges in our

adversarial system do not double as prosecutors)). The

judge who advocates for a particular plea bargain may

resent the government or the defendant for disagreeing.

See In re United States, 572 F.3d at 311.

But not all judicial observations expressed with respect

to plea agreements violate the rule. In fact, the district

judge should often take an active role. Linder, 530 F.3d at

562. For example, “once the parties have themselves

negotiated a plea agreement and presented that agreement to the court for approval, it is not only permitted

but expected that the court will take an active role in

evaluating the agreement.” Kraus, 137 F.3d at 452; see

Fed. R. Crim. P. 11(e)(1) advisory committee note

(1974 amend.) (“It is contemplated that the judge may

participate in such discussions as may occur when the

plea agreement is disclosed in open court.”). This holds

true even if the agreement is informal and not binding.
No. 08-4135 15

“Tr.” refers to the transcript of the change of plea hearing. 4

18 U.S.C. § 3553(e) gives the government discretion to make 5

a recommendation to the district court judge to sentence a

defendant below the sentencing guidelines mandatory minimum due to the defendant’s cooperation and substantial

assistance.

Section 3553(e) provides: “Upon motion of the Government, the 6

court shall have the authority to impose a sentence below a level

(continued...)

See United States v. Carver, 160 F.3d 1266, 1269 (10th Cir.

1998).

The district court did not violate Rule 11(c)(1) because

there was no plea negotiation or agreement between

Burnside and the government. It is impossible for the

district court to have participated in plea negotiations

that never happened. The district court judge said, “I

think the record is clear that there is no cooperation

agreement between the defendant and the government

and according to the government [there] never has

been one and so that’s as the situation stands.” (Tr. at 27.)4

The record further reveals that the government denied

Burnside any hope for leniency by declining to file a

substantial assistance motion, noting that Burnside 5

repeatedly refused to cooperate. Similarly, the judge

made it abundantly clear that the court could not force

the government to negotiate with Burnside over the

question of whether the government might file a

motion for substantial assistance on his behalf. The 6
16 No. 08-4135

(...continued) 6

established by statute as a minimum sentence so as to reflect

a defendant’s substantial assistance in the investigation or

prosecution of another person who has committed an offense.” (emphasis added).

United States v. Baker, 489 F.3d 366, 371 n.3, upon which 7

Burnside heavily relies, does not help him. First, Baker does not

control the holding of this court. Second, Burnside quotes

(continued...)

government stated in open court that it was prepared and

willing to go to trial and would not make such a motion.

Although Burnside expressed his desire for the government to file a substantial assistance motion, he also

acknowledged that the government did not at any time

induce him to plead guilty in order to receive it. Burnside,

with five prior felony drug convictions, is no stranger

to criminal proceedings; nevertheless, he may have believed that, by offering up his guilty plea, the government might feel obligated to reciprocate with a substantial assistance motion. Such an unsubstantiated

belief does not constitute the existence of a plea negotiation or agreement. Moreover, given the incontrovertible

fact that a plea agreement with the government did not

exist, the district court provided Burnside with a recess

during which he could reconsider his plea with his

family and his lawyer. We do not see any evidence in

the record that the district court inappropriately participated in a plea negotiation in violation of Rule 11.

But Burnside also argues that Rule 11(c)(1) can be

violated when there is in fact no plea agreement, and he 7
No. 08-4135 17

(...continued) 7

Baker in the hopes that we will read his quotation standing

alone. Footnote 3, however, specifically references the court’s

use of United States v. Harris, 635 F.2d 526, 528 (6th Cir. 1980),

quoting, “ ‘[T]he judge should not participate in the plea bargaining process.’ ” (emphasis added). Notably, Burnside also

fails to quote the remainder of footnote 3, which states, “Rule

11(c)(1) does not merely guard against judicial participation

in plea discussions when they result in a bargain; it also prohibits participation that effectively undermines the parties

reaching a bargain (or a better bargain).” As the quotation

from Harris and the footnote suggest, Baker is easily distinguishable. In that case, the government and Baker had been attempting to come to a common ground with respect to the

plea agreement. The district court unilaterally weighed in the

day before trial to encourage the parties to come to a plea

agreement. In doing so, the judge provided comparisons of a

prior case with a similar fact pattern to indicate how he might

be able to provide Baker a more attractive sentence if he pled

guilty. Further, the parties and the court discussed the status of

the plea negotiation and what the government had offered

Baker. Not surprisingly, the D.C. Circuit held that the judge

impermissibly and prejudicially participated in plea negotiations. In contrast, the district court in this case conducted

itself as if the parties had no plea agreement—which they did

not—and there was no plea bargaining process.

urges us to find that a Rule 11 violation occurs whenever

a judge participates in a plea discussion. Specifically,

he argues that the district court violated Rule 11(c)(1)—

regardless of the court’s motives and intentions—because

the district court judge addressed Burnside and his

counsel regarding the consequences of his plea prior to

Burnside entering a plea of guilty.
18 No. 08-4135

But Rule 11(c)(1) cannot be read in a vacuum. A principal

purpose of Rule 11(c) is to prescribe the responsibility

of the court to ensure that a defendant who pleads

guilty has made an informed plea. Fed. R. Crim. P. 11

advisory committee note (1974 amend.). Indeed, the

district court judge has a duty to make such inquiries

under Rule 11(c)(1) and other provisions of Rule 11. United

States v. Frank, 36 F.3d 898, 901-02 (9th Cir. 1994); see also

Fed. R. Crim. P. 11(b), (c). For example, the judge must

“address the defendant personally” before accepting a

guilty plea to ascertain the defendant’s understanding

of the charges and penalties and to ensure that the plea

is voluntary. Fed. R. Crim. P. 11(b), (c); see McCarthy v.

United States, 394 U.S. 459, 465-66 (1969). And, before the

court enters judgment on a guilty plea, the judge must

inquire and be fully satisfied that there is a factual basis

for the plea. Fed. R. Crim. P. 11(b). Substantially all of

the required colloquy occurs prior to the defendant

actually stating that he pleads guilty. Frank, 36 F.3d at 902.

Finally, Rule 11 is not intended to “ ‘establish a series of

traps for imperfectly articulated oral remarks.’ ” United

States v. Cano-Varela, 497 F.3d 1122, 1133 (10th Cir. 2007)

(quoting Frank, 36 F.3d at 903).

Burnside ignores the fact that a principal purpose of the

categorical bar against judicial participation in the plea

bargaining process is to protect the parties against

implicit or explicit pressure to settle criminal cases on

terms favored by the judge. Id. Here, the district court

was neither promoting a guilty plea nor a trial. The

record clearly reflects the fact that the judge informed

Burnside that without a substantial assistance motion
No. 08-4135 19

This is unlike United States v. Casallas, 59 F.3d 1173, 1177 (11th 8

Cir. 1995), upon which Burnside relies, where the judge contrasted the fifteen-year mandatory minimum sentence that

the defendant faced by going to trial with the ten-year mandatory minimum that he faced by pleading guilty.

from the government, he would be sentenced to the

mandatory minimum of life imprisonment. Burnside

acknowledged that he heard and understood the judge’s

statements. The court further communicated the clear

expectation that the government would not make a substantial assistance motion, and Burnside acknowledged

that fact as well. The court never took a position with

respect to Burnside’s likelihood of success at trial, with

or without the evidence Burnside sought to suppress.

Finally, the court went on to inform Burnside that, if

he pled guilty, he would be giving up his right to go to

trial. It is patently obvious to us that the district court

did not attempt to persuade or coerce Burnside into a

plea of guilty.

Burnside advances the after-the-fact argument that,

because there was no benefit to him from a change of

plea, the judge’s statements must have induced

Burnside to plead guilty. As previously stated, there is 8

no evidence of any such coercion. Rather, the record

reveals only the district court’s carefully articulated,

informational dialogue with Burnside concerning the

various options available to him, along with possible

consequences of each.

 Finally, Burnside seemingly asserts that, because he

changed his mind several times during the colloquy,
20 No. 08-4135

concluding with his plea of guilty, there is something of a

de facto Rule 11(c)(1) violation. This argument is without

merit. “There is nothing inherently coercive about requiring a defendant to make a decision—either plead

guilty or go to trial—so refusing to give a defendant

more time to mull his option simply does not fall within

the purview of the rule.” Cano-Varela, 497 F.3d at 1133

(internal quotation marks omitted). Here, the district

court provided a recess for Burnside to consider the

consequences of pleading guilty. Later, when Burnside

again claimed he was confused, the court offered a

second recess and began to reschedule the hearing for the

next day. Burnside then changed his mind again. Later,

when Burnside changed his mind yet another time, the

court advised, “Now, make sure this is what you want to

do now because I have been very patient for the past

30 minutes.” (Tr. 31.)

We find that the district court judge did not inappropriately influence Burnside’s decision and that no violation of Rule 11(c)(1) occurred. Rather, the judge’s comments were simply an attempt to resolve the inconsistent positions being taken by Burnside. Throughout

the colloquy, the district court patiently limited its comments to relevant information of which Burnside should

have been made aware and considered when making

his choice.

III. CONCLUSION

Burnside presented no evidence that police officers

lacked probable cause for his arrest and the subsequent

search of his home. We therefore find that the district
No. 08-4135 21

court correctly denied the motion to suppress evidence.

Likewise, the district court did not violate Rule 11(c)(1)

during the plea colloquy. Accordingly, we AFFIRM.

12-4-09