United States v. Ware

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 United States v. Ware No. 01-6031 ELECTRONIC CITATION: 2003 FED App. 0258P (6th Cir.) File Name: 03a0258p.06 _________________ COUNSEL UNITED STATES COURT OF APPEALS ARGUED: Terry M. Cushing, ASSISTANT UNITED FOR THE SIXTH CIRCUIT STATES ATTORNEY, Louisville, Kentucky, for Appellant. _________________ Stephen H. Miller, FORE, MILLER & SCHWARTZ, Louisville, Kentucky, for Appellee. ON BRIEF: Terry M. UNITED STATES OF AMERICA , X Cushing, Monica Wheatley, ASSISTANT UNITED STATES Plaintiff-Appellant, - ATTORNEYS, Louisville, Kentucky, for Appellant. Stephen - H. Miller, FORE, MILLER & SCHWARTZ, Louisville, - No. 01-6031 Kentucky, for Appellee. v. - > _________________ , EULRIC WARE , - OPINION Defendant-Appellee. - _________________ N Appeal from the United States District Court DAVID W. McKEAGUE, District Judge. A grand jury for the Western District of Kentucky at Louisville. indicted Eulric Ware for knowingly and intentionally No. 00-00059—John G. Heyburn II, Chief District Judge. attempting to possess cocaine in violation of 21 U.S.C. § 812. On Ware’s motion and after a suppression hearing, the district Argued: December 10, 2002 court issued an order suppressing (1) defendant’s post- custodial inculpatory statements to police, and (2) evidence Decided and Filed: April 30, 2003* seized from defendant’s apartment pursuant to a state search warrant. The government appeals, challenging the district Before: NORRIS and GILMAN, Circuit Judges; court’s order granting defendant’s motion to suppress. For McKEAGUE, District Judge.1 the reasons set forth below, we REVERSE the judgment of the district court. I. BACKGROUND A. Factual Background

* Early in the morning on February 8, 2000, Detective This decision was originally issued as an “unpublished decision” filed on April 30, 2003. On July 1, 2003, the court designated the opinion Sherman Dotson of the Louisville Police Department as one recommend ed for full-text publication. narcotics unit noticed a suspicious package at the Federal Express facility in Louisville, Kentucky. The heavily taped 1 package had been shipped from Daytona Beach, Florida, to The Ho norable D avid W . McK eague, United States District Judge for the Western District of Michigan, sitting by designation. “David Jones” at 1426 South First Street in Louisville.

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Detective Dotson set the package aside after a trained shopping bag, which contained the package with the cocaine. narcotics dog alerted on it, indicating the presence of a The police then took Ware back to his apartment and searched controlled substance. it in reliance on the Napier warrant. Drug paraphernalia and a weapon were recovered. At 9:30 a.m., Detective Dotson, with the assistance of Detective Brian Nunn, obtained two search warrants. The Next, while being transported to police headquarters for first authorized them to open the package itself. The second booking, Ware inquired about “helping himself out.” Upon authorized them to insert an electronic tracking device and to arriving at the station, the police took Ware to an interview enter any structure to seize the package if the device indicated room equipped with audio and video recording equipment. that the package had been opened. Detectives Pitcock and Nunn then entered the room and again advised Ware of his Miranda rights. After Ware indicated The detectives then executed the warrant on the package that he was a “little hazy” about the meaning of his rights, and found a pair of basketball shoes, each containing Detective Nunn read them again, stating that they “are very, approximately one fourth of a kilogram of cocaine. After very important to you.” Ware then asked: “So, right now I removing all but one gram of the cocaine, the detectives can have an attorney while I talk to y’all?,” to which Nunn inserted the tracking device and resealed the package in replied, “Sure can, that’s your legal right.” Soon after, Ware preparation for a controlled delivery. stated: “I’d just rather have an attorney, man.” At that time, Detective Eddie Napier drafted an affidavit After Ware requested counsel, the detectives located a and application for a warrant authorizing a search of the telephone book and helped defendant recall the name of an delivery address. A state court judge signed the warrant (“the attorney he had heard of. To this end, the police asked Ware Napier warrant”) around 10:00 a.m. While the face of this questions concerning that attorney’s race and practice area. warrant authorized in boilerplate terms an “immediate search” When Ware ultimately identified attorney Stephen Miller, of the premises, the supporting affidavit stated that “[o]n 02- Detective Nunn left the room to place a call to Miller’s office. 08-2000 a controlled delivery of this parcel will be Detective Pitcock, who apparently knew Ware prior to this attempted.” All of the officers involved considered this to be arrest, remained in the room and chatted with him about his an anticipatory warrant. mother and about how he knew Miller. Armed with the Napier warrant and the package, the police Detective Nunn returned to the room several minutes later made the controlled delivery around 2:30 p.m. Defendant and the following exchange occurred: Eulric Ware signed for the package as “David Jones” and took it inside his apartment. Several minutes later, Ware left the Nunn: Unfortunately, [Miller’s] not in the office today. apartment carrying an opaque shopping bag, and the They said his secretary’s not in the office and I electronic monitor indicated to the police surveillance team left a message on his answering machine. If he that the package was moving. gets in anytime soon, I gave him my pager number and asked him to call us. So, that’s the Ware then drove to the University of Louisville campus and best I can do here. Any other suggestions or parked in a semi-circular driveway. At this time officers guesses? arrested Ware, read him his Miranda rights, and retrieved the No. 01-6031 United States v. Ware 5 6 United States v. Ware No. 01-6031

Ware: I’ll just talk, that’s all, you know, just forget it. unreasonable and, therefore, fruits of the search will be excluded.” Nunn: Here’s the deal, I don’t want you to just forget it cause we couldn’t get a hold of one attorney. Second, the district court concluded that the detectives did I mean, let’s, if you’re comfortable talking, I’m not sufficiently break off their interrogation of defendant after fine with that, but I need to make sure that he requested counsel. As a result, the court suppressed the you’re fine with that. incriminating statements defendant gave the officers. The court concluded that “the officers, perhaps innocently enough, Ware: I can always stop, right? continued their conversation with Ware. Under these circumstances, one can reach no conclusion other than Nunn: Oh yeah, yeah. Like I read your rights, if you Defendant’s incriminating statements occurred in the same decide hey I don’t want to talk no more, that’s custodial interrogation as his initial request for counsel.” The fine. And like I said, I’ll just kind of lay it out government then brought this timely appeal. again, what we know and then if you want to try and help yourself. II. ANALYSIS Ware agreed to talk and subsequently gave inculpatory When reviewing a district court’s decision on a motion to statements. suppress, this Court reviews its findings of fact for clear error and its conclusions of law de novo. See United States v. B. Procedural Background Miggins, 302 F.3d 384, 393 (6th Cir. 2002). On May 2, 2000, a grand jury returned an indictment A. Confession charging defendant with knowingly and intentionally attempting to possess cocaine on or about February 8, 2000. The government first contends that the district court erred After defendant moved to suppress several items of evidence, in suppressing defendant’s confession. The district court’s the magistrate judge held a suppression hearing and issued a ruling was premised on the notion that the officers’ report and recommendation that Ware’s motion be denied in interrogation of Ware did not cease when he requested its entirety. counsel, that his statements were given in the same custodial interrogation as defendant’s initial request for counsel, and Conducting a de novo review, the district court departed that defendant did not sufficiently initiate discussion of the from the magistrate judge’s recommendation in two respects. crime or waive his right to counsel. First, the district court concluded that the Napier warrant was technically deficient as an anticipatory warrant, was not Under the Edwards rule, once an accused has invoked the supported by probable cause as a standard warrant, and that right to counsel, the police must cease interrogation until the good faith exception to the warrant requirement did not counsel has been made available, unless “the accused himself apply. In suppressing the evidence, the court found: “In sum, initiates further communication, exchanges, or conversations” the sheer absence of corroborating information in the affidavit with the police. Edwards v. Arizona, 451 U.S. 477, 484-85. supporting the Napier warrant coupled with the breadth of the warrant itself renders reliance on the warrant objectively No. 01-6031 United States v. Ware 7 8 United States v. Ware No. 01-6031

In this case, it does not appear that interrogation of Ware the crime. See Edwards, 451 U.S. at 484-85. Here, Ware ever began. The Supreme Court has defined interrogation as stated, “I’ll just talk, that’s all, you know, just forget it.” “express questioning . . . [or] any words or actions on the part Defendant was not prompted to talk by police interrogation, of the police (other than those normally attendant to arrest and but rather “evinced a willingness and a desire for a custody) that the police should know are reasonably likely to generalized discussion about the investigation.” Oregon v. elicit an incriminating response from the suspect.” Rhode Bradshaw, 462 U.S. 1039, 1045-46 (1983). Therefore, Island v. Innes, 446 U.S. 291, 301 (1980). Here, the only defendant sufficiently initiated discussion of the crime after questions police asked of Ware upon entering the interview invoking his right to counsel. room pertained to Ware’s understanding of his Miranda rights. Such questions do not constitute interrogation. See Although Ware initiated the conversation, it is still United States v. Avery, 717 F.2d 1020, 1024 (6th Cir. necessary to determine whether he validly waived his rights 1983)(no interrogation where police asked routine booking to counsel and to remain silent. See Edwards, 451 U.S. at 486 questions unrelated “even tangentially, to criminal activity” n.9. Such a waiver must, in the totality of the circumstances, and there was “no evidence that the defendant was be knowing and intelligent. See id. Here, defendant was particularly susceptible to these questions, or that police advised of his Miranda rights three times before attempting somehow used the questions to elicit an incriminating to contact an attorney and ultimately deciding to talk. In response from the defendant.”). agreeing to talk, defendant specifically confirmed that he could stop talking at any time, indicating that he understood The district court concluded that all questions the police his rights. Furthermore, there is no evidence of police asked Ware after he invoked his right to counsel comprised coercion, threats, or promises. From the totality of the further unlawful interrogation. These questions, however, circumstances, defendant knew what his rights were and were principally aimed at finding Ware an attorney. Another waived them. question related to the current whereabouts of Ware’s mother. Taken in context, these questions were not even tangentially In sum, given that defendant sufficiently initiated related to criminal activity, nor did they hint at eliciting discussion of the crime and validly waived his rights to incriminating information or prey on any particular remain silent and to counsel, his subsequent confession was susceptibility of the defendant. voluntary and should not have been suppressed.

Next, the district court concluded that defendant agreed to B. Warrant talk only in response to Detective Nunn’s question: “Any other suggestions or guesses?” While if taken out of context The government further contends that the district court this could be construed as interrogation, it is more reasonable erred in suppressing evidence seized pursuant to the Napier to conclude that Nunn’s question, posed immediately after warrant. The district court ruled that the warrant was informing defendant that attorney Miller could not be technically deficient as an anticipatory warrant, was not reached, was aimed at acquiring counsel for defendant rather supported by probable cause as a standard warrant, and did than at eliciting incriminating information. not fit within the good faith exception to the exclusionary rule. As Edwards counsels, a defendant who has invoked his right to counsel may himself lawfully initiate discussion of No. 01-6031 United States v. Ware 9 10 United States v. Ware No. 01-6031

On review, this Court need not reach the validity of the immediate search of the apartment. The language indicating warrant, as it can turn immediately to consider the application “immediate” was boilerplate on the form of the warrant of the Leon good faith exception. See United States v. Leon, application. In the supporting affidavit, however, Napier 468 U.S. 897, 925 (1984)(“[R]eviewing courts could . . . specifically noted that a controlled delivery would be reject suppression motions posing no important Fourth attempted that afternoon to the apartment. Indeed, the police Amendment questions by turning immediately to a executed this warrant in accordance with their belief that it consideration of the officers’ good faith.”). was anticipatory, waiting until after the controlled delivery to search Ware’s apartment. In Leon, the Supreme Court held that the exclusionary rule should not bar the use of evidence obtained by officers acting Since “warrants and their supporting documents are to be in reasonable reliance on a search warrant that is later found read not hypertechnically, but in a commonsense fashion,” to be invalid. Id. at 913. This “good faith” exception is not United States v. Miggins, 302 F.3d 384, 395 (6th Cir. without limit, however, as the Leon Court identified four 2002)(quotation marks and alteration omitted)(finding an specific situations when it would not apply. Id. at 922-23. anticipatory search warrant valid where the accompanying None of these specific situations are at issue here, however, affidavit specified the triggering event), an objectively as the district court’s ruling was premised simply on whether reasonable officer would likely have concluded that the the officer’s reliance on the Napier warrant was objectively warrant legally authorized a search of the apartment only reasonable. upon the controlled delivery of the package. Furthermore, by waiting until after the controlled delivery to search Ware’s The Leon inquiry is limited to “the objectively ascertainable apartment, “it is painfully apparent that . . . the officer[s] question of whether a reasonably well trained officer would acted as [] reasonable officers would and should act in similar have known that the search was illegal despite the circumstances.” Leon, 468 U.S. at 919-20, citing Stone v. magistrate’s authorization.” Id. at 922 n.23. In making this Powell, 428 U.S. 465, 539-40 (1976)(White, J., dissenting). determination, all the circumstances may be considered. See This being the case, the exclusionary rule should not operate id. to bar the fruits of the search of Ware’s apartment. In this case, the evidence presented at the suppression Furthermore, suppressing the evidence obtained in this hearing revealed that the Louisville police intercepted a search would not serve the purposes of the exclusionary rule. Federal Express package containing approximately one pound See Leon, 468 U.S. at 918 (“[S]uppression of evidence of cocaine. This package was addressed to a “David Jones” obtained pursuant to a search warrant should be ordered only at the address of the apartment occupied by Ware. In . . . in those unusual cases in which exclusion will further the addition, the package had been seized and opened pursuant to purposes of the exclusionary rule.). This is not a case in a search warrant, and all but one gram of cocaine had been which the exclusionary rule is needed to deter police or removed. Finally, the police planned to make a controlled magistrate misconduct. delivery of the package to Ware’s apartment later that afternoon. Armed with this information, Detective Napier applied for and received a search warrant that inadvertently authorized an No. 01-6031 United States v. Ware 11

III. CONCLUSION For all the reasons set forth above, we REVERSE the judgment of the district court and REMAND for further proceedings consistent with this opinion.