159 F.3d 832 (4th Cir. 1998), 97-4100, United States v. Allen

Docket Nº:97-4100.
Citation:159 F.3d 832
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Michael Wayne ALLEN, a/k/a Anthony Washington, Defendant-Appellant.
Case Date:September 28, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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159 F.3d 832 (4th Cir. 1998)

UNITED STATES of America, Plaintiff-Appellee,

v.

Michael Wayne ALLEN, a/k/a Anthony Washington, Defendant-Appellant.

No. 97-4100.

United States Court of Appeals, Fourth Circuit

September 28, 1998

Argued May 8, 1998.

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ARGUED: James Donald Cowan, Jr., Smith, Helms, Mulliss & Moore, L.L.P., Greensboro, NC, for Appellant. Michael Francis Joseph, Assistant United States Attorney, Greensboro, NC, for Appellee. ON BRIEF: John J. Korzen, Smith, Helms, Mulliss & Moore, L.L.P., Greensboro, NC, for Appellant. Walter C. Holton, Jr., United States Attorney, Greensboro, NC, for Appellee.

Before ERVIN and MOTZ, Circuit Judges, and BEEZER, Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.

DIANA GRIBBON MOTZ, Circuit Judge.

Michael Wayne Allen, convicted of possession of crack cocaine with intent to distribute, asserts that the district court erred in denying his motion to suppress evidence on the basis of the inevitable discovery doctrine. Because the doctrine does not apply here, we must reverse and remand for further proceedings.

I.

Police arrested Allen at a Greensboro, North Carolina, bus terminal on June 12, 1996, for possession of marijuana and crack cocaine. The grand jury indicted him on a single count of possession of crack with intent to distribute, in violation of 21 U.S.C.A. §§ 841(a)(1) and (b)(1)(A) (West 1981 & Supp.1998). Soon thereafter Allen moved to suppress evidence obtained from a search of his duffel bag and statements concerning the evidence made to the police after his arrest.

At the initial hearing on the motion to suppress, the government presented the testimony of local police detectives Angela Tackett and James Anders, and the testimony of Drug Enforcement Agent Cynthia Wilcox. Tackett testified first. She told the court that she and other officers of a cooperative drug interdiction task force were working at the bus terminal on the day they arrested Allen. After Allen's bus arrived, and after several passengers, including Allen, left the bus to enter the terminal, Tackett and Anders boarded the bus to interview passengers. As the driver announced that the bus was about to depart, Allen re-boarded the bus. Tackett identified herself as a police officer and asked if Allen had any bags with him. When he pointed to a black knapsack on the overhead rack, Tackett took the bag down and asked Allen if it was his. He responded, "Yes." Tackett testified that she then asked Allen, "Do you have any other bags anywhere on the bus?," to which Allen allegedly replied, "No." Tackett further testified that she then asked Allen if she could search the knapsack, and Allen consented. As she searched the knapsack, Tackett located a clear plastic bag with a substance later identified as marijuana. When Allen moved

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to leave the bus, Anders and State Bureau of Investigation Agent Kaplan arrested Allen, handcuffed him, escorted him to the parking lot, and administered Miranda warnings.

Tackett and Kaplan continued questioning the other passengers, and attempted to identify the owner of each of the bags inside the bus. They identified all of the bags except one--a large black duffel bag located toward the rear of the bus, well away from Allen's seat. Tackett asked each of the remaining passengers if he or she owned the bag, and each said no. Tackett testified that she thereafter searched the duffel, "treat[ing] it as an abandoned bag because nobody claimed it."

Upon searching the duffel bag, Tackett found a package of crack cocaine and a train ticket in the name of "Anthony Washington." Tackett left the bus and spoke with the officer watching Allen, who told her that Allen had given him "Anthony Washington" as his name. (Allen was traveling under the alias of "Anthony Washington," but was later identified by his fingerprints as Michael Wayne Allen.) Tackett then asked Allen if the duffel bag was his, and he replied, "No." At that point Allen also denied ownership of the black knapsack he originally admitted to owning. Allen was then taken to the DEA office.

On cross examination, and during examination by the district court, Tackett acknowledged that neither her pre-search question regarding bags other than the knapsack nor Allen's alleged response that he had no bags other than the knapsack were reflected in the government's affidavit submitted at Allen's initial detention hearing or in the official government incident report, both of which DEA Agent Wilcox had prepared. In response to a direct question from the district court, Tackett testified that she did not make any written report of the incident; she explained, "I verbally gave my information to Agent Wilcox, and she wrote the report."

The affidavit prepared by Wilcox and submitted by the government at the detention hearing held the day after Allen's arrest states:

[Allen] was observed to get off the bus, go inside the terminal and then return to his seat on the bus. Detective Tackett, accompanied by Detective Anders, identified herself as police officer and asked where [Allen] was traveling from. He stated he was coming from New York to Charlotte. Detective Tackett than asked if [Allen] had any bags aboard the bus and he said "Yes" and pointed above his head to a black leather knapsack. Detective Tackett removed the knapsack from the overhead area and asked if it was [Allen's]. [Allen] replied "Yes". Detective Tackett requested permission to search the bag and [Allen] answered in the affirmative. Inside the bag Detective Tackett found a clear plastic bag containing 198.8 grams (gross) of a green vegetable matter, suspected marijuana. [Allen] then attempted to leave the bus, struggled with officers briefly, and was arrested and handcuffed by Detectives Anders and Kaplan. Detective Tackett found on [Allen] a Greyhound Bus ticket receipt showing travel from New York to Charlotte, NC for June 12, 1996 in the name A. WASHINGTON.

Detectives Tackett and Kaplan finished speaking with passengers and found a black nylon duff[el] bag on the bus which no one, including [Allen], claimed. Detective Tackett searched the bag as an abandoned bag and found 211.1 grams (gross) of an off-white rock substance, which field tested positive, by affiant, for crack cocaine.

Wilcox's incident report, which was dated June 17 (five days after the arrest) and introduced as an exhibit at the suppression hearing, contains a virtually identical account. Neither written version states that, prior to searching the knapsack, Tackett asked Allen if he had any bags other than the knapsack or that Allen denied having any other bags.

During his testimony, Detective Anders stated that, prior to any search, Tackett did ask Allen if he had any other bags on the bus and Allen replied he did not. At one point, however, Anders testified that Tackett asked about other bags after she searched the knapsack. Subsequently, Anders disavowed this sequence.

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DEA Agent Wilcox then took the stand. Wilcox was not at the bus station during the arrest, but Allen was taken to her office from the station. After being advised of his Miranda rights once again, Allen agreed to speak with Wilcox. Allen told her that he was transporting the crack to some people in Charlotte in exchange for a $2000 fee. But because Wilcox would not promise him probation, Allen refused to give the names or description of the people in Charlotte.

As to her incident report, Wilcox explained that Tackett had "clarified with [Allen] that [the] backpack was the bag that he claimed was his, and that that was the only bag he had." Wilcox further testified that when Tackett saw the incident report, Tackett asked why Wilcox had not included Tackett's question to Allen regarding any bags other than the knapsack. Wilcox told Tackett that it was covered by the statement in the report that "no one, including[Allen], claimed [the duffel bag]."

Wilcox also testified, however, that when she debriefed Tackett on the day of Allen's arrest she asked Tackett "to make some notes also, which [Tackett] did," and that she wrote her report "from the notes that [Tackett] gave [her]." Moreover, Wilcox acknowledged that her report did not specifically recount Tackett's alleged conversation with Allen regarding any bags other than the knapsack. Wilcox explained that the events listed in her report did not necessarily reflect an exact sequential order, but, because the report "is a synopsis ... not meant to be a total recreation in any way," the report listed the events in general chronological order. Later, Wilcox conceded that, as far as she was "aware," when Tackett asked Allen if he had any bags Allen pointed to the knapsack and said, "Yes," but he did not say anything else. She explained that, in her view, Allen's response "spoke for itself: 'This is my bag.' When you're asked if you have any bags, if you had...

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