U.S. v. Kelly

• Decision Date: 27 May 2003
• Docket Number: No. 02-2826.,02-2826.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Henry Vincent KELLY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

329 F.3d 624

UNITED STATES of America, Plaintiff-Appellee, v. Henry Vincent KELLY, Defendant-Appellant.

No. 02-2826.

United States Court of Appeals, Eighth Circuit.

Submitted: February 10, 2003.

Filed: May 27, 2003.

COPYRIGHT MATERIAL OMITTED

Steven M. Press, argued, Minneapolis, MN, for appellant.

David P. Steinkamp, argued, Asst. U.S. Atty., Minneapolis, MN, for appellee.

Before WOLLMAN, RICHARD S. ARNOLD, and MELLOY, Circuit Judges.

MELLOY, Circuit Judge.

Defendant-Appellant Henry Vincent Kelly appeals the district court's¹ denial of his multiple motions to suppress statements and evidence. In addition, he asks this court to review the denial of his motion for a downward departure pursuant to U.S.S.G. § 4A1.3. We affirm the district court's denial of Kelly's suppression motions and find the district court's discretionary refusal to depart downward unreviewable.

I.

At approximately 5:00 a.m. on December 29, 2000, a night security officer at a Brooklyn Center, Minnesota, hotel called police to report that she detected the odor of marijuana in the hotel's hallway near rooms 212 and 214. The officers who responded to the call arrived about thirty-five minutes later but could not detect the odor. From the hotel clerk, officers learned that five guests had arrived at approximately 3:30 a.m. and checked into rooms 212 and 214. One of the five, a man who presented a Texas drivers license and identified himself as Darrin Hunter, attempted to register for the rooms. The clerk required the occupants of each room to register separately, so a woman who identified herself as Celestine Marshall registered for the second room. Mr. Hunter paid for the rooms. The group left for about an hour, then returned. One of the five left again shortly before the night security officer called police about the odor.

The officers ran background checks on Hunter and Marshall and found no outstanding warrants. The officers remained concerned about the reported odor so they knocked on the door to room 212. Juan Jose Salazar answered the door. The officers explained why they were called to the hotel. Salazar consented to their entry and agreed to answer questions. Salazar denied marijuana use, admitted that he did not rent the room, and said that his boss had paid for the room. Salazar identified his boss as Henry Kelly, not as Darrin Hunter. Salazar claimed to be traveling with Kelly, Kelly's wife, and another woman. He repeatedly changed his explanation of the purpose of their trip. He first stated that they had come to celebrate New Year's Eve. Next, he claimed that they had just arrived on Sun Country Airlines from Texas en route to visiting relatives and had decided to stay at a hotel due to their late arrival. Later still, he said that the group had come to Minnesota as part of Kelly's carpet cleaning business. Due to the inconsistencies in Salazar's responses, including the fact that the hotel was not conveniently located relative to the airport, officers asked for and received Salazar's permission to search the room. The search revealed approximately one kilogram of cocaine inside a piece of luggage.

When the officers were arresting Salazar, he spontaneously stated that Kelly and Kelly's wife had access to the luggage and that they could have placed the cocaine in the luggage. The officers called for assistance. When more police arrived, they knocked on the door to room 214, obtained permission from Kelly to enter the room, and arrested Kelly, his wife, and Marshall for conspiracy to possess a controlled substance. After Kelly was taken to the station, an assisting officer found a black billfold on the floor near the entrance to the holding facility at a location along the path that Kelly had walked. The billfold contained Kelly's social security card as well as Texas drivers licenses for Adam Carson and Darrin Hunter.

At the station, Kelly met with an officer named Sargent Lund for an interview. Lund informed Kelly of his Miranda rights and the state law requirement that all interviews be taped. When Lund began to ask Kelly questions about the drugs found in room 212, Kelly denied any knowledge and invoked his right to remain silent by asking to be returned to his cell. Sargent Lund terminated the interview. He subsequently released Kelly, Kelly's wife, and Marshall because he did not believe that the evidence was sufficient to charge them with conspiracy. A later search of room 214 pursuant to a warrant revealed a cell phone, daily planner, and appointment book. These were the only items found in and seized from room 214.

Investigation into Kelly continued. A DEA agent sent administrative subpoenas that sought documents and information concerning Kelly including a subpoena duces tecum that directed Kelly to produce the records of his carpet cleaning business. Officers never served the subpoena duces tecum because they could not locate Kelly. On December 3, 2001, over eleven months after the initial arrest, a grand jury convened to consider indicting Kelly. That same day, Kelly inexplicably appeared at the office of the United States Attorney and said that he had driven from Texas to respond to the unserved subpoena. An Assistant United States Attorney and a Drug Enforcement Agency agent invited Kelly into a conference room and told him that the unserved subpoena sought business records, not testimony. Kelly spoke willingly with the agent and attorney. When the agent tried to read Kelly his Miranda rights, Kelly terminated the meeting and asked, "do you know any good attorneys?" Kelly then left the office. The grand jury subsequently indicted Kelly and a Minnesota arrest warrant was issued.

Kelly then traveled to Las Vegas, Nevada, where he lived and where he was on probation for earlier offenses. On December 13, officers arrested Kelly in Las Vegas on the Minnesota warrant. Kelly was carrying over $3,000 in cash at the time of the arrest. The same DEA agent who spoke with Kelly at the December 3 meeting was involved in transporting Kelly after the arrest in Nevada. The agent believed that Kelly may have invoked his right to counsel when he terminated the December 3 meeting. As a result, the agent told Kelly that Kelly would have to reinitiate any conversation in order to speak to the agent. Kelly responded, "I'll holler with you later on." Then, while transporting Kelly, the agent read Kelly the Miranda warnings. Kelly waived his rights, and the agent proceeded to question him. In response to these questions, Kelly made incriminating statements about the source of the $3,000.

At trial, evidence arising from Kelly's December 29, 2000 arrest was admitted over Kelly's objection that the arresting officers lacked probable cause to perform the warrantless arrest and entry into his hotel room. In addition, Kelly's statements of December 3 and 13, 2001, were admitted over his objections. Kelly argued that these statements were fruit of the poisonous tree from the original, allegedly infirm arrest and that they were inadmissible because he had invoked his right to remain silent on December 29, 2000, but officers had not scrupulously honored that right. Finally, he argued that his statements of December 13 were inadmissible because he had invoked his right to remain silent and his right to the assistance of counsel on December 3.

Kelly was convicted for possession with intent to distribute and conspiracy to distribute the cocaine that was seized from Salazar's room. Kelly was sentenced as a career offender because he had two prior felony convictions. One of these convictions stemmed from an indictment that described the trafficking of eighty grams of cocaine. Kelly's guilty plea in that case actually involved between four and fourteen grams of crack cocaine. Kelly argued that the prior conviction overstated the seriousness of his criminal history and that he should receive a downward departure under U.S.S.G. § 4A1.3. The district court refused to grant a downward departure and sentenced Kelly to 262 months imprisonment.

II.

In the context of suppression motions, we review the district court's factual findings for clear error and its legal determinations de novo. United States v. Terry, 305 F.3d 818, 822 (8th Cir.2002). On the specific question of whether probable cause existed to justify an arrest without a warrant, the ultimate determination as to the existence of probable cause is a legal question that we review de novo. Id. at 824.

Kelly first argues that his warrantless arrest on December 29, 2000, was unsupported by probable cause. We disagree. To determine the existence of probable cause, we look at the totality of the circumstances as set forth in the information available to the officers at the time of arrest. Illinois v. Gates, 462 U.S. 213, 230-39, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). We will find that probable cause existed at the time of arrest where the available facts and circumstances are sufficient to warrant a person of reasonable caution to believe that an offense was being or had been committed by the person to be arrested. Dunaway v. New York, 442 U.S. 200, 208 n. 9, ...