U.S. v. Alexander

• Decision Date: 18 August 2008
• Docket Number: No. 07-3219.,07-3219.
• Citation: 540 F.3d 494
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Damon ALEXANDER, Jr., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

540 F.3d 494

UNITED STATES of America, Plaintiff-Appellee, v. Damon ALEXANDER, Jr., Defendant-Appellant.

No. 07-3219.

United States Court of Appeals, Sixth Circuit.

Argued: June 10, 2008.

Decided and Filed: August 18, 2008.

ARGUED: Jonathan P. Witmer-Rich, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Vasile C. Katsaros, Assistant United States Attorney, Cleveland, Ohio, for Appellee. ON BRIEF: Jonathan P. Witmer-Rich, Edward G. Bryan, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Vasile C. Katsaros, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before: BOGGS, Chief Judge; and RYAN and COLE, Circuit Judges.

BOGGS, C.J., delivered the opinion of the court, in which RYAN, J., joined. COLE, J. (p. 505), delivered a separate concurring opinion.

OPINION

BOGGS, Chief Judge.

Defendant Damon Alexander, Jr. appeals from the district court's decision not to suppress the key evidence underlying his plea of guilty to charges of conspiring to possess cocaine and possessing cocaine and cocaine base. Alexander also appeals the district court's denial of his motion to compel discovery of materials produced during an investigation of his alleged beating by a police officer. For the reasons stated below, we affirm.

I

A

On April 5, 2006, Detective Gene Cook of the East Cleveland Police Department, a canine handler, was assigned parcel interdiction duty at the Cleveland airport air mail facility. Detective Cook had been working in parcel interdiction for approximately 25 years, and he testified that he pulls for scrutiny a half dozen packages per day and that he finds approximately 150 packages per year that contain narcotics. On April 5, Cook was observing express mail coming into the air mail building when his attention was drawn to a package that had been dumped from a bag into a hamper. At the suppression hearing, Cook testified that his attention was first drawn to the package because there was an "X on the signature waiver box on the label," and the X looked "[l]ike it was done with a crayon almost." Cook testified that senders of drugs often waive signature so that the receiver does not have to meet anyone delivering the mail and that drugs are often sent express because dealers want fast delivery. Cook then noticed that the package "was coming from an area that we have gotten drugs from in the past and was going to an area where we have had packages go that contained narcotics." That is, the package had a return address in Las Vegas, Nevada, and was being sent to Shaker Heights, Ohio. Cook also said that he noticed that the sender was a company, but the label was handwritten and not typed. Finally, he noted that the sender had not listed a telephone number. Cook removed the package from the hamper. Cook stated that when he held it, it weighed "a tad over six pounds" and was "dense," meaning there was no shuffling of papers when he shook it.¹

Cook decided to investigate further, brought the package to an office, and ran the return address against a database using a computer in the office. The address "came back as nonexistent." Cook then hid the package among other mail, retrieved his canine from his car, directed the dog to search. The dog alerted to drugs in that package. Approximately 20 minutes elapsed between the time Cook first noticed the package and his dog's alert.

Cook called Postal Inspector Martin Cernelich. Cernelich obtained a federal search warrant, opened the package, and found two cellophane-wrapped bricks of white powder, which tested positive for cocaine. Cernelich then obtained a search warrant from a state judge authorizing a controlled delivery of the package to Alexander's home and a search of the premises thereafter. Cernelich substituted coffee creamer for two kilos of the cocaine, leaving approximately 500 grams of cocaine in the package. Cernelich also added to the package a transmitter that would alert when the package was opened.

At noon the next day, April 6, Cernelich posed as a postman and delivered the package to Alexander's home. Alexander's wife, Loretta, answered the door and received the package. Approximately fifteen minutes later, the transmitter signaled that the package had been opened. A joint DEA-Shaker Heights Police Department team executed the search warrant.

Cleveland Police Officer Jamal Ansari entered the front door, found Loretta Alexander and Damon Alexander's mother in the living room, and handcuffed them. Loretta Alexander denied having received a package. Officers swept the house and found a loaded .38-caliber revolver, more than one thousand dollars in cash, and mailing receipts. Detective William Ford proceeded to the basement and found Defendant Alexander. Drawing his gun, Detective Ford ordered Alexander upstairs.

There is some dispute about what happened next. At the suppression hearing, Ansari testified that he saw Alexander, without handcuffs, come into the room and approach DEA Special Agent Joseph Harper. According to Ansari, Alexander approached Harper in an aggressive manner, and Ansari moved to take Alexander down to the ground. Harper confirmed that Alexander approached him and used profanity. Ansari said he, Harper, and Alexander struggled for about thirty seconds, and Ansari struck Alexander several times, put his knee on Alexander's chest, and eventually handcuffed him. Ansari testified that he did not see Detective Ford behind Alexander.

Ansari testified that he then took Alexander outside to separate him from the situation in the living room, where Alexander's mother had been handcuffed and placed on the floor. Ansari admitted that he did not read Alexander his Miranda rights and told Alexander to admit where the cocaine was. Clifford Williams, Alexander's neighbor, testified that he saw Alexander on his porch with Ansari and Cernelich. According to Williams, Alexander repeatedly requested a lawyer. Ansari denied that Alexander ever requested a lawyer.

Ansari testified that Alexander refused to calm down, so he brought him back inside to the kitchen, swept his feet out from under him, and forced Alexander back onto the ground. The events that followed inside the house are also heavily contested. Ansari testified that he gave Alexander the Miranda warnings and told Alexander to tell where he had hidden the drugs. Alexander refused until Ansari said that if he told them the location of the drugs, Alexander would be the only person arrested. Alexander then took Ansari and other officers to the basement and revealed where the drugs were hidden in the ceiling.

Alexander's version of events is very different. According to Alexander and his wife, he entered the living room already handcuffed and was seated in a chair. Alexander stated that Detective Ford had handcuffed him in the basement with his hands in front and yelled out "One is coming up." According to the Alexanders, Ansari grabbed Alexander without provocation, forced him to the ground, then threw him into a chair, and then choked him. Alexander claims he said he wanted a lawyer, and that Ansari then began punching him. Ansari then dragged him outside, saw Williams, and then dragged Alexander back to the kitchen and threw him on the floor. According to Alexander, Ford offered him a seat, but Ansari "lost it" and began yelling "where is the dope?" Alexander claims he was sitting against a wall and that Ansari then began kicking him in the chest. Alexander yelled for help, but a Sergeant Rowe, who was also in the kitchen, allegedly ignored him. Alexander was allegedly kicked three or four more times (for a total of approximately twelve kicks) and stated, "I got to go the hospital. I can't breathe. My chest is killing me. My heart is hurting." Alexander says he told Ansari that the cocaine had gone out the back door, because Alexander feared he would die. Alexander stated that he then showed the officers the cocaine hidden in the basement, and only then was given his Miranda warnings.

After he was brought to Shaker Heights jail, Alexander requested that he be taken to the hospital. He was taken to the hospital in an ambulance and received medical treatment. Photographs taken at the time show some bruising on his chest and back, but not on his face. Later, Alexander filed a complaint with the DEA, and the DEA Office of Professional Responsibility (OPR) began an investigation. As part of that investigation, Alexander took a polygraph test. The DEA OPR also took statements from various officers and agents at the scene, including Ansari.

B

On April 26, 2006, a federal grand jury returned a two-count indictment against Alexander and charged him with one count of conspiracy to distribute over five kilograms of cocaine and one count of possession, with intent to distribute, of over 500 grams of cocaine. On October 27, 2006, Alexander moved to suppress the evidence and a statement from his arrest. The same day, Alexander requested additional discovery, including "all documents related to any and all investigations into police misconduct," specifically any polygraph results and any statements from other officers at the scene. The government responded that it was not obliged to provide that additional discovery, and Alexander moved to compel discovery on November 8.

A suppression hearing was held on November 13 and 14, 2006. On November 14, a federal grand jury returned a superseding indictment against Alexander adding count three, charging possession, with intent to distribute, of over five grams of crack cocaine, and count four, charging being a felon in possession of a firearm.

On November 20, the district court denied the motion to suppress, ruling that reasonable suspicion supported Cook's inspection of the package and that the inevitable discovery doctrine dictated that the drugs found at Alexander's home not be suppressed. Regarding Detective Cook's initial decision to inspect Alexander's package, the court credited...