61 F.3d 494 (6th Cir. 1995), 94-1985, United States v. Kennedy

Docket Nº:94-1985.
Citation:61 F.3d 494
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Arre KENNEDY, Defendant-Appellant.
Case Date:August 07, 1995
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 494

61 F.3d 494 (6th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Arre KENNEDY, Defendant-Appellant.

No. 94-1985.

United States Court of Appeals, Sixth Circuit

August 7, 1995

Argued May 22, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Sept.

25, 1995.

Page 495

Jonathan Tukel (argued and briefed), Office of the U.S. Atty., Detroit, MI, for plaintiff-appellee.

Fred A. Schwartz (briefed), Adorno & Zeder, Miami, FL, Marcia J. Silvers (argued and briefed), Dunlap & Silvers, Miami, FL, for defendant-appellant.

Before: MILBURN and BATCHELDER, Circuit Judges; TODD, [*] District Judge.

TODD, District Judge.

Defendant appeals his conviction following a conditional plea of guilty to a charge of conspiracy to distribute and to possess with the intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846. On appeal, the only issue is whether cocaine seized in a warrantless search of defendant's suitcase was admissible under the inevitable discovery exception to the exclusionary rule. For the reasons set forth below, we AFFIRM the judgment of the district court.

I.

A.

On July 25, 1993, defendant Arre Kennedy flew from Detroit, Michigan, to Miami, Florida, on Northwest Airlines flight 991. Defendant checked two locked pieces of luggage, a blue suitcase and a black suitcase. Northwest

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mistakenly labeled defendant's suitcases with tags bearing the name of Wesley Kennedy, a Northwest passenger unrelated to defendant. As a result, defendant's suitcases were misrouted and sent to National Airport in Washington, D.C. At National Airport, Wesley Kennedy, who had flown from Detroit to Washington, discovered that his own bag was missing and reported the problem to Northwest employee, Deborah Hawkins-Garner. Hawkins-Garner showed defendant's two suitcases, each of which had a tag bearing the initials A-W-K, to Wesley Kennedy who informed her that the suitcases were not his.

Northwest's policy regarding lost luggage was to open the suitcase to check for identification and, if there was no identification, to inventory the contents. Pursuant to that policy, Hawkins-Garner decided to open the suitcases to see if they contained any identification. She was unable to open the black suitcase because it had a combination lock. However, she was able to open the blue suitcase since it had a lock that could be opened with a Northwest key. The blue suitcase contained $176,000, which was promptly reported to the Metropolitan Washington Airport Authority Police Department.

Officer Simon Mantel answered the call and was later joined by Sergeant Arthur Taplett. Sergeant Taplett was suspicious of the contents of the black suitcase because a strong odor of perfume was emanating from it. Because of a concern that the suitcase might contain explosives, Sergeant Taplett had it x-rayed, which revealed a number of dense, rectangular-shaped objects with an almost metallic appearance, although approximately one-fourth of the contents was indiscernible. Officer Mantel remained with the suitcases while Sergeant Taplett began making arrangements to move the suitcases to the airport police station.

At that point, Hawkins-Garner decided to go ahead and open the black suitcase. After receiving permission from her supervisor to open the bag, she obtained a hammer and a screwdriver and asked Officer Mantel to open it for her. He advised Sergeant Taplett on the radio that Hawkins-Garner had asked him to open the black suitcase and asked if there was a problem with that. Sergeant Taplett replied that Officer Mantel could open the suitcase if Northwest wanted it opened. Officer Mantel then used the hammer and screwdriver to force open the lock on the suitcase. Inside were a number of rectangular-shaped packages wrapped in brown duct tape. Officer Mantel did not try to open the packages.

In response to an earlier phone call from another airport police sergeant, Special Agent Ed Curley of the Drug Enforcement Administration ("DEA") arrived. He suspected that the suitcase contained drugs based on the packaging and the presence of the perfume odor. Agents conducted a field test on the contents of one of the packages and established that it contained cocaine. It was determined that the suitcase contained 17 kilograms of cocaine and 77 grams of cocaine base.

Shortly thereafter, Northwest in Washington, D.C., was notified that defendant had arrived in Miami and was looking for his suitcases. DEA agents arranged for a controlled delivery of the suitcases to defendant. The next day, defendant and his son picked up the suitcases in Miami. As they were leaving, agents arrested Defendant after he admitted that the suitcases belonged to him. Defendant confessed that he had been trafficking drugs from Miami to Detroit for several months. A consensual search of defendant's home produced an additional $225,000 in cash.

B.

On August 26, 1993, a federal grand jury returned a two-count indictment against defendant charging him with conspiracy to distribute and to possess with the intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1) and 846 and with possession of cocaine with intent to distribute in violation of 21 U.S.C. Sec. 841(a)(1).

Defendant moved to suppress the cocaine seized from his black suitcase and all the evidence that resulted therefrom. The district court held an evidentiary hearing and denied the motion based on the inevitable discovery exception to the exclusionary rule.

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On May 13, 1994, defendant entered a conditional plea of guilty to conspiracy to distribute cocaine, reserving his right to appeal the denial of his motion to suppress pursuant to Rule 11(a)(2) of the Federal Rules of Criminal Procedure. The government agreed to dismiss the possession count at sentencing. On August 26, 1994, the district court sentenced defendant to the statutory mandatory minimum of 120 months imprisonment, five years of supervised release, a fine of $5000, and a special assessment of $50. The district court granted defendant bond pending appeal. This timely appeal followed.

II.

Defendant contends that the district court erred in denying his motion to suppress because the government failed to establish that the cocaine inevitably would have been discovered by lawful means. "[T]his court reviews a district court's decision on a motion to suppress under two complementary standards." United States v. Leake, 998 F.2d 1359, 1362 (6th Cir.1993). "A district court's factual...

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