U.S. v. Kennedy

• Decision Date: 25 September 1995
• Docket Number: No. 94-1985,94-1985
• Citation: 61 F.3d 494
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Arre KENNEDY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 494

61 F.3d 494

64 USLW 2179

UNITED STATES of America, Plaintiff-Appellee, v. Arre KENNEDY, Defendant-Appellant.

No. 94-1985.

United States Court of Appeals,

Sixth Circuit.

Argued May 22, 1995.

Decided Aug. 7, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Sept.

25, 1995.

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 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.

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 findings made in consideration of a motion to suppress evidence are to be upheld unless they are clearly erroneous. However, the district court's conclusions of law are subject to de novo review on appeal. The reviewing court is to review the evidence 'in the light most likely to support the district court's decision.' " United States v. Williams, 962 F.2d 1218, 1221 (6th Cir.) (citations omitted), cert. denied, --- U.S. ----, 113 S.Ct. 264, 121 L.Ed.2d 194 (1992). Mixed questions of law and fact are reviewed de novo. United States v. Clark, 982 F.2d 965, 968 (6th Cir.1993). Because we believe the applicability of the inevitable discovery exception to this case is a mixed question, we shall review the district court's decision de novo. See United States v. Boatwright, 822 F.2d 862 (9th Cir.1987) (panel implicitly reviewed the application of the inevitable discovery doctrine de novo by its extensive review of the facts and the doctrine itself).

The exclusionary rule prohibits the admission of evidence seized in searches and seizures that are deemed unreasonable under the Fourth Amendment, as well as derivative evidence acquired as a result of an unlawful search. Wong Sun v. United States, 371 U.S. 471, 484-85, 83 S.Ct. 407, 416, 9 L.Ed.2d 441 (1963). The inevitable discovery doctrine, an exception to the exclusionary rule, allows unlawfully obtained evidence to be admitted at trial if the government can prove by a preponderance that the evidence inevitably would have been acquired through lawful means. Nix v. Williams, 467 U.S. 431, 444, 104 S.Ct. 2501, 2509, 81 L.Ed.2d 377 (1984). In approving the inevitable discovery exception, the Supreme Court reasoned that "[i]f the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means ... then the deterrence rationale has so little basis that the evidence should be received." Id.

Fairness can be assured by placing the State and the accused in the same positions they would have been in had the impermissible conduct not taken place. However, if the government can prove that the evidence would have been obtained inevitably and, therefore, would have been admitted regardless of any overreaching by the police, there is no rational basis to keep that evidence from the jury in order to ensure the fairness of the trial proceedings. In that situation the State has gained no advantage at trial and the defendant has suffered no prejudice. Indeed, suppression of the evidence would operate to undermine the adversary system by putting the State in a worse position than it would have occupied without any police misconduct.

Id. at 447, 104 S.Ct. at 2511. Therefore, when "the evidence in question would inevitably have been discovered without reference to the police error or misconduct, there is no nexus sufficient to provide a taint and the evidence is admissible." Id. at 448, 104 S.Ct. at 2511.

For the inevitable discovery exception to apply, it must be demonstrated that the evidence inevitably would have been acquired through lawful means had the government misconduct not occurred. Id. at 444, 104 S.Ct. at 2509; see Murray v. United States, 487 U.S. 533, 539, 108 S.Ct. 2529, 2534, 101 L.Ed.2d 472 (1988). Proof of inevitable discovery "involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment and does not require a departure from the usual burden of proof...