759 F.2d 1196 (5th Cir. 1985), 84-1864, United States v. Cherry

Docket Nº:84-1864.
Citation:759 F.2d 1196
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. James Thomas CHERRY, Defendant-Appellant.
Case Date:April 23, 1985
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 1196

759 F.2d 1196 (5th Cir. 1985)

UNITED STATES of America, Plaintiff-Appellee,

v.

James Thomas CHERRY, Defendant-Appellant.

No. 84-1864.

United States Court of Appeals, Fifth Circuit

April 23, 1985

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Robert Ramos, Fed. Public Defender, El Paso, Tex., for defendant-appellant.

Helen M. Eversberg, U.S. Atty., El Paso, Tex., Sidney Powell, Michael S. McDonald, Asst. U.S. Attys., San Antonio, Tex., Maury S. Epner, Atty., Dept. of Justice, Washington, D.C., for plaintiff-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before RANDALL, JOHNSON and GARWOOD, Circuit Judges.

RANDALL, Circuit Judge:

In United States v. Cherry, 733 F.2d 1124 (5th Cir.1984) (Cherry I ), we set aside the murder conviction of defendant-appellant James Thomas Cherry, Jr., on the ground that his confession and other incriminating statements were obtained in violation of his Miranda rights and thus their admission at trial constituted reversible error. Following Cherry I, Cherry was once again tried in federal court and found guilty of murder. On appeal from his second murder conviction, Cherry asserts primarily that the district court, while properly holding the incriminating statements inadmissible, erred in applying the exclusionary rule's "inevitable discovery" exception to allow the admission of the murder weapon and related physical evidence. We hold that the district court misapplied the inevitable discovery exception both as recently adopted by the Supreme Court and as earlier formulated by this court. However, because our statement in Cherry I characterizing as tainted Cherry's consent to the search that led to the discovery of the murder weapon is inconsistent with principles recently articulated by the Supreme Court in Oregon v. Elstad, --- U.S. ----, 105 S.Ct. 1285, 84 L.Ed.2d 222 (1985), we remand the case for the district court to consider the validity and effect of the consent in light of fourth and fifth amendment concerns.

I. BACKGROUND

A. Facts

Most of the facts pertinent to this appeal were depicted in detail in Cherry I: 1

On the morning of December 6, 1982, a dead man's body was found in the parking lot of an elementary school on the Biggs Field section of the military reservation at Fort Bliss, Texas. The cause of death was determined to be three gunshot

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wounds to the back and neck. The deceased was identified as Jesus Manriquez, a taxicab driver employed by The Checker Cab Company in El Paso, Texas. The Army's Criminal Investigations Detachment ("CID") and the FBI were notified.

The following morning, on December 7, 1982, the deceased's taxicab was found in downtown El Paso, Texas. During an FBI search of the cab, a military identification card and a Virginia driver's license in the name of U.S. Army Private James Thomas Cherry, Jr. were found on top of the sun visor.

At noon that day, FBI Agents Donald Graham and Gene Smith went to CID headquarters at Fort Bliss to see if the CID could help them locate Cherry. CID records revealed that Cherry was stationed on the base and Agents Graham and Smith, along with two CID agents, drove to Cherry's company area to locate him. They contacted Cherry's company commander, Captain John Spiridigliozzi, and told him they wanted to talk to Cherry. Captain Spiridigliozzi informed the agents that Cherry was due to report to battalion headquarters at 1:00 p.m. The FBI and CID agents then walked to the battalion commander's office to inform the battalion commander that they wanted to question Cherry.

At 1:00 p.m., Cherry reported to battalion headquarters where he was met by Sergeant Dave Bates, a member of his company. Sergeant Bates told Cherry that "there were some people in Battalion Headquarters that were looking for him." Record Vol. II at 119. Bates and Cherry then walked into battalion headquarters whereupon Agent Graham approached Cherry and identified himself as an FBI agent. Graham told Cherry that he wanted to ask Cherry some questions. The FBI and CID agents then surrounded Cherry and walked him to a waiting FBI car. Record Vol. II at 39-40. Cherry was put in the back seat and flanked by two of the agents. Id. The four agents and Cherry then drove to CID headquarters where Cherry was to be questioned.

Once they arrived at CID headquarters, the FBI agents showed Cherry their badges and gave him his Miranda warnings via an advice of rights form. Cherry indicated that he understood his rights and signed the form. The two FBI agents then interrogated Cherry for about an hour, during which Cherry denied any involvement in the murder. Although no physical force had been used in bringing Cherry to CID headquarters for questioning, Agent Graham testified that Cherry was in custody and was not free to go. Record Vol. II at 44. Once this interrogation had concluded, the agents obtained Cherry's consent to search his barracks. The agents took Cherry to his barracks and conducted a search of his locker and personal belongings. During this search, the agents found a billfold in a trash can located in the latrine area of the barracks. Later that afternoon, the billfold was identified as the victim's.

733 F.2d at 1125-26. Also in the course of the search, the agents noticed that the ceiling of the barracks was comprised of removable accoustical tiles. While looking for something with which to boost themselves up to the ceiling, the agents found a sneaker footprint on top of Cherry's dresser. Once at ceiling level, the agents removed one panel and attempted a search of the above space. Because the area was dark, however, the agents were unable to conduct a thorough search at that time. Record Vol. VI, at 12. As Cherry I describes further:

The search was completed at about 4:00 p.m. The agents then returned Cherry to CID headquarters, where they asked him to sign a written statement, which he did. At about this time, the FBI agents learned that the last location to which the victim's taxicab had been dispatched was Cherry's barracks. This dispatch had occurred at 6:17 p.m. on December 5, 1982, the night before the victim's body was found.

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At approximately 5:30 p.m. on December 7th, the FBI agents told the CID what they had learned with regard to the investigation. The FBI and CID then discussed who would keep Cherry in custody. The FBI agents informed the CID that they wanted to have more evidence before seeking an arrest warrant. However, the FBI agents also told the CID that if the military was going to confine Cherry there was no need for the FBI to secure an arrest warrant until the FBI finished interviewing him the following day. There was conflicting testimony at trial whether military authorities decided to confine Cherry because they were asked to by the FBI, or whether they had independently decided to do so as a result of the evidence linking Cherry to the murder. In any case, at approximately 7:00 p.m., Captain Spiridigliozzi signed a confinement order for Cherry, which charged him with murder under Article 118 of the Uniform Code of Military Justice, 10 U.S.C. Sec. 918 (1982).

Cherry spent the night in a holding cell at the Military Police station, and was given some bedding and canned rations by members of his company. Early the next morning, December 8, 1982, Sergeant Carlton Crider arrived at the MP station to stand by while Cherry was in custody. Crider talked to Cherry and warned him: "[Regardless whether] you did anything or you didn't, don't say anything. Don't say nothing to anyone. Just wait until you see a lawyer." Record Vol. II at 130-31. At 11:00 a.m., Sergeant Crider took Cherry over to the CID office for interrogation by FBI agents Chris Clark and Terry Youngblood.

Before interrogation began, Cherry was informed of his Miranda rights. He indicated that he understood these rights and signed a written waiver of these rights. Cherry then began to answer Clark's and Youngblood's questions regarding his activities the night that the murder occurred. The FBI agents told Cherry that there were certain inconsistencies in his story and apprised him of the evidence that had been uncovered connecting him to the murder.

After conveying this information to Cherry, the FBI agents noticed that he was beginning to break down, and they sensed that they might be able to elicit a confession from him. Record Vol. II at 99-100. Agent Clark testified that at this point in the interrogation, "We asked [Cherry] if he didn't want to make a complete statement or story and if he did not want to tell us what the truth of the matter was. [Cherry] indicated that he did have some reservations. And he said, 'Maybe I should talk to an attorney before I make a further statement.' " Id. at 102. After Cherry said this, Agent Clark told him that the advice of counsel was one of Cherry's constitutional rights. Cherry then asked, "Why should I not get an attorney?" Clark answered by suggesting that an attorney would protect Cherry's rights and would most probably tell him to remain silent. Id. at 103. See also Government Exhibit 7 at 20. Although the FBI agents did not attempt to put Cherry in touch with an attorney, they did ask him if he wanted to be alone to consider whether to make any further statement. Record Vol. II at 107. Cherry then said, "I want to talk to the sergeant who brought me over." Id. at 108. Clark left the interrogation room to see if he could locate Sergeant Crider, who was posted at CID headquarters while Cherry was being interrogated. Clark was informed by CID personnel that Sergeant Crider had been replaced by Sergeant Curtis Brown, and Clark relayed this information to Cherry. Id. at 108-09.

733 F.2d at 1126-27. A few minutes later, Agent Graham entered the...

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