954 F.2d 496 (8th Cir. 1992), 90-2857, United States v. Caldwell

Docket Nº:90-2857.
Citation:954 F.2d 496
Party Name:UNITED STATES of America, Appellee, v. Anthony CALDWELL, Appellant.
Case Date:January 16, 1992
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

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954 F.2d 496 (8th Cir. 1992)

UNITED STATES of America, Appellee,

v.

Anthony CALDWELL, Appellant.

No. 90-2857.

United States Court of Appeals, Eighth Circuit

January 16, 1992

Submitted April 8, 1991.

Rehearing Denied Feb. 18, 1992.

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James E. Sullivan, St. Louis, Mo., argued, for appellant.

Edward J. Rogers, St. Louis, Mo., argued, for appellee.

Before LAY, [*] Chief Judge, FRIEDMAN, [**] Senior Circuit Judge, and JOHN R. GIBSON, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Anthony Caldwell appeals from his conviction of conspiracy to possess cocaine base with the intent to distribute in violation of 21 U.S.C. §§ 841(a)(1) and 846 (1988). The sole issue on appeal is whether the district court 1 erred in denying Caldwell's motion to suppress statements made to Detective Albert Upchurch because of inadequate Miranda 2 warnings. Caldwell argues that the failure of Detective Upchurch to tell him that he had a right to consult with an attorney before and during his interrogation invalidated the warnings provided by Upchurch. We affirm the conviction.

On January 7, 1990, Barbara Johnson opened a package delivered to the apartment of her grandmother, Gustine Sumner. The package was delivered by Federal Express and addressed to "Bob Johnson" at Sumner's address. Johnson opened the package in Sumner's apartment and saw a clear plastic bag with a white powder chunk. Johnson took the package upstairs to her apartment and called a neighbor, Vivian Jones. Jones lived in the same

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four-family flat as Sumner and Johnson. Jones came to Johnson's apartment, where Johnson showed her the package. Both women suspected that the package contained drugs. Jones called her eighteen year old son, Anthony Caldwell, over to the apartment. She showed Caldwell the package and asked whether he was expecting it. Caldwell first said he was not, and then admitted that he was expecting the package. Caldwell then left the apartment.

Jones and Johnson decided to seek advice from Mike Washington, a St. Louis police officer and a friend of Johnson's. Washington came to Johnson's apartment, looked at the package, and suspected that it contained drugs. Because Washington did not feel he had the necessary expertise to investigate a drug matter, he called the police department command post and requested that Detective Albert Upchurch come to the apartment.

While Washington was in Johnson's apartment, Caldwell called Jones at her apartment, which was on the same level as Johnson's. Jones talked to Caldwell on the telephone and tried to persuade him to return to the apartment. Washington then went to Jones's apartment and spoke with Caldwell on the telephone. Caldwell was upset and crying, and Washington told him that he should return to Johnson's apartment to straighten this matter out, and that if he did not return, he could "probably be in a lot of trouble."

Caldwell returned to Johnson's apartment. Washington spoke to Caldwell, who was "scared, very frightened, [and] extremely nervous." Caldwell's voice was lower than usual and quivering. Jones was also visibly upset and pacing around the apartment. Washington did not advise Caldwell of his Miranda rights. Washington asked Caldwell about the package, and Caldwell told him that a couple of weeks earlier, he had met a man named "Ray" who promised him $500 if he would accept a package at his address. Caldwell admitted that he knew that the package would contain cocaine. Washington told Caldwell that he had called Detective Upchurch from the police command post and that it would be in his best interest to be as cooperative as possible with Upchurch.

Detective Upchurch arrived and Washington led him to the kitchen where Caldwell was seated. Upchurch looked at the package, which he believed to contain crack cocaine. Washington introduced Upchurch to Caldwell. Detective Upchurch immediately advised Caldwell of his rights to remain silent and to counsel, telling Caldwell:

You got the right to remain silent. Anything you say will and can be used against you in the court of law. You have a right for an attorney. If you can't afford one, one will be appointed to you.

Upchurch then asked Caldwell whether he understood his rights. Caldwell shook his head indicating he understood. Upchurch testified that Caldwell was "scared and hysterical looking." Jones paced in and out of the kitchen, and Upchurch testified that she was "excited" and "hysterical." Caldwell and Upchurch moved to the living room where Upchurch again asked Caldwell: "You sure you understood your rights?" Caldwell said that he did. Upchurch then asked Caldwell what happened, and Caldwell repeated the same story he told Washington--that a guy named "Ray" agreed to pay him $500 to use his address to have cocaine delivered. At that point, Upchurch placed Caldwell under arrest, and after talking with his mother and looking at Caldwell's room, took him to the narcotics office of the St. Louis Police Department. There, Upchurch again advised Caldwell of his rights and asked him if he understood his rights. Caldwell said that he did, and in answer to questions, Caldwell repeated the statements he had given before. Caldwell refused to sign a written statement.

The facts above are essentially as recited in the magistrate's report and recommendation following the suppression hearing. United States v. Caldwell, No. 90-12-CR(6), slip op. at 2-7 (E.D.Mo. June 13, 1990). The magistrate recommended that Caldwell's statements made in Johnson's apartment to both Washington and Upchurch be suppressed because Caldwell did

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not voluntarily and intelligently waive his rights due to his upset mental state, his mother's upset condition, and his age and inexperience. Id. at 9-10. The magistrate also held that Caldwell's statement given at the police station should be suppressed because the circumstances of the interrogation were such that he was not shown to have intelligently waived his rights to remain silent and to counsel. Id. at 10.

The district court adopted the statement of facts concerning the motion to suppress the statements and the recommendation that Caldwell's statements to Washington be suppressed. United States v. Caldwell, No. 90-12-CR(6), slip op. at 1-2 (E.D.Mo. Aug. 2, 1990). The district court, however, rejected the magistrate's recommendation that Caldwell's statements to Upchurch be suppressed, reasoning that Upchurch advised Caldwell three times of his constitutional rights and asked him twice if he understood those rights. Id. at 1-2. The court ruled that the circumstances did not " 'rise to the level of compulsion or coercion to speak ... within Miranda's concerns.' " Id. at 2 (quoting Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 2397, 110 L.Ed.2d 243 (1990)).

A jury convicted Caldwell of conspiring to possess cocaine with intent to distribute. Caldwell was sentenced to a mandatory 121 month sentence, as the amount of cocaine was 197.2 grams of 85% pure crack cocaine with a wholesale value of $20,000-24,000. U.S.S.G. § 2D1.1(c)(5).

On appeal, Caldwell argues that the district court erred in failing to suppress his statements made to Upchurch because Caldwell was inadequately advised of his Miranda rights. 3 Caldwell specifically argues that although Upchurch told him that he had the right to an attorney, he failed to tell him when that right accrued or that he had the right to consult with an attorney before and during his interrogation. The government responds that Caldwell was not in custody at the time he confessed to Upchurch, and therefore, no Miranda warnings were required.

As a threshold matter, we must first consider whether Caldwell was in custody for Miranda purposes when he confessed to Upchurch. Miranda warnings are required only when a suspect is in custody and is about to be interrogated. Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 1689, 64 L.Ed.2d 297 (1980). A suspect is considered "in custody" for Miranda purposes either when he has been formally arrested and not free to leave the location, or when a reasonable person in the suspect's position would have considered his freedom of movement restrained to a degree that is usually associated with a formal arrest. Berkemer v. McCarty, 468 U.S. 420, 440, 104 S.Ct. 3138, 3150, 82 L.Ed.2d 317 (1984); United States v. Goudreau, 854 F.2d 1097, 1098 (8th Cir.1988).

The magistrate concluded that Caldwell was "in custody" for Miranda purposes when Officer Washington first began to question him in Johnson's apartment. Slip op. at 7-8 (June 13, 1990). The district court did not decide whether Caldwell was in custody for Miranda purposes. 4

We need not decide whether Caldwell was in custody for Miranda purposes when he first confessed to Upchurch. The government does not address Caldwell's statement made during his interrogation at the police station where it is uncontradicted that Caldwell was under formal arrest, and therefore, in custody for Miranda purposes. In light of the confusion created by the district court's ruling, we assume for purposes of this appeal that Caldwell was in custody at the time he returned to Johnson's apartment.

Before considering the merits of Caldwell's claim that he was provided with inadequate

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Miranda warnings, we must first decide whether Caldwell properly preserved the issue of the adequacy of Miranda warnings for appeal. At oral argument the parties brought to our attention for the first time that Caldwell did not raise his objection to the adequacy of Miranda warnings before the magistrate judge or district court. Caldwell's counsel initially admitted at oral argument that Caldwell's court-appointed counsel did not raise the specific issue of the adequacy of Miranda warnings to the courts below, and later, stated that counsel did raise the issue in a motion to suppress. Our study of the district court file reveals that...

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