963 F.2d 137 (6th Cir. 1992), 91-5984, United States v. Tillman

Docket Nº:91-5984.
Citation:963 F.2d 137
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Cordell L. TILLMAN, Defendant-Appellant.
Case Date:May 06, 1992
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
 
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Page 137

963 F.2d 137 (6th Cir. 1992)

UNITED STATES of America, Plaintiff-Appellee,

v.

Cordell L. TILLMAN, Defendant-Appellant.

No. 91-5984.

United States Court of Appeals, Sixth Circuit

May 6, 1992

Argued Feb. 14, 1992.

Rehearing Denied July 16, 1992.

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Louis DeFalaise, U.S. Atty., Office of the U.S. Atty., Lexington, Ky. and Jacquelyn A. Jess, Asst. U.S. Atty. (argued and briefed), Office of the U.S. Atty., Covington, Ky., for plaintiff-appellee.

Martin S. Pinales (briefed) and Edmund McKenna (argued), Sirkin, Pinales, Mezibov & Schwartz, Cincinnati, Ohio, for defendant-appellant.

Before: KEITH and MARTIN, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

Defendant, Cordell L. Tillman, was indicted in the United States District Court for the Eastern District of Kentucky on three counts 1. In Count One, defendant was charged with violating 21 U.S.C. § 846, Conspiracy to Possess with Intent to Distribute Cocaine; Count Two charged defendant with violating 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2, Aiding and Abetting the Possession with Intent to Distribute Cocaine; Count Three charged defendant with violating 18 U.S.C. § 1952(a)(3) and 18 U.S.C. § 2, Aiding and Abetting the Travel in Interstate Commerce with Intent to Promote Unlawful Activities. Defendant filed a Motion to Suppress Tangible Evidence and Statements. A hearing on the motion

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to suppress was held before a magistrate. The Magistrate issued his report recommending the motion to suppress be denied. Defendant thereupon filed his objections to the Magistrate's report. On April 30, 1991, the District Court overruled defendant's objections and denied defendant's motion to suppress. Defendant then entered a conditional plea of guilty pursuant to Fed.R.Crim.P. 11(a)(2) to Count Three of the indictment thereby preserving his right to appeal the denial of his motion to suppress evidence. Counts One and Two were dropped. On July 8, 1991, defendant was sentenced to thirty-seven months imprisonment, three years supervised release and a $50.00 special assessment. Defendant filed a timely Notice of Appeal. For the following reasons the decision of the district court is vacated and the case is remanded.

I.

On August 1, 1990, defendant was a passenger on Delta Airlines Flight 1018 from Norfolk, Virginia to Cincinnati, Ohio. Accompanying defendant on the flight was Rodney Rogers a.k.a. Kaseem Courtney Sanders. Upon their arrival at the Cincinnati Airport, defendant and Rogers were being investigated by Officer David W. Bunning of the Airport Police Department. Officer Bunning became interested in the two men after overhearing a third person, Thomas Vines, asking a Delta Airlines ticket agent whether Rogers was on Flight 1018. Officer Bunning had recognized Vines as a known felon with a long criminal history.

Officer Bunning had personally been involved in cases in which Vines was a participant. In November, 1989, Officer Bunning was present during a seizure of $24,990.00 in cash at the airport. Shortly afterwards Vines appeared at the airport attempting to retrieve the money. The money, however, has since been forfeited as drug proceeds. Officer Bunning noticed that Vines wore a large diamond and gold ring with the nickname "Buddy" engraved on it. Again in April, 1990, Officer Bunning was involved in a seizure of cash suspected of being derived from drug proceeds involving Vines. This time the amount was over $27,215.00. Officer Bunning once again noted Vines' distinctive ring. Finally, in July, 1990, Officer Bunning learned Vines was being sought by the New York City Police Department in connection with a murder investigation and there was an outstanding arrest warrant for Vines for failure to appear for sentencing on a drug trafficking charge. The description given Bunning by the New York police included the distinctive ring.

So it was that when Officer Bunning spotted Vines at the airport in August, 1990, he was able to identify Vines by his appearance and his ring. Moreover, given Officer Bunning's knowledge of Vines criminal history, it would have been an abdication of Bunning's duty not to observe Vines' actions. Officer Bunning spoke to the Delta ticket agent and determined that Rogers was traveling with defendant. The pair had purchased first class tickets that day, paid for the tickets with cash, and listed the same home address in Cincinnati. Officer Bunning decided to wait for the plane to arrive and observe the people exiting the aircraft. He surmised that because the pair was in first class they would be the first people off of the plane. He also relayed the information to other airport officers. Officers Gayle Blackburn and Kerry Curry, also of the Cincinnati Airport Police went to the baggage claim area in search of Vines. Agent Wes Sullivan, of the Drug Enforcement Agency went to search the concourse area.

Defendant and Rogers were observed by Bunning debarking from the plane. As the pair approached the concourse they were speaking to each other. When they reached the airport concourse, the pair split up. Rogers was carrying a Gucci bag while defendant carried a gray nylon folding bag. Rogers made a pay telephone call as defendant proceeded to the baggage claim area. Officer Bunning followed Rogers while Officer Sullivan followed defendant. Rogers and defendant met again at the baggage claim area. Rogers had already claimed their baggage which consisted of a large "Puma" bag and a smaller

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black nylon bag. The two then exited the airport building with their luggage.

As Officer Bunning followed the pair out of the building, he learned that Vines had been taken into custody. He approached defendant and Rogers on the sidewalk outside the airport and asked them for identification. Defendant gave him a Virginia driver's license and explained he was in town to visit someone named Buddy. Rogers produced a Virginia license in the name of Kaseem Sanders and said he was in town to pay a traffic ticket which, in fact, he produced and showed to the officers. Officer Bunning then informed the pair that he and Officer Sullivan were narcotics investigators and asked them if they would consent to a search of their bags. Officer Bunning testified that both men gave their consent at that time. They were then given the option to go into a private room or have the search conducted on the sidewalk. Both men opted to go into a private area.

The four men proceeded to the First Aid Room, however, it was already occupied by Lts. Blackburn and Curry who had Vines with them. The room was relatively small and not large enough for all of them to fit inside. Therefore, Agent Sullivan was forced to remain outside the room where he would conduct a search of the black nylon bag. The door to the First Aid Room was then closed. As Officer Bunning began to search the Gucci bag, Rogers revoked his consent to search and inquired where the black nylon bag was. Officer Bunning stopped his search and closed the bag. Agent Sullivan was told to halt his search of the black nylon bag. Up to that point in time nothing inside any of the bags had been seen by any of the officers.

Vines was then told he was being arrested on an outstanding warrant and taken away by Officer Blackburn. The officers informed defendant and Rogers that the police would attempt to obtain a search warrant for their bags. In the meantime, the two suspects were told they were not free to leave. Rogers inquired as to how long it would take to obtain a warrant, to which Bunning responded that it would take about two to three hours. Rogers stated that if it would take that long then he would consent to the search.

Officer Sullivan inquired as to the ownership of a large black bag. Rogers stated that although he had packed it, the bag actually belonged to defendant. Agent Sullivan asked defendant if he had any objections to the bag being searched. Defendant shook his head in the negative. Defendant had his head bent over and was looking at the floor. Officer Bunning knelt down placing his face under defendant's in order to make eye contact with defendant and again asked for his consent to search. Defendant verbally responded that they could go ahead and search.

The officers found a package containing one kilogram of cocaine inside the black bag. Rogers and defendant were arrested and given a shortened version of their Miranda warnings. Defendant then stated the bag containing the cocaine belonged to him. Rogers confirmed this information and retracted his previous statement that he had packed the bag's contents.

II.

Defendant contends his statements made to the police subsequent to his arrest were given in violation of his fifth amendment rights because the Miranda warnings read to him were inadequate. Officer Sullivan testified at trial that he gave the following warnings to both defendant and Sanders a.k.a. Rogers:

They had the right to remain silent, the right to the presence of an attorney if they so wish, they are not required to answer any questions and if they decide to answer questions they can stop and do so, and if they cannot afford an attorney one will be appointed before they answer any questions.

Defendant argues that he was never told that any statements he might make could be used against him. He further argues that he was not informed he was entitled to an attorney during questioning in addition to before questioning. Therefore, defendant argues the District Court erred by not suppressing the statements he made subsequent to his arrest.

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The United States Supreme Court has recently held as follows:

We have never insisted that Miranda warnings be given in the exact form described in that decision. In Miranda itself, the Court said that "[t]he warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective...

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