U.S. v. Edwards

• Decision Date: 20 September 1989
• Docket Number: No. 88-3286,88-3286
• Citation: 885 F.2d 377
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Gregory J. EDWARDS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 377

885 F.2d 377

UNITED STATES of America, Plaintiff-Appellee, v. Gregory J. EDWARDS, Defendant-Appellant.

No. 88-3286.

United States Court of Appeals Seventh Circuit.

Argued May 17, 1989.

Decided Sept. 20, 1989.

Jeffrey Anderson and Mark A. Cameli, Asst. U.S. Attys., Office of the U.S. Atty., Madison, Wis., for the U.S., plaintiff-appellee.

Gregory J. Edwards, Metropolitan Correctional Center, Chicago, Ill., pro se. and Morris D. Berman, Giesen & Berman, Madison, Wis., for Gregory J. Edwards, defendant-appellant.

Before WOOD, Jr. and POSNER, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

HARLINGTON WOOD, Jr., Circuit Judge.

Gregory Edwards pleaded guilty to one count of possession of cocaine with intent to distribute. See 21 U.S.C. Sec. 841(a)(1). As part of his negotiated plea agreement with the government, Edwards reserved the right to appeal the district court's denial of several pretrial motions to suppress. We now review those rulings.

I. FACTUAL BACKGROUND

As do many drug investigation squads, the Dane County, Wisconsin, Metro Narcotics and Vice Unit ("Metro") relies heavily upon tips provided by confidential informants. On April 9, 1988, an anonymous informant, MPD 917, contacted Metro Detective David Mahoney. MPD 917 told Detective Mahoney that someone named "Greg" was going to sell a kilo of cocaine to one Steven Kreger, from whom MPD 917 had admitted buying cocaine in the past. According to MPD 917, "Greg" was Kreger's supplier and was from the Lake Wisconsin area. The planned transaction was to take place in the East Towne Mall area in Madison, Wisconsin around 7:00 p.m. that night. Kreger would be driving a red 1977 Camaro.

Detective Mahoney testified at Edwards' suppression hearing that based on past experience with this informant he believed the tip to be reliable. Since January 1988, when MPD 917 had been arrested on state felony charges of cocaine possession, MPD 917 had provided corroborated information to Detective Mahoney on 12 occasions. ¹ Detective Mahoney received information from MPD 917 in March 1988 that Kreger was involved in cocaine distribution from his residence in Sun Prairie. MPD 917 claimed to have been present when distributions and ingestion of cocaine had occurred. This information was corroborated by a controlled buy of cocaine from Kreger by MPD 917, although Detective Mahoney admitted that he did not observe the buy.

Based on MPD 917's tip, Detective Mahoney and other Metro officers converged on the East Towne Mall parking lot around 6:45 p.m. on April 9. Detective Mahoney and Detective Richard Pharo stationed themselves in the mall's parking lot, while Detective Allen Rickey set up a surveillance position in a nearby bank parking lot. Detective Mahoney stated that it took some time for him to locate the Camaro and that once he did he returned to the front area of the mall where Detective Pharo was stationed. The two of them then returned to where the Camaro was parked. A Chevrolet Blazer was now parked next to the passenger side of the Camaro. Detective Mahoney parked behind and to the right of the Blazer, while Detective Pharo selected a space some 75 to 100 feet away. Detective Mahoney saw a woman sitting in the passenger seat of the Blazer; from his vantage point, Detective Pharo saw someone behind the wheel of the Camaro, but could not see anyone in the Blazer. Detective Mahoney watched the two vehicles for 5 to 10 minutes. Finally he saw a man standing between the Blazer and the Camaro who later entered the driver's side of the Blazer. He could not tell where the man came from, nor did either detective see anything in the man's hands. Shortly thereafter, the Blazer left the parking lot, as did the Camaro. The cars turned in opposite directions as they left the mall, the Blazer heading west onto East Washington Avenue toward Madison.

Detective Mahoney ran a license check on the Blazer and discovered that it was registered to Gregory Edwards at a McFarland, Wisconsin address. ² Detective Mahoney attempted to radio this information to the other Metro officers but did not recall who received the information. The Metro's radio system was malfunctioning that evening, and only a fraction of all transmissions was being received. Mahoney transmitted a message to the effect that the "meet had taken place," but he gave no orders to stop either the Camaro or the Blazer. Detectives Pharo and Rickey followed the Blazer after it left the mall parking lot. Neither detective received Detective Mahoney's message about the Blazer's registration, although Detective Rickey did hear Detective Mahoney's statement about the "meet" taking place.

The two detectives followed the Blazer until it entered the parking lot of Lewis' Prime Rib Restaurant. Detective Pharo stopped in front of the Blazer; Detective Rickey stopped behind it. Detective Pharo testified that because of this arrangement, it would have been difficult for the Blazer to leave. Both detectives left their cars and approached the Blazer with badges displayed and guns drawn. Detective Pharo testified that he pointed his gun at the Blazer's windshield and ordered the driver, later identified as Edwards, and the passenger, Ms. Kris Neitz, to put their hands on the dash. Detective Rickey, also approaching, issued the same order. Detective Pharo then came around to the driver's side, removed Edwards from the Blazer and immediately handcuffed him. Neitz was also taken from the vehicle and handcuffed. Detective Rickey tried to open the center console of the Blazer but failed. The detectives searched Edwards for weapons and contraband but found nothing. Detective Rickey asked Edwards if he had a gun. Edwards replied, "What do I need a gun for," and stated that he was just there to have dinner.

Detective Rickey next asked for their names and residences. He also asked Edwards where he worked. No Miranda warnings preceded these questions. Edwards told the detectives that he lived in Poynette, Wisconsin and was employed by Success Marketing. Detective Pharo managed to open the console that earlier had confounded Detective Rickey. Inside he found a cardboard box containing a large amount of United States currency. Squad cars were then called to the scene and Edwards and Neitz were taken to the police station. The Blazer was driven to the Madison police station where it was impounded and its contents later seized.

Once at the station house, Detective Pharo read Edwards his constitutional rights from a Miranda card provided by the police department. Edwards indicated that he wished to contact his attorney, Mr. Lehman. Although Detective Pharo tried to assist Edwards by offering him a telephone book, he either could not find one or Edwards could not locate Mr. Lehman's home number in it. Edwards indicated that he could simply call his business partner, Curt, to obtain Mr. Lehman's number. This request was refused.

In the early morning hours of April 10, the detectives obtained and executed a search warrant issued for Edwards's home. The warrant was based on an affidavit that recited that money had been found in the Blazer and that Edwards had been driving it. The warrant was also issued in reliance upon statements made by Kreger and the recovery of cocaine from his Camaro. The warrant authorized a search for cocaine and drug paraphernalia, currency and documents tending to identify the occupants of the residence. Detective Pharo testified that he ordered the agent in charge of collecting the sought items to seize anything that showed monetary amounts, such as receipts or appraisal documents, but that the agent may have seized items beyond the scope Detective Pharo ordered. Detective Pharo theorized, in ordering the seizure of such documents, that these sorts of items, showing expenditures or other amounts, were evidence of drug dealing because drug dealers often had large amounts of cash. One of the agents assisting in the search, Deputy Cross, testified that he was never instructed about the scope of the warrant. He believed they were searching for items to be disclosed to the Internal Revenue Service. In addition to taking these documents, the officers searching Edwards's home took photographs of every room in the house and its contents, which included jewelry, guns and other valuables.

Less than a week later, the magistrate issued a forfeiture warrant under 21 U.S.C. Sec. 881(b). The warrant authorized the search and seizure for forfeiture of Edwards's Poynette home and all of his personal property, including all vehicles and boats.

II. DISCUSSION

Edwards filed numerous motions to suppress. The magistrate recommended that all these motions be rejected; the district court adopted the magistrate's recommendation. On appeal, Edwards alleges that his warrantless arrest was unlawful because the detectives had no probable cause to arrest him outside the restaurant. He further contends that because the arresting officers had no probable cause to arrest him, the search of the Blazer incident to that arrest was unlawful and its results should have been suppressed. He also argues that the statements he made to the officers in the parking lot of the restaurant, as well as those he made at the police station, should have been suppressed because they were a product of the unlawful arrest. Furthermore, Edwards argues that the statement he made at the station house about calling his partner to get his attorney's phone number should be suppressed as obtained in violation of his fifth amendment right to counsel. Finally, Edwards contends that both the search warrant and the forfeiture warrant were unlawful--the search warrant because it was obtained through information arising from the constitutionally flawed arrest and because it was overbroad in its execution, and the forfeiture warrant because it was tainted by the unlawful arrest and the unlawful search warrant. We address each of these issues in turn.

A. The...