U.S. v. Markling

• Decision Date: 21 October 1993
• Docket Number: No. 92-2149,92-2149
• Citation: 7 F.3d 1309
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Timothy W. MARKLING, Defendant-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1309

7 F.3d 1309

UNITED STATES of America, Plaintiff-Appellee, v. Timothy W. MARKLING, Defendant-Appellant.

No. 92-2149.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 19, 1993.

Decided Oct. 21, 1993.

Christopher T. Van Wagner (argued), Office of the U.S. Atty., Madison, WI, for plaintiff-appellee.

T. Christopher Kelly (argued), Madison, WI, for defendant-appellant.

Before CUDAHY and MANION, Circuit Judges, and HOLDERMAN, District Judge. ^*

MANION, Circuit Judge.

Timothy Markling appeals his conviction for possessing cocaine with the intent to distribute it. Markling argues that the district court should have suppressed evidence found as the result of what he claims were illegal searches of his car and of the hotel room from which he had been selling cocaine. We conclude that we must remand this case to the district court for additional factual findings.

I.

Rock County, Wisconsin narcotics officers began investigating Markling as a suspected cocaine dealer in early September 1991. On September 28, Detective Thomas Gehl, the leader of the investigation, learned that Markling, a Janesville, Wisconsin resident, had taken a room at the Janesville Motor Lodge. An informant had previously told Sergeant Laura Massey, another officer investigating Markling's activities, that Markling had been selling drugs from motels several weeks earlier. Gehl also knew from motel personnel that Markling had been registered as a guest at the Janesville Motor Lodge from September 5-7, 1991 and September 10-11, 1991.

For some reason, the motel management required Markling to be moved to a new room on September 28. Since Markling was not present at the motel when the time came for the room change, motel personnel moved his belongings. But although Markling was not there, Gehl was. Among Markling's possessions was a briefcase. While motel personnel were in the hallway moving Markling's belongings, Gehl asked if he could have the briefcase. Motel employees gave Gehl the briefcase. Gehl opened it, looked inside, and found some notes, a digital scale, and a glass bottle. Both the scale and bottle contained a white powder residue. After returning the scale and bottle to the briefcase, Gehl watched as motel employees took Markling's belongings to Room 304.

After inspecting the contents of Markling's briefcase, Gehl did two things. First, he assigned two officers to set up a surveillance post inside a room across an open area from Room 304. Next, Gehl applied for and obtained a warrant to search Room 304. In the warrant application, Gehl included information about the objects he had found inside Markling's briefcase. He also included much other information, including the following:

1. Between March 1991 and September 1991, the Rock County Metro Unit had received at least eleven separate pieces of information indicating that Markling was involved in cocaine distribution in the Janesville area.

2. Markling had been arrested on September 8, 1991 and had been found to be carrying $2,546 in cash.

3. After Markling's arrest on September 8, a black male arrived at the Janesville Police Department to pick Markling up. This happened even though Markling had not contacted anybody during his arrest or while he was at the police station. Investigation of the vehicle driven by Markling's "friend" showed that it was registered in Illinois to James Bivens.

4. A "reliable informant" had told police that during the week of September 4, 1991, somebody named "Tim," who was involved in cocaine trafficking, had been driving around Janesville with over three ounces of cocaine in his possession. According to the informant, "Tim" lived near the Five Points in Janesville. Markling lived within three blocks of the Five Points.

5. On September 23, the same "reliable informant" told Gehl that "Tim's" cocaine source was a black male from Illinois named James.

6. During the week of September 9, an informant told Sergeant Massey that Markling was selling drugs from motels. The informant did not know that Massey was a police officer.

7. Janesville Motor Lodge records showed that Markling had stayed at the motel from September 5 to September 7 and on September 10 and 11.

8. Gehl had met with the Janesville Motor Lodge's night manager on September 28. She told him that Markling had been staying at the motel since September 26 and that motel personnel had noticed a lot of people coming to Markling's room for very short visits (in police parlance, "heavy 'short-term' traffic" to and from Markling's room). Gehl's training and experience had taught him that drug dealers often sell from hotel rooms, and that a large amount of "short-term traffic" to and from places from where drugs are being sold is common. The night manager also told Gehl, among other things, that Markling had received a telephone message from "James" that morning, and that a black male had stopped at the motel later and left a message that Markling could meet him at the "pancake house" in Beloit.

9. In the room Markling previously had occupied, the beds had not been slept in the night before his move to Room 304.

The surveillance of Markling's room continued on the following day, September 29. Early that afternoon, Markling left the room carrying a brown leather pouch. Gehl and another officer who were outside the motel saw Markling enter his car. Markling drove off, and the two officers followed him for a while until they lost sight of him. While following Markling, the officers saw him stop at several residences. One of those belonged to a man from whom undercover officers had previously purchased cocaine. Another residence was occupied by two women, Blanche Pomplum and Laurie Shetler, who were suspected drug buyers.

Markling returned to his motel room later that afternoon. Shortly before 5:00, Pomplum and Shetler came to Markling's room. They knocked on the door, and Markling let them in. After about six minutes, Pomplum and Shetler left. Outside the motel, Gehl stopped Pomplum and Shetler, searched them, and found two bags of cocaine base in Shetler's coat pocket. Shetler told Gehl that she had gotten the cocaine base from Markling. She also told Gehl that she thought Markling was "extremely paranoid" and would flush any other drugs in the room down the toilet if he became suspicious.

About an hour later, Gehl decided it was time to execute the warrant. Gehl and four other officers entered the room adjoining Markling's. One of the officers knocked on the door connecting the two rooms and yelled, "Police! Search warrant!" Markling did not answer. After waiting about seven seconds, the officers continued to yell, and Gehl began swinging a battering ram at the door to try to knock it open. The door was more resistant than the officers had thought it would be; Gehl had to hit the door four to six times before it gave way.

The officers entered Markling's room. They found Markling curled up in a fetal position in the bathroom. After arresting and handcuffing Markling, the officers searched the room. The officers found the briefcase Gehl had inspected previously. Inside the briefcase they found cocaine and a scale. Aside from what was in the briefcase, the officers found other substantial evidence of cocaine dealing in the room, including more cocaine, and inositol, an agent commonly used to "cut" cocaine. Gehl also searched Markling's car in the motel parking lot. In the car, Gehl found a marijuana cigarette, some traffic tickets from Chicago, and some other documents.

II.

Markling filed a motion to suppress the evidence found in the searches of his motel room and car. The district court denied that motion, prompting Markling to plead guilty. Markling now appeals his conviction. This presents a problem, however, because an unconditional guilty plea generally "waives all nonjurisdictional defects in the proceeding," including Fourth Amendment claims. 1 Charles Alan Wright, Federal Practice and Procedure § 175, at 624 (1982); see United States v. Rinaldi, 808 F.2d 1579, 1582-83 n. 3 (D.C.Cir.1987) (per curiam). Federal Rule of Criminal Procedure 11(a)(2) allows a defendant to enter a conditional guilty plea--that is, to reserve in his guilty plea the right to appeal "the adverse determination of any specified pretrial motions." But Rule 11(a)(2) requires that a conditional guilty plea be in writing and that the plea be approved by both the government and the district court. Fed.R.Crim.P. 11(a)(2); United States v. Yasak, 884 F.2d 996, 999-1000 (7th Cir.1989); United States v. Fisher, 772 F.2d 371, 374 (7th Cir.1985); United States v Wong Ching Hing, 867 F.2d 754, 758 (2d Cir.1989). The plea must also precisely identify which pretrial issues the defendant wishes to preserve for review, Yasak, 884 F.2d at 999, and demonstrate that a decision on one of those issues will " 'dispose of the case either by allowing the plea to stand or by such action as compelling dismissal of the indictment or suppressing essential evidence.' " Wong Ching Hing, 867 F.2d at 758 (quoting Advisory Committee Note to 1983 Amendment of Fed.R.Crim.P. 11); see also Yasak, 884 F.2d at 999.

Markling asserts that he expressly conditioned his guilty plea on his right to appeal the district court's denial of his suppression motion. However, Markling failed to include in the record on appeal any written plea agreement at all, much less a written plea agreement reserving the right to appeal from the district court's decision to deny his suppression motion. Moreover, the district court's docket entries do not indicate the existence of any written plea agreement.

Rule 11's writing requirement is not jurisdictional. Rather, "it is more in the nature of a right which can be waived" by the government. Yasak, 884 F.2d at 999. In Yasak, we upheld a conditional plea's validity despite the absence of a written plea agreement based on the defendant's guilty plea hearing transcript. That transcript revealed that...