U.S. v. Mikell

• Decision Date: 30 December 1996
• Docket Number: No. 94-3540,94-3540
• Parties: 10 Fla. L. Weekly Fed. C 616 UNITED STATES of America, Plaintiff-Appellee, v. Sonny James MIKELL, William Dee Young, and Samuel Lee Langston, Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 470

102 F.3d 470

10 Fla. L. Weekly Fed. C 616

UNITED STATES of America, Plaintiff-Appellee, v. Sonny James MIKELL, William Dee Young, and Samuel Lee Langston, Defendants-Appellants.

No. 94-3540.

United States Court of Appeals Eleventh Circuit.

Dec. 30, 1996.

Matthew Farmer, Tampa, FL, for Sonny James Mikell.

Craig Alldredge, Matt Perry, Asst. Federal Public Defenders, Tampa, FL, for William Dee Young.

James Wardell, Tampa, FL, for Samuel Lee Langston.

Linda J. McNamara, Tamra Phipps, Susan H. Rothstein, Asst. U.S. Attys., Tampa, FL, for the U.S.

Appeals from the United States District Court for the Middle District of Florida.

Before TJOFLAT and COX, Circuit Judges, and VINING, ^* Senior District Judge.

VINING, Senior District Judge:

This appeal presents the question of whether an arrestee's refusal to answer certain questions during a custodial interrogation constitutes an assertion of his Fifth Amendment right to remain silent. The district court denied a suppression motion which alleged that continuation of the custodial interrogation was unconstitutional. We affirm the district court's ruling on this issue, although we vacate the sentence and remand for resentencing. We also affirm all of the subject convictions despite the warrantless search which resulted in suppression motions.

I. FACTUAL BACKGROUND

In April 1994, law enforcement officials received an anonymous tip that defendants-appellants Sonny James Mikell, William Dee Young, and others were involved in the sale of crack cocaine in Sarasota, Florida. On May 11, Detective Bourdeaux of the Sarasota County Sheriff's Office received another anonymous tip from a telephone caller. The caller stated that, later that evening, Young, Mikell, and Guss Terrance Jackson ¹ would be buying $5,000 of cocaine powder to convert into crack cocaine. The tipster gave details about the source of the money for the purchase, saying that the $5,000 was located in a safe in the bedroom of Young's mother. In addition, the tipster noted that, later in the evening, in a car commonly used by Young, the defendants would be moving the cocaine to an apartment where they would then cook the cocaine powder into crack cocaine. Detective Bourdeaux and other authorities believed that the tipster was credible and that the information she gave was accurate because they were able to verify certain portions of it.

Detective Bourdeaux and Detective Solek arrived at the subject apartment at 9:30 p.m. on May 11 to conduct surveillance. At about 11:50 p.m., they saw a white Ford Thunderbird approach and drive into the apartment complex. After the car stopped, two persons exited the vehicle. One of the individuals was carrying a duffle bag. A third person approached the other two men, and all went into the apartment which had previously been identified by the tipster.

About twenty minutes later, an individual exited the apartment and walked out of sight. Moments later, another person, subsequently identified as defendant-appellant Samuel Lee Langston, left the apartment complex in the Thunderbird and drove to a nearby grocery store. Detective Solek followed Langston into the store and observed his purchasing a large box of baking soda, an ingredient commonly used to convert cocaine powder into cocaine base. Langston eventually drove back to the apartment complex with the baking soda. Approximately one hour later, the two detectives saw three persons leave the apartment. The officers believed that a fourth person remained inside the apartment. As the three men came down a stairway, Detective Bourdeaux could see that one of the men was carrying a duffle bag. All three of the men subsequently left the apartment complex in the Thunderbird.

A short distance from the complex, several police vehicles commenced pursuing the car with their lights activated. Two police cars blocked the roadway. The Thunderbird, travelling at an estimated eighty-five miles per hour in an effort to avoid being stopped by the police, began to weave. Sergeant Bell and the others who were pursuing the defendants noticed that plastic bags were being thrown out of the passenger-side window of the car. Detectives Bourdeaux and Solek saw Sergeant Bell along the roadside. Sergeant Bell told them that bags of cocaine had been thrown from the car and that an occupant of the car had been seen talking on a cellular phone. Detective Solek assisted Sergeant Bell in gathering the bags that had been strewn along the side of the road. They found two bags which contained a white powdery substance and numerous chunks of apparent crack cocaine along the roadway. It was later determined that one of the bags contained cocaine hydrochloride, one contained baking soda, and one contained benzocaine, another ingredient used in the manufacture of cocaine base.

Eventually, after it rammed into one of the patrol cars, the Thunderbird stopped. Four people, Young, Mikell, Langston, and Jackson, were in the car at the time of the stop. Young was talking on the cellular phone. Inside the car, the officers discovered two grams of cocaine, a scale, benzocaine, and a cellular phone. The cocaine was scattered throughout the car.

According to Detectives Bourdeaux and Solek, they thereafter returned to the apartment, at Sergeant Bell's direction, to conduct a "security sweep" to assure that no one who might destroy evidence remained in the apartment. Sergeant Bell claims, however, that he merely instructed the detectives to return to the apartment complex to "secure" the apartment while a search warrant was obtained. In any event, upon returning to the apartment, the detectives heard a clanging noise within the apartment and forced the door open. Once inside, they noticed numerous glass Pyrex beakers that contained what appeared to be crack cocaine in the process of being cooked. The bottoms of the beakers contained what seemed to be "cookies" of crack cocaine, with water or some other fluid floating above. A chemist later determined that the beakers contained 291.5 grams of 56% cocaine base. The detectives allegedly searched only those areas of the apartment that could conceal a person. They subsequently determined that the clanging noise was actually being generated by an air conditioner in the apartment.

Detective Bourdeaux later met with another detective at the station. That detective gave Bourdeaux a set of keys and told him that the keys had been found in Young's pocket. Detectives Bourdeaux and Solek interviewed each of the defendants at the station. The detectives interviewed Mikell for approximately ten minutes. After Solek read Mikell his Miranda rights, Mikell said that he understood his rights and that he wanted to talk. Mikell admitted that he had been driving the car, and he identified each of the individuals in the car. He stated that he had attempted to elude authorities because he thought that there might be drugs in the car. Detective Solek then confronted Mikell with the fact that they had discovered cocaine and cocaine paraphernalia in the apartment. Mikell did not respond. At several other times during the interview, Mikell also indicated that he would not answer particular questions. He never explicitly indicated, however, that he wanted the questioning to cease or that he wanted an attorney to be present. Mikell admitted that he had taken the beakers into the apartment and that the cocaine found in the apartment was the only cocaine that the defendants had.

In the meantime, based on the tip, the observations of the detectives before the investigatory stop of the car, the attempt of Mikell, Young, Langston to destroy evidence, the drugs discovered in the car, and the observations of the detectives during the "protective sweep" of the apartment, Detective Bourdeaux prepared an affidavit to be submitted to the court in support of an application for a search warrant for the apartment. The police officers obtained a search warrant and subsequently found twelve beakers containing suspected crack cocaine, a waste basket containing an empty box of baking soda, several zip-lock baggies and other containers that contained suspected cocaine residue, mirrors with suspected cocaine residue on them, two buffet ranges that had suspected cocaine residue on them, scales, coffee pots containing suspected cocaine residue, and a container of razor blades. Young's fingerprints were subsequently found on one of the mirrors and on several of the beakers, and Mikell's fingerprints were also discovered on several of the beakers.

In July 1994, Mikell, Young, Langston, and Jackson were indicted for conspiracy to possess with the intent to distribute cocaine base, in violation of 21 U.S.C. § 846. Prior to trial, each of the appellants filed motions to suppress the evidence that was seized during the vehicle stop and the warrantless search of the apartment. Mikell also filed a motion to suppress the statements he had made following his arrest. The district court denied the motions.

Subsequently, the appellants were tried by a jury and found guilty. Prior to trial the government filed an information, in which it set forth two prior drug offenses on which the government intended to rely to enhance Mikell's sentence to a mandatory term of life imprisonment pursuant to 21 U.S.C. § 841(b)(1)(A)(iii). Prior to sentencing, Mikell filed a response, in which he asserted that one of these prior convictions was unconstitutional. The district court ruled that Mikell could not collaterally attack that prior conviction and sentenced him to life imprisonment. The court also sentenced Young to life imprisonment and sentenced Langston to 121 months of imprisonment to be followed by 60 months of supervised release. ² These appeals followed.

II. STANDARDS OF REVIEW

A district court's findings of fact when ruling on a motion to suppress evidence are reviewed for plain error; the application of the law to the facts is reviewed de novo. United States v....