United States v. Thompson, No. 13–1874.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtGREENAWAY
Citation772 F.3d 752
PartiesUNITED STATES of America v. Dwayne THOMPSON, a/k/a White Chocolate; a/k/a “D” Dwayne Thompson, Appellant.
Docket NumberNo. 13–1874.
Decision Date19 November 2014

772 F.3d 752

UNITED STATES of America
v.
Dwayne THOMPSON, a/k/a White Chocolate; a/k/a “D”
Dwayne Thompson, Appellant.

No. 13–1874.

United States Court of Appeals,
Third Circuit.

Argued June 25, 2014.
Opinion Filed: Nov. 19, 2014.


[772 F.3d 755]


Michael L. Ivory, Esq., [argued], Rebecca R. Haywood, Esq., David J. Hickton, Esq., Office of the United States Attorney, Pittsburgh, PA, for Appellee.

Sarah S. Gannett, Esq., [Argued], Brett G. Sweitzer, Esq., Leigh M. Skipper, Esq., Federal Community Defender Office, Philadelphia, PA, for Appellant Dwayne Thompson.


Before: McKEE, Chief Judge, FUENTES and GREENAWAY, JR., Circuit Judges.

OPINION

GREENAWAY, JR., Circuit Judge.

Dwayne Thompson (“Appellant” or “Thompson”) appeals the District Court's judgment entered on March 18, 2013. Thompson argues that the District Court erred in failing to suppress (a) the fruits of a search which, he contends, law enforcement lacked reasonable suspicion to conduct, and (b) statements he made while in custody, prior to being presented to a magistrate judge. Thompson claims that such statements violated the McNabb–Mallory rule. For the reasons set forth below, we will affirm the District Court's denial of Appellant's motion to suppress the fruits of the search, but we will reverse the District Court's suppression ruling regarding Thompson's statements. Accordingly, we will vacate and remand Thompson's judgment of conviction.

I. FACTUAL AND PROCEDURAL HISTORY

From 2001 until July 2007, Dwayne Thompson was the supplier for a cocaine distribution network known as the “Cali Connect.” The Cali Connect shipped cocaine to the East Coast where it was distributed, including in and around the Pittsburgh area. Thompson transported cocaine from California to Pittsburgh either in one of his own vehicles or in rentals cars. After completing his deliveries, Thompson would wait for the money before returning to California, or receive payment on his next trip to the area.

Investigators became aware of Thompson through their cooperating witnesses and a wiretap investigation. Several cooperating witnesses named Thompson as the source for the Cali Connect's cocaine. In wiretapped phone conversations with other targets, Thompson made comments that investigators interpreted to be drug-related.

A. The Traffic Stop

On June 29, 2007, Thompson was involved in a traffic stop near Amarillo, Texas. Trooper Livermore of the Texas Department of Public Safety was “running traffic” on I–40 near Amarillo, Texas, along with his partner, Chad Grange. Within the law enforcement community, I–40 is a “known corridor for narcotics, weapons, and money.” (App. 508.) Shortly before 1:40 p.m., Livermore saw a maroon pickup truck, with a hard-top cover on the bed, traveling eastbound at a speed of 84 mph in a 70 mph zone. It is illegal under

[772 F.3d 756]

Texas law to travel in excess of a posted speed limit. Livermore stopped the truck and approached the passenger's side window. Thompson was the sole occupant of the pickup truck.

Livermore spoke with Thompson and advised him of the reason for the stop. Livermore asked Thompson where he was going. Thompson replied that he was en route to Indianapolis and that he would be staying there for approximately three weeks. Livermore observed that Thompson only had one suitcase for such a long trip, and it raised his suspicions. Livermore said, “I didn't think it was the norm to have that size luggage for the length of the trip.” (App. 516.)

Livermore also claimed that Thompson appeared nervous: he did not make eye contact, his voice was shaky, and a vein in the side of his neck was pulsing. Thompson's signs of nervousness, in conjunction with the small suitcase, the fact that I–40 is a known drug corridor, and knowledge that California is a “source” state, aroused Livermore's suspicions that this trip was a drug-trafficking trip.

Livermore went back to the patrol car and ran Thompson's criminal history. The criminal history check showed several dated narcotics offenses, and a more recent prior conviction for a firearm offense. When Livermore asked Thompson—still in the car—about his criminal history, Thompson disclosed only the firearm conviction.

Livermore began to write up the citation for the speeding ticket and asked Thompson if he could search the vehicle. Thompson said that he could not. At this point, Livermore consulted with Sergeant Grange, and they decided to call for a K–9 detection team.

The K–9 unit was contacted at 1:50 p.m., eleven minutes after the initial stop. The officers were notified at 1:52 p.m. that the K–9 unit was en route. It took the K–9 unit approximately thirty minutes to arrive at the scene. Prior to the K–9 search, Thompson agreed to accept responsibility for anything that might be discovered in the truck.

When the K–9 unit arrived at the scene, the dog alerted after his first pass by scratching at the back of the pickup truck. The officers then searched the vehicle and opened the locked truck-bed using a key provided by Thompson. When they opened it, they immediately smelled marijuana. Beneath a tarp lay five large, plastic tubs containing marijuana.

Thompson was arrested and transported to the Texas Highway Patrol's district office. Officers spoke with investigators regarding the Cali Connect, who informed them that they should check the back tailgate area, as that is where Thompson had been observed to keep narcotics. The troopers searched the area and found six kilograms of cocaine. Thompson was charged locally for the marijuana found in the vehicle. He posted bond, was released, and was not informed about the discovery of cocaine.

B. Failure to Timely Present

A few weeks later, a Drug Enforcement Administration (“DEA”) task force executed a series of search warrants on residences believed to be associated with Cali Connect members, including Thompson, in Pennsylvania, Indiana, and California. The task force members executed a search warrant on Thompson's home at 7:00 a.m., on July 17, 2007.

Thompson was found in an upstairs bedroom, on the phone. He was taken outside to a patrol car briefly, then returned inside where DEA Agent Strobel read Thompson his Miranda rights. No separate, written Miranda waiver was signed at that time,

[772 F.3d 757]

or later. Thompson sat at a table in handcuffs, surrounded by uniformed officers, while the search was conducted. During the search, the officers played wiretap recordings of Thompson and others involved in Cali Connect, obtained while investigating the group. Thompson remained there until the search concluded at 9:40 a.m. Investigators recovered two kilograms of cocaine from the search.

At the conclusion of the search, agents drove Thompson to the DEA field office in Los Angeles (“L.A.”) for processing. Due to the distance, traffic, and a pit-stop for fast food, the drive took approximately an hour and a half. Officers did not question Thompson during the ride, but did “lay[ ] the case out for him.” (App. 677.) Agent Strobel also informed Thompson about the value of cooperation.

They arrived at the DEA office shortly after 11:00 a.m., when Thompson was processed and placed in a holding room. Processing takes approximately twenty minutes, and it is DEA policy to process prisoners before taking them to court for their initial appearances. In the early afternoon, Agent Strobel asked Thompson “what he wanted to do[.]” (App. 680). Thompson informed the officer that he wanted to cooperate. At that time, more than six hours had passed since his arrest at approximately 7:00 a.m.

At this point, Agent Strobel and another DEA Agent, Christopher Balchon, began interviewing Thompson. Over the course of the afternoon, Thompson offered information about his cocaine sources in the L.A. area and about his coconspirators. In addition, they had Thompson place a series of phone calls in an effort to solicit a “reverse buy-bust” on one of the alleged co-conspirators.

Agent Balchon did not present Thompson with a written waiver of his right to prompt presentment until 6:38 p.m., nearly twelve hours after his arrest. Thompson was advised at this point about his right to a speedy appearance, and re-advised of his right to remain silent and his right to counsel. Thompson signed the form. Thompson then requested that the interview cease, and he was taken to Metropolitan Correctional Center to spend the night.

Thompson continued to cooperate the next day, but it became clear that Thompson would be unable to arrange the “buy-bust,” and the effort was abandoned. The agents returned him to Metropolitan Correctional Center and delivered him for presentment the next morning. Thompson was presented nearly 48 hours after his initial arrest.

C. Procedural Posture

Following the denial of several motions to suppress, Thompson pled guilty to one count of conspiracy to distribute five kilograms or more of cocaine, in violation of 21 U.S.C. § 846, and one count of conspiracy to launder monetary instruments, in violation of 18 U.S.C. § 1956(h). As part of the plea, Thompson preserved the right to appeal several adverse suppression rulings, including those at issue in this appeal: (1) the denial of the motion to suppress evidence seized in the Texas traffic stop; and (2) the denial of the motion to suppress statements obtained following the execution of search warrants at his home and various other locations.

Thompson was sentenced to a term of imprisonment for 292 months and five years of supervised release on the drug conspiracy count; a term of imprisonment for 240 months and three years of supervised release on the money laundering count, to run concurrently; and a $200 special assessment.

[772 F.3d 758]

II. JURISDICTION AND STANDARD OF REVIEW

The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291 to review the District Court's judgment of conviction. “We review a district court's order denying a motion to suppress under a mixed standard of...

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