United States v. Alexander ( 2008 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0298p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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Plaintiff-Appellee, -
UNITED STATES OF AMERICA,
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No. 07-3219
v.
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DAMON ALEXANDER, JR., -
Defendant-Appellant. -
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Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 06-00200—James S. Gwin, District Judge.
Argued: June 10, 2008
Decided and Filed: August 18, 2008
Before: BOGGS, Chief Judge; and RYAN and COLE, Circuit Judges.
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COUNSEL
ARGUED: Jonathan P. Witmer-Rich, FEDERAL PUBLIC DEFENDER’S OFFICE, Cleveland,
Ohio, for Appellant. Vasile C. Katsaros, ASSISTANT UNITED STATES ATTORNEY, Cleveland,
Ohio, for Appellee. ON BRIEF: Jonathan P. Witmer-Rich, Edward G. Bryan, FEDERAL PUBLIC
DEFENDER’S OFFICE, Cleveland, Ohio, for Appellant. Vasile C. Katsaros, ASSISTANT
UNITED STATES ATTORNEY, Cleveland, Ohio, for Appellee.
BOGGS, C. J., delivered the opinion of the court, in which RYAN, J., joined. COLE, J. (p.
10), delivered a separate concurring opinion.
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OPINION
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BOGGS, Chief Judge. Defendant Damon Alexander, Jr. appeals from the district court’s
decision not to suppress the key evidence underlying his plea of guilty to charges of conspiring to
possess cocaine and possessing cocaine and cocaine base. Alexander also appeals the district court’s
denial of his motion to compel discovery of materials produced during an investigation of his alleged
beating by a police officer. For the reasons stated below, we affirm.
1
No. 07-3219 United States v. Alexander Page 2
I
A
On April 5, 2006, Detective Gene Cook of the East Cleveland Police Department, a canine
handler, was assigned parcel interdiction duty at the Cleveland airport air mail facility. Detective
Cook had been working in parcel interdiction for approximately 25 years, and he testified that he
pulls for scrutiny a half dozen packages per day and that he finds approximately 150 packages per
year that contain narcotics. On April 5, Cook was observing express mail coming into the air mail
building when his attention was drawn to a package that had been dumped from a bag into a hamper.
At the suppression hearing, Cook testified that his attention was first drawn to the package because
there was an “X on the signature waiver box on the label,” and the X looked “[l]ike it was done with
a crayon almost.” Cook testified that senders of drugs often waive signature so that the receiver
does not have to meet anyone delivering the mail and that drugs are often sent express because
dealers want fast delivery. Cook then noticed that the package “was coming from an area that we
have gotten drugs from in the past and was going to an area where we have had packages go that
contained narcotics.” That is, the package had a return address in Las Vegas, Nevada, and was being
sent to Shaker Heights, Ohio. Cook also said that he noticed that the sender was a company, but the
label was handwritten and not typed. Finally, he noted that the sender had not listed a telephone
number. Cook removed the package from the hamper. Cook stated that when he held it, it weighed
“a1tad over six pounds” and was “dense,” meaning there was no shuffling of papers when he shook
it.
Cook decided to investigate further, brought the package to an office, and ran the return
address against a database using a computer in the office. The address “came back as nonexistent.”
Cook then hid the package among other mail, retrieved his canine from his car, directed the dog to
search. The dog alerted to drugs in that package. Approximately 20 minutes elapsed between the
time Cook first noticed the package and his dog’s alert.
Cook called Postal Inspector Martin Cernelich. Cernelich obtained a federal search warrant,
opened the package, and found two cellophane-wrapped bricks of white powder, which tested
positive for cocaine. Cernelich then obtained a search warrant from a state judge authorizing a
controlled delivery of the package to Alexander’s home and a search of the premises thereafter.
Cernelich substituted coffee creamer for two kilos of the cocaine, leaving approximately 500 grams
of cocaine in the package. Cernelich also added to the package a transmitter that would alert when
the package was opened.
At noon the next day, April 6, Cernelich posed as a postman and delivered the package to
Alexander’s home. Alexander’s wife, Loretta, answered the door and received the package.
Approximately fifteen minutes later, the transmitter signaled that the package had been opened. A
joint DEA-Shaker Heights Police Department team executed the search warrant.
Cleveland Police Officer Jamal Ansari entered the front door, found Loretta Alexander and
Damon Alexander’s mother in the living room, and handcuffed them. Loretta Alexander denied
having received a package. Officers swept the house and found a loaded .38-caliber revolver, more
1
On cross-examination, Cook admitted that many innocuous items can weigh six pounds and that packaging
material can prevent innocuous items from shifting around in a package. Cook also admitted that many cities in the
United States would be considered sources of narcotics, including any large west coast city, “probably” any city in
Florida, any city from the Southwest, and New York City. Regarding the destination, Cook testified that any city in
Northeastern Ohio would have aroused his suspicions and that it was the particular area in Shaker Heights (the area with
a zip code ending in the “20’s”) that made him suspicious in this case. Cook indicated that 35-40% of his positive alerts
came from packages directed to the “20’s” zip codes.
No. 07-3219 United States v. Alexander Page 3
than one thousand dollars in cash, and mailing receipts. Detective William Ford proceeded to the
basement and found Defendant Alexander. Drawing his gun, Detective Ford ordered Alexander
upstairs.
There is some dispute about what happened next. At the suppression hearing, Ansari
testified that he saw Alexander, without handcuffs, come into the room and approach DEA Special
Agent Joseph Harper. According to Ansari, Alexander approached Harper in an aggressive manner,
and Ansari moved to take Alexander down to the ground. Harper confirmed that Alexander
approached him and used profanity. Ansari said he, Harper, and Alexander struggled for about
thirty seconds, and Ansari struck Alexander several times, put his knee on Alexander’s chest, and
eventually handcuffed him. Ansari testified that he did not see Detective Ford behind Alexander.
Ansari testified that he then took Alexander outside to separate him from the situation in the
living room, where Alexander’s mother had been handcuffed and placed on the floor. Ansari
admitted that he did not read Alexander his Miranda rights and told Alexander to admit where the
cocaine was. Clifford Williams, Alexander’s neighbor, testified that he saw Alexander on his porch
with Ansari and Cernelich. According to Williams, Alexander repeatedly requested a lawyer.
Ansari denied that Alexander ever requested a lawyer.
Ansari testified that Alexander refused to calm down, so he brought him back inside to the
kitchen, swept his feet out from under him, and forced Alexander back onto the ground. The events
that followed inside the house are also heavily contested. Ansari testified that he gave Alexander
the Miranda warnings and told Alexander to tell where he had hidden the drugs. Alexander refused
until Ansari said that if he told them the location of the drugs, Alexander would be the only person
arrested. Alexander then took Ansari and other officers to the basement and revealed where the
drugs were hidden in the ceiling.
Alexander’s version of events is very different. According to Alexander and his wife, he
entered the living room already handcuffed and was seated in a chair. Alexander stated that
Detective Ford had handcuffed him in the basement with his hands in front and yelled out “One is
coming up.” According to the Alexanders, Ansari grabbed Alexander without provocation, forced
him to the ground, then threw him into a chair, and then choked him. Alexander claims he said he
wanted a lawyer, and that Ansari then began punching him. Ansari then dragged him outside, saw
Williams, and then dragged Alexander back to the kitchen and threw him on the floor. According
to Alexander, Ford offered him a seat, but Ansari “lost it” and began yelling “where is the dope?”
Alexander claims he was sitting against a wall and that Ansari then began kicking him in the chest.
Alexander yelled for help, but a Sergeant Rowe, who was also in the kitchen, allegedly ignored him.
Alexander was allegedly kicked three or four more times (for a total of approximately twelve kicks)
and stated, “I got to go the hospital. I can’t breathe. My chest is killing me. My heart is hurting.”
Alexander says he told Ansari that the cocaine had gone out the back door, because Alexander
feared he would die. Alexander stated that he then showed the officers the cocaine hidden in the
basement, and only then was given his Miranda warnings.
After he was brought to Shaker Heights jail, Alexander requested that he be taken to the
hospital. He was taken to the hospital in an ambulance and received medical treatment.
Photographs taken at the time show some bruising on his chest and back, but not on his face. Later,
Alexander filed a complaint with the DEA, and the DEA Office of Professional Responsibility
(OPR) began an investigation. As part of that investigation, Alexander took a polygraph test. The
DEA OPR also took statements from various officers and agents at the scene, including Ansari.
B
On April 26, 2006, a federal grand jury returned a two-count indictment against Alexander
No. 07-3219 United States v. Alexander Page 4
and charged him with one count of conspiracy to distribute over five kilograms of cocaine and one
count of possession, with intent to distribute, of over 500 grams of cocaine. On October 27, 2006,
Alexander moved to suppress the evidence and a statement from his arrest. The same day,
Alexander requested additional discovery, including “all documents related to any and all
investigations into police misconduct,” specifically any polygraph results and any statements from
other officers at the scene. The government responded that it was not obliged to provide that
additional discovery, and Alexander moved to compel discovery on November 8.
A suppression hearing was held on November 13 and 14, 2006. On November 14, a federal
grand jury returned a superseding indictment against Alexander adding count three, charging
possession, with intent to distribute, of over five grams of crack cocaine, and count four, charging
being a felon in possession of a firearm.
On November 20, the district court denied the motion to suppress, ruling that reasonable
suspicion supported Cook’s inspection of the package and that the inevitable discovery doctrine
dictated that the drugs found at Alexander’s home not be suppressed. Regarding Detective Cook’s
initial decision to inspect Alexander’s package, the court credited Cook’s experience and concluded
that Cook had explained sufficient articulable facts to support a reasonable suspicion that
Alexander’s package contained drugs. Regarding Alexander’s claim that the officers at his home
violated his Fifth Amendment right against self-incrimination, the court found that Ansari’s
testimony was not credible and that a completed Miranda form was not added to the case file. The
district court held that Ansari had violated Alexander’s Fifth Amendment rights and suppressed
Alexander’s statements made at the house. Regarding Alexander’s claim that his alleged beating
should result in application of the exclusionary rule, the district court noted that Ansari’s violation
of Alexander’s Fifth Amendment rights, i.e., continuing interrogation after Alexander requested a
lawyer, would normally result in exclusion of the evidence obtained as a result of the violation.
However, the district court further held that the Government had proved that it would have
inevitably discovered the evidence without Ansari’s misconduct. The district court did not make
any explicit findings as to whether Ansari had or had not beaten or kicked Alexander.
On November 27, the district court denied Alexander’s motion to compel discovery as being
moot in light of its having denied the motion to suppress.
On December 7, 2006, Alexander entered a conditional plea agreement, in which he pled
guilty to all four counts, but reserved his right to appeal the suppression ruling. On February 10,
2007, the district court sentenced Alexander to 110 months’ of imprisonment on all four counts, the
time to run concurrently.
II
A
When we review a ruling of a district court on a motion to suppress evidence, we review
findings of fact for clear error and conclusions of law de novo. United States v. Gant, 112 F.3d 239,
241 (6th Cir. 1997). “However, the evidence must be viewed in a light most likely to support the
decision of the district court.” United States v. Martin, 526 F.3d 926, 936 (6th Cir. 2008).
In this appeal, Alexander argues that the package of cocaine should have been suppressed
for two alternative reasons. First, he argues that Officer Cook had no basis for subjecting the
package to extra scrutiny at the airport mail facility. Second, he concedes that the package would
inevitably have been discovered, but he argues that his alleged beating at the hands of Officer Ansari
should preclude application of the inevitable discovery doctrine. Neither argument has merit.
No. 07-3219 United States v. Alexander Page 5
B
The Fourth Amendment protects “the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
“It has long been held that first-class mail such as letters and sealed packages subject to letter
postage . . . is free from inspection by postal authorities, except in the manner provided by the
Fourth Amendment.” United States v. Van Leeuwen, 397 U.S. 249, 251 (1970); see also United
States v. Jacobsen, 466 U.S. 109, 114 (1984) (“Letters and other sealed packages are in the general
class of effects in which the public at large has a legitimate expectation of privacy . . . .”); Ex parte
Jackson, 96 U.S. 727, 733 (1877) (“Letters and sealed packages of this kind in the mail are as fully
guarded from examination and inspection, except as to their outward form and weight, as if they
were retained by the parties forwarding them in their own domiciles.”) (quoted in Van Leeuwen,
supra).
However, “even first-class mail is not beyond the reach of all inspection . . . .” Van
Leeuwen, 397 U.S. at 251. In Van Leeuwen, the defendant mailed two packages at the post office,
the postal clerk told a police officer that he thought Van Leeuwen’s packages were suspicious, and
the officer examined the packages and detained them pending further investigation. The
investigation revealed further facts supporting the suspicion that Van Leeuwen was trafficking in
illegal coins, and the officer obtained a warrant to open the packages. The Supreme Court held that
the nature and weight of the packages and the fact that the return address was fictitious “certainly
justified detention [of the packages] without warrant, while an investigation was made.” Id. at 252.
Follwing Van Leeuwen, we have held that “only reasonable suspicion, and not probable cause, is
necessary in order to briefly detain a package for further investigation, such as examination by a
drug-sniffing dog.” United States v. Robinson, 390 F.3d 853, 870 (6th Cir. 2004).
Although we have not adopted the Postal Service’s “drug package profile” as the test for
reasonable suspicion, we 2have relied on many of the same factors in analyzing an officer’s decision
to investigate a package. For example, we have found reasonable suspicion where the package
smelled of marijuana, had a return address from a known drug distribution area, and had handwritten
labels. See Robinson, 390 F.3d at 859. In another case, we held that postal authorities had
reasonable suspicion to present a package to a drug-detection dog because the package had been
mailed from a city known to be a source of illegal drugs, the package showed a fictitious return
address, and three other packages with fictitious return addresses had been mailed to the same
address. See United States v. Elgin, 57 F. App’x 659, 660 (6th Cir. 2003).
In this case, Detective Cook’s suspicion was reasonable. On this particular package, the
signature was waived with an “X” mark, the package seemed “dense,” the label was handwritten,
the package was coming from Las Vegas and going to Shaker Heights, and the return address was
fictitious. Given these circumstances, we hold that there was sufficient evidence of criminal activity
afoot to warrant detaining the package for further investigation. Alexander argues that the address
may actually have been valid, and that Cook was mistaken. However, the fact that the return address
may actually have been valid is irrelevant. “The reasonableness of an official invasion of the
citizen’s privacy must be appraised on the basis of the facts as they existed at the time that invasion
2
The Postal Service’s “drug package profile” targets packages based on: (1) the size and shape of the mailing;
(2) whether the package is taped to seal all openings; (3) whether the mailing labels are handwritten; (4) whether the
return address is suspicious, e.g., the return addressee and the return address do not match, or the return address is
fictitious; (5) unusual odors coming from the package; (6) whether the city of origin and/or city of destination of the
package are common “drug source” locales; and (7) whether there have been repeated mailings involving the same
sender and addressee. See United States v. Underwood, No. 95-5441, 1996 WL 536796, at *3 (6th Cir. Sept. 20, 1996);
see also United States v. Daniel, 982 F.2d 146, 150 n.5 (5th Cir. 1993); United States v. Lux, 905 F.2d 1379, 1380 n.1
(10th Cir. 1990).
No. 07-3219 United States v. Alexander Page 6
occurred.” Jacobsen, 466 U.S. at 115. At the time he detained the package and subjected it to a dog
sniff, Cook had made a reasonable effort to verify the address and received a report that it was fake.
Thus, reasonable suspicion existed to justify detaining the package pending a dog sniff, which
occurred within approximately twenty minutes of the time Cook first noticed the package.
C
Alexander next argues that we should carve out an exception to the inevitable discovery
doctrine for those cases in which the police assault a suspect to make him reveal where he has
hidden evidence. According to Alexander, the exception is required to deter police from using
illegal force to hasten searches. We disagree.
The exclusionary rule bars the admissibility of items seized during an unconstitutional
search. See Weeks v. United States, 232 U.S. 383 (1914). The “fruit of the poisonous tree” doctrine
bars “introduction of derivative evidence . . . that is the product of the primary [illegally obtained]
evidence [or testimony].” Murray v. United States, 487 U.S. 533, 536-37 (1988). However,
evidence obtained through unlawful means may still be admitted under the inevitable discovery
doctrine. In Nix v. Williams, 467 U.S. 431, 444 (1983), the Supreme Court held, “If the prosecution
can establish by a preponderance of the evidence that the information ultimately or inevitably would
have been discovered by lawful means . . . then the deterrence rationale has so little basis that the
evidence should be received.”
More specifically, we have stated that, “the inevitable discovery exception to the
exclusionary rule applies when the government can demonstrate either the existence of an
independent, untainted investigation that inevitably would have uncovered the same evidence or
other compelling facts establishing that the disputed evidence inevitably would have been
discovered.” United States v. Kennedy, 61 F.3d 494, 499 (6th Cir. 1995).3 The inevitable discovery
doctrine “requires the district court to determine, viewing affairs as they existed at the instant before
the unlawful search, what would have happened had the unlawful search never occurred.” Id. at 498
(quoting United States v. Eng, 971 F.2d 854, 861 (2d Cir. 1992)). The burden of proof is “on the
government to establish that the tainted evidence ‘would have been discovered by lawful means.’”
United States v. Leake, 95 F.3d 409, 412 (6th Cir. 1996) (quoting Nix, 467 U.S. at 444).
In this case, Alexander concedes that the police would have inevitably found the cocaine,
despite Ansari’s violation of Alexander’s Fifth Amendment rights. Alexander does not contest the
validity of the search warrant, which authorized the police to search Alexander’s home for “cocaine,
other narcotic drugs, and/or controlled substances.” Nor does he contend that the police would not
have found the package in the course of a thorough search of the basement.
Rather, Alexander argues that this court must, as a matter of law, “consider the severity and
intentionality of the government’s constitutional violation in deciding whether the inevitable
discovery rule applies.” Appellant’s Br. at 47. According to Alexander, “if admitting evidence
obtained through police misconduct would either (1) provide an incentive for police misconduct, or
3
Although the district court quoted and applied the Kennedy court’s language, it erred in also quoting and
applying another formulation of the rule from the case of United States v. Buchanan, 904 F.2d 349, 356-57 (6th Cir.
1990). In Buchanan, the Government had proposed that this court adopt the inevitable discovery rule of the Fifth Circuit,
which required that the police be actively pursuing an alternate line of investigation prior to the misconduct. See id.
(quoting United States v. Webb, 796 F.2d 60, 62 (5th Cir. 1986)). The Buchanan court did not adopt the Fifth Circuit’s
test. See id. at 357. In this case, however, the district court quoted the Buchanan court as if Buchanan had adopted the
Webb rule. The district court then applied that test and held that the inevitable discovery doctrine applied because the
house search was underway while Ansari was violating Alexander’s Miranda rights. That is a misstatement of Sixth
Circuit law. See Kennedy, 61 F.3d at 499-500 (holding that “an alternate, independent line of investigation is not
required for the inevitable discovery exception to apply”). Our de novo review cures that error.
No. 07-3219 United States v. Alexander Page 7
(2) significantly weaken respect for constitutional protections, then the evidence should be
excluded.” Appellant’s Br. at 48. Alexander’s argument relies primarily on First Circuit case law
stating that:
[T]here are three basic concerns which surface in an inevitable discovery analysis:
are the legal means truly independent; are both the use of the legal means and the
discovery by that means truly inevitable; and does the application of the inevitable
discovery exception either provide an incentive for police misconduct or significantly
weaken fourth amendment [sic] protection?
United States v. Silvestri, 787 F.2d 736, 739 (1st Cir. 1986) (emphasis added), cert. denied, 487 U.S.
1233 (1988); see also United States v. Scott, 270 F.3d 30, 42 (1st Cir. 2001) (describing the court’s
continuing adherence to Silvestri).
In particular, Alexander cites an opinion from the District of Massachusetts holding that the
inevitable discovery rule did not apply when police had tackled and beaten a suspect (they believed
he had shot at them) until he confessed where he had thrown away the gun during the prior foot
chase. United States v. Rullo, 748 F. Supp. 36, 44 (D. Mass. 1990). The district court held that
police had violated Rullo’s Fourth and Fifth Amendment rights and suppressed the gun, even though
police credibly testified that they would have found it anyway, thus satisfying the second prong of
Silvestri. Rather, the court held that the first and third prongs of Silvestri had not been satisfied. The
first prong required independent legal means, and the court held that all of the officers who would
have been involved in a subsequent search were tainted by their participation in the beating. See
ibid. The court then held the evidence inadmissible under Silvestri’s third prong, because
application of the inevitable discovery rule “would encourage law enforcement officers to believe
that they can avoid the burden of a prolonged area search [for a weapon] by physically abusing a
suspect, without significant risk of forfeiting the admissibility of any physical evidence.” Ibid. Thus,
the court concluded, “this is the type of case in which the exclusionary rule has a substantial
potential deterrent effect which would be significantly weakened if the inevitable discovery was
applied.” Ibid. Alexander argues that Rullo’s logic applies directly to his case and speculates that
Ansari “knew he could get away with violating Mr. Alexander’s constitutional rights and beating
[sic] him into revealing the location of the drugs, because even if that constitutional violation was
someday recognized by a court, the drugs would come in anyway.” Appellant’s Br. at 53.
Alexander’s argument is unpersuasive for several reasons. First, no other courts have
adopted the Silvestri formulation of the inevitable discovery rule. Second, Rullo’s application of
Silvestri and its resulting holding have found no support. See United States v. Ford, 22 F.3d 374 (1st
Cir. 1994) (noting that Rullo was the only case to date in which a First Circuit court had refused to
apply the inevitable discovery doctrine due to the incentive for police misconduct).
Third, and most importantly, Alexander’s argument gives short shrift to the Nix Court’s
determination that the inevitable discovery rule applies even if there were police misconduct. In
evaluating whether exclusion is proper, courts must “evaluate the circumstances of th[e] case in the
light of the policy served by the exclusionary rule.” Brown v. Illinois, 422 U.S. 590, 604 (1975).
It is true that the “rule is calculated to prevent, not repair. Its purpose is to deter – to compel respect
for the constitutional guaranty in the only effective way – by removing the incentive to disregard
it.” Id. at 599-600 (quoting Elkins v. United States, 364 U.S. 206, 217 (1960)). However, the Nix
Court was very clear that despite these purposes of the exclusionary rule, the government cannot be
made worse off because of misconduct than it would have been if the misconduct had not occurred.
See 467 U.S. at 443-44 (“[T]he derivative evidence analysis ensures that the prosecution is not put
in a worse position simply because of some earlier police error or misconduct. . . . [E]xclusion of
evidence that would inevitably have been discovered would also put the government in a worse
position, because the police would have obtained that evidence if no misconduct had taken place”).
No. 07-3219 United States v. Alexander Page 8
Thus, Officer Ansari’s allegedly illegal conduct cannot make the government worse off than it
would have been had Ansari fully respected Alexander’s rights.
Fourth, Alexander is simply incorrect in stating that only suppression of the evidence will
deter police misconduct. As Judge Posner has stated, the inevitable discovery doctrine “merely
recognizes that if there is a lawful basis for the seizure of some evidence, the fact that the seizure
was also based on illegal acts need not trigger punishment, because the acts did no harm (no harm
so far as obtaining the evidence was concerned – there might be collateral damage, remediable by
suits under 42 U.S.C. § 1983 or state tort law, to property or privacy interests of the defendant).”
United States v. Johnson, 380 F.3d 1013, 1017-18 (7th Cir. 2004). That is to say, the availability
of a § 1983 action against the officer, although designed primarily to compensate for injury, also
functions to deter police misconduct. So too does the possibility of administrative investigation –
indeed, here, such an investigation was begun – which may result in discipline or termination (or
even criminal charges).
Fifth, adopting a rule that the severity of police misconduct should factor into inevitable
discovery analysis would import a very difficult, fact-sensitive, inquiry into an otherwise relatively
clear doctrine. If, as Alexander suggests, the subjective “intentionality” of the officer’s conduct is
relevant, determining that subjective state of mind will likely be extremely difficult. Indeed, at oral
argument, Alexander’s counsel argued that evidence would be suppressed only when an officer
specifically intended to hasten a search and not if the officer had any other motive (or no discernable
motive at all) for abusing a suspect. Interlocutory appeals would, of course, multiply.
In conclusion, we decline to adopt the approach of the Rullo court. The inevitable discovery
doctrine serves a valid purpose, clearly delineated by the Supreme Court – to ensure that the
Government is not put in a worse position because of misconduct than it would have been absent
the misconduct. Alexander is free to pursue a civil remedy via a § 1983 suit against Ansari and
others, but the evidence was properly admitted in his criminal trial.
III
Finally, Alexander appeals the district court’s denial of his motion to compel discovery of
“all documents related to any and all investigations into police misconduct,” specifically any
polygraph results and any statements from other officers at the scene. Alexander argues that the
district court erred in refusing to compel discovery because Federal Rules of Criminal Procedure
26.2 and 16(a)(1)(F) mandate discovery of the statements and the polygraph results, respectively.
Unfortunately for Alexander, he failed to preserve his right to appeal this particular decision
when he entered his conditional plea. Federal Rule of Criminal Procedure 11(a)(2) authorizes
defendants to enter conditional guilty pleas, “reserving in writing the right to have an appellate court
review an adverse determination of a specified pretrial motion.” Accordingly, “[w]here a defendant
does not specify an issue for preservation on appeal, federal courts have normally held that Rule
11(a)(2) bars its presentation on appeal.” United States v. Martin, 526 F.3d 926, 932 (6th Cir. 2008).
In this case, Alexander entered a conditional guilty plea that preserved only his right to appeal the
denial of his motion to suppress. The plea agreement does not advert to the district court’s denial
of Alexander’s motion to compel discovery. Accordingly, his appeal of that ruling is not properly
before us. See generally United States v. Pickett, 941 F.2d 411, 416 (6th Cir. 1991); cf. United
States v. Chon, 210 F.3d 990, 994-95 (9th Cir. 2000) (addressing district court’s denial of motion
to compel discovery because defendants had preserved the issue in their conditional guilty pleas).
While our concurring colleague is probably correct that we may, in extraordinary circumstances,
choose to take cognizance of a claim not properly preserved, we see no reason to do so in this case.
No. 07-3219 United States v. Alexander Page 9
IV
Therefore, for the reasons set out above, we AFFIRM the judgment of the district court.
No. 07-3219 United States v. Alexander Page 10
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CONCURRENCE
_____________________
COLE, Circuit Judge, concurring. I concur in the outcome of the majority’s opinion, but
write separately because I disagree with the majority’s conclusion that Alexander failed to preserve
his motion to compel discovery when he entered a conditional plea preserving his right to appeal the
denial of his motion to suppress. (Maj. Op. 8-9.)
In this case, the motion to suppress and the motion to compel discovery were dependent on
one another, as Alexander filed the motion to compel discovery for the sole purpose of discovering
evidence that would support the motion to suppress. This much is evident by a review of
Alexander’s initial discovery motion that was filed along with his motion to suppress, the arguments
made in his motion to suppress that reference the necessity of acquiring the information listed in the
discovery request, Alexander’s motion to compel discovery, and the district court’s denial of the
motion to compel discovery as moot given its denial of Alexander’s motion to suppress. For these
reasons, I conclude that Alexander’s conditional plea preserved both of these issues for review.
Accordingly, I would reach the issue but affirm the district court’s denial of the motion for the
reasons given by the district court.
The authority cited by the majority does not support an opposite conclusion. The case cited
for direct support, United States v. Martin, 526 F.3d 926 (6th Cir. 2008), involved a determination
of whether a defendant had preserved a sufficiency-of-the-evidence claim. This motion was not
related to the conditional guilty plea’s preservation of a motion to suppress, id. at 932, and therefore
the determination made by the Court is not applicable to the situation before us. Similarly, in the
Ninth Circuit case cited by the majority, United States v. Chae Won Chon, 210 F.3d 990 (9th Cir.
2000), the court concluded that both the motion to suppress and the motion to compel discovery
were preserved because they were both explicitly included in the guilty plea. However, these
motions were independent from one another, as the discovery request included a request for
information that would support the defendants’ theory of defense, which was not at issue in their
motion to suppress. Id. at 994-95. Further, that court did conclude that a third issue had not been
preserved because it was not included in the conditional plea, but explicitly stated that this non-
preserved motion was “independent” from the preserved motions and “separate and apart from”
those that had been preserved. Id. at 995.
I agree that Federal Rule 11(a)(2) and our Court’s jurisprudence provide that “[w]here a
defendant does not specify an issue for preservation on appeal, federal courts have normally held
that Rule 11(a)(2) bars its presentation on appeal.” Martin, 526 F.3d at 932. However, I also note
that Rule 11(a)(2) was “necessary precisely . . . to avoid the expense of trial when all parties agree
that the only dispositive issues remaining are those properly raised in pretrial motions.” United
States v. Pickett, 941 F.2d 411, 417 (6th Cir. 1991). In this instance, the “dispositive issue”
remaining is whether the district court properly denied Alexander’s motion to suppress; the motion
to compel discovery involves only requests for information that support the motion to suppress.
Rule 11(a)(2) does not bar this type of issue from review on appeal, but instead bars defendants from
“rais[ing] subsequently collateral challenges to his conviction.” Id. at 416. Accordingly,
Alexander’s motion to compel discovery should be considered preserved.