United States v. Michael Wayne Allen, A/K/A Anthony Washington

Citations: 159 F.3d 832; 1998 U.S. App. LEXIS 24124; 1998 WL 665413Docket: 97-4100

Court: Court of Appeals for the Fourth Circuit; September 28, 1998; Federal Appellate Court

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Michael Wayne Allen was convicted of possession of crack cocaine with intent to distribute and challenged the district court's denial of his motion to suppress evidence based on the inevitable discovery doctrine. The Fourth Circuit Court of Appeals found that this doctrine did not apply in his case and reversed the lower court's decision, remanding for further proceedings.

On June 12, 1996, Allen was arrested at a bus terminal in Greensboro, North Carolina, after being found with marijuana and crack cocaine. Following his indictment under 21 U.S.C.A. § 841(a)(1) and (b)(1)(A), he sought to suppress evidence obtained from a search of his duffel bag and subsequent police statements.

During the suppression hearing, police officers, including Detective Angela Tackett, testified about the arrest. Tackett described how she and other officers, part of a drug interdiction task force, boarded the bus after it arrived and interviewed passengers. When Allen re-boarded the bus, Tackett asked him about his bags. He claimed ownership of a black knapsack, which she consented to search, discovering marijuana inside. Following his arrest, Tackett and other officers searched for the owner of a large black duffel bag found on the bus, which no passengers claimed. Tackett treated the duffel bag as abandoned, discovering crack cocaine and a train ticket in the name "Anthony Washington." Although Allen initially identified himself as Anthony Washington, he was later identified as Michael Wayne Allen through fingerprints. When asked, he denied ownership of both the duffel bag and the knapsack. Allen was subsequently taken to the DEA office.

During cross-examination and district court questioning, Detective Tackett confirmed that her inquiry about whether Allen had any bags besides the knapsack and his alleged response were not documented in the government's affidavit or incident report prepared by DEA Agent Wilcox. Tackett stated she provided her information verbally to Wilcox, who drafted the report. The government's affidavit indicates that Tackett identified herself to Allen and asked him about his travel, to which he acknowledged having a black leather knapsack. After obtaining permission to search the bag, Tackett discovered 198.8 grams of suspected marijuana. Following Allen's arrest, a black nylon duffel bag was found on the bus, which no one claimed; it contained 211.1 grams of crack cocaine. The incident report, dated five days post-arrest, closely mirrored the affidavit but did not mention Tackett's pre-search question about additional bags. Detective Anders testified that Tackett did ask about other bags before the search, but later contradicted himself regarding the timing of the question. DEA Agent Wilcox, who was not present during the arrest, testified that after advising Allen of his Miranda rights, he admitted to transporting crack for a fee but withheld details without a promise of probation. Wilcox stated that Tackett asked why her question about other bags was omitted from the incident report, to which Wilcox responded that it was implied by the statement regarding the unclaimed duffel bag.

Wilcox testified that she debriefed Tackett following Allen's arrest, asking her to take notes, which Wilcox used to write her report. However, Wilcox admitted that her report did not detail a conversation between Tackett and Allen about any bags other than the knapsack. She clarified that the report was a synopsis, not a complete account, and that the events were listed in general chronological order. Wilcox believed that when Allen responded "Yes" and pointed to the knapsack when asked if he had any bags, it indicated that he claimed ownership of only that bag. She argued that this implied Allen disavowed ownership of any other bags. The prosecutor contended that this response demonstrated abandonment of the duffel bag, while Allen insisted he had not abandoned it because he did not explicitly deny having other bags prior to the search. The court held its decision pending further briefing from Allen and requested the notes taken by Tackett during their conversation, emphasizing their importance in its ruling on abandonment. A subsequent suppression hearing revealed multiple conflicting testimonies regarding the events leading to Allen's arrest. The court noted that Wilcox's affidavit did not mention Tackett asking Allen about other bags before the search, and found inconsistencies in the testimonies of Detectives Tackett and Anders. Tackett, who initially claimed she did not create a written report, was found to have produced a narrative detailing her interactions with Allen. The court summarized that Tackett asked Allen if the bag was his, to which he replied affirmatively, and that no one on the bus claimed ownership of the bag found.

The excerpt outlines the court's examination of evidence related to the search of a bus and the handling of unclaimed luggage, particularly concerning the defendant, Mr. Allen. It highlights that Tackett's notes first indicated an inquiry about another bag on the bus when Mr. Washington was present, as Mr. Allen had exited the bus. The court determined that there was insufficient evidence to conclude that Allen was asked about any other bags when his original bag was found, leading to the conclusion that he did not abandon the bag.

Testimony from Detective Tackett revealed that she would have used a K-9 unit to search the unidentified bag had Allen not claimed he had no other bags. Tackett mentioned her lack of experience bringing a dog onto a bus and stated that unclaimed bags are considered abandoned and would typically be searched. Detective Kennedy, present at the bus station, confirmed that his drug detection dog could have identified the cocaine, but he only searched the undercarriage of the bus at that time. Finally, Wilcox corroborated that unclaimed bags are treated as abandoned and turned over to the bus station, but she too was unaware of the bus company's specific policies regarding such bags.

The district court denied Allen's motion to suppress cocaine evidence, concluding that it would have been inevitably discovered. The court noted that all other passengers on the bus identified their bags, except for one unattended duffel bag, which led to the inference that officers would have searched it regardless of prior conversations. The presence of a drug detection dog further supported this conclusion, as the officers had intended to use it if necessary. Allen argued that the government did not prove the evidence would have inevitably been discovered and claimed this application of the inevitable discovery exception would undermine the exclusionary rule. The court's legal conclusions were reviewed de novo, while factual findings were assessed for clear error. It was acknowledged that another judge might have viewed the abandonment issue differently, but the government did not contest the district court's ruling on that point in its appeal. The inevitable discovery doctrine, established in *Nix v. Williams*, allows evidence obtained unlawfully to be admissible if it can be shown that it would have been discovered through lawful means. The Supreme Court emphasized that if the government could demonstrate this inevitability, the exclusionary rule's deterrent effect would be minimal, justifying the evidence's admissibility.

The police in Nix conducted a search for a child, which was terminated based on the defendant's statement, despite being only two-and-a-half miles from where the body was later found. The government presented evidence indicating that the patrol team would have discovered the body had the search continued. The Supreme Court affirmed that the trial court correctly applied the "inevitable discovery" doctrine, which relies on verified historical facts rather than speculation. In the current case, the government contends that if Detective Tackett had not incorrectly considered the bag abandoned and had lawfully searched it, the cocaine would have been discovered. Their argument is structured as follows: 1) a drug dog would have alerted to the cocaine if it had sniffed the duffel bag; 2) if Allen had not disclaimed ownership of other bags, Detective Tackett would have used the drug dog to inspect the duffel bag; and 3) if the dog had alerted, it would have provided probable cause for obtaining a search warrant, which would have led to finding the cocaine. The district court found no issue with the assertion that the dog would have alerted to the cocaine, and Detective Kennedy testified to the dog's proven reliability in previous alerts. Various court cases support the effectiveness of drug detection dogs, although some, like United States v. Florez, question their reliability. A related case illustrated that a dog's alert can establish probable cause for obtaining a search warrant.

Allen's argument that the government's dog alert testimony fails to meet expert scientific testimony standards is rejected. The court distinguishes this case from *Carr v. State*, where a dog handler's testimony was considered expert opinion due to its reliance on scientific principles. Unlike *Carr*, where the dog’s alert served as direct evidence of an accelerant, here the dog's alert would only establish probable cause for a search warrant, not serve as substantive evidence of drugs. 

The district court's reasoning on inevitable discovery is flawed due to insufficient evidentiary support for the conclusion that Tackett would have used a drug dog. Although Tackett stated she would have used a dog if she believed the bag could belong to Allen, Detective Kennedy testified that his dog was not used to sniff bags inside a bus, focusing instead on the undercarriage. There is no record indicating Tackett had previously called for a drug dog to sniff bags, and established task force policy dictated that unclaimed bags were treated as abandoned and searched rather than subjected to a drug dog sniff.

The district court's inevitable discovery conclusion contradicts its abandonment findings; it assumed that if Allen had not denied ownership of other bags, Tackett would have called for a dog despite earlier finding no evidence of such a statement from Allen. Since Tackett did not call for a drug dog and the court found no evidence of Allen disavowing other bags, the assumption of inevitable discovery lacks a factual basis. Therefore, the conclusion that the government would have inevitably discovered the cocaine through a drug dog is unsupported by the record and inconsistent with the court's own factual findings.

The government's argument regarding the inevitable discovery doctrine is challenged by the notion that probable cause existed for obtaining a search warrant even without a dog alert. The police had evidence, including the discovery of marijuana in Allen's knapsack, his travel from a known drug distribution area, and other passengers denying ownership of a duffel bag, which could have supported probable cause for a warrant. However, mere probable cause does not automatically invoke the inevitable discovery doctrine; it requires evidence that the police would have acted to secure a warrant, similar to how probable cause does not justify a warrantless search. The doctrine is intended to prevent unnecessary applications of the exclusionary rule but does not override Fourth Amendment protections. It applies when lawful investigative actions would have led to the discovery of evidence independent of an illegal search. Examples include cases where routine investigative steps would inevitably reveal evidence or where another lawful search would occur under an exception to the warrant requirement. Furthermore, if a warrant was not obtained due to the illegal search, the government must demonstrate that the police would have pursued a warrant based on the evidence available at the time of the illegal search.

The inevitable discovery doctrine does not apply when evidence could not have been discovered without an unlawful search, no warrant was obtained, and there is no indication that the police would have secured a warrant absent the illegal search. In such cases, the absence of evidence proving that the illegally obtained evidence would have been inevitably discovered undermines the doctrine's applicability. For example, in *United States v. Mejia*, the court determined that the mere existence of probable cause does not justify the admission of evidence obtained from an unlawful search when no warrant was sought. Similarly, in *United States v. Johnson*, the court ruled that probable cause alone does not equate to inevitable discovery if a warrant was not obtained due to an erroneous assumption of exigent circumstances. Other cases, such as *United States v. Brown* and *United States v. Cabassa*, reinforce that inevitable discovery requires a clear chain of events leading to a warrant, rather than a mere possibility of obtaining one. Overall, the application of the inevitable discovery doctrine must carefully consider the warrant requirement to avoid undermining the protections of the Fourth Amendment.

The government did not argue that further investigation could have revealed the cocaine without a search or that any exception to the warrant requirement justified the warrantless search of the duffel bag. Furthermore, the government did not assert that it had probable cause at the time of the illegal search; instead, it suggested that routine steps, such as using a drug dog, could have established probable cause for obtaining a warrant. However, the district court's testimony and findings indicated that these steps were not routine for the officers involved. Even if probable cause existed, there was no evidence that the officers intended to seek a warrant, as their normal practice involved opening and searching unclaimed bags without one. Allowing evidence of probable cause to legitimize the unlawful search would undermine the warrant requirement. The district court erred in denying Allen's motion to suppress, as the improperly seized evidence was critical to the government's case, necessitating the reversal of Allen's conviction and remanding the case for further proceedings. Additionally, the government’s argument based on abandonment was rejected by the district court due to insufficient evidence that Allen had abandoned his baggage before the search. Lastly, testimony from another passenger was deemed irrelevant since it was not provided until after the unlawful search occurred.