United States v. Mikell

United States Court of Appeals,

Eleventh Circuit.

No. 94-3540.

UNITED STATES of America, Plaintiff-Appellee,

v.

Sonny James MIKELL, William Dee Young, and Samuel Lee Langston,
Defendants-Appellants.

Dec. 30, 1996.

Appeals from the United States District Court for the Middle
District of Florida. (No. 94-133-CR-T-21C), Ralph W. Nimmons, Jr.,
Judge.

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

*
Honorable Robert L. Vining, Jr., Senior U.S. District Judge
for the Northern District of Georgia, sitting by designation.
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 Jackson1 would be buying $5,000 of

powder cocaine to make 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

usually 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., the detectives 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

1
Although Jackson was indicted along with Mikell, Young, and
Langston, the jury acquitted him.
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

indicated 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, the 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.

Hromada, 49 F.3d 685 (11th Cir.1995). When considering a ruling on

a motion to suppress, the court must construe all facts in the

light most favorable to the party prevailing in the district court.

United States v. Behety, 32 F.3d 503 (11th Cir.1994). Whether

Mikell can collaterally attack a prior conviction involves a

question of statutory construction and is subject to de novo

review. James v. United States, 19 F.3d 1 (11th Cir.1994).

III. DISCUSSION

A. Warrantless Search

Mikell, Young, and Langston challenge evidence of their

cocaine base manufacture obtained pursuant to a warrantless search

as violative of their Fourth Amendment rights. Even in the absence

of probable cause, the police may stop a car and briefly detain it

and its occupants in order to investigate a reasonable suspicion

that such persons are involved in criminal activity. Terry v.

Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968);

United States v. Tapia, 912 F.2d 1367, 1370 (11th Cir.1990). In

justifying such an intrusion, the "reasonableness" standard

2
Langston also contends that the district court erred in
refusing to admit a search warrant affidavit into evidence and in
applying the Sentencing Guidelines for cocaine base instead of
for cocaine hydrochloride. In addition, Young contends that
there was insufficient evidence to show that he knew about and
voluntarily joined the conspiracy. After reviewing the record,
we find these arguments to be without merit.
requires that a police officer "be able to point to specific and

articulable facts, which, when taken together with rational

inferences from those facts, reasonably warrant that intrusion."

Terry, 392 U.S. at 21, 88 S.Ct. at 1880. "[R]easonable suspicion"

is determined from the totality of the circumstances, United States

v. Sokolov, 490 U.S. 1, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), and

from the collective knowledge of the officers involved in the stop.

United States v. Williams, 876 F.2d 1521 (11th Cir.1989). "Such a

level of suspicion is considerably less than proof of wrongdoing by

a preponderance of the evidence ... or even the implicit

requirement of probable cause that a fair probability that evidence

of a crime will be found." Tapia, 912 F.2d at 1370. Nevertheless,

the police are required to articulate some minimal, objective

justification for the stop. Id.

The warrantless search of a home is "presumptively

unreasonable." Payton v. New York, 445 U.S. 573, 586, 100 S.Ct.

1371, 1380, 63 L.Ed.2d 639 (1980). A warrantless search is

allowed, however, when both probable cause and exigent

circumstances exist. United States v. Tobin, 923 F.2d 1506, 1510

(11th Cir.1991). Probable cause exists when, under the totality of

the circumstances, there is a fair probability that contraband or

evidence of a crime will be discovered in a particular place.

Exigent circumstances exist when authorities have reason to believe

that evidence is in danger of being destroyed or removed. Id.

This court has held that the need to invoke the exigent

circumstances exception to the warrant requirement is "particularly

compelling in narcotics cases" because narcotics can be quickly
destroyed. United States v. Young, 909 F.2d 442, 446 (11th

Cir.1990). The test of whether exigent circumstances exist is an

objective one. Id. The appropriate inquiry is whether the facts

would lead a reasonable and experienced police officer to believe

that evidence might be destroyed or removed before a warrant could

be secured. Id. We have noted, however, that a warrantless search

is illegal when police possess probable cause but instead of

obtaining a warrant create exigent circumstances. Tobin, 923 F.2d

at 1510-11.

In this case, we hold that the information available to the

officers who stopped the defendants-appellants' car permitted

persons of reasonable caution to believe that the car contained

cocaine and that the occupants of the car had recently participated

in the manufacture of crack cocaine. Although not all of the

information that the police officers received from the anonymous

tipster could be verified, other evidence suggested that the

tipster's information regarding the possession of powder cocaine

and the manufacture of crack cocaine was true. As the tipster

predicted, three people arrived at the subject apartment late on

the evening of May 11, 1994, in a car associated with Young. One

of these individuals left the apartment in the middle of the night

and purchased a large box of baking soda, which is commonly used to

manufacture crack cocaine.

Further, these persons left the apartment some time later,

with one of the individuals carrying a duffle bag in which cocaine

could have been hidden. Mikell, Young, and Langston then attempted

to evade police pursuit by leading the authorities on a chase in
which the defendants-appellants' car traveled at a speed of at

least eight-five miles per hour. The subject car was weaving and

swerving and eventually crashed into a patrol car before coming to

a stop. In addition, during the pursuit the authorities observed

small plastic bags being thrown from one of the windows of the

automobile.

In light of the evidence, we hold that the district court did

not err in finding that the officers had reasonable suspicion to

believe that the occupants of the car had just left an apartment

where crack cocaine was being manufactured and that they were in

possession of cocaine. Moreover, we conclude that the evidence

presented at the suppression hearing supports the district court's

finding that the officers' warrantless entry into the subject

apartment was supported by probable cause and justified by exigent

circumstances. In addition to the evidence discussed above, the

officers secured substantial additional evidence as a result of the

vehicle stop.

First, the officers gathered several bags and numerous chunks

of suspected cocaine which had been thrown from the car during the

chase that preceded the arrests. The officers also observed

suspected cocaine scattered throughout the car. None of the

cocaine found in the car or on the roadside was in the form of

crack cocaine, although the tipster had stated that the Mikell,

Young, and Langston would be manufacturing crack cocaine and the

officers had seen Langston buying a large box of baking soda.

Thus, because the cocaine that the officers gathered was not in the

form of crack cocaine, the officers could have reasonably suspected
that crack cocaine might remain in the apartment.

Additionally, the authorities had seen Young talking on a

cellular phone while being pursued. Because the officers believed

that someone remained in the apartment, it was not unreasonable for

the officers to conclude that Young could have been instructing

that person to destroy the cocaine and other related evidence that

was located in the apartment. Consequently, they conducted a

protective survey of the apartment to ensure that evidence was not

destroyed. Since the facts that appeared to the officers at the

time of entry into the apartment could have led a reasonable,

experienced police officer to believe that the destruction of

evidence might occur before a warrant could be secured, the

district court's holding that exigent circumstances existed is not

erroneous.

B. Right to Remain Silent

Mikell argues that the district court erred by failing to

suppress the statements that he made following his arrest because

the officers elicited such statements from him in violation of his

Fifth Amendment right to remain silent. Specifically, he contends

that the interrogating officers continued to question him after he

had refused to answer certain questions. Mikell claims that his

refusal to answer various questions constituted an equivocal

invocation of his right to remain silent. Accordingly, he asserts

that the interrogating officers should have limited their questions

to clarifying his equivocal assertions of his Fifth Amendment

rights. Mikell contends that, by failing to do so, the officers

violated Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966), and that his statements should have been

suppressed. We disagree.

The Supreme Court has held that, when a person is undergoing

a custodial interrogation and he indicates in any manner, at any

time prior, to or during questioning, that he wishes to remain

silent, the interrogation must stop. Miranda, 384 U.S. at 473-74,

86 S.Ct. at 1627-28. Before the Supreme Court's decision in Davis

v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362

(1994), this court had held that, when a defendant makes an

equivocal request for an attorney during a custodial interrogation,

the scope of interrogation is immediately narrowed to clarifying

that request. Coleman v. Singletary, 30 F.3d 1420, 1423-24 (11th

Cir.1994). The same rule applied to equivocal invocations of the

right to terminate questioning. Id.

The Supreme Court's decision in Davis, however, changed this

"clarification only" rule. In Davis, the Court held that a

defendant must articulate his desire to have counsel present with

sufficient clarity so that a reasonable police officer under the

circumstances would understand the statement to be a request for an

attorney. 512 U.S. at ----, 114 S.Ct. at 2355. "If the suspect's

statement is not an unambiguous or unequivocal request for counsel,

the officers have no obligation to stop questioning him." Id. at

----, 114 S.Ct. at 2356. In light of this ruling, we have also

determined that a suspect must articulate his desire to end

questioning with sufficient clarity so that a reasonable police

officer would understand that statement to be an assertion of the

right to remain silent. Coleman, 30 F.3d at 1424. If the
statement is ambiguous or equivocal, the police have no duty to

clarify the suspect's intent, and they may proceed with the

interrogation. Id.

In this case, it is undisputed that after Mikell was informed

of his Miranda rights, he was informed by the interrogating

officers that he could stop answering the questions at any time.

In addition, it is uncontroverted that the officers told Mikell

that, if he did not want to answer a particular question, he did

not have to do so. At no time during the interrogation did Mikell

indicate that he wanted the questioning to cease. He simply

refused to answer certain questions, by either remaining silent or

shaking his head, while continuing to answer other questions.

Pursuant to Davis, we hold that a suspect's refusal to answer

certain questions is not tantamount to the invocation, either

equivocal or unequivocal, of the constitutional right to remain

silent and that questioning may continue until the suspect

articulates in some manner that he wishes the questioning to cease.

After a knowing and voluntary waiver of Miranda rights, law

enforcement officers may continue questioning "until and unless the

suspect clearly requests" that the questioning cease. Davis, 512

U.S. at ----, 114 S.Ct. at 2356. Because Mikell did not clearly

request that the questioning stop, the district court did not err

in denying his motion to suppress.

C. Mikell's Sentence

When sentencing Mikell, the district refused to allow him to

present a collateral attack on one of his prior convictions upon

which the court relied when enhancing his sentence to life
imprisonment. Prior to sentencing, Mikell specifically alleged, in

response to the information filed by the government, that counsel

which represented him at the previous state court proceeding had a

conflict of interest because he represented both Mikell and a

codefendant. Thus, Mikell argues that he was denied effective

assistance of counsel at that proceeding and that his plea of

guilty was, therefore, subject to constitutional attack. See

Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680

(1942).

Relying on United States v. Roman, 989 F.2d 1117 (11th

Cir.1993) (en banc), the district court held that a sentencing

court may not examine the constitutionality of a defendant's

earlier state conviction when calculating a sentence, except in the

narrow case, not applicable here, when a defendant alleges that his

state conviction was wholly uncounseled.

The government concedes that the district court's reliance on

Roman was misplaced. Roman concerned the calculation of a

defendant's criminal history for purposes of the federal Sentencing

Guidelines. Mikell, however, was not sentenced under the

Sentencing Guidelines but under 21 U.S.C. § 841(b)(1)(A)(iii). The

provisions for implementing the sentence enhancement scheme set

forth in section 841 are found in section 851. That statute

specifically sets forth a procedure by which a defendant who is

subject to a statutory sentence enhancement may challenge the

constitutionality of an earlier conviction that is the basis for

the enhancement. Such challenge is not as limited as that

permitted by Roman when the enhancement is pursuant to the
Sentencing Guidelines but, instead, allows a defendant to assert

any constitutional challenge to his prior conviction. 21 U.S.C. §

851(c)(2). Because the district court's refusal to allow Mikell to

attack the constitutionality of his prior conviction was error, we

vacate Mikell's sentence and remand for resentencing.

IV. SUMMARY

The convictions of Mikell, Young, and Langston are AFFIRMED.

Although the district court correctly denied Mikell's suppression

motion regarding his refusal to answer certain questions during his

custodial interrogation, Mikell's sentence is VACATED, and the case

is REMANDED for re-sentencing consistent with this opinion.