Appeals from the United States District Court for the Eastern District of Wisconsin. No. 88-CR-53 -- Thomas J. Curran, Judge.
Wood, Jr., Posner, and Manion, Circuit Judges.
To quote the district judge, "This is not a venture of which law enforcement might be proud." Except for the regrettable performance of the officers this should have been a routine narcotics investigation. It happened at Mitchell International Airport in Milwaukee, Wisconsin, when the two defendants, Richard W. Novak and Hugo Leon, arrived together from Miami.
Both defendants Novak and Leon were arrested at the airport and later jointly charged with conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, possession of approximately one kilogram of cocaine with the intent to distribute in violation of 21 U.S.C. § 841(a)(1), and interstate travel in aid of a cocaine enterprise in violation of 18 U.S.C. § 1952(a)(3). Defendant Novak sought a severance anticipating inconsistent defenses. Defendant Leon moved to suppress the cocaine evidence seized from his duffle bag at the airport, as well as certain statements he made at the time. Those motions were heard by the magistrate who recommended that the district court deny the motions, which the district court did after taking additional evidence on defendant Leon's motion to suppress. A jury trial resulted in verdicts of guilty on all counts.*fn1 The district court rulings on those motions constitute the issues on appeal.
On April 26, 1988, while awaiting sentencing in another drug related case, Fausto Zaffino provided the government with a tape recording of a conversation he had just had with Novak the preceding evening. The conversation revealed that Novak was flying to Miami the next day to return with cocaine sometime later. Novak's comments suggested that he might have company, whom he did not name, on the trip. In discussing past trips Novak mentioned a "Tom" and a "Hugo." Zaffino placed an order with Novak for a kilogram of cocaine. Novak declined to reveal to Zaffino the time of his anticipated return, as, he explained, he did not have a liking for airport surprises. However, there would be one anyway. Further, Novak suggested that he might even drive back from Miami if the unnamed person's car had been repaired.
Reacting to information from Zaffino's tape, Special Agent Kerry Hadaway of the FBI checked with an airline and determined that Novak flew to Miami as he had said he would, and was to return to Milwaukee the following day at 5:15 P.M. It was also determined that the seat next to Novak on the return flight was reserved in the name of Hugo Leon. Preparations began for a surprise welcoming committee of FBI agents, U.S. Drug Enforcement Administration (DEA) agents, City of Milwaukee police officers, and Milwaukee County Sheriff's officers.
When the two defendants left the plane together in Milwaukee they were followed by officers, but not stopped until they entered an enclosed walkway bridge from the terminal to the parking area. The committee was composed of six to nine law enforcement officers, the number remains uncertain, all wearing plain clothes. There is a question also about which officers drew guns. It is undisputed that Officer Diane Kotowicz of the Milwaukee Police Department, one of the committee, did at least briefly draw her weapon, but where she pointed it is in considerable doubt. She testified she was fifteen to twenty feet from the defendant at the time she drew. Leon testified, however, that he felt the cold pistol barrel pressed against the back of his neck. DEA Agent Raymond D. Melick testified that Officer Kotowicz's gun was pointed at Leon, but not placed against his neck. FBI Special Agent Hadaway testified that he was not sure why Officer Kotowicz drew her pistol, and that she was only two to three feet from Leon when she did. As to where it was pointed Agent Hadaway understandably had a vivid memory as, he explained, her gun was pointed at him. He described her gun as "a little bit larger than average," larger than the .357 Magnum he normally carried. There apparently was no reason for anyone to have been concerned, as Officer Kotowicz testified that she drew her .38 caliber pistol for only about thirty seconds to a minute, and that she had it pointed at the ground the whole time, never at Leon or anyone else. She added, however, that she saw two other committee members, both FBI agents, draw their guns, which somehow escaped the notice of the other testifying officers. In any event, no one got shot.
Novak was promptly arrested on the walkway and handcuffed. Leon was not told he was under arrest, but was requested to accompany the group to a room in the airport which was part of the sheriff's department. Leon says he was escorted by two officers who had him under his arms but no one else testified to any physical contact. Officer Kotowicz testified that she politely asked defendant Leon if she might carry his duffle bag, the luggage later found to contain cocaine, and he consented. She also testified that it was a short walk of about two minutes and that there was no other conversation with Leon on the way. In further explanation, however, of the location of the sheriff's department office, Kotowicz testified that, from the point of the stop, the office was about a block and a half or two blocks away and down a flight of stairs. She believed that the stairs to the sheriff's office did not constitute a public area. Leon, however, testified it took from seven to ten minutes to make that walk. Novak was taken to a separate room. Another phase of this case took place upon Leon's arrival at one of the sheriff's rooms.
That room is also described in the evidence with some uncertainty. Officer Kotowicz described it as "small," possibly 15 feet by 8 feet, but more square than rectangular. DEA Agent Melick estimated that the room was "approximately 12 by 12, maybe 14 by 14." All agreed, however, that the room had one door, no windows, either no furniture, or possibly a table, or possibly a bench, but no one could remember for sure. Anyway everyone stood. Leon was "primarily" in the company of Officer Kotowicz and the DEA agent, but other officers came and went from the room.
Officer Kotowicz testified that she had received no instructions as to what was to be done, so she engaged Leon in conversation. Her first question to Leon was to inquire if the duffle bag she had carried into the room belonged to him. Leon's answer was "yes." She then asked if she could look in his bag and the defendant responded "yes." Leon also had a second piece of luggage, a shopping bag. Officer Kotowicz could not remember whether she had also carried that, but it is not important to this case. Neither she nor anyone else had, at least prior to the questioning, advised Leon of his Miranda rights, or that he could refuse to consent to the search of his bag, or that he could leave (if that was so). No warrants had been issued. Officer Kotowicz testified that she was not familiar with any printed form to be signed by a suspect to permit a warrantless search. Officer Kotowicz promptly knelt on the floor and proceeded to open the bag and look inside at its contents. She testified that she saw one or two clothing items on top and a "square type package." The clothes, she said, were not neatly packed, just "tossed" in. The package was covered, she said, with only one piece of clothing. Further, she explained that after she reached inside Leon's bag and was pulling out the package, part of it being visible, Leon volunteered that, "somebody could have put something in it while we were in Detroit," an intermediate stop for this flight between Miami and Chicago. She proceeded to remove the package, and all other articles from the suitcase. Leon's demeanor she described as calm. She further testified that she probably would have allowed Leon to leave prior to finding the cocaine if he had desired to do so. She could not say whether Leon had been given Miranda warnings by someone else or not, but he was not given any warnings by her.
DEA Agent Melick testified about his version of those events. He testified that when Officer Kotowicz drew her gun she pointed it at Leon. He was the only federal agent who went with Leon into the sheriff's room. His testimony was that after Officer Kotowicz began her search of the defendant's bag, but before Officer Kotowicz found the cocaine, he advised Leon that Leon did not have to permit the search--a remarkable accomplishment in such a limited period of time. At that moment, he said, he was about ten feet from Leon. He described Leon as "nervous and concerned," not calm as testified to by Officer Kotowicz. He said the bag was stuffed with clothing, layers and layers, not just the few casually packed items mentioned by Officer Kotowicz. It was Agent Melick's opinion, however, that there was no reason for an immediate search of the bag as it could have been retained while a search warrant was obtained. He also testified that he gave Leon his Miranda warnings even though he did not place Leon under arrest. He did not read the warnings from a card, but gave them from memory. He also was not aware if anyone had considered bringing a narcotics dog to check the luggage, but he had later found out that the dogs were not immediately available. He agreed, however, that the luggage could have been held until a narcotics dog was available. Just exactly when the search advice or the Miranda warning were given, or whether they were complete, was not clear from the testimony. In any event it appears that Officer Kotowicz, who was doing the questioning and the searching, was not aware of those important happenings.
FBI Agent Hadaway, who was the case agent, could not clarify exactly when the DEA agent supposedly advised Leon that he did not have to consent to the search--whether it was before, during or after the bag was opened. He did ...