Monday, August 18, 2008

Preserving Motions to Compel

Today in United States v. Alexander the Sixth Circuit affirmed a district court's denial of a motion to suppress in a cocaine trafficking case. The facts are straightforward. An inspection of a mail package revealed cocaine. After getting a search warrant, the officers conducted a delivery to the address on the package, and then subsequently entered the house. During their search of the house, one officer grabbed the defendant, and proceeded to torture him by beating and choking him until he told the officers where the package was. The defendant's injuries required treatment at a hospital. After the defendant was charged, he filed a Motion to Suppress and a Motion to Compel Discovery of all information developed during the internal investigation of the officer that had beaten him.

The Sixth Circuit affirmed the district court's denial of the Motion to Suppress finding that, even with the one officer's beating the defendant into giving a statement, the other officers would have inevitably discovered the package as a result of a search incident to the search warrant. The Sixth Circuit also found that the appropriate avenue for redressing the officer's beating and choking of the defendant was not through suppression, but rather a S 1983 lawsuit.

In an interesting footnote 3, the Court found that a previous panel in U.S. v. Buchanan, 904 F.2d 349 (6th Cir. 1990), had not adopted a test for inevitable discovery formulated by the Fifth Circuit, specifically requiring that the officers be pursuing an alternate line of investigation prior to the misconduct. However, when one looks at Buchanan, it appears that the panel there did adopt the test requiring the alternate line of investigation, but just found that the government's evidence on that issue lacking. Id. at 357 ("The agents in this case were not pursuing an alternate line of investigation of Buchanan."). So it appears that the Alexander panel is attempting to lessen the government's required showing to supprot the inevitable discovery exception. I would submit that this is an issue that will need to be clarified through further litigation, as it appears a subsequent panel is attempting to overrule a prior panel's decision directly on point.

But the most important lesson to be taken from Alexander is that when one is entering into a conditional plea with the government, the Sixth Circuit is going to require the defendant to expressly preserve all adversely decided pretrial motions in order that they may be reviewed on appeal. The Sixth in this case found that the defendant had not preserved the denial of his Motion to Compel through the conditional plea related to his Motion to Suppress. Judge Cole concurring would have found that the conditional plea preserved the Motion to Compel because it was intertwined with the defendant's Motion to Suppress. Regardless, the lesson here is that when one is entering into a conditional plea, expressly preserve all adversely decided pretrial motions in that conditional plea or the court will view them as waived.