           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                           2    United States v. Ware                      No. 01-6031
        ELECTRONIC CITATION: 2003 FED App. 0258P (6th Cir.)
                    File Name: 03a0258p.06                                                      _________________
                                                                                                     COUNSEL
UNITED STATES COURT OF APPEALS
                                                                             ARGUED: Terry M. Cushing, ASSISTANT UNITED
                   FOR THE SIXTH CIRCUIT                                     STATES ATTORNEY, Louisville, Kentucky, for Appellant.
                     _________________                                       Stephen H. Miller, FORE, MILLER & SCHWARTZ,
                                                                             Louisville, Kentucky, for Appellee. ON BRIEF: Terry M.
 UNITED STATES OF AMERICA ,       X                                          Cushing, Monica Wheatley, ASSISTANT UNITED STATES
          Plaintiff-Appellant,     -                                         ATTORNEYS, Louisville, Kentucky, for Appellant. Stephen
                                   -                                         H. Miller, FORE, MILLER & SCHWARTZ, Louisville,
                                   -  No. 01-6031                            Kentucky, for Appellee.
            v.                     -
                                    >                                                           _________________
                                   ,
 EULRIC WARE ,                     -                                                                OPINION
           Defendant-Appellee. -                                                                _________________
                                  N
       Appeal from the United States District Court                             DAVID W. McKEAGUE, District Judge. A grand jury
    for the Western District of Kentucky at Louisville.                      indicted Eulric Ware for knowingly and intentionally
 No. 00-00059—John G. Heyburn II, Chief District Judge.                      attempting to possess cocaine in violation of 21 U.S.C. § 812.
                                                                             On Ware’s motion and after a suppression hearing, the district
                   Argued: December 10, 2002                                 court issued an order suppressing (1) defendant’s post-
                                                                             custodial inculpatory statements to police, and (2) evidence
              Decided and Filed:        April 30, 2003*                      seized from defendant’s apartment pursuant to a state search
                                                                             warrant. The government appeals, challenging the district
        Before: NORRIS and GILMAN, Circuit Judges;                           court’s order granting defendant’s motion to suppress. For
                McKEAGUE, District Judge.1                                   the reasons set forth below, we REVERSE the judgment of
                                                                             the district court.
                                                                                                 I. BACKGROUND
                                                                             A. Factual Background

    *                                                                          Early in the morning on February 8, 2000, Detective
      This decision was originally issued as an “unpublished decision”
filed on April 30, 2003. On July 1, 2003, the court designated the opinion
                                                                             Sherman Dotson of the Louisville Police Department
as one recommend ed for full-text publication.                               narcotics unit noticed a suspicious package at the Federal
                                                                             Express facility in Louisville, Kentucky. The heavily taped
    1                                                                        package had been shipped from Daytona Beach, Florida, to
      The Ho norable D avid W . McK eague, United States District Judge
for the Western District of Michigan, sitting by designation.                “David Jones” at 1426 South First Street in Louisville.

                                    1
No. 01-6031                       United States v. Ware       3    4     United States v. Ware                       No. 01-6031

Detective Dotson set the package aside after a trained             shopping bag, which contained the package with the cocaine.
narcotics dog alerted on it, indicating the presence of a          The police then took Ware back to his apartment and searched
controlled substance.                                              it in reliance on the Napier warrant. Drug paraphernalia and
                                                                   a weapon were recovered.
   At 9:30 a.m., Detective Dotson, with the assistance of
Detective Brian Nunn, obtained two search warrants. The               Next, while being transported to police headquarters for
first authorized them to open the package itself. The second       booking, Ware inquired about “helping himself out.” Upon
authorized them to insert an electronic tracking device and to     arriving at the station, the police took Ware to an interview
enter any structure to seize the package if the device indicated   room equipped with audio and video recording equipment.
that the package had been opened.                                  Detectives Pitcock and Nunn then entered the room and again
                                                                   advised Ware of his Miranda rights. After Ware indicated
  The detectives then executed the warrant on the package          that he was a “little hazy” about the meaning of his rights,
and found a pair of basketball shoes, each containing              Detective Nunn read them again, stating that they “are very,
approximately one fourth of a kilogram of cocaine. After           very important to you.” Ware then asked: “So, right now I
removing all but one gram of the cocaine, the detectives           can have an attorney while I talk to y’all?,” to which Nunn
inserted the tracking device and resealed the package in           replied, “Sure can, that’s your legal right.” Soon after, Ware
preparation for a controlled delivery.                             stated: “I’d just rather have an attorney, man.”
   At that time, Detective Eddie Napier drafted an affidavit          After Ware requested counsel, the detectives located a
and application for a warrant authorizing a search of the          telephone book and helped defendant recall the name of an
delivery address. A state court judge signed the warrant (“the     attorney he had heard of. To this end, the police asked Ware
Napier warrant”) around 10:00 a.m. While the face of this          questions concerning that attorney’s race and practice area.
warrant authorized in boilerplate terms an “immediate search”      When Ware ultimately identified attorney Stephen Miller,
of the premises, the supporting affidavit stated that “[o]n 02-    Detective Nunn left the room to place a call to Miller’s office.
08-2000 a controlled delivery of this parcel will be               Detective Pitcock, who apparently knew Ware prior to this
attempted.” All of the officers involved considered this to be     arrest, remained in the room and chatted with him about his
an anticipatory warrant.                                           mother and about how he knew Miller.
   Armed with the Napier warrant and the package, the police         Detective Nunn returned to the room several minutes later
made the controlled delivery around 2:30 p.m. Defendant            and the following exchange occurred:
Eulric Ware signed for the package as “David Jones” and took
it inside his apartment. Several minutes later, Ware left the          Nunn:   Unfortunately, [Miller’s] not in the office today.
apartment carrying an opaque shopping bag, and the                             They said his secretary’s not in the office and I
electronic monitor indicated to the police surveillance team                   left a message on his answering machine. If he
that the package was moving.                                                   gets in anytime soon, I gave him my pager
                                                                               number and asked him to call us. So, that’s the
  Ware then drove to the University of Louisville campus and                   best I can do here. Any other suggestions or
parked in a semi-circular driveway. At this time officers                      guesses?
arrested Ware, read him his Miranda rights, and retrieved the
No. 01-6031                        United States v. Ware           5   6     United States v. Ware                        No. 01-6031

  Ware:    I’ll just talk, that’s all, you know, just forget it.       unreasonable and, therefore, fruits of the search will be
                                                                       excluded.”
  Nunn:    Here’s the deal, I don’t want you to just forget
           it cause we couldn’t get a hold of one attorney.              Second, the district court concluded that the detectives did
           I mean, let’s, if you’re comfortable talking, I’m           not sufficiently break off their interrogation of defendant after
           fine with that, but I need to make sure that                he requested counsel. As a result, the court suppressed the
           you’re fine with that.                                      incriminating statements defendant gave the officers. The
                                                                       court concluded that “the officers, perhaps innocently enough,
  Ware:    I can always stop, right?                                   continued their conversation with Ware. Under these
                                                                       circumstances, one can reach no conclusion other than
  Nunn:    Oh yeah, yeah. Like I read your rights, if you              Defendant’s incriminating statements occurred in the same
           decide hey I don’t want to talk no more, that’s             custodial interrogation as his initial request for counsel.” The
           fine. And like I said, I’ll just kind of lay it out         government then brought this timely appeal.
           again, what we know and then if you want to
           try and help yourself.                                                             II. ANALYSIS
Ware agreed to talk and subsequently gave inculpatory                    When reviewing a district court’s decision on a motion to
statements.                                                            suppress, this Court reviews its findings of fact for clear error
                                                                       and its conclusions of law de novo. See United States v.
B. Procedural Background                                               Miggins, 302 F.3d 384, 393 (6th Cir. 2002).
   On May 2, 2000, a grand jury returned an indictment                 A. Confession
charging defendant with knowingly and intentionally
attempting to possess cocaine on or about February 8, 2000.              The government first contends that the district court erred
After defendant moved to suppress several items of evidence,           in suppressing defendant’s confession. The district court’s
the magistrate judge held a suppression hearing and issued a           ruling was premised on the notion that the officers’
report and recommendation that Ware’s motion be denied in              interrogation of Ware did not cease when he requested
its entirety.                                                          counsel, that his statements were given in the same custodial
                                                                       interrogation as defendant’s initial request for counsel, and
  Conducting a de novo review, the district court departed             that defendant did not sufficiently initiate discussion of the
from the magistrate judge’s recommendation in two respects.            crime or waive his right to counsel.
First, the district court concluded that the Napier warrant was
technically deficient as an anticipatory warrant, was not                 Under the Edwards rule, once an accused has invoked the
supported by probable cause as a standard warrant, and that            right to counsel, the police must cease interrogation until
the good faith exception to the warrant requirement did not            counsel has been made available, unless “the accused himself
apply. In suppressing the evidence, the court found: “In sum,          initiates further communication, exchanges, or conversations”
the sheer absence of corroborating information in the affidavit        with the police. Edwards v. Arizona, 451 U.S. 477, 484-85.
supporting the Napier warrant coupled with the breadth of the
warrant itself renders reliance on the warrant objectively
No. 01-6031                       United States v. Ware       7    8    United States v. Ware                       No. 01-6031

   In this case, it does not appear that interrogation of Ware     the crime. See Edwards, 451 U.S. at 484-85. Here, Ware
ever began. The Supreme Court has defined interrogation as         stated, “I’ll just talk, that’s all, you know, just forget it.”
“express questioning . . . [or] any words or actions on the part   Defendant was not prompted to talk by police interrogation,
of the police (other than those normally attendant to arrest and   but rather “evinced a willingness and a desire for a
custody) that the police should know are reasonably likely to      generalized discussion about the investigation.” Oregon v.
elicit an incriminating response from the suspect.” Rhode          Bradshaw, 462 U.S. 1039, 1045-46 (1983). Therefore,
Island v. Innes, 446 U.S. 291, 301 (1980). Here, the only          defendant sufficiently initiated discussion of the crime after
questions police asked of Ware upon entering the interview         invoking his right to counsel.
room pertained to Ware’s understanding of his Miranda
rights. Such questions do not constitute interrogation. See           Although Ware initiated the conversation, it is still
United States v. Avery, 717 F.2d 1020, 1024 (6th Cir.              necessary to determine whether he validly waived his rights
1983)(no interrogation where police asked routine booking          to counsel and to remain silent. See Edwards, 451 U.S. at 486
questions unrelated “even tangentially, to criminal activity”      n.9. Such a waiver must, in the totality of the circumstances,
and there was “no evidence that the defendant was                  be knowing and intelligent. See id. Here, defendant was
particularly susceptible to these questions, or that police        advised of his Miranda rights three times before attempting
somehow used the questions to elicit an incriminating              to contact an attorney and ultimately deciding to talk. In
response from the defendant.”).                                    agreeing to talk, defendant specifically confirmed that he
                                                                   could stop talking at any time, indicating that he understood
  The district court concluded that all questions the police       his rights. Furthermore, there is no evidence of police
asked Ware after he invoked his right to counsel comprised         coercion, threats, or promises. From the totality of the
further unlawful interrogation. These questions, however,          circumstances, defendant knew what his rights were and
were principally aimed at finding Ware an attorney. Another        waived them.
question related to the current whereabouts of Ware’s mother.
Taken in context, these questions were not even tangentially         In sum, given that defendant sufficiently initiated
related to criminal activity, nor did they hint at eliciting       discussion of the crime and validly waived his rights to
incriminating information or prey on any particular                remain silent and to counsel, his subsequent confession was
susceptibility of the defendant.                                   voluntary and should not have been suppressed.

   Next, the district court concluded that defendant agreed to     B. Warrant
talk only in response to Detective Nunn’s question: “Any
other suggestions or guesses?” While if taken out of context         The government further contends that the district court
this could be construed as interrogation, it is more reasonable    erred in suppressing evidence seized pursuant to the Napier
to conclude that Nunn’s question, posed immediately after          warrant. The district court ruled that the warrant was
informing defendant that attorney Miller could not be              technically deficient as an anticipatory warrant, was not
reached, was aimed at acquiring counsel for defendant rather       supported by probable cause as a standard warrant, and did
than at eliciting incriminating information.                       not fit within the good faith exception to the exclusionary
                                                                   rule.
   As Edwards counsels, a defendant who has invoked his
right to counsel may himself lawfully initiate discussion of
No. 01-6031                       United States v. Ware      9    10   United States v. Ware                        No. 01-6031

  On review, this Court need not reach the validity of the        immediate search of the apartment. The language indicating
warrant, as it can turn immediately to consider the application   “immediate” was boilerplate on the form of the warrant
of the Leon good faith exception. See United States v. Leon,      application. In the supporting affidavit, however, Napier
468 U.S. 897, 925 (1984)(“[R]eviewing courts could . . .          specifically noted that a controlled delivery would be
reject suppression motions posing no important Fourth             attempted that afternoon to the apartment. Indeed, the police
Amendment questions by turning immediately to a                   executed this warrant in accordance with their belief that it
consideration of the officers’ good faith.”).                     was anticipatory, waiting until after the controlled delivery to
                                                                  search Ware’s apartment.
  In Leon, the Supreme Court held that the exclusionary rule
should not bar the use of evidence obtained by officers acting       Since “warrants and their supporting documents are to be
in reasonable reliance on a search warrant that is later found    read not hypertechnically, but in a commonsense fashion,”
to be invalid. Id. at 913. This “good faith” exception is not     United States v. Miggins, 302 F.3d 384, 395 (6th Cir.
without limit, however, as the Leon Court identified four         2002)(quotation marks and alteration omitted)(finding an
specific situations when it would not apply. Id. at 922-23.       anticipatory search warrant valid where the accompanying
None of these specific situations are at issue here, however,     affidavit specified the triggering event), an objectively
as the district court’s ruling was premised simply on whether     reasonable officer would likely have concluded that the
the officer’s reliance on the Napier warrant was objectively      warrant legally authorized a search of the apartment only
reasonable.                                                       upon the controlled delivery of the package. Furthermore, by
                                                                  waiting until after the controlled delivery to search Ware’s
  The Leon inquiry is limited to “the objectively ascertainable   apartment, “it is painfully apparent that . . . the officer[s]
question of whether a reasonably well trained officer would       acted as [] reasonable officers would and should act in similar
have known that the search was illegal despite the                circumstances.” Leon, 468 U.S. at 919-20, citing Stone v.
magistrate’s authorization.” Id. at 922 n.23. In making this      Powell, 428 U.S. 465, 539-40 (1976)(White, J., dissenting).
determination, all the circumstances may be considered. See       This being the case, the exclusionary rule should not operate
id.                                                               to bar the fruits of the search of Ware’s apartment.
  In this case, the evidence presented at the suppression             Furthermore, suppressing the evidence obtained in this
hearing revealed that the Louisville police intercepted a         search would not serve the purposes of the exclusionary rule.
Federal Express package containing approximately one pound        See Leon, 468 U.S. at 918 (“[S]uppression of evidence
of cocaine. This package was addressed to a “David Jones”         obtained pursuant to a search warrant should be ordered only
at the address of the apartment occupied by Ware. In              . . . in those unusual cases in which exclusion will further the
addition, the package had been seized and opened pursuant to      purposes of the exclusionary rule.). This is not a case in
a search warrant, and all but one gram of cocaine had been        which the exclusionary rule is needed to deter police or
removed. Finally, the police planned to make a controlled         magistrate misconduct.
delivery of the package to Ware’s apartment later that
afternoon.
  Armed with this information, Detective Napier applied for
and received a search warrant that inadvertently authorized an
No. 01-6031                 United States v. Ware   11

                III. CONCLUSION
  For all the reasons set forth above, we REVERSE the
judgment of the district court and REMAND for further
proceedings consistent with this opinion.
