Facts
David Devaney was charged with conspiracy to possess fifty grams or more of methamphetamine with intent to distribute (count one), arising from his providing security for a drug trafficking scheme executed by his father, David Devaney, Sr (Senior). The drug deal went awry when Hernandez and Mejia—the parties on the opposite side of the transaction —declined Senior’s request for them to travel to a nearby hotel room. The buyers then left—which prompted David, Senior, and a third co-conspirator to give chase in three vehicles.
David eventually caught up to the buyers’ vehicle, forcing it to stop. He and his co-conspirators began shooting at the buyers, injuring Mejia and killing an innocent bystander. Later that day, officers apprehended and arrested Mejia and Hernandez. Sometime afterward, Mejia positively identified David from a photo array as one of the shooters. The next day, officers spotted David driving a Chevrolet Corvette and attempted to initiate a traffic stop. David led the officers on a high-speed chase covering approximately two miles. He then parked the Corvette, fled on foot, and was ultimately arrested. In his post-arrest interview, David admitted that he had provided security for the drug transaction and chased the buyers’ car. But he claimed that he did not fire a gun.
Officers obtained warrants to search the Corvette and the two cell phones. A search of the Corvette revealed various drugs and drug paraphernalia, including roughly 108 grams of meth. The phones contained text messages with Senior discussing distribution of meth and marihuana. David filed motions to suppress (1) the evidence discovered in the Corvette, (2) the evidence in his two cell phones, and (3) the incriminating statements he made in his post-arrest interview. All motions were denied by the district court Judge. The 5th affirmed.
Analysis
A. The Corvette and the Cell Phones
Warrants are reviewed under a two-part test. In the first step, we determine whether the good-faith exception to the exclusionary rule applies. Under that exception, evidence obtained from a search will not be excluded even if probable cause for a search warrant is founded on incorrect information, so long as the officer’s reliance upon the information’s truth was objectively reasonable.
We move to the second step only if the good-faith exception is inapplicable. There, we address whether the magistrate had a substantial basis for finding probable cause. Probable cause does not require proof beyond a reasonable doubt, but only a showing of the probability of criminal activity. See Froman. David complains that “Detective Martin’s warrant affidavit was ‘bare bones’ as it pertains to his blue Corvette.” Same too with the warrant affidavit for his two cell phones.
Specifically, he observes that the former (1) did not describe a Corvette as one of the vehicles involved in the shooting incident and (2) lacked the requisite nexus to drug-related crimes. As to the latter affidavit, he avers (1) that it lacked detail on the manner of his communications and (2) that the affiant did not expressly invoke his “training and experience” with the behavior of drug dealers.
In response, the government (a) emphasizes the affidavits’ length, (b) highlights their extensive detailing of the crimes committed, the participants, and the location and timing of the events, and (c) observes that both were evaluated by a neutral magistrate who independently determined that the probable cause standard had been satisfied.
The government has the better position with regard to both motions to suppress. As a general matter, David’s averments are more germane to attacking “the probable-cause determination itself” than to showing the applicability of the bare-bones cutout. In other words, his contentions—even if taken at face value—would not show that the affidavits were “bare bones.”
That’s because an affidavit is not bare bones merely because it fails to establish probable cause. Rather, the term describes only those affidavits that contain wholly conclusory statements —i.e., those that are completely devoid of the facts and circumstances from which a magistrate can independently determine probable cause. “Bare bones” does not describe the affidavits at issue. Unlike true bare-bones affidavits, which “do not detail any facts” and “allege only conclusions, those used to search David’s Corvette and cell phones detailed the “crimes committed, the participants, as well as the location and time of the events.”Thus, both affidavits put all the relevant facts and circumstances before the state judge, allowing him to independently determine if the probable-cause standard had been met.
Furthermore, both affidavits include sufficient detail regarding (1) the Corvette and (2) the cell phones, thereby making it reasonable for the officers to rely on the warrants.
(1) David was positively identified as a subject who discharged a firearm in the aftermath of an illegal narcotics transaction. The day before, he shot at a moving vehicle while driving. Moreover, he attempted to evade officers with the Corvette. Given his involvement in the shooting, his use of a firearm while driving, and his evading arrest, a magistrate could reasonably infer that the guns used in the shooting were inside the vehicle.
(2) David had two phones when he was arrested. Per Morton, the presence of multiple phones can indicate that they are being used for criminal activity. Further, he admitted that he was involved in a scheme to sell illegal narcotics. A magistrate could thus infer that the phones were used in furtherance of that scheme. Additionally, the affiant stated that, based on his training and experience, illegal narcotic transactions involving fraudulent, counterfeit, or prop money may escalate to shootings or homicides. Given that the magistrate could infer that the phones were used in the drug scheme, he could also reasonably infer that they would contain evidence of the shootings and homicides that followed immediately afterwards. The affidavits were not “bare bones,” so the good-faith exception applies. The district court correctly denied David’s motions to suppress evidence seized from the Corvette and the two cell phones.
B. Incriminating Statements
Miranda created a right for an accused to have counsel present during custodial interrogation. Upon invoking his right to counsel, an accused is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. See SCOTUS Edwards v. Arizona, 451 U.S. 477 (1981).
But an accused’s invocation of his right to counsel must be unequivocal and unambiguous. See SCOTUS Berghuis v. Thompkins, 560 U.S. 370 (2010). Further communication is initiated if the accused evinces a willingness and a desire for a generalized discussion about the investigation. See SCOTUS Oregon v. Bradshaw, 462 U.S. 1039 (1983). David contends that officers continued interrogating him despite his four requests for counsel:
(1) David mentioned an attorney when officers began asking about the drug deal. But, when officers then asked whether he was invoking his right to counsel, he answered “not yet . . . I’m not asking for an attorney yet.”
(2) David asked whether the officers would call Brian Poe, stating that he wanted Poe’s advice. David then clarified that he wanted merely to call Poe as a friend —without hiring him as his attorney—and without ending the interview.
(3) David asked again whether there was “a way to talk to my attorney without ending the interview.” The officers answered in the negative.
(4) David asked a third time whether he could call Poe as a friend. The officer responded that he would not allow David to make phone calls at that time. David then indicated that he wanted to continue providing information and consented to searches and forensic testing.
The government responds that none of those requests was sufficiently unequivocal and unambiguous. We agree. David did not invoke his right to counsel.
In (1) and (2), David affirmatively disclaimed his intent to invoke counsel and his intent to retain Poe as counsel, respectively. Thus, neither statement articulated a desire to have counsel present. Same with (3). Though David mentioned his attorney, he did so only in the context of asking whether there was any way he could invoke his right to counsel without terminating the interview. Such a procedural inquiry is too equivocal to constitute a clear invocation of the right to counsel.
Furthermore, immediately after his query, David explicitly stated that he did not want to end the interview. That countervailing desire to continue speaking with the officers renders ambiguous any invocation of his right to counsel. Lastly, in (4), David zeroes in on the officer’s stating “I’m not letting you make no phone calls right now”—characterizing it as the most blatant violation of his right to counsel. Per the transcript, however, the officer’s statement was made immediately after David asked whether he could call his attorney as a friend. Context from (2) therefore indicates that David wanted to make a personal phone call to Poe. So David did not express a desire to have counsel present. Consequently, David failed properly to invoke his right to counsel. The district court did not err in denying his motion to suppress the statements he made during his post-arrest interrogation.
https://www.ca5.uscourts.gov/opinions/pub/23/23-10480-CR0.pdf