United States v. Dwayne Thompson , 772 F.3d 752 ( 2014 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-1874
_____________
UNITED STATES OF AMERICA
v.
DWAYNE THOMPSON,
a/k/a White Chocolate;
a/k/a “D”
Dwayne Thompson,
Appellant
APPEAL FROM THE UNITED STATES DISTRICT
COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. No. 2-07-cr-00303-001)
District Judge: Honorable Joy Flowers Conti
______________
Argued June 25, 2014
______________
Before: McKEE, Chief Judge, FUENTES and
GREENAWAY, JR., Circuit Judges.
1
(Opinion Filed: November 19, 2014)
______________
Michael L. Ivory, Esq. [ARGUED]
Rebecca R. Haywood, Esq.
David J. Hickton, Esq.
Office of the United States Attorney
700 Grant Street
Suite 4000
Pittsburgh, PA 15219
Counsel for Appellee
Sarah S. Gannett, Esq. [ARGUED]
Brett G. Sweitzer, Esq.
Leigh M. Skipper, Esq.
Federal Community Defender Office
For the Eastern District of Pennsylvania
Suite 540 West – Curtis Center
601 Walnut Street
Philadelphia, PA 19106
Counsel for Appellant Dwayne Thompson
______________
OPINION
______________
GREENAWAY, JR., Circuit Judge.
Dwayne Thompson (“Appellant” or “Thompson”)
appeals the District Court’s judgment entered on March 18,
2013. Thompson argues that the District Court erred in
2
failing to suppress (a) the fruits of a search which, he
contends, law enforcement lacked reasonable suspicion to
conduct, and (b) statements he made while in custody, prior
to being presented to a magistrate judge. Thompson claims
that such statements violated the McNabb-Mallory rule. For
the reasons set forth below, we will affirm the District Court’s
denial of Appellant’s motion to suppress the fruits of the
search, but we will reverse the District Court’s suppression
ruling regarding Thompson’s statements. Accordingly, we
will vacate and remand Thompson’s judgment of conviction.
I. FACTUAL AND PROCEDURAL HISTORY
From 2001 until July 2007, Dwayne Thompson was
the supplier for a cocaine distribution network known as the
“Cali Connect.” The Cali Connect shipped cocaine to the
East Coast where it was distributed, including in and around
the Pittsburgh area. Thompson transported cocaine from
California to Pittsburgh either in one of his own vehicles or in
rentals cars. After completing his deliveries, Thompson
would wait for the money before returning to California, or
receive payment on his next trip to the area.
Investigators became aware of Thompson through
their cooperating witnesses and a wiretap investigation.
Several cooperating witnesses named Thompson as the source
for the Cali Connect’s cocaine. In wiretapped phone
conversations with other targets, Thompson made comments
that investigators interpreted to be drug-related.
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A. The Traffic Stop
On June 29, 2007, Thompson was involved in a traffic
stop near Amarillo, Texas. Trooper Livermore of the Texas
Department of Public Safety was “running traffic” on I-40
near Amarillo, Texas, along with his partner, Chad Grange.
Within the law enforcement community, I-40 is a “known
corridor for narcotics, weapons, and money.” (App. 508.)
Shortly before 1:40 p.m., Livermore saw a maroon pickup
truck, with a hard-top cover on the bed, traveling eastbound at
a speed of 84 mph in a 70 mph zone. It is illegal under Texas
law to travel in excess of a posted speed limit. Livermore
stopped the truck and approached the passenger’s side
window. Thompson was the sole occupant of the pickup
truck.
Livermore spoke with Thompson and advised him of
the reason for the stop. Livermore asked Thompson where he
was going. Thompson replied that he was en route to
Indianapolis and that he would be staying there for
approximately three weeks. Livermore observed that
Thompson only had one suitcase for such a long trip, and it
raised his suspicions. Livermore said, “I didn’t think it was
the norm to have that size luggage for the length of the trip.”
(App. 516.)
Livermore also claimed that Thompson appeared
nervous: he did not make eye contact, his voice was shaky,
and a vein in the side of his neck was pulsing. Thompson’s
signs of nervousness, in conjunction with the small suitcase,
the fact that I-40 is a known drug corridor, and knowledge
that California is a “source” state, aroused Livermore’s
suspicions that this trip was a drug-trafficking trip.
4
Livermore went back to the patrol car and ran
Thompson’s criminal history. The criminal history check
showed several dated narcotics offenses, and a more recent
prior conviction for a firearm offense. When Livermore
asked Thompson – still in the car – about his criminal history,
Thompson disclosed only the firearm conviction.
Livermore began to write up the citation for the
speeding ticket and asked Thompson if he could search the
vehicle. Thompson said that he could not. At this point,
Livermore consulted with Sergeant Grange, and they decided
to call for a K-9 detection team.
The K-9 unit was contacted at 1:50 p.m., eleven
minutes after the initial stop. The officers were notified at
1:52 p.m. that the K-9 unit was en route. It took the K-9 unit
approximately thirty minutes to arrive at the scene. Prior to
the K-9 search, Thompson agreed to accept responsibility for
anything that might be discovered in the truck.
When the K-9 unit arrived at the scene, the dog alerted
after his first pass by scratching at the back of the pickup
truck. The officers then searched the vehicle and opened the
locked truck-bed using a key provided by Thompson. When
they opened it, they immediately smelled marijuana. Beneath
a tarp lay five large, plastic tubs containing marijuana.
Thompson was arrested and transported to the Texas
Highway Patrol’s district office. Officers spoke with
investigators regarding the Cali Connect, who informed them
that they should check the back tailgate area, as that is where
Thompson had been observed to keep narcotics. The troopers
searched the area and found six kilograms of cocaine.
Thompson was charged locally for the marijuana found in the
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vehicle. He posted bond, was released, and was not informed
about the discovery of cocaine.
B. Failure to Timely Present
A few weeks later, a Drug Enforcement
Administration (“DEA”) task force executed a series of
search warrants on residences believed to be associated with
Cali Connect members, including Thompson, in
Pennsylvania, Indiana, and California. The task force
members executed a search warrant on Thompson’s home at
7:00 a.m., on July 17, 2007.
Thompson was found in an upstairs bedroom, on the
phone. He was taken outside to a patrol car briefly, then
returned inside where DEA Agent Strobel read Thompson his
Miranda rights. No separate, written Miranda waiver was
signed at that time, or later. Thompson sat at a table in
handcuffs, surrounded by uniformed officers, while the search
was conducted. During the search, the officers played
wiretap recordings of Thompson and others involved in Cali
Connect, obtained while investigating the group. Thompson
remained there until the search concluded at 9:40 a.m.
Investigators recovered two kilograms of cocaine from the
search.
At the conclusion of the search, agents drove
Thompson to the DEA field office in Los Angeles (“L.A.”)
for processing. Due to the distance, traffic, and a pit-stop for
fast food, the drive took approximately an hour and a half.
Officers did not question Thompson during the ride, but did
“lay[] the case out for him.” (App. 677.) Agent Strobel also
informed Thompson about the value of cooperation.
6
They arrived at the DEA office shortly after 11:00
a.m., when Thompson was processed and placed in a holding
room. Processing takes approximately twenty minutes, and it
is DEA policy to process prisoners before taking them to
court for their initial appearances. In the early afternoon,
Agent Strobel asked Thompson “what he wanted to do[.]”
(App. 680). Thompson informed the officer that he wanted to
cooperate. At that time, more than six hours had passed since
his arrest at approximately 7:00 a.m.
At this point, Agent Strobel and another DEA Agent,
Christopher Balchon, began interviewing Thompson. Over
the course of the afternoon, Thompson offered information
about his cocaine sources in the L.A. area and about his co-
conspirators. In addition, they had Thompson place a series
of phone calls in an effort to solicit a “reverse buy-bust” on
one of the alleged co-conspirators.
Agent Balchon did not present Thompson with a
written waiver of his right to prompt presentment until 6:38
p.m., nearly twelve hours after his arrest. Thompson was
advised at this point about his right to a speedy appearance,
and re-advised of his right to remain silent and his right to
counsel. Thompson signed the form. Thompson then
requested that the interview cease, and he was taken to
Metropolitan Correctional Center to spend the night.
Thompson continued to cooperate the next day, but it
became clear that Thompson would be unable to arrange the
“buy-bust,” and the effort was abandoned. The agents
returned him to Metropolitan Correctional Center and
delivered him for presentment the next morning. Thompson
was presented nearly 48 hours after his initial arrest.
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C. Procedural Posture
Following the denial of several motions to suppress,
Thompson pled guilty to one count of conspiracy to distribute
five kilograms or more of cocaine, in violation of 21 U.S.C. §
846, and one count of conspiracy to launder monetary
instruments, in violation of 18 U.S.C. § 1956(h). As part of
the plea, Thompson preserved the right to appeal several
adverse suppression rulings, including those at issue in this
appeal: (1) the denial of the motion to suppress evidence
seized in the Texas traffic stop; and (2) the denial of the
motion to suppress statements obtained following the
execution of search warrants at his home and various other
locations.
Thompson was sentenced to a term of imprisonment
for 292 months and five years of supervised release on the
drug conspiracy count; a term of imprisonment for 240
months and three years of supervised release on the money
laundering count, to run concurrently; and a $200 special
assessment.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had jurisdiction pursuant to 18
U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291to review the District Court’s judgment of conviction. “We
review a district court’s order denying a motion to suppress
under a mixed standard of review. We review findings of fact
for clear error, but we exercise plenary review over legal
determinations.” United States v. Lewis, 672 F.3d 232, 236-
37 (3d Cir. 2012)
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III. ANALYSIS
A. Reasonable, Articulable Suspicion to Extend the
Traffic Stop
Thompson first contends that the troopers who were
involved in the traffic stop lacked articulable suspicion that
would justify the extension of their traffic stop to include a K-
9 search.
“After a traffic stop that was justified at its inception,
an officer who develops a reasonable, articulable suspicion of
criminal activity may expand the scope of an inquiry beyond
the reason for the stop and detain the vehicle and its
occupants for further investigation.” United States v. Givan,
320 F.3d 452, 458 (3d Cir. 2003). An inchoate hunch does
not satisfy the standard of reasonable suspicion; rather, the
Fourth Amendment requires that law enforcement have
“some minimal level of objective justification for making the
stop.” United States v. Sokolow, 490 U.S. 1, 7 (1989)
(quoting INS v. Delgado, 466 U.S. 210, 217 (1984)) (internal
quotation marks omitted); see also United States v. Cortez,
449 U.S. 411, 417 (1981) (“An investigatory stop must be
justified by some objective manifestation that the person
stopped is, or is about to be, engaged in criminal activity.”).
This level of suspicion is “less than proof of wrongdoing by a
preponderance of the evidence [and] . . . less demanding than
that for probable cause.” Sokolow, 490 U.S. at 7 (internal
citations omitted).
“In determining whether there was a basis for
reasonable suspicion, a court must consider the totality of the
circumstances, in light of the officer’s experience.” Givan,
320 F.3d at 458; see also United States v. Arvizu, 534 U.S.
9
266, 273 (2002) (“When discussing how reviewing courts
should make reasonable-suspicion determinations, we have
said repeatedly that they must look at the ‘totality of the
circumstances’ of each case to see whether the detaining
officer has a ‘particularized and objective basis’ for
suspecting legal wrongdoing.”) (citing Cortez, 449 U.S. at
417-18).
The Supreme Court has stressed that the totality of the
circumstances standard enables “officers to draw on their own
experience and specialized training to make inferences from
and deductions about the cumulative information available to
them that might well elude an untrained person.” Arvizu, 534
U.S. at 273 (quoting Cortez, 449 U.S. at 417-18) (internal
quotation marks omitted). Further, while “the individual
factors giving rise to reasonable suspicion may be innocent in
isolation, together they must serve to eliminate a substantial
portion of innocent travelers.” United States v. Mathurin, 561
F.3d 170, 174 (3d Cir. 2009) (quoting Karnes v. Skrutski, 62
F.3d 485, 493 (3d Cir. 1995) (internal quotation marks
omitted). Thus, courts are not permitted to analyze factors
individually, as innocent factors taken together may appear
suspicious to an experienced officer. Terry v. Ohio, 392 U.S.
1, 22-23 (1968).
The parties agree that Trooper Livermore’s initial
justification for the stop was lawful because Thompson was
driving 84 miles per hour in a 70 miles per hour zone.1 “A
1
“A speed in excess of the limits established by
Subsection (b) . . . is prima facie evidence that the speed is
not reasonable and prudent and that the speed is unlawful.”
Tex. Transportation Code Ann. § 545.352 (West 2011).
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police officer who observes a violation of state traffic laws
may lawfully stop the car committing the violation.” United
States v. Bonner, 363 F.3d 213, 216 (3d Cir. 2004) (citing
Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977)). Thus,
the only question before us is whether Livermore had
reasonable articulable suspicion to extend the stop to include
a K-9 search.
At the time of the stop, Livermore had been involved
in approximately 1500 traffic stops both as a state trooper and
as a member of a local police department. Ten of the stops
involved felonious amounts of contraband and thirty
misdemeanor arrests, all along the corridor Thompson was
stopped on. Livermore was trained to recognize indicators of
drug smuggling and other criminal activities at the training
academy and on the job.
Livermore testified that Thompson’s explanation about
the length of his trip and the amount of luggage was
suspicious. Livermore noted that the amount of luggage
appeared to be inconsistent with the stated length of the trip.
Livermore also observed Thompson’s behavior and physical
characteristics as additional indicators of suspicious activity.
Thompson was visibly nervous, with a shaky voice and a vein
on his neck pulsating rapidly. His answers to questions came
out hesitatingly, and he neglected to mention his prior
involvement with controlled substances or narcotics when
questioned by Livermore.
Based upon Livermore’s testimony and experience, the
District Court concluded that he possessed a “reasonable
articulable suspicion in terms of articulating his basis for
those suspicions.” (App. 618.) The Court determined that,
based on the “totality of the circumstances, viewing the
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officer’s experience and training, that the investigatory stop
was appropriate and under the Fourth Amendment was more
than an inchoate hunch.” (Id. at 619.)
Thompson, in arguing that the District Court erred in
finding that Livermore had reasonable articulable suspicion,
relies upon the Supreme Court’s decision in Reid v. Georgia,
448 U.S. 438 (1980). In Reid, a DEA agent observed Reid
looking back in the direction of a second man, who possessed
a matching shoulder bag. The agent stated that when he
approached them, both men appeared to be nervous. The
Court found that the evidence relied on in this case would
“describe a very large category of presumably innocent
travelers, who would be subject to virtually random seizures
were the Court to conclude that as little foundation as there
was in this case could justify a seizure.” Reid, 448 U.S. at
441. The Supreme Court further held that the agent’s
suspicion that “[Reid] and his companion were attempting to
conceal the fact that they were traveling together . . . was
more an inchoate and unparticularized suspicion or hunch,
than a fair inference in the light of his experience, [and was]
simply too slender a reed to support the seizure in this case.”
Id. (internal quotation marks and citations omitted).
Unlike in Reid, Thompson’s behavior, when examined
in totality, serves to “eliminate a substantial portion of
innocent travelers.” Mathurin, 561 F.3d at 174 (quoting
Karnes, 62 F.3d at 493) (internal quotation marks omitted).
During Livermore’s stop of Thompson, there were many
factors that piqued the officer’s suspicion, not simply
nervousness and glances. Accordingly, it was reasonable for
Livermore to infer, based upon his experience as a state
trooper and as a member of the local police, that Thompson
was engaged in illegal activity.
12
In reviewing the totality of the circumstances, we
agree with the District Court that Livermore had a
“reasonable, articulable suspicion” to believe that Thompson
was engaged in an illegal activity, and to extend Thompson’s
traffic stop to include a K-9 search. We will affirm the
District Court’s denial of Thompson’s motion to suppress
relating to the traffic stop on June 29, 2007.
B. The McNabb-Mallory Rule
Thompson next argues that certain statements he made
on July 17, 2007 – specifically, his confession – should be
suppressed on the basis that his interrogation violated his
right to prompt presentment.
The Federal Rules of Criminal Procedure require that a
defendant who has been arrested within the United States be
brought “without unnecessary delay before a magistrate
judge.” Fed. R. Crim. P. 5(a)(1)(A). In a series of cases, the
Supreme Court gave teeth to this rule by requiring the
exclusion of any confessions obtained during an unreasonable
period of detention that violated the prompt presentment
requirement. See McNabb v. United States, 318 U.S. 332(1943); Mallory v. United States, 354 U.S. 449 (1957); see
also Corley v. United States, 556 U.S. 303, 322 (2009)
(confirming that even voluntary confessions should be
suppressed if they occurred during a period of unreasonable
delay). The right to speedy presentment not only checks the
likelihood of coercive questioning, but also avoids “all the
evil implications of secret interrogation of persons accused of
crime.” Corley, 556 U.S. at 307 (quoting McNabb, 318 U.S.
at 344). Presentment is the “point at which the judge is
required to take several key steps to foreclose Government
overreaching: informing the defendant of the charges against
13
him, his right to remain silent, his right to counsel, the
availability of bail, and any right to a preliminary hearing;
giving the defendant a chance to consult with counsel; and
deciding between detention or release.” Corley, 556 U.S. at
320.
Following the Supreme Court’s articulation of the
McNabb-Mallory exclusionary rule, Congress enacted 18
U.S.C. § 3501 in order to create a safe harbor period for
certain voluntary confessions. See Corley, 556 U.S. at 309-10(discussing legislative history and intent of § 3501). With
respect to Rule 5(a)’s requirement of speedy presentment, §
3501(c) provides that “a confession . . . shall not be
inadmissible solely because of delay in bringing such person
before a magistrate judge . . . if such confession was made or
given by such person within six hours immediately following
his arrest or other detention.” 18 U.S.C. § 3501(c). The
section further provides that its six-hour cut-off “shall not
apply in any case in which the delay in bringing such person
before such magistrate judge . . . is found by the trial judge to
be reasonable considering the means of transportation and the
distance to be traveled to the nearest available such magistrate
judge.” Id.The reasonableness standard under the McNabb-
Mallory rule focuses primarily on whether the delay was for
the purpose of interrogation. See Corley, 556 U.S. at 308(“[D]elay for the purpose of interrogation is the epitome of
unnecessary delay.”) (quoting Mallory, 354 U.S. at 455-56)
(internal quotation marks omitted). Simply put, a delay in
presentment of a defendant before a magistrate judge is
unreasonable and unnecessary when it is “of a nature to give
opportunity for the extraction of a confession.” Mallory, 354
U.S. at 455.
14
In order to determine whether a McNabb-Mallory
violation occurred, we must first determine whether voluntary
statements were received either within six hours of a
defendant’s detention, or within a longer period deemed
reasonable in light of travel or transportation difficulties. If
they were, the statements occurred within the safe-harbor
period, and no exclusion is required. Corley, 556 U.S. at 322(“If the confession came within that period, it is admissible . .
. .”).
Next, where a voluntary confession falls beyond the
safe-harbor period, § 3501(c) then requires a court to
determine whether the delay was nevertheless reasonable or
necessary under the McNabb-Mallory rule. See id. (“If the
confession occurred before presentment and beyond six
hours, however, the court must decide whether delaying that
long was unreasonable or unnecessary under the McNabb-
Mallory cases, and if it was, the confession is to be
suppressed.”); United States v. McDowell, 687 F.3d 904, 909
(7th Cir. 2012) (“A confession given outside the six-hour
period is also admissible under § 3501(c) if the court finds the
confession was voluntary and the delay in presentment was
reasonable.”) (emphasis in original).
A delay may be reasonable if caused by administrative
concerns, such as the unavailability of a magistrate following
an arrest, see, e.g., United States v. Garcia-Hernandez, 569
F.3d 1100, 1106 (9th Cir. 2009), or by a shortage of
personnel, id.; United States v. Boche-Perez, 755 F.3d 327,
336-38 (5th Cir. 2014). In addition, de minimis delays past
the six-hour limitation may not necessarily raise procedural
concerns. See United States v. Jacques, 744 F.3d 804, 814-15
(1st Cir. 2014) (one minute outside the six-hour limit found to
be a minor and ultimately harmless miscalculation of time).
15
A delay “is unreasonable and unnecessary when it is
‘of a nature to give opportunity for the extraction of a
confession.’” Garcia-Hernandez, 569 F.3d at 1106 (quoting
Mallory, 354 U.S. at 455). A delay caused by law
enforcement’s “desire to investigate other crimes is not a
legitimate excuse for their failure to respect . . . [the] right to
a prompt arraignment.” United States v. Perez, 733 F.2d
1026, 1035-36 (2d Cir. 1984); see also id. (government failed
to provide any evidence for why delay was necessary, when a
magistrate judge was available nearby after the defendant had
been processed and there were six agents assigned to the
case). Additionally, a delay is unreasonable where the record
clearly shows that agents “continued with their interrogation,
despite Miranda and Rule 5, fully aware of the sanction of
exclusion yet willing to incur it, ostensibly in the name of a
greater good.” United States v. Helmandollar, 852 F.2d 498,
501 (9th Cir. 1988); see also id. (defendant held for more than
28 hours before presentment and questioned by multiple
agents continuously, despite seeking to assert right to counsel
on numerous occasions). Moreover, unexplained delays,
despite being in close proximity to an available judge, can be
considered unreasonable. United States v. Wilson, 838 F.2d
1081, 1085 (9th Cir. 1988) (no reasonable excuse for no
arraignment because the arraignments were held within the
same building where Wilson was held).
Here, it is undisputed that Thompson’s confession
came considerably after the six-hour period had run. As a
result, the question before us is whether the delay in his
presentment was unreasonable or unnecessary under the
McNabb-Mallory cases.
Thompson contends that, because his waiver was
untimely under § 3501(c), his subsequent confession is
16
inadmissible under McNabb-Mallory. Specifically,
Thompson insists that the delay cannot be deemed
“reasonable” because it was unnecessary, as Thompson was
arrested in relative proximity to the federal courthouse and
before the business day had commenced. Agents had the
opportunity to bring him before the court for at least one and
possibly two arraignment dockets or seek a waiver of
presentment, but simply chose not to do so, in order to pursue
his cooperation. (Appellant’s Br. 37).
On the other hand, the government contends that the
delay in Thompson’s presentment was reasonable because the
delay was not for the purpose of interrogation. In addition to
the delays caused by: (1) the search of Thompson’s residence;
(2) the time spent in transporting Thompson to the DEA
office and providing him with food; (3) processing Thompson
at the DEA office; and (4) the missed opportunity to bring
Thompson to the morning docket the day of his arrest, the
government asks this Court to find that pursuit of cooperation
is a reasonable delay. The government contends that pursuit
of cooperation is particularly distinguishable from pursuit of
confession in this case because “Thompson’s confession was
superfluous to [the] issue of his guilt.” (Appellee’s Br. 38).
We find that the government’s arguments do not hold
water. Thompson signed a waiver of his right to prompt
presentment approximately 12 hours after his arrest. He was
ultimately presented 48 hours after his arrest. The traditional
exceptions to the McNabb-Mallory rule focus on the practical
obstacles to getting to a magistrate. See, e.g., Garcia-
Hernandez, 569 F.3d at 1106 (administrative delays are
reasonable and necessary). Certainly, some of the obstacles
to the delay were logistical. “[L]aw enforcement personnel
are permitted, within reasonable limits, to investigate whether
17
the crime occurred; search and secure a premises; and secure,
confiscate, or destroy contraband before taking an arrestee to
a magistrate.” Boche-Perez, 755 F.3d at 337.
Here, two and a half hours were spent searching and
securing the premises, as well as confiscating contraband
before Thompson was taken to a magistrate. Thus, this part
of the delay is reasonable. In addition, law enforcement
testified that part of the delay was due to transportation. The
rule itself makes clear that transportation-based delays are
reasonable. 18 U.S.C. §3501(c). The government also claims
that by the time Thompson arrived to the DEA offices, the
morning arraignment docket was unavailable to them.
Accepting this as true, this delay would be considered
reasonable as well. A magistrate can be considered
unavailable due to a host of reasons, including a full docket.
See Boche-Perez, 755 F.3d at 338.
However, while some of the obstacles to the delay
were reasonable, as the government notes, “[t]he
overwhelming bulk of the delay in this case was devoted to
giving Thompson the opportunity to cooperate and was
therefore reasonable.” (Appellee’s Br. 42.) We are unwilling
to hold that “pursuit of cooperation” may constitute a basis
for delay in presentment. Drawing a line between pursuit of
cooperation and the extraction of a confession is untenable
without looking at the subjective intent of the officers. It is
almost inevitable that the pursuit of cooperation will lead to a
confession by way of interrogation. “Few criminals feel
impelled to confess to the police purely of their own accord,
without any questioning at all.” Miller v. Fenton, 796 F.2d
598, 604 (3d Cir. 1986). As a supervising court, it is nearly
impossible to separate the pursuit of cooperation from the
most unreasonable excuse: interrogation.
18
Thus, we must hold that pursuit of cooperation is not a
reasonable excuse for delay in presentment. Were we to hold
otherwise, the resulting imprecision would lead to confusion
on where to draw the line between engagement based on a
mutual desire to cooperate, versus law enforcement’s desire
to interrogate, with the hope that cooperation may result.
Additionally, we would be required to make a credibility
determination regarding whether law enforcement was
legitimately representing that their pursuit of cooperation was
done in earnest. Such an outcome would undermine Corley’s
affirmation of the McNabb-Mallory rule, by making the
inquiry turn on the subjective intent of the officers rather than
the objectively verifiable and logistical causes of delay
permissible under 18 U.S.C. § 3501(c). See Corley, 556 U.S.
at 322 (“We hold that § 3501 modified McNabb-Mallory
without supplanting it.”).
In addition to not finding pursuit of cooperation as a
reasonable excuse to delay, the logistical components of
Thompson’s delay account for only a portion of the time
before he agreed to cooperate fifteen to thirty minutes after
the six-hour time period elapsed, or before he was presented
with a waiver at 12 hours, or presented to a magistrate judge
nearly 48 hours after being arrested. The government
presented no evidence as to the unavailability of the afternoon
docket, nor why Thompson had to be processed at the DEA
prior to presentment. Further, the government did not explain
why Thompson was not presented with a waiver within the
six hour constraint, which would have permitted the
government to pursue Thompson’s cooperation. Our opinion
does not impede law enforcement’s legitimate desire and
effort to seek out cooperation.
19
The purpose of the McNabb-Mallory rule is not merely
to “avoid all the evil implications of secret interrogation of
persons accused of crime.” McNabb, 318 U.S. at 344.
Rather, the rule was also designed to ensure that a defendant
is brought “before a judicial officer as quickly as possible so
that he may be advised of his rights.” Mallory, 354 U.S. at
454. The government was required to present Thompson to a
magistrate as quickly as possible. Instead, the government
delayed Thompson’s arraignment so that they could continue
to persuade him to cooperate. The longer a defendant goes
without being apprised of his rights, the more vulnerable he
is. “In a world without McNabb-Mallory, federal agents
would be free to question suspects for extended periods
before bringing them out in the open, and we have always
known what custodial secrecy leads to . . . [C]ustodial police
interrogation, by its very nature, isolates and pressures the
individual, . . . and there is mounting empirical evidence that
these pressures can induce a frighteningly high percentage of
people to confess to crimes they never committed . . . .”
Corley, 556 U.S. at 320-21 (internal quotation marks and
citations omitted). Because we are unpersuaded by the
government’s argument that the delay in presentment was
reasonable, we will reverse the District Court’s denial of
Thompson’s motion to suppress his statements.
VI. CONCLUSION
We will affirm the District Court’s ruling denying the
motion to suppress the evidence found as a result of the traffic
stop on June 29, 2007. We will reverse the District Court’s
ruling denying the motion to suppress the statements made in
violation of the McNabb-Mallory rule and Fed. R. Crim. P.
5(a)(1)(A) from July 17, 2007. In this case, the delay of
presentment was not reasonable, and accordingly,
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Thompson’s statements should have been suppressed. We
therefore vacate the judgment of conviction and remand the
case to the District Court for proceedings consistent with this
opinion.
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