United States v. Cornelius Mitchell , 523 F. App'x 411 ( 2013 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted March 29, 2013
Decided April 1, 2013
Before
WILLIAM J. BAUER, Circuit Judge
RICHARD A. POSNER, Circuit Judge
ANN CLAIRE WILLIAMS, Circuit Judge
No. 12-2879
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff–Appellee, Court for the Central District of Illinois.
v. No. 10-20094-001
CORNELIUS C. MITCHELL, Michael P. McCuskey,
Defendant–Appellant. Judge.
ORDER
Cornelius Mitchell was stopped in traffic and arrested by police officers who saw
him leave his apartment when they arrived to execute a search warrant. Although initially
he invoked his right to counsel, Mitchell later spoke to officers about crack cocaine and a
gun found in the apartment. He was charged in federal court—first by complaint and then
indictment—with possession of crack with intent to distribute, 21 U.S.C. § 841(a)(1), and
possession of a firearm as a felon, 18 U.S.C. § 922(g)(1). Mitchell’s lawyer filed two motions
to suppress, one asserting that the physical evidence and confession should be excluded as
fruits of an unlawful arrest, and the other contending that Mitchell was interrogated in
violation of his right to counsel. Mitchell also filed a pro se “Motion to Dismiss Warrantless
Arrest,” claiming that the arresting officers violated his rights by not taking him
immediately to a judicial officer. After the district court denied these motions, Mitchell
pleaded guilty as part of an agreement allowing him to challenge the court’s rulings but
No. 12-2879 Page 2
otherwise waiving his right to appeal. The court sentenced him to a total of 235 months’
imprisonment and eight years’ supervised release. Mitchell filed a notice of appeal, but his
appointed lawyer contends that the appeal is frivolous and moves to withdraw under
Anders v. California, 386 U.S. 738 (1967). Mitchell opposes counsel’s motion. See CIR. R. 51(b).
We confine our review to the potential issues identified in his response and counsel’s
facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973–74 (7th Cir. 2002).
Mitchell has told counsel that he wants his guilty pleas to stand unless the rulings
on the three motions are overturned, so counsel appropriately omits discussion of potential
issues about the plea colloquy or the voluntariness of the pleas. See United States v. Konczak,
683 F.3d 348, 349 (7th Cir. 2012); United States v. Knox, 287 F.3d 667, 671–72 (7th Cir. 2002).
And since Mitchell’s broad waiver of appeal stands along with his unchallenged guilty
pleas, any possible claim beyond what Mitchell preserved in his conditional plea
agreement is necessarily frivolous. See United States v. Kingcade, 562 F.3d 794, 797–98 (7th
Cir. 2009); United States v. Cain, 155 F.3d 840, 842 (7th Cir. 1998). We thus limit our
discussion to the motions to suppress.
Two police officers testified during evidentiary hearings on Mitchell’s motions.
According to the officers, Mitchell already was under investigation a month before his
arrest, and at that time they had sent an informant to buy crack from Mitchell, as the
informant had done previously. During that transaction, surveillance officers witnessed the
informant meet and speak with Mitchell outside a Rent-A-Center store and then follow
Mitchell’s wife by car to another location, where she entered the informant’s car and
delivered the drugs (as Mitchell had instructed). The officers then tailed Mitchell’s wife as
she returned to the store, picked up Mitchell, and continued on to an apartment that
investigators later linked to the couple. Mitchell was not arrested that day, but instead the
police continued their investigation and used the information developed that day when
they later obtained a search warrant for the apartment.
On the day that warrant was executed, the officers assembling outside the
apartment saw Mitchell leaving in his car. Officer Jaceson Yandell instructed other officers
to follow and stop Mitchell. Yandell joined them shortly after and arrested Mitchell. The
police returned Mitchell to the apartment, where the ongoing search already had
uncovered nearly 80 grams of crack. Meanwhile, Yandell interviewed Mitchell’s wife, who
admitted living there but denied owning or knowing about the drugs. Yandell then recited
Miranda warnings to Mitchell, who agreed to be interviewed and confessed that the drugs
were his, but declined to name his supplier without having an attorney. Yandell
accordingly halted the interview.
No. 12-2879 Page 3
Officer Yandell then learned that a gun had been found in a purse near the drugs.
He questioned Mitchell’s wife about the gun, but she again asserted ignorance.
Unprompted, Mitchell then mumbled: “It’s not her. It doesn’t have anything to do with
her. It’s all mine.” Yandell reminded Mitchell that he had invoked his right to counsel, but
Mitchell said he wanted to speak with the officer. Yandell retrieved a consent form with
Miranda warnings and discussed it with Mitchell. Mitchell signed the form and began
writing a confession to owning the drugs and gun but stopped partway through and, this
time, requested to speak with his attorney. After he called his lawyer’s office and reached
only the secretary, Yandell asked if he could help, and Mitchell answered by questioning
whether his wife would be charged with any crime. Yandell called the assistant United
States attorney who would be handling the case, and she assured Mitchell via speaker
phone that his wife would not be charged. Mitchell continued writing, but his attorney’s
office called back and instructed him to say nothing further. He was taken to jail and, the
next day, before a magistrate for an initial appearance.
Mitchell testified that he had not been given Miranda warnings before Officer
Yandell began speaking with him. He denied making an oral admission to owning the
drugs but equivocated when asked whether he had known about his right to have an
attorney present. He insisted that no one had answered his call to the lawyer’s office, yet he
conceded that the secretary had called back to advise him to stay quiet.
In her Anders submission counsel first considers challenging the denial of Mitchell’s
pro se motion accusing the police of undue delay in taking him to a judicial officer after his
arrest. Counsel rightly concludes that an appellate claim would be frivolous. Not only did
the discovery of the drugs and gun have nothing to do with the timing of Mitchell’s first
appearance in court, but his court appearance fell comfortably within the 48-hour window
deemed reasonable under the Constitution and rules of procedure. See FED. R. CRIM. P. 5(a);
Cnty. of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991); Gerstein v. Pugh, 420 U.S. 103, 114
(1975); United States v. Kirkland, 567 F.3d 316, 319 (7th Cir. 2009). Moreover, because
Mitchell voluntarily confessed less than six hours after his arrest, his confession was
admissible whether or not his appearance before the magistrate judge could have been
more prompt. See 18 U.S.C. § 3501(c); Corley v. United States, 556 U.S. 303, 322 (2009);
Kirkland, 567 F.3d at 320.
Counsel next considers whether Mitchell could challenge the denial of his motion to
suppress his confession and the physical evidence as fruits of the traffic stop. Again we
agree with counsel that this claim would be frivolous. The physical evidence found during
execution of the search warrant could not have been fruits of Mitchell’s arrest, whether
lawful or not. And that arrest, although made while Mitchell was driving his car, was
based on Mitchell’s participation in the controlled drug buy a month earlier. That
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transaction provided the police with probable cause to arrest Mitchell, see United States v.
Watson, 423 U.S. 411, 423 (1976); United States v. Carrillo, 269 F.3d 761, 766–67 (7th Cir. 2001);
United States v. Navarro, 90 F.3d 1245, 1253 (7th Cir. 1996), which was not rendered stale by
the passage of one month, see United States v. Mitten, 592 F.3d 767, 775 (7th Cir. 2010);
Forman v. Richmond Police Dept., 104 F.3d 950, 962 (7th Cir. 1997); United States v. Morrison,
594 F.3d 626, 631 (8th Cir. 2010). Mitchell contends in his Rule 51(b) response that the
police, having probable cause to arrest him for the drug crime, could stop him in traffic
only if he violated a traffic law. That argument is frivolous.
Counsel last considers challenging the district court’s refusal to suppress Mitchell’s
incriminating statements on the ground that he was not apprised of his rights. See Miranda
v. Arizona, 483 U.S. 436 (1966). Once more we agree with counsel’s assessment that this
claim would be frivolous. The district court credited the testimony of the police officers that
Mitchell had been advised of his rights to remain silent and to have counsel, which he
initially invoked, but that he later volunteered more information even after being reminded
that he had invoked his right to an attorney. Mitchell knowingly and voluntarily reinitiated
communication with the police, thus waiving his right to first speak with an attorney.
See Davis v. United States, 512 U.S. 452, 458–59 (1994); Edwards v. Arizona, 451 U.S. 477,
484–85 (1981); United States v. Robinson, 586 F.3d 540, 545–47 (7th Cir. 2009).
Counsel’s motion to withdraw is GRANTED, Mitchell’s request for substitute
counsel is DENIED, and the appeal is DISMISSED.