United States of America v. Eulric Ware

*This decision was originally issued as an “unpublished decision”
filed on April 30, 2003. On July 1, 2003, the court designated the opinion
as one recommend ed for full-text publication.
1The Honorable D avid W . McK eague, United States District Judge
for the Western District of Michigan, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2003 FED App. 0258P (6th Cir.)
File Name: 03a0258p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
EULRIC WARE,
Defendant-Appellee.
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No. 01-6031
Appeal from the United States District Court
for the Western District of Kentucky at Louisville.
No. 00-00059—John G. Heyburn II, Chief District Judge.
Argued: December 10, 2002
Decided and Filed: April 30, 2003*
Before: NORRIS and GILMAN, Circuit Judges;
McKEAGUE, District Judge.1
2 United States v. Ware No. 01-6031
_________________
COUNSEL
ARGUED: Terry M. Cushing, ASSISTANT UNITED
STATES ATTORNEY, Louisville, Kentucky, for Appellant.
Stephen H. Miller, FORE, MILLER & SCHWARTZ,
Louisville, Kentucky, for Appellee. ON BRIEF: Terry M.
Cushing, Monica Wheatley, ASSISTANT UNITED STATES
ATTORNEYS, Louisville, Kentucky, for Appellant. Stephen
H. Miller, FORE, MILLER & SCHWARTZ, Louisville,
Kentucky, for Appellee.
_________________
OPINION
_________________
DAVID W. McKEAGUE, District Judge. A grand jury
indicted Eulric Ware for knowingly and intentionally
attempting to possess cocaine in violation of 21 U.S.C. § 812.
On Ware’s motion and after a suppression hearing, the district
court issued an order suppressing (1) defendant’s post-
custodial inculpatory statements to police, and (2) evidence
seized from defendant’s apartment pursuant to a state search
warrant. The government appeals, challenging the district
court’s order granting defendant’s motion to suppress. For
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
Sherman Dotson of the Louisville Police Department
narcotics unit noticed a suspicious package at the Federal
Express facility in Louisville, Kentucky. The heavily taped
package had been shipped from Daytona Beach, Florida, to
“David Jones” at 1426 South First Street in Louisville.

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No. 01-6031 United States v. Ware 3
Detective Dotson set the package aside after a trained
narcotics dog alerted on it, indicating the presence of a
controlled substance.
At 9:30 a.m., Detective Dotson, with the assistance of
Detective Brian Nunn, obtained two search warrants. The
first authorized them to open the package itself. The second
authorized them to insert an electronic tracking device and to
enter any structure to seize the package if the device indicated
that the package had been opened.
The detectives then executed the warrant on the package
and found a pair of basketball shoes, each containing
approximately one fourth of a kilogram of cocaine. After
removing all but one gram of the cocaine, the detectives
inserted the tracking device and resealed the package in
preparation for a controlled delivery.
At that time, Detective Eddie Napier drafted an affidavit
and application for a warrant authorizing a search of the
delivery address. A state court judge signed the warrant (“the
Napier warrant”) around 10:00 a.m. While the face of this
warrant authorized in boilerplate terms an “immediate search”
of the premises, the supporting affidavit stated that “[o]n 02-
08-2000 a controlled delivery of this parcel will be
attempted.” All of the officers involved considered this to be
an anticipatory warrant.
Armed with the Napier warrant and the package, the police
made the controlled delivery around 2:30 p.m. Defendant
Eulric Ware signed for the package as “David Jones” and took
it inside his apartment. Several minutes later, Ware left the
apartment carrying an opaque shopping bag, and the
electronic monitor indicated to the police surveillance team
that the package was moving.
Ware then drove to the University of Louisville campus and
parked in a semi-circular driveway. At this time officers
arrested Ware, read him his Miranda rights, and retrieved the
4 United States v. Ware No. 01-6031
shopping bag, which contained the package with the cocaine.
The police then took Ware back to his apartment and searched
it in reliance on the Napier warrant. Drug paraphernalia and
a weapon were recovered.
Next, while being transported to police headquarters for
booking, Ware inquired about “helping himself out.” Upon
arriving at the station, the police took Ware to an interview
room equipped with audio and video recording equipment.
Detectives Pitcock and Nunn then entered the room and again
advised Ware of his Miranda rights. After Ware indicated
that he was a “little hazy” about the meaning of his rights,
Detective Nunn read them again, stating that they “are very,
very important to you.” Ware then asked: “So, right now I
can have an attorney while I talk to y’all?,” to which Nunn
replied, “Sure can, that’s your legal right.” Soon after, Ware
stated: “I’d just rather have an attorney, man.”
After Ware requested counsel, the detectives located a
telephone book and helped defendant recall the name of an
attorney he had heard of. To this end, the police asked Ware
questions concerning that attorney’s race and practice area.
When Ware ultimately identified attorney Stephen Miller,
Detective Nunn left the room to place a call to Miller’s office.
Detective Pitcock, who apparently knew Ware prior to this
arrest, remained in the room and chatted with him about his
mother and about how he knew Miller.
Detective Nunn returned to the room several minutes later
and the following exchange occurred:
Nunn: Unfortunately, [Miller’s] not in the office today.
They said his secretary’s not in the office and I
left a message on his answering machine. If he
gets in anytime soon, I gave him my pager
number and asked him to call us. So, that’s the
best I can do here. Any other suggestions or
guesses?

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No. 01-6031 United States v. Ware 5
Ware: I’ll just talk, that’s all, you know, just forget it.
Nunn: Here’s the deal, I don’t want you to just forget
it cause we couldn’t get a hold of one attorney.
I mean, let’s, if you’re comfortable talking, I’m
fine with that, but I need to make sure that
you’re fine with that.
Ware: I can always stop, right?
Nunn: Oh yeah, yeah. Like I read your rights, if you
decide hey I don’t want to talk no more, that’s
fine. And like I said, I’ll just kind of lay it out
again, what we know and then if you want to
try and help yourself.
Ware agreed to talk and subsequently gave inculpatory
statements.
B. Procedural Background
On May 2, 2000, a grand jury returned an indictment
charging defendant with knowingly and intentionally
attempting to possess cocaine on or about February 8, 2000.
After defendant moved to suppress several items of evidence,
the magistrate judge held a suppression hearing and issued a
report and recommendation that Ware’s motion be denied in
its entirety.
Conducting a de novo review, the district court departed
from the magistrate judge’s recommendation in two respects.
First, the district court concluded that the Napier warrant was
technically deficient as an anticipatory warrant, was not
supported by probable cause as a standard warrant, and that
the good faith exception to the warrant requirement did not
apply. In suppressing the evidence, the court found: “In sum,
the sheer absence of corroborating information in the affidavit
supporting the Napier warrant coupled with the breadth of the
warrant itself renders reliance on the warrant objectively
6 United States v. Ware No. 01-6031
unreasonable and, therefore, fruits of the search will be
excluded.”
Second, the district court concluded that the detectives did
not sufficiently break off their interrogation of defendant after
he requested counsel. As a result, the court suppressed the
incriminating statements defendant gave the officers. The
court concluded that “the officers, perhaps innocently enough,
continued their conversation with Ware. Under these
circumstances, one can reach no conclusion other than
Defendant’s incriminating statements occurred in the same
custodial interrogation as his initial request for counsel.” The
government then brought this timely appeal.
II. ANALYSIS
When reviewing a district court’s decision on a motion to
suppress, this Court reviews its findings of fact for clear error
and its conclusions of law de novo. See United States v.
Miggins, 302 F.3d 384, 393 (6th Cir. 2002).
A. Confession
The government first contends that the district court erred
in suppressing defendant’s confession. The district court’s
ruling was premised on the notion that the officers’
interrogation of Ware did not cease when he requested
counsel, that his statements were given in the same custodial
interrogation as defendant’s initial request for counsel, and
that defendant did not sufficiently initiate discussion of the
crime or waive his right to counsel.
Under the Edwards rule, once an accused has invoked the
right to counsel, the police must cease interrogation until
counsel has been made available, unless “the accused himself
initiates further communication, exchanges, or conversations”
with the police. Edwards v. Arizona, 451 U.S. 477, 484-85.

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No. 01-6031 United States v. Ware 7
In this case, it does not appear that interrogation of Ware
ever began. The Supreme Court has defined interrogation as
“express questioning . . . [or] any words or actions on the part
of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to
elicit an incriminating response from the suspect.” Rhode
Island v. Innes, 446 U.S. 291, 301 (1980). Here, the only
questions police asked of Ware upon entering the interview
room pertained to Ware’s understanding of his Miranda
rights. Such questions do not constitute interrogation. See
United States v. Avery, 717 F.2d 1020, 1024 (6th Cir.
1983)(no interrogation where police asked routine booking
questions unrelated “even tangentially, to criminal activity”
and there was “no evidence that the defendant was
particularly susceptible to these questions, or that police
somehow used the questions to elicit an incriminating
response from the defendant.”).
The district court concluded that all questions the police
asked Ware after he invoked his right to counsel comprised
further unlawful interrogation. These questions, however,
were principally aimed at finding Ware an attorney. Another
question related to the current whereabouts of Ware’s mother.
Taken in context, these questions were not even tangentially
related to criminal activity, nor did they hint at eliciting
incriminating information or prey on any particular
susceptibility of the defendant.
Next, the district court concluded that defendant agreed to
talk only in response to Detective Nunn’s question: “Any
other suggestions or guesses?” While if taken out of context
this could be construed as interrogation, it is more reasonable
to conclude that Nunn’s question, posed immediately after
informing defendant that attorney Miller could not be
reached, was aimed at acquiring counsel for defendant rather
than at eliciting incriminating information.
As Edwards counsels, a defendant who has invoked his
right to counsel may himself lawfully initiate discussion of
8 United States v. Ware No. 01-6031
the crime. See Edwards, 451 U.S. at 484-85. Here, Ware
stated, “I’ll just talk, that’s all, you know, just forget it.”
Defendant was not prompted to talk by police interrogation,
but rather “evinced a willingness and a desire for a
generalized discussion about the investigation.” Oregon v.
Bradshaw, 462 U.S. 1039, 1045-46 (1983). Therefore,
defendant sufficiently initiated discussion of the crime after
invoking his right to counsel.
Although Ware initiated the conversation, it is still
necessary to determine whether he validly waived his rights
to counsel and to remain silent. See Edwards, 451 U.S. at 486
n.9. Such a waiver must, in the totality of the circumstances,
be knowing and intelligent. See id. Here, defendant was
advised of his Miranda rights three times before attempting
to contact an attorney and ultimately deciding to talk. In
agreeing to talk, defendant specifically confirmed that he
could stop talking at any time, indicating that he understood
his rights. Furthermore, there is no evidence of police
coercion, threats, or promises. From the totality of the
circumstances, defendant knew what his rights were and
waived them.
In sum, given that defendant sufficiently initiated
discussion of the crime and validly waived his rights to
remain silent and to counsel, his subsequent confession was
voluntary and should not have been suppressed.
B. Warrant
The government further contends that the district court
erred in suppressing evidence seized pursuant to the Napier
warrant. The district court ruled that the warrant was
technically deficient as an anticipatory warrant, was not
supported by probable cause as a standard warrant, and did
not fit within the good faith exception to the exclusionary
rule.

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No. 01-6031 United States v. Ware 9
On review, this Court need not reach the validity of the
warrant, as it can turn immediately to consider the application
of the Leon good faith exception. See United States v. Leon,
468 U.S. 897, 925 (1984)(“[R]eviewing courts could . . .
reject suppression motions posing no important Fourth
Amendment questions by turning immediately to a
consideration of the officers’ good faith.”).
In Leon, the Supreme Court held that the exclusionary rule
should not bar the use of evidence obtained by officers acting
in reasonable reliance on a search warrant that is later found
to be invalid. Id. at 913. This “good faith” exception is not
without limit, however, as the Leon Court identified four
specific situations when it would not apply. Id. at 922-23.
None of these specific situations are at issue here, however,
as the district court’s ruling was premised simply on whether
the officer’s reliance on the Napier warrant was objectively
reasonable.
The Leon inquiry is limited to “the objectively ascertainable
question of whether a reasonably well trained officer would
have known that the search was illegal despite the
magistrate’s authorization.” Id. at 922 n.23. In making this
determination, all the circumstances may be considered. See
id.
In this case, the evidence presented at the suppression
hearing revealed that the Louisville police intercepted a
Federal Express package containing approximately one pound
of cocaine. This package was addressed to a “David Jones”
at the address of the apartment occupied by Ware. In
addition, the package had been seized and opened pursuant to
a search warrant, and all but one gram of cocaine had been
removed. Finally, the police planned to make a controlled
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
10 United States v. Ware No. 01-6031
immediate search of the apartment. The language indicating
“immediate” was boilerplate on the form of the warrant
application. In the supporting affidavit, however, Napier
specifically noted that a controlled delivery would be
attempted that afternoon to the apartment. Indeed, the police
executed this warrant in accordance with their belief that it
was anticipatory, waiting until after the controlled delivery to
search Ware’s apartment.
Since “warrants and their supporting documents are to be
read not hypertechnically, but in a commonsense fashion,”
United States v. Miggins, 302 F.3d 384, 395 (6th Cir.
2002)(quotation marks and alteration omitted)(finding an
anticipatory search warrant valid where the accompanying
affidavit specified the triggering event), an objectively
reasonable officer would likely have concluded that the
warrant legally authorized a search of the apartment only
upon the controlled delivery of the package. Furthermore, by
waiting until after the controlled delivery to search Ware’s
apartment, “it is painfully apparent that . . . the officer[s]
acted as [] reasonable officers would and should act in similar
circumstances.” Leon, 468 U.S. at 919-20, citing Stone v.
Powell, 428 U.S. 465, 539-40 (1976)(White, J., dissenting).
This being the case, the exclusionary rule should not operate
to bar the fruits of the search of Ware’s apartment.
Furthermore, suppressing the evidence obtained in this
search would not serve the purposes of the exclusionary rule.
See Leon, 468 U.S. at 918 (“[S]uppression of evidence
obtained pursuant to a search warrant should be ordered only
. . . in those unusual cases in which exclusion will further the
purposes of the exclusionary rule.). This is not a case in
which the exclusionary rule is needed to deter police or
magistrate misconduct.

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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.

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