U.S. vs. Kirkland

On the morning of September 2,
2007, officers of the Fairview Heights Police Department
arrested Kenneth Kirkland after a search of his vehicle
revealed crack cocaine. On September 4, Kirkland was
transferred to the custody of the Drug Enforcement
Agency. While in DEA custody, Kirkland made several
inculpatory remarks, and he was arraigned later that
afternoon. On April 30, 2008, Kirkland was convicted of
possession with intent to distribute fifty grams or more of
cocaine base. He now appeals, arguing that his statements
to DEA agents were inadmissible under Federal
Rule of Criminal Procedure 5(a), 18 U.S.C. § 3501(c), and
the Fourth Amendment. Because defense counsel did not
adequately develop these arguments in the district court,
Kirkland has forfeited his right to appeal these issues, and
his conviction will be affirmed.

I. BACKGROUND
In the early morning hours of September 2, 2007, Fairview
Heights police responded to a report of suspicious activity
related to Kenneth Kirkland at the Ramada Inn. A drug
detection dog brought to the scene conducted an exterior
“sniff” of Kirkland’s vehicle and alerted to the presence of
controlled substances. After the positive alert, police
continued to monitor the hotel and Kirkland’s vehicle.

As Kirkland left the Ramada Inn later that morning,
Officer Brian Rogers stopped him for driving with a
cracked windshield and failing to wear his seatbelt. After
Rogers asked Kirkland some initial questions and issued
him a warning for the traffic violations, Sergeant Mike
Origliosso and DEA Task Force Officer (“TFO”) Chris
Modrusic arrived at the scene. Without notifying Kirkland
of his rights, Rogers asked Kirkland to step out of the
vehicle, told him he was free to leave, and asked if he
would answer some questions. Kirkland agreed and gave
consent for Rogers, Origliosso, and Modrusic to search the
vehicle. The search revealed rifle cartridges and crack
cocaine.

Kirkland was arrested at around 10:00 that morning. He
was held in police custody until he was transferred to the
DEA’s office on the morning of September 4, approximately
forty-eight hours later. TFO Mark Rigel read
Kirkland his Miranda rights, and Kirkland agreed to
speak with him.1 When Rigel asked if Kirkland wanted
to make a written statement, Kirkland responded that
he would accept responsibility for the cocaine. Kirkland
was arraigned before a magistrate judge at approximately
3:00 p.m. that afternoon. He was later indicted for
possession with intent to distribute fifty grams or more
of a mixture or substance containing cocaine base, in
violation of 21 U.S.C. § 841(a)(1).

On November 30, Kirkland filed a motion to suppress
“certain evidence in this matter.” After reciting the
events that occurred while in the custody of the Fairview
Police Department, Kirkland claimed that his detention
was “unreasonable, illegal, unlawful and unconstitutional.”
Specifically, he claimed that the length of the
detention was constitutionally unreasonable and that the
police violated the Fourth Amendment by detaining him
without a reasonable articulable suspicion that he was
involved in criminal activity. He also argued that the
interrogation roadside was coercive and conducted before
he was advised of his constitutional rights under Miranda.
He claimed that all subsequent statements and admissions
were thus tainted by this illegal conduct.

On February 1, 2008, Kirkland filed a memorandum in
support of this motion, in which he repeated his Fourth
Amendment argument and requested that the seized
crack be suppressed. Conspicuously absent from both
the motion and memorandum was any mention whatsoever
of the DEA or Kirkland’s statements to TFO Rigel.

On February 28, the court held a suppression hearing.
Defense counsel repeated the arguments made in his
motion and memorandum and added:

Regarding the statements that he ultimately makes
at the DEA office several days later, I believe those
warrant suppression as well, Your Honor, based
upon the fact that he had been in custody for over
48 hours at that point, apparently had not even had
a change of clothing. My understanding is that he
was brought to Court later that day, but not before
being interviewed at the DEA office.

The District Court issued an order on April 15. The
court declined to suppress the physical evidence because
the search was supported by probable cause and was
consensual. However, it held that any statements made
at the side of the road were in violation of Miranda. In
deciding which statements to suppress, the district court
noted:

[I]n his motion, Kirkland does not specify which
particular statements were unconstitutionally
obtained, and this Court “need not try to fish a
gold coin from a bucket of mud” in determining
which specific statements Kirkland intends to
challenge. United States ex rel. Garst v. Lockheed-
Martin Corp., 328 F.3d 374, 378 (7th Cir. 2003).
Nonetheless, at the hearing, Kirkland referred
specifically to statements he made at the scene . . .
as well as the September 4, 2007[,] statement he
made to Officer Rigel.

United States v. Kirkland, No. 07-CR-30137, 2008 WL
1774602, at *6 (S.D. Ill. Apr. 15, 2008). The court then
determined that, with respect to his statements to TFO
Rigel, Kirkland had received Miranda warnings and
indicated a willingness to speak to officers. Thus, the
court determined that these statements were constitutionally
obtained and admissible.

On April 30, following a jury trial, Kirkland was convicted.
On September 19, he was sentenced to 240
months’ imprisonment and ten years’ supervised release.

II. ANALYSIS
On appeal, Kirkland argues that he was held for an
unreasonable amount of time prior to being brought before
a magistrate for a probable cause determination. The
Fourth Amendment requires that a defendant receive
a judicial determination of probable cause promptly
after arrest or detention. Gerstein v. Pugh, 420 U.S. 103, 114
(1975). In County of Riverside v. McLaughlin, 500 U.S. 44, 56
(1991), the Supreme Court held that, absent evidence of
ill will or unreasonable justifications for delay, a judicial
probable cause determination is generally prompt for
purposes of the Fourth Amendment if it occurs within
forty-eight hours after arrest or detention. Where a defendant
does not receive a probable cause determination
within forty-eight hours, the burden shifts to the
government to justify the delay. Id. at 57.

Similarly, Rule 5(a) of the Federal Rules of Criminal
Procedure requires that a person arrested on a federal
charge be presented to a magistrate judge “without
unnecessary delay.” Even given a delay in presentment,
however, a voluntary confession made within six hours of
arrest remains admissible. 18 U.S.C. § 3501(c). On the other
hand, a voluntary confession made after the six-hour safeharbor
period may be inadmissible as a Rule 5(a) violation
and pursuant to McNabb v. United States, 318 U.S. 332, 344-
47 (1943), and Mallory v. United States, 354 U.S. 449, 455-56
(1957). Corley v. United States, 129 S. Ct. 1558, 1571 (2009)
(holding that § 3501 did not supplant McNabb-Mallory and
that “[i]f the confession occurred before presentment and
beyond six hours . . . the court must decide whether
delaying that long was unreasonable or unnecessary under
the McNabb-Mallory cases”).

Time spent in state custody does not generally count
toward § 3501(c)’s six-hour limitation. United States v.
Carter, 910 F.2d 1524, 1528 (7th Cir. 1990). To suppress a
statement in a federal prosecution based on excessive time
spent in state custody, the defendant must establish a clear
“working arrangement between federal agents and state or
local officials.” Id. It is not enough to provide a “bare
suspicion” of such a working arrangement. United States v.
Gaines, 555 F.2d 618, 622 (7th Cir. 1977). Instead, the
defendant must “show that state custody was ‘designingly
utilized’ to circumvent Rule 5(a).” Id. at 625 (quoting United
States v. Chadwick, 415 F.2d 167, 171 (10th Cir. 1969)); see
also Carter, 910 F.2d at 1528.

Kirkland claims that the district court erred in failing
to suppress his confession to TFO Rigel. He argues that
his extended detention before presentment to a magistrate
judge violated Rule 5(a), § 3501(c), and the McNabb-Mallory
line of cases because TFO Modrusic’s involvement in the
state investigation constituted a collusive working arrangement
between federal and state authorities.2 He also
claims that the length of time he spent in custody before
receiving a probable cause determination—over forty-eight
hours—violated the Fourth Amendment under Riverside.
For the reasons that follow, we find that Kirkland has
forfeited his right to raise these issues on appeal.

It is well established that a criminal defendant seeking
to suppress evidence must do so prior to trial. See Fed. R.
Crim. P. 12(b)(3)(C); United States v. Brodie, 507 F.3d 527,
530 (7th Cir. 2007). Under Federal Rule of Criminal Procedure
12(e), “a defendant who does not assert a timely
motion to suppress ‘waives’ the defense.” Brodie, 507
F.3d at 530; see Fed. R. Crim. P. 12(e). We have held that the
term “waiver” in Rule 12(e) encompasses not only the
typical definition of waiver, where a defendant intentionally
relinquishes a known right, but also forfeiture,
where a defendant fails to assert a right in a timely
fashion. Brodie, 507 F.3d at 530-31. Thus, we apply Rule
12(e) where a defendant has either waived or forfeited
his right to seek suppression of evidence. See id.

Under ordinary circumstances, waiver precludes appellate
review altogether, whereas we review a forfeited
issue for plain error. Id. A forfeited suppression argument
presents a special situation because, under Rule 12(e), “the
defendant must first show good cause for failing to make
that argument in the district court” before we may review
it. United States v. Murdock, 491 F.3d 694, 699 (7th Cir. 2007).
Kirkland does not make a good cause argument, and we
therefore will review his claims only if we find that he
adequately raised them in the district court, i.e., that he did
not forfeit them in the first place. See United States v.
Hargrove, 508 F.3d 445, 450 (7th Cir. 2007) (holding that a
defendant who gave no explanation for his failure to seek
suppression had not made the good cause showing required
by Rule 12(e)).

Not only must the defendant move to suppress
evidence to preserve an issue for appeal, but he also
must identify the grounds upon which he believes suppression
is warranted. United States v. Pope, 467 F.3d 912,
919 (5th Cir. 2006); United States v. Dewitt, 946 F.2d 1497,
1502 (10th Cir. 1991); cf. Brodie, 507 F.3d at 531 (“This
court has repeatedly held that there is no good cause to
excuse a Rule 12 forfeiture where a defendant files a
timely motion to suppress on one ground, and later
seeks to assert a new ground for suppression for the
first time on appeal.”). Kirkland maintains that, although
his memoranda did not raise the specific issues he now
appeals, his counsel’s statement at the suppression hearing
was sufficient to preserve them. We disagree.

Near the end of the suppression hearing, defense
counsel requested for the first time that the court
suppress Kirkland’s statements to the DEA. He noted
that Kirkland had been in custody for more than fortyeight
hours without a change of clothing. He also stated
that Kirkland had been brought before the court later
that day, but not before being interviewed at the
DEA office. In this context, he did not mention the Fourth
Amendment, Riverside, Rule 5(a), § 3501(c), McNabb,
Mallory, or a “working arrangement” between federal and
state officials. In other words, he failed to develop the
argument with citation to any relevant authority or meaningful
discussion. Such a failure results in forfeiture, see
Jarrard v. CDI Telecomm., Inc., 408 F.3d 905, 916 (7th Cir.
2005), because it does not give the government a meaningful
opportunity to rebut Kirkland’s claims, nor does it
notify the district court that it needs to address them, see
Pope, 467 F.3d at 919.

We do not demand that a defendant’s argument be a
“model[] of trial advocacy” to avoid forfeiture. United
States v. Roque-Espinoza, 338 F.3d 724, 727 (7th Cir. 2003).
For example, in Roque-Espinoza, we held that the
defendant did not forfeit his right to raise a due process
challenge on appeal, even though he had failed to label
his argument as such in the court below. See id. In that case,
however, the defendant cited the applicable law, and the
district judge was “plainly able to discern” from the
defendant’s filings which combination of cases formed the
basis of his argument. Id. In contrast, Kirkland’s counsel
did not cite any applicable cases at the suppression hearing,
nor did he articulate any of their underlying principles.
The district court was, therefore, unable to ascertain
the grounds upon which Kirkland based his argument.
This is evident from the district court’s order, which mentioned
counsel’s comments only insofar as they related
to Kirkland’s Miranda argument. For us to rule on these
additional issues when the district court had no opportunity
to do so “would run counter to axiomatic
principles of appellate review.” Pope, 467 F.3d at 919.

Perhaps in hindsight we can discern a plausible connection
between defense counsel’s comments and the
grounds Kirkland now raises on appeal. After all, counsel
did mention the forty-eight-hour detention and the fact
that Kirkland had not been brought before the court
prior to the interview at the DEA office. But these comments
could just as easily have been directed to the
argument in Kirkland’s suppression motion that his
statement was involuntary. Courts “are not in the
business of formulating arguments for the parties,” United
States v. McClellan, 165 F.3d 535, 550 (7th Cir. 1999); it is
defense counsel’s job to develop suppression arguments
in a meaningful way so that the government has an
adequate opportunity to respond and the district court to
make an informed decision, cf. Pope, 467 F.3d at 919
(holding that forfeiture had occurred where neither the
government nor the district court was put on notice of
the issue). Thus, just as the district court “ ‘need not try
to fish a gold coin from a bucket of mud’ ” in determining
which evidence to suppress, Kirkland, 2008 WL 1774602,
at *6 (quoting Lockheed-Martin Corp., 328 F.3d at 378), it
also need not try to imagine every plausible argument
that could be extracted from an attorney’s comments.

Finally, we also note that defense counsel’s perfunctory
comments were untimely. The district court set a November
28, 2007, deadline for Kirkland’s suppression
motions, and Kirkland’s final reply brief was due on
January 25, 2008. Yet Kirkland did not mention the statement
to the DEA until his suppression hearing on
February 28. Not only must the defendant raise a suppression
motion prior to trial to avoid waiver or
forfeiture, but he must also comply with any timing
requirements set by the district court. Fed. R. Crim. P.
12(c); see United States v. Mancillas, 183 F.3d 682, 703 (7th
Cir. 1999). If a defendant makes a motion or raises an
argument in an untimely manner, it is within the discretion
of the district court to refuse to address it. United
States v. Moralez, 964 F.2d 677, 680-81 (7th Cir. 1992); see
also Mancillas, 183 F.3d at 703-04 (affirming the district
court’s refusal to consider a motion to suppress where
it was raised for the first time at a suppression hearing
that took place after the period set by the court had
ended). Considering that Kirkland gives no explanation
for his failure to raise these arguments in his initial
motion, it would have been within the district court’s
discretion to refuse to consider them in the first instance.
See Mancillas, 183 F.3d at 703-04.

III. CONCLUSION
Defense counsel’s comments at the sentencing hearing
were not sufficiently developed to preserve the issues
Kirkland now raises on appeal. Kirkland has therefore
forfeited his right to appeal these issues under Rule 12(e).
We AFFIRM the judgment of the district court.


Chicago Criminal Lawyer - Robert J Callahan