Last week the Seventh Circuit Court of Appeals denied the appeal of Kenneth Kirkland who was convicted of possessing over fifty grams of cocaine and sentenced to twenty years in prison and an additional ten years of supervised release.

In the early morning hours of September 2, 2007, Fairview Heights, Illinois police officers began an investigation of Kirkland for possession of cocaine. The investigation took them to the local Ramada Inn. Using police dogs to sniff Kirkland’s vehicle which was parked at the hotel they believed that there was cocaine in the vehicle. After he came out of the hotel and started to drive the vehicle, the officers pulled him over on the pretext that they were stopping him for a cracked windshield.

While an officer was issuing Kirkland a warning, a sergeant and a DEA agent drove up. Without reading Kirkland his Miranda warnings they asked him some questions and for permission to search the vehicle. Kirkland agreed. Rifle cartridges and cocaine were found. He was arrested and 48 hours later transferred to DEA custody. Once in DEA custody he was read his Miranda rights and he took responsibility for the cocaine. At approximately 3:00 p.m. on September 4 he was taken before a magistrate.

On November 30 he (actually his attorney) filed a motion to suppress evidence. The motion did not mention the statements made to the police or the DEA. He claimed that his detention was without reasonable or probable cause and that the length of the detention was excessive. He filed a brief in support of the motion on February 1, 2008 but again did not discuss the statements. A hearing was held on February 28. At the hearing his counsel said

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 Court refused to suppress the cocaine because the search of the vehicle was supported by probable cause. The Court also refused to suppress the statements made while in Federal custody because he had been given Miranda warnings and it did not suppress the roadside statements because Kirkland (again actually his counsel) did not specify the nature of the statements.

The Fourth Amendment prevents lengthy detentions prior to an appearance before an magistrate during which peace officers can ruthlessly interrogate defendants. The Supreme Court has decided that a defendant must be taken before a magistrate for a probable cause hearing within 48 hours of arrest. Rule 5(a) of the Federal Rules of Criminal Procedure mandate that a defendant be brought immediately before a Federal magistrate and that any statement taken prior to the appearance before the magistrate but more than six hours after the arrest be excluded. Time held in local custody is excluded unless the Federal authorities colluded with the local police.

In refusing to grant the defendant’s appeal the appellate court found that Kirkland waived his right to have appellate consideration by failing to timely move to suppress the statements. Not only did Kirkland’s counsel wait until the hearing on the motion to suppress the cocaine to bring up the statements but his counsel failed to provide any legal reasoning in the motion to support the suppression of the statements. Furthermore counsel failed to meet deadlines set by the trial court for motions to suppress in that the original motion did not ask for the suppression of the statements.

The logical problem with the Seventh Circuit’s denial of the appeal is that Kirkland did not fail to meet any deadlines or to fulfill any duties. He is being punished for his counsel’s failure to meet deadlines and properly move for suppression of the statements. Presumably, although there is no indication in the appellate decision his appellate counsel (let’s hope that his trial counsel is not doing the appeal) is filing a writ of habeas corpus alleging incompetence of his trial counsel for failure to meet the deadline and for failure to move in a timely manner for suppression of the statements.