NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 18a0061n.06
Case No.16-4321
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED UNITED STATES OF AMERICA, ) Feb 05, 2018 ) DEBORAH S. HUNT, Clerk Plaintiff-Appellee, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE NORTHERN DISTRICT OF ARIAN O’CONNOR, ) OHIO ) Defendant-Appellant. ) ) OPINION )
BEFORE: MOORE, WHITE and DONALD, Circuit Judges.
BERNICE BOUIE DONALD, Circuit Judge. A jury convicted Defendant-Appellant
Arian O’Connor (“O’Connor”) of one count of felon in possession of a firearm, 18 U.S.C.
§§ 922(g)(1) and 924(a)(2). At trial, O’Connor moved to suppress evidence, alleging that the
search warrant affidavit in question did not establish probable cause. The district court denied
the motion. On appeal, O’Connor challenges that denial, and challenges the sufficiency of
evidence for his conviction. For the reasons set forth below, we affirm the district court’s order
denying O’Connor’s motion to suppress, and affirm his conviction and sentence.
I.
On August 11, 2015, the Youngstown (Ohio) Police Department (“YPD”) received a
911 call from Lisa Ashford (“Ashford”) reporting that a man and a woman were attempting to Case No.16-4321, United States v. O’Connor
break into the home Ashford shared with Ronald Scott (“Scott”) at 495 Sunshine Avenue,
Youngstown, Ohio. Ashford described a man holding a black short-barreled shotgun with a
pistol grip, and stated that the man and woman were driving a gray 2014 Ford Focus with Florida
license plate CHY-P34 (“Ford Focus”). Ashford subsequently identified the male intruder as
O’Connor. R. 41-1: Search Warrant Affidavit, PageID# 166 ¶¶ 3, 5-7. O’Connor had rented
the vehicle from Enterprise Car Rental the previous day. Id., PageID# 166 ¶ 4.
As O’Connor and his girlfriend, Jennifer Price (“Price”), attempted to break into the
house, Ashford told Scott to stay inside because O’Connor was armed, and warned O’Connor
and Price that she was going to call the police. O’Connor and Price fled in the Ford Focus. Id.,
Page ID# 166, ¶ 7. While responding to the call, YPD Officer Anthony Tulipano observed Price
and O’Connor on Landsdowne Avenue in the Ford Focus. Id., PageID# 166, ¶ 8. Investigation
revealed that earlier that day, O’Connor and Price had driven to the apartment of Robert Reed
(“Reed”) and Cheryl Rotan (“Rotan”). O’Connor was seen carrying the same type of shotgun
inside Reed and Rotan’s apartment. Id., PageID# 166, ¶¶ 1-2. When the YPD interviewed
Ashford the same day, she identified O’Connor from a photo array as the man who had
attempted to break into her home. Id., PageID# 166, ¶¶ 9, 10.
The next day, Officer Tulipano observed O’Connor’s rented Ford Focus parked at 2108
Burbank in Youngstown. Id., PageID# 166, ¶ 11. The police also learned that O’Connor was a
convicted felon1 and therefore prohibited from owning or possessing a firearm. Id., Page ID#
166, ¶ 12. The City of Youngstown Prosecutor’s Office filed a complaint, charging O’Connor
and Price with attempted aggravated burglary, and O’Connor with possession of a weapon while
under a disability. Id., PageID# 166, ¶ 13. Arrest warrants followed. PageID#166-67, ¶14.
1 See infra, n.2.
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Reciting the above information that same day, YPD Detective Sergeant Donald Scott
(“D/S Scott”) obtained a search warrant from a Youngstown Municipal Judge for 2108 Burbank,
Youngstown, and for O’Connor’s rented Ford Focus. R. 41-2: Search Warrant, PageID# 168-
70. On executing the search warrant later that day at 2108 Burbank, officers recovered a Maadi,
an AK-47 style assault rifle with 30 rounds of ammunition, found hidden between a mattress and
box spring in the south second floor bedroom, marijuana, a bag containing ammunition of
various calibers, and other items. R. 38-1: Search Warrant Affidavit Inventory, Exhibit A,
PageID# 149-51. The search also revealed O’Connor’s Social Security card on a dresser in the
upstairs sitting area, R. 75: Trial Tr., Vol. 1, PageID# 761-62, and his driver’s license, which
listed 2108 Burbank, Youngstown, as his home address, in the rental car, R. 38-1: Search
Warrant Affidavit Inventory, Exhibit A, PageID#149.
A November 4, 2015, single-count indictment charged O’Connor with being a felon in
possession of a firearm, in violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).2 O’Connor moved
to suppress on June 30, 2016, claiming that the affidavit failed to establish probable cause for the
search, and disputing the reliability of the information supporting the affidavit and the nexus
between the alleged criminal activity and the premises. R. 38: Motion to Suppress, PageID#
139-42. The government responded that the warrant established probable cause for the search as
well as a clear nexus between possession of a firearm and the premises to be searched.
On July 13, 2016, the district court denied O’Connor’s motion to suppress, without a
hearing. United States v. O’Connor, No. 1:15CR405, 2016 U.S. Dist. LEXIS 90759 at *6 (N.D.
Ohio July 13, 2016). In denying the motion, the district court reasoned:
2 The indictment listed state convictions for felonious assault in Mahoning County (Ohio) Common Pleas Court in (1) 1999 and (2) 2014, and federal convictions as a felon in possession of a firearm (3) in the Western District of Pennsylvania in 2004 and (4) in the Northern District of Ohio in 2010. R. 16: Indictment, PageID# 33-34.
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The Affidavit contains a description by four eyewitnesses of Defendant’s suspected criminal activity and his possession of a shotgun on August 11, 2015. The witnesses saw Defendant in the gray 2014 Ford Focus he rented the day before. Office Tulipano saw Defendant in that car in the area on August 11, 2015 and then saw the vehicle parked at 2108 Burbank on August 12, 2015. One of the witnesses identified Defendant in a photo line-up and re-affirmed what she observed about Defendant and the shotgun in a videotaped police interview. Given all the circumstances set forth in the Affidavit, the Municipal Judge made the fair and practical inference that the gun which Defendant was prohibited from possessing would be found either inside Defendant’s rental car or his Burbank residence.
Id. at *5-6.
The case proceeded to a jury trial on July 27, 2016. The government called three
witnesses: (1) James Corrin, a State of Ohio parole officer on assignment to the United States
Marshals Service, who assisted YPD in the August 12, 2015 search at 2108 Burbank, R. 75:
Trial Trans. Vol. 1, PageID# 741-75, and who discovered the assault rifle under the mattress,
id., PageID# 752, 755; (2) D/S Scott, whose affidavit led to issuance of the search warrant, who
took part in the search at 2108 Burbank, id., PageID# 776-803, and who observed the assault
rifle during the search, id., PageID# 781-84; and (3) David Miller, an Ohio Bureau of Criminal
Investigations (“BCI”) forensic scientist, who testified regarding his DNA testing on the assault
rifle seized from 2108 Burbank, R. 76: Trial Trans. Vol. 2, PageID# 808-64. Miller testified
that, using DNA standards provided to him for O’Connor and Price, he determined that the major
DNA contributors to the firearm were O’Connor and Price. Id., PageID# 819, 826-30. Miller
also testified that “the proportion of the population that can’t be excluded as possible
contributors to the mixture of DNA profiles on [the assault rifle] is 1 in 478,900” for both Price
and O’Connor. Id., PageID# 828.
On July 28, 2016, the jury found O’Connor guilty of being a felon in possession of a
firearm. R. 76: Trial Trans., Vol. 2, PageID# 1014-16; R. 52: Verdict, PageID# 246.
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O’Connor was sentenced to 120 months’ imprisonment, followed by a three-year term of
supervised release. R. 71: Sentencing Trans., PageID# 428; R. 65: Judgment, PageID# 380-
86. O’Connor filed a timely notice of appeal from the district court’s denial of his motion to
suppress and his conviction. R. 66: Notice of Appeal, PageID# 387-88.
II.
A.
O’Connor first challenges the search warrant, asserting that the supporting affidavit failed
to establish probable cause. (Appellant’s Br. at 9-14). Where the district court denied a motion
to suppress without holding an evidentiary hearing, we “review de novo the court’s legal
conclusion that the affidavit provided probable cause.” United States v. Brown, 28 F.3d 375, 381
(6th Cir. 2016) (quoting United States v. Brown, 732 F.3d 569, 572 (6th Cir. 2013)). We review
the district court’s factual findings for clear error, United States v. Watkins, 691 F.3d 841, 851
(6th Cir. 2012), viewing the evidence in the light most favorable to the government, United
States v. Hill, 195 F.3d 258, 264 (6th Cir. 1999) (citation omitted). We owe no particular
deference to the conclusions of the district court as a reviewing court. Brown, 828 F.3d at 381.
We accord a magistrate’s probable cause finding “great deference” and reverse only
where the warrant issued “arbitrarily.” United States v. Miller, 314 F.3d 265, 268 (6th Cir. 2002)
(citing United States v. Allen, 211 F.3d 970, 973 (6th Cir. 2000) (en banc)). The magistrate must
“make a practical, common sense decision whether, given all the circumstances set forth in the
affidavit[,] . . . there is a fair probability that contraband or evidence of a crime will be found in a
particular place.” United States v. Laughton, 409 F.3d 744, 747 (6th Cir. 2005) (quoting Illinois
v. Gates, 462 U.S. 213, 238) (1983)). We, in turn, must simply “ensure that the magistrate had a
substantial basis” for finding probable cause. Id. (citation omitted).
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In challenging the adequacy of the search warrant affidavit, O’Connor invokes the
protections of the Fourth Amendment to the United States Constitution, which requires
“probable cause” for a search warrant to issue. U.S. Const. amend. IV. That Amendment stands
guard against the government’s unreasonable “invasions . . . of the sanctity of a man’s home and
the privacies of life,” Boyd v. United States, 116 U.S. 616, 630 (1886), holding law enforcement
to an objective test before a home’s privacy can be breached, McDonald v. United States,
335 U.S. 451, 455 (1948). The “teeth” in the Fourth Amendment are provided by the sanction of
suppression of evidence obtained in violation of the Amendment. Illinois v. Krull, 480 U.S. 340,
347 (1987).
“Probable cause” is “reasonable grounds for belief, supported by less than prima facie
proof but more than mere suspicion.” United States v. King, 227 F.3d 732, 739 (6th Cir. 2000)
(citation omitted). “Search warrants are not directed at persons” but rather “authorize the search
of places and the seizure of things.” Zurcher v. Stanford Daily, 436 U.S. 547, 555 (1978)
(citation omitted). Whether an affidavit establishes probable cause is determined solely by
“look[ing] . . . to the four corners of the affidavit.” United States v. Abernathy, 843 F.3d 243,
249 (6th Cir. 2016) (citation omitted).
We impose no rigid, technical requirements on a search warrant affidavit. See Brinegar
v. United States, 338 U.S. 160, 176 (1949). Rather, we seek in “a practical, nontechnical”
manner to avoid both unduly hindering law enforcement and subjecting law-abiding citizens to
officers’ arbitrary or capricious conduct. Id.; see also United States v. Graham, 275 F.3d 490,
501-02 (6th Cir. 2001).
For a search warrant to issue, two requirements must be met. First, an affidavit “must
show a likelihood . . . that the items sought are ‘seizable by virtue of being connected with
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criminal activity.’” United States v. Church, 823 F.3d 351, 355 (6th Cir. 2016)
(quoting Zurcher, 436 U.S. at 556 n.6). This requirement is automatically met “when the object
of the search is ‘contraband,’” id. (citing Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307
(1967)), defined as “goods that are unlawful to . . . possess,” id. (citing Black’s Law Dict., 9th
ed. (2009)).
Second, the affidavit “must show a likelihood . . . ‘that the items will be found in the
place to be searched.’” Id. (quoting Zurcher, 436 U.S. at 556 n.6). In other words, a sufficient
“nexus” must be shown between the thing being searched for and the premises to be searched.
“To meet the nexus requirement . . . ‘the circumstances must indicate why evidence of illegal
activity will be found in a particular place.’” United States v. Berry, 565 F.3d 332, 338 (2009)
(quoting United States v. Carpenter, 360 F.3d 591, 594 (6th Cir. 2004) (en banc)).
B.
We turn to the affidavit here and whether it established probable cause for a search
warrant to issue for the premises at 2108 Burbank. The affidavit began with a general statement
of D/S Scott’s having good cause for the belief that “a black short barreled shotgun with a pistol
grip . . . , or any firearms or other fruits or instrumentalities of the crimes” was “located at 2108
Burbank, Youngstown, Ohio or in a gray Ford Focus bearing Florida registration CHY-P34.”
R. 41-1: Affidavit, PageID# 165. The affidavit also summarized D/S Scott’s education,
training, and experience, including a 2002 Juris Doctor and 2008 licensure as an Ohio attorney.
Id.
The affidavit proceeded to relate, in fourteen numbered paragraphs, what “[a]ffiant ha[d]
learned . . .” based upon his “education, training, experience, and participation in investigations
and further based upon the experience of other law enforcement agents and officers with whom
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Affiant has had contact . . . .” The affidavit noted that Reed and Rotan observed O’Connor with
the shotgun inside of their residence. Id., ¶ 2, PageID# 166. The affidavit also reported
Ashford’s observing O’Connor with the shotgun outside her residence, id., ¶¶ 6-7; her
identification of O’Connor from a photo array, id., ¶ 9; and her video recorded statement at the
YPD Detective Division, id., ¶10. The affidavit included references to O’Connor’s felony
convictions, id., PageID# 166, ¶ 12, the criminal complaint filed against him on August 11,
2015, id., PageID# 166, ¶ 13, and a mention of “[a]rrest warrants . . . issued for the arrest of
Arian O’Connor and Price, Jennifer of 2108 Burbank[,] Youngstown, Ohio”, id., PageID# 166-
67, ¶ 14. There was also an explanation regarding the rented automobile: “The gray 2014 Ford
Focus . . . was confirmed by Officer Melvin Johnson as registered to Arian O’Connor thru
Enterprise Car Rental on August 10, 2015.” Id., PageID# 166, ¶ 4.
C.
O’Connor’s legal incapacity to possess firearms as a convicted-felon at the time the
search warrant issued, 18 U.S.C. § 922(g)(1); Ohio Rev. Code 2923.13(A)(2),3 automatically
satisfied the first probable-cause requirement: the “likelihood . . . that the items sought are
‘seizable by virtue of being connected with criminal activity.’” See Church, 823 F.3d at 355
(quoting Zurcher, 436 U.S. at 556 n.6). We thus focus on the second requirement, “a fair
probability that contraband or evidence of a crime will be found in a particular place.”
See Gates, 462 U.S. at 238-39.
O’Connor argues that the affidavit failed to connect criminal activity and the place to be
searched. (Appellant’s Br. at 11-14). In particular, O’Connor challenges what he terms the
3 The affidavit and search warrant both referenced Ohio Rev. Code 2923.13(A)(2), Having Weapons While Under Disability as the offense connected to the shotgun, rather than the federal statute. The other offense referenced by the affidavit and warrant was Ohio Rev. Code 2923.02 and 2911.11 Attempted Aggravated Burglary. R. 41-1: Search Warrant Affidavit, PageID# 165; R. 41-2: Search Warrant, Page ID# 168.
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“[un]support[ed] . . . allegation that the Burbank address is in fact the residence of either
Mr. O’Connor or Ms. Price,” (id. at 11), averring that “[t]he only allegation in the entire affidavit
regarding the property is found in Paragraph 11” and quoting Officer Tulipano’s observation of
the Ford Focus “parked at 2108 Burbank,” (id.). O’Connor notes the affidavit’s silence as to
how long the car was parked there, whether it was in the driveway, or other details. (Id.). The
government argues that the affidavit provides “a sufficient nexus between O’Connor’s illegal
possession of a firearm and his residence” through named eyewitness statements tying O’Connor
to criminal activity and to the shotgun, observations and investigation tying him to the Ford
Focus, an observation of the parked Ford Focus, and a municipal arrest warrant listing 2108
Burbank as his residence. (Appellee’s Br. at 19). The government concludes that “[a]n issuing
judge could reasonably infer [the necessary nexus] upon review of the affidavit.” (Appellee’s
Br. at 22-23). This contention closely tracks the district court’s finding that “the Municipal
Judge made the fair and practical inference that the gun which Defendant was prohibited from
possessing would be found either inside Defendant’s rental car or his Burbank residence.”
O’Connor, 2016 U.S. Dist. LEXIS 90759 at *6.
O’Connor argues that the validity of the affidavit “depends entirely on whether the
district court could have determined that the residence was [his] solely on the basis of the
officer’s observation that on a single occasion the rental car was seen ‘parked at’ the address.”
(Reply Br. at 2). Besides mischaracterizing the contents of the affidavit, O’Connor’s assertion
misstates the legal standard in two ways. First, it is not the district court’s determination but
rather that of the issuing magistrate that is of central concern. See United States v.
Washington, 380 F.3d 236, 240 (6th Cir. 2004). Second, the correct test, as the government
points out, is “not whether the affidavit conclusively established that [2108 Burbank] was
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O’Connor’s legal residence,” but rather “whether the affidavit contained sufficient facts to
believe contraband would be found at” that address. (Appellee’s Br. at 23); see Gates, 462 U.S.
at 238-39.
Before the district court, moreover, O’Connor did not argue that the affidavit failed to
prove that 2108 Burbank was his residence. Indeed, his motion to suppress referred to
2108 Burbank as the “home” where he “resided with his girlfriend . . . Price.” R.38: Mot. to
Suppress, PageID# 139. Because O’Connor did not raise this argument below, we would
ordinarily deem it forfeited. See Jolivette v. Husted, 694 F.3d 760, 770 (6th Cir. 2012). Given
the de novo standard of review, though, we choose to address the issue.
Even as to this narrow issue, however, O’Connor’s assertions that “nowhere in the
affidavit is there anything to support the allegation that the Burbank address is . . . [his]
residence,” and that “[t]he only allegation in the entire affidavit regarding the property” at 2108
Burbank is Officer Tulipano’s observation of the parked Ford Focus, misrepresent the record.
(Appellant’s Br. at 11). O’Connor ignores Paragraph 14, which refers to an arrest warrant for
O’Connor “of 2108 Burbank Youngstown, Ohio.” R. 41-1: Affidavit, ¶ 14, PageID# 166-67.
O’Connor calls the parked car “far too slender a reed” to support an inference connecting him to
that address. (Appellant’s Br. at 14). But the reed was sturdier than O’Connor claims—the
affidavit linked him to the residence both by the presence at that address of his rented car and by
mention of an arrest warrant listing 2108 Burbank as his address. These connections make
O’Connor’s citation to United States v. Van Shutters, 163 F.3d 331 (6th Cir. 1998) inapt: the
affidavit there “completely neglect[ed] to indicate why the affiant believed that [the defendant]
had any connection” with the place to be searched. Id. at 336.
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As to the proper test, namely “whether the affidavit contained sufficient facts to believe
contraband would be found at” that address, see Gates, 462 U.S. at 238-39, establishment of a
nexus is a “fact-intensive question” requiring examination of “the totality of circumstances
presented,” Brown, 828 F.3d at 382 (citing Gates, 426 U.S. at 238).
A warrant may not issue if the underlying affidavit “fail[s] to provide any nexus between
the residence and the illegal activity.” See Laughton, 409 F.3d at 750 (citation omitted).
O’Connor argues that his affidavit so failed, noting that it contained no observations of persons
entering or exiting the residence, (Appellant’s Br. at 11), and no information as to firearms being
carried into the residence or stored there, (id. at 13). He also contends that the Ford Focus rented
by O’Connor did not support a nexus because Price, not O’Connor, was seen driving it. (Id. at
12-13).
But the affidavit in fact contained multiple points of information supporting a nexus:
statements connecting O’Connor with illegal activity involving the shotgun and the Ford Focus
came from at least three named eyewitnesses.4 R. 41-1: Affidavit, ¶¶ 2, 6-7, 9-10, PageID#
166. See United States v. May, 399 F.3d 817, 824-25 (6th Cir. 2005) (“The statements of an
informant . . . whose identity was known to the police and who would be subject to prosecution
for making a false report, are . . . entitled to far greater weight than those of an anonymous
source.”); United States v. Williams, 544 F.3d 683, 690 (6th Cir. 2008). Further, the affidavit
contained reports of direct observation by a police officer of O’Connor’s movements about
Youngstown in the Ford Focus, R. 41-1: Affidavit, ¶ 8, PageID# 166; police verification with
4 See supra, II.B. In addition to Ashford, Reed, and Rotan, there may have been a fourth named eyewitness: Scott, who shared the 495 Sunshine Avenue residence with Ashford. While not making it clear whether Scott observed O’Connor carrying the shotgun outside his and Ashford’s residence, as did Ashford, the affidavit would support an inference that he did. The district court saw it that way, referring to “description by four eyewitnesses of [O’Connor’s] suspected criminal activity and his possession of a shotgun on August 11, 2015.” O’Connor, 2016 U.S. Dist. LEXIS 90759 at *5.
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the car rental company that O’Connor had rented the Ford Focus the previous day, id., ¶ 4;
O’Connor’s past felony convictions, id., ¶ 13; mention of the arrest warrant issued for O’Connor,
id., ¶ 14, PageID# 166-67; and observation of the Ford Focus parked at 2108 Burbank, id., ¶ 11,
PageID# 166.
In contending that the nexus in this case is strong, the government cites Williams, 544
F.3d 683. (Appellee’s Br. at 26). There, this Court upheld a warrant based on named
informants’ information about the defendant’s criminal activity, his recent arrest for carrying a
concealed weapon, and police observation of the defendant’s car parked outside his house.
O’Connor attempts to distinguish Williams because there were two observations of a vehicle
parked at the residence there, and because it was undisputed that the residence was the
defendant’s; here, he argues, there was only one observation of the parked car and the affidavit
failed to prove that 2108 Burbank was O’Connor’s residence. (Reply Br. at 3).
But Williams is actually closely on point. O’Connor himself quotes a passage in which
this Court found, in view of “the evidence that [the defendant] possessed multiple guns, and had
recently used them to further his criminal activity, [that] the issuing judge could have reasonably
inferred that [the defendant] kept at least one handgun at his residence.” (Reply Br. at 3, quoting
Williams, 544 F.3d at 688). Here, named eyewitness evidence pointed to O’Connor’s possessing
a firearm and his recent use of it to further his criminal activity, he was linked to the Ford Focus
he had just rented and had used in connection with criminal activity, and the issuing magistrate
could have reasonably inferred that O’Connor was keeping the weapon either in the rented car or
at the residence where the car was seen parked and which was listed as his residence on his arrest
warrant.
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O’Connor also relies on Carpenter, 360 F.3d 591, where this Court found that probable
cause was not established by an affidavit that stated that marijuana was growing near a residence
and a road led from the field to near the residence. Id. at 594. The police had observed a beaten
footpath between the residence and the marijuana patches but omitted that point from the
affidavit. Id. at 594. This Court held that, had the affidavit mentioned the beaten path, and
observation of two men walking from the marijuana patches to the residence, probable cause
would likely have been established. Id. As it was, though, the connection between residence and
field was “too vague, generalized, and insubstantial.” Id. at 595. But Carpenter is readily
distinguishable: far from “vague, generalized, [or] insubstantial,” the affidavit here noted
multiple links between O’Connor’s recent criminal activity, the firearm, the rental car, and 2108
Burbank—links by eyewitness statements and by police observation.
We therefore conclude that the affidavit established a sufficient basis for the magistrate’s
“practical, common sense decision” that, in view of “all the circumstances set forth in the
affidavit,” there was “a fair probability that contraband or evidence of a crime [would] be found”
at 2108 Burbank. See Laughton, 409 F.3d at 747 (6th Cir. 2005) (quoting Gates, 462 U.S. at
238).
D.
Because this Court finds that the affidavit presented to the magistrate established
probable cause to search O’Connor’s residence, we need not address the “good faith exception”
announced by the Supreme Court in United States v. Leon, 468 U.S. 897, 913, 926 (1984).
However, assuming arguendo that the affidavit here failed to establish probable cause, we briefly
consider the exception.
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The Leon Court held the Fourth Amendment exclusionary rule inapplicable where police
officers rely in good faith on a warrant ultimately determined to lack probable cause. Leon, 468
U.S. at 913. The exception does not apply, though, “when the affidavit is so lacking in indicia of
probable cause that a belief in its existence is objectively unreasonable,” Laughton, 409 F.3d
744, 748 (citing Leon, 468 U.S. at 914-23)—in other words, the affidavit is “bare bones,”
see United States v. Hython, 443 F.3d 480, 484 (6th Cir. 2006) (quoting Leon, 468 U.S. at 915).
In order not to be found “so lacking,” an affidavit must contain “some modicum of evidence,
however slight, to connect the criminal activity described in the affidavit to the place to be
searched.” Laughton, 409 F.3d at 749.
Here, given the affidavit’s presentation of statements from at least three named
eyewitnesses connecting O’Connor with criminal activity, the shotgun, and the Ford Focus, as
well as its inclusion of information based on police observation or verification, connecting the
Ford Focus with O’Connor and with 2108 Burbank, and detailing O’Connor’s felony
convictions, the search warrant on which it was based contained sufficient indicia of probable
cause as to justify an officer’s good faith reliance on the warrant. We therefore conclude that,
even were the warrant found to fail to establish probable cause, the Leon “good faith exception”
would apply, and we would affirm the district court’s denial of the motion to suppress on that
ground.
III.
O’Connor also challenges the sufficiency of the evidence supporting his conviction. We
review the issue of insufficiency of evidence de novo, seeking “to determine whether, after
viewing the evidence in the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable doubt.” United States
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v. Callahan, 801 F.3d 606, 616 (6th Cir. 2015) (citation omitted) (emphasis added); Jackson v.
Virginia, 443 U.S. 307, 319 (1979). A defendant challenging sufficiency of evidence “bears a
very heavy burden.” United States v. Davis, 397 F.3d 340, 344 (6th Cir. 2005) (quoting United
States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999)). We will reverse only “if [the] judgment
is not supported by substantial and competent evidence upon the record as a whole.” United
States v. Wright, 16 F.3d 1429, 1439 (6th Cir. 1994) (citation omitted).
To secure a conviction under 18 U.S.C. § 922(g), the government was required to prove
that (1) O’Connor was a convicted felon who (2) knowingly possessed the firearm specified in
the indictment, and (3) the firearm traveled in or affected interstate or foreign commerce.
18 U.S.C. § 922(g)(1); United States v. Grubbs, 506 F.3d 434, 439 (6th Cir. 2007); United States
v. Walker, 734 F.3d 451, 455 (6th Cir. 2013) (citation omitted). O’Connor disputes only the
second element, sufficiency of evidence to support his possession of a firearm. (Appellant’s Br.
at 14-20).
Possession of a firearm may be actual or constructive. United States v. Campbell,
549 F.3d 364, 374 (6th Cir. 2008). In actual possession, the weapon “is within the immediate
power or control of the individual.” Walker, 734 F.3d at 455 (citation omitted). Constructive
possession occurs where the individual “knowingly has the power and the intention at a given
time to exercise dominion and control over an object,” id. (citation omitted). Possession may be
proven by direct or circumstantial evidence. United States v. Kimbrough, 101 F. App’x 608, 611
(6th Cir. 2004) (citation omitted). The evidence need not remove every reasonable hypothesis
save that of guilt. United States v. Tarwater, 308 F.3d 494, 504 (6th Cir. 2002).
Here, the weapon at issue was a Maadi, AK-47 style semi-automatic rifle. R. 38-1:
Search Warrant Affidavit Inventory, Exhibit A, PageID# 151. O’Connor argues that (1)
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proximity alone is insufficient to establish constructive possession, particularly where another
person (Price) was in equal proximity to the weapon, (Appellant’s Br. at 16); (2) the witnesses
observed O’Connor with a different weapon than the one found during the search, (id. at 17-18);
(3) the DNA evidence proves, at best, that O’Connor touched the weapon at some point but fails
to satisfy the “dominion and control” test (id. at 18-19); and (4) no other circumstantial evidence
supported an inference of O’Connor’s constructive possession of the weapon, (id. at 19-20).
The government contends that ample evidence supported O’Connor’s conviction because
the weapon was found in premises over which O’Connor exercised dominion, the DNA evidence
established more than O’Connor’s “mere presence” in the place where the weapon was found,
and Price’s testimony that the firearm was hers and that she never saw O’Connor handle it was
contradicted by other parts of her testimony and therefore the jury had a rational basis for
discounting Price’s testimony. (Appellee’s Br. at 30-35).
O’Connor argues, correctly, that a defendant’s mere presence in a place where a weapon
was found is insufficient to establish possession. (Appellant’s Br. at 15, citing Grubbs, 506 F.3d
at 439. Moreover, proximity to a weapon police seize during a search, without more, does not
establish constructive possession. (Id. at 16, citing United States v. Soto, 779 F.2d 558, 560 (9th
Cir. 1986). Proximity may show accessibility, but not the crucial factor of dominion or
control. United States v. Arnold, 486 F.3d 177, 183 (6th Cir. 2007) (en banc); Soto, 779 F.2d at
560.
Price testified that the firearm belonged to her. R. 76: Trial Tr., Vol. 2, PageID# 881.
She also testified that she and O’Connor argued because he “wanted the [firearm] out of the
house,” id., PageID# 883-84, that she never saw O’Connor touch the firearm “in front of [her],”
id, PageID# 884, and that she knew how to operate it, id., PageID# 901-02. However, on cross-
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examination she admitted to telling police that O’Connor had access to the firearm, that she
depended on him to protect her with it, id., PageID# 917-18, and that she did not know how to
use it, id., PageID# 902-03. These contradictions gave the jury a rational basis to discount
exculpatory parts of her testimony and conclude that O’Connor constructively possessed the
firearm. See United States v. Coffee, 434 F.3d 887, 896 (6th Cir. 2006).
O’Connor relies on United States v. Beverly, where a defendant was found standing in a
room of a house belonging to another; during a pat-down of the defendant an officer noticed two
guns in a waste can near the defendant. 750 F.2d 34, 35 (6th Cir. 1984). The defendant’s
fingerprints were found on one of the guns, but this Court reversed the defendant’s conviction for
violating 18 U.S.C. § 922(h)(1) (1982). Id. at 37. The Court held that the defendant’s being in a
room of the residence and standing near a waste can containing a gun that defendant’s
fingerprints revealed he had touched at some point were insufficient to establish that the
defendant “knowingly [had] the power and the intention at a given time to exercise dominion and
control” over the gun. Id. at 37.
However, Beverly is readily distinguishable, as several pieces of evidence pointed to
O’Connor’s exercising dominion over the room where he and the weapon were found. The
officers executing the search warrant saw O’Connor in his boxer shorts, R. 75: Trial Tr., Vol. 1,
PageID# 750-51, and his Social Security card was found on a dresser in a room adjacent to the
bedroom in which the assault rifle was found, id., PageID# 761-62. In addition, the driver’s
license police recovered from the Ford Focus listed 2108 Burbank as O’Connor’s residence.
R. 38-1: Search Warrant Affidavit Inventory, Exhibit A, PageID# 149. Thus, the jury had
“substantial evidence” on which to conclude that O’Connor exercised dominion and control over
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the bedroom in which the weapon was found, and over the entire residence. See United States v.
Craven, 478 F.2d 1329, 1333-34 (6th Cir. 1973).
O’Connor also argues that an inference of constructive possession of the firearm is
defeated by the fact that there were two people—himself and Price—in equal proximity to the
weapon. (Appellant’s Br. at 16). He cites no case law or statutory authority in support of this
contention. And, while it is true that constructive possession of the firearm by Price and not
O’Connor may be a reasonable hypothesis, “the evidence need not remove every reasonable
hypothesis except that of guilt.” See Tarwater, 308 F.3d at 504 (citation omitted).
Finally, O’Connor argues that the DNA evidence “was insufficient to establish
constructive possession.” (Appellant’s Br. at 18). He contends that the DNA evidence,
“seem[ingly] compelling,” “becomes much less so” given the possibility, testified to by the BCI
analyst, that the presence of O’Connor’s DNA resulted from Price transferring that DNA onto
the firearm. (Id.). He avers that “all this proves is that, at best, Mr. O’Connor at some point
touched the weapon.” (Id.). But the DNA evidence was far from the only evidence supporting
constructive possession; a rational trier of fact could view the DNA evidence as additional
incriminating evidence that, coupled with other evidence of constructive possession, “tip[ped]
the scale in favor of sufficiency.” Arnold, 486 F.3d at 183 (citation omitted).
In any event, the operant question is, more broadly, “whether, after viewing the evidence
in the light most favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Callahan, 801 F.3d at 616 (citation
omitted) (emphasis added). Here, a rational trier of fact could have found beyond a reasonable
doubt that O’Connor was guilty of being a felon in possession of a firearm under 18 U.S.C.
§ 922(g), where the only element in dispute was O’Connor’s knowing possession of the firearm
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seized from his residence, and substantial evidence supported the conclusion that O’Connor had
constructive possession of the firearm. We therefore hold that the evidence, viewed in the light
most favorable to the prosecution, was legally sufficient to support the § 922(g) conviction.
See Kimbrough, 101 F. App’x at 611.
V.
For the foregoing reasons, we AFFIRM the district court’s denial of Defendant’s motion
to suppress, and AFFIRM Defendant’s conviction and sentence for being a felon in possession
of a firearm.
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